Bebbington v Mills - [2001] WADC 33

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: BEBBINGTON -v- MILLS [2001] WADC 33

CORAM: MARTINO DCJ

HEARD: 27-30 NOVEMBER & 1 DECEMBER 2000

DELIVERED : 23 FEBRUARY 2001

FILE NO/S: CIV 4374 of 1998

BETWEEN: STEPHANIE LOUISE MAISE BEBBINGTON
Plaintiff
AND
NATALIE AUDREY MILLS
Defendant

Catchwords:

Torts - Negligence - Motor vehicle accident - Damages - Personal injuries - Pre‑existing condition

Legislation:

Nil

Result:

Damages assessed

Representation:

Counsel:

Plaintiff: Mr P R Eaton
Defendant: Mr B C Sierakowski

Solicitors:

Plaintiff: Durand Gangemi
Defendant: Brian Sierakowski

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

Malec v J C Hutton Pty Ltd (1990) 169 CLR 638

Case(s) also cited:

Australian Shipbuilding Industries (WA) Pty Ltd v Packer (1993) 9 WAR 375
Black v Motor Vehicle Insurance Trust [1986] WAR 32
Bowen v Tutte (1990) A Tort Rep 81-043
Heap v Van Yperen, unreported; FCt SCt of WA; Library No 970383; 14 August 1997
Jackson v Adia Centacom Industrial Pty Ltd [1999] WASCA 159
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
Metropolitan Properties Co (F.G.C.) Limited v Lannon (1968) 1 All ER 354
Michael v Panetta, unreported; DCt of WA; Library No 4058; 21 June 1994
Purkess v Crittenden (1965) 114 CLR 164
Thomas v O'Shea (1989) A Tort Rep 80-251
Watts v Rake (1960) 108 CLR 158

MARTINO DCJ: The trial of this action was for the purposes of the assessment of damages suffered by the plaintiff in a motor vehicle accident on 13 August 1996 when the defendant's car collided with the back of the plaintiff's stationary car. The plaintiff claims that in the accident she aggravated injuries to her lumbar and cervical spine that had been suffered in the course of her employment on 20 June 1995 and suffered further injury to her L4/5 disc resulting in severe low back pain and spinal fusion surgery on 26 September 1999.
The defendant admitted liability for the accident but denied that the plaintiff was injured in the accident. The defendant also contended that any injuries or disabilities that the plaintiff suffered were not the result of the motor vehicle accident but of the accident on 20 June 1995. During the course of the trial the defendant contended that there were other incidents which were responsible for the plaintiff's condition. The plaintiff did not object to the defendant pursuing these contentions.
The plaintiff was born on 11 August 1963 in the United Kingdom. When the plaintiff was almost 10 years old she migrated with her family to New Zealand. She left school at age 15 and commenced employment in junior clerical positions. When she was aged 17 the plaintiff commenced working in sales for a company that sold products to hairdressers and pharmacies. The plaintiff found that she enjoyed sales work and remained employed in that area until she ceased working in 1996.
The plaintiff came to Australia in the middle of February 1988. At the beginning of March 1988 the plaintiff obtained employment as a sales representative with Esselte Australia Pty Ltd in Perth. Esselte is a manufacturer and distributor of office materials and equipment. The plaintiff was the point of contact between Esselte and retailers of office equipment and her job involved her driving to visit those retailers at their stores. As part of her remuneration package the plaintiff was provided with a fully maintained car which she used for her work and which she was permitted to use outside of her work hours for her own private purposes.
The plaintiff married in New Zealand. She arrived in Australia with her husband but by the end of 1988 the marriage had failed. The plaintiff lived an active life. She would do aerobics two to three times a week and go to the gym most mornings before work. She generally went out on Friday and Saturday nights and on Sunday afternoons. The plaintiff enjoyed dancing.
The plaintiff met her present husband through her work with Esselte. They commenced going out together in November 1989 and began living together approximately 18 months after that. The plaintiff maintained an active social life.
The plaintiff suffered an injury in the course of her employment with Esselte on 20 June 1995. She was putting cartons of price books into a trolley when she felt pain in her neck and right shoulder. The plaintiff continued working that day but her pain got worse and after about three hours she was having difficulty driving. The plaintiff saw a general medical practitioner at the Swan Medical Group later that day.
By the next morning the plaintiff's pain had increased further and she went back to the Swan Medical Group where she saw Dr Hart. The plaintiff has continued under the care of Dr Hart as her general medical practitioner.
The plaintiff had approximately one week off work. Dr Hart prescribed physiotherapy, analgesics and a soft collar.
In around August 1995 the plaintiff suffered low back pain when moving from a sitting position on a couch to standing up. The plaintiff saw Dr Hart on 10 August 1995. She informed him that her main problem was now with her lower back. She appears not to have informed Dr Hart at that time that the lower back pain was precipitated by the incident when she was getting off the couch. It is not noted in Dr Hart's notes of the attendance on that day and Dr Hart's evidence was that he thought if he had been told of the incident at that time he would have written it down. Dr Hart became aware that the low back pain commenced when the plaintiff was getting off the couch at some later time. His evidence was that he could not recall if he was told by the plaintiff or he saw it in a consultant's letter. The plaintiff saw Dr Hart several times in August 1995 and her complaints centred around pain in her lower back. On 28 August 1995 the plaintiff informed Dr Hart that she may be obliged to postpone her wedding which was scheduled for 1 October 1995. However it did not prove necessary to do so and the wedding proceeded on 1 October 1995.
Approximately 10 days after her wedding the plaintiff returned to work at Esselte. On her return the plaintiff was working an average of about four to five hours a day. She found that driving made her neck and shoulder pain flare up and she continued to suffer pain in her lower back. Her pain levels varied.
In around October 1995 Ms Samantha Main, a rehabilitation case manager, began providing rehabilitation services to the plaintiff. These services were arranged by Esselte's workers' compensation insurer.
Ms Main obtained information about the plaintiff's condition from medical reports and certificates which were provided to her by the insurer. Ms Main also "gleaned" some information from the plaintiff.
Ms Main was not aware of the incident in August 1995 when the plaintiff suffered pain in her low back on getting up from a couch. Counsel for the defendant submitted that the plaintiff provided a selective history to Ms Main. I do not make that finding. I am unable to assess from Ms Main's evidence the extent to which she endeavoured to take a history from the plaintiff and the extent to which she relied on the medical reports. Her main interest was to assist the plaintiff to return to work not to take a history.
On 17 October 1995 the plaintiff fell over on the street after having been pushed. She consulted Dr Hart on 23 October 1995 and mentioned the fall to him. Her evidence was that the fall resulted only in a short term minor aggravation of her neck and shoulder symptoms.
In November 1995 Dr Hart referred the plaintiff to Dr E W Grigg. The plaintiff had approximately 67 injections from Dr Grigg in an attempt to reduce her pain. The treatment was not successful. Dr Hart also pursued other forms of treatment including physiotherapy and a TENS machine.
On 30 January 1996 the plaintiff fell on a concrete ramp when she was leaving a client's business. She saw Dr Hart on that day and told him of the fall. The plaintiff was sore when she walked and she was tender over the lower sacrum and coccyx.
On 26 March 1996 the plaintiff was seen by Mr John D H Bell, orthopaedic surgeon, on Dr Hart's referral. Her main complaint to him was of low back pain. Mr Bell recommended spinal education and exercises. The plaintiff was very sceptical about his ideas and Mr Bell was concerned that the plaintiff's problems could worsen rather than improve unless she became interested in weight control, stopped smoking and took up exercise.
On 15 April 1996 the plaintiff saw Dr Hart. She informed him that she was still getting pain and she was not coping with it. Dr Hart referred the plaintiff to Mr Bryan Suter, clinical psychologist. Mr Suter assessed the plaintiff as displaying depressive symptoms.
On 15 May 1996 the plaintiff saw Dr Ken Maguire, rheumatologist and consultant in sports medicine, on referral from Dr Hart. Dr Maguire recorded the plaintiff's complaints as being quite significant lower back pain which when severe was associated with increasing discomfort in the cervical spine. The plaintiff had missed some three days of work from the previous week as a result of increasing discomfort in the lower spinal region. Dr Maguire recommended a course of facet injections. These were not successful in controlling the plaintiff's pain. On 31 May 1996 Dr Maguire suggested that the plaintiff commence MS Contin. MS Contin is a powerful analgesic.
On 27 June 1996 Mr G Wayne Thomas, a neurosurgeon, saw the plaintiff on referral from Dr Hart. The plaintiff gave to Mr Thomas a history of the incident at work involving price books and also of the incident of getting off a couch when she experienced the onset of severe low back pain. She informed Mr Thomas that she was suffering more or less constant low back pain occasionally radiating to the left side of the back but not into the legs. Mr Thomas recommended conservative management of her condition. He did not recommend surgery and in his report dated 27 June 1996 he expressed the opinion that the plaintiff could look forward to improvement with ongoing conservative management and time and he did not see the plaintiff as inevitably requiring surgery.
On 28 June 1996 the plaintiff saw Mr P Watson, neurosurgeon, again on referral from Dr Hart. Mr Watson also recommended conservative treatment and did not recommend surgery.
On 1 July 1996 the plaintiff saw a third neurosurgeon on referral from Dr Hart. She informed Mr George T Wong that her neck pain had settled quite significantly although not completely but the low back pain had been getting progressively worse. About six weeks previously she had to stop work. Mr Wong advised the plaintiff to continue with an exercise programme for another three to six months and that if at the end of the day the pain became too much for her then she may consider surgery. He impressed upon her that surgery was the last resort.
On 2 July 1996 the plaintiff saw Dr Hart. She informed Dr Hart that she was going to continue to concentrate on improving her condition with exercises. Dr Hart assessed the plaintiff as being fit for light duties work on reduced hours with no lifting. The plaintiff did not return to work at that time.
The plaintiff turned 33 years of age on 11 August 1996. It was her practice to celebrate her birthday. On the night of Friday, 9 August 1996 the plaintiff and her husband had drinks with friends. On the Saturday night the plaintiff and her husband went for dinner at a restaurant in the hills which provides music and a dance floor. The plaintiff and her husband found the music disappointing so they went to the Burswood Casino cabaret bar. The plaintiff said that she used pain killers that night but she had a good night. She managed to have a few dances and stayed on till dawn. The following day, 11 August 1996, the plaintiff went with her husband to her mother's house for dinner. She was optimistic about the future.
On 13 August 1996 the plaintiff was on her way to see Mr Bryan Suter, psychologist. Mr Suter had been treating the plaintiff for her difficulties in adjusting to her back injuries since April 1996. The plaintiff stopped her car behind a line of traffic on Great Eastern Highway in Guildford when her car was struck from behind by a car driven by the defendant. The plaintiff gave evidence that she was very upset after the accident. The bumper on her car had been pushed in and the exhaust system had been damaged. When the exhaust was inspected later by a mechanic the plaintiff was given a round piece of plastic type material that appeared to have come from another motor vehicle and been punched out of that other motor vehicle by the plaintiff's exhaust pipe. A panel beater was able to repair the bumper by simply popping it back into place. There was also some damage to the plaintiff's towbar but it did not require any repair. The exhaust system was replaced. In cross‑examination the plaintiff agreed that immediately after the accident she spoke to the defendant, that she was friendly to the defendant in that conversation and that the defendant asked how the plaintiff was and the plaintiff said that she was okay.
Later that day the plaintiff visited her neighbour Catherine Thompson‑Turco. Ms Thompson‑Turco has the same birthday as the plaintiff. On 12 August 1996, the day before the motor vehicle accident, the plaintiff had visited Ms Thompson‑Turco and they had discussed how their birthdays had been spent. The plaintiff seemed quite happy to Ms Thompson‑Turco on that day. On 13 August 1996, after the motor vehicle accident, the plaintiff again visited Ms Thompson‑Turco. The plaintiff was shaky, crying and appeared very upset. Ms Thompson‑Turco gave her a cup of coffee and calmed her down.
On the same day the plaintiff saw Dr Hart. She informed him of the motor vehicle accident. She complained of pain in the neck and lower back. Dr Hart found some tenderness on examination.
The plaintiff's husband, Dale Bebbington, gave evidence that the plaintiff's condition had been good on the weekend of 10 and 11 August 1996 when they had celebrated her birthday and that when he arrived home on 13 August 1996 the plaintiff "wasn't in very good shape at all" and that from then on her condition deteriorated.
On 23 August 1996 the plaintiff saw Dr Maguire. She informed him of the motor vehicle accident and told him that it had exacerbated her neck, thoracic, low back and right buttock pain, the major exacerbation being in the lower back and right buttock. The plaintiff was markedly tender to palpation in the lower back and Dr Maguire formed the opinion that the motor vehicle accident had probably caused quite significant soft tissue injury to the sacroiliac and ilio‑lumbar ligamentous regions. He arranged a CT scan of the lumbar spine and the sacroiliac joints.
The plaintiff again saw Dr Maguire on 27 August 1996. She informed him that as a result of the motor vehicle accident she was having severe back pains. Dr Maguire increased the plaintiff's prescription of MS Contin and organised facet joint injections. Those facet joint injections were not successful in reducing the plaintiff's pain. On 10 September 1996 Dr Maguire wrote to Dr Hart expressing the opinion that the accident at work was responsible for between 20 to 30 per cent of the plaintiff's back disability and the motor vehicle accident was responsible for between 70 to 80 per cent of the disability.
On 28 August 1996 Dr Hart issued a progress medical certificate addressed to Esselte in which he referred to the original work accident on 20 June 1995 and noted that the plaintiff was totally unfit following on a further motor vehicle accident. The subsequent progress certificates issued by Dr Hart to Esselte or its workers' compensation insurer did not refer to the motor vehicle accident.
On 16 September 1996 as a result of increasing back pain the plaintiff was admitted to St John of God Hospital in Subiaco under the care of Dr Maguire. He arranged for review by Mr Paul Bannon, neurosurgeon and by Dr George Wong. In a report dated 18 September 1996 Dr Maguire expressed the view that the work accident was responsible for 75 per cent of the plaintiff's ongoing problems and the motor vehicle accident was responsible for the remaining 25 per cent.
On 20 September 1996 Mr Wong saw the plaintiff at St John of God Hospital. As a result of her increased pain the plaintiff decided to proceed with a spinal fusion. In his report dated 20 September 1996 Mr Wong expressed the following opinion:
"I believe the reason for her surgery is still mainly related to her work injury and the car accident basically flared up her pain more. The reason is because she was having a lot of problems even before the car accident."
Mr Wong wrote a report to Esselte's workers' compensation insurers, MMI Insurance, dated 23 September 1996. In that report he said that the spinal fusion was warranted because of further deterioration in the plaintiff's pain state and that the plaintiff's symptoms had been made worse by the motor vehicle accident. He apportioned the symptoms and a need for surgery 70 per cent to the work injury and 30 per cent to the motor vehicle accident. He also expressed the following view:
"I do believe that the motor vehicle accident has contributed to her current symptoms as her symptoms have definitely been made worse by the car accident. On recent MRI Scan there is also the fact that the annular tear is a bit more obvious than on the one prior to the car accident …
It is also my view that in all likelihood, even if she did not have the car accident even with the conservative treatment including exercises she has still been very symptomatic and my view would be that it was only a matter of time before she would come to surgery anyway."
On 26 September 1996 Mr Wong performed a spinal fusion on the plaintiff at L4/5.
On 16 October 1996 the plaintiff travelled to New Zealand to visit her grandmother who was ill. The trip aggravated the plaintiff's symptoms. After her return from New Zealand the plaintiff saw Mr Wong on 11 November 1996. She informed him of the aggravation to her symptoms caused by the trip to New Zealand. Notwithstanding that aggravation Mr Wong thought that the plaintiff was still doing quite well. She was not then consuming any analgesics.
Shortly thereafter the plaintiff's pain state and mental state deteriorated. On 21 November 1996 she saw Dr Hart who assessed her as being depressed. On 19 December 1996 the plaintiff saw Dr Dennis Tannenbaum, consultant psychiatrist, on referral from Dr Hart. Dr Tannenbaum assessed the plaintiff as suffering from severe major depression. He wished to treat her as an in‑patient. He was concerned at the plaintiff's consumption of medication and other non‑prescribed drugs. The plaintiff was not willing to be treated as an in‑patient and so arrangements were made for the plaintiff to be treated by Dr Peter McCarthy, psychiatrist, as an out‑patient. Dr McCarthy saw the plaintiff on 13 January 1997 and assessed her as suffering from moderate to severe depression.
Under the care of Dr McCarthy the plaintiff's depression improved. However her back pain continued. The plaintiff saw Dr Maguire in May 1997 and he performed further facet joint injections. These were not successful in relieving her pain and the plaintiff consumed MS Contin intermittently. On 29 July 1997 Dr Thomas J Berrigan, a consultant in anaesthesia and pain management saw the plaintiff on referral from Dr Maguire. The plaintiff was continuing to have low back pain and she was taking MS Contin daily along with other medication. Dr Berrigan investigated epidural stimulation as a method of relief of the plaintiff's pain. Although he had some success in relieving the plaintiff's pain by that method the plaintiff did not proceed with the implantation of an epidural stimulator. The plaintiff did not give evidence that she proposes to have a stimulator inserted.

The plaintiff's condition remains basically unchanged. She is in considerable pain in her lower back which restricts her capacity to work and to function. A major issue in this case is the extent to which the motor vehicle accident is responsible for this condition. I have recorded earlier in these reasons some of the views expressed by medical practitioners on that question.
In his report of 26 July 1999 Dr Hart expressed the opinion that it was the motor vehicle accident which caused the condition to become much more severe, required emergency admission to hospital and the subsequent surgery. While he was not in a position to be more precise he felt that more than 50 per cent of the plaintiff's condition would be attributed to the motor vehicle accident.
In a report dated 9 February 2000 Dr Maguire changed the view contained in his reports dated 10 September 1996 and 18 September 1996 and expressed the opinion that the previous accident had contributed to 50 per cent of the plaintiff's present pain and disability and the motor vehicle accident had also contributed to 50 per cent of the disability and said that he was still of the belief that in the absence of the motor vehicle accident spinal surgery would have been unlikely to have required. In evidence Dr Maguire said that he had used that figure of 50 per cent as he had agreed with Dr Hart's assessment. However, when he reviewed the plaintiff more recently it was his opinion that the plaintiff's level of disability is far greater than he would have imagined and so his feeling was that 70 per cent of the plaintiff's problems are attributable to the motor vehicle accident.
In his report dated 29 November 2000, which was written after he had read Dr Hart's transcribed notes, Mr Wong said that he had not really changed his opinion with regard to the apportionment between the work injury and the motor vehicle accident as set out in his letter of 23 September 1996.
Other medical practitioners, who did not see the plaintiff before the motor vehicle accident have been asked to express views on the relationship between the motor vehicle accident and the plaintiff's present condition. Mr Nick J Batalin, orthopaedic surgeon, reviewed the plaintiff on 2 June 1998. He said it was difficult to assess the relationship between the motor vehicle accident and the plaintiff's condition.
In November 1999 the plaintiff was reviewed by a panel consisting of Dr Peter L Silbert, neurologist, Dr Geoffrey J Gee, consultant in pain management and specialist anaesthetist and Dr Peter Connaughton, occupational physician. In their report dated 19 November 1999 those medical practitioners expressed the opinion that there was at least a 75 per cent possibility that the plaintiff would have required surgery if not for the motor vehicle accident and that two thirds of the plaintiff's lumbar spine problems were pre‑existing and one third related to the motor vehicle accident. They expressed the opinion that the plaintiff had a 30 per cent disability related to her lumbar spine and a 5 per cent disability related to her cervical spine. They apportioned the whole of the cervical spine disability to the work accident and wrote: "The 30% lumbar is 20% pre‑existing and 10% related to the motor vehicle accident." Those medical practitioners were subsequently provided with Dr Hart's transcribed notes. In his report dated 19 November 2000 Dr Silbert expressed the opinion that 80 per cent of the plaintiff's lumbar disability pre-dated the motor vehicle accident and 20 per cent related to the motor vehicle accident. Dr Connaughton expressed the opinion in his report dated 23 November 2000 that the apportionment of the plaintiff's lumbar problems related to the motor vehicle accident should be reduced from 10 per cent to 5 per cent. In his report dated 27 November 2000 Dr Gee expressed a similar view.
In his written submissions dated 13 December 2000 counsel for the defendant submitted that I should find that the onset of the plaintiff's lumbar pain is unrelated to the work accident that occurred on 20 June 1995 and that Esselte's workers' compensation insurer has paid compensation and expenses to the plaintiff in circumstances where she was not lawfully entitled to these payments. I decline to make such findings. They are not matters for me to determine in this action. Whether the plaintiff was entitled to receive workers' compensation benefits is not a matter for me to determine but, if it is to be determined, would be determined under the dispute resolution procedures provided for in Part IIIA of the Workers Compensation and Rehabilitation Act 1981.
Counsel for the defendant also submitted that "the credibility of the plaintiff must be severely questioned" or the issues of the history that she provided to the medical practitioners.
It is certainly the case that not all medical practitioners were aware of her complete history. However my assessment of the plaintiff was that she was an honest witness. She gave her evidence in a straightforward manner and I accept her evidence as to the development of her symptoms. I have related her evidence as to the development of her symptoms.
While I accept that the plaintiff was optimistic as to her future shortly prior to her motor vehicle accident it is clear that she was troubled by very significant lumbar pain prior to the accident. The number of medical practitioners she saw and her complaints to them of her symptoms demonstrate the extent of her pain.
It is clear that the plaintiff had suffered a loss of amenity and a significant reduction in her earning capacity even before the motor vehicle accident. At the time of the accident she was in receipt of weekly payments of workers' compensation from Esselte. She continued to receive those weekly payments until 31 May 1999 and so she did not suffer any significant loss of earnings until then.
In view of the pre‑existing pain and loss of capacity that the plaintiff suffered my task is to assess the extent to which the motor vehicle accident has been productive of any further pain, suffering, loss of earning capacity and other loss.
I have already related various medical views on this question. I accept the evidence and opinions of Mr George Wong. He saw the plaintiff on 1 July 1996, approximately six weeks before the accident and he saw her on 20 September 1996 approximately five weeks after the accident and he subsequently performed the spinal fusion on 23 September 1996 and so he was in a very good position on which to make an assessment as to the extent to which the motor vehicle accident had worsened the plaintiff's condition. Dr Hart and Dr Maguire were also in good positions to make assessments but I prefer Mr Wong's evidence because he was the treating surgeon who investigated the plaintiff's condition before carrying out the surgery and I found his assessment of the plaintiff and of the results of those investigations to be fair and balanced. While Mr Thomas did not see the plaintiff as inevitably requiring surgery in June 1996 it is my view, having regard to the evidence of Mr Wong, that while such surgery was not inevitable it was likely. I conclude therefore that even if the plaintiff had not been involved in the motor vehicle accident it is likely that her symptoms would have led her to have a spinal fusion. The motor vehicle accident worsened the plaintiff's physical condition and her symptoms and as a result the fusion which had previously been something likely to occur became something that did occur. I have also assessed that the plaintiff's already reduced earning capacity was further reduced by the motor vehicle accident.
There was a difference of opinion in the evidence before me as to the plaintiff's retained earning capacity. The plaintiff called Dr John R Suthers, occupational physician who wrote a report dated 24 October 2000. Dr Suthers' assessment was that the plaintiff is not fit to return to her pre‑accident duties and she will not return to any gainful employment within the short to medium term. In his view the plaintiff's condition is not stable enough to allow her to compete effectively in the paid work force given the fact that she has failed back surgery and been out of the paid work force for some four years. He assessed this as being partly a reflection of the medications that she was taking and partly the ongoing back pain.
The defendant called Ms Debbie Larson, labour market economist, Ms Kirrily Manning, occupational therapist and Ms Camille Greenwell, registered psychologist. Ms Manning and Ms Greenwell had assessed the plaintiff's functional capacity and Ms Larson gave evidence as to the availability and remuneration of work for which the plaintiff was said to be fit. The effect of their combined evidence was that the plaintiff was fit for various sale and clerical positions and that there were good prospects of her earning remuneration of approximately $33,354 per annum working on a full time basis. The defendant also called Dr John Rosenthal, physician in rehabilitation medicine. Dr Rosenthal had written a report dated 5 October 1999 and he expanded upon the views expressed in that report in his evidence. Dr Rosenthal was of the opinion that the plaintiff has a capacity for semi‑sedentary occupations, initially working half time.
I prefer the evidence of Dr Suthers. Having regard to the levels of pain that the plaintiff suffers and the restriction that that pain has on her functioning I consider it extremely unlikely that she will return to work in the foreseeable future and in my view she has effectively no retained earning capacity.
As I have noted the plaintiff had a significant back disability before the motor vehicle accident on 13 August 1996. That condition was worsened by the motor vehicle accident. I accept the opinion of Mr Wong as to the extent that it was made worse. In assessing the plaintiff's loss of earning capacity and need for treatment as a result of the motor vehicle accident I must assess the chance of the plaintiff suffering that loss and requiring that treatment even if she had not been involved in the motor vehicle accident: Malec v J C Hutton Pty Ltd (1990) 169 CLR 638.
In view of Mr Wong's evidence, which I accept, I conclude that there is a 70 per cent chance that the plaintiff would have suffered her loss of earning capacity and required the treatment even if she had not been involved in the motor vehicle accident.
In the year ended 30 June 1998 the plaintiff's taxable income was $37,973. Her after tax income was $28,470. In addition she received superannuation contributions and the benefit of unlimited use of a Holden Commodore motor vehicle. The average running costs per week of such a vehicle have been assessed by the RAC at $159.59 per week (Exhibit 9). The period since 1 November 1998 is approximately 120 weeks and the value of the loss of the use of a car for that period is $160 x 120 weeks = $19,200.
The period from 1 June 1999 when the weekly payments of compensation ceased is approximately 90 weeks. Her past loss of earnings for that period are $548 x 90 weeks = $49,320.
The plaintiff's past loss of superannuation contributions are to be assessed in accordance with the Superannuation Guarantee (Administration) Act 1992. Seven per cent of her gross weekly wage of $730 =$51. $51 x 90 weeks = $4,590. From this sum I have deducted 30 per cent for fund management fees and taxes to give a figure of $3,213.
Interest on the value of the loss of the use of the motor vehicle at 3 per cent per annum is $1,329. Interest on the past loss of earnings is $2,560. Interest on the past superannuation contributions is $167.
The plaintiff is aged 37 and will turn 65 in 28 years. The 6 per cent multiplier for 28 years is 720.3. $548 x 720.3 = $394,724. Deducting 6 per cent for contingencies gives a figure of $371,041.
The plaintiff's superannuation contributions would be 8 per cent of her gross salary now and would have increased to 9 per cent in the financial year 2002/2003. I have therefore used a figure of 8.75 per cent. 8.75 per cent x $730 = $64. $64 x 720.3 = $46,099. I have deducted 6 per cent for contingencies to give a figure of $43,333 and a further 30 per cent for fund management fees and taxes to give a figure of $30,333.
The value of the provision of a motor vehicle in the future is $160 x 720.3 = $115,258. A 6 per cent deduction for contingencies gives a figure of $108,333.
Having regard to my finding as to the extent to which the motor vehicle accident is responsible for this loss the plaintiff is entitled to 30 per cent of these figures.
I assess the plaintiff's loss of earning capacity as a result of the motor vehicle accident as follows:
Past loss of use of a motor vehicle  $19,200.00
Past loss of earnings  $49,320.00
Past loss of superannuation contributions                $3,213.00
Interest
On past loss of use of a motor vehicle          $1,329.00
On past loss of earnings  $2,560.00
On past superannuation contributions              $167.00
Future loss of earnings  $371,041.00
Future loss of superannuation contributions            $30,333.00
Future loss of use of a motor vehicle  $108,333.00
Sub-total$585,496.00
30 per cent attributable to the
motor vehicle accident  $175,649.00
The quantum of special damages has been agreed as follows:
Cost of reviews and attendances with doctors           $5,673.00
Cost of medication  $4,107.00
Cost of massage therapy  $2,020.00
$11,800.00
For the reasons I have expressed I assess that 30 per cent of this expense is attributable to the motor vehicle accident and I allow $3,540.
The plaintiff's solicitors estimate that the ongoing cost of medication will be $62 per week and the ongoing massage therapy will be $40 per week. I assess these estimates as being too high. I consider it unlikely that massages will be maintained. It is likely that the consumption of medication will reduce. I allow a global figure of $4,000 for the cost of future treatment as a result of the motor vehicle accident.
For domestic assistance both gratuitously provided by the plaintiff's husband and incurred at a cost the evidence was unsatisfactory. The plaintiff gave evidence of payment of $25 a week but produced no receipts or documentary evidence to confirm these payments or the periods for which they were made. The plaintiff and her husband gave evidence as to domestic duties now performed by him. Some of these activities were performed for the family group. There was no evidence as to the nature of these services other than the evidence that the plaintiff had paid $25 a week for domestic services. I allow a global figure of $10,000 for past and future domestic assistance required as a result of the motor vehicle accident.
In assessing damages for pain, suffering and loss of amenities it is necessary to bear in mind that the plaintiff was suffering a loss in these areas before the motor vehicle accident. I assess the plaintiff's case as being 12.5 per cent of the most extreme case resulting in an award of $17,125.
In summary therefore I assess the plaintiff's damages as follows:
Loss of earning capacity  $175,649.00
Special damages  $3,540.00
Future treatment costs  $4,000.00
Past and future domestic assistance  $10,000.00
Non-economic loss  $17,125.00
$210,314.00