Bei v Francis - [2006] WADC 111

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: BEI -v- FRANCIS [2006] WADC 111

CORAM: MARTINO DCJ

HEARD: 8-9 MAY 2006

DELIVERED : 27 JULY 2006

FILE NO/S: CIV 2654 of 2004

BETWEEN: YUEN MEI BEI
Plaintiff
AND
DAVID STANLEY FRANCIS
Defendant

Catchwords:

Torts - Negligence - Road accident - Injuries to passenger

Legislation:

Nil

Result:

Damages assessed

Representation:

Counsel:

Plaintiff: Mr M D Cuerden
Defendant: Mr J F Brooksby

Solicitors:

Plaintiff: Stoddart & Co
Defendant: Greenland Brooksby

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

CSR Ltd v Eddy (2005) 222 ALR 1

Case(s) also cited:

Browne v Dunn (1893) 6 R 67, HL
Casley-Smith v F S Evans & Sons Pty Ltd (1988) 49 SASR 339
Pollock v Wellington (1996) 15 WAR 1
Riley v Western Australia (2005) 30 WAR 525
Shorey v PT Ltd (2003) 197 ALR 410
Watts v Rake (1960) 108 CLR 158
Western Australia v Watson [1990] WAR 248

MARTINO DCJ: The plaintiff ("Mrs Bei") was born on 23 June 1960 and is employed as a Compliance Officer by the Australian Taxation Office ("ATO"). She claims damages for personal injuries she alleges she suffered in a motor vehicle accident on 29 November 2001 as a result of the negligent driving of the defendant ("Mr Francis"). The injuries she alleges she suffered are:
1.soft tissue injury to the neck;
2.soft tissue injury to the right shoulder; and
3.consequential injuries to the left side of her neck, left shoulder and left arm.
The claim for injuries to her left side was made by amendment of the statement of claim on the morning of the trial.
Mr Francis admits that an accident occurred as a result of his negligent driving but contends that the accident was of such a minor nature as to be unlikely to cause any significant injury to Mrs Bei. Mr Francis denies that Mrs Bei has suffered any injury, loss or damage and contends that any pain or symptoms suffered by her are the result of the usual activities of her daily living, including the use of a computer. Mr Francis also contends that any disability to Mrs Bei's left side and any symptoms in the right side of her face and jaw commenced several years after the accident and are the result of her use of a computer at work, for which liability to pay compensation has been accepted by the ATO.

Mrs Bei

Mrs Bei was born in Malaysia on 23 June 1960. She completed her secondary schooling in Malaysia and England and migrated to Australia in 1986. She is married and has two adult children, a son aged 19 and a daughter aged 17.
When her children were young Mrs Bei commenced studying for a degree in commerce. In 1999 she obtained a double degree in electronic commerce and information systems from Curtin University of Technology.
In mid‑2000 Mrs Bei commenced full time employment at the ATO. Her employment level on commencement was APS 3. She worked in the excise department verifying diesel fuel claims.
In 2001 Mrs Bei commenced studying for a master's degree in taxation as an external student at the University of New South Wales. She completed the first semester that year and took a break from those studies in the second semester. She completed the second semester in 2002. She has not studied further since then.
Mrs Bei was employed at the ATO at the time of the accident.

The accident

On the day of the accident Mrs Bei was a front seat passenger in a Nissan Pintara sedan being driven by her husband Claudio Bei ("Mr Bei"). Their 13‑year‑old daughter was a passenger in a seat in the rear of the car.
The accident occurred on Sevenoaks Street, Welshpool, at the intersection of that street and Welshpool Road at approximately 6.15 pm. At that intersection there is a stop sign on Sevenoaks Street. Mr and Mrs Bei's vehicle was stationary at that stop sign. Mr Bei intended to turn left into Welshpool Road.
Sevenoaks Street terminates at Welshpool Road. On Welshpool Road, to the right of vehicles turning left into Welshpool Road, railway lines cross the road. At that crossing there are boom gates to prevent cars entering the crossing when trains are approaching.
Immediately before the accident Mr Francis was driving his Toyota Corolla Sedan on Sevenoaks Street and was travelling towards Welshpool Road. Mr Francis' car struck the rear of Mrs Bei's car.
Mrs Bei's evidence of the accident was that there was a loud bang and her car was forced forward approximately four metres on to Welshpool Road. After the accident she saw that her car's tow bar had been pushed in and the rear bumper and boot lid were dented. The damage to the boot lid prevented it from closing completely. As far as Mrs Bei could recall the front and the radiator of the car that collided with their car were dented.
Mr Bei's evidence was that the intersection was familiar to him. He was stationary at the stop sign, looking to his right down Welshpool Road towards the boom gates. The red lights at the railway crossing were flashing and the boom gates were lowering. Mr Bei remained stationary. He wanted to ensure that the Welshpool Road was clear for him to enter and that a car did not go through the railway crossing under the lowering boom gates.
While his car was still stationary it was stuck by a car behind him, forcing his car approximately four to five metres onto Welshpool Road. After the accident he saw that the tow bar was pushed in and the rear bumper and boot lid were damaged. Mr Bei could not recall the boot lid being open or any difficulty in closing it. Mr Bei saw that the front bumper of the car that collided with his was heavily damaged, the grill was damaged, the lights appeared to have been damaged and there was water on the road which appeared to be coming out of the radiator.
Mr Bei's evidence was that immediately after the accident he asked Mr Francis: "Why did you hit us?" and that Mr Francis replied that he was concentrating on the railway crossing and he thought that by the time he got to the stop sign Mr Bei would have gone through.
Mr Francis' evidence‑in‑chief was that before the accident his car came to a stop behind a stationary car. Mr Francis had his eyes on the oncoming traffic on Welshpool Road. He saw the car in front of him move forward. He tapped his accelerator pedal lightly and moved forward so slowly that his speed would not have registered on the speedometer. His car hit the tow bar of the car in front of him. Mr Francis estimated that his speed at the time of the collision was less than five kilometres an hour and that his car nudged the car in front of him only a couple of feet.
In his evidence‑in‑chief Mr Francis described the damage to his car as being primarily cosmetic. The meshing of the front grille had been pushed in and he had a cracked left headlight. There was no damage to the radiator and no structural support damage to any of the bumpers. However in cross‑examination Mr Francis acknowledged that that his further and better particulars of defence, in which he said that his car suffered damage to the front bumper and radiator support, were based on instructions he provided to his solicitors.
Mr Francis denied saying to Mr Bei that he was looking at the railway crossing and that he thought that Mr Bei would have gone through by the time that Mr Francis reached the intersection.
In cross‑examination Mr Francis was asked about the boom gates at the railway crossing on Welshpool Road. His evidence was that he could not remember but he would say that they would have had to be up. He agreed with counsel for Mrs Bei that he thought that the gates would have had to be up because traffic was coming through.
Counsel for Mrs Bei asked Mr Francis about a statement he had signed for the Insurance Commission dated 4 December 2001 in which he said that the train gates were down and that there was no traffic coming from his right or left. Mr Francis' evidence was that as he wrote that soon after the accident it must have been correct and that as the accident was a long time ago his memory of details was not one hundred per cent accurate.
Mr Bei's evidence was that the cost of repairs to his car was almost $2,500. His insurer agreed to accept less than that in satisfaction of Mr Bei's claim against Mr Francis. Mr Francis' estimate of the cost of repairs to his vehicle was approximately $1,000. No evidence was led from a car repairer or motor vehicle expert as to whether the evidence of the cost of repairs has any relationship to the extent of the impact of the collision. In my view the evidence of the cost of repairs does not enable me to reach any conclusion as to the force of the impact of the collision.
In written submission filed after the trial counsel for Mr Francis submitted that the following passage of evidence in the cross‑examination of Mr Bei was significant as it tended to show that his vehicle was still in Sevenoaks Street and not in Welshpool Road after the accident.
"You stayed where you were?---No. I asked my wife and daughter how they were feeling. Mei said she had a pain on the neck and my daughter had a problem breathing. I asked my daughter to take some few deep breaths. She said that her neck was hurting. So what I did is I drove the car off the road.
Forward?---Yes.
Into Welshpool Road?---Well, I turned on to Welshpool Road and I parked the car about 20 metres up the road on Welshpool Road so I ‑ I wanted to get the car off the road. I wanted to get my wife and daughter off the road and ‑ because (1) I wanted to make sure they were safe and, you know, if the boom gate comes up there's traffic." [T121]
In my view Mr Bei's evidence in that passage does not indicate that Mr Bei's car was not in Welshpool Road after the accident. I understand Mr Bei's evidence in that passage to be that after the accident, on Welshpool Road, he turned his car so that he parked it off the road.
I have concluded from Mr Francis' evidence that his recollection of the accident is poor and that his evidence is based primarily on reconstruction rather than recollection. The change in his evidence as to the position of the boom gates in my view is an example of that process.
I accept the evidence of Mr Bei as to his conversation with Mr Francis after the accident. I conclude that Mr Francis cannot recall the conversation. That conversation is consistent with the evidence of Mr and Mrs Bei and is also consistent with Mr Francis' final evidence that the boom gates were down and there was no traffic on Welshpool Road. There are minor differences in the evidence of Mr Bei and Mrs Bei to the accident, such as whether the boot lid could be closed after the accident. I do not regard these differences as impairing their credibility. They are the sort of differences in recollection I would expect so long after the accident. I prefer the evidence of Mr and Mrs Bei as to the accident to the evidence of Mr Francis.
I find that immediately before the accident Mr Bei's car was stationary on Sevenoaks Street at the intersection with Welshpool Road. He had not commenced to turn into Welshpool Road before the accident.
As Mr Francis approached the intersection he saw that the boom gates on Welshpool Road were lowering. He anticipated that any cars on Sevenoaks Street would turn into Welshpool Road before he arrived at the intersection. Mr Francis did not stop before the accident and his car struck Mr Bei's car, forcing it approximately four metres onto Welshpool Road.

Mrs Bei's symptoms and treatment soon after the accident

Mrs Bei's evidence was that after the accident she felt pain in her neck, shoulders and back and felt nauseous. Her husband took her and their daughter to see Dr Mudhar, a general medical practitioner. Mrs Bei's usual medical practitioner was Dr Ho Lee Ng, but his surgery was closed.
Dr Mudhar's report dated 12 April 2002 was tendered into evidence by consent. Mrs Bei complained to Dr Mudhar of headache, mainly occipital, pain in the shoulders and neck which was mainly on the right side. Mrs Bei also had nausea. Dr Mudhar did not see any obvious bruising on his examination of Mrs Bei, who was tender on the trapezius on the right side. The movements of her neck were decreased, especially flexion and lateral rotation to the left. The shoulder joint movements were normal. In Dr Mudhar's opinion Mrs Bei had suffered soft tissue injuries to the neck and the right shoulder. Her complaints and Dr Mudhar's findings were consistent with Mrs Bei having been injured in the accident. Dr Mudhar advised Mrs Bei to take pain killers as necessary and if pain persisted or increased to see her usual GP for further management.
Mrs Bei's evidence was that in the days following the accident her neck and shoulders were sore and her back was sore and tender. Both of her shoulders were sore, but her right shoulder was more painful. She continued to go to work and took Panamax or Panadol for her pain.
Mrs Bei's evidence was that she continued to suffer a lot of pain. She took 5 December 2001 off work and saw Dr Ng on that day. Dr Ng recorded that Mrs Bei complained of headaches, pain in the neck on the right side and pain in the right shoulder. Dr Ng diagnosed Mrs Bei as having suffered a soft tissue whiplash injury to her neck in the car accident. He prescribed anti‑inflammatory medication and physiotherapy. Mrs Bei saw Dr Ng again on 7 January 2001. Mrs Bei told him that her pains had improved with physiotherapy but she still had neck pains on the right side and headaches. Mrs Bei continued to take Panamax tablets for pain, used hot packs that the physiotherapist had provided to her and also used Voltaren gel.

Mrs Bei's employment, symptoms and medical treatment

In June 2002 Mrs Bei was transferred in her employment at the ATO to the debt and lodgement department. Her work in that position involved computer data entry using a keyboard and mouse, preparing letters and serving notices. Mrs Bei estimated that approximately 75 per cent to 80 per cent of her time was spent using a keyboard or mouse. This was a little more work of that type than she had done previously. She informed her employer that she was suffering the symptoms of which she gave evidence. The ATO provided her with a document holder and a track ball mouse which she could operate using only her thumb and fingers.
On 1 November 2002 Mrs Bei was promoted to APS level 4 and transferred to a position as a field compliance officer in the GST department. Mrs Bei did not commence work in that new position until July 2003 as she first had to undergo training and she was seconded into another position where her work was data analysis.
Her work as a field compliance officer involved visiting taxpayers once or twice a week. When she visited taxpayers she took a laptop computer with her to work on. She used the same laptop computer when working in her office at the ATO. She attached a standard keyboard to that laptop and had the laptop elevated so that she did not have to strain her neck to look at the computer screen. Mrs Bei was able to manage her own appointments. She chose the time when she would meet with taxpayers and if she was unwell she was able to change the appointment. She was also able to do some of her work at home.
Mrs Bei drove to taxpayers' premises. Her evidence was that turning her neck when she reversed caused her pain.
After seeing Dr Ng on 7 January 2001 Mrs Bei did not see a medical practitioner about the symptoms that followed the car accident until she went to Dr Ng's practice on 4 March 2004. In that period she saw medical practitioners on nine occasions for unrelated matters, but did not report to her medical practitioners that she was still suffering symptoms caused by the car accident nor seek any treatment for the consequences of the accident. Her evidence was that she continued to suffer symptoms in that period, but did not seek medical treatment because the medical practitioners she had seen had told her that her symptoms were going to last. In that period she tried to avoid doing things that aggravated her symptoms and continued to take Panamax and to use Voltaren gel.
Mrs Bei's evidence was that in early 2004 she developed pain going down her elbow and in her hands on her right side. On 4 March 2004 Mrs Bei attended at Dr Ng's surgery and complained of headaches, pain in the right side of the neck and intermittent numbness in the right arm.
In early 2004 Mrs Bei commenced going to a gymnasium. Her reason for doing so was that she was feeling a bit down and depressed and she thought that if she got fit it might help her get better. On 21 May 2004 she saw Dr Ng and told him she was going to a gymnasium. Dr Ng advised her that it was a good idea and that going to the gymnasium would help her with her aches and pains.
Mrs Bei's evidence was that since the beginning of 2004 her symptoms have been getting worse in intensity and seem to be going to other parts of her body on her right side: her elbow, down to her hands and up to her jaw. She suffers pain around her neck and shoulder, sometimes gets pain running down her right arm to her fingers and she gets headache at the back of her head. Any repetitive movement such as ironing, watering plants, vacuuming and computer work make her symptoms worse. She feels a tightening around her neck and shoulder and her elbow joint starts to tighten. When she experiences symptoms in her right arm she sometimes uses her left hand to do things.
Her evidence was that as a result of these symptoms she has made changes to how she does her housework. She takes longer to do them and she does not clean the whole house at once as she used to do. Her husband helps with cooking, washing and hanging out clothes. Her children also help with vacuuming and sometimes they wash the floor and cook. Her family did not do these things before the accident. She estimated that her family spend an hour a day doing them.
Mrs Bei also gave evidence that when her children need to be driven the driving is done by her or her husband. She does not do as much driving as she did before the accident as it can aggravate her symptoms.
Mrs Bei's evidence was that gardening was a hobby she enjoyed before the accident. Since the accident Mr and Mrs Bei have established a garden at their home. Mrs Bei's evidence was that she could not replant or move some of her plants or do other jobs such as mulching, fertilising or putting new soil into beds. A landscaper and her family, particularly her son, helped her with those jobs. Mrs Bei estimated that her son spent approximately five days helping with the establishing of the garden. She is now able to do only light gardening such as pruning, watering and weeding.
Mrs Bei's evidence was that since the accident her husband has applied Voltaren gel to her daily for approximately half an hour a day.
She continues to take Panamax and also takes glucosamine sulphate. A doctor has not recommended that she take glucosamine sulphate. She has not purchased any medication, but has used medication her husband has purchased.
In December 2005 Mrs Bei was transferred in her employment to working in the compliance verification centre as a result of a restructure at the ATO. Her evidence was that as a result of that transfer the amount of time she spent using a computer keyboard has increased. Approximately 90 to 95 per cent of her time is spent using a computer keyboard. The rest of her time she makes phone calls to taxpayers and checks documents. She is no longer able to work from home.
Mrs Bei's evidence was that since that transfer her symptoms seem to have transferred to her left side.
On 17 February 2006 Mrs Bei made a claim for workers' compensation under the Australian Government's workers' compensation scheme. The claim was for "pain in left neck, shoulder and arm". The form on which she made claim for compensation asked: "What started the chain of events that led to your injury or illness?" Mrs Bei answered that question: "Change of work type, increase usage of keyboard and computer based work. Increase work pressure, number of cases and limited time frame." Mrs Lei answered no to the question "Have you ever had a similar symptom, injury or illness before, work related or otherwise?" and to the question "Have you ever received medical treatment for a similar injury or illness?" Her evidence was that her reason for doing so was that she was referring to her left side. The claim for compensation was accepted.

Mrs Bei has received medical treatment for her claimed injuries to her left side and has had time off work. The cost of treatment for her claimed injuries and compensation for time away from work as a result of those injuries has been met by Comcare. Since March 2006 Mrs Bei has worked reduced hours of four hours a day five days a week. She continues to receive workers' compensation from Comcare.
Mrs Bei has approximately two physiotherapy sessions a week. These are being paid for by Comcare. She has stopped going to the gymnasium, but intends to return to it once her physiotherapy ceases.

Medical opinions

Mrs Bei called evidence from Dr Ng and from Dr David Watson, a consultant physician. Mr Francis called evidence from Dr Brian Dare, specialist in occupational medicine. Each of the medical practitioners produced reports they had written and gave evidence that the reports contained their opinions.
Dr Ng's first report was dated 15 May 2002. When he saw Mrs Bei on 5 December 2001 she complained that she had headaches, pain in the neck on the right side and pain in the right shoulder. Dr Ng thought that Mrs Bei had suffered a whiplash injury to the neck. When he saw Mrs Bei on 7 January 2002 Mrs Bei had told him that the pains had improved with physiotherapy, however she still had neck pains on the right side and headaches. Those pains were worse with work such as ironing clothes. On examination neck movements were normal, though slightly painful and there was tenderness at C3‑4 level on the right side of the neck. In his report of 15 May 2002 Dr Ng expressed the opinion that it was unlikely that Mrs Bei would require further treatment, since she had not consulted a doctor at Dr Ng's surgery since 7 January 2002, that her symptoms were likely to improve with time and that she had not suffered any permanent injury to her neck.
In his report dated 9 May 2005 Dr Ng recorded that when she was last seen on 3 August 2004 Mrs Bei complained of neck pain on the right side, radiating to the occiput and behind both eyes, to the right scapular area, right arm and right hand. The pains were worse with computer work and ironing clothes. In that report Dr Ng expressed the opinion that those complaints were directly related to the car accident. In his report dated 24 April 2006 Dr Ng again expressed the opinion that Mrs Bei's ongoing problems were related to the injuries suffered in the accident and that she will require analgesics and anti‑inflammatory medication on and off for the next few years.
Dr Watson saw Mrs Bei at the request of her solicitors, the first occasion was on 4 August 2004. Mrs Bei told Dr Watson that her symptoms had increased significantly in 2004. She reported difficulty undertaking a range of activities such as turning her head, looking back or upwards when driving, difficulty with gardening, sweeping, raking and vacuuming. She told Dr Watson she had pain around the right shoulder extending into the right side of the neck, right side of the head and the retro‑orbital area on the right side. Her neck felt tight and both shoulders, the right more than the left, felt tight at the upper part of the shoulder girdle muscles. She described a pulling sensation down into her right upper arm, forearm and hand and that her fingers felt tight.
After seeing Mrs Bei on 4 August 2004 Dr Watson wrote a report dated 17 August 2004 in which he expressed the opinion that Mrs Bei appeared to have sustained soft tissue injuries to her neck and right shoulder in the motor vehicle accident. In Dr Watson's opinion in ideal circumstances the best thing Mrs Bei could do would be to completely cease using a computer for 12 months.
Dr Watson also saw Mrs Bei on 13 February 2006 after which he wrote a report dated 13 March 2006. Mrs Bei told him that she was fairly constantly troubled by pain on the left side of her head, neck and shoulder and that she believed that this was because she had to shift a lot of day to day activities from her right arm to her left because of the pain in her right neck and shoulder.
On 3 May 2006 Dr Watson wrote a report following his review of a CT scan of Mrs Bei's cervical spine taken on 24 January 2006. Dr Watson had previously seen a scan of her neck taken on 17 May 2004. The 2004 scan was normal. The scan taken in 2006 showed very slight disc bulging at C2-3 and C4-5and some questionable bulging at C3-4. In Dr Watson's opinion the subtle disc changes between 2004 and 2006 were probably of no clinical significance. The 2006 scan ruled out signs of progressive arthropathy and showed no evidence of compression or nerve roots in the neck or the cervical cord.
Dr Watson's opinion is that Mrs Bei's symptoms appear to be related to the injuries sustained in the motor vehicle accident. The pain on the right side of her face and jaw appeared to be musculo‑skeletal in origin and also appeared to be related to the problems in her neck. In Dr Watson's opinion Mrs Bei will continue to suffer the symptoms she reported to him, the prognosis for complete resolution of her symptoms was poor. Dr Watson suspects that Mrs Bei would be a lot better if it were possible for her to undertake other forms of employment that did not involve a lot of computer work.
Dr Dare saw Mrs Bei at the request of the Insurance Commission of Western Australia on 11 August 2004 and wrote a report dated 13 August 2004. He recorded that Mrs Bei reported to him that she continued to experience ongoing discomfort in her right trapezium which increased with her work, particularly when using her laptop computer. She also told Dr Dare that repetitive activities with her right arm such as ironing increased her discomfort. She also stated that she occasionally has discomfort in her right arm into her right hand, with some tingling or stiffness. These symptoms were also associated with keyboard or computer work.
In his report Dr Dare expressed the opinion that the car accident resulted in a minor soft tissue injury to Mrs Bei's neck. He considered that this injury would have resolved within a few months and would not result in any ongoing symptoms. In Dr Dare's opinion the symptoms she reported to him were not related to the car accident but were related to her activities of daily living and work.
Dr Dare saw Mrs Bei on 16 February 2006 and wrote a report dated 17 February 2006. He recorded that Mrs Bei told him that she continued to have ongoing right sided neck pain radiating down to her right arm and hand. She described an increase in symptoms with work duties, specifically with using a computer and also with repetitive activity using her right arm and hand. Mrs Bei told Dr Dare that her neck pain produced headaches. It remains Dr Dare's opinion that Mrs Bei's ongoing symptoms are not related to the car accident. He considers that Mrs Bei may have suffered a minor soft tissue injury to her neck as a result of the accident but that this injury would have resolved within a few months.

Conclusion as to Mrs Bei's evidence of symptoms she has suffered since the accident

I accept Mrs Bei's evidence as to the symptoms she felt after the accident. All of the medical practitioner who gave evidence were of the opinion that Mrs Bei suffered injury to the soft tissue of her neck in the accident and I accept that she did suffer such an injury.
In his closing submissions counsel for Mr Francis submitted that Mrs Bei exaggerated her symptoms. I do not accept that submission. It was not my assessment of her. It was not the opinion of Dr Dare that Mrs Bei had exaggerated her symptoms. Counsel for the defendant submitted that the fact that Mrs Bei gave evidence that her back was sore after the accident when no complaint of back pain was recorded by Dr Mudhar is an example of her exaggerating her symptoms. I do not accept that submission. I accept that Dr Mudhar's report is an accurate record of Mrs Bei's complaints to him. However the fact that Mrs Bei was mistaken about suffering back pain after the accident does not indicate that Mrs Bei was exaggerating her symptoms. Mrs Bei was giving evidence four years after the accident. It is not at all surprising that she could not with total accuracy recall what she felt after the accident. I find that Mrs Bei completed her claim for workers' compensation dated 17 February 2006 truthfully and that she understood the questions about previous symptoms and treatment to be questions about her left side, for which she was claiming compensation. I find Mrs Bei to have been an honest witness who did not seek to exaggerate the consequences of the accident.
When giving evidence Dr Ng read from his file a report from a physiotherapist dated 18 December 2001 who wrote that after five sessions of physiotherapy Mrs Bei had a full pain free movement of the neck. That physiotherapist was not called as a witness. On 7 January 2002 Mrs Bei told Dr Ng that she had improved with physiotherapy, but she still had neck pains and her neck movements were slightly painful. I find that after physiotherapy Mrs Bei's symptoms did improve but the improvement was not to the stage where she had permanent full pain free neck movement.
Mrs Bei did not seek medical treatment for injuries suffered in the car accident between 7 January 2002 and 4 March 2004, although she did see medical practitioners about unrelated matters in that period. I accept her evidence that in that period she continued to suffer symptoms and to take medication, that she modified her activities and that she did not seek medical treatment because the medical practitioners she had seen had told her that her symptoms were going to last.
Causation
In his report dated 17 August 2004 Dr Watson expressed the opinion:
"Mrs Bei has no history of problems of this nature prior to the 29 November 2001 accident. It would be my opinion that these problems are entirely related to the consequences of the collision. However, it is also evident that what she is required to do at work and in the course of running a house and looking after two children continues to aggravate her symptomatology and delays healing."
In his report dated 13 March 2004 he wrote:
"The symptoms and complaints outlined by Mrs Bei still all appear to be related to the injuries sustained in the original collision on 29 November 2001. The pain that developed on the right side of her face and jaw during the course of 2005 does appear to be musculo‑skeletal in origin and would also appear to be related to the problems in her neck.
…
It is now over four years since Mrs Bei sustained her injuries. Unfortunately the nature of her work does to some extent influence the persistence of her symptoms. If she did not have to use a computer keyboard she could probably manage the non work activities that cause discomfort now.
…
Her symptoms are likely to be permanent."
Dr Watson's oral evidence was that the car accident has been the trigger for Mrs Bei's symptoms and her work has tended to prolong those symptoms.
Dr Dare wrote in his report dated 13 August 2004:
"Mrs Bei was involved in a minor motor vehicle accident which I consider would have resulted in a minor soft tissue injury to her neck. I consider this injury would have resolved within a few months and would not result in any ongoing symptoms. Therefore, I do not consider that her present symptoms are related to the motor vehicle accident.
I consider the symptoms in her neck and right trapezium are related to her activities of daily living and also her work."
In his report dated 17 February 2006 he wrote:
"As outlined from my previous report, her motor vehicle accident was extremely minor and I do not consider it would have resulted in any significant ongoing injury and certainly now that it is over five years since her motor vehicle accident in November 2001 I would not consider her ongoing symptoms are related to that motor vehicle accident."
I have found that Mrs Bei has continued to suffer symptoms since the accident. Those symptoms were initially on the right side but she now has symptoms on the left side as well. While Dr Dare's opinion is that the injuries suffered in the accident "would have resolved within a few months" the evidence of Mrs Bei, which I accept, is that they did not do so. Mrs Bei has continued to suffer symptoms since the accident. I do not accept Dr Dare's conclusion that the symptoms Mrs Bei suffers are not related to the motor vehicle accident because I do not accept that the symptoms resolved within a few months.
On the facts as I have found them it is my view that the opinion of Dr Watson that the symptoms that Mrs Bei suffers are related to the accident is preferable.
I find that in the accident Mrs Bei suffered soft tissue injuries to the neck and right shoulder. Those injuries caused her to suffer headaches, pain in the neck and in the right shoulder and right arm. She continues to suffer those symptoms. Her activities, in particular her use of a keyboard at work, have prolonged those symptoms. As a result of those symptoms Mrs Bei tends to use her left arm more than she would otherwise do. As a result of doing, again particularly as a result of her keyboard use at work, she has developed pain on the left side of her neck, left shoulder and left arm.
I accept Dr Watson's opinion that Mrs Bei's symptoms are likely to be permanent.

Damages

Mrs Bei suffers the significant symptoms to which I have referred as a result of the accident. These symptoms, which are likely to be permanent, affect her ability to perform and enjoy activities at home and at work. I assess her non-pecuniary loss as being 15 per cent of a most extreme case, and so her general damages for non-pecuniary loss at $27,850.
No loss of earnings have been suffered by Mrs Bei as a result of the accident. She has had time off work, but received sickness benefits for a small amount of time she had off work soon after the accident and has received workers' compensation for time off work this year. She does not claim that she is obliged to repay the workers' compensation she has received out of damages she receives from Mr Francis. She has however suffered a reduction in her work capacity as a result of the injuries suffered in the motor vehicle accident. It is not possible to assess with any precision the financial loss that she will suffer as a result of this reduction in her capacity. Her income net of tax and the Medicare Levy in the 2004‑2005 financial year was $38,071. In my view the sum of $20,000 is a fair assessment of the extent to which her reduction in working capacity is likely to be productive of economic loss in the future. In making that assessment I bear in mind that the ATO has accepted liability for Mrs Bei's left sided disabilities.
When Mrs Bei decided to join a gymnasium it was not recommended to her by Dr Ng or any other medical practitioner. However when she told Dr Ng that she was going to a gymnasium he thought it was a good idea and that it would help her with her aches and pains. In Dr Watson's opinion the ongoing treatment that would benefit Mrs Bei is massage, local heat and similar treatment no more frequently than once or twice a week. I conclude that it was reasonable for Mrs Bei to go to a gymnasium as a result of her symptoms but that the ongoing membership, while no doubt generally beneficial to her, is not reasonably required as a result of the accident. The total amount paid to date as gymnasium fees is $1,393.80. I allow $1,000 for the cost of going to the gymnasium in the past, but give no allowance for future gymnasium attendance. For the same reason I have allowed $400, rather than the claimed $624, for travelling expenses.
It is Dr Watson's opinion that Mrs Bei would need to see her family physician "probably no more than once a month". While it will be necessary for Mrs Bei to see her general medical practitioner from time to time it is my view that attendance on her general practitioner will not be required as frequently as once a month as there is no specific treatment called for to ensure her symptoms do not deteriorate or to improve her condition. She will also require medication to relieve her pain. I allow $1,000 for the cost of future treatment.
Mr Bei massages Mrs Bei with Voltaren gel daily. On the basis of Dr Watson's opinion that Mrs Bei would benefit from massage, local heat and similar treatment no more frequently than once or twice a week it is my view that some allowance for this gratuitous service is appropriate, but only on the basis of the frequency suggested by Dr Watson. The agreed rate for gratuitous services is $15 an hour. Mrs Bei estimated the time taken each day as half an hour a day and Mr Bei at 10 to 15 minutes. I allow gratuitous massage services twice a week for 15 minutes on each occasion. The value of those services is $7.50 a week. For the period of 243 weeks since the accident the value of those services is $1,824. Interest on that sum at 3 per cent is $255. Future loss, using a multiplier of 776 is $5,580. Mrs Bei accepts that domestic services she cannot provide cannot be recovered as a claim for gratuitous services: (CSR Ltd v Eddy (2005) 222 ALR 1)
I allow the following additional special damages:
Balance of physiotherapy costs:  $9.45
Balance of medical practitioner costs:  $37.05
Costs paid for by Health Insurance Commission:    $416.05
Travel costs  $400.00

Summary

In summary I assess Mrs Bei's damages as follows:
Non pecuniary loss   $27,850.00
Loss of earning capacity  $20,000.00
Gymnasium expenses  $1,000.00
Balance of physiotherapy costs  $9.45
Balance of medical practitioner costs  $37.05
Costs paid for by Health Insurance Commission     $416.05
Travel costs  $400.00
Past gratuitous services  $1,824.00
Interest$255.00
Future Gratuitous Services  $5,580.00
Future medical costs  $1,000.00
Total$58,371.55