Barwick v Den Hoedt - [2004] WADC 10

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: BARWICK -v- DEN HOEDT & ANOR [2004] WADC 10

CORAM: JENKINS DCJ

HEARD: 4-7 MARCH 2003, 24 SEPTEMBER 2003,
21 JANUARY 2004

DELIVERED : 28 JANUARY 2004

FILE NO/S: CIV 1915 of 2001

BETWEEN: BETTY BARWICK
Plaintiff
AND
CORNELIUS DEN HOEDT
First Defendant
RANDALL ROY DOUGLAS
Second Defendant

Catchwords:

Damages - Assessment - Personal injuries - Motor vehicle accidents - Injuries to left shoulder and arm - Intervening non-tortious accident causing serious injury and disability - Cervical spine degeneration - Turns on own facts

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943, s 3A, s 3C, s 3D

Result:

Judgment against the first defendant in the sum of $10,455.58

Judgment against the second defendant in the sum of $3,759.60

Representation:

Counsel:

Plaintiff:     Mr B L Nugawela
First Defendant             :     Mr J R Brooksby
Second Defendant         :     Mr J R Brooksby

Solicitors:

Plaintiff:     Doray Solicitors
First Defendant             :     Greenland Brooksby
Second Defendant         :     Greenland Brooksby

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

Co-Operative Bulk Handling Limited v Taylor & Anor, unreported; FCt SCt of WA; Library No 960528; 17 September 1996
March v E & M H Stramare Pty Ltd & Anor (1991) 171 CLR 506
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485

Case(s) also cited:

Nil

JENKINS DCJ: The plaintiff, Betty Barwick, seeks damages for personal injuries suffered following two motor vehicle accidents which occurred on 16 January 1997 and 13 January 1999 respectively.
Both defendants, Cornelius Den Hoedt and Randall Roy Douglas, admit that the accidents were caused by their respective negligence but deny that the plaintiff has suffered the injuries, loss and damage alleged in the statement of claim. In their defences the defendants assert that the accidents were of such a minor nature as to be unlikely to cause any or any significant injury to the plaintiff. The defendants alternatively plead that most of the plaintiff's injuries, loss and damage resulted from a fall she sustained at her home on 16 December 1997, her pre-existing and unrelated chronic obstructive airways disease, her osteoporosis or a fracture to her right foot which she sustained in November 1995.

Background

Mrs Barwick was born on 9 April 1951. She completed year 12 in England and immediately commenced full‑time factory work. She married her first husband in 1969 and had two children. Mrs Barwick migrated to Australia in 1972. She and her first husband separated in 1976. Thereafter the plaintiff married her present husband and had two more children. The plaintiff's third child, Kevin, born in 1978, still resides with the plaintiff and her second husband. The plaintiff's fourth child, Lisa, moved out of home in 1998 soon after having her first child.
In 1983 Mrs Barwick commenced part-time work as a shop assistant. This was her first return to work after having had her family. In 1986 the plaintiff commenced full-time work as a shop assistant and she continued working in that capacity until 1992 when the shop closed.
Mrs Barwick was then employed by the Education Department of Western Australia as a casual cleaner between 1994 and 1996. There was not a lot of cleaning work available. She also worked as a casual domestic at a nursing home. From 1995 to July 1996 she testified that she worked virtually full-time for a private cleaning service. However the group certificates for the period prove that she was working only part‑time. That work concluded in July 1996 due to the termination of the service's cleaning contracts. Although the plaintiff sought work after this time she did not obtain any prior to the first accident.

The first accident

On 16 January 1997 Mrs Barwick boarded a bus driven by the first defendant, Mr Den Hoedt. She had a number of shopping bags with her. As she picked the bags up, after having shown her ticket to Mr Den Hoedt, he started to drive off and almost immediately commenced a u-turn. Before the plaintiff had time to take a seat Mr Den Hoedt broke suddenly and the plaintiff lost her balance and fell against a ticket-validating machine. Her left shoulder struck the machine and this stopped her fall ("the first accident").
The following day Mrs Barwick saw her general practitioner, Dr Cameron. Her left shoulder was swollen and bruised but she had good range of movement. Dr Cameron prescribed Panadol Forte and reviewed her again on 22 January 1997. He noted that the pain persisted and she still had good range of movement. He diagnosed a soft tissue injury and injected the shoulder with anaesthetic. Mrs Barwick said that this helped for a little while.
On 5 February 1997 Dr Cameron stated in his clinical notes that Mrs Barwick complained of pain which "shoots down" her arm. He next mentioned pain down her arm on 11 April 1997 when she rang and complained of a one day history of "severe pain down arms like electric shocks". No complaints of general arm or neck pain were made on any of the five or so occasions he saw her between those dates. On those other occasions her complaints, according to his notes, were of pain in her left shoulder and elbow.
On 10 June 1997 Dr Cameron made the first reference in his notes to neck pain. He noted that the plaintiff was tender around C4/C5 level of her neck. However, he testified that on or after 11 April he believed that she had a nerve problem of unknown origin because of her complaint of pain going down her arm.
There is no reference to any complaint by the plaintiff of neck pain in Dr Cameron's clinical notes, his subsequent referral to Dr Baskaranathan, his report to the State Government Insurance Commission of 14 March 1997 or his medical certificate to the Department of Social Security on 4 September 1997. Other than the note of 10 June, his first written reference to neck pain is in a preliminary medical report to the Commonwealth Rehabilitation Service on 26 September 1997. In that report he states a diagnosis of "Pain neck and Left shoulder following bus accident". On the second page under a heading of "symptoms of illness/disability" he states "Pain and weakness L shoulder & arm".
Mrs Barwick relies upon a comment of Dr Cameron in a report dated 14 November 2000 to her solicitors. Dr Cameron states "The first time she complained of pain in her shoulder and neck was on 17.1.97 the day after her accident." This, the plaintiff says, is proof that she did complain of neck pain immediately after her accident. I do not accept that it is such proof.
In cross‑examination Dr Cameron agreed that he had not documented complaints of neck pain and he would have thought that if she had a complaint he would have documented it.
At no stage in his evidence did Dr Cameron suggest that he had an independent recollection of Mrs Barwick complaining of neck pain on 17 January or at any other time that is not recorded in his notes.
Consequently my view is that when, some time after the first accident, the plaintiff started to complain of neck pain Dr Cameron and the plaintiff put it together with the shoulder pain and thereafter have erroneously regarded it as linked to the first accident.
Earlier, when Dr Cameron saw the plaintiff on 5 February 1997 and as the injection had apparently made no significant improvement he referred Mrs Barwick to Dr Baskaranathan, a consultant physician and specialist in rheumatology, rehabilitation and general medicine.
Dr Baskaranathan saw Mrs Barwick on 25 February and noted that the plaintiff then complained of numbness of the little and ring finger on the left hand and an intermittent tingling sensation of the palm. Dr Baskaranathan's examination revealed no obvious wasting of the muscles and the left shoulder contour was well maintained. He said that she had localised the pain to the front of the shoulder and also to the acromioclavicular joint region. He noted that she continued to have reasonably good range of movement. Dr Baskaranathan agreed that the plaintiff appeared to have sustained soft tissue injuries of the acromioclavicular joint and also soft tissue injuries at the tip of the coracoid process and in the rotator cuff of the left shoulder.
In early March Dr Baskaranathan injected the rotator cuff area and, three weeks later, the tip of the coracoid and acromioclavicular region with anaesthetic. Dr Baskaranathan believed that as a consequence of these injections the shoulder pain settled by early April.
However, the plaintiff then complained of continuing pain in the left elbow which again Dr Baskaranathan thought was related to underlying soft tissue injury. He injected the proximal radioulnar joint with anaesthetic and arranged a review. The plaintiff did not attend for the review and Dr Baskaranathan has not examined her since.
In a medico/legal report of 24 July 2001 and also in his evidence at trial Dr Baskaranathan opined that the change in the pain distribution pattern raised the possibility of secondary myofascial pain brachialgia.
In his evidence Dr Baskaranathan said that he believed that he was treating local problems, initially in the shoulder and then in the elbow. He regarded the treatment of the shoulder as successful and intended to treat the pain in the elbow in the same manner. If it was unsuccessful he would have pursued the possibility of the pain emanating from some other area.
His opinion was that if it were not for the bus accident Mrs Barwick would not have had the symptoms she did. He testified that she had received a soft tissue injury which, given the involvement of legal proceedings, would have taken eight to nine months to resolve. He said that if the plaintiff had injured her neck in the bus accident he would have expected her to complain of some neck pain and she did not do so. Further, he thought that if, as a consequence of the bus accident, she had suffered a significant spinal injury, such as a C6/7 disc protrusion, she would have experienced immediate pain. She did not complain to him of immediate or any pain in this area.
With respect to whether or not she presented to him with nerve pain he said a number of things. First, he said that in his experience nerve pain is reported as burning pain and the plaintiff did not mention burning pain to him. Secondly, he did not regard her pain as conforming to any known nerve root path and, in particular, he did not regard an injury at C6/7 would have produced the tingling and pain in her ring and little finger. Thirdly, he did not regard her as having a major problem with trauma to her nerves as she had no loss of reflexes and no muscle wastage. He did not think that the available evidence pointed towards any particular diagnosis other than chronic pain.
I find Dr Baskaranathan to be an expert upon whom I am more than willing to rely. He treated Mrs Barwick soon after the first accident and he gave his evidence in a straightforward and convincing manner.
When the plaintiff continued to complain of pain in the arm, Dr Cameron referred her to Dr Keith Andrew Black, a physician and rheumatologist. He saw her in early June 1997. He recorded that Mrs Barwick told him that she had neck pain since the accident. He found her neck movements satisfactory but that she had pain on moving the left shoulder. He noted that there was mild loss of extension of the left elbow and pain on the flexile and extensile aspect of the elbow. He noted that there was mild global weakness in the arm but the reflexes were present. He thought that the plaintiff's problems may be emanating from the neck and arranged for a bone scan and a cervical CT scan. She had already undergone an EMG which was normal and therefore showed that there was no nerve root impingement. In April 1997 she had apparently plain x‑rays of her cervical spine. These showed slight narrowing of the disc spaces mainly at C5/6 and C6/7. However the cervical CT scan showed that the plaintiff had a left C6/7 postero‑lateral disc herniation. Dr Black was "not 100 per cent definite" but thought "on the balance of probabilities" that the pathology in the neck must be the cause of her arm problems. Consequently he referred the plaintiff to Dr Duncan Anderson a specialist in pain management.
In his evidence and reports Dr Black stated that in his view the disc pathology was consistent with being caused by the first accident. He said the arm pain was not caused by a pinched nerve but was referred pain. In cross-examination he agreed that the disc problem could be pre-existing but as there had been no earlier investigation it was not possible to say whether it was pre-existing. He agreed that the plaintiff's type of disc pathology did not necessarily cause pain and said that, if it did, some pain from such disc bulges improved in time and some did not.
In respect to the onset of pain he said that, that if the disc pathology had been caused by the first accident he would have expected pain to come on within a day or so and he said that if the evidence was that it had come on two months after the accident then in his view that was too long after the accident for the injury to become symptomatic. Consequently, such neck pain and pathology would not have been due to the accident.
The plaintiff saw Dr Anderson on or about 15 July 1997. His report of that time noted that the "there was not a lot to find on examination. There was some tenderness over the left trapezius and the right side of her neck." Dr Anderson offered the plaintiff a place on the pain management program that he ran at Kaleeya Hospital. The plaintiff did not take up this offer because of difficulties in public transport to the hospital. This was the only time that Dr Anderson saw the plaintiff in 1997.
Mrs Barwick continued to see Dr Cameron throughout 1997. In her evidence the plaintiff said that the pain continued and that she continued to take Panadeine Forte up to eight per day as well as Celebrex. She said that in 1997 she felt down and depressed because of the pain and her inability to perform everyday tasks, for example vacuuming and mopping the floors. She said that Dr Cameron had put her on Zoloft, an antidepressant, but it made her feel worse. She said that her relationship with her husband deteriorated during this time to the extent that they almost separated.
Mrs Barwick testified that prior to the first accident she had applied for a domestic position with Rockingham Hospital and that she had an interview for a job at the hospital after the first accident. She said that she didn't get the job. She said that she told the interviewer that she had been involved in a bus accident and that she expected to be better soon. She said that she was told that they needed someone to start immediately. She said that she had a similar experience with another potential employer. She said that she did not try again to get a job. She said that she could not lift items and the pain in her neck was "driving me crazy".
In September 1997 Mrs Barwick was referred to the Commonwealth Rehabilitation Service in an attempt to rehabilitate her for future work. Dr Cameron provided a preliminary medical report, which recommended that she not lift weights of more than five kilograms and that she not be involved in repetitive activity involving her left shoulder and arm. He recommended that she start work part-time and increase her hours as tolerated. The referral to the Commonwealth Rehabilitation Service was unsuccessful as she did not have money to pay for herself to be retrained and the first defendant's insurers were not prepared to pay either.

The non‑compensable accident

In December 1997 the plaintiff sustained a fracture of her left humerus when she tripped over a pet at home ("the non‑compensable accident"). This was a significant injury. There is evidence, that I accept, that at least up to 2000 and probably beyond that injury continued to cause her pain. The plaintiff says that it no longer causes her pain but it has significantly and permanently restricted the range of movement in her left shoulder.
The plaintiff's general practitioner's accounts show that in 1998 she consulted the practice on approximately 30 occasions for complaints that were not related to injuries she says she sustained in the first accident. In the same period there were approximately 15 consultations she would say were related to the first accident. Given the severity of the injury to the plaintiff's humerus I conclude that throughout 1998 it was that injury that was of greatest concern to her and most disabling.
There was progressive union of the fracture to her humerus but there was and remains a displacement and slight shortening of her left shoulder as well as the reduction in the range of movement. This has resulted in a residual deformity of her left shoulder and the permanent loss of movement of it. The plaintiff's permanent disabilities resulting from this non‑compensable accident are detailed more fully later in this judgment.

The second accident

On 13 January 1999 the plaintiff was sitting as a passenger on a bus driven by the second defendant, Randall Roy Douglas. Mr Douglas braked heavily and collided with a utility travelling in front of the bus. The plaintiff was thrown forwards into the back of the seat in front of her and she grabbed the back of the seat with both of her hands. She immediately felt pain in the lower part of her neck on her left side and pain in her arm. She said the symptoms in her left arm were instantly worse ("the second accident").
Mrs Barwick said that she did not sleep that night and in addition to the pain she suffered pins and needles into her fingers. She said that the pain lasted longer and was more intense than the first accident. She denied that the second accident aggravated the injury to her humerus.
Although the plaintiff said that she attended upon her doctor the following day, the doctor's records show that she did not attend until 19 January 1999. The doctor's records are very thorough and I accept those in preference to the plaintiff's recollection. When Dr Cameron examined her on 19 January 1999 the plaintiff had decreased range of movement in her cervical spine and she was tender over the right C6/7 joints in her neck. He diagnosed her as having a whiplash injury and recommended that she have physiotherapy and an x‑ray of her left shoulder and elbow. These x‑rays showed no new pathology. Dr Cameron's view was that the second accident exacerbated the symptoms of the first accident.
An x‑ray of the plaintiff's cervical spine taken on 26 July 1999 showed that at C5/6 there was some posterior prominence of the intervertebral disc which appeared slightly more marked towards the left of the mid line. These findings appeared more prominent than at June 1999, the date of the previous x‑ray. At C6/7 there was a focal left posterio‑lateral prominence of the intervertebral disc, again more prominent than in June 1999. There was probably some extension into the left neural foramen. Also noted was an apparent slight indentation of the left lateral aspect of the thecal sac. At C7/T1 the spinal canal could not be properly evaluated due to artefact from the shoulders. There was some degenerative change suspected at the right first costo‑vertebral joint.
On or about 30 November 1999 the plaintiff had an MRI scan of the cervical spine. The report of the MRI scan concluded that there was "mild left posterio lateral disc protrusion at C5/6 and C6/7. Either or both of these may be of symptomatic significance."
Other than the plaintiff's general practitioner the first medical witness to see the plaintiff after the second accident was Dr John Rosenthal. Dr Rosenthal has basic medical qualifications. He is also a Fellow of the American Society of Legal and Industrial Medicine, a US Board Certified Forensic Examiner in personal injury and he has a visiting appointment to the Department of Pain Management at Sir Charles Gairdner Hospital. He practices in legal and rehabilitation medicine. I note however that he is not a fellow of any specialist college of Australia. I do not accept that his overseas qualifications are equivalent to such a fellowship.

Dr Rosenthal saw the plaintiff at the request of the defendants for a medico/legal review in or about November 1999. Dr Rosenthal had seen the plaintiff on two prior occasions, being 11 August 1997 and 7 April 1998 at the request of the first defendant, also for the purpose of medico/legal reviews.
On 11 August 1997 Mrs Barwick had reported to Dr Rosenthal that she did her housework in stages and had activity related left brachialgia, mostly as far as the elbow. Overhead activity caused her to develop forearm symptoms extending as far as the dorsum of the hand but not into the fingers. She could not sleep on her left side and she had headaches and neck pain only occasionally. On examination Dr Rosenthal stated he could demonstrate full cervical flexion and extension but that there was painful restriction of cervical rotation. The plaintiff only achieved 70 per cent of the expected range of lateral flexion. She was tender over the left mid and lower cervical facet joints and there was a positive Tinnel's test over the supraclavicular fossa. Dr Rosenthal explained that a Tinnel's test determines whether there is any sensory change due to neural irritation by tapping the skin over the nerves. The plaintiff demonstrated full passive shoulder movement, a test for impingement was negative and there was no pain with stressing her rotator cuff even with resistance.
Dr Rosenthal concluded that the plaintiff had a soft tissue cervicobrachial pain syndrome with some possible facetal dysfunction but no objective clinical evidence of a significant intrinsic shoulder injury. He noted the degenerative bulge of the C6/7 disc but he stated that he did not believe that this was producing any neurological symptoms and that it may well be a pre‑existing change. He did not consider her to have any permanent disability and that her recovery would be assisted by activity.
Dr Rosenthal next saw the plaintiff on 7 April 1998. In his report written after that consultation he confirmed that the first accident caused only a soft tissue injury and he did not expect there to be any permanent or long term disability from that accident. Under cross‑examination he acknowledged that at that time the plaintiff was complaining of ongoing neck pain but his opinion was that due to the intervention of the fracture of the humerus it was difficult for him to determine whether the ongoing neck and upper arm pain was due to the first accident or the fracture of the humerus.
Dr Rosenthal then saw the plaintiff in or about November 1999, after the second accident. His view at that time was that she had shoulder and upper arm pain associated with the fracture of the humerus and secondary progressive shoulder joint degeneration. Dr Rosenthal noted on examination that there was significant wasting around the left shoulder and that the plaintiff had a flexion deformity at the left elbow and a palpable bone deformity of the shoulder. She had mild to moderate restriction of cervical movement. Dr Rosenthal's diagnosis was of "long standing cervical degeneration and a fracture of the left upper humerus causing significant pain and restriction of function." He did not consider that her present symptoms and disability related to either the first or second accident.
On 30 January 2000 Dr Anderson reviewed the plaintiff. The plaintiff informed Dr Anderson that both the second accident and the fracture of the humerus had increased her pre‑existing pain. At the time of his consultation she was complaining of pain on the left side of her neck radiating to her left shoulder and to her left upper arm to the mid humerus. She also complained of pain in her left elbow. She told Dr Anderson that when the pain was severe the pain went to her fingers which felt numb. She complained of depression, sexual difficulties and inability to do any activities whatsoever. She said she was taking eight Panadeine Forte a day due to constant pain.
On examination Dr Anderson noted that there was significant weakness in her left arm which he felt was due to pain inhibition. She was tender over C7 and the left side of her neck. The left trapezius was very tender to very light pressure. Range of movements of her neck were reduced on rotation to the right. Left glenohumeral rotation was reduced due to pain. At that time Dr Anderson did not think that her hard diagnosis had been established.
Dr Anderson offered the plaintiff a left shoulder block in the hope that this would reduce some of the pain. He reported that the plaintiff told him that it did not reduce her shoulder pain. However, she told him that her neck pain was reduced a little bit for a short while. Dr Anderson then offered her facet joint injections to the left side of her neck which he said would indicate whether her neck pain was facetal. The plaintiff had facet injections and she reported to Dr Anderson that she got reasonable pain relief for a few days and then the pain returned. Dr Anderson concluded that as the facet joint injections worked albeit for a short time and the shoulder block did not, that most of the plaintiff's pain was coming from her neck. He presumed that her neck pain was the result of her motor vehicle accident, but did not say which accident.
Dr Rosenthal saw the plaintiff again on 9 July 2002. On that occasion the plaintiff said that her main problems were neck pain and stiffness. The pain extended down inside the left arm and forearm into the fourth and fifth fingers. She said that this was far more significant than her left shoulder pain which was only present in cold weather. Dr Rosenthal noted that when he first examined the plaintiff in August of 1997 her symptomology was quite different. At that time headaches and neck pain were only occasional. Further, her left upper limb sensory symptoms had a different anatomical distribution.
Dr Rosenthal noted that on examination she was a thin, emaciated woman. I agree with this description. He also said she looked anaemic. There is no evidence that the plaintiff is anaemic. He noted the gross muscle wasting of the left shoulder girdle, arm and forearm. He also noted a fixed flexion deformity of the left elbow at 40 degrees. Her shoulder movements were markedly restricted being well below 50 per cent of the expected range. Her range of cervical movement was only slightly restricted and consistent with what he had previously noted. He found nothing to materially amend his earlier opinions.
With respect to the plaintiff's work capacity, Dr Rosenthal opined that the plaintiff had no capacity whatsoever for gainful employment as a result of the fracture of her humerus. He confirmed that he regarded her as having long standing cervical degenerative change which was not causing any radicular symptomology. He found no medical evidence that this condition had been materially aggravated by either bus accident.

Permanent disabilities resulting from non‑compensable accident

Since December 1997, the plaintiff had been seeing Mr George Carter, orthopaedic surgeon, for treatment of her fractured humerus. He saw her on seven occasions between 18 December 1997 and 10 September 1998. He then saw her for a medico/legal review in November 2000. He declined to report upon her alleged cervical spine injuries.
Mr Carter confirmed that the fracture of the neck of the left humerus had healed with some deformity and restriction of movement. He said that the fracture was displaced, mainly in the transverse movement. He testified that there was "an anterior spark" which caused the plaintiff discomfort and there was restriction of movement due to scarring and other deformity in the area including partial subluxation of the shoulder joint, meaning that it was partially out of its socket. As of November 2000 his opinion as to her range of movement was 30‑40 degrees of flexion, external rotation 80 degrees of normal with internal rotation 50 degrees of normal. She was limited to 45 degrees of total abduction and she was tender over the anterior fragment He also noted that she had a positive impingement test on internal rotation. The positive impingement test indicated to him that the muscles controlling the rotation of the upper limb were being pinched against the shoulder girdle adjacent to them. This is caused by the soft tissue accompaniment of the fracture. He said that she complained of widespread pain in the arm including the forearm and in the neck. His view was that the pain in the region of the fracture would relate to the fracture but that the pain in the forearm area and in the neck was more likely to relate to the neck injury which he had heard about, although he had not treated her for that injury. He said the pain in the upper arm from the fracture would normally only radiate a short distance from the fracture. He identified that as being the area from the shoulder girdle to approximately half way between the point of the shoulder and the neck and down to the upper quarter of the arm.
In his report of November 2000, Mr Carter stated the view that the fracture of the humerus rendered and continued to render the plaintiff wholly incapable of returning to her pre‑accident employment and that it was reasonable that she should be restricted in certain work duties and activities including any repetitive activity. He regarded her disability from her fractured humerus to be permanent and that it resulted in a 50 per cent permanent loss of use of the limb from the shoulder down. He regarded that she had achieved the maximum recovery likely from the fractured humerus.
In a report of the same date to the defendants' solicitors Mr Carter said that he felt that the pain at the fracture site was related to the fracture and the cervical spine pain was separate. He confirmed that the plaintiff had restriction of movement in the arm which prevented her from hanging up washing on the line. This was due to the fracture. He said she had difficulty in lifting weights, eg, full cooking pots and this would be due mainly to the cervical spine injury. He said if she'd lay on the left shoulder she awoke with stiffness and throbbing and that this would be related to the arm injury.

Specific findings of fact

As to the first accident, I accept Dr Baskaranathan's opinion that as a consequence of it the plaintiff suffered only soft tissue injuries to her left shoulder and elbow which would have taken approximately 8-9 months to resolve. I do not accept the plaintiff’s allegation that she suffered a cervical injury in the first accident causing the disc bulge at C6/7. The evidence is to the effect that she did not complain to her general practitioner of any symptom in her neck for months after the accident and did not complain of any pain going down her arm for approximately six weeks. I accept Dr Baskaranathan's and Dr Black's evidence that if the first accident had caused the disc bulge the plaintiff would have suffered neck pain immediately or, at most, within a few days. As the contemporaneous records indicate, she made no complaint of such pain to Dr Cameron or Dr Baskaranathan. I am not prepared to find that she did, merely on the basis of the plaintiff's evidence given six years after the first accident, that she did.
In respect to the plaintiff's evidence, I believe that she has attempted to give an accurate account of the history of her symptoms and pain but that the passage of time together with the multiplicity of accidents that she has suffered means that she is not a reliable historian. This is objectively shown by her assertion in evidence that she worked virtually full‑time in 1995 and 1996. As I have already stated her group certificates for the same period prove that she worked in a limited part‑time capacity over this period. She also testified that she had neck symptoms the day after the first accident and yet the doctors' contemporaneous notes are inconsistent with that history. I am not prepared to rely upon her account where it differs from the contemporaneous notes of her treating doctors.
I accept Dr Baskaranathan's opinion that even with medico/legal involvement the plaintiff's soft tissue injuries arising from the first accident would have resolved themselves, leaving no permanent incapacity, within 8‑9 months. Thus, by the time the plaintiff had the non-compensable accident she had recovered from the first accident with no residual permanent disability.
I find that any pain the plaintiff was then suffering in her neck or down her arm was pain or referred pain from unrelated cervical disc pathology. It appears likely that it was caused by naturally occurring degeneration of the spine. It is well known that such pathology can be symptomatic or may be asymptomatic. Further, neither the pathology itself or any pain caused by it has to be initiated by a traumatic incident. Thus, although as Dr Black said, the plaintiff's neck pathology may be consistent with having been caused by the first accident it by no means has to be.
The plaintiff complains that the first defendant did not plead that she had any such pre existing problem and neither is there any evidence that she had any neck symptoms prior to the first accident. Both these assertions are accurate. However, it is unnecessary for her cervical spine pathology to have been pre‑existing at the time of the first accident. Indeed, the basis of my findings in regard to causation is that the plaintiff's cervical spine degeneration was not symptomatic until a considerable time after the first accident. The plaintiff has simply failed to prove her case in this respect.
I accept that for the 8‑9 months after the first accident the plaintiff was disabled by the injuries she received in the first accident. She would not have been fit to resume her pre‑accident employment as a domestic or cleaner. Even shop work would have been difficult because of the repetitive shoulder and elbow movements required for such work. The injuries would have also interfered with her ability to perform everyday household activities such as cleaning, washing and cooking. The pain from the first accident injuries would have caused Mrs Barwick to feel down and this would have rendered it more difficult for her to be motivated to take active steps to seek work and to find it. I also accept that her relationship with her husband would have been deleteriously affected by both her physical pain and her low mood.
The non‑compensable accident, soon after her recovery from the first accident, rendered Mrs Barwick permanently incapacitated for her pre first accident employment. She was also permanently incapacitated from other work duties which included repetitive activity. Her work capacity, as a consequence of the permanent disabilities from the non compensable injury and symptoms of her cervical spine degeneration, is extremely limited.
I find that in the second accident the plaintiff suffered a soft tissue injury, which aggravated her pre‑existing cervical pain. I find that the second accident was simply not significant enough to cause permanent damage to the plaintiff's cervical spine. This is demonstrated by the plaintiff's assertion that it did not cause any aggravation of the symptoms she was then experiencing as a consequence of her fractured humerus. Consequently I accept that the second accident aggravated the pain she suffers in her neck, shoulder and arm. However given the length of time that has elapsed since the second accident it is probable that the soft tissue injury she received in the second accident has resolved entirely and the natural progression of her degenerative disease is now causing her pain and disability. I find that the contribution of the second accident to her pain and disability would have resolved by the end of 1999.
There is insufficient evidence to establish that any of the plaintiff's injuries, loss or damage, alleged by her to be attributable to the first or second accident, were caused by the other matters as pleaded by the defendants, other than the non‑compensable accident. I heard evidence to suggest that the plaintiff may have been involved in a third bus accident. That possibility has not affected my findings in this matter.
The second defendant also did not plead that, in respect to the second accident, the plaintiff had pre‑existing cervical spine problems. However, the issue of the condition of the plaintiff's cervical spine and the cause of it was at all times alive between the parties as it was part of the plaintiff's pleaded case that the second accident aggravated her by then pre‑existing cervical spine problem. Consequently, I do not accept that the second defendant's failure to specifically plead the existence of the pre‑existing degenerative cervical spine problems is significant in this case.

Legal Principles

My task is to separately assess the loss arising out of the first and second accidents. This task requires me to apply a common sense approach to the question of ascertaining what damage was caused by which accident and the quantum of damages appropriate for such damage: March v E & M H Stramare Pty Ltd & Anor (1991) 171 CLR 506; Medlin v State Government Insurance Commission (1995) 182 CLR 1.In Medlin's case Deane, Dawson, Toohey and Gaudron JJ said in their joint judgment at p 6:-
"For the purposes of the law of negligence, the question whether the requisite causal connexion exists between a particular breach of duty and particular loss or damage is essentially one of fact to be resolved, on the probabilities, as a matter of common sense and experience. And that remains so in a case such as the present where the question of the existence of the requisite causal connexion is complicated by the intervention of some act or decision of the plaintiff or a third party which constitutes a more immediate cause of the loss or damage. In such a case, the 'but for' test, while retaining an important role as a negative criterion which will commonly (but not always) exclude causation if not satisfied, is inadequate as a comprehensive positive test. If, in such a case, it can be seen that the necessary causal connection would exist if the intervening act or decision be disregarded, the question of causation may often be conveniently expressed in terms of whether the intrusion of that act or decision has had the effect of breaking the chain of causation which would otherwise have existed between the breach of duty and the particular loss or damage. The ultimate question must, however, always be whether, notwithstanding the intervention of the subsequent decision, the defendant's wrongful act or omission is, as between the plaintiff and the defendant and as a matter of common sense and experience, properly to be seen as having caused the relevant loss or damage."
In assessing damages for the first accident I must disregard the possibility of future tortious injury, such as occurred in the second accident. In assessing the damages for the second accident I must take into account the injuries caused by the first accident or the non compensable accident to the extent that they have impaired the plaintiff's earning capacity: Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485, 498-499.

Assessment of damages ‑ first accident

General Damages

As the plaintiff's injuries arose out of a motor vehicle accident which occurred after 1 July 1993 the provisions of s 3C of the Motor Vehicle (Third Party Insurance) Act 1943 ("the Act") governs the amount of damages to be awarded for non‑pecuniary loss. Non‑pecuniary loss is defined in the Act to include pain and suffering, loss of amenities of life, loss of enjoyment of life, curtailment of expectation of life and bodily or mental harm. That is, all those matters the subject of an award of general damages.
The Act requires me to determine the amount of general damages as a proportion of the maximum amount that may be awarded. The maximum that may be awarded under the Act is currently set at a figure of $249,000. The maximum can only be awarded in the most extreme case. If the amount of non‑pecuniary loss is assessed to be $12,500, that is five per cent of $249,000, or less the Act prohibits me from awarding damages for non‑pecuniary loss.

The plaintiff submitted that it was possible to aggregate the general damages awards appropriate for the first and second accident. The advantage to the plaintiff in this respect is that it may enable her to obtain an award for non‑pecuniary loss for both accidents, whereas, if the statutory formula was applied to each accident separately she may not meet the Act's restrictions on the award of damages for non-pecuniary loss in respect to one or both accidents.
By virtue of s 3A of the Act, the restrictions, "apply to the awarding of damages in respect of bodily injury to a person directly caused by, or by the driving of, a motor vehicle". Thus it is clear enough from the words of the section that they apply to a singular accident and not to the aggregate of two or more accidents. Further, cases such as Co-Operative Bulk Handling Limited v Taylor & Anor, unreported; FCt SCt of WA; Library No 960528; 17 September 1996 make it clear that, in a case involving different causes of action the trial judge's job is to separately assess the loss arising from each accident. Consequently, I do not accept that I am able to aggregate the non‑pecuniary loss arising out of each accident for the purposes of s 3C of the Act.
Compared to what may be regarded as the most extreme case, that is quadriplegia, I find that the plaintiff's first accident related injuries, pain and disabilities to be compensated for under an award of general damages are three per cent, thus less than 5 per cent, of the most extreme case. In coming to this finding I have taken into account all relevant matters, in particular my finding that her injuries from the first accident had resolved by the end of October 1997, the fact that her injuries were restricted to her neck, shoulder and arm and the limited effect these temporary injuries had on her enjoyment of life. Consequently, my assessment of damages for non‑pecuniary loss related to the first accident is below $12,500 and I cannot make an award under this head of damages.

Past Economic Loss

The plaintiff claims damages under this head on the basis that she would have been employed throughout the whole period of her disability for 20 hours per week. The plaintiff claims this amount until trial. As I have found that the plaintiff recovered from her first accident caused injuries by the end of October 1997 damages for past economic loss are only to be assessed to that time.
The defendant submits that the plaintiff is only entitled to damages for the lost chance of finding employment as the plaintiff had been unemployed for 6‑7 months prior to the first accident.
Damages for past economic loss are not capable of precise mathematical calculation as the plaintiff was unemployed at the time of the first accident. Further, although Mrs Barwick has a past work history, her income for the few years prior to the first accident was modest. For the year ending 30 June 1995 Mrs Barwick's gross taxable income was $5,532. The group certificates attached to her Notice of Assessment for that year indicate that her gross income for the year was only approximately $2,025.23, excluding government allowances. I note there are some wage slips, also attached, but these appear to relate to income already included in the group certificates. For the year ending 30 June 1996 Mrs Barwick's gross income was $12,296. This included $4,656 in government allowances. Subtracting this amount, Mrs Barwick's gross earnings were $7,640 for the year ending 30 June 1996. In the following year it seems Mrs Barwick worked only between 1 July 1996 and 5 July 1996 and earned $267 gross. Consequently, for the two years Mrs Barwick was employed she earned approximately $100 per week. In oral submissions the defendant submitted that the figure was around $140 per week. However I have been unable to find the evidence to justify that sum.
In the plaintiff’s schedule of damages she claims $9,353.80 on the basis of $240 per week. In oral submissions the plaintiff's counsel was unable to justify this claim. The evidence does not support such a claim.
It is appropriate that I base the award on the plaintiff's past work history. I am prepared to ignore the previous six months of unemployment on the basis that this was abnormal given the plaintiff's past work performance and, again, based on her past work performance I am prepared to assume that she would shortly find work. I have also considered that her unrelated cervical spine pathology was unlikely to affect her work capacity during 1997 as it did not become symptomatic until June 1997 and until her first accident related injuries resolved in October, it was those injuries which incapacitated her for work.
Basing the award on the previous two years' employment at $100 per week and allowing for some improvement in rates of pay I determine that a global award of $4,000 is the appropriate award for past economic loss relating to the first accident. Adding interest of 3 per cent over six years the total award is $4,720.

Future Economic Loss and Special Damages

As I have found that the plaintiff completely recovered from the first accident by November 1997, there are no future economic loss or special damages components in the award of damages.

Past and Future Gratuitous Services

Section 3D of the Act provides that no awards for past and future gratuitous services may be made if the amount of such damages would be less than Amount D which is currently $5,000.
Mrs Barwick gave evidence that after the first accident she was unable to do most household chores, such as meal preparation, washing up, vacuuming and laundry. She said her husband and son did them between them. Apparently her son was not working at the time. She said that her husband and son did about an hour a day of chores she would have otherwise done.
If I accepted this claim in full, at $12 per hour her claim is worth only $3,273.48 which is well below the threshold of $5,000. Consequently, because of the statutory restrictions, I am unable to award Mrs Barwick damages for gratuitous services. As I have found that the plaintiff completely recovered from the first accident by November 1997, there is no possibility of an award for future gratuitous services.

Past Special Damages

At the conclusion of the evidence and final submissions the plaintiff sought and obtained further time to attempt to agree special damages with the defendants. At the end of the permitted time, which I extended on two occasions at the plaintiff's request, the plaintiff had not reached any agreement with the defendant. This was not the defendants' fault as the plaintiff was tardy in providing the particulars of special damages to the defendants' solicitor.
On 19 December 2003 the plaintiff filed an affidavit, sworn by her on 18 December, containing particulars of the special damages that she seeks. The plaintiff's solicitors requested that the matter be listed for further submissions.
On 19 January 2003 the defendants filed an affidavit of Lea Glenda Rafferty, a partner in the defendants' firm of solicitors, annexing the claim payment summary forms of the Insurance Commission of Western Australia ("ICWA") relating to the first and second accidents.
On 21 January 2004 I heard further submissions from both parties concerning the admissibility of the affidavits and the issue of special damages, generally. I gave the plaintiff leave to file further affidavits relating to proof of the special damages and I directed the defendants to advise me as to whether they acknowledged the accuracy of the information contained in the ICWA claim summaries and the Health Insurance Commission ("HIC') Claims History Statement. I also reserved my decision with respect to the admissibility of the affidavits, referred to above.
I have subsequently received a further affidavit sworn by the plaintiff on 22 January 2004 and an affidavit sworn by her solicitor on 23 January 2004.
The defendants admit that the medical expenses set out in the ICWA claim summaries were incurred but do not admit that they are related to the first and second accidents. They do not admit that the expenses set out in the HIC Claims History Statement were incurred or that they are related to the first and second accidents.
The plaintiff tenders in evidence the three affidavits filed by her and which are particularised above. The plaintiff also submits that Ms Rafferty's affidavit ought to be in evidence, although the plaintiff did not seek to tender it. If I accept the tender of the plaintiff's affidavit of 18 December 2003, the defendant tenders the affidavit of Ms Rafferty.
I consider that the three affidavits filed by the plaintiff are admissible. The defendants objected to their tender on the basis that they contained hearsay. I acknowledge that there is some hearsay material contained in them but some of it is of no significance and some of it is admissible to prove what the plaintiff has been told rather than the proof of the truth of what she was told. When I consider whether individual claims for special damages have been proved I will ignore the hearsay evidence unless I determine that it is admissible under s 79C of the Evidence Act 1906 or for some other reason. Consequently, I will admit into evidence the affidavit of Ms Rafferty.
The plaintiff's affidavit, sworn on 18 December, is exhibit 60. The plaintiff's affidavit, sworn on 22 January 2004, is exhibit 61 and the affidavit, sworn by her solicitor, on 23 January 2004 is exhibit 62. Ms Rafferty's affidavit is exhibit D13.
Although it is not entirely clear, I understand that the plaintiff's claim for special damages is the schedule of services she has annexed to her affidavit of 18 December 2003 and any additional services contained in the ICWA claim summaries. As I have included these in the award, ICWA is entitled to a reimbursement out of the award of the amounts that it has paid.
The first set of claims is in relation to alleged consultations with the plaintiff's general practitioner, Dr Cameron, and other doctors at the Woodbridge Medical Centre. In his evidence, Dr Cameron testified that he had obtained a computer printout of the consultations the plaintiff had had at the Centre since July 1996. He had then perused the notes made by the medical practitioners the plaintiff saw at the Centre and determined which of the consultations related to the first and second accidents. He had then marked the printout accordingly. The printout was then admitted into evidence. The parties agree that this is the best evidence in relation to the plaintiff’s claim for special damages relating to the Woodbridge Medical Centre and I intend to rely upon it. Having regard to my findings I am prepared to include in my award for the first accident all consultations between the date of the first accident and the date of the non‑compensable accident, as long as Dr Cameron's marked up printout states that they are first accident related. The claim for all consultations at the Woodbridge Medical Centre relating to the first accident is allowed at $738.55.
Having regard to all the evidence I am prepared to allow the claim for $35 for x‑rays at Rockingham/Kwinana Hospital in 1997. I do not allow the claims relating to services in 1998, as I do not accept that they relate to the first accident.
I am also satisfied that ICWA has paid $4962.03 for other chemist, medical and physiotherapy services provided in 1997 in relation to the first accident. The total amount allowed for special damages is $5,735.58.

Assessment of damages ‑ second Accident

General Damages

Mrs Barwick testified that the second accident instantly made her neck and elbow problems worse. Surprisingly, she says that it did not aggravate her fractured humerus. She said that she was unable to sleep that night and that radiation into her hand and fingers was worse. She said that currently she avoided travel because it aggravated her pain. However she said that the pain never entirely disappeared and the radiation into her arm continued. She said she could not move her neck properly and she demonstrated that she had what appeared to be approximately half the normal range of movement to the left and a bit more to the right. She could not move her head upwards but could put her chin on her chest. Apart from painkillers, which she takes regularly, and antidepressants she is not currently receiving any treatment for her neck.
I accept that the second accident aggravated the plaintiff's pre‑existing cervical spine symptoms. I accept that this increased her pain and disability in her neck, left shoulder and arm in 1999. However on the basis of her evidence and her complaints to her doctors, her pain and disability in these areas from her cervical spine degeneration was already quite severe at the time of the second accident. Further, she was suffering significant pain and restriction of movement in her left shoulder and arm from her non‑compensable injury. She has some ongoing pain and significant permanent restriction of movement from the non‑compensable injury. I have also taken into account the plaintiff's low mood. However I find that this was substantially as a consequence of her non‑compensable injury following so closely upon the first accident, not as a result of the second accident. I do not accept that as a percentage of the most extreme case the second accident related injuries and disabilities warrant a finding of more than 5 per cent of the most extreme case. In my opinion it would be in the range of 3 per cent or $7,470.00. This is less than $12,500 and consequently I am not permitted to award damages for non‑pecuniary loss.

Past Economic Loss

The pain and disability from the injuries sustained in the second accident probably contributed, in a minor way, to the plaintiff's inability to obtain a job in 1999. As I have already noted, in 1999 the plaintiff was also enduring significant pain from her non‑compensable injury and for this reason alone she would not have attempted to find any form of full time employment in 1999. After 1999 to date I find that the aggravation caused by the second accident has not increased her loss of earning capacity at all. Her current incapacity is primarily the consequence of her non‑compensable injury. As a consequence of the plaintiff's non‑compensable accident she has a fifty per cent loss of function of her left arm below the shoulder. She also has disability related to her cervical neck pathology. To reflect the small contribution the second accident related injuries made to the plaintiff's loss of earning capacity in 1999 I award a global sum representing past loss of earning capacity of $2,000. Together with interest of 3 per cent over four years I award $2,240.00.

Future Economic Loss and Special Damages

For the reasons given above I do not accept that the second accident is currently contributing towards the plaintiff loss of earning capacity or her need for medicines and medical treatment. I decline to make awards under these heads.

Past and Future Gratuitous Services

For the same reasons given in respect to past and future gratuitous services relating to the first accident, I make no award under these heads of damage.

Past Special Damages

On the basis of Dr Cameron's evidence, I allow $532.20 for consultations with doctors at the Woodbridge Medical Centre in 1999 relating to the second accident. I allow $212.50 for a CT scan on 26 July 1999. I accept that due to the aggravation of the plaintiff's cervical spine condition caused by the second accident it was reasonable to obtain a CT scan of the cervical spine at this time. The report of the relevant scan was admitted into evidence. For the same reasons I allow $424.10 for a MRI scan of the plaintiff's cervical spine on 30 November 1999. I allow $28.05 for a consultation with Dr M Lee. ICWA has paid $322.75 for chemist, medical and physiotherapist services related to the second accident which are not included in the above, allowed claims. The total amount allowed for special damages is $1,519.60.

Conclusion

I assess damages in the following amounts.
First Accident
Past economic loss  $ 4,720.00
Past special damages  $ 5,735.58
Total  $10,455.58
Second Accident
Past economic loss  $ 2,240.00
Past special damages  $ 1,519.60
Total  $ 3,759.60