Beatty v Beatty - [2004] WADC 58

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: BEATTY -v- BEATTY [2004] WADC 58

CORAM: WILLIAMS DCJ

HEARD: 2-4 FEBRUARY 2004

DELIVERED : 1 APRIL 2004

FILE NO/S: CIV 320 of 2003

BETWEEN: DANIEL JOHN BEATTY
Plaintiff
AND
MERIOL SYLVIA BEATTY
Defendant

Catchwords:

Damages - Assessment - Personal injury - 24 year old male receival point operator - Complaining of neck and back pain and headaches

Legislation:

Evidence At 1906

Motor Vehicle (Third Party) Insurance Act 1943

Result:

Plaintiff entitled to damages in the sum of $78,052.18

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 22 February 1980 in Boyup Brook. At the time of his accident he was 11 years and 10 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 his statement of claim the plaintiff alleges that he suffered the following injuries:
"(a) Whiplash injury to neck.
(b)     Fracture of C2 spinous process.
(c)     Whiplash injury to thoracolumbar spine.
(d)     Trauma to right forehead.
(e)     Trauma to right knee."
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)Frequent bifrontal/temporal headaches.
(c)Pain and discomfort in the thoracolumbar spine with limitation/restriction of back/spinal movement.
(d)Pre-existing bed wetting symptoms became worse for a period of approximately three years post accident.
(e)Occasional pins and needles sensation in both feet.
(f)Aggravation of symptoms referred to in (a), (b) and (c) above by prolonged standing repeated bending movements, sitting, driving, twisting movements, lifting, walking on uneven surfaces, running, desk work."
By par 9 of his statement of claim the plaintiff alleges that he continues to endure physical discomfort and disability as follows:
"(a)Constant pain and stiffness in the low back often radiating or extending across the low back area to either side and sometimes extending distally to the coccyx or to the buttocks.
(b)The ongoing low back symptoms are aggravated by standing in one position for any length of time, by sitting for long periods, by twisting movements, when lifting certain objects and when bending too much.
(c)He has difficulty straightening his back when he has been sitting down for too long.
(d)Constant neck pain and discomfort which is aggravated by sitting for too long, when doing desk work and when driving. When the level of the Plaintiff's neck symptoms are particularly troublesome for him there is radiation of pain and discomfort to both shoulders.
(e)Headaches continue most days predominantly in the frontal area.
(f)Occasional pins and needles sensation in both feet."
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 at a computer without aggravation of neck and back symptoms.
(c)Inability to walk long distances.
(d)Running aggravates his neck and back symptoms.
(e)He ceased playing cricket at about the age of 15 years.
(f)He has avoided body surfing on account of his injured state.
(g)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 being abrasions to his right forehead and right knee with a whiplash type injury to his neck. He was treated with cleaning to his abrasions and placed supine on a stretcher with head support to limit neck movement. He was transferred by St John Ambulance to Princess Margaret Hospital for Children for further assessment.
The report of the 19 March 1992 of Dr John Stace, Deputy Medical Director of the Princess Margaret Hospital for Children reported that the plaintiff attended the emergency department on the day of the accident complaining of neck pain on movement. There was no paresthesia or weakness. He had no other complaints. On examination he was alert and no significant abnormalities were detected. He was diagnosed as having a whiplash injury. X-ray of the cervical spine was normal. He was discharged home.
He was reviewed on the 26 December 1991 when it was noted that his neck was still stiff and painful to move. However, he had adequate pain relief with Panadol. He attended the fracture clinic on 30 December 1991. It was noted that he had mild spasm and he was continued with a collar.
He was reviewed again at the fracture clinic on 3 January 1992. It was noted that he had no spasm and 75 per cent of full range of movement. He had an appointment to attend on 24 January but there was no record of him having attended.
In a report dated 23 October 1992, Mr G B Loton a chiropractor of Australind Chiropractic Clinic reported seeing the plaintiff on the 15 July 1992 some 6 months following his accident. At that time he presented complaining of pain in the groin. The problem had developed insidiously over recent weeks.
On examination there was palpable tenderness over the right gluteal musculature and adductor muscle origin on the right thigh. There was a full range of movement (passive) of the right hip joint. There was slight decrease in right lateral flexion (lumbar spine). Examination of the cervical spine revealed a vertebral dysfunction at the C5/6 level. There was no evidence of neurological deficit.
Mr Loton diagnosed the plaintiff as having a mild muscular strain of the right inner thigh which he stated was unrelated to the motor vehicle accident of 25 December 1991. He was treated with soft tissue therapy to the associated area. He was also treated with chiropractic manipulative therapy for his cervical dysfunction.
On 23 November 1994, Mr Loton reported having attended on the plaintiff on 11 January 1994. At that time he had been asymptomatic since his previous visit on the 15 July 1992. He had a full range of movement in his cervical and lumbar spine. He received chiropractic adjustments to his mid thoracic spine. At this time the plaintiff's family were attending a chiropractor from time to time as a matter of course. It is noteworthy that the plaintiff reported being asymptomatic between 15 July 1992 and 11 January 1994 a period of 18 months not long after the accident.
Mr Loton further reported that on 16 September 1994 the plaintiff presented with right groin pain. It appeared to be a similar complaint as of 15 July 1992. (It is agreed by counsel that the reference to the 15 July 1994 is incorrect). On examination he had a palpable tenderness over the right inner groin and was diagnosed as suffering a mild muscular strain (probably due to sport). He was treated with soft tissue therapy and stretching technics. Mr Loton reported that the plaintiff did not show any residual problems as a result of the motor vehicle accident. This in my view is also significant.
On 20 May 1993, Dr Tony Lee, a general practitioner of Boyup Brook reported having seen the plaintiff on 17 September 1992 some 8 months following his accident. At that time the plaintiff complained of pain in the back of the neck. The pain occurred in the mornings and was also aggravated by sports especially jumping sports. He was advised to have physiotherapy as required and also painkillers as necessary.
On 19 May 1993 the plaintiff saw Dr Lee again. At that time he complained that the neck and upper back were still sore at times. The pain was intermittent and aggravated by sport. On examination the neck had a full range of movement as did the back except for slight limitation to flexion. He could bend as far as touching the shins with his fingertips. Dr Lee advised him to have physiotherapy and painkillers as required.
Mr Ian Stewart is a orthopaedic surgeon. He saw the plaintiff on 14 July 1993 some 18 months following his motor vehicle accident. At that time the plaintiff was concerned with right and left flank pain sometimes when sitting or in early morning. He also stated that he occasionally wore a neck brace or took Panadol for cervical symptoms.
Mr Stewart described him as standing with a normal posture and physique for a person of his age. He admitted to some vague neck and right and left sacro-iliac pain. He had normal function and a full range of movement of his shoulder blades and gleno-humeral joints. The thoracic cage was normal to formal examination. He described some discomfort to percussion of his thoracic and lumbar spine. He walked with a smooth gate and normal muscle rhythm, had no difficulty when on toe or heel, to balance, hop, squat or waddle. He had good function and a normal range of lumbar spinal mobility. Mr Stewart discussed the matter with the plaintiff's mother and felt it was inappropriate to proceed to x-ray studies.
Mr Stewart next saw the plaintiff on 21 September 1998 and 7 October 1998 almost five years since he had previously seen him.
At that time he was complaining of headaches, some 5-6 times per week. He also had neck and back pain. On examination he stood with normal posture and spinal curves. He had a normal gait and muscle rhythms, no problem with walking on toe or heel, balance, hop, squat or waddle. All his movements were excellent, the reflexes were equal and brisk. On examining his neck Mr Stewart palpated no nodules or muscle spasm. An excellent range of movement in all parameters was demonstrated in his neck, shoulder blades, shoulder joints and upper limbs. There were no symptoms about his brachial plexuses. His grips were equal and strong, and the reflexes were normal.
Subsequent to the assessment Mr Stewart arranged for him to have an x‑ray of his neck and lumbar spine. Radiology showed that he had a fracture fragment in his erector complex at the C2 level which was well corticated and unlikely to be causing any significant symptoms. In the low spine there was an anatomical variant of developmental or congenital origin pre-existing his accident but likely to give him on going problems into the future. This latter aspect was not followed up by either the plaintiff or the defendant and I heard nothing further about it.
At that time the plaintiff was complaining of headaches and Mr Stewart believed it was appropriate for him to have a thorough neurological assessment.
Dr Andrew Nyman is a general practitioner. He saw the plaintiff on 6 August 1996. At that time he noted the plaintiff's history as approximately five years of intermittent mainly frontal headaches, worse in the morning and after exercise, occasionally accompanied by light headiness but with no other associated features. In particular no reference was made to the motor vehicle accident or to neck pain. This in my view is significant. Clinically, Dr Nyman noted no abnormal findings. He arranged for a CT of the head which was essentially unremarkable. He referred the plaintiff to Dr Ross Goodheart a neurologist but subsequently received a letter from Dr Goodheart noting that the plaintiff failed to keep his appointment. I infer from this that the headaches were not greatly troubling the plaintiff. I note that the plaintiff subsequently saw Dr Goodheart in March 1999 some 2½ years later. The plaintiff did not attend on Dr Nyman again.
Dr Peter Silbert is a neurologist. He saw the plaintiff on 11 November 1998. The plaintiff was concerned about his headaches which he described as occurring six out of every seven days during the week. These were bi-frontal temporal pressing headaches without any occipital component. Examination revealed a slim young man whose neurological examination was normal. He had a full range of movement of his cervical and lumbar spine, with diffuse tenderness over the cervical musculature and to a lesser extent the cervical spine facet joints.
Dr Silbert described the plaintiff's headaches as primarily muscle contraction headaches rather than cervicogenic headaches. He commenced him on amitriptyline to improve the quality of his sleep and provide some muscle relaxation overnight. He did not make a further appointment to review the plaintiff.
It was Dr Silbert's opinion that trauma could be a cause of such headaches. However, he was of the view that it was best for the plaintiff to put his headaches to the back of his mind and focus on work or recreational activities. The best thing for the plaintiff to do was to work productively. At the time the plaintiff was studying agriculture and Dr Silbert did not see any reason to advise him against that. He would not encourage the plaintiff to give up study for headaches. However, he accepted that headaches impair concentration and make studying more difficult.
Dr Ross Goodheart is a consultant neurologist. He saw the plaintiff on 15 March 1999 in excess of seven years following his accident for a medico-legal opinion. His examination showed his heart rate to be 72/minute and blood pressure was 120/80. There were no carotid nor cranial bruits. His visual acuity was 6/6 in both eyes uncorrected and the visual fields were full. Funduscopy was normal and the pupils were equal and reactive to light and neon stimulus.
There was a full range of conjugate eye movement without nystagmus. There was a mildly reduced range of neck movement, particularly lateral flexion to both sides. He was tender over the base of the cervical spine in the mid line. There were no focal signs in the upper limb examination. Again there was a restriction of movement of the lumbar spine with an inability to achieve full flexion. There were no focal signs in the lower limbs.
Dr Goodheart viewed a cranial CT which had been arranged in 1996. No abnormality was demonstrated. Plain films of the cervical spine taken in 1999 showed an un-united fracture of the spine of the C2 vertebrae.
It was his opinion that the plaintiff has suffered a significant soft tissue injury involving the cervical, thoracic and lumbosacral spine. His on going symptoms in the spine were directly related to the motor vehicle accident of 1991. The plaintiff had been left with significant residual disability with respect to the symptoms. He was troubled by ongoing neck and lower back pain. There was a limitation of movement at the neck and lower back. In addition to the spinal symptoms, Mr Beatty was suffering with muscle contraction headaches which he felt could be directly related to the motor vehicle accident. He felt that there had been an impairment of cervical, thoracic and lumbosacral spine function to a total of 20 per cent. In addition there was an additional five per cent disability relating to muscle contraction headaches.
He considered that the plaintiff would require ongoing treatment in the form of analgesic medication and occasional physical therapy. These physical therapies could include hydrotherapy, physiotherapy or more structured exercise programmes.
In his report of 29 January 2004 in answer to a specific question Dr Goodheart stated that the symptoms would persist for the foreseeable future. He anticipated costs relating to analgesic medication to be in the vicinity of $100 per annum and if further courses of scalp massage or physical therapy directed towards the neck or lower back were required costs maybe in the vicinity of $1000 per annum. He considered that he was partially incapacitated for work due to ongoing symptoms.
Dr Andrew Harper is a occupational physician. He saw the plaintiff on 3 August 2000 in excess of 8½ years after his accident for a medico-legal opinion.
On examination the plaintiff was a tall young man who was in no distress. He had a pleasant relaxed manner and gave a clear history. His gait was normal on limited observation of walking. He experienced stiffness when standing after having been seated for a period. His posture was normal. Weight was 68 kilograms. On examination spine curvature did not demonstrate any gross abnormality. Power reflexes and sensation in his legs were normal. Straight leg raising was 65 per cent bilaterally with a negative stretch test being limited by tight hamstrings. On palpation there was tenderness over the mid-sacrum but no spinous tenderness in the lumbar spine. The range of thoracolumbar movement was reduced. In forward flexion his hands reached the upper shin and only slightly lower when sitting but this was with discomfort. Extension was 75 per cent of normal, side flexion and rotation were within normal limits. Shoulders demonstrated normal range of movement. There was slight reduction in flexion of the neck. Examination of the arms revealed no abnormality. There was slight tenderness over spinous processes two and three in the neck and over the trapezius muscles bilaterally.
Dr Harper was of the view that the plaintiff's work capacity had been adversely affected by his injury. He was capable of his present work as a receival point operator with CBH due to flexibility in the job. He was incapacitated for a clerical position involving continuous deskwork or computer work. His restrictions were to avoid prolonged deskwork and computer work, prolonged driving, prolonged standing in one position, repeated bending, heavy lifting and prolonged walking. Dr Harper assessed the plaintiff's permanent disability as 20 per cent of effective function of the whole body due to his neck injury and chronic lower back pain.
Dr Harper was of the view that he would require periodic use of simple analgesics, to maintain physical activity and periodic massage was reasonable.
Dr Harper agreed that his injuries were consistent with soft tissue injuries and that the majority of persons with soft tissue injuries recover. He also agreed that he relied on what the plaintiff told him. Eighty per cent of his diagnosis was based on what the plaintiff had said.
Mr Nick Batalin is a orthopaedic surgeon. At the request of the defendant he saw the plaintiff on 15 January 2001 some nine years after his accident for medico-legal assessment.
The plaintiff told Mr Batalin that his current symptoms included:
(a)Continuous low back pain which is aggravated by bending and standing for more than five minutes. It is eased by lying down.
(b)Periodic pains in the buttocks which occur approximately once a week and last a day or so at a time.
(c)Stiff feelings in many joints including the shoulders, knees and ankles.
(d)As an after thought, towards the end of the interview he also volunteered having headaches. He seemed unsure of the headache but mentioned eventually that it tends to be frontal. He told Dr Batalin that this is periodic and may occur on five days out of the week. He was not sure of the quality but eventually accepted one of the suggested symptoms – dull headaches.
(e)As the plaintiff was leaving he told Dr Batalin that he had been suffering from continuous soreness "in the stomach". He pointed to the upper abdomen. He was not sure of precipitating, aggravating or relieving factors.

On examination Mr Batalin found the plaintiff to be a tall, slim young man of approximately 67 kilograms in weight and 184 centimetres in height. He was noted to sit normally during the interview and demonstrated a good range of head and neck movements. His gait pattern was physiological. He had a tendency for poor posture with slightly increased thoracic kyphos but there was no localised deformity.
Checking for areas of spinal tenderness did not show any reproducibility. Initially there was tenderness over the T7 area but rechecking revealed tenderness over the C6-7 area of the neck. Formal assessment of the cervical movement revealed 25 per cent restriction. Head and neck flexion was 40 degrees, extension was 40 degrees, rotation was 60 degrees to each side and lateral flexion was 30 degrees to each side. However, using indirect methods of assessment Dr Batalin noted a near normal range of cervical movements, eg when his attention was attracted to blemishes on the right and then the left shoulder Dr Batalin noted a brisk rotation of the head and neck of 90 degrees to each side. When looking at his toes, head and neck flexion was 60 degrees and in the prone position extension was around 50 degrees.
Formal assessment of thoracolumbar spine movements revealed 20 per cent restriction. He could reach with his fingertips to a level a quarter of the way up the shin, extension was 15 degrees and lateral flexion 35 degrees to each side but, again, indirect methods of assessment revealed a near normal range of thoracolumbar spinal movements. When sitting on the examination couch with both legs extended he could reach with his fingertips to the level of his feet, in the prone position extension was 25 degrees and lateral flexion was around 40 to 45 degrees to each side.
Neurological assessment revealed no localising cranial nerve abnormality, no detectable weakness, normal muscle tone, symmetrically normal biceps, triceps, knees and ankle reflexes and no dermatomal sensory loss. Brachial plexus stretch test was bilaterally negative.
Straight leg raising test in the sitting position was bilaterally negative but straight leg raising done formally was allegedly painful when each leg was elevated to 70 degrees. Again this was inconsistent with his ability to sit on the examination couch with both legs extended.
The patient had normal range of pain free shoulder, elbow, hip, knee and ankle joint movements without any detectable local pathology.
Mr Batalin noted defuse poorly localised symptoms affecting many wide spread areas but could not detect any significant pathology accept for an old un-united fracture of the C2 spinous process. He also noted a number of inconsistencies during clinical assessment which raised the possibility of other environmental factors effecting the plaintiff's symptom perception.
Dr Batalin felt the management should be conservative. It should include preventative care of his neck, graded exercises designed to increase strength in the neck and back supporting muscle groups. He thought that manipulative therapy of the neck was contra-indicated in view of the old un-united fracture of C2 spinous process. He saw no contra-indication for the plaintiff to continue full time work but in view of evidence of an un-united fracture of the spinous process of C2 in his neck it was best that he should avoid labouring occupation.
Dr Peter Connaughton is an occupational physician. He saw the plaintiff on 2 July 2001 some 9½ years after his accident for the purposes of medico-legal assessment.
Dr Connaughton noted that the plaintiff had normal spontaneous mobility and walked with a normal gait and moved at a normal speed.
The plaintiff indicated that symptoms affect a relatively wide number of areas including all of the neck centrally, the top of both trapezii, the forehead with aching along the length of thoracic spine and sharp pain across the low back. He also reported abdominal aching and aching in the feet and legs.
Dr Connaughton noted that he was able to walk on his toes and heels with no symptoms. He could crouch fully but with some stiffness in the thighs anteriorly. The axial load test was negative. He had a full range of movements in his fingers, wrists and elbows but reported some minimal stiffness.
In the cervical spine he reported pain and stiffness in each direction of movement-maximally on rotation and forward flexion. Forward flexion to the chin was four fingers from the chest and his neck felt very painful. He had full extension but felt stiff. Rotation was 50 per cent bilaterally with soreness in the trapezii on the right more than the left and also the neck and upper back. Lateral flexion is to 30 degrees to the right with stiffness in the left trapezius and 40 degrees to the left.
He had a full range of movements in both shoulders but reported low back symptoms on full flexion and reports left lower thoracic symptoms on full abductions. The shoulder movements alone would not usually result in low back symptoms.
In the thoracolumbar spine movements were performed relatively slowly and he reported maximum pain across the back on rotation bi-laterally to 70 degrees. He had left thoracic pain on right lateral flexion and pain across the low back on left lateral flexion. Extension was to 20 degrees and forward flexion was limited to the upper fifth of the tibia or 80 degrees to upright. He was rather cautious and limited on testing both neck and back movements.
Knee and ankle reflexes were brisk and symmetrical. Straight leg raising was to 50 degrees bi-laterally with hamstring tightness but no back or sciatic pain. He could sit upright to 90 degrees and slump but reported feeling sore in the low back.
Dr Connaughton noted a degree of difficulty in clarifying or explaining a number of aspects of the plaintiff's condition. These included the fact that the plaintiff felt that his neck symptoms were getting worse rather better, the fact that he reported symptoms in many areas and the fact that it would be usual to expect a much greater degree of improvement if all of his symptoms were from the motor vehicle accident.
Dr Connaughton was of the view that it would be usual to expect decreasing symptoms over time and if he had a normal range of neck and back movements in the past that would have persisted.
Dr Connaughton's view was that the plaintiff's condition was best described as a chronic pain syndrome. There was no indication for any surgical treatment. He felt it was relatively unlikely that further physiotherapy would have a significant overall effect.
He considered that he was fit to continue with his current duties on a fulltime basis but that he would need to follow all of the standard ergonomic precautions and be able to intermittently move about and stretch his neck and back. He should avoid or minimise heavy lifting and repetitive bending.
It was Dr Connaughton's opinion that the plaintiff had a 15 per cent permanent disability of the cervical spine and a 7 per cent permanent disability of the thoracolumbar spine, but it was his view that it would be unlikely that the motor vehicle accident would be responsible for more than half of that.
Dr Connaughton review the plaintiff on 27 January 2004 in excess of 12 years after his accident. At that time the plaintiff's management was occasional Panadol, Tiger Balm, regular stretches and occasional massage. It remained his view that the plaintiff's condition was best described as chronic pain syndrome. Again he could see no clinical indication for any surgical treatment.
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 neck pain, mid and lower back pain and persistent headaches.
On examination the plaintiff presented as a man of tall, lean build with good generalised muscle tone.
In the cervical spine there was no tenderness. Rotation to the right lacked a few degrees whilst all movements were associated with some minor discomfort at extremes. At the shoulders there was no wasting, no tenderness, movements were full and painless although elevation produced discomfort in the lower back.
In the remainder of the spine tenderness was absent, movements, forward bending fingers reaching to the middle third of the tibia and that range of movement was comparable when sitting on the couch with hips flexed, knees extended. The remainder of movements were full but said to be associated with a feeling of stiffness and discomfort at extremes. Straight leg raising was limited to 80 degrees because of tight hamstrings and discomfort in the low back. Deep tendon reflexes were present and symmetrical, and there was no sensory impairment in either lower limbs.
Mr Slinger was of the opinion that the plaintiff was fit to continue in his present employment. It would be in his best interest to receive advice at to correct lifting and bending technics with back education and to minimise driving a loader which he had found to be a specific aggravation presumably because of the balancing and jolting involved with that vehicle. He could see no reason why the accident would affect his ability to continue in that employment until the age of anticipated retirement. He did not think the motor vehicle accident would be associated with any premature degenerative change or the development of osteoarthritis.
He had no reason to doubt that the plaintiff's symptoms represent soft tissue injuries to the cervical and thoracolumbar spine occasioned by the motor vehicle accident. Mr Slinger had read various medical reports which detail that at various times the plaintiff's symptoms were asymptomatic and associated with a excellent range of movement and he thought it was somewhat unusual that symptoms in the low back have increased over the years and continued to increase. Similarly with respect to progression in the headaches throughout his secondary education.
He did not think that the motor vehicle accident would produce any additional problems in the future and had no reason to doubt that the accident was responsible for a least a component of his present symptomatology.
He was of the view that there was no need for the plaintiff to have periodic reviews with either a general practitioner or a specialist.
Mr Slinger reviewed the plaintiff again on 20 January 2004. His opinion remained unchanged.
Under s 79C of the Evidence Act 1906, I admitted a medical report of Dr Lawrence Hu dated 9 November 1994. Dr Hu is a consultant paediatrician. In that report he stated that he saw the plaintiff on 2 September 1994 because of bedwetting, recurrent abdominal pain and recurrent headaches. These were present before the motor vehicle accident but the symptoms were apparently worse since the motor vehicle accident. Dr Hu found it hard to correlate the symptoms with the motor vehicle accident.

Findings

The plaintiff's main complaints before me were of neck pain, back pain and headaches. He also over the time has made complaints about abdominal pains, bedwetting and pins and needles in his feet. However, with respect to these latter matters his counsel accepted that there was no medical evidence to support any of those complaints as being accident caused.
It is also clear from medical evidence that he suffered a fracture of the C2 spinous process. However, his counsel conceded that on the medical evidence that was not responsible for any significant symptomatology.
With respect to the neck pain it clear that the plaintiff suffered an injury to his neck in the collision. Dr Michael Richardson, who attended the scene of the accident arranged for him to be placed supine on a stretcher with head support to limit his neck movement.
The report of Dr John Stace from the Princess Margaret Hospital for Children indicates that on admission the plaintiff was complaining of neck pain on movement. He was reviewed from time to time at Princess Margaret Hospital but failed to attend an appointment on 24 January 1992, less than four weeks after his accident. There is no report of him having been seen again at Princess Margaret Hospital for Children.
He attended on Mr Loton the chiropractor on 15 July 1992. It was noted that the cervical spine revealed a vertebral dysfunction at the C5/6 level. He was treated with chiropractic manipulative therapy for the cervical dysfunction. There was no evidence of neurological deficit. He saw Dr Lee on 17 September 1992 and complained of pain in the back of the neck. When he saw Dr Lee 19 May 1993 he again complained of pain in the neck. He saw Mr Stewart on 14 July 1993. Mr Stewart described him as "admitting to some vague neck…pain".
After that he has not seen a medical practitioner in relation to his neck until he saw Mr Stewart again on 21 September 1998, a period of in excess of five years.
Thereafter the only doctors that he has seen in relation to his neck pain are for the purposes of medico-legal legal reports. Those doctors have seen him many years after his accident and largely rely on what the plaintiff tells them.
An examination of the medical evidence indicates that the plaintiff has made very little complaint of his neck pain in the early years and has had minimal treatment with respect to his neck. It is my finding that the plaintiff has suffered a whiplash injury of his cervical spine of a moderate degree.
In relation to his complaint of back pain he had made no complaint of back pain to the Princess Margaret Hospital. He did not complain of back pain when he saw Dr Loton. The first report of complaint of back pain in the medical reports is a reference to him complaining of his upper back being still sore at times when he saw Dr Lee on 19 May 1993. On examination he had a full range of movement in the back except for a slight limitation of flexion, ie he could bend as far as touching the shins with his fingertips. He was referred to Mr Ian Stewart who saw him on 14 July 1993. At that time he was concerned with right and left flank pain. Dr Stewart described it as right and left sacro-iliac pain. On the basis of that medical evidence the first real complaint of back pain was 23 May 1993 to Dr Lee a period of approximately 18 months post- accident. That was a complaint in relation to his upper back. His present complaints relate to low back pain.
It appears from the medical reports that the plaintiff did not complain again about back pain until he saw Mr Stewart again on 21 September 1998. That is a period of some five years. The complaint then was of lower back pain. Mr Stewart arranged for him to have an x-ray of the lumbar spine. That showed that in the lower spine there was an anatomical variant of developmental or congenital origin pre-existing his accident but likely to give him ongoing problems in the future.
Thereafter the only doctors that he has seen in relation to lower back pain have been for the purposes of medico-legal assessment. He has not had any treatment on his lower back and nobody has suggested that he should.
On the basis of that medical evidence it is my finding that the plaintiff has suffered lower back pain of a mild degree.
The plaintiff's other major complaint was in relation to persistent headaches. The first recorded medical evidence of the plaintiff complaining of recurrent headaches is when he saw Dr Hu on 2 September 1994. That is a period of almost three years following his motor vehicle accident. Dr Hu's report which I admitted under s 79C of the Evidence Act 1906 stated that he saw the plaintiff because of bedwetting, recurrent abdominal pains and recurrent headaches. These were present before the motor vehicle accident but the symptoms were apparently worse since the motor vehicle accident. Dr Hu found it hard to correlate the symptoms with the motor vehicle accident.
As Dr Hu was not able to be called and made available for cross-examination I put very little weight on the fact that the plaintiff had told him that he had recurrent headaches pre-accident. However, it is the fact that the first complaint to a medical practitioner of headaches was nearly three years following his motor vehicle accident. That complaint was to a consultant paediatrician and Dr Hu discounted it as being accident caused.
The plaintiff's next complaint of headaches was to Dr Nyman on 6 August 1996 a period of approximately two years after seeing Dr Hu. The complaint then was of the intermittent mainly frontal headaches. A CT scan of the head was essentially unremarkable. He referred the plaintiff to Dr Goodheart but the plaintiff failed to keep his appointment.
The next medical evidence of complaint of headaches is when he saw Mr Stewart on 21 September 1998, a period of in excess of two years since he saw Dr Nyman.
He saw Dr Silbert a neurologist, on 11 November 1998. His neurological examination was entirely normal. He saw Dr Goodheart also a neurologist on 15 March 1999. Again no neurological abnormality was demonstrated.
I accept Dr Silbert's evidence that the plaintiff's headaches were primarily muscle contraction headaches and the trauma could be a cause of such headaches. I also accept Dr Silbert's opinion that it was best for the plaintiff to put his headaches to the back of mind and focus on work or recreational activities and the best thing for him to do was to work productively. He would not encourage the plaintiff give up studies for headaches. However, he accepted that headaches impair concentration and make studying more difficult.
Examination of the medical of evidence indicates that the plaintiff has made very little complaint in relation to headaches in the years following his accident. It is only in recent time that he had been complaining of headaches. It is my finding that the headaches from which the plaintiff suffers are mild in degree.
Before me the plaintiff's evidence was the effect that the neck pain, the back pain and the headaches were severe and disabling. If that is the case on the basis of medical evidence it is difficult to understand why the plaintiff did not complain about low back pain and headaches in the years following his motor vehicle accident. It is now 12 years since the accident and the plaintiff's evidence is that his condition is worse and not better. The medical evidence is to effect that these types of soft tissue injuries resolve over a period of time or alternatively stay the same but do not get worse. It is clear from the evidence of Mr Batalin, whose evidence I accept, that he noted a number of inconsistencies during clinical assessment which raised the possibility of other environmental factors effecting the plaintiff's symptoms perception.
Dr Connaughton, whose evidence I also accept noted a degree of difficulty in clarifying or explaining a number of aspects of the plaintiff's condition. These included the fact that the plaintiff felt that his neck symptoms were getting worse rather than better, the fact that he reported symptoms in many areas, and the fact that it would be usual to expect a much greater degree of improvement if all of his symptoms were from the motor vehicle accident.

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. After he returned to school the plaintiff played cricket to age 13 and football to age 16.
His evidence as to what he could and couldn't do was generally along the line of the particulars of loss of enjoyment of life set out earlier in these reasons.
In my view the plaintiff suffered moderate injuries as a result of his accident. In my view he would be better taking the advice of Dr Peter Silbert, that the best thing he could do is put the accident to the back of his mind and focus on work or activities and that the best thing to do was to work productively.

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 $50,000.

Loss of future earning capacity

The plaintiff claims loss of future earning capacity as follows:
"1.The Plaintiff is nearly aged 24 so he has a future working life of approximately 41 years.
2.The Plaintiff has ongoing permanent residual disabilities and he is precluded from heavy work; being a farmer or undertaking the work of a Superintendent at CBH and numerous other jobs. He is precluded from full time clerical duties.
3.He is currently working full time at a job which, at 23, he is having difficulty coping with and requires rest during the day and to deploy others where possible. It is recommended that he do part time study to increase his opportunities and employability. The Plaintiff is in a "dead end job" and it is a job he never considered to be a vocation or career.
4.The Plaintiff competes unequally with others in the open labour market, he has been devalued as an economic unit, he has lost a capital asset, his employability has been reduced, the perimeter of his employment has been reduced. The Plaintiff has lost the chance to pursue aquaculture and/or farming. He has been devalued as an economic unit by 30%. The average earnings of a male in Western Australia as at August 2003 is $763 net per week. The loss to the plaintiff is 30% of $763 net per week = $228.90 x 813.4 (multiplier on the 6% for 41 years) = $186,187.26 less 10% adverse contingencies = $167,568.53.
5.Alternatively, a global assessment of $150,000 for the loss of earning capacity.
6.The plaintiff claims loss of superannuation entitlements as follows:
9% of $1,015 gross per week = $91.35 30% of $91.35 per week = $27.40.
$27.40 x 813.4 = $22,287.16 less 30% (CRS v Jongen) = $15,601.01 less 10% for adverse contingencies = $14,040.90."
The plaintiff lost no time from school as a result of his accident and completed his year 12 in 1997. He was able to pass those exams as he gained acceptance to Curtin University to study in agriculture and seafood science in 1998. He attended Curtin University in 1998 and passed only one unit out of eight. His father has set up six marron ponds on the farm and he wanted to be trained in agriculture and intended to work in aquaculture. According to the plaintiff he failed university because of headaches, backache and neck pain. However, there is no medical evidence to support this. He did not seek out medical assistance during the 1998 year for the purposes of tackling the university year. Dr Silbert's, whose evidence I accept, stated that he would not encourage the plaintiff to give up study because of the headaches. I do not accept the plaintiff's evidence that he failed his examination by reason of injuries suffered in his motor vehicle accident in 1991. That is simply his say so. He completed year 12 and passed his TEE in 1997 and gained admission to university.
When he saw Mr Stewart, the orthopaedic surgeon, at the request of his solicitors he told Mr Stewart that his headaches were affecting his ability to study. Mr Stewart recommended a neurological assessment. He then saw Dr Silbert the neurologist on 11 November 1998 for evaluation of his headaches. His neurological examination was normal. He had a full range of movement of his cervical and lumbar spine. Dr Silbert's evidence was that he would not encourage the plaintiff to give up study because of his headaches.
The plaintiff made no complaint about being able to complete university because of headaches, neck and back pain. Dr Silbert did not even make a further appointment to review the plaintiff.
In 1999 the plaintiff worked on his father's farm and on 27 November 1999 commenced fulltime for co-operative bulk handling. He works as a receival point operator responsible for some 17 receival points. He is allocated to a bin and has people under him and he is responsible to a supervisor. His job is to fill trucks and trains in the off-season and to supervise others during the harvest season. The work is of a physical nature. According to the plaintiff that causes him pain and requires him to lie down at lunchtime. He also spends sometime looking at a computer screen and that causes headaches.
He works an average of 43 hours per week but on occasion works up to 60 hours.
There is no evidence to suggest that he has precluded from becoming a superintendent at CBH other than his say so. Nobody from the plaintiff's workplace was called to give evidence as to the plaintiff's performance at work.
In my view the plaintiff is probably doing precisely what he would have been doing if he had not had the motor vehicle accident. The accident occurred when he was 11 years of age. The accident has not precluded him from completing school, working on the farm on leaving school and obtaining fulltime employment with CBH.
It is difficult to see how the plaintiff has lost any future loss of earning capacity. But in the event that there may have been loss of a chance or may in the future be a loss of a chance I would allow the sum of $25,000 by way of future economic loss. That sum includes any claim for future superannuation.

Future medical treatment

The plaintiff claims future medical treatment as follows:
"1.The Plaintiff will require simple analgesics (Aspirin, Paracetamol, Nurofen, Panadol) at a cost of $100 per annum or $1.923 per week and as the disability is permanent he will need such medication for the rest of his life. His life expectancy at aged 23, nearly 24, is 53.39 years, say 50 years - $1.923 x 846.9 - $1,628.58.
2.Periodic physiotherapy treatment, hydrotherapy, treatment, massage, structured exercise programmes and radiology, say $1,000 per annum or $19.23 per week - $19.23 x 846.9 = $16,285.88.
3.$1,628.58 + $16,285.88 = $17,914.46.
4.Alternatively, a global allowance for future medical and other treatment costs."
This claim is based upon the evidence of Dr Goodheart. It is now 12 years since the plaintiff's accident. I prefer the evidence of Mr Batalin with relation to this matter that the management should be conservative. It should include preventative care of his neck, graded exercises designed to increase strength in the neck and back-supporting muscle growth. Dr Batalin felt that manipulative therapy in the neck was contra-indicated in view of the old un-united fracture of the C2 spinous process.
In any event (Exhibit 9) being a Health Insurance Commission notice of past benefits dated 6 June 2002 indicates that he has had very little medical treatment up till that time. A large part of those consultations are in relation to his complaints of abdominal pain which has been accepted as being not accident caused.
Additionally when he saw Dr Batalin he told him that he was taking no regular medication.
On the basis of that evidence I would allow $500 for future medical treatment.

Special damages

Special damages are agreed the sum of $2,552.18 and I allow that sum.

Conclusion

It follows that the plaintiff is entitled to damages as follows:
Non pecuniary loss   $50,000.00
Loss of future earning capacity                   $25,000.00
Future medical treatment  $     500.00
Special damages   $ 2,552.18
Total  $78,052.18
The plaintiff is entitled to judgment against the defendant in the sum of $78,052.18.