| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : BUTTARO -v- STEPHANOSKI [2005] WADC 119 CORAM : NISBET DCJ HEARD : 26-29 APRIL 2005 DELIVERED : 23 JUNE 2005 FILE NO/S : CIV 924 of 2000 BETWEEN : VESNA BUTTARO Plaintiff
AND
VASKO STEPHANOSKI
Defendant
Catchwords: Damages - Negligence - Personal injury - Rear end collision - Female plaintiff 25 - 33 at trial - Assessment
Legislation: Motor Vehicle (Third Party Insurance) Act 1943
Result: Award of $64,777.66
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Representation:
Counsel:
Plaintiff : Mr I L K Marshall
Defendant : Mr G P Bourhill
Solicitors:
Plaintiff : Tan & Tan Lawyers
Defendant : Phillips Fox
Case(s) referred to in judgment(s):
Western Australia v Watson [1990] WAR 248
Case(s) also cited:
Nil
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1 NISBET DCJ: The plaintiff claims injuries for damages for personal injuries she claims she sustained in a motor vehicle accident which took place on 28 June 1997 at Mirrabooka when a vehicle driven by the defendant collided with the rear of the vehicle she was driving. Liability is not in dispute.
Before the accident 2 The plaintiff was born in Serbia on 30 April 1972 and came to Australia with her parents when she was two years old. She attended school to year 12 at Girrawheen Senior High School. 3 The plaintiff testified that before leaving school she used to work for her parents who were cleaners initially working for a cleaning company and then as cleaning contractors in their own right. The gist of the plaintiff's evidence in this regard was that whilst she was still a student she used to help her mother with a school cleaning contract every day after school and then when her parents obtained the cleaning contract for the cleaning of the North Court building located adjacent to the Karrinyup Shopping Centre she used to go there cleaning with her mother in the morning from 5 am to 7 am and then go on to school. This she said she did from about year 8 or year 9 so in other words from the time she was about 13 or 14 years old. 4 After leaving school the plaintiff said that she did computer and typing courses for a period of about 18 months following which she obtained employment as a receptionist at the Leederville Loftus Recreation Centre. She said she had this job for about two years and whilst employed there she worked not only as a receptionist but she worked in the crèche and the kitchen and the gymnasium. Initially her hours were from 9 am to 3 pm but subsequently said she worked practically every day except Sundays and even occasionally on Sundays. Further, she said she was sometimes required to work quite long hours from 9 am to 7 pm and even on occasion until 11.30 pm. 5 She left that job to work for her then fiancé Mr Vance Buttaro who was a bricklaying contractor under the style or name of V S Bricklaying Contractors. In this business the plaintiff was the bookkeeper and kept the wages and employment records for the staff. There were no set hours and she worked from home. I was given no evidence about the size of the business and the number of hours per week that were required to be worked and as she wasn't even being paid for what she did I gained the distinct impression that her role was quite minor. In addition to this work, whatever it was, the plaintiff and her then fiancé decided to go into the
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greyhound business and acquired a number of dogs ending up with ten at the time they separated. They were married on 8 April 1995 and separated on 20 October 1996, divorcing 12 months after that. 6 It is not clear when but at some stage the plaintiff undertook a course of training arranged by the Commonwealth Employment Service in consequence of which she was placed at Bunnings in Balcatta and during that training on 20 May 1996 she sustained an injury to her back. She testified that she had been told to pull out some boxes of hammers and it was whilst performing this task that she felt "a bit of pain in my back" following which she told her immediate supervisor that her back was "really sore" in consequence of which her supervisor told her to leave work and go to her doctor, which she did. She was apparently certified unfit for work for a couple of weeks and upon seeking to return to Bunnings she was not allowed to – the reasons for which are not clear. She pointed out the area of her back at which she sustained this injury namely an area on her back slightly above waist level. Asked whether she made further attendances upon her GP about her back from time to time thereafter her evidence was as follows: "I can't remember too much after that but I do remember – I didn't keep going back for medications. It’s a matter of record that from time to time you went back to the doctor?---Yes, here and there. And his Honour can read it; we can all read it. By the time the motor vehicle accident occurred that is to say 28 June 1997, how was your back?---It was getting better. Was it completely better? You said it was getting better?---The muscle pain, I wasn't getting that any more, No. Were you taking any medication for your back?---I was taking medication when it was cramped with muscle pain. What sort of medication were you taking? Do you remember?---No, I don't really remember. I remember taking Panadeine Forte two or three times. What about your functioning? Were you able to function?---Yes. You saw you say Dr Hatsis? Yes that's correct.
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And she referred you to Dr Peter Anderson?---Yes. Then did you get any certificate from Dr Hatsis about your fitness for work?---I can't remember. What certificate? . . . NISBET DCJ: Did you get a certificate saying you were fit to go back to work?---No. No, I did not. . . . How were you functioning at that time socially, for example?---Excellent. When I say at that time, I mean after the 20th of May accident, after seeing Dr Hatsis about your back and things like that?---Excellent. I was still social, went out, did everything I could and wanted to do." (T23-25) 7 The medical exhibits P1 and D1 and in particular the notes of the plaintiff's general practitioner demonstrate that the plaintiff's low back injury sustained during the course of her employment training at Bunnings in May of 1996 had not resolved to the extent that her testimony suggested. Additionally, insofar as her mother Mrs Dragica Cabrilovski's evidence of the plaintiff's recovery from this injury is concerned, I reject her testimony. Mrs Cabrilovski was far too anxious to support the plaintiff's claim and was in my opinion completely unreliable as a witness as the opening questions and answers given in her cross-examination amply demonstrate: "Mrs Cabrilovski you said that you knew that your daughter had an accident at Bunnings?---She strained her muscle. There was no damage at all. I simply asked if she (sic, you) knew she had an accident at Bunnings?---Yes but she wasn't injured at the time. Isn't it the case that she saw her general practitioner on a number of occasions as a result of injuring her back at Bunnings?---Yes. She went and see the doctor on a number of occasions, but the doctor says she was alright and she can go back to work." (T137)
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8 As to the breakdown in her marriage the plaintiff said that this was a positive things for her because it gave her her life back.
9 On the issue of whether the plaintiff was able to return to work following her injury at Bunnings in May of 1996 and before the motor vehicle accident in June of 1997 the plaintiff said that whilst she did apply for a number of positions she was unsuccessful. She sought employment at a duty free shop at the Airport (I think as a retail sales assistant) and at St John of God Hospital and Princess Margaret Hospital as a receptionist. The only position that was offered to her in this period, she said, was by a family friend who is a butcher – Mr Peter Jurleka. She testified that he offered her employment because her of language skills (she speaks Serbian and Macedonian in addition to English) and that she would be helpful in his continental butchery in Balcatta. The plaintiff said that she accepted his offer of employment and said that she would go and see him but the motor vehicle accident intervened (T29). 10 Demonstrating that the plaintiff is a somewhat unreliable witness Mr Jurleka testified that he was going to give "the young girl" an apprenticeship as a butcher. He was led to say that this was in 1997 but clearly it wasn't. I have no doubt that he did offer the plaintiff an apprenticeship as a butcher but it was when she was around 16 years of age not when she was 24 or 25 years of age and certainly not when she was a married woman of 24 or 25. As Mr Jurleka made clear, he could not have afforded an apprenticeship for an adult. 11 Finally, in this regard the plaintiff testified that immediately prior to the motor vehicle accident in June of 1997 her health was very good indeed, she said it was "excellent". Further she said that she was not restricted in any way from doing any work at all. 12 I will return later in these reasons to deal with the plaintiff's pre-accident symptomatology when dealing with aspects of causation in respect to her post-accident symptomatology.
The accident 13 The plaintiff's description of the motor vehicle accident was quite dramatic. She said that about 7 pm on 28 June 1997 she was on her way home when the accident occurred. She then testified: "I remember a lot of lights and I remember a pole, and I remember people around the car, yelling and screaming. I remember an ambulance; ambulance driver. I remember my
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head being restrained in the car seat. My foot was stuck underneath my brake. I can't remember the rest---I remember being pulled out of the car---I recall having no feelings in my – both legs---I didn't want to live not without my legs." 14 She then described being taken by ambulance to Royal Perth Hospital. 15 The defendant was called to give evidence. He testified that for the five years prior to coming to Australia he was a police officer in Macedonia and amongst his many duties one of them was attending motor vehicle accidents. He said that on 28 June 1997 he was driving towards his home in Dryandra Drive, Mirrabooka where he used to live at No 82. As he turned into Dryandra Drive he accelerated up to 60 kilometres per hour and then realised that the vehicle in front of him had slowed down at which stage he saw that he was not going to stop in time but applied the brakes heavily and skidded into the vehicle in front. The collision caused the vehicle in front to spin and hit the lamp post adjacent to the driveway. He first ascertained whether his brother-in-law and his children inside the car were okay and then went to attend to the other driver – the plaintiff. He said that she was quite shaken and he asked her if she was okay to which she responded that she was. He said that she had picked up a mobile telephone and began calling someone at which stage he moved back to give her privacy and shortly after he observed that people who he thought were her relatives attended at the scene and then the police and ambulance arrived. He said he was surprised to see the ambulance arrive. His estimate of his speed at the time of the collision was between 15 and 30 kilometres per hour and he said that the plaintiff's car was still moving at the point of collision. Whilst I thought the defendant an honest witness doing his best to recollect the circumstances of this accident which had occurred some years before, not a great deal turns upon his credibility. The accident was clearly serious and the collision certainly caused the plaintiff's vehicle to spin and crash into the lamp post so that there was in effect a double collision, the first from behind and the second with the lamp post. The real issue is how much of the plaintiff's post-accident symptomatology can be attributed to the accident and how much to pre-existing factors.
After the accident 16 At Royal Perth Hospital the plaintiff was examined, x-rays were taken, medication was prescribed and she was discharged home at around about 1.00 am or 1.30 am the following morning. She was taken by
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family to her mother's house where she rested, waking the next day to discover that she was in pain all over testifying that "it felt like I was broken". The plaintiff then described her post-accident symptoms of pain in her head, right shoulder, right knee and back. The back pain she said commenced between her shoulder blades and went all the way down her spine into both her buttocks. In consequence of these symptoms she sought assistance from her general practitioner who prescribed her painkillers and recommended a neck brace and a back brace and ordered further x-ray examinations. The plaintiff said that she wore the back brace for three or four months even whilst resting and similarly with the neck brace which she wore for about the same time until she was told to remove it by a specialist. She remained frightened of driving after the accident and it took her a long time to regain her confidence and whilst she was back driving by the time of the trial she was still afraid of a rear end collision. Another symptom was her weight which ballooned from 86 kilograms to 128 kilograms at the time of trial. Certainly the plaintiff is a very, very big woman although the one doctor who was asked about whether the plaintiff's rehabilitation was being hampered by her weight did not think it was a significant factor in her inability to rehabilitate herself after the motor vehicle accident. 17 Additionally, the plaintiff described having been prescribed Panadeine Forte for her pain and Valium and notwithstanding that she was taking between eight and twelve Panadeine Forte a day she had not had a proper night's sleep since the accident. In brief, the plaintiff described herself as living the life of a virtual invalid since the accident. She has not returned to work. Most of her immediate post-accident symptoms have continued and, as will be seen, some years post-accident she complained of some new symptoms.
Current symptoms 18 The plaintiff described her symptoms at the time of trial in some detail. They are extensive. She said that her neck was still sore and that she had been told that it will not get better and that she just has to live with it. She cannot turn it properly with turning to the right being the greatest problem. There is little difficulty turning to the left. Whilst she can look up she cannot look down without discomfort. This pain and these restrictions are constant. 19 Describing her back pain, the plaintiff said that she had stiffness and pain between her shoulder blades which was constant as was pain in the
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mid-back and in the lower back although her low back pain was worse than the pain in her neck and her upper back. 20 Her right shoulder was sore all the time she said and furthermore her right arm was restricted in the height to which she could lift it because of the soreness in the right shoulder, and the sense I got from her evidence about her right arm was that any lifting of it irritated the right shoulder. She described an occasional uncontrollable shake in her right arm with numbness extending all the way into the fingers of her right hand. She also described severe headaches sometimes as bad as migraines which came on every two weeks or so but a dull ordinary type of headache was present all the time. 21 Her left hip was constantly sore. She endured pins and needles sensation in the left leg above and below the knee but behind the leg down to her toes. The plaintiff complained of psychological sequelae saying that she got "flashbacks" and recurring nightmares of the accident. She complained of loss of concentration, mood and personality changes such that she rarely socialised, had difficulty sleeping and was often nauseous. He current medication regime consists of taking Panadeine Forte between two and six tablets a day, Celebrex two a day, Zoloft one a day, Dothep one to two a day, Pariet and Stilnox. She said she sees her general practitioner fortnightly. All of these have had a significant impact upon the plaintiff's enjoyment of life. 22 The plaintiff then went on to describe the effect that her symptoms had had upon her everyday life. She said that she continued to live with her parents as she had done since the accident. She does not do any of the housework or help her mother in any way out of fear of injury to her back. She goes walking and drives sometimes. She does not go to bed until 3, 4 or 5 o'clock in the morning because of her disturbed sleep pattern, waking up at odd hours to read, watch television or visit her aunt. Whilst she used to have a lot of friends she has lost contact with them all and her only society now appears to be her cousins Dragitsa and Biljana Cabrilovski. Whereas previously she would attend a gymnasium she does not any more except for a period when she attended for rehabilitation in 1998 and 1999 which was unhelpful. She has had no boyfriend since the accident and says that she hates herself although she no longer feels suicidal. Before her motor vehicle accident she said that she would enjoy camping and picnics but no longer engages in these activities. Likewise she used to enjoy going to night clubs but now finds this activity uncomfortable, in addition to which she cannot dance and, accordingly, the impression I got was that she had little enjoyment from this activity.
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23 As mentioned previously the plaintiff has not returned to work since the motor vehicle accident. She did say that had it not been for the accident she had planned to open her own retail business – somewhat at odds with her claim that she had intended to accept the offer of employment in Mr Jurleka's butcher's shop. She said that she is not fit for work because there is nothing she can do. She is always on medication and tired such that she could not contemplate even working part time. Her personality has changed. She is moody and argumentative. Her only source of income now is the Disability Support Pension which she has been receiving since 20 August 1998.
24 Testifying about her efforts to effect her own rehabilitation she said that she bought a treadmill and a bicycle and hired some rollers all to try and help her recover some degree of physical fitness. She said she bought a new bed and pillows recommended by a specialist and generally speaking tried to improve her lot as much as she could as advised by her specialist, Dr Peter Anderson.
Surgery 25 A long time after the accident the plaintiff underwent two operations on her back. The first was performed on 9 December 2002 and the second on 5 August 2003. She testified that the history precipitating her surgery was that for about two years before her first operation she had been enduring pins and needles sensations although she didn't say exactly where in her body this symptom appeared. The gist of it was that this symptom was present in her lower left side from her buttocks through to her toes. She described a period of time in which there was constant pain in this area which was accompanied by pins and needles and "numbing" until she said: 26 Dr Anderson referred her to an orthopaedic surgeon, Mr Emerik Trinajstic who performed a discectomy upon her. This surgery stopped the stabbing pain that was troubling the plaintiff but did not eliminate all
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pain and she said she was still in pain at trial and indeed on a couple of occasions asked if she could stand up in order to relieve her symptoms. 27 The second operation which she described as "revision surgery" occurred following an incident in a shopping centre when she sneezed and "… the pain just struck back. It just paralysed me again [from my left buttock] all the way to the toes." 28 The plaintiff said this pain was twice as bad as the pain and numbness that she experienced prior to her first operation. Following this incident she was reviewed by Mr Trinajstic again and finally underwent surgery on 5 August 2003. This gave her relief from the left-sided pain in her left lower limb such that she says she was not left with any pain in her legs but she continued to endure back pain, shoulder pain, neck pain and headaches. The plaintiff was hospitalised for these operations she thought three days for the first and four days for the second saying that recovery after the second operation took longer than after the first. She has residual operation scars of some 11 to 12 centimetres in length which she "hates". It was after these operations that she says that her weight increased markedly as did her anxiety attacks which she now experiences about twice a month. The combination of all of these matters meant that her relationship with her family, that is to say her mother and father, and living at home was strained. 29 The plaintiff has tried alternative therapies namely, acupuncture and physiotherapy which have not given her any lasting relief.
Causation 30 The plaintiff was cross-examined extensively about her pre and post-accident symptomatology as recorded by various medical practitioners she has seen over the years. A number of medical practitioners were called to give evidence and a large number of medical reports were put into evidence which address this issue. This is because the defendant's case was that the plaintiff's injuries pre-dated the accident, alternatively that the accident accounted for relatively minor aggravation of pre-existing symptomatology. Further, the defendant's position was that the plaintiff's operations to her back in 2002 and 2003 were so far removed in time from the motor vehicle accident that absent any well defined and identified existing pathology, there was no causal connection between the two. The defendant accepted that he carried the onus of disentangling the causally related injuries and their symptoms from the non-causally related injuries and their symptoms in accordance with
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authorities such as Western Australia v Watson [1990] WAR 248 and the cases cited there at 310 – 313. 31 There is no easy answer to this issue and a detailed examination of the medical record is required. Whilst my attention was drawn to earlier entries in the notes of the plaintiff's general practitioner, in my opinion the first entry relevant to the determination of this issue is that of 17 October 1995 when the plaintiff presented upon her general practitioner complaining of a strong attack of back pain which she had had previously. On examination on that occasion the plaintiff demonstrated pain on forward flexion with poor reflexes. The diagnosis was of muscular pain and the plaintiff was prescribed an exercise programme and Indocid. The plaintiff could not recall this complaint. 32 In February of 1996 she complained of a constant headache over the previous four days which she described as feeling like her head was going to explode – the headache having gradually increased over a two week period. The headaches were so severe that they were not eased by either Panadol or Panadeine Forte. The headaches were worse at nights such that they interfered with her sleep. She additionally complained of neck stiffness and in consequence she was referred for a CT scan and it was suggested that she try Nurofen. 33 The CT scan was reported as normal on 12 February 1996 yet the headaches continued "almost daily". 34 On 20 May 1996 the doctor's notes record that the plaintiff was at work when she stretched to pull something when she "felt click and pain in lower back". Upon examination she was tender over the lower lumbar and right sacro-iliac region. Some right hip instability was noted on flexion and the doctor noted that there was a past history of back problems. She was given a medical certificate until 22 May and prescribed Voltaren and Panadeine Forte. At an attendance upon her general practitioner on 23 May the plaintiff's certificate was extended to 24 May and a further prescription for Panadeine Forte was given because the plaintiff said that the previous prescription had been stolen. The back pain had persisted and whilst improving was noted to remain in the lower lumbar and right sacro-iliac region. On 27 May 1996 the plaintiff reported that over the weekend she overdid her housework and in addition to other pains she complained that her lumbar pain persisted but there were no symptoms referred into the leg. The medical certificate was extended to 29 May and she was given a referral for a lumbar x-ray. On 29 May 1996 she reported improved symptoms but she was still tender
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with limited forward flexion. The x-ray results were available but the only indication in the general practitioner's notes are that the x-rays were "noted". The medical certificate was extended until 31 May and there is a note "okay to start course on Monday". 35 On 10 June 1996 the plaintiff again complained of her back symptoms which complaints continued throughout June and on 27 June 1996 the doctor noted CT scan results as revealing an L3/L4 disc herniation and an L4/L5 disc herniation. The notes record the plaintiff complained of persistent back pains together with spasm in the trapezius with prescriptions for diazepam at night for a week and Voltaren with a recommendation to go to physiotherapy. The complaints of back pain continued into July of 1996 with the plaintiff complaining to her doctor that she was getting stressed about her back. There was a discussion of her lifestyle, managing her problem and suggestions in relation to a back brace, a wheat bag and a lumbar support because the doctor was of the opinion that the plaintiff was not taking care of herself properly at home. The plaintiff's complaints of back pain continued through September, October and November of 1996. On 26 September 1996 the doctor noted that whilst the plaintiff continued to be tender over the lower lumbar and lateral regions of her back there was not referred pain into the leg. She was given a medical certificate for three months. In October the plaintiff complained of an aggravation of pain in her neck with pain on the posterior of the head and neck with a tight trapezius. She complained of frontal headaches part of which was ascribed to hay fever and sinus inflammation and the other to a migrainous type headache. Back pains were noted as being stable and intermittent. On 1 November 1996 she was given a medical certificate until 1 February 1997 and she continued to complain of back pain it being still tender over the lower lumbar area. She had limited flexion and whilst there is a note about her straight leg raising I am unable to determine its meaning. At this same consultation she advised her doctor that she had separated from her husband and that she was depressed in consequence of which she was prescribed Zoloft, an anti-depressant medication, and advised to take a half a tablet daily. At the next consultation in November of 1996 her prescription of Zoloft was increased and a further complaint of difficulty with her back was noted. At a consultation on 28 November 1996 MRI results were to hand and the plaintiff was given another prescription for Zoloft. 36 It is as well to record here that the plaintiff denied taking Zoloft and said that if it had been prescribed she didn't take it. She was specific that she did not take Zoloft which is quite odd seeing as that she clearly sought and was given a further prescription for it.
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37 The conclusion from the MRI report of the plaintiff's lumbar spine was in evidence and reads in part:
"CONCLUSION: Disc degenerative at L3/5, L4/5 and L5/S1 with disc desiccation, posterior annular tears and a generalised disc bulges, without evidence of focal disc herniation or nerve root compression." 38 In January of 1997 the plaintiff was still reporting to her GP that she was depressed about the separation from her husband and, it would appear from the entry of the 7th that she was considering taking some action in respect of the injuries she sustained at Bunnings. She went back to the doctor two days later reporting sleeping difficulties and whilst she apparently reported that her back was stable she complained that there was some exacerbation, tenderness and restriction of movement. This position was unchanged as at 30 January 1997. 39 On 16 April 1997 the plaintiff arranged for her GP to complete some medical forms for the Department of Social Security and she obtained a medical certificate obviously in respect of her back which was still causing her some difficulties, the severity of which were fluctuating. Whilst she reported that her back had been good for the last month it was exacerbated by walking and on examination it was tender at the lower levels, there was restricted movement and there is an entry which appears may read "Negative straight leg" but I am unsure of the meaning. Whilst the plaintiff appears to have made appointments with her doctor on 15 May, 9, 19 and 25 June 1997 she did not attend ("DNA"). On 30 June 1997 the plaintiff reported to a general practitioner in respect of her motor vehicle accident of 28 June such that the doctor's notes read as follows: "Taken to RPH by ambulance, had CXR + x-ray pelvis & cervical spine – all NAD. Given P Forte & discharged. Presently … stiff sore neck, headaches, dizziness & variable numbness in hands and feet. Also low back pain & generalised aches. Previously had low back pain … slipped discs but presently very stiff & sore with limited ROM ++. O/E in obvious discomfort, particularly neck & back. Cervical ROM minimal in any direction due to marked paracervical muscle spasm & tenderness.
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Tender ++ lower ribs R & L. Abdo soft … rebound. Lumbar spine similarly limited ROM. [Prescribed] P Forte x 20. Voltaren Rapid 50 mg x 20 Tbd For soft collar See Thurs." 40 Mr Peter C Anderson is a retired orthopaedic surgeon. Between 1976 and 1986 he ran the Commonwealth Rehabilitation Service at Melville. He had the advantage of seeing the plaintiff both before and after her motor vehicle accident. Indeed the plaintiff had been referred to him by the plaintiff's general practitioner in consequence of the injuries she sustained whilst working at Bunnings on 20 May 1996. Some of his observations about the plaintiff in relation to her attendances upon him in consequence of those injuries are quite telling. Mr Anderson gave me the distinct impression that in his opinion the plaintiff was not interested in returning to work. Indeed he made this point more than once during the course of his testimony. He said it was difficult to know how the plaintiff would be employed following her injury at Bunnings because he wasn't sure about her educational status and her literacy skills (T230) and the picture he painted was that both following the Bunnings injury on 20 May 1996 and the motor vehicle accident on 28 June 1997 he tried to get the plaintiff to engage in retraining to equip her to re-enter the workforce but the plaintiff was basically just not interested. As he said at T233: "Well, I think I found it difficult to get her to consolidate any formal training at the TAFE level. That subject was raised on a number of occasions and the reasons why she has not done that are not clear to me because to obtain a job in an office she has to have the skills to win the job at an interview. And the reasons why she has not done that are not clear to me." (My emphasis.) 41 Again, as Mr Anderson testified in respect of the plaintiff's interest in returning to work: "Well, I think it would have been in her best interests if she made more effort to get there but she didn't and I tried to
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encourage her – you know, suggested that she went to the clerical college because it's all about - - - " (T250) 42 Whether it be by reason of any physical disability sustained on 20 May 1996 or because of the plaintiff's reluctance to engage in any form of retraining was not made entirely clear by Mr Anderson but nevertheless he proffered the opinion that the motor vehicle accident to one side, the plaintiff would not have got back to work until the end of the summer of the year 2000, a period of some four and a half years after that accident, if at all. As to whether the motor vehicle accident was the cause of the plaintiff's lower back complaints as they emerged to necessitate the operations in the years 2002 and 2003, Mr Anderson explained that where in his reports that post-date the accident he noted the plaintiff complaints of low back pain he did not note any complaint of sciatica which to him would have indicated a possible nerve root impingement and, relying upon the MRI scan results that pre-dated the motor vehicle accident, he assessed the degree of disability in the plaintiff's lumbar spine at 20 per cent. When it was then specifically drawn to his attention that the first note he made of any complaint of sciatica by the plaintiff, ie, the first clinical indication of nerve root impingement was five years after the motor vehicle accident, Mr Anderson said that this was not compatible with all of her low back complaints at that time being due to the accident. 43 Further, in relation to this matter Mr Anderson said in response to my pointing out that the first onset of a complaint of sciatica was five years after the accident he replied: "It's a long time, isn't it and I had seen her a few times in between and she hadn't really made a lot of fuss about it – about back pain and left leg and she was certainly in trouble in April 2002." 44 This led Mr Anderson to express the opinion that what could have happened was that the accident produced bulging in the intervertebral discs which did not impinge upon any nerve roots and hence were asymptomatic until some further intervening event which he said could have been a minor event of a domestic type which caused the disc bulging to protrude into the space occupied by the nerve roots causing compression hence sciatica or the referred pain down the left leg and the other bundle of symptoms then complained of. 45 Emerik Nicholas Trinajstic is the orthopaedic surgeon who performed both of the plaintiff's operations. Whilst during the course of
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him having treated and operated upon the plaintiff Mr Trinajstic had not seen the MRI scans of 25 November 1996, he was shown them before he gave evidence. He was asked for his opinion about whether or not the plaintiff would more likely than not have suffered a disc prolapse with the pathology identified in that MRI report, come what may. He said that whilst he could not say with a 100 per cent certainty, it was his opinion that it was very likely that at some stage in her life the plaintiff would get a disc prolapse of the type which eventually caused him to perform two operations upon her. Then, looking at that pathology and the chronology of events which followed between the motor vehicle accident and his operations in 2002 and 2003 Mr Trinajstic's opinion was that it was less likely that the motor vehicle accident contributed to the disc herniations that he operated on in 2002 and 2003. 46 There were some other important aspects of Mr Trinajstic's evidence. Firstly, he thought that the plaintiff had not made the recovery that she should have made having regard to the treatment that she had had. Secondly, he denied that he told the plaintiff that there was a 5 per cent chance that she would end up in a wheelchair, something which the plaintiff said had terrified her. What he did tell the plaintiff he said was that there was a 1 in 1000 chance of there being a complication as a result of the surgery which may have affected her future mobility and further that there was less than a 5 per cent risk of the plaintiff suffering debilitating pain following the surgery which may have required two of her vertebrae to be fused in a further operation. 47 The view expressed by Mr Trinajstic is a little at odds with that of Professor Mastaglia who was also called to give evidence. Likewise asked to examine the MRI report of 25 November 1996 and express an opinion as to whether the pathology evidenced by that report would inevitably have led to a disc prolapse all Professor Mastaglia would say was that it was possible that that pathology would have led to a disc prolapse. He said that he would not say that it was predictable or inevitable that it would have happened or even probable "… unless there had been some super added significant injury to aggravate the pre-existing problem." And when the uncontroversial chronology was put to Professor Mastaglia and he was asked whether or not there was some other event in 2001 which caused the ultimate disc bulge his answer was: "Yes, that scenario would imply that there had been some acute exacerbating factor in 2001 but I would keep going back in my mind to the fact that there were definitely symptoms very suggestive of nerve root irritation compression very shortly
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after the motor vehicle accident, as we saw recorded in the general practitioner's notes." (T115) 48 And even though Professor Mastaglia was very careful to point out that his experience was that a disc prolapse of the type suffered by the plaintiff could have been developmental from the motor vehicle accident forward it was clear that there had been some major event in 2001 which had caused the exacerbation of her symptomatology ultimately leading the operative intervention taken by Mr Trinajstic in 2002 and 2003, and then the professor said: "And if I may enlarge on that response, to me this scenario evolving and reaching that stage it would be a not uncommon one if someone who has had a previous disc injury of weakening of the disc or weakening of the capsule of the disc, not uncommon for sometime further down the track for this sort of exacerbation to occur, even without any other significant injury, the sort of thing that can happen even with minor movement or bending or coughing or sneezing or - - - I accept that, but it can happen to someone who has the MRI findings that she had in 1996, can't it?---Obviously, yes." (T120) 49 Mr Ratan Cavashah Edibam is a retired orthopaedic surgeon who examined the plaintiff on one occasion in March 2001. Mr Edibam noted that the plaintiff did not have any referred pain in her leg and was not complaining of sciatic pain at that time. As to the later discectomy performed by Mr Trinajstic, Mr Edibam said that the cause of the problem which requires a discectomy is a disc protrusion as to which he said that he would have thought that the disc protrusion would have occurred after he saw her, noting that the CT scans were reported as showing the bulging of the posterior annulus but there was no disc protrusion there. 50 The plaintiff was also examined by Dr Peter Stuart Hollingworth, who at one time had held the post of Associate Professor of Occupational Medicine at the School of Public Health at Curtin University, now retired. He had examined the plaintiff twice, first on 5 August 1997 and then on 23 April 1999. He first saw her at the request of the plaintiff's general practitioner and the second consultation was at the request of the defendant's insurer. Dr Hollingworth testified that he found the plaintiff difficult to assess because there were too many inconsistencies in her presentation, and her mental state examination suggested psychological
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difficulties which occasioned him to refer her to a psychologist and later to recommend that she be seen by a psychiatrist. Dr Hollingworth thought that he would not be able to obtain an accurate assessment of the plaintiff's physical disabilities (if any) until her manifest mental problems were brought under control. He thought she manifested the symptoms of a post-traumatic stress disorder of some type. 51 Barrie Stephen Slinger is an orthopaedic surgeon who examined the plaintiff on three occasions on 29 June 2001, 13 May 2002 and 21 April 2005. In October 2001 Mr Slinger could find no evidence of nerve irritation radiculopathy, or anything to suggest that the sciatic nerve was compromised by disc prolapse or protrusion. Hence he considered that the pain the plaintiff complained of was coming from a soft tissue injury to the lower back. Acknowledging that the plaintiff had had two operations to correct a disc prolapse Mr Slinger said that he did not find any evidence of compromise of the nerve root upon his examination and that this could have occurred after he had seen her. Generally speaking though, he did observe that there were some non-organic signs and inconsistencies in the plaintiff's presentation which he thought suggested that the plaintiff was more active and capable of performing more than what she said she was. In terms of whether the discectomy was a consequence of the motor vehicle accident all Mr Slinger was prepared to say was that the symptoms that he observed upon the plaintiff's presentation to him (which did not involve any evidence of disc compromise in the lumbar spine) were probably referable to the motor vehicle accident. 52 Finally, with regard to the medical practitioners who gave evidence in the trial, the plaintiff called Dr Sanath Daysila De Tissera, a psychiatrist. He saw the plaintiff twice on 18 May 1999 and 18 June 1999 having been referred by her general practitioner. Initially Dr De Tissera's opinion was that the plaintiff had been suffering to a moderate degree from a major depressive disorder following the accident which had improved with treatment with Zoloft which he thought had left her with mild residual depression which would most likely resolve once her compensation case had been finalised. He thought the most likely cause of this disorder was the motor vehicle accident even though he had had information that the plaintiff had a workers' compensation claim and had separated from her husband. He testified: "What she told me was that she did not suffer from any psychiatric sequelae from the workers' compensation claim and
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that she did in fact function better after separation. She was free and she was able to partake in other social activities and so on." 53 Having been advised that the plaintiff had reported to a general practitioner with depression following on the separation from her husband and had been prescribed Zoloft Dr De Tissera said that it would alter his opinion as to the cause of her depression and there might be more than one reason for her being depressed. In other words that factors other than the motor vehicle accident may have contributed to her presentation. Of considerable interest also was his testimony that the plaintiff was reluctant to change her medication at his advice and was prepared to continue just on the low dose of Zoloft that she was receiving from her general practitioner which he agreed was a sub-therapeutic dose. Unless her residual depression was treated with an increased dose of Zoloft or, his preferred course, a different form of anti-depressant medication then he thought that her residual depression of which she continued to complain would just linger on. 54 The preponderance of the medical evidence has failed to persuade me on the balance of probabilities that the cause of the plaintiff's disc prolapse necessitating the two operations performed by Mr Trinajstic was the motor vehicle accident. I have reached this conclusion by reason of the plaintiff's pre-existing symptomatology, the evidence of the MRI scans performed in late 1996, the fact that a number of experienced medical practitioners could detect no signs of radiculopathy before late 2001 – over four and a half years after the motor vehicle accident - and the sudden development of the symptoms themselves, combined with the evidence of Mr Trinajstic that the plaintiff's spinal condition as demonstrated by the 1996 MRI scans would more likely than not have given rise to a radiculopathy at some time in the future. And further, the evidence of Professor Mastaglia that with the pathology evidenced by the 1996 MRI it was not uncommon for [disc rupturing] to occur even without any other significant injury and [in effect] be caused by minor movement, or bending, or coughing or sneezing means that this could have happened to the plaintiff at any time, and the fact that it did not occur after the accident for four and a half years means that the two are not causally connected. I must add to this my own impression of the plaintiff as a witness. She came across as being prone to exaggeration and, particularly in the areas of her pre-accident employment and her post-accident symptomatology she seemed to me to be overly defensive. The surveillance video showing that she stopped driving her car on her way to her doctors so that she was not observed driving upon approaching the doctor's appointment that she had was also strongly suggestive to me
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that the plaintiff had an interest in concealing her true physical capacity from those who might be observing her. 55 This then leaves the following injuries as being referable to the motor vehicle accident: the plaintiff's neck, upper back and shoulder pain and headaches, and perhaps a minor exacerbation of her pre-existing low back pain of the soft tissues of the lower back – ie, not involving any radiculopathy, and depression, which could be fixed if she took the advice of her psychiatrist. 56 Before proceeding to the assessment of damages I wish to briefly mention the only other witness I have not yet commented upon in this judgment, namely the plaintiff's cousin, Biljana Cabrilovski. At trial Ms Cabrilolovski was 24 years of age and struck me as being a very pleasant and reliable person. She described the plaintiff's appearance to her before the motor vehicle accident which occurred when she was about 16 years of age and afterwards although I did gain the impression that the plaintiff's present day symptomatology and presentation somewhat overbore her recollections of the plaintiff before the motor vehicle accident. Certainly, I accept Ms Cabrilovski's observations of the plaintiff now as being a frustrated and morose person, however these observations were not of any assistance to me determining which of the plaintiff's present day symptoms were causally connected to the motor vehicle accident and which were not.
Assessment of damages 57 In my opinion those of the plaintiff's injuries which can be causally attributed to the motor vehicle accident amount to 10 per cent of a most extreme case. This being so the relevant amounts calculated in accordance with the provisions of the Motor Vehicle (Third Party Insurance) Act 1943 as amended are $25,700 (Amount A) less $13,000 (Amount B) leaving a net award under this head of $12,700. 58 The plaintiff made a very large claim for both past and future loss of earning capacity. Bedevilling the plaintiff's case in this regard, however, is the plaintiff's past work performance. As exhibit P2 reveals the plaintiff was quite unable to prove any pre-accident earnings other than that received by way of some form of social security payment. She claimed that she tried to obtain records of her income earnt before the motor vehicle accident from the only paying job she appears ever to have had, namely at the Leederville Loftus Recreation Centre, but was unable to obtain them. Regrettably, the impression I gained from the plaintiff and those who knew her best and who had seen her over a period of time,
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particularly Mr Peter Anderson, was that the plaintiff just wasn't interested in work and in any event, as commented upon previously, Mr Anderson's opinion was that the plaintiff would have been prevented from working in consequence of the injuries she sustained whilst working at Bunnings until the end of the summer of the year 2000 by which, at best for the plaintiff, I took him to mean the end of February 2000 as opposed to the end of February 2001. And further Mr Anderson largely thought that the plaintiff was unemployable on account of her poor CV – she had not undertaken any of the retraining that he had encouraged her to do for reasons he could not explain. Accordingly, doing the best I can with the scant information provided by the plaintiff in the presentation of her case, the only loss of earning capacity that can be attributed to the motor vehicle accident is that which covers the period from the end of February 2000 until the onset of her non-causally related sciatic pain and subsequent operations the commencement of which symptom occurred about 18 months later. Assuming that the plaintiff would have earned the adult minimum wage in an unskilled occupation her weekly earnings net of tax would have been in the order of $390.40 per week a figure provided to me by the plaintiff's counsel without objection by counsel for the defendant. The multiplier for $390.40 per week for 18 months is 75 and the resultant sum is $29,280. 59 As to future loss, if the plaintiff has a future loss referable to the injuries she sustained in the motor vehicle accident it is only on account of her depression. This is because her symptoms which are directly causally related to her motor vehicle accident, namely her neck, upper back and shoulder pain and headaches and perhaps a very small degree of her muscular low back pain would not preclude her from obtaining employment as a shop assistant or an unskilled worker in a clerical or other occupation. There is ample medical evidence to support this conclusion. Her depression, however, would need to be fixed and if she took the advice that was offered by the psychiatrist instead of her general practitioner and increased her dosage of a suitable anti-depressant medication her mood would lift. Further, her depression, having lifted, would result in an improvement in respect of her physical symptoms and the most I am prepared to allow her under this head of claim is for one year's future loss of earnings at $390.40 per week, the minimum adult wage, the multiplier for which is 51 and the resultant sum $19,910.40. 60 I turn now to the plaintiff's claim for past and future medical and pharmaceutical expenses. The claims are not insignificant and in my opinion quite difficult of calculation based on the information provided to me at trial. Doing the best I can it seems to me that the plaintiff's claim in
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respect of past medical expenses came down to a claim for a consultation with Professor Mastaglia on 26 August 2002 for which the sum of $92 was claimed and for a consultation upon Mr Trinajstic on 7 July 2004 for which $244 was claimed. I disallow both of these claims on the basis that they relate to the plaintiff's radiculopathy resulting in the two operations performed by Mr Trinajstic which I find on the evidence are not causally related to the motor vehicle accident. The plaintiff also claimed for Medicare gap payments of $176 which likewise having regard to when they were incurred I find were not related to the motor vehicle accident. Next the plaintiff claimed for pharmaceuticals obtained by her the total sum of $4,239.10. Here I propose to take a somewhat broad brush approach and allow those items for pharmaceutical expenses claimed to the year ended 31 December 2001 after which the pharmaceuticals would appear to be more directly referable to the plaintiff's radiculopathy and subsequent operations performed by Mr Trinajstic. Included in these amounts are claims for Zoloft, the anti-depressant medication which the plaintiff is taking in a non-therapeutic dose because she did not take the advice of her psychiatrist because as she said on more than one occasion she was being told that part of her difficulties were "in my head" when it was her opinion that they were not. The claim in this regard is for a period from 14 June 2001 and hence is for a period of little less than six months. I was never told why the claim only dates from 14 June 2001 – perhaps it was then that the plaintiff began keeping records – I just don't know. But in any event the defendant was prepared to admit that the plaintiff had obtained these medications and had paid the amounts claimed for them in accordance with the schedule presented at trial. The total for the period for which I am prepared to allow is $994.90. As to the future the only drug the plaintiff would appear to need by reference to her current symptoms and likely future treatment is a year's course of the anti-depressant medicine Zoloft for which she expended $52.55 for the whole of the calendar year 2004. Assuming general practitioners' consultations to provide a referral for one year to a psychiatrist should only need one general practitioner's consultation to effect that and then a number of consultations upon her psychiatrist and by taking medication at a therapeutic as opposed to a sub-therapeutic dosage I make a global assessment and allow the plaintiff $1,000 under this head of claim. 61 The plaintiff made a claim for gratuitous services by way of an amendment to her statement of claim moved on the first day of the trial which I disallowed and, accordingly, I do not need to consider this head of claim. Finally, the plaintiff made a claim for travelling expenses and whilst the defendant was prepared to agree that the rate and some
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necessary travelling expenses for attendances upon doctors the defendant was not prepared to agree the total claimed by the plaintiff of $1,140. I am prepared to allow a modest award under this head of claim of $100.
Appliances 62 The plaintiff made a considerable claim for special appliances and services in the total sum of $2,334.86 but very little evidence was given by the plaintiff about the need for any of these things the subject of the claim. Again a broad brush approach is required and I am not prepared to make any allowance for any claim after the plaintiff developed radiculopathy in her lower back which led to her having the operations performed by Mr Trinajstic as these are not causally connected with the motor vehicle accident. This leaves some claims for an ankle and wrist weight on 13 October 1998 and a motorised treadmill of the same day and a gymnasium membership in July 2002. The total claimed under these heads is $11.76, $615.60 and $165 respectively, a total of $792.36. There is some support for this claim in the medical reports in evidence and whilst the weight which can be attached to it is at the cusp I am on balance prepared to allow it.
Summary 63 A summary of my award then is as follows: General damages $12,700.00 Past loss of earning capacity $29,280.00 Future loss of earning capacity $19,910.40 Past medical and pharmaceutical expenses $994.90 Future medical and pharmaceutical expenses $1,000.00 Travelling expenses $100.00 Appliances $792.36 $64,777.66
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