Banham v Greenwood - [2000] WADC 200

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: BANHAM -v- GREENWOOD [2000] WADC 200

CORAM: HH JACKSON DCJ

HEARD: 29 AND 30 MAY 2000

DELIVERED : 14 AUGUST 2000

FILE NO/S: CIV 277 of 1999

BETWEEN: MAUREEN BANHAM
Plaintiff
AND
TANIA LOUISE GREENWOOD
Defendant

Catchwords:

Motor vehicle accident - Assessment of Damages

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943 s 3A - s 3E

Result:

Damages assessed in the sum of $34,670.65

Representation:

Counsel:

Plaintiff: T N Cullity
Defendant: J R Brooksby

Solicitors:

Plaintiff: Trewin Norman & Co
Defendant: Greenland Brooksby

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Nutbrown v Sheffield Health Authority (1993) 4 Med LR 187
Keys v The John James Memorial Hospital Limited [1998] ACTSC106
Wylde v Ariazza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997

HH JACKSON DCJ:

Background

This matter comes before me for assessment of damages only, liability being admitted.
The plaintiff was the driver of a motor vehicle which it is admitted was stationary at traffic lights on Morley Drive Dianella on 11 October 1997 when the vehicle was struck from the rear by a motor vehicle driven by the defendant.
The plaintiff is a female pre-primary assistant, or teacher's aide, who was born on 25 January 1943.
She claims general damages, economic loss and future medical expenses essentially arising from neck, mid-thoracic and lumbar pain and headaches.

The Accident

The plaintiff described having stopped after the traffic lights turned amber and "a little while afterwards I was hit from behind and … my car was pushed … into the oncoming traffic". She had not seen the vehicle approaching from the rear.
"Was there much damage done to your vehicle? --- Costwise it wasn't but I just sort of felt to me it was a lot of damage, but not as much as the other girl's car.
What sort of damage was there done? Can you recall? --- The boot was pushed in and over the wheels it sort of got - there was quite a crease just over the wheels.
Did you notice what damage had been done to the other person's car? --- Yes. The radiator seems to have been pushed in. I didn't go right up to the car but from a distance that's what appeared to happen.
…
At the time of the accident or immediately after the accident, did you have any sort of symptoms of bodily pain of any sort? ‑‑‑ I had a very severe headaches virtually straight after the accident and I was shaky. I guess I was suffering from shock.
…
Leaving, how did you get away from the scene? --- I went with the tow truck driver in his truck.
Did you go to your son's work? --- We went to my son's work and then we picked up his car."
Cross-examined, the plaintiff denied that she had braked heavily when the traffic light turned amber and said she was not aware of the cost of repairs to her vehicle. She agreed the estimated cost had been $1,000 and said the rear wrap-around plastic bumper had been damaged and "the wheel crunched in". She denied the collision had occurred at very slow speed and was only a nudge or that her vehicle had only been pushed forward a foot or two. Her vehicle was a virtually new Hyundai. The other vehicle was more badly damaged.

Accident - Defendant's Evidence

The defendant called both the defendant and her mother who was a passenger in her vehicle.
The defendant (Mrs T L Tadei) has married since the accident.
She is employed as a medical scientist in microbiology. She described the collision:
"That piece of road is quite straight so you can actually see that intersection from quite a distance back. There are intersections. It sort of has two intersections quite close together, at which the lights act simultaneously. As I had seen the lights had been green for quite a while as we were approaching the intersection, I had perhaps already started to decelerate.
Had you maintained a steady distance between yourself and the other vehicle? … Yes.
… As we just approached the lights, the lights turned amber. I was already starting to decelerate or stop for the first set of lights. As it turned out, so was the plaintiff and as a result I had to brake a little more heavily than what I perhaps should have. Then I just connected with her.
Well, the car in front of you braked, did it? --- Yes, she broke very heavily.
Right, and you also braked and what happened? --- We were coming to a stop and, I mean, I had been travelling from quite a distance behind and I honestly believed that I would not even connect with her until the last second.
All right. There was an impact between the two vehicles, was there? --- Very minor.
Right? --- A very minor impact.
…
Then she came back to me and then I got out of my vehicle and I was sort of approached and was sort of informed that, 'We sort of broke heavily because there was a red light camera on that intersection.'
…
Did Mrs Banham say anything to you about what had happened? --- She wasn't - she wasn't concerned about the car or her state. She was more concerned about activating the red light camera at the time.
Can you remember what she said? --- I remember there was a red light camera on that intersection. That's why I did try to stop for the first set of lights rather than go through.
…
Were you aware of Mrs Banham's vehicle as far as the damage was concerned? --- Yeah, I had to get out of the car and see it because we were pretty close, perhaps I really just perhaps nudged her forward a metre or so.
…
A metre maybe? --- A couple of metres.
Or a couple of metres.
BROOKSBY, Mr: And what was the damage done to the rear of her vehicle? --- Her back bumper …
Probably I sort of just pushed it under a little bit.
CULLITY, Mr: … Were you having a conversation about the impending marriage with your mother in the car just before the accident? --- No, I was not.
You weren't. So if your mother said that you were talking about the marriage and that you weren't concentrating, that would be quite untrue? --- I'm sorry, I always concentrate when I drive. We might have been having a conversation, but - - -
You might have been having a conversation? --- Well, I can't tell you. It was 3 years ago.
…
What was the damage to your car? --- It's just really my front bumper. That had to be replaced. It was plastic, so it just caved in.
…
The headlamps were replaced, were they? --- They sort of got a little bit cracked in the accident, yes.
… the bumper … got pushed back into the headlights.
… And a little bit of the front bumper just took a little bit of the impact, so that had to be panel beaten and sprayed …
…
But it was just a little nudge? --- Yeah, just the bumper basically did most of the damage … I sort of went under her bumper, if you like.
…
Right, Did you see whether or not the wheel arch over the rear wheel was creased? --- In her car?
Yes? --- I didn't think so.
Did you look? --- Yes, I did look …
I did have a look at her car and as far as I could tell, it was just rear end damage.
…
And you say that the car was pushed forward a couple of metres? --- … she was just in the process of stopping. I probably just carried her forward a metre … I'm not sure …
So could you have pushed her forward a car length? --- Half a car length.
Mrs Tadei's mother, Mrs L A Greenwood, gave evidence.
"… We were following a car and we were running into - coming up to the lights and they changed to yellow. The car in front of us braked quite heavily and the reaction time my daughter started braking straight behind her and as we got closer at the very last minute we just bumped into the back of the car.
Right. Were you watching what was going on? --- Yes I was …
And you came into contact with the vehicle in front, how would you describe the impact? --- We bumped into the vehicle in front and knocked it forward a couple of feet.
Did you get out of the car and talk to the driver of the vehicle in front? --- Yes, I did. I got out because my daughter was then a little bit upset and I went to the car in front and just asked the lady was she okay and she said 'Yes'. …
Did you see the damage that was done to the vehicle in front? --- Yes.
How would you describe that? --- The back bumper was just a little bit knocked in, that was all.
…
CULLITY, Mr. --- Did you say that she (the defendant) was getting married in a couple of weeks and she probably wasn't concentrating --- No, I did not say that, no.
Well she was getting married in a couple of weeks? --- Yes, she was.
…
You said that you were a little bit busy about the wedding, is that what you said? --- Yes.
…
Well, she didn't say that she braked suddenly, did she? --- She said she braked.
… You say that it was only a couple of feet that she was pushed forward. Is that right? --- Yes.
Not a metre or a couple of metres? --- No, no. It was a couple of feet.
…
H H JACKSON DCJ: … at the moment of impact was her vehicle stationary or was it still moving forward? --- It was just about to stop.
CULLITY, MR: Well, was it stopped or just about to stop?
…
… she was braking and we were braking at the same time.
You don't really know whether she was stopped or not, do you? --- May be just.
May be just? --- She hadn't been stopped at the lights, that's for sure. We were both travelling. We were both braking at the same time.
So what was the damage done to your vehicle? --- Front headlights and the little part near the front of the bonnet.

Claim - The Plaintiff's Evidence

Having reported the matter to police and suffering a very bad headache, the plaintiff saw a general practitioner. It was a Friday. Dr P Webster, her usual doctor, was not at his rooms so her brother took her to see the locum of his GP, Dr G Claydon. She was prescribed rest and pain killers and x-rays were ordered for the following Monday when she also saw Dr Claydon, still very sore and with a headache. She was having difficulty walking and her whole spine was sore. She had pain in the right leg and ankle also.
Dr Claydon prescribed Panadeine Forte and Voltaren with rest and referred her to a physiotherapist, who supplied a soft collar. She used up 11 weeks of sick leave credits, returning to work at the start of the 1998 school year. She rested, had hydrotherapy and physiotherapy, took pain killers, had several visits from rehabilitation specialists and as a result acquired a new chair and desk and continued to see Dr Claydon regularly. She returned to working the same hours as before in late January or early February working 29 hours per week over five days. She remained at work until taking a week off in May. Her role was to set up equipment, prepare for activities and participate in pre-school activities such as mat sessions, music, physical education and table activities such as playdough and painting. Being pre-school children the furniture and chairs are low and small and using them and sitting on floors "is very difficult". Her back and neck become sore. She was asked about her condition after returning to work in 1998:
"I find it difficult to stretch up above my head for any length of time, and I've found that I couldn't lift some of the things that I used to lift before, and I can't bend over the tables and things for any length of time. Sitting for any length of time or standing for any length of time everything seems to jam up and the pain is worse. I have pain every day but that adds to it."
She continued with twice-weekly physiotherapy which provided temporary relief.
In May 1998 she assisted a child to get down from a playground cargo net and her back became "very, very sore". She took a week off work, saw the doctor, rested and had "a lot of hydrotherapy". After a week, although still sore, she returned to work.
During the school year especially, she takes about two Panadeine Forte daily and Voltaren. In 1998 she did hydrotherapy and followed a programme prepared by her physiotherapist.
The plaintiff worked in 1999 taking another week off in May and then one term off on long service lave. She took the week off in May with chest pain radiating into her arm. A report from Dr Hands of Western Cardiology, dated 18 October 1999 tendered by consent as Exhibit 7, excludes any cardiac origin from the plaintiff's chest wall symptoms.
She took third term off, in all 12 weeks, and visited her daughter overseas, taking with her some medications and continuing her exercise programme. However, she underwent no physiotherapy. She said she suffered a lot of pain in that time although she rested a lot, which gave relief. She returned to work from September 1999. She was asked:
"Is the fact that you're most of the time dealing with 27 children have any effect on your symptoms? --- Yes. I have to constantly think of different strategies to deal with different situations with children and we do a lot of different things every day with the children and sometimes children need to be restrained and I have difficulty in that and I sometimes have to call for assistance when you've got autistic children there in the class. By the end of the day I'm suffering from fatigue and the pain is quite strong some days when I go home.
… how would the pain compare on an average Monday to say an average Friday? --- It's pretty sore by Friday. It gets worse as the week goes on. By the end of the term it's quite bad too. Generally the first week of my holidays I have to do a lot of resting to catch up."
Her employment tasks for six and a half hours per day for four days include cutting and photocopying learning materials, operating the video, scrubbing paint and other materials off surfaces, demonstrating and assisting with motor skills and sport and physical education in the playground, which she finds difficult. On Fridays she prepares for the following week.
The plaintiff also took a week off work in early 2000 whilst her husband was hospitalised. Sitting at the hospital caused considerable discomfort as did caring for him after discharge.
She said her husband, now retired, had had to do more domestic chores such as vacuuming, hanging washing, gardening and chopping vegetables as a result of her accident. She said she still does some dressmaking and embroidery but in short time periods to avoid symptoms. After work she rests and cooks a meal but little else whereas previously she sewed well into the night. She said she had intended to continue at work until 60, but is now "really struggling with it. I'd like to think I could but … I don't think I can." She is still taking Panadeine Forte, Voltaren and sometimes anti-depressants, sees a general practitioner about monthly, attends hydrotherapy weekly during school terms and attends physiotherapy weekly.
The plaintiff had been involved in a motor vehicle collision in 1987 after which she suffered low back, shoulder and neck symptoms. She said that after two years her symptoms were almost finished subject to an occasional and relatively minor flare-up which was resolved by Panadol, rest and exercise. In 1993 she suffered some low back bruising and soreness following an accident with a trolley. She said that they had resolved save for minor recurrences on odd occasions.
Dr Webster had treated her in respect of those matters and prescribed Panadol for about two years.
She was asked by Mr Brooksby to describe her range of neck movement and demonstrated a range of only about 30°, which she said had been the position since, but not before, the collision. Prior to the collision, she said she had only occasional slight restriction to the left because of stiffness. At present the pain, soreness and restriction is worse to the right.
Asked about bending, she said she can touch her knees, perhaps further, but only with a lot of pain.
A videotape was then played to the Court, Exhibit 4. The film was taken on 20, 23, 28 and 30 March 2000. It was put to the plaintiff that the film showed her twice exhibiting a full range of neck and head rotation to the right freely when driving a car after school on a work day. She agreed but said she had to turn her head, that it hurt to do so and that she turned her shoulder with it. She agreed she could do so sometimes when her neck was not very stiff, but not at trial or very often.
She said she suffered upper back pain daily but only occasionally lower back pain. Bending and stretching may cause low back pain so she is careful.
She was asked about neck flexion. She said physiotherapy helps this but said her neck was very sore at trial and that she could not fully flex. She did not agree that the videotape film showed her fully flexing her neck.
She did not agree that she had exaggerated her symptoms. She said they were better than in the post-accident period but had been on a plateau for about two years, although there are daily variations.
The plaintiff's husband, Mr R J Banham, had retired prior to the accident. He said he had started to do more domestic chores in that time. On the day of the accident, his wife came home complaining of a sore neck and back. She was off work for three months and he took on more of the domestic duties. They had previously done a lot of walking but this was now reduced. After work she comes home drained and rests before assisting with the evening meal. Cross-examined, Mr Banham agreed that his wife sometimes does the shopping on the way home from work.
The plaintiff's evidence was supported by that of Ms J A James, a pre-primary school teacher at Craigie Primary School. The plaintiff had been working with Ms James as her teacher's assistant for about five years, including a period prior to the accident.
"Since she came back to work has there been anything about the duties that you assign to her that's different? --- Yes. I have to accommodate the fact that she can't do all the things that she used to be able to do. So either I take over the duties or I ask parent helpers to assist me.
Prior to the accident how was Mrs Banham as a worker, in your opinion? --- Maureen was able to do anything I asked of her and usually did more than was required.
Is that the case now? Now she finds several duties difficult and I certainly take more than my fair share of the load because there's certain things that she can't do any more or if she can do and tries to do, it's not acceptable for her to be doing it.
Is speed of work a thing that's important in your situation? --- Yes. It usually shows up most on a Friday which is our preparation day and basically the whole following week's preparation has to be done on that one day. We work just Friday mornings. Previous to the accident all the preparation was completed in that time. Now we get through, say, about half of it and I have to complete that Friday afternoon when she has finished for the day.
What about moving from task to task? Have you noticed anything about Mrs Banham in that regard? --- Yes. Sometimes she can't stay at a task for a long period of time. She has to change tasks and eventually go back to finish what she started but has to move around a lot more rather than finishing a task at one time. Also in the classroom she has to sit on an adult-size chair rather than a child chair or on the floor which sometimes we do, so that changes what she - how she moves around the room and where she positions herself.
…
Have you noticed any change before and after the accident in relation to taking work home? --- Well, before the accident I found that Maureen usually had it completed and brought back on time. Now sometimes she comes back on Monday and says, 'I haven't even looked in my basket', and there was, you know, a couple of things to be done. So we have to quickly do that in the morning.
Are there any things in the classroom that are up high or need to be lifted up or what have you? --- We have a storeroom in which we have boxes of our equipment and craft supplies and things. A number of those are certainly up above shoulder height, and we have plenty of pin-up boards where we put our displays which includes either standing from the ground and reaching up high or even getting on a ladder to - - -
All right. How about fractious children? Do you ever have factious children in your classroom? --- Yes. Well, 5-year-olds have their tempers like everybody else and most years you get at least one or two that don't like being told what to do, and certainly those children can try and escape from you rather than being punished.
Yes. Have you noticed any difference in Maureen in relation to those situations? --- Yes. Well, originally she would have done anything to stop them from escaping. Now she has to consider whether she chases them and just stands in their way or whether she calls me or a parent to assist rather than, you know, risking any pain.
Do the children engage in much physical activities such as dancing or physical exercise? --- Yes. We do physical exercise just about every day; phys ed programs and dancing lessons and that sort of thing.
Is Mrs Banham still able to involve herself in that activity? --- She still supervises but she doesn't join in, which is what she usually encouraged because it encourages the children to participate, but she can't participate fully any more.
Does she ever complain to you about pain or being unable to do things? --- She tries not to but I know when she does comment that it's obviously at a pretty serious point if she's prepared to tell me about it. She has indicated that she can't do certain things on a certain day or that she has had a really bad day and will be going home and sleeping.
…
Have you ever noticed anything about her appearance which suggested there might be something wrong with her? --- Yes. There have been periods when she has come in in the morning and seemed very frail and perhaps even vague, as if she can't deal with things that are going on.
On those occasions what do you do? --- Well, I have to compensate. I still have to go on …
If before the end of the year she came to you and said, "Judith, I'm leaving," would that surprise you in the light of what you have seen? --- It would surprise me knowing Maureen because she puts … everybody else before herself but I wouldn't be surprised knowing what she is suffering, if she had to give up work.
…
Do you make any allowances for the fact that Mrs Banham's 57? --- I don't think I've made allowances for her age because she's always appeared young for her age and as long as she's prepared to try things I let it happen, besides the fact that it's part of the job.
Right, yes. Have you noticed any deterioration since earlier this year, for example? --- Not over this year but in the last couple of years we've certainly had to work a lot harder to get the job done.
Does she appear restricted? --- At certain times she appears restricted.
What sort of restrictions mainly are we talking about when you say she appears restricted? --- Well, I mentioned before not being able to sit on the floor on a small chair which has always been part of a teacher of young children's job.
…
And in certain movement activities and chasing the children, she can't move as quickly and I see your point in that it could be part of just being an older person but it's also part of - - -
What you have seen is someone who has slowed down a bit and isn't as quick as they were before? --- Yes.
She supervises the dancing now with the 5-year-olds rather than sort of getting on with it? --- Joining in, yes."

Medical Evidence

Dr G T W Claydon, general practitioner, first saw the plaintiff on 13 October 1997, two days after the accident. His reports are exhibits 5A to 5F. He referred her to physiotherapy for pain management and mobility. She had benefited and he thought weekly visits still justified. The physiotherapist had prescribed a soft collar and TENS machine. He had referred her to rehabilitation providers for assessment and help in return to work.
Initially he reported that the injuries sustained were -
i)       neck pain
ii)      headaches and dizzy spells and ringing in her ears
iii)     thoracic and lumbar back pain and
iv)     right ankle pain.
"A diagnosis of soft tissue injuries was made. An x-ray of her cervical spine and CAT scan of her cervical spine were normal …
Her current condition is fairly static. She still complains of pain and stiffness primarily in her neck, thoracic spine and right leg.
I have given Maureen a medical certificate until the start of the next school term, as it is clear she is not fit to return to work yet.
It is difficult to predict the anticipated period of partial incapacity, except to say it is likely to be very protracted, in view of Maureen having had previous neck, thoracic and lower back injuries.
It is highly possible Maureen may have permanent disabilities in view of her previous back problems and the length of time they took to settle.
… some if not all the injuries are an exacerbation of a pre-existing injury. Approximately 10 years ago Maureen was involved in another motor vehicle accident. At the time she was treated by Dr Webster in Glengarry as well as other Specialists and Physiotherapists. Maureen says the claim was finalised after about 2 years."
On 11 March 1998 Dr Claydon reported:
"She continues to make slow but steady progress with respect to pain and general movement.
On review today, Maureen was feeling a little worse from raking in the garden over the last weekend.
SYMPTOMATOLOGY
Maureen still complains of stiffness and soreness in her neck and upper thoracic spine predominately (sic) with some lower back and right leg pain as well.
EXAMINATION
i)Cervical Spine: Generally fair range of movement in all direction (sic), but with noticeable restrictions particularly in flexion and extension. Palpation all along the cervical spine is reported as tender.
ii)Thoracic Spine: Generally a good range of rotation present. Palpation of the upper thoracic levels seemed to cause more discomfort than the lower levels.
iii)Lumber (sic) Spine: Maureen could flex to where her hands reached her mid shins. Her range in extension and lateral flexion were good. Palpation of the mid to lower lumbar levels reported the most discomfort. Lower limb reflexes were normal. Straight leg raising only to 30% in both legs.
MEDICATION:
Panadol on average 1-2 tablets 1-2 days of the week.
PHYSICAL TREATMENT:
Physiotherapy twice a week with Robin Horne at Seacrest Physiotherapy. Maureen does her own hydrotherapy at Kicks Fitness Centre once a week. Maureen also does her prescribed exercises and walks every second day.
REHABILITATION:
Work: CIH are currently no longer involved.
Maureen continues to work full time. She does find by Thursday her neck, shoulders and lower back feel 'very tight' and needing physiotherapy.
Home:Maureen is managing to do increasing amounts and has even started some gardening and sewing. However, she is still heavily reliant on her husband who does most of the household duties.
SUMMARY:
Maureen continues to make steady progress, however, it is unlikely that she will be symptom free for a long time, bearing in mind Maureen has had a previous similar problem. She still continues to benefit from twice weekly physiotherapy and I think this should be continued for the next six months at least. I feel if she did not have physiotherapy then it would be unlikely that she would be able to do her full work duties."
However, by 26 May 1998 Dr Claydon was reporting:
"Since my medical report to you on 11 March 1998 I have seen Maureen on four further occasions.
SYMPTOMATOLOGY
There has been little change. Maureen still complains of stiffness and pain in her neck and upper thoracic spine, associated at times with headaches and pain radiating to her shoulders and arms. Her lower back still causes pain but to a lesser extent. On the 7th of May she re-exacerbated her symptoms after helping a child down from a cargo net.
EXAMINATION
1)     Cervical spine: Extension and flexion limited. Rotation to the joint increased her neck and thoracic pain.
2)     Thoracic spine: Rotation limited on both sides, with rotation to the right causing right sided thoracic pain. Palpation revealed most tenderness along the mid thoracic spine and right sided para-thoracic area below her right scapula. Palpation of her thoracic spine was more painful than the cervical spine.
3)     Lumbar spine: Maureen was able to flex her knees before experiencing lower thoracic/upper lumbar back pain. Extension was limited to about 5 degrees.
4)     Arms: Abduction of both arms to 90 degrees only before she experienced discomfort along the inner border of both upper arms.
MEDICATION
Currently Maureen is taking one Voltaren a day and two Digesics. It is likely that this will decrease soon, and is possibly partly attributable to the recent flare-up of symptoms.
PHYSICAL TREATMENT
Maureen continues with physiotherapy and hydrotherapy in her own time and she was walking until recently.
REHABILITATION
Work: Maureen continues to work full time although she did have 5 days off work after her recent flare-up.
Home: Maureen is still assisted by her husband.
SUMMARY
Maureen's symptoms are fairly stable now and she is managing to work full time at present. Her reliance on medication is low and she has good support at home.
Physiotherapy and hydrotherapy continue to provide symptom improvement.
As stated in my last letter, it is likely that Maureen will continue to experience symptoms for a long time yet."
On 30 September 1998 Dr Claydon essentially repeated these findings and reported that: "Essentially Maureen's symptoms have changed very little over the last six months, however … she is slowly improving … There is likely to be little change in the foreseeable future. The work she does may aggravate her symptoms but in the long term will have no adverse effects. I also believe continuing to work is good for Maureen's psychological well-being." He agreed in evidence though that the plaintiff had at times "found it pretty hard going and we have even initiated anti-depressant medications at times". Her condition remains fairly static with considerable discomfort.
He described her as a very diligent patient who had "battled on fairly courageously". There was no doubt her symptoms were exacerbated at work and if she decided to retire he would support her decision.
Cross-examined, Dr Claydon was asked whether he would agree that the position today is, in regard to the plaintiff's range of movement, significantly worse than February 1998.
"I would assess it as being about the same. I bear in mind that on some accounts in my notes, she might have good range of movement, but at other times she doesn't, so I'm only able to look at the whole picture and see how Maureen has fared over the years. I've never found her to be inconsistent, no.
Well, does she now have a fair range of movement in all directions in the cervical spine? --- At times she does have a fair range of movement, yes.
All right, and does she have a good range of movement in the thoracic spine? --- Yes.
So what's your diagnosis of her problem: --- The same as it's always been … which is she has had soft tissue injuries to her cervical, thoracic and lumbar spine.
So you can't really explain why one day her symptoms are bad and why one day they're good? --- No.
But if she's recovered, if she's got all her movement back within 6 months, any problems in the future aren't going to relate to that accident, are they? They're going to relate to the general deterioration in the musculoskeletal system that we see in someone of this age? --- No, I wouldn't always agree with that … because I can think of situations where that's not the case …
So why does she have a problem if her movements are free and relatively unrestricted? --- I think there's an assumption that if you have a good range of movement, you don't have pain. I'm not sure I follow that assumption because I see lots of patients who have a normal range of movement but still have considerable pain.
But the human body guards against pain, doesn't it? If you are going to have pain when you move your head quickly to the right or the left, you tend not to do that, don't you? --- Sometimes.
Well, why perform an action that is going to cause you pain? --- Well, most people wouldn't do it consciously if they knew and they would protect themselves in that range of movement but there will be times when they will go through that range of movement, either through an exam or just though daily living skills."
In September 1998 he had noted that the plaintiff's right neck was stiff and she complained of neck and prothoracic right sided pain on rotation to the right. Abduction of the right shoulder was limited to 90 per cent. She seemed to have less left sided symptoms. By September 1999 she was taking three Panadeine Forte, Voltaren, Amrovix and Betoloc and having pool based exercises. Chest pain was, Dr Claydon thought, musculoskeletal. In May 2000 he found minimal neck extension and rotation and a global reduction of movement. Asked if he thought the plaintiff's symptoms had deteriorated he said it was static. Asked about the variations in presentation, Dr Claydon responded:
"I think with due respect to some of these reports, they are often associated with the last time that you have seen them and the patient so you are not always getting a true reflection of what is happening all the time in between. So - I would just - from my notes I feel fairly comfortable in saying that throughout the time Maureen has been very consistent. Her symptoms do fluctuate, but if I was to assess if they are getting better, is it getting worse, no. I would say it has just literally stayed about the same."
He was shown portions of the videotape, Exhibit 4. He agreed that it possibly showed a greater range of neck movement than the plaintiff had demonstrated to him in the 12 months prior to trial and indeed showed a full range of movement. He was not surprised nor did he think it indicated that the plaintiff had misled him: "I knew Maureen can do all these range of movements because she's at work … she's not someone who has had a great deal of time off work, so she has been fairly stoical … and … her range of movement does vary during the times when I've seen her … It's within normal boundaries", although it had not been when he had seen her.
He did not think the prior accidents were connected with the plaintiff's symptoms. He was unable to predict any time within which the symptoms would resolve.
Mr J K Ker, consultant physician in rehabilitation medicine, saw the plaintiff twice. His reports dated 8 September 1999 and 2 May 2000 are Exhibits 7A and 7B.
She had modest pre-existing degenerative change in the cervical spine. He reported in September 1999:
"Currently your client reports the presence of daily neck pain but of varying intensity. She reports how she has, on the right side of her neck, pain which radiates towards the shoulder region and she has a feeling of tightness and soreness in and around the right trapezius muscle. She also reports the radiation of pain in the left arm down to and including the lateral fingers of that hand but there is no specific history of loss of sensation or muscle strength in her left upper limb. She continues to report the presence of headache. This headache is occipital in location with occasional radiation to the left frontal region. Your client reports that with radiation to the left frontal region her eyesight is affected.
Her headache and neck stiffness appear closely associated. She describes low back pain which is predominantly right sided and radiates towards the bottom on the right and occasionally on the left. As a consequence of her back pain her capacity to bend is limited. She tells me her maximum walking time is about 30 minutes. She describes sleep disturbance due to neck pain and headache.
I note that from time to time she is obliged to use anti-depressant medications. She utilises simple analgesia, paracetamol and codeine containing mixtures once or twice a day.
My clinical examination of your client demonstrated her to be in no immediate distress, undressing and dressing again quite appropriately for the examination.
I noted that she reported discomfort at the cranio-cervical junction and over the lower two cervical spinous processes. I found that her cervical extension was uncomfortable and reduced, however, flexion appeared well preserved with the chin to some 2 cm from the manubrium sternum. Rotation to right and left was reduced through only 60 degrees.
She reported discomfort on firm palpation of the trapezius muscles to the right and to a lesser extent to the left of the midline but undertook for me a full range of bilateral shoulder movement.
When examined in the prone position she did report some discomfort at the thoraco-lumbar junction but more particularly towards the lumbo-sacral junction. There was, however, no protective muscle spasm in her back and no tenderness over her buttocks. In the long sitting position she was able to flex with fingertips to the lower third of tibia. Her rotational movements to right and left were moderately preserved through 30 degrees. The back extension was limited to 10 degrees. There was no limitation of straight leg raising and no suggestion of neurological impairment in the upper or lower limbs.
With specific reference to the matters you raise in correspondence:
a)…
b)… Mrs Banham, reported the presence of intrusive neck pain with associated neck stiffness, intermittent headache, discomfort, particularly in the right shoulder and low back pain and stiffness.
She finds the use of her upper limbs in repeated activities such as sewing or the use of scissors as difficult for her. She reports that her capacity to bend, stoop or stand for prolonged periods is limited.
c)It would appear to me that your client's symptoms have their origin in the motor vehicle accident in which she was injured on 11th October 1997.
d)At the present time I would have thought that your client's range of treatments was satisfactory and I would continue to support the use of active treatment methods to maintain mobility and strength in the spinal musculature and such passive treatments as simple heat and the use of a transcutaneous nerve stimulator …
e)I would be hopeful that your client's symptoms related to the motor vehicle accident would settle further over time. She has, however, had symptoms continuing over a period of some two years and whilst she has attempted to maximise her function during that time this has clearly proved difficult for her and hard to sustain as evidenced by her deterioration (sic) work capacity in the last twelve months. I would be hopeful however, that with the current continuing treatment strategies, her symptoms of spinal pain and headache would remain contained.
…
g)Since the time of the motor vehicle accident, Mrs Banham has made during 1998 quite a constructive return to her former work duties. This return to work, however, has not been without intrusive symptoms and it would appear to me that the continuing and intrusive nature of these symptoms has, during the current working year, proved such as to substantially distress this lady to the extent that she appears no longer able to sustain her former work performance.
… such is the nature of her work as an education assistant in the pre-primary area, that she is obliged at regular intervals to undertake a variety of physical activities involving bending, lifting and carrying which clearly do intrude upon her back pain.
In addition I note that the likelihood of her being able to obtain part-time work in her chosen field is quite remote.
h)Mrs Banham, who will be 57 at her next birthday, has clearly found that this is proving increasingly difficult for her to sustain her former work duties in the presence of injury symptoms. Whilst there is some possibility that she may return to reduced working in the future there is, at this time, no certainty that such an opportunity may be available to her and in that sense I believe that your client's working life may indeed have been shortened by her accident sustained injuries, to the extent that such is the intrusion of her symptoms that she may not be able to, on a reliable basis, sustain her former work.
i)There is no doubt that this lady, as a consequence of the presence of spinal pain, stiffness and intermittent headache, is no longer able to perform her work duties with the same degree of professionalism as she did prior to October 1997. This has clearly distressed her considerably and I believe that this significantly contributes to her current lack of capacity to effectively compete with other asymptomatic persons for work as a pre-primary teaching aide."
In May 2000 he reported:
a)… Mrs Banham continues to report headache, restricted cervical movement, modest right upper limb but more significant right lower limb pain and restricted spinal movement …
I had difficulty determining any evidence of variation, either increase or decrease in the intrusiveness of these symptoms.
…
c)I continue to support the use of analgesic and anti-inflammatory treatments in this case. I note that your client's (sic) continues to have regular physical therapy. Whilst I acknowledge that simple soft tissue massage may be a source of some pain relief, I am uncertain of any other benefits that this form of physical therapy has to offer. I believe her pool therapy is more valuable in its capacity to maintain her mobility and strength.
At this time I would not recommend alternative treatments.
d)It would appear that in general terms there has been little variation in the effects of Mrs Banham's symptoms over time. I would have thought that in general terms her function has been maintained.
In that sense I would have thought that it is likely that your client's condition will remain largely unchanged into the foreseeable future, that is to say without clear evidence of improvement or deterioration.
e)I would have thought that your client's future treatment would broadly continue along the lines reported in (c) above.
(f)At the present time it is my understanding that Mrs Banham is undertaking work as a primary school teacher's aide on a part time basis, undertaking of the order of six hours of attendance at her work place each day.
I believe she has modified some of her work duties to avoid situations in which she is obliged to lift or restrain children.
It would appear to me that she is working at the present time to her maximal capacity.
g)The very fact that this lady is unable to maintain normal hours of working or complete all of the work tasks that she feels necessary for the orderly management of the class in which she is involved, is an indication to me that she lacks competitive ability with peers who would work full time and complete such tasks.
h)Mrs Banham is now 57 years of age.
I would be hopeful that she would be able to maintain her current level of work functioning for a further three years to 60 years of age. I would have significant reservations as to her capacity to continue to work beyond that point."
Mr Ker was shown portion of the videotape film at trial. He agreed that it showed a full range of movement to the right at variance with what he saw on examination. "She certainly does appear to demonstrate satisfactory rotation to right and left". He agreed that the symptoms and therefore an acceptable range of movement might vary and that sometimes the situation demands a level of pain be endured.

He commented:
"We're now over 2 years from the motor vehicle accident. In simple pathophysiological terms you would have expected that the majority of symptoms due to that would have by now largely settled. There's always the problem that I face when seeing people in a medico-legal situation of a tendency to ascribe all symptoms to a single event, but I would have thought that the opportunities for further recovery to improve beyond where she is at the present time are unlikely. I would have thought that the opportunities for her to cope with the symptoms that she has will be retained. The one thing that I can't say is the extent of which the pathology in her neck may have been advanced by that motor vehicle accident."
Asked by Mr Cullity about his view of the plaintiff continuing in employment to age 60, Mr Ker said:
"Primarily Mrs Banham is an extremely committed, professional teacher. She is frustrated by her performance but I rather suspect that probably her conviction and her professionalism will win out here and that she will hopefully be less frustrated by her performance and be able, as a consequence, to cope."
The physiotherapist, Mr R M Horne, had prepared a number of reports, Exhibits 8A to 8D. Mr Horne also gave oral evidence. He agreed that with whiplash cases symptoms over time both may vary in intensity and may vary as to which is most prominent. Initially, neck symptoms and headaches were probably more so, but at different times leg pain and low back pain became so. Symptoms seemed worse towards the end of a working week or school term. The symptoms generally may have slightly deteriorated. Sustained flexed positions, repeated bending or lifting and having to sit on low chairs all seemed to contribute. The plaintiff had never been able to demonstrate a full range of neck movement.
Mr P Watson, specialist neurosurgeon, saw the plaintiff on 13 November 1998, and 3 February 2000. His reports are exhibits 8A and 8B. On 13 November 1998 he reported:
"Currently Mrs Banham complains of pain in all three segments of the spine - cervical, thoracic and lumbar. The cervical spine pain is associated with occipital region headache and pain that progresses across the trapezius muscle and shoulder and down both arms - worse on the right than the left. Paraspinal muscle pains travel to the interscapular region and also into the lumbar spine region. Associated with lumbar spine pain is right leg pain which travels down the posterior aspect of her leg as far as the heel. Mrs Banham has continued on with the treatment which involves physiotherapy and hydrotherapy. As the physiotherapy is currently being reduced she does home stretching exercises and walks for about 30 minutes per day.
On examination today Mrs Banham is complaining of stiffness in both the cervical spine and lumbar spine. She was able to move her cervical spine to about 50% normal range of movement in all directions. Examination of her upper limbs revealed no evidence of wasting. Tone, power, sensation and reflexes were all intact. With regard to lumbar spine examination, Mrs Banham was able to flex sufficiently to touch her knees. Neurological examination of the lower limbs however was again normal. There was no evidence of wasting. Tone, power, sensation and reflexes were all intact. Mrs Banham has had cervical spine x-rays undertaken and also lumbar spine x-rays, only the latter available for review today. The plain x-rays and CT scan of the lumbar spine showing no significant abnormalities. I understand from your enclosed copy of Mr Slinger's report that aside from some minor degenerative changes at C5/6 there is no other significant abnormalities (sic) in her cervical spine films.
Mrs Banham's symptomatology has improved since the time of your review in August, however, I believe she has sustained soft tissue and ligamentous injuries to the cervical, thoracic and lumbar spine as a result of the accident dated 11th October 1997. There is no evidence on her examination of x-ray findings to suggest significant disc injury or any evidence of nerve root or spinal cord compression.
Mrs Banham should continue on with her current conservative treatment. However I have recommended that she adds a swimming program over the summer months, swimming freestyle wearing goggle and snorkel. I do not believe Mrs Banham will need to consider any surgery to her spine as a result of the consequences from the motor vehicle accident.
The prognosis of her future regarding her injuries is of gradual improvement over the next 12-18 months. It appears that she made a slow and gradual recovery from her previous injuries and I see nothing on her current radiology to suggest that this should not be the case again on this occasion.
Currently Mrs Banham works as a pre-primary teachers assistant. This does involve quite a significant amount of bending to attend children. She has intermittently required some time off work for her symptoms and up to one week on occasions. She currently works 0.9 (meaning 4½ days per week) She required 16 weeks off her work following her accident but has now returned to working 4½ days.
I believe Mrs Banham is currently fit to undertake this work although some monitoring of her symptoms is required. It is conceivable that in the next 12-18 months that she may require intermittently some time off to intensify her treatment. Overall her prognosis for recovery however remains optimistic.
In summary I believe Mrs Banham has sustained soft tissue and ligamentous injury to the spine as a result of the motor vehicle accident on 11th October 1997. She has a history of a previous motor vehicle accident however there did not appear to be any significant ongoing symptoms from that injury. I believe she should increase her current exercise program to include swimming exercises and I remain optimistic regarding her recovery."
On 3 February 2000 he reported:
"Mrs Banham has … had a further year and 4 months of treatment, however her ongoing symptoms do not appear to have improved in the interim period.
Mrs Banham continues to complain of cervical spine pain, this is worse on the right side than the left, it is largely paraspinal muscle pain, it radiates upwards to the nuchal line and is associated with occipital headache which is bilateral and then the pain is often worse on the left side in the temporal and peri-orbital areas. The pain on the right side of the cervical spine radiates across the trapezius muscle and into the shoulders and then radiates down the lateral aspect of the arm to the dorsum of the hand involving all fingers. She also complains of a pain in the right scapular region in the paraspinal muscles adjacent to the right scapula … The last ongoing pain is of lower lumbar spinal pain. This is associated with pain into both sacro-iliac joints and intermittently into the buttocks. The pain may then extend further down the right leg as far as behind the right knee and very intermittently into the calf. The majority of her pains however are all of central spinal origin lumbar spine, right scapular region and cervical spine. These symptoms are unchanged in severity since my review of her on 13 November 1998.
Today's examination findings also remain unchanged. Mrs Banham today complains that she is somewhat more stiff and painful than usual - this was borne out by the fact that her cervical spine movement was bearly (sic) 50% of normal. Neurological examination of the upper limbs was normal. There was no evidence of wasting. Tone, power, sensation and reflexes were all intact. She had some give-way weakness in musculature in the right arm, however, I would assess the majority of her arm power to be normal. Examination of the lower limbs revealed that flexion at the lumbar spine was possible to touching knees. Neurological examination of the lower limbs showed straight leg raising restricted to 20° bilaterally by back pain but again the neurological examination of the lower limbs aside from this was normal. There was no evidence of wasting. Tone, power, sensation and reflexes were all intact. Mrs Banham has not to my knowledge had any further investigations since November 1998.
Ongoing treatment for Mrs Banham has been of conservative management largely with a physiotherapist, having 1-2 treatments per week. The treatment used is largely an exercise program, some massage and Mrs Banham continues to take medications of Panadeine Forte and Voltaren.
Mrs Banham has not improved as much as I would have expected over the past 15-16 months. She is however continuing to teach children at previous hours of roughly 33 hours per week which is 4½ days of a 6½ hour day. She is a Pre-primary Teacher's Assistant and therefore a lot of her work involves repetitive flexion of the lumbar spine, bending over desks to demonstrate to children. There is no question that by the end of the day, her pain is worse than it was initially at the beginning of the day. Having said that, Mrs Banham is continuing on with that work and I believe she will ultimately improve in time such that she should be able to continue on with this employment.
I do not see the need for Mrs Banham to have any further investigations at this point in time although if a specific arm or leg pain became worse than an MRI scan of that corresponding area of the spine could be used to see if there was any evidence of nerve root impingement. I do not believe Mrs Banham will need to consider any surgical treatment in the future.
In summary, I feel Mrs Banham has ongoing soft tissue and ligamentous injuries affecting the cervical, thoracic and lumbar spines. She has referred pain into the right upper and lower limbs but no sign of nerve root impingement. She has been slow to progress despite a conservative program however I feel that this is her correct management and I still remain optimistic that her symptoms will gradually settle over a period of 1-2 years from here. I believe Mrs Banham is fit to continue on work as a Pre-Primary Teacher's Assistant."
His prognosis was for a general trend towards recovery. However, if symptoms were such that the plaintiff felt she could not continue, if she were seeing a general practitioner more regularly and her analgesic consumption increasing and if symptoms increased as the working week progressed but improved over the weekend he would support her retirement.
Cross-examined, Mr Watson said the plaintiff had demonstrated about 50 per cent of a normal range of flexion and extension and of lateral and sideways rotation. Part of the videotape film was played to him. He agreed the plaintiff seemed to have freely shown full rotation to left and right and some forward flexion to three-quarters normal. However, he emphasised that this was only on one day and that symptoms varied over time with consequential variations in range of movement, sometimes worse or better than at other times.
He thought the injuries from the two earlier collisions may have a bearing on the plaintiff's recovery. As to her pre-existing degenerative changes at C5/6, this was consistent with her age. Nor was her age such that the plaintiff should not be working in her present employment.
Mr B S Slinger, orthopaedic surgeon, saw the plaintiff for medico/legal review on behalf of the defendant in December 1997, October 1998 and November 1999. His reports are Exhibit 6A to 6E.
On 9 December 1997 he reported after setting out the accident and prior medical history:
"PAST:
This lady has had previous accidents in 1987, which produced symptoms in the neck and low back and in 1993, which produced further pain in the low back from which accidents she improved sufficiently prior to the accident of 1997. She complained only of an odd or occasional ache in the neck or back. This discomfort did not restrict her activities or require medical attention and on the odd occasional times when she did have discomfort she would treat this with heat, exercise and occasional Panadol. Her symptoms did not prevent her from walking for two hours at a time at weekends nor did it prevent her from full-time activities in her employment.
EXAMINATION:
She presents as a lady who when standing felt dizzy and required a glass of water before I was able to continue the examination. Tenderness was situated in the posterior mid line throughout the neck maximal at T7. Tenderness was also noted continuing down to the mid thoracic spine and again at the lumbar sacral junction. In the neck extension was restricted to a few degrees only, the remainder of movements were limited to 10 degrees with the exception of rotation to the right limited to half the expected range. At the shoulders there was no wasting and no tenderness. Movements were restricted with elevation, flexion and abduction to 90 degrees, whilst internal rotation and abduction lacked a few degrees and external rotation was associated with discomfort.
In the lumbar spine movements were restricted with forward movements, fingers reaching to knees. Lateral flexion and rotation to half the expected range whilst extension was limited to a few degrees only. Straight leg raising when sitting on the side of the couch was unrestricted, when lying on the right 10 degrees, on the left forty degrees with negative sciatic stretch test and she was able to sit comfortably on the couch with hips flexed and knees extended.
There was global weakness of the right foot and no other neurological deficit in either lower limb. Gait was normal and was not associated with any obvious weakness of the foot.
RADIOLOGY:
Cervical spine in October 1997 showed degenerative changes at C5/6 and T6/7 with lipping and degenerative changes involving the neurocentral facet joints are particularly marked at C5/6.
DIAGNOSIS:
This lady has symptoms which are consistent with a soft tissue injury of the spine as a whole in the accident and possibly to the shoulders. There are unusual features to examination which demonstrate certain inconsistencies and the generalised severe nature of the symptomatology in view of what I understand to be the low velocity nature of the road traffic accident.
RECOMMENDATIONS:
Time is probably the most important factor in further improvement as it was in her previous accidents but for the present she is to continue exactly as she is doing accepting the advice which has been given to her in modifying her activities at home. She is to do a regular stretching and strengthening programme and I would suggest at this stage she would be best advised to commence an exercise programme in a hydrotherapy environment hopefully under physiotherapy supervision.
Local measures such as heat, massage, mobilisation and physiotherapy could be considered at times of symptomatic exacerbation but need not be maintained on a regular basis. Surgery has no part to play in her present management nor indeed is it likely to be part of the future.
PROGNOSIS:
Present symptoms are likely to continue and I would not have thought she is fit to return to her normal employment at present and as stated her employer will not accept her return until she is fit for her full duties which is regretable (sic) as there will be a point in time in the future were (sic) she will be fit for part-time work.
…
I cannot provide any time scale in respect to incapacity other than to say that it would be well into the New Year before she is fit to return to her full-time employment. I have indicated that there are some unusual features to her presentation.
Present symptoms relate in the greater part to the injury of 1997, as I have stated. The symptoms relating to the accidents of 1987 and 1993 were minor. Time is the most important factor in further improvement."
In evidence, he said he would describe the symptoms then presented as minor. He was asked to describe the inconsistencies.
"She was able to sit comfortably on the couch with hips flexed and knees extended … if you do that then you've got effectively a full range of back movement and that would be inconsistent with the fact that she could only flex or bend to the knees when standing. Secondly, she had global weakness of the foot, which means that there was a complete weakness of the foot and that's not based on any neurological abnormality, that just doesn't exist."
He reported again on 29 October:
"Fair generalised muscle-toned lady who can move without obvious problem.
Objectively her condition … very comparable. I think, if anything, it had increased."
She was continuing with full-time work. On 24 November 1999 her restrictions of movement were a little better than in 1997.
She was continuing in her full-time employment and saw no reason at that stage why she should not continue until retirement.
"She's treating pre-primary school children which involves bending, squatting, crouching, which are very aggravating factors or should be in her condition. Despite that - I appreciate she may well be a stoical sort of person but despite that and despite the marked restriction on examination and findings, she's still able to continue her employment."
He reported:
"To examination presents a lady of cheerful disposition who indicated that her symptoms were notably worse at this time of the day having completed her day's work.
In the spine as a whole there was diffuse tenderness extending from the occiput to the sacrum both in the mid line and to either side including the trapezius and shoulders with the exception of the proximal lumbar segments in the mid line.
In the cervical spine movements - extension limited to a few degrees, anteroposterior flexion to within three fingers breadth of the sternum. Rotation limited to a third and lateral flexion two thirds of expected range.
At the left shoulder there was no wasting, movements into elevation 90 degrees flexion, 90 degrees ab duction (sic) with discomfort at extremes of internal rotation and external rotation.
At the right shoulder there was no wasting, movements into elevation flexion to 80 degrees, ab duction (sic) to 80 degrees with discomfort at extremes of internal rotation and external rotation.
In the remainder of the spine, forward bending, fingers reaching to knees, the remainder of movements were less than a quarter of expected range.
Straight leg raising was not limited, there was no neurological deficit in either upper or lower limb and gait was normal..
DIAGNOSIS:
This lady's symptoms are consistent with a soft tissue injury to the spine as a whole occasioned by the motor vehicle accident of October 1997, there were no inconsistencies and no suggestion as to exaggeration.
RECOMMENDATIONS:
I suggested she continue exactly as she is doing at present, to regular stretching and strengthening with a walking and pool exercises (sic) which I believe could be undertaken in a gymnasium or health studio facility, sensibly avoiding provocation as she is doing at present and local measures such as heat, massage at times of symptomatic exacerbation.
Surgery has no part to play in her present management nor indeed is it likely to be required in the future.
PROGNOSIS:
Present symptoms are likely to continue, unlikely to be associated with any additional problems in the future or be associated with any premature degenerative change."
Prior to trial, however, Mr Slinger had been shown the videotape. He reported on 18 April 2000:
"In that video she was seen to climb steps, carry a basket in the left hand, look down and flex her neck with chin approximating to the chest, bending into the rear of a vehicle, looking full to right and left, both when reversing a vehicle and when filling a vehicle with petrol. In addition to rotate the trunk to the left as when standing at a petrol bowser, to use a public telephone, walk without difficulty, carry a plastic bag containing items in the left hand and to bend to a display stand.
To answer your question, I would agree that the range of movements in the cervical spine is greater than that which was exhibited at the time of the most recent consultation in November 1999.
I did make a comment in my last report that at the time of my examination she had stated that was the time of day in which her symptoms and presumably her stiffness was most pronounced.
I have no reason to change my opinion in respect to the recommendations and prognosis which I detailed in that report of November 1999."

Giving evidence at trial Mr Slinger commented: "I have no doubt that they're not quite as severe or as restrictive as she led me to believe". He thought the previous accidents had had little significance to the plaintiff's present condition and that there was little likelihood of significant improvement.
"I don't really doubt she had has an injury but I do doubt the severity of that injury on the basis of … the fact that she's continuing her employment in a particularly physically demanding job in terms of movements of the spine and the fact that the video does suggest that there may be a conscious attempt to mislead during my examination."
Having viewed the videotape both at trial and subsequently, I confirm Mr Slinger's summary of its contents. The range of movements shown in the sequences filmed at the vehicle is considerably greater and freer than that demonstrated by the plaintiff at trial.
Essentially Mr Cullity argues that the plaintiff suffered real injuries in the collision causing her to be off work for some weeks and which persist, although she has returned to work and wishes to continue to work notwithstanding those persistent symptoms. The medical evidence and that of the plaintiff, her husband and Ms James, suggests little in the way of ongoing symptoms from prior accidents. The symptoms vary over time but are not improving. The plaintiff may be forced to cease work. The importance of the videotape should not be exaggerated. It is a fleeting, single instance when the plaintiff had to turn her head to drive safely.
The defendant argues that the accident was a minor collision, little more than a nudge, and as a result of which only minor injuries resulted to the plaintiff which the plaintiff has subsequently exaggerated. The plaintiff is 57 and also attributing her aches and pains of advancing years to this minor injury. On the other hand, save for some weeks immediately following the collision the plaintiff essentially has continued to work the same hours as before and has been filmed displaying freely a range of movement not displayed to any of the medical witnesses or in court. She has she says, not improved notwithstanding a variety of treatments and the passage of 2½ years, notwithstanding that the injuries were soft tissue ones in nature.
The defendant says there is a modest claim for general damages subject in any event to the statutory restrictions. It says no loss of an economic nature is established including any significant claim for future medical expenses.
Mr Slinger regarded the plaintiff's symptoms as minor and exaggerated and unlikely to change.
Mr Watson and the physiotherapist, Mr Horne, thought them real but that improvement was likely over about 18 months.
Mr Ker would originally have expected the symptoms to have resolved within 2 years and Mr Watson essentially had a similar view originally.
There is no doubt that each of Mr Slinger, Mr Ker and Mr Watson viewed the videotape, Exhibit 4, as showing a full and free range of rotation and flexion of the neck, something not demonstrated in their examinations.
The general practitioner, Dr Claydon, was of the view that the symptoms complained of were both real and unlikely to significantly improve.
I think some weight must be placed on the evidence of Ms James, the plaintiff's superior, who works with her on a daily basis and who has no particular reason to exaggerate and whom I regard as a reliable witness.
Whilst I am not satisfied that the pre-accident symptoms of other collisions had entirely resolved and although I think it likely from the evidence of the videotape film and other evidence, that the plaintiff has exaggerated her symptoms, I find that she did suffer some injuries in the collision and the effects are continuing. I accept the medical evidence, however, which suggests likely improvement over 18 months or two years. Further, I must have regard to the probable effects of the plaintiff's age. (As to her age as a general factor in the assessment of general damages, I make no variation from the findings I otherwise make. This is not a case in which permanent or long term injury is involved, in my view.)

General Damages

The claim for general damages is subject to the provisions of s 3A to s 3E of the Motor Vehicle (Third Party Insurance) Act 1943.
Given the statutory restrictions I would allow a figure being not much more than 10 per cent of a most extreme case, say $25,000. Those provisions reduce that to $14,000.

Economic Loss - Past

At the time of the accident the plaintiff was approaching 55 years of age. She was working about 29 hours per week over a five day week during school terms and earning $354 net per week. After the accident she took time off work until commencement of the 1998 school year. She also took off one week from work in the second term of each of the 1998 and 1999 school years. In late January 2000 she took another week off work. She says this was due to her symptoms but she also was caring for her husband who had had surgery. On each occasion she was paid sick leave by her employer. She claims $2,500 for loss of sick leave credits.
For a number of reasons, but especially the lack of evidence as to various matters concerning sick leave entitlements Mr Brooksby argues that no claim for loss of sick leave credits is established. I agree. I have no evidence as to the basis on which such credits accrue or the quantum of those lost or their recoverability.

Economic Loss - Future

The plaintiff claims to experience difficulties performing her employment duties.
She says that prior to the accident it was her intention to work until aged 60 but due to the problems she is experiencing it is unlikely that she will be able to work past the end of the 2000 school year. She will turn 58 in January 2001 and says that she will thereby lose two years' income.
At a rate of $354 net per week after applying the multiplier that amounts to $32,3888.66. She also claims loss of superannuation entitlements at a rate of eight per cent of $435 gross per week for that period, $3,232.92.
A book of income tax returns, assessments and group certificates, pay slips and correspondence relating to her employment history and a further pay slip were tendered by consent as Exhibits 2 and 2A. Her current earnings are $708.01 per fortnight.
On the balance of probabilities I am not satisfied that the plaintiff will cease employment before the age she would otherwise have retired, which I am prepared to put at 60 years, but I am satisfied there is a greater chance of that because of the symptoms she does have. I allow $15,000 on that head, assuming the chance of early retirement to be about 40 per cent.

Future Medical Expenses

The plaintiff filed a schedule of future medical expenses which became Exhibit 3. The plaintiff says she will require to consult her general practitioners, attend hydrotherapy and physiotherapy treatment and to take medication in the future. On the basis of a future need for these services of two years her claim is for:
Per Week
Panadeine Forte
2 boxes per month (20 tablets per box at
$10.35 per box = $20.70 per month  $5.17
Voltaren
1 box of 50 tablets per six weeks $15.90
per box  $2.65
Consultations with General Practitioner
One visit per month at $35 per visit  $8.75
Hydrotherapy
One visit per week at $3 per visit  $3.00
Physiotherapy
One visit per week at $38 per visit  $38.00
$57.57
$57.57 x 98.5 (multiplier on the 6% tables for 2 years ) = $5,670.65."
The plaintiff in evidence confirmed this current level of use.
It is agreed that the reasonable cost of 20 Panadeine Forte tablets is $10.35 and 50 Voltaren 50 mg tablets is $15.90.
I allow the claim under this head, $5,670.65

Conclusions

For the foregoing reasons I assess damages as follows:
General damages  $14,000.00
Economic loss   15,000.00
Future medical expenses   5,670.65
Total  $34,670.65