| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : ALEKSOSKA -v- WONG [2003] WADC 221 CORAM : FRENCH DCJ HEARD : 11-13 AUGUST 2003 DELIVERED : 10 OCTOBER 2003 FILE NO/S : CIV 2524 of 2002 BETWEEN : BILJANA ALEKSOSKA Plaintiff
AND
BING KUEN WONG
Defendant
Catchwords: Damages - Assessment - Personal injuries motor vehicle accident - Soft tissue injuries to cervical and lumbar spine - Minor residual damage - Minimal permanent damage and loss of earning capacity - Exaggeration of injuries and symptoms by plaintiff
Legislation: Motor Vehicle (Third Party Insurance) Act 1943 s3C
Result: General damages $2,500, loss of earnings $4,865, medical treatment $1,163
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Representation:
Counsel:
Plaintiff : Mr T Lampropoulos
Defendant : Mr D R Sands
Solicitors:
Plaintiff : Friedman Lurie Singh
Defendant : Talbot & Olivier
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Abbott v Pacific Industrial Co (WA) Pty Ltd as trustee for Steelfab Unit Trust T/as Pacific Industrial Co (1979), unreported; FCt SCt of WA; Library No 970070B; 4 March 1997
Eltin Ltd v Dowsett [2001] WASCA 101
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1 FRENCH DCJ: The plaintiff claims damages for injuries sustained in a motor vehicle accident on 26 January 2001. Liability is admitted and the matter proceeded by way of an assessment of damages. The plaintiff's statement of claim alleges that she suffered cervical, thoracic and lumbar soft tissue paravertebral strain and post traumatic stress disorder. It is claimed that these injuries and their symptoms prevent her from returning to her pre-accident employment as a beauty therapist. Claims for gratuitous services as a result of her incapacity to complete domestic tasks and claims for medical treatment and associated expenses are included in the relief sought in the statement of claim but the plaintiff's counsel advised during the course of the trial that those items will not be pursued.
2 The defendant admits liability for the injuries sustained in the accident but claims that those injuries are relatively minor and have not resulted in a permanent disability. The defendant disputes that the plaintiff is unable to work in her usual occupation as a beauty therapist or in some other occupation and alleges that the plaintiff has failed to make any attempts to get work.
The plaintiff's evidence 3 The plaintiff was born on 21 July 1979 in Macedonia and came to Australia at the age of 9 and completed her schooling at the Mirrabooka Senior High School. She completed Year 12 with a certificate of secondary education but failed the subject of senior English. She had difficulty with English as she has poor writing and spelling skills. While at high school she had casual jobs at McDonalds, Chicken Treat and worked as a sales assistant at Jeans West in Years 11 and 12. When she left school she completed a one year course in beauty therapy at the Western Australia Institute of Beauty Therapy and commenced work at a beauty salon. In addition to the qualification as a beauty therapist that she obtained from that institution she also obtained certificates as an accredited beauty therapist for individual brands of cosmetics and beauty products. 4 She worked as a beauty therapist up to the date of the accident including a period of employment overseas as part of a working holiday in 1999. At the time of the accident she was employed as beauty therapist at Jan's Beauty Salon in Subiaco. She was earning $12.75 per hour in January 2001. However, she stated that prior to the accident she was thinking of leaving Jan's Beauty Salon as she had been offered a position at another salon at $15 per hour working full-time for 38 hours per week.
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She stated that one of the reasons for leaving was that she had been sexually harassed by her employer's partner. 5 On the day of the accident she was driving her brother's car at what she described was a "pretty slow speed" when the car was struck by a vehicle entering the road from a driveway. She said that the car was struck and then spun around a few times before it stopped. She got out to see the damage and then moved her car away from traffic. She was shocked but could feel pain in her neck and back. She sat down on the side of the road as she felt that she could not stand up. After members of her family and the police arrived she could not feel her legs so her father drove her to the hospital. Apparently an ambulance had been called but she did not travel in the ambulance to the hospital. 6 At the hospital her clothes were cut off because she said that she could not feel her legs. However, x-rays did not reveal any damage so she was discharged and advised to contact her local doctor. She said that the next day she could not get out of bed and had severe pain in her neck, the whole of her back and her legs together with headaches. She described herself as being in a lot of pain for a while after her accident. She said that she was depressed and very upset because she was hardly able to do anything and that this was particularly difficult as she had been very active and busy before the accident attending the gym several times a week and being involved in a number of social and recreational activities in addition to her work. She said that when she was able to she became involved in rehabilitation activities including physiotherapy and hydrotherapy and walking and also received counselling. 7 She described her symptoms in the first 18 months after the accident as very bad with pain in her back and neck to the extent that she was not able to do very much at all. She stated that since then her symptoms have improved, although she still gets a lot of back, neck and shoulder pain and still experiences headaches. She also states that she has episodes of pins and needles in her left arm and reduced sensation in her left hand. She is currently taking Panadeine Forte and anti-inflammatory tablets. She also continues to take anti-depressants as she still suffers from a depressed mood as a reaction to the continuation of her symptoms. 8 The plaintiff has not worked since her accident. The plaintiff stated that immediately after the accident she was unable to do anything because of the severe back and neck pain and was virtually bedridden for some time. She stated that she was advised by her employer that the job was no longer available approximately two months after the accident. She said
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that her mother had contacted her employer and told them about the accident and she spoke to someone at the salon approximately three days after the accident and explained her situation and that she was not sure when she was going to be able to return to work. Sometime after that phone call her employer's husband contacted her and told her that the salon was quiet and that because of her injuries they had decided that they would no longer be able to employ her. However, she said that she was told that if she ever wanted to go back to work she could reapply. Approximately three or four weeks after that phone conversation she wrote a letter to her employer seeking immediate payment of moneys that were owing to her. She subsequently received the sum of $2,422 which appeared to include some amount for holiday pay and some kind of redundancy payment. 9 In cross-examination a copy of the letter was shown to the plaintiff and tendered in evidence. The plaintiff was unsure as to whether she had actually written the letter as she said it was not in her handwriting. However, she eventually conceded that she had caused the letter to be written. The terms of the letter effectively demand payment by 7.00 pm on the date of the letter, that is 2 March 2001, and threatens legal action if payment has not reached the plaintiff's bank account by 7.00 pm. 10 The plaintiff explained that despite the fact that her symptoms have improved she is still unable to return to her previous occupation as a beauty therapist as she is unable to do all of the tasks that would be required of her. She stated that she is unable to do massage and body treatments as this requires upper body strength that she lacks. She also stated that she has difficulties doing manicures as this involves holding her neck in a fixed position. Some cleaning and lifting duties required of a beauty therapist are also too strenuous for her. She can do facials and leg waxing as she is able to move her position and get up, stand up or sit down at will. 11 The plaintiff stated that as a result of her disabilities she has tried to retrain and obtain alternative employment. She tried a Human Resources course at TAFE but had difficulty sitting for the long period of time during the lectures and also considered that she would be unlikely to succeed in this line of work because of her difficulties with English. She considered that she may be able to obtain employment in a job involving the sale of beauty products because of her experience as a beauty therapist but has been unable to obtain such employment. She stated that recently she had been looking for alternative work and had made enquiries at Jeans
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West, Just Jeans and Strandbags for work as a general retail shop assistant. 12 She stated that she has made enquiries about selling beauty or make up products. However, when she has explained her situation, namely that she has problems with her back, has not worked for 2½ years and can only do some casual work, no employment opportunities have come her way. She has made enquiries for part-time beauty therapy work at Annabelle's Beauty Salon and at the Beauty Sanctuary but has been advised that there is no work available for her until she is able to do all of the tasks normally required of a beauty therapist. The plaintiff has stated that at this stage she considers that she is still unable to complete tasks that involve upper body strength or that involve her holding her head or neck in a fixed position.
Employment evidence 13 Ms Brigitte Ghedina is the proprietor of a beauty therapy business in Applecross trading under the name of Annabelle Beauty Salon. Ms Ghedina confirmed the plaintiff's evidence that before the plaintiff's motor vehicle accident she had been advised by an employee that the plaintiff might be leaving her place of employment and made an approach to the plaintiff offering her a position at the rate of $15 an hour. Ms Ghedina described the work of a beauty therapist as involving stress on the back and neck when a therapist is required to perform various tasks. She said she had experienced problems with her own back and neck and yet did not have any injury or disability. She said it would be very difficult to do massage work or manicure work involving repetitious use of the arm and holding the neck in a fixed position. 14 Ms Ghedina stated that she would find it difficult to employ a therapist at her clinic if they were not fully fit and she would also be concerned about the effect that might have on workers' compensation. She considered that it would be difficult to employ somebody who was not able to complete all of the tasks required of a beauty therapist. She explained that if there is only one therapist on duty in the salon then it is not practicable to have somebody who is not physically fit to perform all of the required therapies. Ms Ghedina had not met the plaintiff before the accident but said that she got to know her as a result of her attending her beauty salon for waxing treatments every couple of months after the accident.
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15 Ms Jana Emery is the proprietor of Jana Beauty Salon in Subiaco and employed the plaintiff for the period November 1999 until her accident in January 2001. Ms Emery stated that on the day before the plaintiff's accident, that is on Monday 22 January 2001, the plaintiff rang early that morning and said that she would not be attending work as she was not feeling well. Sometime later that week Ms Emery became aware that the plaintiff had had an accident on 23 January and was not able to return to work at that stage.
16 Ms Emery stated that she met the plaintiff a few weeks after the accident and the plaintiff returned her work uniform and some product manuals. When she did this she advised that she would probably no longer require them. Ms Emery confirmed that the payment made to the plaintiff on 3 March consisted of annual leave, leave loading and a termination pay that was due to the plaintiff. She confirmed that up until that date the plaintiff had been paid by means of a combination of accrued annual leave and sick leave pay. 17 Ms Emery stated that although the tasks required of a beauty therapist involve a variety of postures there is sufficient flexibility in the manner of working that can accommodate some physical limitations. She stated that facial treatments and facial waxing can be done with a therapist either sitting or standing and with the opportunity of changing these postures. Ms Emery stated that she currently has two employees with a history of soft tissue injury to the neck and the back and they have continued to work as beauty therapists in her salon. She stated that their appointments are varied to accommodate their injuries and they have longer breaks between duties that are difficult to perform. One of these employees is on a full-time basis the other is on a part-time basis but they receive the same rate of pay as they did prior to receiving their injuries. 18 Ms Emery stated that if the plaintiff had wished to continue her employment after the accident they would have given her the opportunity of seeing if she was able to do the work and would have been prepared to employ her on a part-time basis. Ms Emery has been working in the beauty therapy business for over 15 years and she said that in her experience there are opportunities for part-time work.
Medical evidence 19 Dr Kevin Norcott is the plaintiff's general practitioner. He saw the plaintiff the day after her accident. In his report dated 27 February 2001 he described her diagnosis as "cervical, thoracic and lumbar soft tissue
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paravertebral strain and chest wall soft tissue injury (seatbelt related) together with post-traumatic stress disorder with anxiety while driving and sleep disturbance". It is noted that treatment had been conservative with medication and physiotherapy. Dr Norcott was of the opinion at that stage that none of the plaintiff's injuries were of a severe nature nor were expected to cause any long term disability. His prognosis was that she would be unfit for work from the date of the accident to the end of February, although she may continue unfit for some time further and would be expected to be partially unfit for at least a further three months. He also noted that her normal lifestyle activities were significantly curtailed. 20 Unfortunately it appears that Dr Norcott's initial prognosis did not prove to be correct. Six months later his report of 6 August 2001 notes that the plaintiff continues to experience cervical pain and although the injuries are only soft tissue and the physical findings minimal she "subjectively finds it prevents her from working". In that report Dr Norcott noted that he was unable to provide any medical insight into this discrepancy. He suggested that she engage in Dr Gee's Cambridge Pain Management Centre and was of the opinion that her rehabilitation was best addressed by a positive active treatment programme. 21 In a report dated 6 August 2003 Dr Norcott stated that the plaintiff's cervical and lumbar soft tissue injuries had stabilised but that she suffered from an adjustment disorder as a result of the frustration of the chronic pain and disability. He was of the opinion that that disorder would fluctuate and was also affected by the uncertainty of her future employment and litigation related issues. He assessed the plaintiff at a rate of disability of 5 per cent of the whole of her body related to the cervical soft tissue injury and 5 per cent related to the lumbar soft tissue injury. He was of the opinion that the adjustment disorder was of mild impairment and could be graded in percentage terms as between 10 and 20 per cent but that he would expect an improvement to a figure of less than 10 per cent when there had been a resolution of her employment/litigation issues. 22 He is of the opinion that she is presently able to return to retail or clerical beauty therapy work if there was an allowance made for her inability to lift and perform repetitive upper limb tasks or to perform in awkward postures. He noted that she may require episodes of time off during exacerbations of her neck and lumbar pain.
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23 In Dr Norcott's report dated 6 August 2003 there is reference to "left-sided radicular symptoms with hypoaesthesia". Dr Norcott explained that that was the plaintiff's perception of reduced sensation in her left hand with pins and needles in her arms. He stated that there had been no formal loss of sensation to testing but she had complained of left-sided numbness, although the first record of such symptom is in July 2002.
24 Dr Norcott noted that although he initially did not consider the symptoms were other than minor and did not require an EMG, this was performed by Dr Mastaglia in December 2002. Dr Norcott noted that that report did not show any peripheral nerve lesion or compression of nerves from her neck into the upper limb. He stated that it is not inconsistent for a person to have symptomatology from nerves in her upper limb with no evidence of nerve compression. He stated it is possible to have a nerve irritation with a normal EMG. 25 In cross-examination it was suggested to Dr Norcott that his opinion in relation to the plaintiff's reduced capacity work was based on her subjective assessment and that the lack of any pathology or other demonstrable clinical signs suggests that she is exhibiting abnormal illness behaviour. However, Dr Norcott was of the opinion that the plaintiff's symptoms were "very real to her" and therefore did restrict her capacity to work in the way that she had explained to him. 26 Dr Norcott referred the plaintiff to the Cambridge Pain Management programme supervised by Dr Geoffrey Gee towards the end of 2001. It appears that she did not fully complete the programme as the defendant's insurer was not prepared to meet the full cost. However, she was reviewed by Dr Gee in December 2001 and a report provided. Dr Gee noted symptoms of tenderness in the cervical muscles and paraspinal muscles but with a neurological assessment in the upper limbs and lumbar spine as normal. He considered that it would be appropriate for her to attend a programme of physical rehabilitation and noted that counselling would assist her in dealing with her tendency to get upset and distressed. 27 Mr Christopher Semmens, a clinical psychologist, saw the plaintiff on six consultations from January 2002 to August 2002. He stated the focus of the counselling was to assist her in her tendency to get upset and distressed as a result of her symptoms and was aimed at encouraging her in maintaining a positive attitude in order to reduce her perception of pain. Various models of pain coping strategies were demonstrated to the plaintiff.
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28 In November 2002 the plaintiff was referred to Professor F L Mastaglia, a consultant neurologist. The purpose of this referral was primarily to investigate the plaintiff's complaints of pins and needles in her left arm and paraesthesia in her left hand.
29 In a report dated 2 September 2002 Professor Mastaglia notes that the plaintiff reports that she has a number of persistent symptoms including low back and neck pain, headaches, numbness in the left arm and pins and needles in the left hand. She advised him that she wakes with a headache on most mornings and may also wake during the night with numbness and pins and needles in the left hand and arm. She advised him that there was no history of any of those problems prior to the motor vehicle accident and she had not been involved in any previous accidents. 30 On the clinical examination Professor Mastaglia noted mild restriction in the range of neck movement with pain in the extremes of movement. He noted that she was tender over the left brachial plexus and developed pain and premature heaviness in the left arm with repetitive hand clenching with her arms elevated. He noted a full range of movement of the lumbosacral spine with localised tenderness over the lower lumbar area at L5/S1. He advised that neurological examination did not show any motor, sensory or reflex abnormalities in the left upper limb. 31 In conclusion Professor Mastaglia was of the opinion that the plaintiff had suffered a significant whiplash type of injury to the cervical spine and to a lesser extent to the lumbosacral spine. In addition to symptoms from those injuries he was of the opinion that the numbness and pins and needles in the left arm and hand appeared to be due to the development of a secondary thoracic outlet compression on the lefthand side. He therefore recommended that she should have an EMG and a nerve conduction study on the left upper limb. 32 Professor Mastaglia was of the opinion that she would be unlikely to be able to cope with the full duties of a beautician which include body massage and waxing involving standing over a table in a bent position, as those activities would almost certainly aggravate her neck and back pain. He noted that the plaintiff appeared keen to return to work. 33 In cross-examination Professor Mastaglia was referred to a report from another neurologist, Dr Rosen, stating that in Dr Rosen's opinion the left arm symptoms were due to self-massage administered by the plaintiff
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and are not caused by the accident. While agreeing that Dr Rosen is an excellent neurologist and his opinion may be correct Dr Mastaglia stated that in his opinion it is not always the case that symptoms of secondary manifestations such as thoracic outlet syndrome necessarily arise from the time of the accident. He stated that they can develop gradually over a period of weeks or even months as there is a build up of tension or spasm in the muscles of the neck. 34 When advised that the first note of symptoms to the plaintiff's GP was in July 2002 he conceded that that was a significant period after the accident. He stated that he would still prefer to keep an open mind as to whether there was a link between the left arm symptoms and the accident. He stated that he was not entirely convinced that Dr Rosen's opinion that the symptoms in her left arm could be induced by self-massage alone was correct. 35 Professor Andrew Harper is an occupational physician and reviewed the plaintiff in December 2002. In a detailed report Professor Harper outlines the history of the plaintiff's symptoms and her advice of restriction in her movements and inability to be able to perform pre-accident functions both at work and in a domestic and recreational setting. 36 After physical examination he described her condition as one of an "mild residual disability effecting the neck and lumbar spine and left arm". He was of the opinion that she would continue to experience mild disability for possibly two years or longer as from December 2002 but thereafter he would anticipate improvement and resolution of her symptoms. He was of the opinion that she had been incapacitated for her normal duties as a beauty therapist and as at the time of his interview would only be capable of working as a beauty therapist for approximately three hours per day.
Defendant's medical evidence 37 The defendant referred the plaintiff to Dr John Rosenthal, a specialist in rehabilitation medicine. In a report dated 14 May 2001 Dr Rosenthal described what he called "florid abnormal illness behaviour" on his examination of the plaintiff. He noted inhibition of cervical movement by more than 50 per cent of the normal range, although his indirect observation indicated much better function. He noted that she would not elevate either arm actively or passively beyond 80 degrees (there was no structural neurological or orthopaedic reason for this) and reported
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widespread tenderness over the chest and abdominal walls as well as along the whole spine. He noted that there was no muscle spasm evident at any time. Although she exhibited upper limb give way weakness there was no objective neurological deficit in her upper or lower limbs. 38 In his opinion the plaintiff's disability is to a large extent subjective. In view of his findings that her injuries of soft tissue and cervical strain have been characterised by abnormal illness behaviour, he recommended a pain rehabilitation programme that addresses behavioural and psychological issues. 39 Dr Rosenthal reviewed the plaintiff 12 months later and prepared a report dated 17 July 2002. After examination he noted that there had been an interim improvement in her reported symptoms since his last assessment and that the degree of abnormal illness behaviour had significantly reduced. However, he considered that she still had an irrational level of injury conviction and was only mildly symptomatic but not disabled. He considered that she was capable of leading a normal lifestyle which should include a return to her usual occupational, recreational and domestic activities. 40 He did not consider that the prolonged absence from the workforce had been appropriate and stated that in his opinion prolonged incapacity in the clinical context of benign soft tissue injury over a prolonged period fosters a subjective view of ongoing disability. The only future intervention that Dr Rosenthal thought was required was reassurance, regular exercise, normalisation of lifestyle and claim finalisation. 41 Dr Rosenthal reviewed the plaintiff 12 months later and his report of 4 July 2003 confirms his previous opinion that her symptoms are relatively minor and quite compatible with her leading a normal lifestyle. 42 During the course of cross-examination Dr Rosenthal suggested that the reduction in her abnormal illness behaviour had reduced when he saw her in 2002 and considered that that may be as a result of her becoming aware that he had that opinion. He did, however, concede that he did not directly ask her if she had read the reports, he simply stated that in his experience in rehabilitation medicine patients do read their own reports. 43 I note that Dr Norcott was aware of Dr Rosenthal's comments in relation to abnormal illness behaviour and in his report of 6 August 2001 he commented that the whole question of abnormal illness behaviour and pain rehabilitation is best addressed by a positive active treatment/gym
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programme. However, he did state in his evidence that he was of the opinion that she was not exhibiting abnormal illness behaviour. 44 The plaintiff was reviewed by Dr David Rosen, a neurologist, at the request of the defendant on 26 July 2003. In a detailed report, Dr Rosen outlines the chronology of the plaintiff's symptoms and their impact on her activities since the accident. 45 While Dr Rosen described the plaintiff as a "pleasant cooperative young woman and a reliable and credible witness … with no evidence of elaboration of any symptoms" he considered that there appeared to be a disproportionate time off work. After noting that her symptoms had been slowly improving he stated that at present "she appears to have plateaued for no obvious physical reason". 46 Dr Rosen disagreed with Professor Mastaglia's opinion in relation to the possibility of thoracic outlet compression as a result of the accident and was of the opinion that her symptoms in the left hand and arm could not be attributed to the accident nor did they indicate significant brachial plexus injury. This is based on the fact that the symptoms did not develop for some time after the accident and in his opinion the mechanism of the accident could not have led to a traumatic thoracic outlet compression. In Dr Rosen's opinion the symptoms may have arisen as a result of excessive massage of her left neck and shoulder area. 47 It is significant that Dr Rosen reported that the plaintiff told him that the symptoms of pins and needles and loss of sensation in her left hand and arm was her most significant symptom at the time of his examination in July 2003. Dr Rosen advised that he considered the excessive massage as an explanation as he could not otherwise think of any plausible explanation for her symptoms. He stated that it was not uncommon to massage an area that is painful and he was also told that she had been given some advice to massage the neck as well. 48 In cross-examination Dr Rosen agreed that the plaintiff would have and would continue to benefit from a more structured physical rehabilitation programme together with vocational assessment and rehabilitation programme. He was also of the opinion that there were limits to her capacity to carry out activities of her normal lifestyle as her symptoms are exacerbated by activity and limit her to a mild degree.
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Findings on plaintiff's injuries and residual disability
49 The plaintiff is a young woman who had a relatively minor motor vehicle accident causing mild soft tissue injury to her neck and lower back. She began to exaggerate her symptoms and their effect on her almost immediately after the accident. When she was taken to the hospital by her father, she told medical staff that she could not feel her legs and so her clothes were cut off before investigations revealed that there was in fact no spinal injury and she was discharged that day with no further treatment. 50 While it is understandable that the shock of a motor vehicle accident may cause a histrionic reaction and subsequent over reaction to symptoms from injuries, I am satisfied that the plaintiff's presentation of symptoms to medical professionals has been deliberately misleading. This is either with an idea to maximising her claim to damages, removing herself from the workforce or for some other personal reason. 51 The consensus of medical opinion is that her injuries have been relatively minor soft tissue injuries that from an objective view should not have interfered with her normal activities for more than a short period after the accident. Her general practitioner and medical professionals that he has referred her to have either accepted her account of her symptoms or at least have accepted that her perception of pain and restrictions on her activities is genuine. To use the words of Dr Norcott they have considered "the pain is real to her". As a result efforts have been made to pursue various diagnostic enquiries and she has been referred for counselling at a pain rehabilitation programme. 52 As a result of her complaints of pins and needles and numbness in her left arm and hand she was referred to Professor Mastaglia who conducted various clinical and diagnostic investigations. Although he made a diagnosis of thoracic outlet compression syndrome I accept the evidence of Dr Rosen that that condition is not present. Although Professor Mastaglia did not completely resile from his original opinion he did accept that the fact that no symptoms were reported until July 2002 rendered that diagnosis unlikely. However, his evidence was that in the absence of any other explanation he "would still prefer to keep an open mind as to whether there is a link" between her symptoms and the accident. That falls far short of establishing that she suffers from any thoracic outlet compression syndrome. 53 All of the medical professionals who have treated or reviewed the plaintiff appeared to be making every effort to accept that there was some
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real basis for the plaintiff's presentation and were clearly most reluctant to express opinions that were condemnatory of the plaintiff. That is understandable given their role in treating the plaintiff as a patient and the fact that they are not privy to all of the circumstances in relation to the plaintiff's employment history and general behaviour. 54 Although Dr Rosenthal considered that the plaintiff's symptoms of pins and needles and numbness may arise from excessive massage there is also the distinct possibility that she has fabricated these symptoms at least in part. It is not difficult for anyone in the community to become aware of the nature of injury related symptoms and there is evidence from which an inference could be drawn that the plaintiff has to some extent altered her presentation to place her in a more favourable light. Although Dr Rosenthal conceded that he had no direct information from the plaintiff, he formed the view that she had reduced what he had described as her abnormal illness behaviour as a result of his negative comments in his initial report. 55 Although the plaintiff has stated that she has been frustrated at her inability to return to work and has impressed some of the doctors as being sincere, it is quite inconsistent with her behaviour towards her former employers and the fact that she has made no attempt whatsoever to try to work for over 2½ years after the accident. The letter that was sent to her employers demanding payment was aggressive. It did not appear to be warranted as the payment was not seriously outstanding. It was not the kind of conduct that you would expect from a person who hoped to gain employment again as it is inimical to further employment at Jan's Beauty Salon or to a favourable reference. 56 I find the plaintiff to be a less than frank witness and do not accept that she is genuine in her desire to return to work. When questioned about the demand note sent to her employers she tried to distance herself by suggesting her brother had written it and she could not remember the content. It was only when pressed that she admitted it was written at her direction. Her attempts to look for work were only made a short time before the trial and appear to be little more than token efforts in order to support her claim that she would like to be able to return to the workforce but is unable to obtain work either because of her physical limitations or because of the fact that she has had a back injury and has been out of the workforce for a long time. 57 I accept the evidence of Ms Ghedina that part-time work is available in the beauty therapy business and that some accommodation can be made
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for physical limitations. I am satisfied that the work of a beauty therapist is generally of a light nature and that the therapist has the opportunity of altering her posture to accommodate individual physical limitations. In any event I am satisfied on the basis of the medical evidence that the plaintiff's injuries were mild and she would certainly have had no difficulty in completing all of the tasks of a beauty therapist on a full-time basis at least in the period three months after the accident. 58 In circumstances where the plaintiff has deliberately exaggerated her symptoms and their effect on her range of activities it is difficult to evaluate the true extent of her symptoms and the impact on her activities. However, I am satisfied that after a period of three months from the date of the accident the plaintiff would have recovered from most of the symptoms caused by the accident. She would have been able to return to work on a full-time basis and resume most of her normal daily activities with only relatively mild symptoms that would eventually resolve and could be managed by analgesic medication as required and appropriate exercise. 59 I consider that it is most likely that the plaintiff would have been able to return to work on a part-time or reduced basis approximately one month after the accident. However, in the absence of evidence to enable me to ascertain to what extent that would be I propose to award damages for past economic loss on a full-time basis for the period up to 1 May 2001. 60 The plaintiff's counsel conceded that she had been paid by her employer up to 2 March and this is confirmed by the evidence of Ms Emery. Although it is not clear as to what part of this payment included annual leave and therefore recoverable by the plaintiff, this is compensated by the fact that it is likely that she would have worked part-time in that three month period and the assessment will be at the rate of $15 per hour. At the time of the accident the plaintiff was earning the sum of $12.75 per hour. The rate of $15 was suggested because that was the rate that was being paid by Ms Ghedina and was the rate used for the calculation in the plaintiff's schedule of damages. 61 Past economic loss will be assessed at the rate of $470 per week ($15 per hour x 38 hours per week = $570 gross per week or $468.62 net per week rounded off to $470). To this will be added interest at the rate of 3 per cent ($317.25) and past loss of superannuation benefits at 7.5 per cent = $317.25. This brings the total of the amount for assessment for past economic loss to the sum of $4,865.
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62 There will be no award for future loss of earning capacity as the plaintiff was able to return to work on a full-time basis at the very least by three months after the accident.
63 The plaintiff will be awarded the sum of $2,500 for pain, suffering and loss of amenities. I consider that the plaintiff should be awarded a sum somewhat less than 10 per cent of the maximum amount available, namely the sum of $15,000. After deducting the sum of $12,500 in accordance with the provisions of s 3C(5) of the Motor Vehicle (Third Party Insurance) Act the plaintiff will be awarded the sum of $2,500. 64 The plaintiff will also be awarded the sum of $1,163 as medical expenses for Christopher Semmens' psychologist. On my findings there will be no need for any award for future medical expenses. The plaintiff will be awarded the total sum of $8,528. |