SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title: / Cressy v Miloriad
Citation: / [2016] ACTSC303
Hearing Dates: / 4, 5, 6, 10 October 2016
DecisionDate: / 12 October 2016
Before: / Mossop AsJ
Decision: / See [129]
Catchwords: / PERSONAL INJURY – Motor vehicle accident – Assessment of damages – Pre-existing degenerative condition of the hip rendered symptomatic by accident – Likelihood of requirement for hip replacement in any event – Loss of chance of promotion – Loss of sick leave – Turns on own facts
Cases Cited: / Graham v Baker [1961] HCA 48; (1961) 106 CLR 340
Kennedy v Mangos [2001] ACTSC 92
Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164
Watts v Rake [1960] HCA 58; (1960) 108 CLR 158
Texts Cited: / Harold Luntz, Assessment of damages for personal injury and death (LexisNexis Butterworths, 4th ed, 2001)
Parties: / Angela Cressy (Plaintiff)
Milosevic Miloriad (First Defendant)
NRMA Insurance (Second Defendant)
Representation: / Counsel
A Muller (Plaintiff)
J Pappas (Defendants)
Solicitors
Maliganis Edwards Johnson (Plaintiff)
Moray & Agnew (Defendants)
File Number: / SC375 of 2015

MOSSOP AsJ:

Introduction

1.This case involves an assessment of damages arising out of a motor vehicle accident which occurred on 11 August 2011. The plaintiff, Angela Cressy, was driving her vehicle to work on Bindubi Street in Aranda. There was an accident involving four vehicles. The vehicle driven by the first defendant collided with the rear of a white Holden Commodore, which in turn collided with the rear of the plaintiff’s vehicle, which in turn collided with a Subaru vehicle in front of hers. Breach of duty was admitted.

2.The principle issue in the case was how, in the assessment of damages, to take account ofthe fact that the plaintiff had a degenerative right hip which would have required her to undergo a hip replacement in any event. Notwithstanding some criticisms by counsel for the defendants of the plaintiff’s evidence,I do not consider that issues in the case turn on issues of reliability of her evidence. I found her to be a reliable witness who gave frank evidence about her condition.

The plaintiff prior to the accident

3.The plaintiff was born in 1958 and was aged 52 at the date of the accident. She was aged 58 at trial. She lived in Sydney until 1968. As a child she learnt classical ballet and continued that from around the age of seven until the age of 18.

4.She completed year 12 at Canberra High and moved to the south coast. She worked in various shop assistant roles for around 12 months and then completed a secretarial course at the Milton Technical College. In 1979 she returned to Canberra and worked as a legal assistant in the Attorney General’s Department. In 1980 she travelled to and worked in Western Australia and the Northern Territory. In 1981 she returned to the south coast where she worked in real estate. Her son was born in 1982.

5.Between 1984 and 1993 she was self-employed, operating a dance and fitness business in Mollymook in New South Wales. She commenced smoking in 1991.

6.She returned to Canberra in 1994. In 1994 she worked part-time as an assistant in nursing while studying a Bachelor of Tourism (Information Technology) at the University of Canberra. She concluded that degree in 1998. Between 1999 and 2001 she lectured in marketing and business administration at the University of Canberra, worked as a researcher with the Cooperative Research Centre for Sustainable Tourism and also worked for a consulting business called Davis Consultancies. She lectured part-time at the Australian Institute of Management.

7.In 2002 and 2003 she and another woman established a business known as Corpfit Training Solutions which was a nationally registered training organisation.

8.In 2004 she lived and worked in Thailand for 12 months teaching English at a business administration college in Bangkok. She returned to Australia in May 2005 and joined the Australian Public Service in 2006. She entered at the APS6 level and worked in the Department of Health and Ageing in the section of the Department dealing with Medicare outlays for diagnostic imaging.

9.In July 2009 she attended a general practitioner Dr Nambiar. She had been recommended to her because he had a background in psychological counselling and the plaintiff was suffering from anxiety. That anxiety related to her work in a new area and the fact that her father had been recently diagnosed with dementia. She was prescribed Seroquel and improved progressively as a result of her consultations with Dr Nambiar.

10.In February and March 2011 she took up an acting position at the EL1 level in the Department of Health. That role involved participation in a newly established task force within the Department which was conducting a review of Medicare funded diagnostic imaging services and the presentation of the departmental analysis to a panel of eminent persons.

11.In May 2011 she attended a general practitioner at Hawker Medical Practiceand was prescribed Champix to assist her in giving up smoking. She was successful in quitting smoking by July 2011, just before the accident. However, she recommenced about five months later and has not stopped since.

The accident

12.The accident occurred on 11 August 2011, a Thursday. She was sitting in her vehicle with her hands on the wheel and her foot on the brake when she heard what she described as “a loud explosion” followed shortly after by feeling the impact. The impact threw her head and upper body forward. Her vehicle had been struck from behind, pushed forward and struck a black Subaru which was in front. The plaintiff’s vehicle, a Mitsubishi Colt, suffered damage to the bumper bar and rear door. It suffered only minor damage at the front of the vehicle.

13.The plaintiff got out of the car. The immediate impact that she felt was to her shoulder and breast which had been affected by the seat belt. She felt shocked. She got out and walked around. Those involved in the accident gathered by the side of the road. She called the police who attended the scene.

14.She was able to drive her vehicle to work. She left early that day and went to the doctor. She perceived that she was somewhat “hyper” and not quite normal. She felt stiff in the neck, calves and hips as if she had undertaken a severe workout. The doctor advised her to take pain relief.

15.The next day she was quite stiff all over and had pain in her knee, hip, back and shoulders. However, she returned to work on the day following the accident, a Friday, because she and her supervisor were in the process of preparing a Cabinet submission and there were tight deadlines to be met. She took Mersyndol for her pain.

16.Over the weekend she described herself as “a cripple”. She did, however, return to work on the Monday. Over the next few weeks she found that her generalised pain was localising to her knees, left breast, neck, lower back right groin and hips.

17.At that time she was in a relationship with Christopher Lansdown. He did not live with her but helped her a lot, especially in the first week. He lived with herfor the first week. After that he would come over regularly. Her mother and father would assist her on weekends. She had difficulty doing housework and washing. Her mother would come up from Tuross Heads in New South Wales and spend a couple of days a week there. She continued to that for three to fourmonths.

18.At work she perceived that her performance was below what was expected. She found that her pain and preoccupation with pain detracted from her working capacity. She also noticed that her anxiety increased and there was a drop in her self-confidence as a consequence of her pain. She saw Dr Nambiar following the accident and she prescribed an increased dose of Seroquel which assisted to eliminate the symptoms of anxiety.

19.She received physiotherapy treatment between August and November 2011 and was given exercises to carry out. The principal areas where she experienced pain which were treated by this physiotherapy were the left side of her neck and areas related to her right hip.

20.In October 2011 she took recreation leave and travelled to the United States for two weeks with her sister-in-law(the wife of her brother) and her sister-in-law’s twin sister. This trip had been arranged only a few weeks before. Her sister-in-law and twin sister travelled to New York. The plaintiff stopped off in Los Angeles for a few days before going on to meet them. She adopted this approach because she was not sure how she would cope with travelling to New York in one go. She did some sightseeing in Los Angeles. When she met her sister-in-law and twin sister in New York they did some sightseeing and visited tourist attractions in New York. She walked “a wee bit” but otherwise travelled by bus or taxi.

21.Upon returning from her holiday she returned to work as an acting EL1. She was back under work pressure. She had pain in her knees, neck and hips and lower back.

22.In March 2012 she was reviewed by Professor Paul Smith. She was told that she had a bad right hip and similar left hip, as well as degeneration of her cervical spine. She was told that at some stage she would need a right hip replacement.

23.In April 2012 her supervisor at the Department of Health moved to the Department of Agriculture and asked the plaintiff to join her on the basis that she would be acting at the EL1 level and being paid at the top of the salary range for that position. The plaintiff took up that offer.

24.She continued to have pain in her hip, lower back and knees. She suffered from headaches and anxiety. She felt she was not coping with the new position. DrNambiar prescribed her with Pristiq, but this had an adverse effect and made her feel worse. She was referred by Dr Nambiar to Dr Speldewinde, a pain physician.

25.She continued to act at the EL1 level until April 2013. Prior to the end of that period the substantive position at the EL1 level was advertised. Because of her ongoing issues with pain and her concern that, as a result, she was not performing at her full capacity, the plaintiff chose not to apply for the substantive position notwithstanding her history of acting in that position. Her supervisor, Adrienne Hallam, who had brought her across from the Department of Health, considered that she had been a hard worker, diligent, reliable and had been putting in a lot of hours. However,Ms Hallam considered that following the accident the plaintiff had struggled and was not as capable because she seemed overwhelmed. Prior to the accident her performance was such that she would have characterised her as a very high performing APS6 and “eminently promotable”.She said that she would have been competitive in the selection process for an EL1 position.

26.By November 2013 she continued to suffer from intermittent neck pain as well as pain in her hip and knees.

27.Following consultation with Dr Speldewindethe plaintiff continued to use Mersyndol and anti-inflammatory drugs and also undertook Pilates.

28.In October 2014 she was reviewed by Professor Smith who recommended a hip replacement. By this time she still suffered from fluctuating neck pain which, on a bad day, led to a headache.

29.The plaintiff underwent a total hip replacement on 19 March 2015. She remained in hospital from 19 to 24 March 2015.

30.Prior to the hip replacement her mother had continued to assist her with some things such as window cleaning. The amount of assistance that her mother provided had lessened over time. Her brother assisted by taking garden waste away and she also had assistance from gardeners that she employed. Her neck had improved to the point that it only caused her occasional pain.

31.She was discharged from hospital on 24 March 2015 and spent a few days at homebefore being transported to her parents’ house at Tuross Heads were she stayed for approximately six weeks.

32.Prior to the move to Tuross Heads the plaintiff was only able to walk with crutches. She got assistance with personal care and meals from her sister-in-law’s sister, Nicole Whitman, and did no housework herself.

33.During the six weeks at Tuross Heads she did no housework, no cooking and was largely incapacitated. Her mother helped her with personal care and she used the various “tricks” that she had been taught in the hospital to look after herself. She received some physiotherapy at Moruya Hospital.

34.After she returned to Canberra she didn’t attempt housework or undertake significant lifting. She waited until her friends or her mother could assist her. Her mother visited her monthly. Her mother moved in with her in August 2015. Her father died in February 2016. Her mother continues to live with her.

35.For reasons which are not clear, the second defendant required her to travel to Sydney for medical examination in May 2015. An investigator engaged by the second defendant took video of her in Sydney walking down the pavement and catching a taxi without apparent impediment. When cross-examined about this the plaintiff said that she was very tired at the end of that day and that she had regretted not taking her crutches with her. I accept her evidence on that point.

36.She returned to work in May 2015. This was a graduated return to work and she returned to full-time hours about eight weeks after having started. By the time she had resumed full-time hours she felt she was able to function well. She benefited from having a sit/stand desk at work.

37.Up to the end of 2015 she did not apply for any promotions because she thought that she was not able to commit to work at that level. Although it was suggested to her that she had not applied for promotion because of her father’s dementia and her desire to spend time with him, I accept her evidence that while this was an issue that was “in the mix” it was not the main reason why she did not apply for higher duties.

38.It was only in 2016 that she reapplied for an EL1 level position. That was a position in which she had been acting from about February 2016. However, in June 2016 she was unsuccessful in her application.

39.The plaintiff’spresent condition is as follows:

(a)Her neck is “okay”, although she avoids looking down for a long time and lifting her arms up or repetitive actions. She has perceived it to gradually improve either because of a substantive improvement or because of her better capacity to manage.

(b)Her back is “okay” largely because of the hip replacement, although she did have one recent episode of back pain. Any ongoing knee and lower back pain appear to have resolved as a consequence of her hip operation.

(c)Her right hip is “great” compared to how it felt prior to the operation, although she does have the odd pain. She does not mind the scar from the operation, but does notice a protrusion where the prosthesis is.

40.The evidence of the two psychologists whose reports were tendered was that any psychological effect of the accident is subclinical, that is, the plaintiff does not suffer from any diagnosable mental condition.

Medical Issue

41.The principal medical issue was when, in any event, the plaintiff’s right hip would have required replacement and to what extent the accident altered what would otherwise have been the condition of the plaintiff’s hip. There was good evidence of the condition of the plaintiff’s right hip at about the time of the accident because of an x-ray taken on 19 August 2011 and an MRI performed on 23 November 2011.

Professor Smith

42.In his report dated 3 March 2015 Professor Smith, in response to a question posed by the plaintiff’s solicitors, said:

Ms Cressy suffered her injuries in a motor vehicle accident on 11 August 2011. Radiographs performed on 23 November 2011 revealed established right hip osteoarthritis. Prior to the motor vehicle accident Ms Cressy had no history of any hip problems and described no symptoms referable to the hip prior to her accident.

Based on the radiographs available Ms Cressy most likely had gradually developed osteoarthritic change over the course of her life, however this was rendered symptomatic by the vehicle accident. Based on the radiographs it would appear that Ms Cressy would have required hip replacement at some point in her life, however may have remained asymptomatic for a long period if the vehicle accident had not occurred.

43.In cross-examination he agreed that the condition visible on the MRI taken in November 2011 could be described as “end-stage osteoarthritic change”. He agreed that the complete loss of joint space increased the likelihood of pain. He also agreed that even without a car accident the plaintiff would have required a hip replacement at some stage and that her level of activity made it more likely that that would be sooner rather than later. As to when a right hip replacement would have been required in any event, his evidence in cross-examination was as follows: