Adamo v Nemet No. DCCIV-99-1600

MICHELINA ADAMO v TIMOTHY NEMET
[2001] SADC 1

Judge Lunn
Civil

Assessment of damages

The plaintiff was born in 1967 and was 33 years of age at trial. She is single. Up until shortly after the accident she had lived with her parents and younger sister. At school she struggled academically but passed. She left school before the end of her year 10. She worked for a few months in a fashion boutique. She then progressed from casual to full time work as a sales assistant at a video store. She was there for 4½ years but left in 1988 when she turned 21. Thereafter she was unemployed for about two years. She obtained permanent part time casual work as a sales assistant with Cheap as Chips at Glynde. She was there for not quite two years and lost the job when the store closed. She was again unemployed for about 2-1/2 years except for a few intermittent casual jobs. In October 1994 she obtained permanent casual employment working 38 hours a week as a shop assistant with Cheap as Chips at Arndale. It was fairly heavy work. She held that employment until November 1995 when she transferred to the Cheap as Chips shop at Prospect where she worked reduced hours because she was also caring for her sick mother.
On 23 December 1993 the plaintiff had first consulted Dr Neroni, a general practitioner, for tonsillitis. She did not see him again until February 1995. She had apparently consulted some other doctor in the intervening period as she had xrays of her neck in January 1995. After February 1995 she regularly saw Dr Neroni for a variety of complaints. On 4 September 1995 she first complained to Dr Neroni of neck pain. He noted that she had told him that “she had a long history of upper neck pain radiating to both shoulders and mid scapula area”. On examination he noted bilateral trapezius muscle tenderness. On that day he gave her no treatment for that complaint, but when he saw her two days later on 6 September in relation to other unrelated matters he referred her to Roberts Physiotherapy for physiotherapy treatment for her neck. He heard nothing further from either the plaintiff or Roberts Physiotherapy about the matter and presumed that the complaint had resolved.
On 15 September 1995 the plaintiff saw Lenore Harris, a physiotherapist, employed by Roberts Physiotherapy, complaining of pain in her neck radiating to the shoulders and of getting intermittent headaches and feeling dizzy. Ms Harris did not give evidence but her notes were tendered. The plaintiff complained to her that the pain got worse as the day wore on at work. She said to her that she felt the problems were worsening since she had started work at Cheap as Chips. Ms Harris considered that the cause of the complaints was a posture problem and gave the plaintiff some posture advice and other treatment.
After 15 September 1995 the plaintiff did not return to Roberts Physiotherapy until 5 June 1996. On that day she saw Sonja Vanderweegen, another physiotherapist at that practice but without any further referral from a doctor. That physiotherapist was not called but her notes were tendered. On that occasion the plaintiff complained of a stiff and sore neck with greater symptoms on the right side than the left. She also complained of occasional back ache. She told that physiotherapist it had first begun about twelve months before and had been gradually worsening at work with bending and lifting heavy boxes and goods. She said that previous treatment had helped. She rated her pain at 5 on the scale of 0-10, but at 8 after work. The physiotherapist considered that the cause of the problem was working posture and sustained flexion and strain. She was given some treatment and advice about regular back exercises at work and improved strength and posture. On 11 June 1996 the plaintiff saw the same physiotherapist again. She reported that her symptoms had been stirred up for about two days after the previous treatment and had then eased. She is noted as saying that day they were “pretty bad and right-sided” There is no direct evidence of the plaintiff having any other physiotherapy treatment prior to the accident.
In July 1997 the plaintiff became the assistant manager of the Prospect store of Cheap as Chips. By then she was apparently back to working full time. In October 1997 she became the assistant manager of the Marden store of Cheap as Chips. She was earning $450 per week nett but worked about 50 hours per week with no payment for overtime.
On 11 August 1998 the plaintiff consulted Dr Neroni about recent dizziness and lethargy which resulted from anaemia. On that occasion he noted her complaint of “upper and mid thoracic pain secondary to lifting at work and not sleeping well recently.” He found her to be tender over the mid thoracic spine. He did not treat her for the thoracic pain except that he prescribed some sleeping tablets for sleeping difficulties as a result of the neck pain. On 10 November 1998 the plaintiff again consulted Dr Neroni. His note read, “She woke up on 8/11/98 with left shoulder pain and stiffness, worse after lifting boxes at work yesterday.” On examination she had tenderness over the left C6/7 area, the left lower para-cervical and left trapezius muscle and her range of movement was slightly reduced with left lateral rotation. He prescribed her anti-inflammatory medication, told her to rest and use heat packs and liniment and gave her a medical certificate for two days off work and for a further two days on light duties. She did not consult him again about these matters.
In early December 1998 the plaintiff and her sister jointly entered into a contract to buy a partly constructed house for $160,000 which was in the same street as their parents’ house in which they had been living. They paid a deposit of $8,000 and made arrangements to borrow the balance of the purchase price.
On Sunday, 6 December 1998 the plaintiff was a passenger in the front seat of a motor car driven by her then boyfriend which was subject to a major rear end impact as a result of the negligence of the defendant. She was wearing a seat belt. Immediately after the accident she had soreness in her neck and across the top of her shoulders but she proceeded on with her usual activities. On Monday, 7 December she went to work as usual. She was experiencing pain in her back and had difficulty in turning her neck. She again went to work on Tuesday, 8 December but her pain became worse and she went home at about 11am.
In the early afternoon of that Tuesday she saw Dr Neroni. This was the first treatment she had sought after the motor vehicle accident. He noted as follows:
“Involved in motor vehicle accident on 6/12/98 ........ since then has had neck pain, stiffness, radiating to thoracic area and now involving lumbar area. ...... On examination she was tender over cervical spine and upper thoracic spine, so T8 (sic) and lower lumbar spine over L4 to S1. Reduced range of movement of lumbar spine, flexion to mid shin and reduced cervical range of movement, lateral rotation 45o left and same 45o to right, flexion 25o, extension 10o.”

He sent her for xrays which she had that afternoon. He saw her again at 6.30pm when he gave her prescriptions for Capadex painkilling tablets and anti-inflammatory medication and a medical certificate to be off work until 11 December. He also referred her to Dr Meegan, a specialist occupational physician, and Roberts Physiotherapy. He was taking a wait and see attitude on the progress of her symptoms. The plaintiff went home and largely rested. On Wednesday, 9 December she submitted a claim form to the defendant’s insurer which she signed but which had been filled out by her sister.

On Saturday, 12 December the plaintiff returned to work. On Monday, 14 December she did not go to work but again consulted Dr Neroni. He noted:
“She was still getting neck pain and upper back and lower lumbar pain. Also had left shoulder pain when using scanner at work on 12/12/98 and she had to leave early that day. Getting epigastric pain with the medication.”

He then took her off the anti-inflammatory medication and gave her another medical certificate to remain off work until 23 December. He thought that the left shoulder complaint on that day was probably some sort of muscular pain resulting from the work she was doing on the Saturday.

On 21 December the plaintiff first saw Mr Roberts of Roberts Physiotherapy pursuant to the reference from Dr Neroni. She complained to him of central low neck soreness and soreness in the mid thoracic spine which she said was at a constant level of 6 out of 10 on the 0-10 pain scale but was variable depending on whether she was resting or active. She complained of a constant dull soreness in the sides of her neck and in her central neck. She had restricted movements in her thoracic spine. He treated her condition with gentle massage and by taping her back to give support for the injured vertebra.
From the accident until 22 December the plaintiff had been receiving sick leave payments from Cheap as Chips. Her sick leave credits then expired and thereafter she received Social Security benefits, which are repayable, until she returned to work.
On 23 December the plaintiff first saw Dr Meegan. She complained to him of neck and thoracic pain and said she had had some low back pain since the accident but it had settled down. She did not make any complaint to him of shoulder, arm or rib pain. Thereafter Dr Meegan took over control of the plaintiff’s treatment and prescribed her medication and gave her medical certificates to be off work. She saw Mr Roberts for further physiotherapy treatment on 23 and 30 December.
On 6 January 1999 the plaintiff again saw Dr Meegan. A bone scan organised by Dr Meegan revealed that there were no crush fractures of T6 and T8 as had been previously suspected, but it showed that she had suffered a developmental disorder of Schuermann’s disease in her thoracic spine of which more will be said later.
On 7 January 1999 the plaintiff again saw Dr Neroni. He noted:
“Severe right lower posterior chest pain radiating to other quadrant since last night. Better with Capadex today. Recent right shoulder pain and stiffness. No other symptoms. ....... On examination she was tender over T8 and lower posterior right chest wall area. ......”

This was the first complaint by the plaintiff to anyone of right shoulder pain. It was not a classic presentation of the symptoms of rotator cuff tendonitis but was more diffuse and generalised.

On 11 January the plaintiff again saw Mr Roberts. She said that she still had pain in her central thoracic and lower cervical areas but her pain had swapped from the left rib cage to the right, although overall she was feeling a lot better. He started her on a course of hydrotherapy.
On 27 January the plaintiff next saw Dr Meegan. She first told him then of symptoms in the right scapula thoracic region and of right shoulder pain with numbness and pins and needles in the whole of the right hand. I find that the reference on T122 to this complaint being on 6 January was a mistake. She also then complained of continuing neck and thoracic pain, but not of any left shoulder or rib pain. He found her to be tender over the AC joint and at the right sub-acromial space over the rotator cuff and that there was a mildly positive impingement test for the right rotator cuff tendon. He did not note any restrictions of abduction or other movement of the right shoulder. He diagnosed a mild rotator cuff tendonitis in the right shoulder. He treated it with a cortisone injection which gave some temporary relief to the plaintiff.
On 1 February 1999 the plaintiff again saw Mr Roberts. She complained to him of right shoulder and right arm pain. He found pain in the right shoulder after with 160o of flexion and 100o of abduction and considered there was a possible rotator cuff muscle tendonitis. She saw him again on 15 February when she reported that the right arm was getting better, but the pain was persisting in the upper cervical spine. He gave her exercises using a theraban to strengthen the right rotator cuff and the shoulder girdle.
On 25 February 1999 the plaintiff was again seen by Dr Meegan. She told him that the right shoulder pain had improved to nearly 100%. (Although his notes for that day refer to the left shoulder it was a mistake for the right shoulder.) She was still complaining of ongoing neck and thoracic pain. Dr Meegan was apparently continuing to prescribe strong painkillers for her.
In early March 1999 the plaintiff and her sister settled on the purchase of their new house and together moved into that house. This produced a substantial financial commitment for the plaintiff to meet the monthly mortgage payments which she had great difficulty in doing while she was not working full time. She continued to remain off work on medical certificates provided by Dr Meegan. There was some communication between Dr Meegan and Cheap as Chips about her return to work but Cheap as Chips was not interested in giving her light duties. Because of her financial situation she was anxious to return to work. She continued with physiotherapy treatment. The hydrotherapy ceased at about the end of March. She saw Mr Roberts for the last time on 24 April. He considered her overall presentation was that whenever she tried to do too much the pain would become worse, but the validity of his conclusion is dependent in part on whether the plaintiff was telling him the truth about her symptoms.
On 27 April 1999 the plaintiff returned to work at Cheap as Chips on modified duties organised by Dr Meegan of working four hours a day with no working overhead, no repetitive movements and no lifting more than 5kgms. Cheap as Chips had indicated that if the plaintiff did not then return to work it would not be able to keep her job open for her. Within about a month she had increased her working hours to about 8½ hours per day but the restrictions on lifting and working overhead remained. She complained that a number of the tasks which she had to do aggravated her problems.
On 14 May the plaintiff first saw Ms Teale, another physiotherapist at Roberts Physiotherapy. She complained to Ms Teale of slight aching in the mid thoracic spine, occasional right shoulder pain and tightness of the cervical spine which were aggravated by sustained sitting, standing and lifting, but she said that overall she felt 70% better. However, on subsequent visits Ms Teale found her to be in a fair degree of pain which apparently had been caused by activities at work. She did not see Ms Teale at all in September 1999. She last saw her on 11 October and apparently she did not return because the defendant’s insurer was no longer prepared to pay for further physiotherapy treatment. In any event by then Ms Teale considered that she probably only needed a strengthening programme rather than hands on physiotherapy treatment, although the strengthening programme could have been pursued in group physiotherapy sessions.
On 10 September the plaintiff was again seen by Dr Neroni. She complained that her neck pain had recently become worse and it was radiating into the right shoulder and upper right arm. He saw her again on 12 October when he noted she was still getting right shoulder and upper arm pain and had stiffness radiating to the right lateral chest and neck and upper back pain. She also then made a complaint of recent left shoulder pain and stiffness. On examination he found tenderness in the right and left AC joints, the right medial shoulder and the right trapezius and scapula. On that day he referred her to Annette Berwald, a psychologist, because she asked him to do so at the request of her solicitors. She has not since seen Dr Neroni for anything relating to the motor vehicle accident.
On 21 October 1999 the plaintiff’s employment with Cheap as Chips was terminated. It appeared that Cheap as Chips was not prepared to continue her employment unless she was able to perform unrestricted duties and she was not prepared to do unrestricted duties because she said they aggravated her neck and shoulder problems. Dr Meegan had advised her to look for lighter work. She was upset at the attitude taken by Cheap as Chips because she said she did not consider that she was at fault.
On 18 October 1999 the plaintiff first saw Annette Berwald, a clinical psychologist. She was treated by her for depression and psychological problems on 18 and 26 October and 23 November 1999. She did not return for further treatment because she could not afford it. At this time she was upset and angry. At about the beginning of December 1999 she approached the Commonwealth Rehabilitation Service who gave her assistance in finding employment. Thereafter she made a number of applications for jobs and was ultimately successful on 21 January 2000 in obtaining casual part time work as a sales assistant at a Smoke Mart shop at Norwood. She has since worked there on an average of about 28 to 30 hours per week. She earns $15.32 per hour gross and averages about $400 per week nett. She is generally able to manage the work as the stock is not heavy, but she says some tasks such as cleaning give her problems. She hopes to be promoted to a manager’s position which would give her a slight increase in hours and wages. Other aspects of the job do not appeal to her and in the future she may look for other employment. At the time of trial she was still employed at Smoke Mart and it appears that this employment will be available to her in the foreseeable future.
On 4 January 2000 Dr Meegan gave the plaintiff a second cortisone injection into her right shoulder. This was very painful and it did not produce any substantial benefit. She does not want to have any further such injections or any surgery on the shoulder. She last saw Dr Meegan on 10 July 2000. He is continuing to prescribe Capadex, a strong painkiller for her.
Well prior to the trial the plaintiff’s solicitors had requested Dr Neroni to furnish them with a copy of his notes, but he had ignored that request. As a result of subpoenas served on Dr Neroni and Roberts Physiotherapy their respective notes were delivered to the Court shortly prior to the trial and were made available for inspection by the legal representatives of both parties shortly after the trial commenced. Neither counsel was aware of the contents of those notes prior to the commencement of the trial. During the course of the plaintiff’s evidence-in-chief her solicitor sought instructions from her upon a number of the attendances before the accident which were mentioned in the notes.
During the course of the trial it became apparent that a number of relevant issues had not been raised by the pleadings. Rather than delay the trial by amendments to the pleadings it was agreed that the trial should proceed on the issues which the parties wished to raise with either counsel being at liberty to object to evidence if it was thought to be unfair or prejudicial. No such objection was raised.
The plaintiff was not well educated but was apparently of average intelligence and reasonably articulate. She was capable of holding down responsible employment and seemed worldly wise. When cross examined about the September 1995 visits to Dr Neroni and Roberts Physiotherapy, the June 1996 visits to Roberts Physiotherapy and the August and November 1998 visits to Dr Neroni, as mentioned above, she claimed to have almost no memory at all about any of them. She appreciated that any neck and arm problems which she had prior to the accident were significant. In her Rule 46.15 particulars sworn on 29 November 1999 she had stated in answer to the question about prior injuries:
“In September 1995 and June 1996 I attended physiotherapy three times for posture correction.”

This was correct, but not the whole truth. In her evidence she claimed to have no recollection about any of those three visits to Roberts Physiotherapy. She said that in order to give instructions for the R46.15 particulars she had got that information from Ms Teale although Ms Teale did not remember it. It is likely that shortly prior to 29 November 1999 she had made some inquiry of Roberts Physiotherapy about the dates, and probably the nature, of the visits. While the statement that they were “for posture correction” was consistent with the contemporaneous notes of the physiotherapists it is significant that there was no mention in the R46.15 particulars that it was related to problems experienced at work. It was a statement of a half truth which suppressed the real truth. I cannot accept that while she had some recollection on or shortly before 29 November 1999 about these three physiotherapy visits, which recollection was probably aided and expanded by her inquiries from Roberts Physiotherapy, by 8 December 2000 she could have had no recollection whatever about these visits. I find her not to have been truthful in saying that she could not remember anything about these visits to Dr Neroni and Roberts Physiotherapy. Her pretended inability to recollect anything about them was a unsophisticated and unconvincing stratagem to avoid having to answer questions about them and to have to make concessions about her prior neck and shoulder symptoms which she realised would be adverse to her claim.

I accept Dr Meegan’s evidence that he questioned the plaintiff when he first saw her about any prior history of neck and shoulder problems. She did not tell him of the prior consultations with Dr Neroni and Roberts Physiotherapy as mentioned above although the questions put to her by Dr Meegan should have elicited this information. While I accept that it would be unlikely that she could have given him the history in any detail I do not accept that she had genuinely forgotten about all of those visits and the symptoms and problems which gave rise to them. Again it is likely that she was intentionally misleading Dr Meegan in the hope of increasing the damages which she would recover. It is also suspicious that she did not tell Dr Meegan of the problems in her left arm on 12 December 1998.
On the evidence of Dr Neroni and the notes from Roberts Physiotherapy there is no doubt that the plaintiff had significant neck and shoulder problems before the accident. This contradicts the plaintiff’s evidence-in-chief to the contrary. I find that she intentionally sought to deceive the doctors and the Court about these matters. I find that she did have some recollection of them, but that she was not prepared to be frank and truthful about them. These conclusions about her evidence on this topic colour my views about her evidence on other topics. She was not a credible or reliable witness. She adduced no evidence to corroborate her allegations about the effect of the accident on her lifestyle or her working. Her sister, who was present in Court during part of the trial, could have spoken of the extent of her disabilities and incapacities, but she was not called. I infer that if she had been called her evidence would not have assisted the plaintiff’s case. I find that no reliance should be placed on the plaintiff’s evidence about disputed matters unless it is inherently probable or supported by other evidence. Her frequent manifestations of physical discomfort in the witness box were unconvincing.
Dr Meegan and Dr Kelly, another occupational physician called by the defendant, were each doing their best to assist the Court. In the witness box Dr Meegan found himself embarrassed and on the defensive because the plaintiff had misled him about her prior history. Accordingly, he was placed in the difficult position of having to consider various issues for the first time while he was in the witness box. Where there is any conflict between the opinions of Dr Meegan and Dr Kelly I prefer the opinions of Dr Kelly as he was able to give a little more mature consideration to them. The physiotherapists, Mr Roberts and Ms Teale, were both honest and reliable witnesses, but where their opinions are inconsistent with those of the doctors I prefer those of the doctors. I find that Dr Neroni’s notes correctly recorded what the plaintiff had told him and his treatment of her.
I agree with the plaintiff’s counsel that the issue of the plaintiff’s right shoulder rotator cuff tendonitis was largely a red herring. I am satisfied from the evidence of Mr Roberts that she did not have any such tendonitis on 21 December 1998. I accept that she did have a mild such tendonitis when examined by Dr Meegan on 27 January 1999, but it had largely resolved by when he examined her on 25 February 1999. I accept Dr Kelly’s evidence that once such tendonitis has resolved it would not re-occur from the same cause. Thus, if the plaintiff had such tendonitis after February 1999, which is far from clear, it did not result from the accident. I also accept Dr Kelly’s opinion that from the delay in the onset of the symptoms of the tendonitis, and from the known mechanics of the accident, it was unlikely that any onset of it in January 1999 was caused by the accident. If there had been another precipitating incident, it is quite likely that the plaintiff suppressed evidence of it. This view of Dr Kelly was not really disputed by Dr Meegan in his cross examination. I do not accept the opinions of the physiotherapists that such tendonitis could have been secondary to other injuries arising from the accident as this is contrary to the evidence of Dr Kelly.
Since her teenage years the plaintiff has had Scheuermann’s disease in her thoracic spine. Initially it was asymptomatic. I accept Drs Kelly and Meegan that the symptoms in her neck and shoulders for which she consulted Dr Neroni and Roberts Physiotherapy in 1995, 1996 and 1998 were attributable to her Scheuermann’s disease becoming symptomatic as a result of the relatively heavy work which she was then doing at Cheap as Chips.
A difficulty in this case is ascertaining what was the frequency and extent of those symptoms before the accident. The person who best knew, and would have been able to tell the Court about them, was the plaintiff herself, but she was deliberatively untruthful about them. Her failure to tell what she knew does not mean that I can therefore presume that she had had major symptoms for a long time. The onus is on the defendant to prove that the plaintiff’s symptoms and disabilities after the accident are attributable to the pre-existing Scheuermann’s disease. However, the principle in Blatch v Archer (1774) 98 ER 969 at 970 is applicable, that “all evidence is to be weighed according to the proof which was in the power of one side to produce, and in the power of the other side to have contradicted”: Apollo Shower Screens Pty Ltd v Building & Construction Corp (1985) 1 NSWLR 561. Here the defendant had little means available to him to refute the plaintiff’s assertion that she did not have pre-existing neck and shoulder problems. The plaintiff could have told the truth about it, but elected not to do so.
Entries in the notes of Dr Neroni and Roberts Physiotherapy indicate that the plaintiff had had some xrays of her neck in January 1995. Again the plaintiff said she had no recollection about them. It shows that she had sought some type of treatment in January 1995 for a neck complaint. It is likely that it was an early manifestation of her Scheuermann’s disease. There is a distinct possibility that she had sought other treatment for such problems from doctors, physiotherapists and the like, but she has chosen not to disclose it. The defendant has no means of discovering what they might have been. Her statement to Dr Neroni on 4 September 1995 that she had a long history of upper neck pain radiating to both shoulders and her statement to the physiotherapist on 5 June 1996 that her neck symptoms had begun about twelve months before and had gradually been worsening establish that the symptoms of the Scheuermann’s disease were longstanding and significant. While she only had a few days off from work and did not have major treatment from either Dr Neroni or Roberts Physiotherapy this does not show that the symptoms were only minor. I conclude that for several years prior to the accident she had had significant intermittent symptoms of pain in her cervical and thoracic spines radiating into both shoulder girdles as a result of her work making her Scheuermann’s disease symptomatic.
There was no dispute that the impact in the accident was a major aggravation of the plaintiff’s Scheuermann’s disease and produced significant symptoms for some time. It is also likely that she suffered some soft tissue injuries to her neck, shoulders and lower back in the accident. I do not accept the plaintiff’s evidence of the extent and duration of her disabilities. It is likely that she exaggerated them. However, it is clear that she was substantially restricted by pain and soreness in her neck and shoulders for some time.
It is likely that at some point in 1999 the aggravation of the plaintiff’s Scheuermann’s disease resulting from the accident ceased and thereafter her neck and shoulder problems were those that she would have encountered from her Scheuermann’s disease if there had been no accident. Insofar as she had soft tissue injuries from the accident it is likely that these resolved within the same time frame. The best evidence of how long it took for the aggravation of the Scheuermann’s condition from the accident to resolve is the opinion of Dr Kelly. He said it would be up to six months from the accident. He conceded in cross examination that this opinion was based on objective factors of what would be normally expected. As no significant credit is to be given to the plaintiff’s evidence about the extent of her disabilities, and of the truthfulness of her complaints to doctors and physiotherapists about them, there are no subjective factors which override the conclusion of Dr Kelly based on the objective factors. While Dr Meegan did not accept this conclusion of Dr Kelly about the six months, he was not strongly against it. Accordingly, I find that the defendant has shown that such symptoms and disabilities as the plaintiff suffered after about the end of May 1999 would have been encountered by her in any event from her Scheuermann’s disease and were not caused by the accident.
The plaintiff called a psychologist, Ms Berwald, to say that in October 1999 the plaintiff was suffering from major depression. I accept the conclusion of Dr Neroni that insofar as the plaintiff was depressed she was only moderately depressed. However, it was not shown that she had any such depression at the time at which the effects of the motor vehicle accident were still operative. It is likely that the depression arose from the symptoms of the Scheuermann’s disease after about the end of May 1999. Accordingly, the plaintiff has no claim for damages in respect of it.
Up until her sick leave expired on 22 December 1998 the plaintiff has no claim for loss of earnings, but only for her loss of sick leave rights: Graham v Baker (1961) 106 CLR 340. But for the accident it is likely that she would have continued in her employment with Cheap as Chips, albeit hampered by the effects of the Scheuermann’s disease, although ultimately the Scheuermann’s disease may well have forced her to resign from that employment. In that situation it is likely that she would have availed herself of periods of paid sick leave where she was having problems with the Scheuermann’s disease.
In the thirteen weeks from 23 December 1998 to 27 April 1999 the plaintiff’s nett loss of earnings from Cheap at Chips was $5,863. From 27 April to the end of May she suffered some loss of earnings by working reduced hours, but by about the end of May she was no longer suffering any loss of earnings. But for the accident Cheap as Chips would have contributed 7% of the gross salary which she lost to a Superannuation Fund on her behalf, but she would not have benefited from this until she retired at age 65. She is entitled to damages for that loss of the superannuation contributions, but substantially discounted because she would not have benefited from them for over thirty years. I assess damages for past economic loss at $8,000. (I have taken into account under s35a(1)(d) of the Wrongs Act that no damages are to be awarded for the first week of incapacity.)
As a result of the accident there was initially some significant, but gradually decreasing, restriction on the plaintiff’s mobility and social life until the end of May 1999. It is likely she would have suffered some pain and discomfort in that period in any event from the Scheuermann’s disease. On the scale of 0-60 I assign a numerical value of 4. The multiplier was agreed at $1,530. Damages are assessed for non economic loss at $6,120.
The special damages incurred up to the end of May 1999 are allowed, but not those incurred thereafter. The plaintiff is entitled to $4 for the balance of physiotherapy accounts which she paid. I do not allow any of the $1,534 claimed for the Commonwealth Rehabilitation Service as that was apparently not incurred until well after May 1999. The defendant had paid $5,972 for various medical, physiotherapy and pharmaceutical expenses at the request of the plaintiff. It was agreed that the defendant should be given credit in this judgment for any special damages paid for which he was not found to be liable even though no set off was pleaded or counterclaim was filed. The special damages paid for services after the end of May 1999 totalled $2,913 and this amount is to be set off against the damages otherwise payable.
There is no acceptable evidence to support any award for gratuitous services rendered to the plaintiff.
The plaintiff is entitled to interest on her past economic loss at a commercial rate of interest from the time at which the loss was incurred. However, the defendant made interim payments to the plaintiff of $5,000 on 25 January 1999, $3,000 on 7 April 1999 and $5,000 on 13 January 2000. The defendant is not liable for interest insofar as its liability to the plaintiff has been satisfied by these interim payments. A lump sum in lieu of interest is fixed at $45.
In summary:

Past economic loss $ 8,000

Non economic loss 6,120

Special damages 4

Interest 45

Sub-total $ 14,169

Less credit for special damages over paid 2,913

Less interim payments 13,000

$ - 1,744

There was no agreement that the defendant should be entitled to any judgment in his favour if the payments already made were in excess of his liability. There is no counterclaim. Accordingly, there will be judgment on the claim for the defendant, but no judgment for the $1,744 over paid.

[2001] SADC 1

15 January 2001