Beatty v Beatty

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: BEATTY -v- BEATTY [2004] WADC 90

CORAM: WILLIAMS DCJ

HEARD: 2-3 MARCH 2004

DELIVERED : 13 MAY 2004

FILE NO/S: CIV 678 of 2003

BETWEEN: MATTHEW YOULE BEATTY
Plaintiff
AND
MERIOL SYLVIA BEATTY
Defendant

Catchwords:

Damages - Assessment - Personal injury - 21 year old male heavy duty mechanic's apprentice - Complaining of neck and back pain

Legislation:

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

Result:

Plaintiff entitled to damages in the sum of $42,072

Representation:

Counsel:

Plaintiff: Mr I L K Marshall
Defendant: Mr E J Myers

Solicitors:

Plaintiff: Slee Anderson & Pidgeon
Defendant: E J Myers

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

Nil

Case(s) also cited:

Nil

WILLIAMS DCJ: As a result of the admitted negligent driving of the defendant on 25 December 1991 the plaintiff alleges he was injured in a motor vehicle accident and he now brings this action for damages. Liability is admitted and the matter proceeds before me by way of assessment of damages.

Background

The plaintiff was born on 14 June 1982 in Boyup Brook. At the time of his accident he was nine years and six months of age and resided with his parents, brother and sister on the family farm at Boyup Brook.

The accident

On 25 December 1991 the plaintiff was travelling as a rear seat passenger in a motor vehicle being driven by his mother, the defendant, in a northerly direction along Albany Highway near Boddington. The vehicle collided with another motor vehicle being driven in a southerly direction along Albany Highway.

The claim

By par 6 of the statement of claim the plaintiff alleges that he suffered the following injuries:
"(a)Whiplash/soft tissue injuries to cervical spine, mid‑back region and lumbar spine.
(b)Broken teeth viz tooth 14, 21 and 31.
(c)Shock.
(d)Bruising under armpits.
(e)Pre‑existing but unsymptomatic condition of spondylolysis and L5/S1 spondylolisthesis was rendered symptomatic."
By par 8 of his statement of claim the plaintiff alleges that he has endured physical discomfort and disability as follows:
"(a)Pain and discomfort in the cervical spine with limitation/restriction of movement.
(b)Pain and discomfort across shoulder blades.
(c)Frequent bifrontal headaches.
(d)Pain and discomfort in the thoracolumbar spine with limitation/restriction of back/spinal movement.
(e)Disturbed sleep.
(f)Ceased playing cricket at school in 1994 on account of ongoing and persisting neck, shoulder and back symptoms.
(g)Aggravation of symptoms referred to in (a), (b), (c) and (d) above by activity including work."
By par 9 of his statement of claim the plaintiff alleges that he continues to endure physical discomfort and disability as follows:
"(a)Neck pain and stiffness with intermittent frontal headaches.
(b)Ongoing mid back pain which is present intermittently on a daily basis and is brought on by static postures, repetitive activity, twisting and lifting movements.
(c)Ongoing low back pain which is present most of time and which is brought on by lifting and bending movements."
By par 10 of his statement of claim the plaintiff alleges that he has experienced and continues to experience a loss of enjoyment of life as follows:
"(a)Inability to travel long distances without aggravation of neck and back symptoms.
(b)Inability to sit in the one position for any length of time viz cinema or when watching television without aggravation of neck and back symptoms.
(c)Interference to sporting viz cricket and football activities.
(d)He has avoided body surfing on account of his injured state.
(e)Disturbed sleep."

The medical evidence

Dr Michael Richardson is a general practitioner at Boddington who attended to the plaintiff at the scene of the accident. His report of 14 November 1992 described the plaintiff's injuries as appearing to be a whiplash type injury to his neck and an injury to the upper part of his back about his mid to upper thoracic spine. The plaintiff was treated by being placed supine on a stretcher with his head supported so that neck movement was limited and transferred by St John Ambulance to Princess Margaret Hospital for further assessment.
The report of 18 March 1992 of Dr John Stace, Deputy Medical Director of the Princess Margaret Hospital for Children reported that the plaintiff was brought to Princess Margaret Hospital by ambulance on 25 December 1991. There was no history of loss of consciousness. He complained of a tender neck. On examination he was noted to be alert. No significant abnormalities were detected. He was diagnosed as having a whiplash injury. An x‑ray of his cervical spine was normal.
The plaintiff was discharged home with a soft collar. He was reviewed on 26 December and it was noted that he was pain free with a good range of movement. Power and sensation were normal.
There is no record that he attended Princess Margaret Hospital subsequently.
In an undated report Dr J F Walsh, a dental surgeon from Kojonup reported seeing the plaintiff on 23 January 1992 complaining of fractured teeth sustained in a traffic accident on 25 December 1991. On examination three teeth were found to have been broken. The findings on examination were in keeping with the history given.
Tooth 54 was diagnosed as having a chipped filling and the filling was replaced. Tooth 21 was diagnosed as having a chipped incisal edge and was trimmed and polished. Tooth 31 was diagnosed as having a distal angle and was replaced with composite resin.
On 23 October 1992 Mr G B Loton a chiropractor of Australind Chiropractic Clinic reported seeing the plaintiff on 15 July 1992 some six months following his accident. At that time he complained of bilateral stiffness in his neck, periodic headaches, stomach tension, mid back pain and pain in the lower back. On examination there was a moderate restriction of cervical rotation toward the right. Vertebral dysfunction was noted at the C2/3 and C5/6 level. There was no evidence of acute muscle spasm in the lateral cervical muscle group. Mr Loton diagnosed Matthew as suffering a chronic cervical strain. It was possible his injuries could have resulted from the accident.
Mr Loton saw the plaintiff on 19 February 1993 and 11 January 1994. On each visit he presented as complaining of general neck and low back soreness. He received chiropractic adjustments to his cervical and lumbar spine.
On 16 September 1994 the plaintiff presented with bilateral hamstring tightness and low back ache. These problems were diagnosed as muscular in origin and were treated with soft tissue stretching technique. He was advised to stretch before playing active sport. Mr Loton was of the view that he did not appear to show any further problems as a result of the accident.
On 20 May 1993 Dr Tony Lee, a general practitioner from Boyup Brook, reported having seen the plaintiff on 19 May 1993 some 17 months following his accident. At that time he was complaining of some pain in the neck and upper back area especially after playing sports, like cricket. On examination he had a full range of movement of the neck. The back movements were also quite full except some limitation to forward flexion of the back. He could just touch about the middle of the shins of his legs when he bent forward. Dr Lee advised his mother to take him for physiotherapy and give him pain killers on an as required basis.
Mr Ian Stewart is an orthopaedic surgeon. He saw the plaintiff on 14 June 1993 some 18 months following his motor vehicle accident. At that time he was complaining of some low neck left axilla and low back discomfort.
On examination of his neck no nodules or muscle spasm could be palpated. He described some vague discomfort particularly in flexion but his ranges of movement were all excellent. There were no symptoms about his brachial plexuses, his grips were equal and strong.
He walked with a smooth gait, normal muscle rhythms, had no difficulty when on toe or heel, to balance or hop, squat or waddle. He had a full and normal range of lumbar mobility, no abnormal steps were palpable in the low lumbar spine.
Mr Stewart discussed the matter with the plaintiff's mother and felt that it was inappropriate or unnecessary to arrange for x‑rays. Mr Stewart considered it inadvisable to proceed to claim finalisation until after skeletal maturity.
Mr Stewart reviewed the plaintiff on the 21 September 1998 in excess of 5 years after his first review and some 6 years and 9 months following his accident.
On examination Mr Stewart palpated no nodules or muscle spasm, there was discomfort in the suboccipital and about the vertebra prominens level. There was good function and movement range of his neck, upper limbs, his grips were equal, his reflexes symmetrical.
A screen of his spine showed that at the lumbar level he had a spondylolysis and spina bifida occulta, a congenital or pre‑existing problem which was likely to give him ongoing problems in the future and should be monitored.
Mr Nick Batalin is an orthopaedic surgeon. At the request of the defendant he saw the plaintiff on 6 June 2001 some nine and a half years after his accident for medico/legal assessment.
At that time the plaintiff was complaining of pain to the upper and mid thoracic region of the back and periodic soreness at the back of the neck.
He did not complain about low back problems.
On examination Mr Batalin found the plaintiff to be a fit looking 19 year old in no distress, of approximately 173 centimetres in height and around 67 kilograms in weight. He walked normally. There was normal configuration of his spine. A formal assessment of his neck movements revealed 15 per cent restriction. Head and neck flexion was 50 degrees, extension was 35 degrees and rotation was 65 degrees to each side. However, using indirect methods of assessment, eg attracting his attention to a number of scars over his upper limbs, Mr Batalin noted brisk and normal range of head and neck movements, for example when the plaintiff was looking at his toes head and neck flexion was 60‑65 degrees. In the prone position extension was 55 degrees and rotation was at least 90 degrees to each side.
A formal assessment of thoracolumbar spine movements reveal 20 per cent restriction. He could reach with his fingertips to a level of a quarter of the way up the shin, extension was 20 degrees and lateral flexion was around 35‑40 degrees to each side. Using indirect methods of assessment Mr Batalin noted 10 per cent restriction with the plaintiff able to reach with his fingertips to the level of the ankles when sitting on the examination couch with both legs extended, in the prone position extension was 30 degrees and lateral flexion was 45 degrees to each side. There was no tenderness over the lumbar or sacral spine. Initially there was tenderness over the T2 level but re‑checking revealed tenderness over the T8 and T12.
Minimal palpable step deformity was noted at the lumbo sacral junction and this could be consistent with spondylolisthesis. There was no tenderness over the lumbo sacral junction.
Neurological assessment revealed no detectable weakness or muscle wasting, all reflexes were hypo‑active but present on reinforcing. There was no sensory deficit to touch, pain or pressure stimuli. Brachial plexus stretch test was bilaterally negative. Straight leg raising test was bilaterally negative in the sitting position but allegedly painful when each leg was elevated to 70 degrees when this test was repeated formally. Cervical x‑rays showed normal alignment of the vertebra and no significant bony or joint injury. Chest x‑ray was within normal limit. An x‑ray of the total spine showed the cervical spine had normal vertebral alignment with well preserved disc spaces and no injury or instability. X‑ray of the lumbar spine showed normal alignment and no evidence of injury. Lumbo sacral x‑ray showed pre‑existing and developmental problem with congenital as well as developmental anomaly in the form of spina bifida occulta of L5 as well as grade 1 spondylolisthesis of L5 on S1 with bilateral pars interarticulare's defect in L5. There is approximately one seventh body width forward displacement at L5 in relation to S1.
Mr Batalin noted this as a congenital and developmental problem in his lower back. This took the form of spina bifida occulta of L5 vertebra and grade 1 spondylitic spondylolisthesis of L5 on S1. Mr Batalin did not believe that this was caused by the motor vehicle accident and his symptoms were not referred to his lower back.
Mr Batalin could not detect any evidence of major injury to the upper spine and noted some inconsistencies on clinical assessment of that area.
At that time there was no indication for treatment of possible original soft tissue strain neck injury. However of concern was what Mr Batalin believed to be an unrelated problem of developmental spondylolisthesis. This could be symptomatic in the future and the plaintiff's current occupation was less than ideal for that kind of pathology. He should exercise preventative care of his back and should avoid rough contact sports or subjecting his back to repetitive bending and lifting of heavy objects greater than 20 kilograms in weight.
Mr Batalin was of the view that there was a recognisable permanent disability because of his spondylolisthesis but this was unrelated to his motor vehicle accident. From the point of view of his motor vehicle accident Dr Batalin could not detect any permanent or major disability. He considered that the spondylolisthesis would adversely affect his capacity to do a labour intensive occupation but he saw no indication of major injury resulting from the motor vehicle accident which could adversely compromise his employment.
In a report dated 17 July 2002 Mr Batalin stated that he reviewed the plaintiff on 17 July 2002. Mr Batalin stated that there was little he could add to what he had stated previously. He believed that the plaintiff had congenital and developmental problems in the lower back which are unrelated to his injuries. The former consists of spina bifida occulta of L5 vertebra and the latter of grade 1 spondylitic spondylolisthesis of L5 on S1. The combination of this problem in his experience could produce periodic low back pain and sciatica and a patient with this problem was more vulnerable to symptoms, particularly in occupations which subjected the back to repetitive bending and heavy lifting. To that extent the plaintiff's choice of work as a heavy duty mechanic was less than ideal.
There was a history of a motor vehicle accident on 25 December 1991 but there was always a problem of attempting a retrospective diagnosis on something that happened so long ago. The plaintiff could have had a soft tissue neck strain and back injury but sufficient time had elapsed for this to stabilise.
Mr Batalin strongly advised against manipulative treatment of the lower back. In his experience patients with spondylolisthesis do not respond well to manipulative treatment and there is a possibility of aggravating symptoms and problems of an already present instability at the lumbo sacral junction.
The plaintiff did have recognisable permanent disability which is mainly in relation to his lower back. More specifically he had a defect in the pars interarticulare's of L5 vertebra with spondylolisthesis of L5 on S1. In Mr Batalin's experience this is associated with a greater tendency for progressive and earlier degenerative changes at L5‑S1 disc. There was also a compounding problem of congenital anomaly of the spina bifida of L5.
Patients with spondylolisthesis have a higher incidence of predisposition to Scheuermann's disease.
Future work capacity of the plaintiff would be affected by congenital and developmental problems which included grade 1 spondylitic spondylolisthesis.
Dr Peter Connaughton is an occupational physician. He saw the plaintiff on 2 July 2001 some nine and a half years after his accident for the purposes of medico/legal assessment. The plaintiff indicated symptoms in a number of areas including the top of the neck/base of the skull, centrally between T5 and T11, bilaterally over both scapulae and in the lower lumbar spine mainly to the right at L5/S1.
Dr Connaughton noted that he could walk on his toes and heels and crouch fully with slight lumbar pain on the latter. The axial load test was negative. Examination of the fingers, wrists and elbows was normal. He had full shoulder movements but some discomfort in the axillae posteriorly on full abduction. In the neck he had no pain on full flexion but some soreness at the top of the neck on full extension. He had soreness at the top of the right shoulder on lateral flexion to the half normal range. Right rotation was to 60 degrees and left rotation to 45 degrees with no pain.
The spinal shape was normal. In the thoracolumbar spine he has no pain on full rotation but had lumbar lower pulling on the full lateral flexion. Forward flexion was to 90 degrees or to the lower third of the tibia with tightness in the ham strings and only slight low back discomfort. Extension is to 20 degrees with maximal symptoms at L5‑S1 but also at T8.
Knee and ankle reflexes were brisk and symmetrical. Straight leg raising is to 50 degrees with ham string tightness rather than back pain. He can sit upright to 90 degrees and feels "looser" on slumping.
Dr Connaughton's view was that the plaintiff has a chronic pain syndrome with a pattern of symptoms reflecting chronic fibromyalgia. The x‑rays and clinical examination did not suggest any significant injury to the spine itself and in Dr Connaughton's view it was most likely that the pars defects and spondylolisthesis are developmental rather than as a result of the accident.
Regarding the causation of his symptoms Dr Connaughton was of the view that it was most probable that his neck and upper back pains were related to the motor vehicle accident. With regard to the low back pain it was his view that that was a pre‑existing condition.
Dr Connaughton estimated that he had approximately 10 per cent permanent disability to the cervical thoracic spine as a result of the accident.
Dr Connaughton reviewed the plaintiff on 27 January 2004 in excess of 12 years after his accident. At that time the plaintiff was complaining of soreness in the mid back, low back and neck. Again, Dr Connaughton was of the view that the pars defects, spina bifida and spondylolisthesis were pre‑existing conditions. Although the plaintiff was coping with his apprenticeship Dr Connaughton was of the view that he was at significantly increased risk of a back injury in that type of work.
Mr Barry Slinger is a spinal surgeon. He reviewed the plaintiff on 18 February 2002 some 10 years following his accident for the purposes of medico/legal assessment. At that time the plaintiff was complaining of pain in the upper neck at the base of the skull radiating to either side and pain in the mid and low back.
On examination the plaintiff presented as a man of slim build with good generalised muscle tone and moved without obvious problem. In the cervical spine tenderness was noted to either side of the mid line in the mid and lower segments whilst movements appeared entirely full and painless. At the shoulders no wasting, no tenderness, movements were full, whilst at the right shoulder there was some minor discomfort and extreme deflexion and external rotation. In the lumbar spine tenderness was absent, movements were full and painless with the exception of extension which was associated with some discomfort. Straight leg raising was not limited and there was no neurological deficit in either lower limb. Gait was normal.

Mr Slinger was of the opinion that the findings were consistent with soft tissue injuries to the cervical and lumbar spines occasioned by the motor vehicle accident. The spondylolisthesis pre-existed the motor vehicle accident and in all probability was congenital in origin.
Mr Slinger was of the opinion that his present symptoms were unlikely to affect his ability to continue in his chosen apprenticeship as a heavy duty mechanic although clearly it would be in his best interests to pay particular attention to avoiding provocation and as necessary receive appropriate back education in terms of correct lifting and bending technique.
Mr Slinger reviewed the plaintiff again on 20 January 2004. His opinion remained unchanged.
In evidence Mr Slinger said that he did not place any restrictions on the plaintiff's duties as a heavy diesel mechanic. However, he should avoid heavy physical activities. He could continue in heavy duty occupations for the remainder of his life but there were restrictions on lifting and bending.
Dr Andrew Harper is an occupational physician. He saw the plaintiff on 27 September 2002 almost 11 years following his accident for a medico/legal opinion.
At that time the plaintiff's current symptoms included mid back pain, neck pain and low back pain.
On examination the plaintiff appeared in no distress. His posture, agility and gait were normal. He sat through the interview without apparent discomfort. Examination of the lower back, power reflexes and sensation were normal. He was able to squat and hip flexion in the standing position was unimpeded. Straight leg raising was 80 degrees bilaterally with a negative stretch test. His hamstrings were tight. Range of back movement was unimpeded. In forward flexion his hands reached the mid to lower shin and extension, rotation and side flexion were all within normal limits. On palpation there was tenderness over the spines process of L5. Movement was normal in shoulders and neck. There was tenderness in the neck at the base of the skull bilaterally and over the spine at C6. At the level of T6 there was tenderness laterally to the spine left and right. Examination of the arms revealed no abnormality.
Dr Harper was of the view that the plaintiff had sustained a strain injury to the cervical thoracic and lumbar spine. He had spondylolysis and L5‑S1 spondylolisthesis. He was capable of working as a heavy duty mechanic apprentice with some relatively unintrusive restrictions but this was only done with the presence of symptoms. His work capacity was reduced to some degree and Dr Harper would advise against heavy manual labour and work as a car mechanic due to prolonged bending. Dr Harper considered with the benefit of care, good physical fitness and some good fortune the plaintiff may be able to work on the family farm and work as a truck mechanic. He had a mild residual disability in the thoracolumbar spine and a slight disability of the cervical spine.
Dr Harper reviewed the plaintiff on 22 January 2004. His examination and findings on that occasion were largely unchanged.
Mr Julian Painter is a dental surgeon and he saw the plaintiff on 17 March 2003 in excess of 11 years following his motor vehicle accident. The plaintiff complained of chipped teeth from a traumatic accident. Examination revealed a small enamel chip on the upper left first molar and an existing restoration on the upper left central incisor. Mr Painter recommended restoration of the molar and a scale and clean but the plaintiff did not return for treatment.
Mr Painter saw the plaintiff again on 22 June 2003. The condition of the upper teeth was unchanged. However, the lower left central incisor was significantly discoloured and failed to respond to a vitality test. A radiograph revealed chronic apical pathology, symptom free below both the lower left central incisor and the lower left lateral incisor. The death of the pulp of these two teeth was almost certainly the result of trauma to the teeth and was consistent with an injury sustained in a motor vehicle accident over the period claimed.
Treatment of the lower incisors would ideally involve root filling both lower left incisors, non‑vital bleaching of the lower left central incisor, followed by final restorations of both teeth. Restoration of the chipped upper left first molar should also be completed.

Findings

The plaintiff's complaints before me were of neck pain and back pain.
With respect to the neck pain he was seen by Dr Michael Richardson a general practitioner at the scene of the accident. Dr Richardson was of the view that he had a whiplash type injury to his neck. For that reason he was treated by being placed supine on a stretcher with his head supported so that neck movement was limited and transferred by St John Ambulance to Princess Margaret Hospital for further assessment.
The report of Dr John Stace, Deputy Medical Director of Princess Margaret Hospital, dated 18 March 1992 indicates that on arrival he complained of a tender neck. On examination he was noted to be alert. No significant abnormalities were detected. He was diagnosed as having a whiplash injury. An x‑ray of his cervical spine was normal.
He was reviewed on 26 December 1991 when it was noted that he was pain free with a good range of movement and that power and sensation were normal.
There was no record that he attended Princess Margaret Hospital subsequently.
The plaintiff attended on Mr Loton, the chiropractor, on 15 July 1992. Mr Loton noted vertebral dysfunction at the C2‑3 and C5‑6 level. There was no evidence of acute muscle spasm in the lateral cervical muscle group. He also presented to Mr Loton on 19 February 1993 and 11 January 1994 complaining of neck soreness. However when Mr Loton saw the plaintiff on 16 September 1994 he was of the view that he did not show any further problems as a result of the accident.
He saw Dr Lee on 19 May 1993 when he had a full range of movement of the neck.
When he saw Mr Stewart, the orthopaedic surgeon, on 14 July 1993 his ranges of movement were all excellent.
Apart from his attendances on Mr Loton the chiropractor he did not see a medical practitioner again until 21 September 1998 when he again saw Mr Stewart. It was a period of in excess of five years. Mr Stewart did not recommend any treatment.
Thereafter the only doctors that he has seen in relation to his neck pain are for the purposes of medico/legal reports. Those doctors have seen him many years after his accident and largely rely on what the plaintiff tells them.
None of those doctors reported finding anything wrong with his neck.
His next attendance on a medical practitioner was when he saw Mr Batalin on 6 June 2001 some 9½ years following his motor vehicle accident.
Mr Batalin also noted a number of inconsistencies on clinical examination of this area. He could not detect any evidence of major injury to the upper spine. It was possible the plaintiff sustained a soft tissue strain lower neck injury but he could find on convincing signs of objective significant disability. Mr Batalin is a specialist orthopaedic surgeon and I prefer his evidence to that of the other medico-legal assessments performed at a later date.
It is my finding that the plaintiff suffered a whiplash injury of his cervical spine of a moderate degree.
In relation to his upper back pain Dr Michael Richardson also noted he appeared to have suffered an injury to his mid to upper thoracic spine. However, on arrival at Princess Margaret Hospital he made no complaint of back pain. When he saw Mr Loton on 15 July 1992 he complained of mid back pain and pain in the lower back. But Mr Loton did not diagnose any injury. When he saw Mr Loton on 19 February 1993 and 11 January 1994 he complained of low back soreness. When Mr Loton saw the plaintiff on 16 September 1994 he did not consider that he appeared to show any further problems as a result of the accident.
When he saw Mr Stewart on 14 July 1993 he complained of low back discomfort. However, Mr Stewart found he had a full normal range of lumbar mobility.
Apart from seeing Mr Loton on two occasions the plaintiff did not complain again about back pain until he saw Mr Stewart again on 21 September 1998. At that time he complained of sore mid to lower back.
Mr Stewart described his lumbar movements as excellent, his reflexes symmetrical and normal.
It was then that Mr Stewart arranged for him to have an x‑ray of his spine. This showed that in fact he had at the lumbar level spondylolysis and spina bifida occulta, a congenital or pre‑existing problem which was likely to give him ongoing problems in the future and should be monitored.
Thereafter the only doctors that he has seen in relation to his back pain have been for the purposes of medical/legal assessment. He has not had any treatment on his back and nobody has suggested that he should.
In my view the most thorough examination was made by Mr Batalin. He could find no tenderness over the lumbar or sacral spine. Initially there was tenderness over the T2 level but checking revealed tenderness over T8 and T12. It was Mr Batalin's view that there were some recognisable permanent disability to the lumbar spine because of his spondylolisthesis but this was unrelated to the motor vehicle accident. From the point of view of the motor vehicle accident he could not detect any permanent or major disability.
On the basis of that medical evidence it is my finding that the plaintiff has suffered with mid back pain and lower back pain of a mild degree as a result of the accident.
I also accept Dr Connaughton's view that whilst it is possible that the plaintiff's lumbo sacral symptoms from the pars defects and the spondylolisthesis could possibly have been precipitated by the crash that was not supported by the documents that he reviewed.
On the basis of that medical evidence it is my finding that the plaintiff has suffered with a back pain of a mild degree and that there is no evidence that the problems that he may be having with his lower back are related to the motor vehicle accident.
The plaintiff made no complaint to me about problems with his teeth. However, it is accepted that the medical treatment to his teeth arose from the motor vehicle accident and I take that into account when assessing his claim.

Non‑pecuniary loss

The plaintiff claims damages for non‑pecuniary loss being pain and suffering and loss of enjoyment of life both past and future.
Following his accident the plaintiff returned to school for the 1992 school year without any loss of time from school. He left high school in year 10 and attended two years at Harvey Agricultural School. He then did a one year pre‑apprenticeship course and is presently in a four year apprenticeship.
Following his accident he continued to play sport at school. He eventually gave up both cricket and football but the medical evidence is to the effect that because of his congenital defect in the lumbar spine he should not be playing either cricket or football. The medical reports would indicate that fast bowling to which the plaintiff aspired would simply not be on the agenda because of the congenital defect. Currently the plaintiff both jogs and swims. He also told me that he surfs, notwithstanding his plea in par 10(a) of the statement of claim that he is unable to surf by reason of his injured state.
In my view the plaintiff has suffered modest injuries with respect to his accident.
This claim, by reason of its age is not subject to the restrictions on damages for non‑pecuniary loss as set out in s 3C of the Motor Vehicle (Third Party) Insurance Act 1943.
For non‑pecuniary loss I assess the sum of $40,000.

Loss of earning capacity

The plaintiff claims loss of future earning capacity as follows:
"1.Although the Plaintiff will qualify as a Heavy Duty Diesel Mechanic in February 2005, he will be unable to carry out the full range of duties due to his accident caused disabilities and he is less competitive in the open labour market. The probability is that he will return to the family farm where he will be restricted in the full range of duties that are required of a farmer. He will need to employ contractors to do heavy farm work such as fencing, stump removal, stone removal, digging and other heavy duties.
2.The Plaintiff seeks an allowance for loss of earning capacity as he has lost a capital asset, he competes unequally with others in the open labour market, he will find his farming duties more difficult to do, he will be precluded from certain duties and will require others to assist. His employability in his chosen trade is limited as he has restrictions.
3.A global assessment of damages for the loss of a chance and of the Plaintiff's loss of earning capacity is sought.
4.The Plaintiff has been devalued by say, 30% due to his accident caused disabilities."
The plaintiff lost no time from school as a result of his accident and completed his year 10 in 1997. During 1998 and 1999 he attended Harvey Agricultural College. During that time half of his school time was spent in class and the other half was spent doing trade work and farm work. He was still playing under 16 football at that time. He completed that course and during the year 2000 he did a pre‑apprenticeship course at TAFE in Bunbury. In 2001 he commenced a heavy duty mechanics apprenticeship in Bunbury and he is still proceeding with that apprenticeship. That is a four year course. He is not interested in sedentary work, only outdoor work. In respect to his apprenticeship it was his evidence that he was able to manage the duties required of him. Everything is lifted mechanically. There is a lot of jig lifting involved.
He will complete his apprenticeship on 14 February 2005. At the conclusion of his apprenticeship he wants to return to the family farm. He also intends to do some heavy duty mechanical work.
The medical evidence is to the effect that by reason of his congenital and developmental problems in the lower back being the spina bifida occulta of L5 vertebra and grade 1 spondylitic spondylolisthesis of L5 on S1 that he ought not to be doing the type of work that he is presently doing. However that is the only reason that he should not be doing that work. I have already found that injury is unrelated to his motor vehicle accident. None of the medical evidence suggests that by reason of his complaints in relation to his cervical spine or to his upper back is there any reason for him not to be working in the occupation that he is presently doing.
On those findings I am of the view that there has been no loss of future earning capacity on the part of the plaintiff and I do not allow anything under this heading.

Future medical treatment

The plaintiff claims future medical treatment as follows:
"1.The Plaintiff will be required to attend upon Dr Peter O'Sullivan twice per annum at a cost of $60.00 per visit.
2.The Plaintiff requires analgesic medication for twice weekly headaches and for neck and back pain and he takes 1-4 Panadol tablets per day at a cost of $11.95 per packet of 100 tablets.
3.The Plaintiff will require physiotherapy treatment, physical therapy, chiropractic treatment and massage from time to time, say once per month, at a cost of $41.50 per visit to a physiotherapist and $34.10 per chiropractic visits.
4.The Plaintiff will require dental treatment at an agreed cost of $1,194.00 (see Dr Painter's report p 17).
5.The Plaintiff will be required to attend a gym on a regular basis-annual gym membership is $500.00
6.The Plaintiff will required to attend a specialist once per annum at a cost of $80.00 per visit and also radiological investigation.
Future dental costs are agreed at the sum of $1,194 and I allow that sum.
With respect to other future medical expenses it is many years since the plaintiff has had any treatment at all.
At least since he saw Mr Stewart in 1998 all of the plaintiff's other attendances have been for medico/legal review. The total medical expenses in the past have amounted to $430.
I think it most unlikely that the plaintiff will undergo any further medical treatment.
I accept Mr Batalin's evidence that there is no indication for treatment of possible original soft tissue strain neck injury. I also accept Mr Batalin's evidence that he would strongly advise against manipulative treatment to the lower back. In his experience patients with spondylolisthesis do not respond well to manipulative treatment and there is a possibility of aggravating symptoms and problems of an already present instability at the lumbo sacral junction.
I allow the sum of $1,194 under this heading.

Special damages

Special damages are agreed in the sum of $878 and I allow that sum.

Conclusion

It follows that the plaintiff is entitled to damages as follows:
Non‑pecuniary loss  $40,000
Loss of future earning capacity  nil
Future medical treatment  $ 1,194
Special damages  $     878
$42,072
The plaintiff is entitled to judgment against the defendant in the sum of $42,072.

[2004] WADC 90

13 May 2004