| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : AMANKWAH -v- LEOPOLD [2004] WADC 201 CORAM : REYNOLDS DCJ HEARD : 16-18 DECEMBER 2003, 20-21 MAY 2004 & 1 JUNE 2004 DELIVERED : 1 OCTOBER 2004 FILE NO/S : CIV 805 of 2003 BETWEEN : GERALDINE STEPHANIE AMANKWAH Plaintiff
AND
RENEE LEOPOLD
Defendant
Catchwords: Damages - Negligence Motor vehicle accident - Personal injuries - Assessment - Headaches, neck and back injuries - Pre-existing degeneration - Plaintiff's reliability
Legislation: Motor Vehicle (Third Party Insurance) Act 1943
Result: Damages assessed in the sum of $4,500
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Representation:
Counsel:
Plaintiff : Mr A S Stavrianou
Defendant : Mr J R Brooksby
Solicitors:
Plaintiff : Simon Walters
Defendant : Greenland Brooksby
Case(s) referred to in judgment(s):
Graham v Baker (1961) 106 CLR 340
Hendrie v Rusli [2000] WASCA 249
Southgate v Waterford (1990) 21 NSWLR 427
Wylde v 'Arriaza, unreported, FCt SCt of WA; Library No 970359; 23 July 1997
Case(s) also cited:
North v Thompson [1971] WAR 103
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REYNOLDS DCJ:
Introduction 1 The plaintiff was born on 12 February 1961 and is 43 years of age. She claims damages based on negligence by the defendant in relation to a motor vehicle collision which occurred on 4 May 2000 at Cannington ("the accident"). In particular the plaintiff alleges that she has suffered soft tissue injuries to her cervical, thoracic and lumbar spine resulting in a variety of symptoms. Damages are sought for loss of amenities and enjoyment of life, past and future economic loss, past and future medical expenses, and interest on past loss and expenses. Both before and since the accident the plaintiff has continued to work for the Police Department of Western Australia ("the Police Service"). 2 The defendant admits that the accident was caused by her negligence. Accordingly, liability is not in issue and the matter is one of assessment of damages. By her defence the defendant denies that the plaintiff is entitled to any relief at all. The defendant has pleaded that if the plaintiff has any cervical, thoracic or lumbar spine injuries then they were not caused by the collision but rather: (a) a pre-existing degenerative condition of the plaintiff's spine; or (b) motor vehicle accidents in which the plaintiff has been involved on 12 September 1986, 3 July 1989, 12 September 1991 and 22 April 2002. Further, the defendant has pleaded that the impact between the vehicles driven by the plaintiff and the defendant were so minor as to be unlikely to cause the plaintiff any injuries.
The circumstances of the accident 3 The collision occurred at the intersection of Albany Highway and Wharf Street which is controlled by traffic lights. The plaintiff said that she approached the intersection on Albany Highway. The traffic lights facing her had just turned red and so she stopped her car, a Toyota Corolla Seca, about three metres behind the car in front. When the plaintiff came to a stop at the intersection there were about five or seven other cars in front of her in a line of traffic at the intersection. When stationary in that position her car was hit from behind by another car driven by the defendant. The plaintiff heard a loud bang. She said that she was propelled forward and then grabbed by the seatbelt and thrown quite hard back into her seat. She also said that her head went forward and then back
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and hit the head rest quite hard. On impact her foot came off the brake pedal and thereafter she managed to put it back on and stop her car from hitting the rear of the car in front of her. She said that she stopped the front of her car two to three feet from the rear of the car in front of her. 4 After the collision the plaintiff noted that her seat setting had changed. The seat was further back and she could not reach the accelerator or brake pedals. She observed that the defendant's car, a Ford Festiva, had front end damage. She thought that the front of it was all pushed up to the motor. 5 In a report dated 3 October 2001 Mr Anderson, an orthopaedic surgeon and rehabilitation specialist, stated that the plaintiff told him that when the collision occurred her seat went forward and she had difficulty moving her vehicle. In cross-examination she said that she may have said that to Mr Anderson but she thinks it went backwards. In a report dated 15 March 2002 Mr McWilliam, a consultant orthopaedic surgeon, stated that the plaintiff told him that she thought her seat moved forward and then back. In cross-examination she said she may have said that and that all she can remember is after the collision she had to stretch to reach the pedals in her car. In a report dated 12 December 2000 Dr Saunders, a general surgeon, stated that the plaintiff told him that at the time of the collision the back seat of her car was down and it slid forward and hit her in the back. In cross-examination the plaintiff said that she did not say that to Dr Saunders and that he must have misunderstood something she said. 6 In an accident claim form the plaintiff indicated that the speed of the defendant's car at the time of the collision was 60 km per hour. When cross examined about that she agreed that she did not see the defendant's car before the collision. She added that it could have been doing 70 km per hour. She gave evidence that she put 60 km per hour on the form assuming that that was the speed because that was the speed limit in the area. She also said that she believed that the defendant's car was travelling at 60 km per hour and that 60 km per hour was not an exaggeration on her part. She disagreed with the suggestion that she could not think that the speed of the defendant's vehicle was 60 km per hour because of the minor extent of the damage to her car. 7 The cost to repair the damage to the plaintiff's car caused by the accident amounted to $1,114. The damage was to the right rear light and tailgate of the plaintiff's car. The repair quotation shows that the parts required were a rear bumper cover, rear bumper bracket and right tail
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lamp assembly. The plaintiff rejected the suggestion that her car was simply clipped by the defendant's car. She maintained that she was propelled forward by the impact. 8 The defendant and her then boyfriend, Dario Caffini ("Mr Caffini"), who was a passenger in the defendant's car at the time of the accident, gave evidence on the circumstances of the accident. 9 The defendant gave evidence that she was travelling on the left lane on Albany Highway as she approached the intersection. When she came to the intersection she stopped her car about one metre behind the plaintiff's car. There were about five to 10 vehicles in front of the defendant's vehicle at the intersection. She said that she decided to change into the middle lane because there were no other cars in it. She said that she indicated to change lanes and that as she moved her car forward and was changing from first to second gear her car clipped the right rear of the plaintiff's car. She said that she was not going very fast at all. After the collision both she and the plaintiff pulled their cars over and spoke with each other. She gave evidence that the plaintiff told her that her back was spasming and that she had had it before. 10 Mr Caffini gave evidence consistent in all material respects with the evidence of the defendant. He also described the collision as the defendant's car clipping the rear of the plaintiff's car when the defendant was changing lanes from a stationary position about one metre behind the plaintiff's car. He said that the defendant's manoeuvre was not a rapid movement. He also gave evidence that about five and a half minutes after the accident the plaintiff said "Oh no I'm having back spasms, I know because I've had them before". Mr Caffini described the damage to the plaintiff's vehicle as fairly minimal if anything. 11 The damage to the defendant's car amounted to about $4,700. Both the defendant and Mr Caffini gave evidence that this included repairing damage that happened later in the day when the defendant was driving her car and the bonnet was blown up and broke the windscreen. The repair estimate, Exhibit 22, clearly shows that the damage to the defendant's car was to the front left side consistent with the evidence of both the defendant and Mr Caffini.
The plaintiff's pre-accident history 12 The plaintiff completed Year 12 at the South Fremantle Senior High School. For the next nine years or so she worked in a clerical position. Between 1985 and 1993 she studied for and achieved a Certificate in
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accounting and a Batchelor of Business. In January 1994 she started working for the Police Service and continues to do so. In 1998 she attended a two week course and obtained a Diploma in Criminal Intelligence. 13 Since starting work with the Police Service the plaintiff has worked continuously save for leave and time off which she said was because of the accident. When she first started working for the Police Service she worked in the area of salaries. Thereafter and in chronological order she worked in the areas of personnel administration, human resources, systems analysis, financial planning, prisons intelligence, arson investigation, major fraud investigation from January 2000 to June 2002, national projects, and asset investigation from October 2002 to the present. 14 The plaintiff has attended on Dr Richardson, a general practitioner, since 1985 for one thing or another. She was involved in prior motor vehicle accidents in September 1986, July 1989 and September 1991. She was also involved in a motor vehicle accident after the accident and in April 2002. 15 The accident in September 1986 involved a truck. The plaintiff said that it was the truck driver's fault. She sustained injuries to her neck and back. She said that she was unsure if she took time off work as a result of injuries from this accident but thinks that she may have and that she eventually returned to full time work. She was injured again in an accident in July 1989 when she was a passenger in a bus. She took time off work as a result but again returned to full time work. She could not recall details of the accident in September 1991. In cross-examination she agreed that her three claims for these three prior traffic accidents were all settled together at the same time. She said that she could not recall the total amount of compensation that she received for these three claims. 16 Dr Richardson gave evidence that he has seen the plaintiff in relation to other motor vehicle accidents. 17 On or about 13 June 2000 the plaintiff underwent a CT scan of her lumbo-sacral spine from L1/L2 to L5/S1. The scan showed moderately severe degenerative osteoarthritic change involving the right L4/L5 and L5/S1 facet joints. Dr Richardson gave evidence that this degeneration was significant and had been there for a long time. All of the other medical witnesses agreed or indicated that such was the case.
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18 Dr Richardson gave evidence that prior to the accident he had last treated the plaintiff for her pre-existing condition about two years earlier. On 15 September 1998 the plaintiff complained to him of acute exacerbation of low back pain with some mild thoracic pain from the day before. She had two to three days off work and on 17 September Dr Richardson referred her to physiotherapy. She received some physiotherapy and was unfit for work for another week. Dr Richardson did not hear anything more about this from the plaintiff. He agreed with the suggestion that before this time the plaintiff would have had pain from time to time in those areas of her spine because of the degeneration of the facet joints although he could not find anything in his notes between 1991 and 1998 referring to low back pain.
19 On 16 December 1998 the plaintiff attended on a locum at Dr Richardson's practice and complained of thoracic and neck pain with headache. The locum wrote "usual symptomatology" in the notes. Dr Richardson did not know what that meant. The locum also noted that she would benefit from an anti-depressants review in the new year. The locum certified the plaintiff unfit for work for five days from 16 December 1998. The plaintiff was seen by the locum again on 13 January 1999 with no complaints except vomiting which was put down to a possible combination of a food allergy and gastritis. 20 Dr Richardson saw the plaintiff on 3 February 1999. On that occasion she complained of three days of severe and pounding headache in the left temporal area and vomiting. She had no fever and no neck pain. She was treated with Panadeine and certified unfit for work for three days. Nothing further became of that. She was seen again on 10 March 1999 with wrist pain which Dr Richardson put down to typing. When he saw her again on 16 March 1999 she complained of headache. He thought this might be pre-menstrual headache with fluid retention. 21 The plaintiff gave evidence that before the accident her health was pretty good and she had been working eight to nine hours per day, five days per week. At the time of the accident the plaintiff was on leave. Her job at the time in the Police Service was that of a crime analyst and she was working on the finance broking industry. 22 When asked about her work duties immediately before the accident and whether it was a desk job the plaintiff said that all of such jobs were pretty much desk bound but they had to make themselves available at short notice to go anywhere in the State. She also said that her duties immediately before the accident required her to use computer skills to
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type reports, do profiles on people, do research, examine intelligence indices and develop databases.
The plaintiff's evidence on her post accident injuries, symptoms and capacity 23 The plaintiff gave evidence that she had a headache almost immediately after the accident. She also felt slight neck pain. When she got home her headache got worse and her back started to hurt. She attended on Dr Richardson on 5 May 2000 and her treatment consisted of medication, physiotherapy, hydrotherapy and rest. She bought herself a new bed and a contoured pillow. 24 The plaintiff gave evidence that in May and June 2000 she was suffering from really bad headaches, her neck and back hurt and she could barely walk at all. She also said that she could not take her dog for a walk. 25 The plaintiff returned to work about six weeks after the accident in about mid/late June 2000. She tried to work full time on her first day back at work but could not do so. She took a further week off work and then returned on a part time basis. She gradually increased her weekly hours from 15, to 20, to 30 and by about late November 2000 she was back to working full time. Between May and November 2000 inclusive she attended on Dr Richardson or another general practitioner at his practice a total of 20 times, 87 physiotherapy sessions and a total of 64 hydrotherapy and swimming sessions. 26 The plaintiff worked full time during 2001. She said that during 2001 she was in constant pain most of the time. Sometimes the pain was really severe and if it was she got very bad headaches. The headaches made her vomit and then she would end up flat on her back for two to five days. Between December 2000 and December 2001 inclusive she attended on Dr Richardson 29 times, 18 sessions of physiotherapy including six between 28 March 2001 and 11 April 2001 and 11 between 28 August 2001 and 21 September 2001 inclusive, and seven swimming sessions all between 12 December 2000 and 1 April 2001. 27 When the plaintiff was asked in examination-in-chief how each of her neck and back were in 2002 she said that she was still having problems with her back and was using heated wheat packs on a regular basis. A lot of times when she was on the computer she got aching pains and then headaches. In July 2002 she moved to work in the Bureau of Criminal Intelligence section on a national project. She was there for
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about three months and an opportunity came up in the Asset Investigation section. She said that you had to jump when opportunities like that came along. She had the qualifications for the job, applied for it and got it in October 2002. She is still there now and on Level 4 in the Public Service. 28 In 2002 the plaintiff attended on Dr Richardson or another general practitioner at his practice 19 times, 15 physiotherapy sessions consisting of nine between 26 February 2002 and 2 April 2002 and six between 15 August 2002 and 17 September 2002 and 29 swimming sessions including nine in October to December 2002 inclusive. 29 On 22 April 2002 the plaintiff was involved in another traffic accident. The front of her car collided with the back of another car. The collision was the plaintiff's fault. She described the impact as very minor. Photographs of the plaintiff's car taken after this accident show that the damage was very minor indeed. It consisted of a small dent to the front guard area under the left front light. The plaintiff said that this damage was caused by a tow ball on the back of the car she collided with. The irresistible inference that I draw from the photograph of the damage to the plaintiff's car is that the collision was nothing more than a very minor bump. The plaintiff gave evidence that as a result of this collision she had two or three days off work. She said that this collision exacerbated the injuries she received from the accident. She added that about a month after this collision her condition returned to where it was immediately before it had happened. 30 The plaintiff gave evidence that from October 2002 when she started working in asset investigations she started to go progressively backwards and also started getting increasing headaches. She said that she had neck pain on both sides of her neck worse on the left side and down into the shoulders. She said that the work in asset investigations involved searching for proceeds of crime and meant that she was basically desk bound doing various searches from a variety of sources on her computer. She contrasted this with her previous duties in major fraud where she was able to get up and move around and talk with detectives. 31 In 2003 the plaintiff attended on Dr Richardson nine times. She did not attend on Dr Richardson at all between 23 April 2003 and 15 May 2003 inclusive and between 20 May 2003 and 3 July 2003 inclusive. Between 5 July 2003 and 2 December 2003 inclusive she saw Dr Richardson only once, namely on 6 November 2003. In 2003 she attended about 46 swimming sessions. She attended four physiotherapy sessions between 12 March 2003 and 21 March 2003 inclusive. On
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1 May 2003 she attended a gym assessment and thereafter until 2 December 2003 inclusive she attended a gym at Maddington Physiotherapy for back strengthening exercises on 69 occasions. She attended these back strengthening sessions on the advice of Dr Richardson and Mr Harper, an occupational physician. She took time off work to attend the sessions and paid for them herself because the Insurance Commission of Western Australia would not pay. 32 The plaintiff has prepared detailed schedules which are in evidence. They show all of her attendances on doctors and for physiotherapy, hydrotherapy and swimming. She started to make entries for the preparation of the schedules immediately after the accident and before she made her initial claim. The schedules set out costs, times and odometer readings and number of kilometres travelled in respect of such attendances. The entries are very detailed and precise. For example an entry on 25 May 2000 sets out the day, Thursday, the time, 15:28:56, the place, Thornlie Leisure Centre, the purpose, purchased Speedo goggles, elastic band for swimming as part of treatment, and the amount, $3.50. There is a separate entry for attending the Thornlie Leisure Centre and having a hydrotherapy/swim session on the same afternoon. There is also a separate entry for a parking fee on 19 June 2000 as well as other entries for parking fees. The plaintiff said that at the time she was starting to get back to work and could not catch public transport because she was struggling to walk from McIver Train Station to her workplace in Adelaide Terrace, Perth. 33 The plaintiff gave evidence that she still has headaches and at the rate of about one every second day. She said that she used to get pounding headaches which made her feel unwell but now has a constant dull pain. She said that sitting at the computer causes headache. She continues to use medication. She described the level of her neck pain as between five to eight out of ten. She said that her neck pain is not going away. She described it as an ache which is constantly there and gets worse as the day goes on. Again, sitting at the computer makes it worse. She described the level of neck pain as between six to ten out of ten. She said that when she reverses her car she cannot turn her head around fully to look behind. 34 The plaintiff gave evidence that she also has constant shoulder and back pain. She feels stiff and cannot do things such as lifting, vacuuming and hanging out washing without pain. She described her level of pain in her mid-back and low-back and down into her buttocks and thighs as five to ten out of ten. She said that she cannot walk for long distances and can
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only walk for 10 to 15 or 30 minutes if she does so at a very slow pace. She said that she has difficulty gardening because it requires bending. She used to enjoy trimming hedges in her garden and now she needs to hire help to do so. She said that she has difficulty dressing and showering. She finds shopping difficult in particular lifting things and putting them into her shopping trolley. Her sister now lives with her and helps her with some of these domestic chores. She also gave evidence that she does not socialise as much as she used to. She still swims and said that if she does not do so then everything hurts. She is swimming up to 40 laps in a 25 metre pool about twice or three times per week. She does freestyle and backstroke. She said that when she does freestyle she moves her head from side to side to breathe. She no longer plays basketball and netball or reads as much as she used to. She has also stopped going to watch the Wildcats because her back hurts from driving to the venue and then sitting down to watch the match. 35 The plaintiff said that before the accident she used to like driving but now she cannot drive for more than 40 minutes at a time. I note that the odometer readings for her car in one of the schedules prepared by her shows that about 3,050 km were driven between 20 October 2001 and 3 November 2001. 36 The plaintiff gave evidence that the accident has prevented her from doing extra study to improve her work qualifications. She started a CPA course in 1998 in conjunction with her work. In 1999 she passed one unit with a distinction and failed another. She was on leave studying for an exam at the time of the accident. She had planned to do one unit in each half of 2000. She deferred her exam after the accident. She re-enrolled for the same unit in the second half of 2000 but had to withdraw from it because she could not study properly due to her injuries. She re-enrolled for the same unit in 2001 and passed it with a distinction. She enrolled in another unit in the second half of 2001 but did not complete it because of back pain. In 2002 she re-enrolled in the same unit and passed it. She enrolled in another unit in 2003 but deferred it because she was not physically able to study for it given her work commitments and attendances at back strengthening sessions. She approached a person running the CPA course and obtained an extension to complete the course. As a result of all of this she has had to pay fees over and above standard enrolment fees for deferrals and re-enrolments. 37 I have already mentioned that the plaintiff returned to work about six weeks after the accident and graduated from part time to full time by about late November 2000. Thereafter she took varying amounts of time
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off from time to time to attend doctors and physiotherapy appointments, to recover from feeling unwell and to attend rehabilitation sessions of some sort. Exhibit 13 is a schedule prepared by the plaintiff which sets out leave taken by her which she attributes to the accident. The schedule shows that for much of the time off she has converted sick leave entitlements to annual or long service leave and on other occasions used flexi-time entitlements to visit doctors and her legal advisors. There is then a claim for loss of income for all of these time periods on the basis that she has had to use up her annual leave and long service leave and flexi-time entitlements to recover or for attendances as a result of her accident related injuries and symptoms. 38 At the time of the accident the plaintiff was employed at Level 4, third year in the Public Service. The plaintiff said that she had 60 to 65 years of age in mind as a retiring age. She said that her accident related injuries and symptoms had limited her opportunities in the Police Service. She said that she had two paths of employment open to her. One was to stay in criminal intelligence and the other was in the field of financial investigations which involved forensic accounting. She had wanted to relocate to Canberra or interstate and work in the area of crime research or with ASIO or the Federal Police. She described herself as being very career orientated. 39 The plaintiff said that she moved to her current position because she knew that another forensic accountant would be needed in the area. That position is a Level 6 in the Public Service. She thought that with experience in the position and with a CPA qualification she would have a good chance of being promoted to being a Level 6. A Level 6 is paid an extra $420 per fortnight compared to her current income. 40 The plaintiff said that since the accident she had not applied for jobs or has only applied half-heartedly knowing that she would not be able to physically cope with the job if she got it. She said why go to another agency when she was struggling with her present job. In relation to a particular instance she said that if she had not downplayed herself then she would have got the job and had to knock it back. On weekends the plaintiff checked job advertisement in newspapers to identify jobs that she thought she would like and was qualified to do but was not fit enough to apply for and obtain. She said that her accident related injuries and symptoms caused her to miss opportunities to work on various task forces within the Police Service from time to time.
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41 The plaintiff gave evidence that she was coping alright at work until she changed her job in October 2002 to asset investigations. Thereafter she started going backwards. Doing intelligence profiles on people required her to sit at her desk and use the computer. Her previous duties allowed her to get up and move about. Her current duties do not require any heavy lifting. She said that she had to take time off work in April/May 2003 to attend the gym and do back strengthening exercises because she was falling behind at work and thought that if she did not do something immediately she may lose her job. Sometime after that period when she returned to work she had ergonomic improvements at her work place including a document holder, an extra footrest, a desk with an adjustable height and a headset for the telephone. She also started to take regular breaks to incorporate some mobility into her time at work.
42 In cross-examination the plaintiff agreed that she had had quite a bit of time off work because of viral infections. She also had time off work in early 2003 because of painful feet that cause her trouble when walking. She had had the same problem in 2001. She received radiation therapy treatment over a 10 day period in early 2003 which she said fixed the problem. When cross-examined about work time since the accident she said that she probably did work some extended hours over the last three and a half years but could not recall. It was put to her that when she was questioned at work in July 2001 about sick leave she responded in writing on 12 July 2001 to a member of the Police Service stating "Sorry for the late reply. I've been extremely busy and have had to work on weekends". She said in cross-examination that she probably did work on weekends in July 2001 because of a pending court case. She agreed in cross-examination that in a period of two and a half years leaving out time to attend back strengthening sessions she had only had 13 days off work.
Other evidence including medical evidence 43 Gary Budge is an Inspector in the Police Service. He worked with the plaintiff both before and after the accident. He was not directly in charge of the plaintiff. He said that her role in major fraud and asset investigations was similar. He thought that she had a very good work ethic, was thorough and good at her job. 44 David Allen ("Mr Allen") is a Level 4 crime analyst with the Police Service. He said that he earns $49,700 gross per annum. He first met the plaintiff in 1998 and has worked alongside the plaintiff. He said that prior to the accident she was very thorough and did not have any bad work habits. He also said that after the accident the plaintiff was distraught,
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uncomfortable, pretty emotional, and in tears at times and confided in him about her treatment. 45 Mr Allen gave evidence that when he worked as an acting Level 5 on task forces he earned an extra $7,000 per annum. He said that overtime opportunities did not come up very often in the job. In cross-examination Mr Allen said that he had had back surgery on his L5/S1 in 1991. Since then he says that he has worked "okay" but has had periods of sick leave. He said that he has been able to do extra overtime when required. He described the job as having some autonomy, and being at a computer pretty much all day. He said that he and everyone else gets up and moves about from time to time during the day. 46 Michelle Verden ("Ms Verden") is currently employed by the Police Service at Level 5 in the Intelligence Service. She has worked at an acting Level 6 as a supervisor which position included duties in relation to occupational health. She said that she became aware of the plaintiff's accident and spoke to her about making her workplace safe. She said that the plaintiff had had problems with her duties in asset investigations in 2003 because the work load was quite heavy. The plaintiff was supervising an acting Level 4. 47 Detective Senior Sergeant Dudley Congdon works for the Police Service. From 2001 to May/June 2003 he was in the asset investigation service and was in charge of the plaintiff's day to day activities from about October 2002 to May/June 2003. On my assessment of his evidence it seems that he did not concern himself with health and welfare issues. He left that to Ms Verden. When asked if he saw any effects of the accident on plaintiff's work he said that the plaintiff had had time off work and that she had told him that it was because of a motor vehicle accident back injury. He recalled that the plaintiff had had some time off for back strengthening exercises but he could not recall whether or not it amounted to eight days. 48 Vince Hughes works for the Police Service and is a permanent Level 6 in the Public Service. He first met the plaintiff in 1998 and they worked together in or about 1998/1999. He described the plaintiff as a fantastic worker and said that he had learnt a lot from her. 49 Susan White also works for the Police Service. She gave evidence that as an employee in the Police Service the plaintiff is entitled to 12.5 days per annum sick leave which carries over from one year to the next, annual leave of four weeks per annum and long service leave of
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13 weeks after seven years. As from 1 January 2003 a working day consists of 7.5 hours whereas before it used to be 8 hours. 50 The plaintiff called medical evidence from Dr Richardson, Mr Anderson, Professor Mastaglia, a consultant neurologist and Professor Harper. 51 Dr Richardson set out the following information in his report dated 20 July 2000 to the Insurance Commission of WA. The plaintiff complained to him on 5 May 2000 of her head being flung forward and backwards and her developing the sudden onset of headache and later pain involving the whole of her spine. An examination on 5 May 2000 revealed restricted movement of the cervical spine with pain at the C5, 6 and 7 level. There was generalised spinal tenderness. There appeared to be restricted movements of the lumbar sacral spine with tenderness on palpation of L3, 4, 5 and S1. On 5 May 2000 Dr Richardson certified the plaintiff unfit for work and treated her with analgesics. 52 The plaintiff attended on Dr Richardson on 8 May 2000 and complained of pain on the left side of her neck and also low back pain. On 15 May 2000 she complained to Dr Richardson that she still had symptoms referable to her neck and low back. On 22 May 2000 she complained of continued low back pain. When Dr Richardson examined the plaintiff on 22 May 2000 the movements of her cervical spine were probably full but she complained of pain in her shoulders. Because of her low back and shoulder pain he certified her unfit for work for a further week. When the plaintiff attended on Dr Richardson on 7 June 2000 she continued to complain of low back pain and told him that her neck was improving and was much less tight. On 10 June 2000 the plaintiff's symptoms remained the same and Dr Richardson referred her for the CT scan the results of which I have already mentioned. When Dr Richardson reviewed the plaintiff on 14 June 2002 he considered that her symptoms had significantly improved for her to return to work on a graduated basis. 53 Dr Richardson reviewed the plaintiff on 1 July 2000 after she had been at work for two weeks for three hours per day. During this time the plaintiff was receiving physiotherapy treatment once per week and attending hydrotherapy sessions. She complained to Dr Richardson that her neck pain had increased during the two weeks at work. Nevertheless Dr Richardson increased her fitness for work to four hours per day, five days per week for the next two weeks. When reviewed on 15 July 2000 she told Dr Richardson that she had managed to work four hours per day
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and that her neck and low back symptoms were improving. Dr Richardson increased her fitness for work to five hours per day. 54 Dr Richardson stated in his report dated 20 July 2000 that it was unlikely that the plaintiff would suffer any permanent disability as a result of the accident. He stated that the plaintiff had been involved in a previous motor vehicle accident and that he was unsure whether the accident on 4 May 2000 had aggravated a pre-existing condition. 55 Dr Richardson stated in a report dated 21 October 2000 to the Insurance Commission of Western Australia that the plaintiff had continued to see him on a regular basis about every fortnight. As from 21 October 2000 he certified her fitness for work to seven hours per day on Monday, Wednesday and Friday and six hours per day on Tuesday and Thursday of each week. He also stated that the plaintiff continued to complain of a lot of low back pain. He noted that she was slowly improving. Dr Richardson stated in his report dated 6 December 2000 to the Insurance Commission of Western Australia that the plaintiff had commenced a full time work trial. He also expressed the view that her need for physiotherapy treatment was probably approaching an end. On 12 July 2001 Dr Richardson reported to the Insurance Commission of Western Australia that the plaintiff's current symptoms consisted of low back pain, neck pain, spinal stiffness and headache. He anticipated that the plaintiff's condition would stabilise within the next 12 months. In a report dated 10 October 2001 to the plaintiff's solicitors Dr Richardson stated that the plaintiff had suffered a soft tissue spinal injury of a whiplash type as a result of the accident. He noted that the plaintiff had an acute exacerbation and was unfit to return to work for a week from 5 February 2001. He also noted that the plaintiff had an exacerbation of her back pain which caused her to be unfit for work for three days from 26 to 28 March 2001 inclusive. He advised the plaintiff's solicitors that she still had symptoms related to her neck, shoulders and lumbar sacral spine. 56 When Dr Richardson gave evidence he was questioned in cross-examination and re-examination about the plaintiff's complaints of headache and neck pain generally and particularly in the period between the accident and about October 2001. Some of Dr Richardson's reports did not include the substance of notes made by him on some of the plaintiff's attendances. When he saw the plaintiff on 21 November 2000 he noted that generally her neck had much improved. On 2 December 2000 he noted that her back pain was worse after walking and neck pain
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was variable. She had a bad day the day before with vomiting and headache. 57 Dr Richardson said that when the plaintiff saw him on 30 December 2000 she probably did not complain of neck pain. He noted that there had been no change in back pain, that pain was radiating down the right leg, and also facet joint arthritis. On 27 January 2001 he noted that pain was still present especially in the plaintiff's neck. On 4 April 2001 the plaintiff complained to him of pain at the thoracic-lumbar junction. There was no complaint of neck pain. On 5 May 2001 she complained of shoulder pain which Dr Richardson said was probably consistent with her putting a wheat pack on her neck. On 19 May 2001 she complained of generalised stiffness of her spine with Dr Richardson related to the cold weather. On 16 June 2001 he noted headache but also noted that this was probably related to the colder weather. On 16 August 2001 the plaintiff complained that her back had not improved completely. On 8 September 2001 she told Dr Richardson that her back pain had much improved but she had had spasms and headaches. On 22 September 2001 she complained that her main problem was now her cervical spine and lumbo-sacral spine. It seems to me that they were problems she complained about at the outset. 58 Dr Richardson gave evidence that between 1999 and the accident he has no note of the plaintiff having complained to him of any neck related headache. It seems that while the plaintiff complained to him of headaches when she first saw him, thereafter to when he prepared his report on 20 July 2000 she did not complain of any headaches. Between July 2000 and October 2000 Dr Richardson saw the plaintiff on about eight occasions and within that period she did not complain to him of any headaches. He explained that after the accident a lot of the plaintiff's pain was low back pain. Dr Richardson gave evidence that he did not know whether or not the plaintiff's vomiting and headache in early December 2000 was partially accident related. He thought that the neck pain complained of on 30 December 2000 was probably related to her back and possibly her facet joint problem. In cross-examination he said that it was reasonable to suggest that the pain in the plaintiff's central back and lumbar thoracic junction could not be related to her accident given the length of time after the accident. In relation to the plaintiff's symptoms in September 2001 Dr Richardson said that the plaintiff had recently had a viral infection and that he thought the paroxysms of coughing may have increased some of her back and neck symptoms. 59 On 31 January 2002 Dr Richardson reported again to the plaintiff's solicitors. He advised that the plaintiff had seen Mr Anderson,
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rehabilitation physician, on 20 October 2001. He had advised the plaintiff to reduce the dosage of her analgesics. He also noted that the x-rays of the plaintiff's cervical spine were normal. Dr Richardson stated that when he reviewed the plaintiff on 3 November 2001 there had been very little change. Her neck appeared to be a little tight and her low back pain had not changed. He stated that the plaintiff told him that as the weather was becoming warmer she would increase her exercise. On 1 December 2001 the plaintiff complained to Dr Richardson of headaches related to tightness of her neck and that her lower back pain was worse on walking. On both 12 January 2002 and 26 January 2002 she complained of low back pain. 60 Dr Richardson expressed a number of opinions in this report. He noted that the plaintiff was still working full time and he stated that her current capacity was for full time work and that her future work capacity was for full time work. He did not believe that her work capacity had been compromised and he also did not believe that she was restricted in competing in the open work force. He described the plaintiff's injuries as being of a mild nature. 61 Dr Richardson stated in a report dated 7 May 2002 to the plaintiff's solicitors that on 23 March 2002 the plaintiff attended on him and told him that she had aggravated her back doing some tree loping. She was finding physiotherapy useful. He also stated that on 24 April 2002 the plaintiff told him that she had been involved in a fairly minor traffic accident which had aggravated her low back pain. When he reviewed her on 27 April 2002 she told him that her back pain was rapidly improving to the point where it was nearly at the same level as it was before this subsequent accident. Dr Richardson stated in a report dated 10 September 2002 to the plaintiff's solicitors that on 18 May 2002 the plaintiff told him that her back pain was now back to the same level as it was prior to this subsequent accident. She also complained that her neck was still a bit stiff. When reviewed on 10 August 2002 she complained of spasm of the muscles of her lumbo-sacral spine. Dr Richardson noted on 24 August 2002 after further physiotherapy that the plaintiff's back now appeared freer. 62 In a report dated 27 March 2003 to the plaintiff's solicitors Dr Richardson set out information on a number of attendances on him by the plaintiff. He stated that on September 2002 the plaintiff complained of severe headaches the previous few days with vomiting and pain in her cervical and lumbar spine. Dr Richardson stated that he was unsure whether the vomiting related to the plaintiff's back pain or an inter-current
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viral infection. When he reviewed the plaintiff on 21 September 2002 after she had had some physiotherapy treatment her condition had improved. On 5 October 2002 she complained that she still had headaches which had now been present for about five weeks. I note that these complaints of headaches were made when or just before the plaintiff commenced her new job in asset investigations. On 26 November 2002 the plaintiff told Dr Richardson that she had recently had five days off work because of her neck pain and low back pain with headache. Dr Richardson stated in his report that he initially thought that she had a viral infection. He stated that he was unsure of the cause of this exacerbation. When Dr Richardson reviewed the plaintiff on 12 March 2003 she complained that she had been vomiting over the past six days with her back and neck pain. She attributed this increase in pain in the cervical spine to looking down at her spreadsheet on her computer. On examination of the cervical spine Dr Richardson noted that there was reduced movement with discomfort at the extreme. He also noted that there was radiation of pain across the superior border of both trapeziums. The plaintiff was also tender on palpation over most of her thoracic spine. There was also tenderness on the upper lumber sacral spine. 63 At the conclusion of this report dated 27 March 2003 Dr Richardson expressed a number of opinions which vary from the earlier opinions that he had expressed in his report dated 31 January 2002. He now thought that the plaintiff's work capacity may be restricted and that her future working capacity had been compromised and that she may be required to retire prematurely. He upgraded the severity of the plaintiff's injuries to mild to moderate. He thought that she would continue to need medication, physiotherapy and monitoring by him but he did not envisage her needing to see a specialist in the foreseeable future. 64 Dr Richardson reported to the plaintiff's solicitors on 2 July 2003 that on 22 April 2003 the plaintiff requested time off work because she was unable to sit at a computer for long periods of time without getting headache and back pain. She had decided to take a month off work as her annual leave to do some back strengthening exercises. On 19 May 2003 she told Dr Richardson that the time she had taken off work had been of benefit for her physical condition. She was swimming 1 km three times per week and attending a gym doing back strengthening exercises three times per week. Dr Richardson stated in this report that his opinions had not changed since his report dated 27 March 2003. Dr Richardson reported again to the plaintiff's solicitors on 9 December 2003. He stated that when he examined the plaintiff on 6 November 2003 the range of movement of her neck was probably three quarters of normal in all
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directions. He noted pain at the extreme of movement especially at the cervical vertebrae 3 and 4. There was full range of movement of the lumbar sacral spine. There was also full range of movement of the thoracic spine. The plaintiff told him that she thought her overall condition had improved. Dr Richardson expressed the opinion that the plaintiff remained capable of full time work but restricted to the duties of a crime analyst. He thought that her future work capacity had been compromised and that she was restricted from competing in the open work force because she was restricted to light duties. He again classified the severity of the plaintiff's injuries as mild to moderate. He also indicated that she would require ongoing future medical treatment consisting of visits to a general practitioner, medication and appropriate specialist medical services and possible periodic massage and therapy. 65 Dr Richardson gave evidence that the greater the speed at the point of impact of a collision the greater the potential for injury and the lesser the speed the lesser the potential for injury. He said that he did not know if an impact of less than 10 km per hour was unlikely to produce any significant injury. He said that if the impact was less than 10 km per hour then the potential for injury was limited. 66 When cross examined Dr Richardson said that the plaintiff has two different types of headaches. One type is related to her neck and the other type, which is often more severe, involves vomiting and necessitates time off work. He described this second type as vascular headaches. He gave evidence that the plaintiff has had vascular headaches both before and after the accident. At one point in his evidence he said that he did not know whether the plaintiff's headache accompanied by vomiting in December 2000 was accident related. He later gave evidence that it was reasonable to say that it would be difficult to relate it to the accident which by December 2000 was some seven months earlier. He also gave evidence that he did not think that the severe headaches accompanied by vomiting that the plaintiff complained about to Mr Anderson in early September 2002 and to which he referred in his report dated 23 March 2003 were accident related. After having given all of that evidence Dr Richardson agreed with the proposition that it was reasonable not to attribute the plaintiff's headaches or vomiting to the accident. 67 In cross-examination Dr Richardson agreed with the proposition that neck pain was not a feature of the plaintiff's presentation for about 12 months after July 2000. That proposition is not to say that she did not complain about neck pain on occasions. Dr Richardson agreed that the plaintiff's neck movements were full in May 2000 and also that her neck
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had no sign of degeneration. He also agreed with the proposition that soft tissue injuries are at their worst in the first few days post trauma. 68 In Dr Richardson's report dated 9 December 2003 he identified pain at C3 and C4 when he examined the plaintiff on 6 November 2003. His examination of the plaintiff on 5 May 2000, the day after the accident, identified pain at C5, C6 and C7. This was the first mention of C3 and C4. He said that any muscle pain may well be felt in segments above and below. I take it that he meant above and below the actual location of the injury. However when it was put to him that he would have difficulty relating the C3 and C4 pain to the accident he said "possibly, probably". 69 In cross-examination Dr Richardson was asked and said: "In fact she didn't make any complaints to you for a significant period of time in relation to a neck pain and I think we agreed really up to about mid-2001 it was all the low back pain and you would have difficulty attributing her neck problems such as they are now to that episode of trauma, particularly if I can suggest to you that it was a relatively minor one, if it was a relatively minor one? --- I think you're correct there. I find it difficult to add to." 70 There are two comments that should be made about this question and answer. The first is that the way the question was worded did not necessarily exclude the fact that the plaintiff had actually complained of neck pain on prior occasions. The second is that the use of the word "now" in the question made it clear that it was Dr Richardson's opinion of the current position that was being sought. In light of the wording of the question in context with earlier questions on the point I took his response to simply but importantly mean that he could not attribute the plaintiff's current neck problems to the accident. I did not take Dr Richardson's response to mean that the plaintiff had not suffered a soft tissue injury to her neck as a result of the accident. 71 In cross-examination Dr Richardson gave evidence that the plaintiff was quite likely to have pain from time to time in the area of her facet joints because of the degeneration. He said that the plaintiff had had back pain prior to the accident as a result of the degeneration in her lower lumbar spine. He described the degeneration as fairly significant in a person of the plaintiff's age and was of the opinion that such degeneration could cause problems in its own right. He agreed that tree lopping could aggravate the plaintiff's degenerative condition. Indeed reference was
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made in his report dated 7 May 2002 that the plaintiff had complained to him that she had aggravated her back when tree lopping on 23 March 2002. 72 Dr Richardson said in cross-examination that he thought that the plaintiff could not compete in the open work force because of her back pain. I note that he did not use neck pain as a reason. When it was put to him that the back pain is due to the plaintiff's pre-existing degeneration in the lumbar spine he said that: "It may be partially due to that; it may be partially due to the injuries that she has not necessarily recovered from. I don't know." 73 Having given all of that evidence in cross-examination counsel for the plaintiff properly re-examined Dr Richardson on some of his responses on the plaintiff's injuries in the context of the issue of causation. Dr Richardson was essentially taken through some of his various reports and notes which refer to the plaintiff's complaints on neck pain, back pain and headaches. When he gave the following evidence in re-examination he did not seem very confident or assured and in my view did not give his evidence in a reliable manner. 74 When asked of the origin of the plaintiff's neck pain and headaches and whether he had a view he said, "well, I must of had a view that it was related to the motor vehicle accident". When asked whether he had no difficulty in attributing the neck pain and the headache to the accident he said, "I believed that the neck pain bared some relationship to the accident". When asked in the context of neck pain and headaches complained about by the plaintiff when he reviewed her on 2 November 2002 whether he related those to the accident at that time he said, "I presume so, yes". When further asked on that point whether it is still his view today that the cervical pain relates to the accident he said, "well, I think it does". In re-examination Dr Richardson was also asked whether he thought there was a relationship between what he found in the cervical vertebrae 3 and 4 and the injury sustained in the accident he said, "I think its related to the accident". 75 In re-examination he was also asked whether he had formed a view whether there was a relationship between the non-vomiting headaches and the accident and he said, "I think the non-vomiting headaches probably come from something going on in the cervical spine rather than the other headaches where are vascular problem headache". This confirmed other
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evidence given by him that the vascular headaches were not accident related. 76 The plaintiff was referred to Mr Anderson by Dr Richardson. The plaintiff attended on Mr Anderson on 28 September and 12 October 2001, 23 January and 10 September 2002 and 7 November 2003. 77 After Mr Anderson first saw the plaintiff on 28 September 2001 he reported to the plaintiff's solicitors on 3 October 2001. With respect it seems to me that the report is deficient on the plaintiff's pre-accident history. That is particularly relevant given that he first saw the plaintiff about 18 months after the accident. The history set out in the report simply refers briefly to the plaintiff's schooling and that she injured her neck in a motor vehicle accident in 1986. Of course the plaintiff's history was far more complex and relevant than that. For example she had back pain and headaches before the accident. There is no mention or indication of any consideration of any pre-existing degeneration in the plaintiff's lumbo-sacral spine and its part in the plaintiff's injuries and symptoms either alone or in combination with the accident. 78 When Mr Anderson first saw the plaintiff she complained of pain in her cervical region with associated headaches and pain referred to the shoulder girdle. The range of movement in the cervical spine was rotation to the left in the neck at one half the normal range and rotation to the right at three quarters of the normal range. Mr Anderson gave this an impairment rating of 10 per cent. 79 The plaintiff also complained of low back pain in the forth and fifth segments of the lumbar spine. On examination all of forward flexion and extension and rotation and lateral flexion were one half the normal range. Straight leg raising was 70 degrees in both lower limbs without neurological abnormalities. Mr Anderson assessed this impairment at 15 per cent. 80 Mr Anderson recommended that the plaintiff undertake exercise and in particular swimming to promote her physical recovery. He also recommended that she reduce her level of medication for pain relief. He was particularly concerned about the amount of Panadeine Forte that the plaintiff was consuming because its long term use caused drug dependency. 81 On every occasion that Mr Anderson reviewed the plaintiff the ranges of movement of each of her cervical spine and lumbar spine did not vary to any material extent from when he first examined her. In a
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report dated 29 January 2002 Mr Anderson stated that it was difficult to foretell the severity of a long term disability in the work force. He further stated that his experience with neck and lumbar injuries was that symptoms may persist resulting in premature retirement by losing between five and 10 years of the normal working life. With respect this could only be taken as a general comment because Mr Anderson did not set out any reasons why that was actually a possibility in the plaintiff's case. In the same report he stated that he expected the plaintiff's condition to improve during the current summer weather pattern and stabilise such that she would return to a reasonable lifestyle. He estimated the disability of the plaintiff's cervical spine and shoulder girdle at 10 per cent and the disability of her thoraco-lumbar condition at 10 per cent. He described the plaintiff's overall injuries as mild. 82 Mr Anderson report dated 7 October 2002 was the first occasion that he made any reference to the plaintiff's degenerative condition. He referred to it in the context of future working capacity. He stated that given the plaintiff's disabilities in her cervical and lumbar spine she may not be able to work beyond 55 years because the advancing degenerative features would be accelerated by her accident status. Mr Anderson stated in his final report dated 12 November 2003 that the plaintiff had a cervical disability of 10 per cent and a lumbar spine disability of 20 per cent. He again expressed the view that the plaintiff's working life could be shortened and that her expectations of promotion may be compromised. When Mr Anderson was cross-examined in why his disability assessment of the plaintiff's lumbar spine had gone from 10 per cent to 20 per cent when her presentation had not materially changed he readily put it back down to 10 per cent and said that he was perhaps being over generous at that stage. 83 With respect I found that when Mr Anderson gave his evidence he was prone on occasions to be somewhat general or vague and he seemingly formed opinions without setting out a comprehensive factual basis for doing so. On one occasion Mr Anderson would not consider a question properly asked on the issue of causation in relation to the plaintiff's neck. 84 On my assessment of Mr Anderson's evidence he was clearly concerned that after what he did not regard as a serious accident the plaintiff was still very much subservient to the medical model of management ie, drugs, physiotherapy and control, some 18 months or so after the accident. He said that he tries to cut down the drugs and give people some degree of independence. He added that the plaintiff
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responded to this type of treatment. He gave evidence that the plaintiff was in a medical trap and he tried to free her up and she responded. 85 When Mr Anderson explained his opinion on the plaintiff's situation he made the distinction between impairment and disability. He said that impairment was an assessment of the medical abnormality associated with disease or injury and that disability was designed to record the status of an individual in terms of the individuals perception of their medical condition and how the medical condition affects their ability to function in the community. Disability is not a medical judgment. 86 Mr Anderson expressed the view that in the plaintiff's case her perception of her disability has changed over the time that he has known her. He said that she was now beginning to realise that she was less disabled than when she first saw him even though her physical condition ie her impairment status, remained similar over the same period. 87 Professor Harper saw the plaintiff on 17 March 2003, about three years after the accident, and on 3 November 2003. In a report dated 18 March 2003 Professor Harper stated that when he first saw the plaintiff she complained of constant upper back and neck pain, headaches which started in her neck and then radiated to the back of her head and to the left frontal region and low back pain. She also complained that the headaches increased from dull to pounding and when severe led to vomiting. She said that this had been occurring recently. She said that mild headaches occurred daily and severe headaches occurred about once every one and a half months. 88 Professor Harper obtained an extensive history from the plaintiff. I note that the plaintiff complained that as a result of the accident she had stopped walking her dog. Both Dr Richardson and Mr Anderson gave evidence that the plaintiff was capable of walking her dog and that it would be good for her. 89 When Professor Harper examined the plaintiff on 17 March 2003 he noted that she was overweight at 85 kg. Her posture was poor due to a cervical hump. Her lower back range of flexion and extension were both reduced. There was tenderness over L4 and L5 and over facet joints on the right in the lower segments. There was also tenderness over thoracic spines T7-T11. Her range of neck movement was moderately reduced. Extension and flexion were both between 50-75 per cent of normal. 90 Professor Harper stated in his report dated 18 March 2003 that at that time he thought that the plaintiff was exceeding her work capacity
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working full time as a crime analyst. He thought that her current duties were aggravating symptoms because of the lack of variation in her tasks due to continued computer work. He expressed the view that the plaintiff had a reduced competitiveness in the open work force and that her disability may compromise the length of her working career and may lead to retirement by 55 years of age. He described her injuries as amounting to a mild to moderate residual disability of the lumbar spine and cervical spine. 91 After Professor Harper saw the plaintiff on 3 November 2003 he reported on the same day that she had considerably improved upon returning to work after her exercise programme aided by a number of ergonomic improvements at her work place. He stated that upper back and neck pain, mid back pain and low back paid had all improved and that headaches were now less severe and less frequent. He noted in his report that the plaintiff had resumed walking her dog for approximately 10 minutes at a time. He also noted that she was now going out more often. 92 Professor Harper set out the following conclusions from his review of the plaintiff on 3 November 2003 as follows. The plaintiff had a definite symptomatic improvement since he had seen her in March 2003 but she continued to have symptoms relating to her neck, thoracic and lumbar spine. He was now of the view that she was capable of working full time as a crime analyst provided she had the ergonomic modifications. He anticipated further improvement in the plaintiff's work capacity. He qualified this by saying that she may continue to experience a degree of reduced work capacity for the foreseeable future affecting her endurance for static postures and demanding physical activity such as repetitive bending or heavy lifting. He also stated that she should avoid prolonged uninterrupted periods of sitting at the computer. On all of the evidence the plaintiff's employer has accommodated these qualifications and restrictions. Professor Harper also stated that he no longer anticipated the plaintiff's condition to require premature retirement. He recommended that she permanently maintain a regular exercise programme which would require access to a pool and gym facilities. He did not think that physiotherapy would be necessary. He also advised weight loss. He also felt that it would be of benefit for the plaintiff to employ relaxation techniques to minimise any contribution stress made to the perpetuation of her current symptoms. He recommended that she consult an occupational therapist in this regard. He did not see any indication for further investigations or specialist referral.
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93 When Professor Harper was cross-examined he was asked whether it would be very unlikely for the occupant of a car to receive any significant injury if it was impacted from behind by another car travelling at 5 km to 10 km. He agreed that generally that would be the case but not necessarily so in every specific instance. Professor Harper gave evidence that the plaintiff's history of previous musculo-skeletal symptoms relating to her neck and mid and lower back made her susceptible. The plaintiff did not tell Professor Harper that she had had low back pain in 1998/1999 which required her to take time off work. However on being informed of this Professor Harper did not see the need to change his opinion. He thought that the plaintiff's history supported the conclusion that her pain related to the accident. He said that in the plaintiff's case we have someone who has had symptoms previously who now is subjected to a further injury from which time she has continuously experienced her current symptoms.
94 Professor Harper gave evidence that the plaintiff's low back pain in 1998/1999 could have been related to her degenerative condition and that such a degenerative condition could cause problems in its own right without a motor vehicle accident. He also agreed that it is not necessary to be involved in a motor vehicle accident to get back or neck pain. 95 Professor Harper gave evidence that symptoms from soft tissue injuries do not necessarily improve over time. He said that the plaintiff's symptoms were aggravated by her activities. In particular sitting for a prolonged period of time aggravated her symptoms. 96 The plaintiff told Professor Harper about the motor vehicle accident in April 2002. She told him that she was in a queue of traffic at a T-junction and started off and hit the car in front of her. The impact was described as a little tap. She told Professor Harper that there was only minor damage to her car and no damage to the other car. She felt ill and took two to three days off work. She told Professor Harper that she felt that she was back to the same condition she was in immediately before this subsequent accident about one month after it had occurred. Professor Harper gave evidence that in order to assess the significance of this subsequent accident he had to rely on the plaintiff's account. Dr Richardson said the same thing when he gave his evidence. 97 Professor Mastaglia, a consultant neurologist, saw the plaintiff on the one occasion on 5 August 2003. In his reported dated 5 August 2003 he stated that the plaintiff sustained a severe jolt at the moment of impact. Professor Mastaglia's report shows that the plaintiff complained to him
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that in spite of physiotherapy and hydrotherapy in the first few months after the accident her neck pain and headaches persisted together with pain in her thoracic and lumbar spine. The plaintiff told Professor Mastaglia that her symptoms have since persisted and that she still had constant bi-lateral aching in the neck and in both shoulder areas as well as a constant aching pain in both the upper and lower back. She also told Professor Mastaglia that she had also continued to have headaches on most days together with more severe headaches which are associated with nausea and at times vomiting which can occur about once per month and may last for three to four days at a time. Professor Mastaglia stated in his report that there was no history of migraine headaches prior to the accident. 98 On examination the plaintiff's neck movements were restricted to approximately 90-95 per cent of normal in all directions. Movement of the lumbo-sacral spine was only mildly restricted. Professor Mastaglia concluded that the plaintiff suffered a significant soft tissue injury, principally to the cervical spine and to a lesser extent the thoracic and lumbar areas of the spine and that she had persisting symptoms relating to these injuries in each of these areas particularly the neck. 99 The plaintiff told Professor Mastaglia that she had "put her career on hold" as a result of her injuries from the accident. He expressed the view in his report that the plaintiff would be able to continue working in her present position but that she would remain incapacitated for the foreseeable future. He believed that she would probably have difficulty competing in the open work force. He expressed the opinion that the plaintiff has a residual disability of 7.5 per cent in relation to the neck based on the proposition that the headaches, including the migraine headaches relate to the accident. In cross-examination he said that he would reduce this to 5 per cent if headaches were taken out. Professor Mastaglia gave evidence that he thought that the plaintiff's headaches were attributable to the accident because she had not suffered from migraine headaches including vascular headaches prior to the accident. He also said that the history he obtained from the plaintiff was that she had suffered from headaches on most days since the accident. He also stated in his report that the plaintiff has a residual disability of 5 per cent in relation to the back. He described the plaintiff's neck injury as being mild to moderate and her back injury as being mild. 100 Professor Mastaglia stated in his report that it is possible that at some stage in the foreseeable future the plaintiff may require cervical facet joint or greater occipital nerve blocks for her nerve pain and headaches.
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101 Professor Mastaglia was cross examined about the history given to him by the plaintiff on headaches prior to the accident. He said that there could have been some misunderstanding by the plaintiff because his question was had you had migraines before meaning headaches with nausea and/or vomiting and the answer was no. He said that maybe the plaintiff's understanding of her headaches was that they were not migraine headaches. He said that he did not probe the plaintiff any further at the time. He gave evidence that if the plaintiff did have migraine headaches before the accident then he would have to consider reversing his opinion but before doing so he would want to know if there had been change in their frequency or severity since the accident.
102 Professor Mastaglia was not aware that the plaintiff had pain in her lumbar spine before the accident. When informed that the plaintiff had had low back pain in 1998/1999 he said that it did not change any of his opinions because it was not immediate enough to the accident. 103 Professor Mastaglia was asked in cross-examination whether he thought that an impact of less than 10 km per hour could cause lumbar spinal symptoms lasting for more than three and a half years. He said that he would not rule it out if the person had some pre-existing pathology that might have been reactivated. 104 The plaintiff attended on Dr Saunders on four occasions and he provided reports dated 12 December 2000, 23 July 2001, 21 May 2003 and 19 November 2003. Dr Saunders was the first specialist seen by the plaintiff after the accident. When the plaintiff first attended on Dr Saunders she told him that as a result of the accident she "did her neck again" and had an immediate headache. She said that she had never had trouble with her lower back and that it was very painful to walk. She also had some mid-back problems. In a report dated 12 December 2000 Dr Saunders stated that on examination the plaintiff's neck was short and thick with tenderness wide out at the level of the sixth and seventh cervical vertebrae. She could flex and extend her neck normally without pain and rotation to the left was 90 degrees and pain free. Rotation to the right was less than 90 degrees with pain at the limit. Lateral flexion to the left and right caused pain at the limit. On examination of the shoulders there was no deformity, tenderness or spasm. The plaintiff complained to Dr Saunders of aches and pain in the neck and shoulders. She also complained of severe headache about one or twice a month which may cause her to vomit. She also complained of low back pain.
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105 Dr Saunders made a number of conclusions after seeing the plaintiff. He stated that her main problem was back ache from sitting for long periods. He noted that she had well marked degenerative disease of the lower lumbar spine. He noted that she was a big woman and overweight. He stated that the natural history of degenerative disease of the lumbar spine was one of progress, particularly when present in one so young. He added that this degeneration was not due to the accident but had been aggravated by the accident. He stated that the plaintiff had a 5 per cent loss of the non-economic function of the lumbar spine. Dr Saunders recommended that the plaintiff continue with swimming and medication. He also stated that she should try to lose weight and increase her physical activity.
106 Dr Saunders set out in his report the medication that the plaintiff was taking at the time. The medication taken by the plaintiff at the time included thyroxin. She also took Panadeine Forte up to three times per day and two at night to sleep. She also took Celebrex 200 mg and Zantac to relief the effects of the Celebrex. She also used head packs. When Dr Saunders gave evidence he said that at this time the plaintiff was taking large doses of medication which was more than sufficient to cause nausea. He also gave evidence that when he examined the plaintiff on this occasion there were very few clinical signs of symptoms in her neck which made it difficult to understand how she could have such severe symptoms. Dr Saunders also gave evidence that when he saw the plaintiff on this occasion her neck was not so much of a problem. 107 Dr Saunders stated in a report dated 23 July 2001 that the present symptoms complained of by the plaintiff consisted of some pain across the lumbar area and neck and should pain. The plaintiff told him that she believed that her neck and shoulder pain may be worse than the back. It appeared to be aggravated by time spent at the computer. At that time the plaintiff was working eight hours per day. 108 On examination the plaintiff's neck projected forward as a result of the thoracic kyphosis. She was able to flex and extend her neck normally without pain. Rotation to the left and right was almost 90 degrees and pain free. Lateral flexion to the left and right was within the normal range and pain free. Her shoulders were slumped forward as a result of the thoracic kyphosis. There was no spasm or tenderness and the plaintiff was able to flex both shoulders through 100 degrees and 80 degrees without pain. Dr Saunders gave evidence that the plaintiff's improved range of movements was inconsistent with her neck injury getting worse.
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109 Dr Saunders stated in his report dated 23 July 2001 that at that time the plaintiff's pre-existing degenerative disease of the lower lumbo-sacral spine represented a loss of some 5 per cent of the non-economic function of the lower spine. He further stated that such degeneration pre-existed the accident and he regarded the accident as relatively minor. He concluded that any disability the plaintiff suffered as a result of the accident was only 30 per cent due to the accident.
110 Dr Saunders stated in a report dated 21 May 2003 that the plaintiff told him that she had been involved in another vehicle accident on 22 April 2002 since she had last seen him. He stated that when he enquired about details of the accident the plaintiff became aggravated and demanded to know why he required the information. Dr Saunders stated in this report that the plaintiff told him that when she has major problems she can't sit, can't walk and has difficulty breathing and has pains from her neck down to her back. She added that she had spasm in her back and also headaches at the back of her neck which then went to the front of her head and sat there. She said that they caused her to vomit and that they may last three to five days. She added that on occasions she had to have up to a week off work. 111 When Dr Saunders saw the plaintiff for the preparation of this report she told him that she had been on medication constantly since he last reviewed her. She told Dr Saunders that she currently took six to eight Prodeine a day. She also took two Panadeine Forte at night. She added that when he condition got back she changed from Prodeine to Panadeine Forte and took six to eight of them a day. Dr Saunders stated in his report that such large doses of codeine could produce nausea and vomiting. The plaintiff also normally took one Vioxx and was presently taking two Nexium tablets per day for gastric acidity. 112 When Dr Saunders gave evidence he said that he found it difficult to account for the plaintiff's vomiting type headaches other than the fact that she was taking large amounts of medication containing codeine which was likely to produce vomiting and nausea and rebound headaches. 113 Dr Saunders stated in his report dated 21 May 2003 that in his last report dated 23 July 2001 he found that the plaintiff was able to flex and extend her neck normally without pain. Rotation to the left and right was almost 90 degrees and pain free and lateral flexion to the left and right was within normal range. However these movements were now grossly limited on direct examination and he noted inconsistencies with the indirect observations carried out during the interview. Dr Saunders gave
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evidence that he did not give any percentage disability in relation to the plaintiff's neck in his report dated 23 July 2001 because he did not think that she had any residual disability of the neck. He said that on that first occasion that he saw the plaintiff she had very few symptoms. He also gave evidence that the plaintiff's post accident history of a good range of movement when he first saw her to having a restricted range of movement later was not consistent with a whiplash associated injury continuing. As at 21 May 2003 it was Dr Saunders' opinion that the plaintiff's neck symptoms were due to a combination of the second accident on 22 April 2002 and work related stress to which he referred in his report. 114 When Dr Saunders examined the plaintiff's back in May 2003 he noted that while the plaintiff was able to flex her back she could only reach to just below her knees as this caused too much low back pain. Extension was much less than normal and was accompanied by acute exclamation of pain. Rotation to the left and right and lateral flexion to the left and right were both limited. Indirect observations made of the plaintiff during this attendance were inconsistent with the results of the clinical examination. During the attendance the plaintiff sat comfortably in a chair and was able to get in and out of it and on and off the examination couch without evidence of pain or distress and walked with a normal gait and heel toe walking was normal. Dr Saunders stated in his report dated 21 May 2003 that the plaintiff's lower back appeared to have deteriorated since he last saw her. He thought that this was due to an inconsistency in her rehabilitation programme. He also thought that the second accident on 22 April 2002 had contributed to this deterioration despite the plaintiff saying that she was back to her pre-second accident condition after one month. It is clear from all of the evidence that Dr Saunders considered that both accidents were relatively minor and took this into account when forming his opinions. |