Bowden v Colbey

[2004] SADC 176

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil)

BOWDEN v COLBEY

Judgment of His Honour Judge Muecke

10 December 2004

DAMAGES

Assessment of Damages - Motor vehicle accident on 13 April 1999 - Whiplash-type injury to registered nurse - Not established that any detriments suffered by the plaintiff since about September 1999 attributable to the minor accident on 13 April 1999.

BOWDEN v COLBEY
[2004] SADC 176

Introduction

1. This is an assessment of damages for injuries sustained by the plaintiff as a result of a motor vehicle accident on 13 April 1999. 

2. By Summons dated 24 October 2001 it was alleged that at about 1.45pm on 13 April 1999 Rosemarie Bowden (“the plaintiff”) was driving her Volkswagen on Montague Road, Para Vista.  She was stationary at the traffic lights at the intersection of Montague Road and McIntyre Road, Para Vista when Paul Colbey’s (“the defendant”) four wheel drive vehicle collided with the rear of her Volkswagen.  It was alleged that the collision was caused by the defendant’s negligence.  The defendant admitted these allegations. 

3. In her Particulars of Claim as they stood at the commencement of trial the plaintiff alleged:

   5As a result of the negligence of the defendant the plaintiff who was aged 41 years sustained personal injuries and incurred expenses in obtaining treatment for the said personal injuries.

   PARTICULARS OF THE PLAINTIFF’S INJURIES

   The plaintiff at the date of the collision suffered:

   (a)     A whiplash injury to the neck.

   (b)    A musculo-ligamentous strain to the cervical spine.

   (c)    Hyper-extension injury to the right wrist.

   6In consequence of her injuries the plaintiff has suffered and will continue to suffer:

   (a)     Severe neck pain.

   (b)    Headaches.

   (c)    Pain across the top of the shoulder.

   7As a result of her injuries and disabilities the plaintiff:

   (a)     Has not been able to return to her pre-accident employment as a registered nurse and has not been able to obtain alternative work.

   (b)    Will continue to experience pain and discomfort referred to above.

   (c)    Has suffered a loss of enjoyment of the amenities of life.  The plaintiff is unable to partake of any activity which involves leaning forward or down.  These tasks are:  washing, ironing, cooking as well as looking up.  Carrying shopping bags causes aggravation of the neck, even carrying a handbag on her shoulder aggravates her neck.  The plaintiff also suffers pain if she is sitting at a desk writing for more than 30 minutes at a time.  Moreover the plaintiff has difficulty picking up her 15 month old daughter and pushing her in a pram due to the pain of the injury.  Any quick movement causes sharp pain and causes her neck to burn.  The plaintiff also has difficulty sleeping in any comfort.

4. The defendant did not admit these allegations.  Furthermore, the defendant alleged that the impact in the collision “was of such a minor nature and speed the plaintiff could not have sustained any of the alleged injuries at all”.  The defendant alleged that if the plaintiff has any neck and shoulder problems, or pain and restriction of movement, such symptoms, pain and restriction are due to pre-existing degenerative changes in her cervical spine which have been in no way affected by the accident, or alternatively the accident aggravated them temporarily to an insignificant degree.  The defendant alleged that the plaintiff has sufficiently recovered from her injuries such that she no longer experiences pain and suffering or loss of amenity, or such pain and suffering or loss of amenity is minimal and the plaintiff can resume her pre-accident, domestic, recreational and work activities.  There were some other allegations pleaded by the defendant.

5. By her pleadings just referred to the plaintiff alleged that in the collision on 13 April 1999 she suffered a whiplash injury to her neck and a musculo-ligamentous strain to her cervical spine.  Those injuries have caused her to suffer (and she will continue to suffer) severe neck pain, headaches, and pain across the top of the shoulder.  The plaintiff’s evidence was that the pain was predominantly across her left shoulder although occasionally it was to her right shoulder also.  I infer that her Particulars of Claim were referring to her left shoulder.

6. The trial for the assessment of damages commenced on 16 October 2003.  In Opening the plaintiff’s counsel said:

   ... I don’t think I could do better than to say that apart from deciding the issues that are pleaded, it is a case of what is commonly known as a whiplash injury.  It is the plaintiff’s case that this is one of those rare but serious examples of that whiplash injury where the symptoms linger on, with very little if any examples of pathology supporting them, but with ongoing and genuine symptoms.

   This led the plaintiff, who was prior to injury an experienced and indeed distinguished nurse, as a consequence of this accident, to have her employment terminated by the Ashford Hospital.  That termination was on the advice of her consultant physician Dr Graham, in that her abilities to perform her duties as a nurse were beyond her by reason of her injuries.  Part of that is that she is unable to lift to the full requirement of lifting capacity of 23.5 kg.  That is what Dr Graham will tell your Honour and he is a doctor himself.

   That has persisted up to the present stage, is likely to persist into the future such that the plaintiff is unable to continue working in the same way in any activity which involves the holding of the head down and the looking forward which effectively, on the plaintiff’s case, disqualifies her from processing work, secretarial work, nursing work and a number of alternative sources of employment which might otherwise be available to her.

   Later he told me:

   ... this is an unusual case of a whiplash which has not settled. It has been resistant to various modalities of treatment and significant efforts on the plaintiff’s part such that she is, on her case, unable to nurse, she is denied the capacity to engage in physical activities which involve pushing, head down activities of on any sort of sustained basis.  Her case is that many if not all forms of occupation which require sustained activities are no longer open to her.

   ... the pain and disability that she had has generally been unremitting. ...

7. I was told that the plaintiff had consulted Dr Colin Mills who would be called to give evidence.  Expert evidence would also be given by Dr Graham and by a physiotherapist from Roberts Physiotherapists and a chiropractor Scott Rickard.  Dr Graham and Dr Mills are both occupational physicians.

   Chronology

8. I now set out a brief chronology of events about which I heard evidence at the trial. 

1982	Plaintiff marries David Bowden
1985	Plaintiff commences work at Ashford Hospital
1987	Plaintiff separates from David Bowden
November 1998	Plaintiff commences living with current de facto partner, Garry Holzinger
March 1999	Plaintiff and David Bowden divorce
2-5 April 1999	Plaintiff and Mr Holzinger move into house purchased by them at Vista
13 April 1999	Subject motor vehicle accident
14 April 1999	Plaintiff consults general practitioner Dr Rodda
11-12 June 1999	Plaintiff unsuccessfully attempts to return to work at Ashford Hospital
? June 1999	Plaintiff falls pregnant
23 June 1999	Plaintiff first sees Dr Graham
22 July 1999	Plaintiff first sees Dr Johnson upon request of defendant’s solicitors
3 November 1999	Plain x-ray
7 February 2000	Plaintiff commences 52 weeks maternity leave from Ashford Hospital
6 March 2000	Plaintiff sees Dr Graham (probably for the second time)
31 March 2000	Plaintiff’s daughter born
29 May 2000	Plaintiff sees Dr Mills upon referral by her solicitor
June 2000	MRI scan
25 August 2000	Plaintiff sees Dr Graham (probably for third time)
15 November 2000	Plaintiff seeks Dr Mills for the second time
9 January 2001	Plaintiff sees Dr Graham (probably for the fourth time)
16 February 2001	Ashford Hospital asks Dr Graham to report on “physical job requirements & whether Rosie can do them mainly 25 Kg lifting capacity ability to work a shift without pain The job requirement for neck flexion etc.”  (Exhibit P31)
26 February 2001	Dr Graham writes to Ashford Hospital that he considers that “at the time of his consultation on 9 January 2001 the plaintiff was not fit to resume the full duties of a registered nurse as described which I understand includes a requirement to lift a minimum of 22.5 kg.”
9 April 2001	Ashford Hospital terminates plaintiff’s employment
23 May 2001	Plaintiff’s solicitor advises plaintiff that she should apply for jobs
23 May 2001	Plaintiff telephones medical institution applying for a position of part-time registered nurse
May 2001-June 2003	Plaintiff applies for nursing and other medical positions
1 June 2001	Plaintiff consults Dr Slaughter (chiropractor) for the first time and receives spinal manipulation to neck, shoulder, and low back
?2002-?2003	Plaintiff falls pregnant with second child
24 January 2002	Plaintiff’s second consultation with Dr Slaughter in which she receives spinal manipulation of neck and low back.  Seven further spinal manipulations to neck (and headache) follow in 2002
30 January 2002	Video of plaintiff
22 March 2003	Video of plaintiff
22 March 2002	Plaintiff sees Dr Kelly at request of defendant’s solicitors
13 April 2002	Plaintiff commences work at Modbury Aged Care - one night shift every other week
27 April 2002	Night shift at Modbury Aged Care
11 May 2002	Plaintiff worked night shift at Modbury Aged Care following which she informs the Matron(?) she is unable to continue working for that facilities.  Her position there is held open by the Matron should she be able to do that work in the future
6 December 2002	Video of plaintiff
? in 2003	Plaintiff miscarries
20 February 2003	Video of plaintiff
10 March 2003	Plaintiff sees Dr Mills for third and last time
14 March 2003	Second MRI scan
3 September 2003	Application for night duty work at a nursing home at Ingle Farm
20 September 2003	Video of plaintiff
21 September 2003	Video of plaintiff
9 October 2003	Plaintiff sees Dr Graham for probably the fifth and last time
4 November 2003	Application for work at St Louis Nursing Home, Parkside.  Obtained work on night duty every other Saturday.  Has worked four shifts altogether before 16 February 2004
4 November 2003	Application for work in a pathology laboratory.  Told that she would be first on their books if they needed someone in her area
4 November 2003	Application for work at a nursing home at Payneham - unsuccessful.  Plaintiff’s last application for work

Pre-accident history

1. The plaintiff was born on 15 April 1958.  She was 40 years old when the accident occurred on 13 April 1999.

2. The plaintiff did her nursing training at the Royal Adelaide Hospital.  She qualified as a registered general nurse in 1979.  Two years prior to that, in 1977, she was involved in an accident involving a collision of two moving cars.  She suffered concussion and a fractured nose and teeth.  She also had a “terrible headache” and a little pain.  She had, she thought, two or three weeks off work and was probably pain free after a couple of weeks.  She was then working in Casualty at the Royal Adelaide Hospital. 

3. After completing her training at the Royal Adelaide Hospital she was a registered nurse at the Julia Farr Centre.  Her role there was mainly supervisory, although it did include some lifting.  She left Julia Farr because the new matron there wanted to move her from where she was then working.  She didn’t want to move so she left.  She got part-time employment at a nursing home.  She was working part‑time up to four shifts per week.  She worked there for three years.  She left because she needed more mental stimulation.

4. She married in 1982.  She didn’t then plan to have children and she then saw herself working for the rest of her life.  She was then physically active. 

5. In 1985 she was employed by Ashford Hospital.  She first worked in the medical ward on afternoon shift performing a full range of nursing duties.

6. She changed her afternoon shift to working on night shift when she moved to the observation ward at Ashford Hospital.  She thought that was in 1997.  She worked four night shifts a week from that time. 

7. The plaintiff’s evidence was that before her accident she had intended to keep nursing night duty four times a week.

8. She separated from her husband in 1997 and they eventually were divorced in March 1999.  She met her current partner, she thought, in October 1998.  She thought that they started living together in November 1998.  They purchased a house at Vista, got the keys to that house in March 1999 and moved in over Easter in April 1999.  That would have been between 2 April 1999 and 5 April 1999.

9. I have drawn this pre-accident history from the plaintiff’s examination-in-chief at trial. 

   The accident - 13 April 1999

10. The plaintiff described the accident in the following way:

    AI was driving on Montague Road travelling towards Tea Tree Gully.

    QWhat were you travelling in.

    AI was travelling in a VW Beetle.

    QWhat year was that.

    AI think it’s a ‘76 model.

    QJust going on from there, was your mother with you.

    AYes, she was.

    QGoing on from there, tell his Honour what happened.

    AWell, I was travelling on Montague Road approaching the intersection of McIntyre Road, stopped at the lights, they went green -

    QPausing there, are you able to remember where you were in the line at the lights or not; don’t guess if you don’t know.

    AI think I was a couple of cars back but I would have to say I don’t know.

    QI interrupted you.  Go on and tell us -

    AI came up to the lights.  There was a car in front of me.  The light went green.  The car in front of me didn’t move and I thought “Oh no”, I was looking in my rear-vision mirror thinking someone is going to hit me, then they went red, and I thought “Thank God for that”.  There was a big Toyota Landcruiser came up behind me and it stopped and I remember looking at mum and saying, “Good, it’s stopped” and so we relaxed and then the next minute there was a humongous bang and it had hit us.

    QCan you say whether in that hitting, your Volkswagen moved in any way.

    AYes, we were pushed forward.

    QAre you able to give his Honour any idea of how far, and don’t guess if you don’t know.

    AI would be guessing, if I said, so no, I don’t know.

    QCan you say whether your car was in or out of gear.  Don’t guess if you don’t know.

    AI don’t know.

    QOr whether your foot was on the brake, on the foot brake.  Once again, don’t guess.

    AI can’t remember, but I’m sure my foot was on the brake because it was on a bit of a slope, so yes, my foot was on the brake.

    QIs that a road that you used often.

    ANot that often.

    QJust tell us from the time of the bang what you remember.

    AI got out to assess the damage, and then I think I said to the driver “What are you doing?”, and then he indicated we should go across the lights and stop, so we went across the lights and stopped and got out, and he said he was sorry, it was his fault, but his phone had gone off and he was looking for the phone and his foot had slipped off the pedal.

11. The plaintiff said that at the time of impact her hands were on the steering wheel of her car.  There was no headrest in her car.  Her head did not come into contact with anything and her car did not collide with the car in front of her. 

12. Photographs in Exhibit P6 were taken of the rear of the plaintiff’s Volkswagen.  They show what the plaintiff described as a “slight dent in the bumper bar, plus the steel support that comes from the car to the bumper bar is slightly out”.

13. When cross-examined the plaintiff said that she did not observe the speed of the vehicle behind her before it collided with her.  She said that after the accident she did not observe any damage to the other vehicle.  She assumed that the defendant’s foot had slipped off the pedal onto the accelerator because of how hard he hit her.  She denied telling Dr Rodda when she consulted that doctor the day after the accident that she had been hit from the rear by a car travelling at approximately 60 kilometres per hour.  She said that “he must have assumed that, because I never ever said that to him (sic)”.  She said that if it had been the case the defendant’s car had rolled from half a car length behind her into the rear of hers, damaging only her bumper bar, she probably would not have even seen the doctor.

14. The plaintiff said that within a short time after the accident she saw a report from the general practitioner stating that she had been hit from the rear by a car travelling at approximately 60 kilometres per hour.  When she saw that she realised that it was grossly wrong.  She said that she did not say to Dr Rodda that what she had written in her report was incorrect.

15. Although she was not opened on, the plaintiff’s mother gave evidence at the trial.  Mrs Vlaanderen said that she had come to Adelaide to celebrate the plaintiff’s birthday on 15 April 1999.  She was a passenger in the plaintiff’s Volkswagen when it was stationary at the traffic lights.  When the lights turned green the car in front of them did not move.  Her daughter looked in the rear view mirror and she said there’s a car coming, I hope he realises we can’t move.  Then the car stopped and her daughter said, good he stopped.  Mrs Vlaanderen said the two of them were chatting and relaxed and she was bending down to take something out of her bag.  Her daughter vaguely looked across to have a look.  “Then, suddenly, there was an absolutely almighty crash, bang into the back of us”.  They were a bit dazed and got out of the car.  She said that, luckily, the plaintiff had “her gears in neutral so we didn’t – but we were shunted forward about a metre and a half but we didn’t hit the car in front”. 

16. Mrs Vlaanderen said that after the accident the driver of the car that had struck them said that he was sorry.  He said that his phone went and that he couldn’t find it and was looking for it and his foot must have slipped.  Whether it went onto the accelerator, Mrs Vlaanderen didn’t know.

17. Mrs Vlaanderen said that the steel bumper bar at the back of her daughter’s car was almost broken in half.  Otherwise there was no damage.

18. In cross-examination Mrs Vlaanderen was asked to look at the photographs (Exhibit P6) to see whether they showed the damage to her daughter’s vehicle.  She replied:  “I wouldn’t even know if this was the car or not, it is very difficult to tell with these photos; they are very clever photos aren’t they?”.  She thought that they had been taken at such an angle that she really couldn’t tell about the damage that was actually done to the bumper bar.  She thought that the best depiction in the photos of the damage to her daughter’s car was at the top on page 2 of Exhibit P6.  It was suggested to Mrs Vlaanderen that the photographs were an accurate description of the damage done.  She replied:  “If you say so”. 

19. The defendant gave evidence of the accident on 13 April 1999.  His account of it differed from that of the plaintiff and her mother, but many of the differences were only slight.  

1. The defendant said that he stopped his car about a half a car length behind the plaintiff’s Volkswagen.  When the lights changed to green all of the cars started to move off.  As he started to move his mobile phone distracted him.  He looked down at it and when he looked up the Volkswagen’s lights were on.  He immediately braked, but not quick enough to avoid colliding with the rear of the Volkswagen.  He said that he stopped his vehicle by braking “but not before it just touched the Volkswagen bumper bar”.  He said he was going at no more than five kilometres an hour at the time of the collision as he had just started moving off.  He explained that his vehicle was a “naturally aspirated diesel motor, which is - it’s quite slow, very slow in acceleration, and I was basically rolling at that stage”.  The defendant described the volume of the noise when contact was made between the two vehicles as “probably not more than a car door being slammed”.

2. The defendant said that the plaintiff had said to him afterwards “I’m sorry, the car in front of me stopped and I had to stop suddenly”.  The defendant denied that he had made some remark to the plaintiff about his foot having slipped off the pedal.  He said that is not “what would have happened”.

3. The defendant said that some long time later he was contacted by the plaintiff’s solicitor regarding the property damage to her car.  He sent a cheque for $240.

4. The defendant said that a tie-down ring that was on the front of the bull bar at the front of his car was the part of his car that came into contact with the rear bumper bar of the Volkswagen causing a “deep crease in the bumper”.  Exhibit P6 depicted that damage.

5. I do not consider I need to resolve all the detailed differences between the plaintiff and the defendant as to the accident on 13 April 1999.  I am satisfied and find that the defendant’s vehicle was stationary no further than about a half a car’s length behind the plaintiff’s Volkswagen at the traffic lights.  I find that the defendant was distracted when he had just started moving off from a stationary position.  That distraction caused him not to notice that the plaintiff’s vehicle was stationary in front of him.  The two vehicles collided when the defendant was going no more than five kilometres per hour.  I find that the defendant’s version of the sound caused by the collision is more reliable than that of the plaintiff, although I accept that the plaintiff’s perception of the sound when it was caused by an unexpected collision from behind whilst she was inside her vehicle was heightened and is now such that it sounded more than it actually was.  However, I reject her evidence that there was an humungous crash if I was to infer from that that it said something about the force of the impact of the defendant’s vehicle on hers.

6. I regard the damage to the Volkswagen as minor.  I acknowledge, however, that it may be that the force of the impact is not entirely reflected by the minor damage caused.  There was evidence that the rear bumper bar of the Volkswagen was steel, but there was no evidence as to whether it was mild steel or hard steel.  There was also no evidence about the relevance, if any, of the convex nature of the bumper bar of the Volkswagen and what force might be required to cause the crease in it.  That may depend on the fact that it was struck (as I find it to be) by what appears to be a narrow tie-down ring to the left of the front of the defendant’s vehicle.

7. The dynamics of the accident (including the fact that the plaintiff’s vehicle was forced forward only one metre, which is what I find) were, however, such as to satisfy me that the collision itself was a low impact collision causing mild forces on the plaintiff’s upper torso.

   Events subsequent to the accident

8. The plaintiff said that after the two vehicles had driven through the intersection and pulled up to obtain details she noticed some pain or discomfort as soon as she pulled up across the lights.  Her neck felt sore, it felt like it was aching, and her head felt heavy.  She also had a sore right wrist.  That night her neck became increasingly more and more painful and her head felt heavier and heavier.

9. The next day she went to a local general practitioner, Dr Rodda.  Dr Rodda was not her usual general practitioner and she obtained Dr Rodda’s name from the phone book.  She had previously seen a doctor at Blackwood.  She had gone to a different general practitioner because she and her partner had just moved to Vista.

10. Following her consultation with Dr Rodda that doctor wrote a report.  She wrote that the plaintiff:

    ... was the driver of a stationary car, wearing a seat-belt, when she was hit from the rear by a car travelling at approximately 60 km/hour. 

    She developed neck and shoulder pain within 10 minutes. 

    Diagnosis was of moderately severe ligamentous neck strain, of the whiplash type. 

    She has been treated with rest and physiotherapy.

    It is planned that she return to work on 31.5.99.

    Her condition is much improved, but should resolve completely over the next  6 months.

    Physiotherapy will continue, less frequently, for another 1-2 months.

    Prognosis is for total recovery.

    She has been unable to work from 14.4.99 to 31.5.99.  Her working capacity in the future should not be affected.

11. Dr Rodda wrote that report on 25 May 1999.  By that time she had seen the plaintiff on five occasions after the initial consultation on 14 April 1999.  At least one occasion was solely to issue a further certificate of sickness.

12. Dr Rodda gave evidence that from 2 July 1999 she took no further part in the plaintiff’s active treatment.  The plaintiff had consulted her on other matters since then but she could not say if her neck had been mentioned.  Dr Rodda wrote on 17 November 1999 that the plaintiff had not been her patient regarding her neck injury since being referred to Dr Graham by her employer.  (That was in June 1999.)  Dr Rodda wrote that Dr Graham had determined when she should return to work and had recommended treatment.  Dr Rodda had last seen the plaintiff on 21 October 1999 because SGIC requested a CT scan.  That could not be performed because the plaintiff was pregnant.  A plain x-ray was done instead and that showed a normal cervical spine.

13. Dr Rodda further wrote that at the plaintiff’s visit to her on 21 October 1999 the plaintiff “was experiencing more stiffness and pain in her neck, the result of recent physio treatment.  Her general condition had been improved until this set-back, which was likely to be temporary.”  Dr Rodda concluded by saying that she thought that Dr Graham had taken over as the plaintiff’s treating doctor.

14. Dr Rodda’s evidence was that she had been told by the plaintiff that the other vehicle had struck her when travelling at approximately 60 kilometres per hour.  Dr Rodda said she was surprised that the damage to the plaintiff’s vehicle when she was shown Exhibit P6 was all the damage that occurred in the accident.  She said she would have expected more damage.  She agreed that the damage didn’t fit either the description of severe impact or 60 kilometres per hour.  Notwithstanding that Dr Rodda said she would stand by the opinions expressed in her reports. 

15. Dr Rodda gave evidence as to her treatment of the plaintiff.  She referred her to physiotherapy on the first and second time she saw her.  On the third occasion she prescribed Voltaren gel.  On a later occasion (14 May 1999) she prescribed “hydro and Voltaren suppositories”.  Her notes indicate that on 2 July 1999 the plaintiff was still having physiotherapy and seeing Dr Graham.  Dr Rodda said that apart from those sorts of treatment she “would usually use anti-inflammatory agents earlier but Ms Bowden couldn’t take them because of other medical problems”.  She said that those were that she thought the plaintiff had said that she was planning pregnancy.  She said she would normally recommend them at the first visit and the fact that she didn’t was for that reason.

16. Dr Rodda’s view was that the plaintiff would completely resolve over the six months following the accident even though the plaintiff would be able to get back to work before the end of that period.

17. Within two weeks of the accident the plaintiff had instructed solicitors in relation to it.

18. The plaintiff’s evidence was that Dr Rodda gave her three weeks off work and referred her to a physiotherapist.  She saw the physiotherapist from time to time up to February 2000.  It was initially not very successful and it stirred up her pain.

19. The plaintiff said that she was prescribed some anti-inflammatory medication but that she didn’t take that for long because she didn’t like taking medication and it didn’t seem to agree with her.  It also didn’t seem to have much effect.

20. Sometimes the plaintiff felt she was getting better and then she would do the exercises the physio had given her and she would have bad pain again, or she would do her housework and she would be “back to square one”.  She tried to do some pruning and racking of leaves and some sweeping and that aggravated her neck pain.  She “got a burning pain from C6/C7 right across from my left shoulder”. 

21. She used up all her sick leave (roughly four or five weeks), her annual leave of about three or four weeks and long service leave from Ashford Hospital.

22. She had to see the occupational health and safety department at Ashford Hospital.  She had to go for a physio assessment at Memorial and she had to see Ashford Hospital’s “WorkCover doctor, Dr Graham”.  She understood that she had to be cleared by the occupational health and safety department of Ashford and she was never cleared by that department.

23. She said that in June 1999 she didn’t think she would be “too good” in coping with being returned to the orthopaedic ward at Ashford Hospital but she was willing to give it a go.  She was rostered on for two nights.  The first night was in the observation ward and the second night was in the orthopaedic ward.  Although the first night was a quiet night her neck got “sorer and sorer”.  The next night she was in the orthopaedic ward and she was even worse than the previous night.  After that she said the occupational health and safety department said she was not allowed to return to work unless she was cleared by Dr Graham.  She made arrangements to see him.  She first saw him on 23 June 1999.  She said that Dr Graham recommended that she not return to work because she wouldn’t be able to cope.

24. In a letter to the plaintiff’s solicitor dated 29 June 1999 Dr Graham referred to the one consultation he had then had with the plaintiff on 23 June 1999.  He wrote:

    HISTORY OF INJURY:

    On 13 April 1999 Mrs Bowden was involved in a motor vehicle accident when the vehicle which she was driving was struck from behind whilst stationary at traffic lights.  Mrs Bowden stated that she was driving a Volkswagen which was struck by a 4 wheel drive vehicle which initially stopped behind her but then suddenly accelerated into her vehicle.  She was immediately aware of neck pain with no radiation.

    She consulted her local doctor, Dr Rodda the following day at which time her head felt heavy as if her neck could not support it.  She was referred for physiotherapy treatment.  She feels that she commenced exercises too soon as her pain was exacerbated.

    Mrs Bowden stated that she was initially off work returning on 11 June 1999 on night shift.  Her neck pain was worse following this shift and worse again when working the following night.  She therefore ceased work and stated that it took 4‑5 days for her neck pain to return to where it was previously.

    She consulted her physiotherapist again and it was recommended that she not return to work for a further 4 weeks.  She stated that she was to commence hydrotherapy on the day of consultation with me.

    EXAMINATION:

    Examination of her neck revealed a full range of flexion, extension and rotation to the right and left but with some discomfort in the left trapezius muscle with rotation to the left.  On palpation there was no stiffness but minor tenderness generally.

    Her thoracic spine was stiff to palpation to the right side of the mid thoracic region.  Rotation to the left was full in range and pain-free but rotation to the right was associated with some slight discomfort at the end of range.

    OPINION:

    Mrs Bowden has suffered a whiplash type injury to her neck which has remained symptomatic despite rest and physiotherapy treatment.  I considered her unfit to resume her duties as a registered nurse and recommended that she return to the care of her local doctor.

25. Later in that report Dr Graham wrote that in his opinion the plaintiff had suffered a whiplash injury to her neck.  He considered that physiotherapy treatment was appropriate and that she had not stabilised sufficiently for her to return to work as a registered nurse.  The major reason for that opinion was the plaintiff’s stated claim that her pain had been exacerbated significantly following her return to work for two evening shifts.  He wrote that the future could not be predicted with any degree of certainty.  “It is known that a significant percentage of people who suffer whiplash injuries to their neck remain symptomatic for periods of several months”.  He then wrote:

    As consultant in occupational medicine to Ashford Community Hospital it would be my recommendation that Mrs Bowden not return to work as a registered nurse until she has fully recovered from her injury.  I would not be in favour of her returning to work for shorter hours as this would indicate that she has not fully recovered from the injury. ... As previously indicated it would be my recommendation to her employer that she not return to work until she is fully recovered and is able to perform her normal duties.

26. The plaintiff said in evidence from the time of her accident to the end of 1999 most activities she undertook which involved looking downwards caused her pain.  She suffered burning from the C6 region across her left shoulder.  It was nearly always to the left, although sometimes to the right.  She had pain up her neck and had suffered headaches.  She took Panadol if she really had to.  She said that after a couple of months her right wrist settled down.  Her leave entitlements saw her through to October 1999 and then she had to rely on her partner.  He continued to have periods where he didn’t have work.  The longest of such periods was four months.

27. The plaintiff discovered that she was pregnant in July 1999.  Her daughter was born in March 2000.  She commenced twelve months maternity leave without pay in February 2000.  Her pregnancy had not been planned.  The plaintiff said that her plans for the future changed at some time.  She had, prior to the accident, intended to keep nursing night duty four times a week.  After her pregnancy she planned that when her daughter was six months old she would return to work two night shifts a week.  They would be on Friday and Saturday nights.  When her daughter was about five years old she said that she would have liked to have worked part-time for five shifts a fortnight.  She then envisaged working, at least part-time, until some time which she was unable to identify.  She did not think that she had ever thought that far ahead.  I understood her evidence on these matters to have been given on the basis of what her plans for future employment were assuming that she had full physical capabilities to work as a registered general nurse.  That was the basis upon which she was asked those questions and upon which I find she answered them.  There was no evidence before me that work of the type she described, and for the shifts she described, was available to her at Ashford Hospital.  It may have been, but I am unable to find that she probably could have worked in the way she described at the Ashford Hospital.

28. The plaintiff said that she had physiotherapy treatment six or eight times with no change in her pain.  She said that the exercises that she was given aggravated her neck.  She said that after her daughter’s birth her motherhood duties also aggravated her neck.  There was lots of carrying of the baby.  She said that her partner helped her, particularly with putting her daughter in and out of the car.  She described difficulty in pushing the pram.  She said that she suffered the burning pain once a week before her daughter was born.  After her birth she suffered the burning pain just about every day.  She said that she had mentioned the burning pain to her local general practitioner a few times but she did not go to her doctor every time she had burning pain because “they can do nothing, there is nothing they can do about it”. 

29. The plaintiff saw Dr Graham on 6 March 2000 just before the birth of her daughter.  Dr Graham wrote that it was difficult to assess the plaintiff’s neck whilst she was 38 weeks pregnant, but it was his impression that she had remained with symptoms attributable to a whiplash injury to her neck.  “On this understanding I would not consider her fit to return to work as a registered nurse”.  Dr Graham wrote that the plaintiff “suffers from a whiplash injury to her cervical spine.  This is intermittently symptomatic and the severity of symptoms is also variable and dependant on other factors”.

30. The plaintiff was referred by her solicitor to Dr Mills, an occupational physician.  An appointment was arranged for 29 May 2000.  The plaintiff apparently reported to Dr Mills that she suffered “constant neck pain and burning to the left shoulder when carrying her child or with neck flexion ...”.  She also apparently reported to Dr Mills that her low back was “a bit sore from wear and tear” but unchanged by the subject accident.  Dr Mills expressed the opinion that the plaintiff “has ongoing neck and left shoulder symptoms after a motor vehicle accident April 1999.  She was on maternity leave for part of this and has been denied work by her employer on the advice of their medical advisor.  She has a central bulge in her cervical spine which is likely associated with instability and her symptoms”.  Dr Mills then wrote:

    Her symptoms seem greater than expected on physical grounds and an assessment by a psychologist with psychometric testing or a psychiatrist opinion is recommended.

31. Dr Mills said in August 2000 that the plaintiff’s condition was not stable and she would benefit by spinal education and a program to achieve and maintain spinal fitness.  He said there was a potential for permanent disability which should be assessed after spinal fitness and education. 

32. The plaintiff saw Dr Graham again in August 2000.  The plaintiff said that he had asked to see her when her daughter was six months old.  At that stage she did not feel she was up to returning to work. 

33. Dr Graham reported on 30 August 2000 that he had been told by the plaintiff that she had consulted Dr Mills and was referred for an MRI scan of the cervical spine.  He was told that this was reported as essentially normal.  The MRI scan was done on 1 June 2000.  Dr Graham was told by the plaintiff that Dr Mills had referred her to a physiotherapist and she was to undergo six thirty minute sessions directed towards spinal education.  The plaintiff had told Dr Graham that her neck had been worse since the birth of her daughter.  She felt that she was in more pain than she was prior to the birth.

34. On examination Dr Graham found that the plaintiff moved without any apparent discomfort or difficulty.  Examination of the cervical spine revealed a good range of flexion but with pain on the left side of the neck on overpressure.  Extension and rotation of the right and left were all full in range.  On palpation there was some slight tenderness over the mid-cervical spine centrally and to the left.

35. Dr Graham wrote that it was his opinion then that the plaintiff could not return to her normal duties as a nursing sister at that stage.  He was unable to suggest when she may be able to return to her normal duties as a nurse.

1. The plaintiff said that in early 2001 she was doing her best in coping with caring for her daughter.  A lot of things she did with her daughter caused her pain.  She said that picking up her daughter, carrying her, nursing her and pushing her pram caused her pain.  She said that pushing a pram “really did set up my neck; I had a lot more pain after I pushed her in it”.  She said she did her housework but had trouble with increasing neck pain.  It always aggravated her neck and increased her neck pain.  Washing and hanging up the clothes also seemed to aggravate her neck.  Her pain and disability from her household duties has not got better or worse since January 2001 to trial.  It had remained the same.  There were occasions she did not do those activities because of pain.

2. At the conclusion of her twelve month maternity leave the plaintiff received a letter from Ashford Hospital dated 5 February 2001.  The plaintiff said in evidence that she felt that that letter meant that Ashford Hospital were still thinking about whether the would be allowed to return to duties or not.  They couldn’t offer her light duties and they wanted to discuss it further.  (That letter was not before me.)  By letter dated 2 April 2001 the plaintiff was advised by Ashford Hospital that her employment with them would be officially terminated effective 9 April 2001 “as a result of your inability to perform the role of a Registered Nurse to full capacity due to the non‑work related injury you have suffered”.  It appears that the letter of termination (Exhibit P7) referred to a meeting involving the plaintiff on 6 March 2001.  It referred to a report of Dr Graham.  It stated that:  “Given this report and the fact that your injury is non­­‑work related, unfortunately the Adelaide Community Healthcare Alliance (Ashford Hospital) is not able to retain your employment on an ongoing basis”.  The report of Dr Graham referred to is probably that dated 26 February 2001 (Exhibit P1, page 41).

3. Dr Graham had been asked to report on whether the plaintiff could do the physical requirements for her job as a nurse.  He was told that those requirements were:  “mainly 25 Kg lifting capacity ability to work a shift without pain The job requirement for neck flexion etc.”.  Dr Graham reported that he had reviewed his notes regarding the plaintiff.  He said that at the time of his consultation with her on 9 January 2001 he considered that she “was not fit to resume the full duties of a registered nurse as described which I understand includes a requirement to lift a minimum of 22.5 kg.”.

4. On 23 May 2001 the plaintiff’s solicitor advised her that she should apply for jobs.  She made her first application that day.  She was asked why she had not applied for a job before she had spoken to her solicitor that day.  She answered:  “Well, I have a young child and that makes a lot of difference to, you know, the availability of how you can cope with working.”  I shall have something more to say about the job applications contained in Exhibit P13 and the plaintiff’s evidence regarding these applications later.  She was, however, successful in obtaining a position.  That position was in relation to an advertisement on 3 November 2001 (Exhibit P13, page 32).  After an interview and after she had seen a physiotherapist who “put me through a series of exercises to see whether she thought I was physically capable of doing the job” she was employed by Lifeplan.  In her application for this position the plaintiff had written:

   ... I need to inform any future employer that due to a motor vehicle accident in 1999, I have sustained some mobility impairments in the region of my neck and shoulders and as a consequence my employment at Ashford was terminated.

5. The plaintiff thought she started this employment on 13 April 2002.  She said that her duty as a registered nurse on night duty was mainly a supervisory role.  She was the senior nursing person in charge overnight.  She had responsibility for supervision of others.  She said the majority of patient-handling was done by the carers who would pair up and do a couple of rounds per night.  She had some handling of residents when getting them in and out of bed, winding up the bed and giving them drinks.  She found that that aggravated her neck pain.  She found that the paper work was “a bit of a struggle”.  She had trouble winding the beds up and down.  She also had problems doing the medication.  She had to get the medication out of the cupboard, go through them and pop the pills into the cups and crush them if they had to be crushed.  Nearly all of the patients in her wing of 36 patients required their medication crushed.  She used a mortar and pestle.  The medication took her a good two hours and although enrolled nurses could administer and crush medication as long as she supervised them, she crushed the medication more often than not.  At the end of popping the pills out and crushing them up she had terrible neck pain and burning pain.

6. On her first shift at Lifeplan at Modbury she was with another registered nurse.  The other nurse did the majority of the medication crushing and she just helped.  The day after her shift she had increased pain in her neck and headaches.  The headaches persisted for about a week and the pain was a lot greater than before the shift.  She didn’t go to the doctor about the increased pain because she couldn’t see any point.

7. Her next shift was a fortnight later.  Once again she was with another registered nurse but the plaintiff did all the duties she was supposed to do as the registered nurse in charge.  Once again she found she had increased neck pain and burning pain and once again the rest of the week she had headaches and increased neck pain.  It was not any particular movement or activity that caused the weeks’ problems after the second shift but she thought it was an accumulation of everything.  Her third and last shift for Lifeplan was a fortnight later.  She was the sole registered nurse on duty although there were four other nurses on.  She found the same thing again, only worse.  She had increased neck pain, the burning and the headaches the rest of the week.  She went and spoke with the Matron and told her that the work was aggravating her neck.  The Matron told her that they would keep the plaintiff on their books and if she got better or if she wanted an odd shift she could ring them up and get a shift.

8. The plaintiff did not work again until after she had given her evidence when the trial began in October 2003. 

9. When the trial resumed in February 2004 application was made to recall the plaintiff.  In her further evidence she said that she had made an application for a night duty nursing job on 3 September 2003 at a nursing home at Ingle Farm.  The application was by telephone only and she told the person she spoke to of her prior accident.  She was unsuccessful in getting that job.

10. The plaintiff said that she applied for three further jobs that were advertised on 4 November 2003.  She had an interview for the St Louis Nursing Home at Parkside.  She had told them of her accident.  She was successful in obtaining that job.  She had a medical examination at the end of November 2003 and the job was night shift every other Saturday.  Her first shift was on Friday 5 December 2003 (she was asked to work the Friday instead of the Saturday).  Her next shift was on Saturday 13 December 2003.  She found the work was quite heavy and her neck was quite sore.  The soreness was all across the back of her neck and going either side to the left shoulder or the right.  Sometimes it was worse on one side and sometimes it was worse on the other side.  It was like a burning pain, then her head felt heavy and sometimes she got a headache at the same time.

11. She said she was supposed to work on 27 December 2003 but her neck was in agony.  She knew that if she went to work she wouldn’t be able to cope with the shift and that wouldn’t be fair to the carer.  So she went to see the local doctor at her local surgery.  She got a medical certificate for that night.  She had since worked two further shifts before 16 February 2004.

12. The other job she applied for on 4 November 2003 was for a pathology lab based in Melbourne.  She felt she could do that job.  She was told, upon her application, that she would be first “on their books if they needed someone in her area”.  She said she would be pleased to accept work with that organization.

13. The other application she made on 4 November 2003 was for work at a nursing home at Payneham.  That was a telephone application only and it was not successful.

14. The plaintiff said that she hoped she would be able to continue to work one Saturday a fortnight at the St Louis Nursing Home.

15. She said she had made no other applications between 4 November 2003 and her further evidence on 16 February 2004.  She said she usually looks in The Advertiser and every Saturday and since 4 November 2003 she said that when she had looked she had found no other jobs that “would be applicable to when I could work”.

    Dr Geoffrey Graham

16. I have already referred to certain aspects of written reports prepared by Dr Graham.  In his evidence Dr Graham said that he was an occupational physician.  He said his field of medicine is medicine related to work.  “It is the significance of any injury or illness in the workplace”. 

17. Dr Graham said that he did not consider that the MRI report of 1 June 2000 shows evidence of any physical incapacity which is likely to be caused by a whiplash injury.  He said that pain is subjective evidence of some physical disability.  He was asked of what particular type of injury was the plaintiff’s pain subjective evidence.  He answered:

    AWe change our terminology frequently.  I see the Motor Accident Commission now refers to non-demonstrable injuries.  We used to call them whiplash-type injuries.  They are non-demonstrable injuries that appear to follow a pattern in different people.

    QAre you able to tell his Honour whether at some stage or other there was some physical injury to this plaintiff in your view.

    AIn my view there was some physical injury.

    QCan you tell us why you say that.

    AYes.  I evaluate any patient’s presentation and say “Is it explicable in some way?” - sorry, if I believe the person’s presentation to be genuine then I look to find whether there can be an explanation for it.

    QDid you, in assessing her, assume her presentation to be genuine.

    AYes, I did.

    QWhat physical explanation might there be for her complaints.

    AI think there is a lot of evidence over the last ten years about pain mechanisms and response to injury that is not demonstrable, the chemical responses, the chemical soup that follows trauma.  The release of - we know that in trauma we release substances like nerve growth factors, if they are reinjected in people they cause burning pain.  There are a huge number of possible explanations.

    QConsistent with being caused by a whiplash injury.

    AI think - sorry, the answer is yes.  The whiplash-type injury, we are not sure what structures may be injured in that, in that type of injury.

    QDid you observe any signs in the plaintiff that were inconsistent with some sort of physical injury at some stage.

    ANo.

18. Dr Graham said that he had last examined the plaintiff on 9 October 2003.  The plaintiff had then described to him burning pain in her neck, across her shoulders, and headaches.  They were the prime symptoms.  His examination revealed very little, a generalised decrease in active movement in her neck and a claim of tenderness in the left trapezius muscle.  These were all subjective signs.  Dr Graham was asked:

    QWas there any evidence when you last examined her of in fact the existence of any physical defect or lesion.

    ANo.

    QIf you assume that her complaints of pain and disability are genuine, are you able to say what might explain her ongoing complaints.

    AWell, as I said before, the pain literature is expanding at an enormous rate with explanations being put forward on - for a range of responses.  I haven’t got any specific - that is not really my field, I just notice that my pain journal is now twice the thickness that it was when I first subscribed.

    QBut in your view is there an explanation for her ongoing complaints of pain absent any signs of a physical lesion.

    AI think - we have always - sorry, we have for the last ten years at least accepted that pain can continue in the absence of any physical findings, yes.

    QOn the literature and your own view, if they are the same, what is the explanation for that.

    AAs I was saying, we know - I mentioned nerve growth factors.  We know that neurons start budding and start growing and start interacting and firing off.  We know the so-called wind-up phenomenon is well established where a nerve impulse literally gets wound up from the time it enters the dorsal horn until it is registered as pain.

    QI will come back to them individually in a moment.

    AThey are not really my field and I am getting into areas that I am not able to explain much further than that.

    ....

    QAre you able to explain to us the nerve growth factor phenomenon that you described.

    ANo, but I can say to you that it is established that there is some budding of neurons in the spinal cord as a result of pain inputs.  Those neurons, I think from memory, are more likely to fire off spontaneously.

    QWhen they fire off does that cause pain.

    AYes.

    QIs there any way of testing that.

    ANo, this is probably from rats being cut up.

    QWhat is the wind-up phenomenon that you referred to.

    AThat is by no means new, that has been established for many years that there are feedback inhibitory factors, there are - I can’t think of what the word is - to promote the pain, and there is a constant interplay of these things going on.  For some reason some people get this wonder phenomenon.

    QAre the nerve growth factors and the wind-up factors recognised by the medical profession as being appropriate.

    AThey are certainly recognised by anybody who deals in pain.

    QAnd by you.

    AI accept what I am told by the gurus in the pain area.

    HIS HONOUR

    QYou read what you read in the papers.

19. Dr Graham said that he could not say whether and, if so, when the plaintiff’s complaints of pain and disability in relation to her neck might resolve.  He said it was unusual that a condition such as the plaintiff’s would last for such a period of time as it apparently has.

20. Dr Graham was asked this:

    HIS HONOUR

    QWhat is your diagnosis.

    AThe diagnosis is now a chronic pain condition, I don’t know if I can say much more precisely than that.

    QSo any pain would be consistent with a pain condition presumably.

    APeople give descriptions of their pain and they give indications of what does activate it and what doesn’t and put it altogether and say - I mean because somebody comes along and says “I have ongoing pain in this area”, doesn’t suggest to me automatically that they have whatever one might call it a chronic pain state, a complex regional pain syndrome or whatever.  I mean there may be a number of reasons why people have ongoing pain, so I would say that this lady has what we would term a chronic pain state, a complex regional pain syndrome.

    XN

    ...

    QShe says, at p.94, in answer to the first couple of questions in cross-examination - she is asked this:  “Is there any physical activity that doesn’t aggravate your neck?”  Answer “Not that I can think of”.  “So it is the case that every physical activity that you can think of aggravates your neck, is that right?”  Answer “Yes”.  “But it is also the case that there is no physical activity that you are totally prohibited from by your neck?”  Answer “That is correct”.  Question “So everything, every active thing that you would do would give you pain but that is a matter of managing that pain?”  Answer “That is right”.  If you accept the truth of that, the accuracy of that evidence, is that consistent with your diagnosis.

    AI have difficulty with the accuracy of that, that is somebody trying to explain, you know, the fact that they have ongoing pain, I’m sure there are a number of activities which don’t involve the neck and shoulder girdle which are not painful.

21. Dr Graham was asked questions about the work of medical receptionists and the plaintiff’s physical ability to do that work.  He was asked:

    QIn her case, and assuming a medical receptionist entails the things that she says it entails, do you think she would be able to do it on a five day a week, eight hour a day basis.

    AI would hope that she could.  I don’t know that I could say that she could, but I would hope that she could and I would encourage her to attempt it.

    QCould you say one way or the other whether she is able to do that now.

    ANo, no-one can say that.

22. Dr Graham was asked about the request that was made of him to report on whether the plaintiff could physically meet the job requirements of her duties.  That request was dated 16 February 2001 (Exhibit P31) and his response was dated 26 February 2001 (Exhibit P1, page 41).  He said:

    ... I feel that lifting 22.5 kilograms would have run the risk of aggravating her neck condition.  Plus I felt she didn’t meet the other requirements set down either, that is to complete a shift without exacerbating her problems.

    QDid you give some thought to what particular activities in the shift might aggravate her problems.

    AI don’t know if I gave thought at that time.  I’ve been in the hospital scene for a while and I think I am familiar with the roles of nursing staff.

    HIS HONOUR

    QHow were you viewing this in the sense of aggravation; what is an aggravation of her problem.

    AI think an aggravation would have been something that resulted in a significant increase in her pain such that further treatment would be contemplated.

    QWhat treatment was she having.

    AI think none at the time, I’m not sure, I would have to have a look.  But my concern here is that the work she is being asked to perform may result in an increase in symptoms and lead to a request for treatment which then becomes the responsibility of Ashford.

    QWould her suffering pain in doing any activity that she might be required to do, would that be an aggravation.

    AYes.

    QSo you say if she suffered any symptom of pain that would be an aggravation of her symptoms and therefore she would meet the requirements.  Is that how you were viewing it.

    ANo, I think I am saying that - does this lady run a risk of suffering an aggravation such that further investigation, treatment, involvement of other people, any of that is involved? If I was confident that the worse possible outcome was that she will be sore at the end of the day and good enough the next day to start again, that wouldn’t concern me, although I still see that as an aggravation.  I am making a call on the - what I view as the risk of her suffering an aggravation that would lead to further treatment or whatever.

    QAt the cost of Ashford.

    AThat is ultimately it, yes.

23. When cross-examined Dr Graham was asked whether his original diagnosis was “just whiplash injury”.  He answered “most probably”.  He was asked:

    QI take it by that you meant at the time that you used those words in your earlier reports that a muscular ligamentous strain of the cervical spine.

    ANo, I don’t think so, that is the whole point.  We have changed that terminology, what we termed the “whiplash injury” was really a term for what they now call “non-demonstrable injury”.  It is really saying it is one of these injuries that we can’t demonstrate or explain.

    QIn terms of the pathology caused by a car accident, didn’t your diagnosis of a whiplash injury mean or portray that it was a stretching of the ligaments of the cervical spine, that was the pathology.

    AI don’t think so at all.  The whole point is that there are a lot of other structures that maybe implicated.  One study demonstrated tears in the dura of people that suffered whiplash-type injuries, there are many structures that could be involved.

    QDid you mean by a whiplash injury that there was a strain to the cervical spine which has led to some form of anomonant pathology in the neck.

    AHang on, what does anomonant mean?

    QSame as non-demonstrable pathology in the neck.

    AYes, I think that that is correct.  If you accept that pathology may include chemical changes and such like.

    QDo you not accept that the pathology of such an injury is most likely to resolve and heal within the first three months after the occurrence of the injury.

    AAs I said before, that’s the norm, yes.

    QIf it doesn’t heal in that time, one might look to either organic or non-organic causes for the perseverance of symptoms, is that correct.

    AYes, or a mixture.  I think it would be foolish to suggest that anybody has one or the other.  I think there’s always a mixture.

    QIs it your opinion that the cause of her current symptoms is purely organic causes.

    ANo, I think I just said that everybody will have a combination.  It’s my opinion that - my opinion is no more than one can offer an explanation, if one looks at the consistency of what is being said, accepts that what is being said is truthful, then one can offer an explanation.

    ...

    QThe fact of the matter is that she claims she had a knock to the neck in the car accident or a whiplash-type by dynamics in the accident, and that as a result she’s got symptoms.  I take your evidence to be that it’s not possible to be conclusive about what the pathology was that was caused by that dynamics.

    AYes.

    QAnd there’s no way of demonstrating that her pain is organically based.

    ANo.

    ...

    QSo in your view, we don’t know exactly the pathology caused or even if any pathology was caused.

    AThat’s correct.

    QAnd in these cases we need to rely on the credibility of the subject.

    AYes, and whether or not the subjective evidence fits with any form of - you know, any pattern that one might expect.

1. Dr Graham said that when he first saw the plaintiff she had already attempted a return to work and she suffered an aggravation of her symptoms in that attempt.  Dr Graham agreed that that history meant, to him, that the plaintiff was a work cover risk in that if she had an aggravation of a pre-existing condition that was a matter for which Ashford Hospital would be responsible.  He said that from her history he had very little option, from what she told him, but to certify her not fit for work.  He had no reason to go behind the plaintiff’s presentation to him.  He did not make a rigorous examination of her credibility.  Notwithstanding his relatively minor findings on examination, on the facts as she told him and her account of her symptoms, he certified her unfit for work.  He did not feel it necessary to obtain x-rays to support that diagnosis, nor was it important in the decision he made to determine whether the source of the plaintiff’s complaint was organic or non-organic.  His primary concern was the welfare of the hospital, not the welfare of the plaintiff.  Dr Graham agreed that he may well have told the plaintiff that she would need to be cleared by him before she could return to work.  He may well have given her the impression that he would not clear her for work until she was pain free.  Dr Graham said that he probably told her that she would need to be pain free and get past him to get back to work.  He had the welfare of the hospital in mind when he said those things.

2. He probably told the plaintiff that when she and her doctor felt she was sufficiently fit then she had still to convince him.  He said that if the plaintiff had injured herself at work his approach would have been totally different.  He would have supported a return to work for one night a week on a trial basis.  He acknowledged, however, that Ashford Hospital had had the plaintiff back two nights a week instead of her normal four before she had been seen by him.

3. Dr Graham said that in October 1999 there was nothing other than the plaintiff’s subjective complaints to him that kept her from returning to work.  He said:  “I am not sure that there is a large incapacity for work”.  However, he said that her incapacity for work can be explained largely on organic grounds. 

   Dr Colin Mills

4. I referred earlier to opinions expressed by Dr Mills following his examination of the plaintiff on 29 May 2000 and following a review of his notes in June 2000.  Dr Mills next saw the plaintiff on 15 November 2000.  He saw her for the final time on 10 March 2003.

5. In his last written report dated 24 March 2003 (Exhibit P1, page 20) Dr Mills indicated that on 10 March 2003 the plaintiff had told him that during 2002 she had tried two shifts of nursing in one fortnight but, with a recurrence of neck, shoulder pain and headaches, she had ceased working.  She told him that “the work had been simple - checking and preparing drugs for a nursing home”.  The plaintiff described “near constant pain to the left posterior shoulder and supraspinatus fossa, aggravated by driving (manoeuvring) and extension and flexion”.  As to her low back the plaintiff described it as sore “but part of nursing” and Dr Mills wrote that it was unrelated to the accident. 

6. Dr Mills wrote that there was no significant psychological sequelae to the accident on 13 April 1999 but that the plaintiff described significant physical effects, including neck pain and left posterior shoulder pain.  Dr Mills wrote that the plaintiff related her low back pain to nursing.  Dr Mills assessed the plaintiff’s disability as at 10 percent of the cervical spine (increased from 7.5 per cent in April 2001) and 5 percent of the left shoulder (increased from 2.5 per cent in April 2001).  Dr Mills further assessed the plaintiff as having a 5 per cent disability of her right wrist which he believed was a ligamentous injury (no assessment was given in April 2001).

7. Finally, he wrote that “the history of the (plaintiff’s) neck pain, left posterior shoulder pain are generally consistent”.

8. Dr Mills gave evidence that he is an occupational physician which is “the practice of medicine related to injuries or illnesses caused by or affected by capacity to work”.  He said he has seen numerous people with whiplash injuries.

9. Dr Mills said that the signs and symptoms demonstrated by the plaintiff on what I find were three occasions upon which he saw her were consistent with a whiplash or deceleration type injury.  He said his diagnosis of her condition was “mechanical neck pain”.  He was asked whether there was a physical explanation for the plaintiff’s signs and symptoms.  He replied:

   AThe spine of which the cervical elements are a component of, comprise bony structures, joints between them with the disc, the intervertebral joint and the facet joints, the ligaments that hold the structure together, the surrounding investment of fibrous tissue, the nervous tissue and its surrounding investment of fibrous tissue, anyone or all of which can cause the pain.  The investigations we have available don’t often show which bit is causing the pain and therefore we rely on the history that certain movements are associated with pain at the time or after, and the modern feeling is it’s better termed “mechanical neck pain” which doesn’t try and imply a particular source.

   QWere you able to find a particular source in her case.

   AHer neck is little stiff at the extremes of movement and she has some tenderness in the cervical facet joint on the last occasion at the level of C2/3 on the right.

   HIS HONOUR

   QDoes that answer the question.

   AI thought it did.

   XN

   QWas there any investigations and test other than her own complaints of pain and disability that lead you to the diagnosis.

   AThere’s a minor restriction at the extremes and range of movement and tenderness.  Her MRI showed some evidence of changes in disc at C5/6 and C6/7.

   QThe evidence of changes of the discs that you’ve referred to, are they of a type which are likely to be caused by a deceleration of whiplash injury.

   AThey can be caused by deceleration or whiplash.  They can occur as the ageing process occurs too.

   QIf a patient who had those degenerative changes present and was pain-free underwent a deceleration injury of some form and thereafter suffered pain, would that be consistent with the pre-existing condition being aggravated by the whiplash injury.

   AYes.

   ...

   ... In the type of injury that we are talking about, can the pain, disability and symptoms persist even though the physical cause is no longer present.

   AYes.

   QIs that a common phenomenon with whiplash injuries.

   AYes.

   QIs there any recognised time in which a whiplash or deceleration injury might be expected to resolve.

   ASix months is a working guide when muscular ligamentous injuries should have resolved.

   QDo some go on beyond that six month period.

   AYes.

   QIs there some explanation for that.

   AI think you answered that previously by saying this is an aggravation that occurred and keeps going, which we call chronic pain.

   QIs there anything that might be done to treat a patient who is suffering in the fashion that you’ve described.

   APain relief by chemical medication, maintenance of spinal fitness is known to be associated with improvement in symptoms but necessarily abolition of symptoms and avoidance of activities likely to aggravate the symptoms.

10. Dr Mills said that he thought it was unlikely that the plaintiff’s condition would change now.  There is no treatment that she might have that might ameliorate the problems she is getting.

11. When cross-examined Dr Mills agreed that in his first report he commented that the plaintiff’s symptoms were greater than one would expect on a physical basis.  He said that he went on to recommend that it would be wise to explore non-organic explanations to explain her symptoms with a psychologist or a psychiatrist.  He said nothing that he had seen since providing that opinion had changed that opinion.  Whilst her complaints of pain are consistent with the diagnosis he made, the severity of her complaints of pain are in excess of what he would expect for this type of injury.

12. Dr Mills accepted the plaintiff as a genuine witness and, with that in mind, he provided the best explanation he could for her current symptoms and complaints of pain.

13. During cross-examination Dr Mills was asked:

    ... Do I understand that the pathology that you envisage having then occurred in this accident as being a stretching of the cervical ligaments or the facet joints and/or a tear of the surrounding tissue.

    AI wasn’t specific, I did - the tests are not accurate enough to show us what the damage is.  The history of pain with movement or following some activity leads us to say that the most likely diagnosis is mechanical neck pain because we can’t identify the source of the pain.

    QDo you agree with the proposition that any damage to the ligaments by way of stretching of the ligaments or any soft tissue tears that were occasioned by the low speed accident that was involved here would have healed within a period of about three months.

    AIf there were tears they would heal.  We are talking about her ongoing symptoms of pain, the pain disorder.

    ...

    QYour diagnosis takes some solace from the MRI findings, is that correct.

    AYes.

    QAnd there were in fact two MRIs done, one in 2001 and one in I think 2003.

    AYes.

    QLittle change was shown, if any, in comparing those two MRIs.

    AYes.

    QThe MRIs then, don’t they show minor disc changes.

    AYes.

    QAren’t those minor disc changes unrelated to the motor vehicle accident in all likelihood here.

    AThey may well be - in that the changes preceded the accident we simply don’t know.  We don’t have the evidence from before the accident, from before 999, we have them from after.

    QAnd I suggest that those minor disc changes are of no clinical significant because they are not uncommon and in fact would be expected to be seen in a lady of this age if you did an MRI of her cervical spine.

    AI don’t know about expected, they are not uncommon in people of her age depending on what work they’ve done, what damage has happened to the spine before or what injuries they may have had.  And they often appear unrelated to symptoms, at other times they’re the only thing that seems related to symptoms.  So we are back to what I said before.  We really don’t know where her symptoms are coming from and the best explanation is mechanical low back pain - mechanical neck pain.

    QThe other reason that they should be discounted as having any significance in the analysis of her current ongoing pain is because even from early on they weren’t matched by any great restriction of movement.

    AAt that level?

    QYes.

    AI’d agree with that.

    ...

    QIf there is a pathological cause for her pain now, wouldn’t you have expected it to have resulted in restriction of a range of movement in the early months after the accident.

    AYes.

    QPutting that another way, the fact that there was no restriction of movement in June 1999, is evidence that the cause of her symptoms is certainly no major pathology.

    AYes.

    QAnd probably not the disc changes.

    AI would agree with that, we can’t discover any pathology clearly related to her pain, and often those disc changes are seen in people without pain.

14. Dr Mills was taken to a passage in a report of Dr Johnson:

    ... The passage I want to take you to is not quoted there I don’t think.  It’s on p.5 of Dr Johnson’s report and it is that:  “I do not believe the cervical spine disc findings on x-ray are of any clinical significance.  Such findings are not uncommon in the normal population at random and in the absence of clinical features, signs or symptom.”  You do take issue with that I take it from your evidence so far.

    ANo, I don’t think I’ve said anything too much different than that.

    QTo be fair I think you take issue with the part where he says they are not of any clinical significance.  You take issue with that part of it don’t you.

    AThey may be of significance.

    HIS HONOUR

    QHe doesn’t know, is that right, Dr Mills.

    AYes, nor does anyone else, that’s the problem.

15. Dr Mills was further cross-examined about his first report where he referred to non-organic causes for the plaintiff’s symptoms.  He was asked:

    ... In your first report as I read it you were saying that her symptoms are partially caused by organic causes and partially by non-organic causes.

    AMy understanding from the discussion with her solicitors later was that those had been assessed by someone who couldn’t find any non-organic factors.

    QLet’s just take it then at the first.  Before you received that correspondence from the solicitors you thought that the severity of symptoms couldn’t be explained just on physical grounds.

    AYes.

    QSo there must have been some component therefore of her symptoms at that time that you thought was non-organic by cause.

    AI did at that time.

    QI asked you I think whether you changed that opinion and you said you hadn’t.  Have you changed that opinion.

    AWe can’t explain all her pain on the basis of what we see in the investigation and I simply don’t know.  One way would be to assume that she’s got a chronic pain syndrome related to some psychological pathology or the other is we have undiagnosed cause of her ongoing pain or third postulate that you say is that there is some intentional gain to make known the pain.

    ...

    QSo therefore do we conclude that some of that in your opinion at the time of that report, was some of that 7.5% disability of the neck non-organic.

    AYes.

    QProblematical question, how much.

    ASince I don’t really know which bit of this anatomical structure her pain is coming from it seems to be a mechanical problem associated with the movement.  I really can’t answer that nor do I think there’s any value in trying to.  The pain that she experiences is a combination of the physical and the emotional and that combination affects her capacity.

16. Later again Dr Mills was asked to comment on some evidence given by the plaintiff at trial.  This was put to him:

    QAt another point in the evidence, she said that every physical activity she can think of, causes her pain.  Again keeping the fact that she had some spinal education in the back of your mind, that seems to be an exaggerated complaint, does it not.

    AHer whole pain, presentation and description, has been as you say, out of what we expect is ordinary.  The difficulty is that we don’t know what her pain is, and we have no way of measuring it.

    ...

    QBringing it back to the introduction we gave to this cross-examination.  That is, a complaint of pain with every physical activity she can think of; there may be something that causes you to question her genuineness.

    AIf it was pain associated with movement of the toe I would certainly question it.  In the main my understanding is that it is pain associated with the movements of the neck and shoulder.

    QPain every waking moment; is that another complaint that you would say is outside the physical explanation of her symptoms.

    AYes.

    QPerhaps that is what I should have put for the other complaint, namely the complaint that every physical activity she can think of causes pain, that is outside the physical explanation of her symptoms.

    AI can’t explain that as I said before.

    ...

    QShe also complained in evidence that her neck is worse now than it was six weeks after the accident.  Insofar as there is a deterioration of her condition since that point, that wouldn’t be explicable on organic grounds would it.

    ANo.

    QIn the absence of another injury that is.

    AYes.

17. Finally, in cross-examination Dr Mills was asked whether, based on all the matters that had been put to him, whether he did not think that the plaintiff was consciously exaggerating her symptoms.  He answered:

    AIt is a matter of whether you believe her or not, and I believe her, and I don’t think she is.

18. In re-examination Dr Mills seemed to me to accept that there were some nursing positions for which the plaintiff would be capable of performing provided that she had an appropriate re-introduction to work and gradually increased her time to normal.  He said that by normal he meant normal working hours.

    Dr Christopher Slaughter

19. Dr Slaughter is a chiropractor.  He saw the plaintiff for the first time on 1 June 2001.  The plaintiff told Dr Slaughter that the reason for her attending was to find out what she could do about pain affecting her neck, shoulder and lower back.  She indicated that her neck pain was “posterior and mid-line in the cervical spine and was rated 8 out of 10 in severity.  She likewise indicated the shoulder pain to be bilateral at the cervico-thoracic junction and rated to be 6 out of 10 in severity.  The lower back pain was indicated to be at the lumbo-sacral junction and was rated to be 5 out of 10 in severity”.  After 1 June 2001 the plaintiff saw Dr Slaughter on eight occasions during 2002, on two occasions in 2003 and on one occasion on 5 February 2004.  Each time Dr Slaughter manipulated the plaintiff’s spine.  He said the prime objective of the chiropractor was to determine functional disabilities of the spine, the musculo-skeletal system with an aim of attempting to correct human ailments through manipulation of the spine and peripheral joints and associated muscular techniques.

20. His diagnosis of the plaintiff was “of a cervicogenic headache secondary to a sprain and strain complex caused by the segmental restriction” that he had noted on palpating the plaintiff’s spine.  Dr Slaughter said that the symptoms described to him by the plaintiff were consistent with an acceleration-deceleration injury although there are “multiple generating factors that could lead to a similar type of condition”.  He said that it was possible that a person with that diagnosis would feel pain which “may vary from a very mild sense of discomfort to quite sharp, excruciating pain and anything in between”.

21. In his report (Exhibit P1, page 54) Dr Slaughter wrote that the extent of the plaintiff’s condition was consistent with a permanent impairment of ten percent.  In his evidence he said that he based that percentage permanent impairment on the MRI scan report attached to his report (Exhibit P1, page 58).  It was not based on his assessment of the restriction in the range of movement in the plaintiff’s cervical spine.  He did not feel he was able to say what limitations the plaintiff may have in practical, physical terms with respect to such permanent impairment of ten percent. 

    Dr Adrian Munyard

22. I adjourned the trial of this matter in October 2003 partly to enable all doctors who were to be called on behalf of both parties to view about an hour of film of the plaintiff outside of court rather than whilst they gave their evidence.  That appeared to have happened before the trial resumed on 16 February 2004.  All the medical witnesses upon which the plaintiff’s counsel had Opened and the medical witnesses ultimately called on behalf of the defendant had seen the film before giving evidence.

23. On 18 February 2004, at what appeared to be the end of the plaintiff’s case, the plaintiff’s counsel indicated that instructions he had received that day were to call Dr Adrian Munyard.  He had been arranged for 10am the following morning.  A doctor who was to be part of the defendant’s case had been arranged to give evidence at the time I was told the plaintiff wished to call Dr Munyard.  I was told that Dr Munyard had not viewed the film and I was told that the defendant did not wish to start his case until the plaintiff had closed hers.  Over opposition I adjourned the trial to the following morning so that Dr Munyard could be called.  That meant that Dr Kelly would not give evidence on the afternoon of 18 February 2004 and would give evidence later.  Upon granting the application to adjourn to the following morning I was informed, after a short break, that counsel had resolved the matter on the basis that the reports of Dr Munyard would be tendered as part of the plaintiff’s case.  I was asked to note that Dr Munyard had not seen the film.  Two reports of Dr Munyard were tendered (Exhibit P33).  There was no qualification to the tender other than that Dr Munyard had not seen the film.  The plaintiff then closed her case subject to some special damages and an actuarial certificate.  The defendant then commenced his case by calling Dr Kelly.

1. The application to amend was opposed by the defendant.  The defendant’s counsel submitted that the amendment was too late and too prejudicial.  It was too prejudicial to the way in which the defendant had run his case.  He submitted:

   … if this had been in the pleadings in the first place, we would have sought further and better particulars as to what the non-organic sequelae that are alleged, were, and what their cause was, and obviously we would have taken up Dr Johnson’s kind invitation to employ someone like Dr Kutlaca in the matter at an earlier state, if there was any prospect on the pleadings, or in the way that the plaintiff ran their case, of a finding that the organic component had resolved, but there was a legitimate non-organic injury that was the explanation for ongoing symptoms.

2. The defendant’s counsel said that the pleadings could not be clearer.  They only plead an organic injury.  If there had been pleaded a non-organic component explaining current symptoms, or alternatively if that had been the sole explanation for current symptoms, the defendant would have run its case very differently.

3. In reply, the plaintiff’s counsel submitted:

   MR HALLIDAY:        With respect I have great difficulty in accepting that experienced counsel with experienced solicitors and an experienced insurer wouldn’t appreciate that in matters of this nature there is almost always an organic component, and in the face of pleadings which are non specific as to whether it’s organic or non-organic, and in the light of Dr Johnson’s suggestion that Dr Kutlaca be consulted, the defendant is in my respectful submission the author of its own injury, if it misunderstood the width of the pleadings as they stand at the moment; that is submission number one.

   Submission number two is that although I have difficulty in accepting what the defendant perceived its case to not include an organic component in the light of those circumstances –

   HIS HONOUR:          Not include a non-organic component?

   MR HALLIDAY:        Yes, and the findings in relation to a genuine non-organic component have been open on the medical reports on the evidence on the two occasions that this matter has been adjourned.

   HIS HONOUR:          Sorry, can you direct me to that?

   MR HALLIDAY:        I can’t at the moment.  Could I finish the submission before I – it will take me a while because in my submission everybody refers to non-organic components and non-organic sequelae, and I just simply leave it at that for the moment.

4. Counsel then proceeded to refer to Dr Johnson having talked about non-organic sequelae, Dr Mills talking about a non-organic component, and Dr Munyard talking about a non-organic component.  Counsel then submitted:

   The plaintiff has run the case on the premise in the pleadings that there was a physical injury and that she has suffered and will continue to suffer those three components set out in para.6.  Your Honour may find on the evidence that there still is a physical component.  There was a physical component of some duration and that that produced non-organic components or that there has been a non-organic component from day one.

   That, in my submission, is open on the evidence and has been throughout all the periods of time in relation to the adjournment and in the event that somebody wanted somebody with more expertise than the existing doctors to pass on that and it’s been open to the parties to do so.  But my submission is that on the evidence that is available, it is open to you to make a finding in relation to those matters and we’ll be saying that, depending on how you assess the evidence, you should make such a finding.

   As far as the lateness is concerned, I can only say that in my submission the pleadings in their previous form were wide enough and the evidence was available for the defendant to take that position and investigate those matters if it chose to do so.

5. Counsel further submitted that it seemed to him that the defendant’s position was that “because there’s no psychiatrist or psychologist, you can’t make a finding of non-organic factors.”  This exchange then occurred:

   HIS HONOUR:          Let me ask you this; what are the non-organic factors that she’ll be saying and how long will they last, are they treatable, how will they impact upon any future claim for non-economic and economic losses and what have they been up until this stage and how have they affected Ms Bowden’s capacities or incapacities and her assessment of her damages under all sorts of heads?

   MR HALLIDAY:        I don’t know that I can answer that instantly other than compendiously, but I would expect to do so in the course of my address, but for present purposes you might, for instance, accept on the evidence, and this is just an example, that the physical sequelae were gone by say 9 September.

   You might then go the next step and say on the medical evidence that we have and there’s no doubt that these doctors can give evidence of physical and non-physical conditions, no doubt, in my respectful submission, no doubt at all.  A first year graduate could do it.  It wouldn’t have much weight from a first year graduate but these are experienced doctors.

   You might then say on the evidence there are two explanations for this lady’s ongoing complaints of pain.  One is that she’s malingering, and that I assume to be the defendant’s position or something very close to it; or the alternative explanation on the evidence is that there’s a non-organic component.  Given that non-organic component, you might then fall to consider what affect a non-organic component has had on her capacity to secure employment up to now and you’ll need to consider not only her condition but her position in the labour market.  That’s my submission anyway.

   Then you need to look at the future.  If the defendant hasn’t put some sort of a time limit on what, in my submission, might be an ongoing and continuing non-organic component, it would be a matter for your Honour to do that.

   HIS HONOUR:          How can I deal with that?

   MR HALLIDAY:        Well, there’s a presumption and evidentiary onus, we say, on the defendant to show that and absent any specific evidence with respect to it, it’s a matter entirely for your Honour.  There is nothing to suggest that there is going to be –

   HIS HONOUR:          In the absence of any evidence, I have to find it’s indefinite, do I?

   MR HALLIDAY:        Absent, the evidentiary onus being satisfied by the defendant.

   HIS HONOUR:          So you not only want this amendment at the end of the trial, but you say that the defendant has got to suffer because it has not discharged what you say is an evidentiary onus.

   MR HALLIDAY:        Yes.

6. I then asked counsel what was the plaintiff’s non-organic condition.  He replied that it had been given a variety of descriptions.  A chronic pain syndrome was one and Dr Mills referred to a mechanical pain syndrome.  Counsel said he interpreted that as being a mixture of physical and non-physical components.

7. Later this exchange occurred:

   HIS HONOUR:          So you’ll be asking me to find that I should believe Ms Bowden’s evidence.  I might find that there is no organic explanation for her on-going symptoms, because I believe her, I should find that there are non-organic reasons but I can’t specify what they are, and because the defendant hasn’t discharged an evidentiary onus on him, I should find that they will go on indefinitely.

   MR HALLIDAY:        That is one finding you could make.

8. The defendant’s counsel submitted that the plaintiff’s application to amend was not a mere pleadings issue.  The issue was whether or not the plaintiff should be allowed to amend the Particulars of Claim, after the defendant has closed his case, to introduce for the first time a claim of non-organic injury arising from the accident.  He submitted that the defendant will be prejudiced by such an amendment.  He submitted that the plaintiff had not shown any prejudice if leave to amend was not granted because the plaintiff had not alleged that any other evidence would have been led to enable me to find that there is a psychiatric cause for the plaintiff’s ongoing symptoms.

9. I refused the plaintiff’s application to amend.

10. I considered that the plaintiff’s case had been pleaded, had been opened on, and had been presented on the basis that she suffered physical injuries in the accident in April 1999 and on the basis that her continuing and almost continuous injuries, disabilities, incapacities, losses and pain and discomfort have been and are explicable on the basis of organic or physical causes.  True it is that there were in some of the medical reports and in some of the evidence references to a possible need for psychological of psychiatric assessment of the plaintiff.  Dr Mills was one doctor who made such a suggestion as early as August 2000.  He said in his evidence that his understanding from later discussion with the plaintiff’s solicitors was that the question of the plaintiff’s symptoms being partially caused by non-organic causes had been assessed by someone who couldn’t find any non-organic factors.  That is, of course, not evidence that that had been done and that such an opinion had been expressed.  It does indicate to me, however, that I should not have assumed that psychiatric or psychological examination of the plaintiff had never been undertaken.

11. There was also reference during some of the medical witnesses’ evidence to the effect that the plaintiff’s symptoms were not explicable (at least subsequent to September 1999) on physical or organic grounds.  It was said that if she did suffer the symptoms she said she did then there may be non-organic explanations for that which may or may not have anything to do with the accident in 1999.  That evidence was given on the assumption that the plaintiff is accepted as suffering the symptoms of which she complains and has complained during the years since April 1999.

12. I considered that it would be grossly unjust to the defendant if I were to allow, at the end of the trial, a pleading by which the plaintiff claimed damages for non-organic, or psychological, or psychiatric sequelae to the motor vehicle accident in April 1999 where the medical evidence before me was not directed specifically to such an allegation, and where the plaintiff’s counsel had difficulty in identifying for me precisely just what the non-organic factors were for which his client sought compensation.  I do not blame him for that because I considered that the evidence was not directed to that issue.  Because of that I considered and consider that the peripheral “non-organic evidence” was non-specific and vague.

13. Accordingly, I did not consider that it would significantly advance the plaintiff’s cause if I allowed the amendment.  I considered that the potential prejudice to the defendant would far outweigh any advantage to the plaintiff, particularly because I had no indication from the plaintiff’s counsel that the plaintiff intended to adduce any further evidence than that already adduced at the trial.

    Findings and Conclusions

14. At the beginning of these reasons I set out the plaintiff’s claim that in consequence of a whiplash injury to her neck and a musculo-ligamentous strain to her cervical spine she has suffered and will continue to suffer severe neck pain, headaches, and pain across the top of her (left) shoulder.  As a result of her injuries and disabilities she pleaded that she has not been able to return to her pre-accident employment as a registered nurse and she has not been able to obtain alternative work.  She pleaded that she is unable to partake of any activity which involves leaning forward or down.  Carrying things causes aggravation to her neck, even carrying a handbag on her shoulder aggravates it.  She suffers pain if she is sitting at her desk writing for more than thirty minutes.  She has difficulty picking up her daughter and pushing her in a pram due to pain.  Any quick movement causes sharp pain and causes her neck to burn.  She also has difficulty sleeping in any comfort.

15. Whilst the plaintiff did not refer to all of those allegations which she made in her Particulars of Claim in her evidence, the effect of her evidence, and her complaints to the various doctors and others who gave evidence, was that she has suffered, and continues to suffer, pain in her neck and shoulders as a result of many, if not most, of her day‑to‑day activities.  The effect of her evidence and her complaints to doctors was that because of these symptoms she could not return to her pre-accident employment and she claims that her injuries have compromised her from ever doing so, and of obtaining other employment.  Although she has worked more shifts as a nurse since she first gave evidence in October 2003 than she did between the accident in April 1999 and October 2003, she could not work even the shifts that she has done without suffering pain and discomfort.

16. Her case at trial ultimately was that her earning capacity has been compromised practically totally pre-trial, and will permanently be compromised in a significant way for the future.

17. The case the plaintiff presented at trial was that her current physical disabilities and incapacities resulted from the injuries she suffered in the accident on 13 April 1999, and that those physical disabilities and incapacities which result from the accident will be likely to continue to compromise her in the future.  She did not claim in her Particulars of Claim that any “non-organic” features were operating which contributed to her pain and her resulting disability and incapacity. 

18. The doctors and other practitioners that were called on her behalf at trial, both in their reports and in their evidence, explained their opinions of the plaintiff’s continuing pain, disability and incapacity on the basis of physical or organic injuries.

19. Dr Graham and Dr Mills each expressed the opinion that the plaintiff has suffered and continues to suffer pain and incapacity because of physical disabilities, the physical pathology for which cannot now be identified with precision.  In their evidence they spoke of a chronic pain state, a complex regional syndrome, and mechanical neck pain.  They both said, in different ways, that no-one could say with certainty what physical structures had been compromised such as to cause the plaintiff’s pain and incapacity.  Dr Graham said that he did not know the pathology, if any, that was caused to the plaintiff by the accident in April 1999.  Dr Mills said that “we don’t know where her symptoms are coming from”.  He also said that there was no major pathology and no disc changes.  Dr Mills referred to a view he had in August 2000 that the plaintiff should be assessed by a psychologist or a psychiatrist.  He also referred to the possibility that the plaintiff’s pain was a combination of physical and emotional factors.  However, Dr Mills did not, and could not, say whether non-organic factors or emotional factors were probably present in the plaintiff’s presentation of pain and incapacity.  His best explanation was mechanical neck pain.

20. On the other hand, the medical evidence called on behalf of the defendant was to the effect that there were no physical explanations for the plaintiff’s on-going complaints of pain and other symptoms subsequent to about September 1999 which could be attributed to the accident in April 1999.  Those doctors did not say that the plaintiff has not felt pain and other symptoms, or that she had not suffered some disabilities when attempting to return to work or in her day-to-day activities.  Rather, their opinions were that if she did suffer such pain, other symptoms and disabilities they were not explicable as being caused by any physical injury she suffered in the accident in April 1999.  Their opinions were that any physical injuries the plaintiff suffered in the accident were relatively mild and had completely resolved by September 1999.  Any pain or other symptoms she experienced thereafter, assuming she did, could only be explicable on non-organic grounds.

21. What I am faced with in this case is a plaintiff who was involved in a minor rear end collision which caused minimal damage to her vehicle.  Within a few months following the accident she had what I find was full and pain-free movement of her neck and shoulders.  There has never been anything of significance seen in the investigations made of her neck region by plain x-ray and MRI scans.  I find that the result of those investigations were essentially normal.

22. Over five years later the plaintiff says that she suffers pain on most days and many of her day-to-day activities aggravate the pain in her neck and shoulders.  Her evidence was that practically every activity she undertakes during the day aggravates her pain.  I did not regard her evidence to that effect as evidence which I should regard as an attempt by her merely to convey a meaning that she often suffered pain on activity, as was suggested by one of the doctors.  Having seen the plaintiff in the witness box over many days I considered that she meant me to understand the evidence she gave as to that matter, literally.  Furthermore, during that period up to February this year, the plaintiff has worked no more than nine nursing shifts.  She said they all caused her difficulties.

23. However, during that period she has carried and borne a daughter.  She has been able to do most of her day-to-day activities, although with pain.  She has gone fishing on numerous occasions from a boat or from rocks, and she has done activities in the garden and she has been involved in renovating her new home with her partner.  They moved into that house in the weeks after the accident in April 1999.

24. Furthermore, she has been examined on numerous occasions by various medical practitioners all of whom have found on examination that she has little or no restriction in movement of her neck and shoulders, and that such unrestricted movement is pain-free.  No doctors suggested that any x-ray or MRI investigations show other than what might be said to be expected in a woman of the plaintiff’s age.

25. Doctors Graham and Mills believe the plaintiff describes symptoms and disabilities she genuinely has.  They have diagnosed her by using terms that, to my mind, do no more than identify what she has told them her symptoms are.  Neither of those doctors were terribly impressed by the film of the plaintiff’s activities although each was prepared to allow that some of the activities seen on the video appear to be somewhat inconsistent with the complaints that she made to them.

26. On the other hand, the thrust of the reports and evidence of Doctors Kelly, Johnson and Fraser was that such injuries as the plaintiff did suffer in the accident in April 1999 had resolved towards the end of that year, and if she has suffered pain and disability since that time, and has been unable to work as a result thereof, that is inexplicable in physical terms.  They do not profess to be experts in disciplines other than those in which they currently practice, although Dr Kelly said that he did not see any symptoms of depression in the plaintiff and he had had some experience to enable him to say this.  Dr Johnson suggested in his last report in February 2003 that a psychiatric referral for the plaintiff might be appropriate to help explain her ongoing complaints.

27. Unlike Doctors Graham and Mills, Doctors Kelly and Johnson thought the film they saw on the plaintiff confirmed their opinions that she had no physical symptoms apparent in her neck and shoulders.  Both those doctors thought that a part of the film in which the plaintiff is seen reversing her vehicle from a property onto the street was significant.  Both said that in their experience that activity is one which generally causes difficulties in a person with an injured neck or shoulders.  They saw no apparent restriction or discomfort in the plaintiff performing that manoeuvre on the film.

28. I heard no evidence relating to the plaintiff from any medical practitioner practicing in psychiatry or psychology.

1. It was ultimately submitted on behalf of the plaintiff that, notwithstanding the state of the medical evidence that supported the plaintiff’s case (including the lack of positive non-organic expert evidence), I should believe the plaintiff’s evidence that she has suffered pain and other symptoms as she has described ever since the accident over four years ago, that I should find that she will continue to suffer such pain and other symptoms indefinitely into the future, and that I should assess her damages on the basis that such has been caused by the accident in April 1999.  It was submitted that I should accept her as a witness of truth as to the full extent of her complaints of pain and other symptoms, and her disabilities and incapacities, since April 1999.  It was submitted that I can and should decide this case by finding the plaintiff truthful and reliable notwithstanding the fact that even those doctors who were called to support her case were unable to identify what her pain has been and is, and what pathology, if any, was causing it.  Furthermore, I can and should decide the case on that basis where there is no expert evidence before me of any psychiatric or psychological diagnosis to explain the plaintiff’s symptoms.

2. I saw the plaintiff give evidence over many days in the witness box.  Her partner, her mother, her younger sister, and someone with whom she worked at Ashford Hospital were called to give evidence to support the plaintiff’s evidence of her continuing pain and other symptoms.

3. The plaintiff, her partner and her mother each gave evidence concerning some activities which are noted in the plaintiff’s diary.  I thought that the evidence of those three witnesses in respect of a trench that was apparently dug at the plaintiff’s new home at Vista bordered on the bizarre.  There were also bizarre features about the evidence I heard concerning badminton and volleyball.  I thought the evidence of the plaintiff and her partner about what they each did of some home renovations (which must have been performed very shortly after the accident) was unconvincing and, in some respects, positively misleading.  I considered that, in respect of each of the various activities to which I have just referred, the plaintiff consciously understated her actual role in each of them when giving her evidence.  Her partner’s evidence about all of those activities, and his evidence generally, was unimpressive.  I was not convinced that the plaintiff’s sister gave reliable evidence. She said that it seemed to her that looking up caused the plaintiff’s pain, and that her sister would always be rubbing her neck.  I find this evidence inconsistent with the plaintiff’s evidence and the film.  I considered that most of the evidence of the person with whom the plaintiff worked at Ashford was vague and unconvincing.  That is not a criticism of her.  I formed the view that she could not say that much about her observations of the plaintiff because she had very limited opportunity to observe her. 

4. I considered the film important because I thought that it showed the plaintiff going about her day-to-day activities in what appeared to me to be a normal and pain free way.  It is true that pain can be a subjective thing, and that pain cannot necessarily be seen on film.  I viewed the film, however, in the same way as did Doctors Kelly and Johnson.  I thought it showed the plaintiff going about her day-to-day activities in a way that was inconsistent with much of her evidence before me, and inconsistent with many of her complaints to most medical practitioners and to other people that she has apparently consistently made since the accident occurred.  I consider that it is also significant that all doctors saw relatively few, if any, restrictions in movement when they examined the plaintiff’s neck and shoulders clinically, and that her unrestricted movements were pain-free.  I also consider it significant that the plaintiff has had little active treatment or medication since late 1999.  I am satisfied and find that what the plaintiff did in respect of all of her daily activities was far greater than she said in evidence.

5. As to the doctors who gave evidence I was much impressed with Dr Kelly and Dr Johnson.  I was impressed by the way in which both gave evidence and responded to the matters that were put to them in cross-examination.  I have referred to and reproduced much of what they wrote in their reports and said in their evidence.  Most of what each said impressed me as having an aura of authority and common sense.  At no stage during each’s evidence did I consider that they were committed dogmatically to their opinions.  Neither doctor would say that the plaintiff was a malingerer, even when pressed, although both said that some of her activities they saw on film could have been interpreted to lead to such a conclusion.

6. On the other hand, I was not convinced by the evidence and opinions of Dr Graham and Dr Mills.  As I have already indicated, both those doctors seem to me to be ultimately saying that they saw no reason to disbelieve the plaintiff so they described, as best they could, a diagnosis which amounted to little more than identifying that she was symptomatic of pain.

7. Insofar as my conclusions in this case rely on the medical evidence I heard I consider the evidence and opinions of Dr Kelly and Dr Johnson to be reliable, convincing, and compelling.  I consider that their evidence and opinions, and not the evidence and opinions of Dr Graham and Dr Mills, should guide me in my conclusions in this case.  I do not consider that the written reports of Dr Munyard, and the evidence of Dr Slaughter and Ms Morgan, were such as to convince me that I should do other than rely on the evidence and opinions of Dr Kelly and Dr Johnson.

8. I conclude that it is not probable that the plaintiff suffers the pain and disability she has described to doctors and in evidence.  She has had, since soon after the accident, unrestricted pain-free movement of her neck and shoulders.  She has had little active treatment by any medical practitioner and little pharmacological treatment.  The doctors whom I prefer cannot explain her pain and symptoms on organic grounds, and have said that any symptoms which she does suffer are unrelated to the accident in April 1999.  Furthermore, the plaintiff was, at the time of the accident, 40 years of age and her x-rays and scans were consistent with a woman of that age, with the possibility of some degenerative change being noted as being unassociated with the accident.  Since the accident she has, however, borne her first child at the age of 41 years and has been fully involved in the duties of motherhood.  She has worked within and outside her house in ways which I have found is more than she said in evidence.

9. My conclusion is that the plaintiff has not satisfied me that any pain, disabilities or incapacities which she has suffered since about September 1999, and which she may suffer in the future, are in any way attributable to the minor motor vehicle accident in April 1999. 

10. I am satisfied and find that in that accident on 13 April 1999 the plaintiff suffered a mild musculo-ligamentous injury to her neck for which she was appropriately treated in the months following the accident.  I am satisfied and find that in the accident she suffered a very mild injury to her right wrist.  I find that that injury resolved within a week or so.  I am satisfied and find that any symptoms causing pain, disability, or incapacity which resulted from the injuries she suffered in the accident had resolved by no later than the end of 1999.  I find that any such symptoms that she has experienced after the end of 1999 did not result from any injury she received in the motor vehicle accident in April 1999.

11. I assess her damages on the basis of these findings.

12. There was much evidence at trial about and surrounding the plaintiff’s dismissal from her employment as a nurse at Ashford Hospital in April 2001.  Upon the findings I have made it is unnecessary for me to make findings as to this topic.  However, in case it becomes necessary, I do so.

13. I find that virtually from the time the plaintiff first saw Dr Graham she got a clear message from him that she would have to be cleared by him to return to work at Ashford Hospital.  She understood that he would not clear her unless he was able to certify her fit to do all her duties as a registered nurse on four shifts per week.  He would not so certify her unless she could perform her full duties without pain.  Whilst it may have been that initially the plaintiff was keen to get back to work, I am satisfied that once she learnt of her pregnancy in mid‑1999 she became less and less keen thereafter.  By the time her daughter was born in March 2001 I find that she had no reason or inclination to fight for her job.  There were probably a number of reasons for that.  First, I find that she was not intending to return to any work for at least twelve months following the birth of her child.  Secondly, I find that she envisaged that by that time she would not want to work four shifts a week as a registered nurse, particularly in a demanding ward.  Thirdly, her plans for working in the future had changed in that she then did not intend to return to nursing other than on a part‑time basis (less than four shifts a week) until her daughter was five years old.  Fourthly, her lower back was beginning to become symptomatic and she was not at all certain that she wanted to return to nursing other than in a sedentary way.  Finally, I find that the plaintiff knew that she could not rely on Ashford Hospital to employ her on a part-time basis on Friday and Saturday nights only, which would be her preference if she ultimately returned to nursing work.

14. For these reasons I find that the plaintiff did not “fight” for her job at Ashford Hospital because it did not suit her to, nor did she wish to have it.

15. Following her termination I find that the plaintiff applied for various jobs on the advice of her solicitor.  The plaintiff told various doctors that she thought she could do the work involved in some of the jobs for which she was applying.  She also said that she could not do the full duties of a registered nurse.  This was one aspect of her evidence about her applications for jobs that I found to be contradictory and unconvincing.  There were others.  I am satisfied that the plaintiff really did not want some of the jobs for which she applied.  Some of them offered her work at times which did not suit her.  I do not believe that she could have made arrangements to do day shifts as she said, or that she intended to do so if she was offered a job.

16. I find that when she did obtain work on one of the applications she made she found reasons for not continuing that work.  I am satisfied that the plaintiff was physically capable of performing the work in the job that she obtained at Modbury and that she could have continued that job.

17. I am satisfied and find that since April 2001 there have been numerous jobs within the nursing industry for which the plaintiff was qualified, and which she was physically capable of performing, had she sought them.  I am satisfied that that situation has continued and will continue in the future.

18. I assess the plaintiff’s damages as follows. 

19. I have indicated that I consider that the effects of all the injuries the plaintiff suffered in the motor vehicle accident in April 1999 had resolved by the end of 1999.  By that time she had been told by a specialist at Ashford Hospital that he would not certify her fit to return to her job there until he could certify her as being able to perform all her duties pain-free.  The plaintiff had by then also discovered that she was pregnant.  I am satisfied and find that the plaintiff was then fit for her pre-injury duties at Ashford Hospital had Ashford Hospital been prepared to have her back there working.  It was not so prepared and I consider that a combination of that circumstance and her pregnancy was such that it was, in my view, not unreasonable for the plaintiff not to seek other work before she would have needed to commence maternity leave in February 2000.

20. I consider in those circumstances that it would be fair and appropriate to assess the plaintiff’s pre-trial economic loss on the basis that she should be compensated fully for her nett wage loss between the date of the accident and the end of February 2000.  I find that as at the end of February 2000, and afterwards, the plaintiff would not have returned to work at Ashford Hospital, notwithstanding that I have found that by then she was suffering no incapacity for work for which the defendant is liable.

21. I was given a schedule by the plaintiff’s counsel that indicated that if the plaintiff had continued to work from the time of the accident she would have received $1,200 nett per fortnight up to 19 February 2000.  That would have totalled (for 22 fortnights) $26,400.  The schedule indicated that “prior to the accident, the plaintiff was netting $1,200 per fortnight approximately because of all of her overtime”.  The schedule further indicated that “what the plaintiff did receive (between 13 April 1999 and 19 February 2000) was $11,874.83, a $14,525.17 loss”. 

22. In his final submissions the defendant’s counsel submitted that his estimate of the plaintiff’s pre-accident nett earnings was $625 per week.  That was based on his estimate of her nett earnings of around $32,500 per annum taken from the plaintiff’s 1999 tax return. 

23. Doing my best with these submissions, I assess the plaintiff’s past economic loss for the period from the accident on 13 April 1999 until the end of February 2000 in the sum of $17,000. 

24. On the basis of the findings that I have made there is no future economic loss for which the defendant is liable to compensate the plaintiff.

25. As to her non-economic losses, the appropriate multiplier is $1,560.  On the basis of my findings that there are no injuries for which the defendant is liable to compensate the plaintiff from about the end of 1999, I assign the numerical value of 5, which I consider is appropriate to compensate the plaintiff for her non-economic losses, including the injury to her wrist.  That produces a sum of $7,800 for non-economic losses.  That sum is for past losses only, there being no future non-economic loss.

26. For superannuation losses I award the sum of $1,500.  That is generally based on 7% of the plaintiff’s lost earnings between the accident and the end of February 2000.

27. For special damages I award the sum of $1,452.70 (being the agreed sum for outstanding special damages).

28. I was informed that the defendant has made certain interim payments to the plaintiff totalling $14,000.  $5,000 was paid on 18 October 1999; $2,000 was paid on 4 January 2000; and $7,000 was paid on 1 May 2000.  Interest at the rate of 5% per annum on a sum of $3,000 from April 2000 gives a figure of approximately $700.  I allow that sum for interest on past economic losses.

29. I assess the plaintiff’s damages in the sum of $28,452.70

30. I have made no allowance yet (other than in calculating interest) for interim payments made to the plaintiff by the defendant.

31. I shall hear the parties as to costs.