Chajka & Chajka v Preston - [2005] SADC 21

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
CHAJKA & CHAJKA v PRESTON
Judgment of His Honour Judge Kitchen
29 April 2005
DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES - LOSS OF EARNINGS AND EARNING CAPACITY
First plaintiff driver of car within which the vehicle driven by defendant collided - rear end collision. Issues as to force of impact between vehicles and nature and extent of injuries. Injury to neck and thoracic area; persisting limitation in/restriction of use of right arm. Nurse, 47 at date of collision. Past economic loss $93,400, future economic loss $150,000. Past gratuitous assistance $16,200, future assistance $30,000 - scale 18. Total assessment $374,600. Loss of consortium claim by second plaintiff assessed at $6,000.
Wrongs Act 1936 s35A, s37A, referred to.
Dibbins v Dibbins (1978) 8 LSJS 165; Ivkovic v Rinaldi (1980) 25 SASR 516; Graham v Baker (1961) 106 CLR 340; Van Gervan v Fenton (1992) 175 CLR 327; Garland v Clifford (1996) 67 SASR 47; Vail v Formato (1989) 10 MVR 12; Hodges v Frost (1984) 53 ALR 373; Weiner v Schmidt (2002) 84 SASR 307; Sibley v Milutinovic (1990) Aust Tort Reps 293; Toohey v Hollier (1995) 92 CLR 618; Andrewartha v Andrewartha (1987) 44 SASR 1; Meadows v Maloney (1973) 4 SASR 567, considered.

CHAJKA & CHAJKA v PRESTON
[2005] SADC 21

The first plaintiff’s action is brought to recover damages for injuries she allegedly suffered in a motor vehicle collision. It is common ground between the parties that the collision occurred on 15 May 2000 at about 1.00pm when a vehicle being driven by the defendant collided with the rear of a vehicle, being driven by the first plaintiff, soon after both vehicles drove to the east from a stationary position on Cross Road, Goodwood, across the traffic-light controlled intersection of that road and Goodwood Road. When stationary at the lights, the plaintiff’s vehicle had been behind two cars and in front of the defendant’s car, all of which were stationary waiting for the traffic lights to change.
The defendant does not deny that the collision occurred wholly as a result of his negligence. In issue is the force of the impact between the vehicles and whether or not the plaintiff suffered in the collision the injuries she alleges occurred with the immediate and ongoing consequences she claims.
The second plaintiff is the husband of the first plaintiff whom he married on 11 December 1976. He claims damages for loss of consortium.
In these reasons I will refer to the first plaintiff as “the plaintiff” and to the second plaintiff as “Mr Chajka”.
Both the plaintiff and the defendant gave evidence concerning the occurrence of the collision, and each of them called an engineer experienced in the investigation of motor vehicle accidents or injuries suffered thereby, Christopher Trentham Hall (“Mr Hall”) in the plaintiffs’ case and in the defendant’s case Alexander John McLean (“Professor McLean”) who is also qualified in the field of epidemiology.
The plaintiff was born in the United Kingdom on 19 April 1953; she came to Australia with her parents in 1969. It will be necessary to review in some detail the evidence concerning her employment and health history, but I will deal with that later in these reasons.
On the day of the collision the plaintiff set out from her house to drive in her Volvo sedan car to see her friends Mr & Mrs Silverston who lived at Malvern; it was the first day of a period of long service leave the plaintiff had taken from her employment as a nurse in the thoracic procedure suite at the Royal Adelaide Hospital.
En-route to Mrs Silverston’s house the plaintiff travelled to the east along Cross Road and brought her vehicle to a halt on the roadway of Cross Road, Goodwood, behind two motor cars which were stationary waiting for a favourable light from the traffic lights controlling the intersection of that road and Goodwood Road. There was light rain and the roadway was wet.
On the western side of the intersection, where the plaintiff came to a halt, there were four marked lanes; the northern-most lane was for vehicles to turn left to travel north along Goodwood Road, the second and third lanes were for vehicles intending to proceed through the intersection to travel to the east, and the fourth lane was for vehicles intending to turn to the right to travel south along Goodwood Road. The plaintiff stopped in the most northerly of the two lanes for through-traffic across the intersection, the lane numbered 8 in exhibit P6 which is a plan published by the Department of Transport.
On the opposite side of the intersection, from the plaintiff’s standpoint, there was situated on the north-eastern corner of the intersection a MacDonald’s restaurant, entry into the car park of which was gained by a driveway opening onto the northern side of Cross Road.
The plaintiff described that upon the traffic lights changing green for her direction of travel, the two vehicles ahead of her drove off across the intersection and she followed. She then saw the first of the two cars ahead of her brake heavily “to turn into MacDonald’s”, the car immediately in front of her also braked heavily and she in turn braked very heavily. The plaintiff said that as she braked she gripped the steering wheel, leaning forward, and she saw in her rear view mirror a car behind her which then struck the rear of her car - she felt her body go forward and then back, her head hit the solid plastic head-rest “hard” and her shoulders hit the top of the seat.
The defendant, the driver of the car which collided with the plaintiff’s vehicle, came on foot to the plaintiff’s driver’s side window. The plaintiff’s evidence is that she had hit her head so hard she was nursing the back of her head with her hand. The defendant said, “Are you alright, lady?” to which she responded, “No, that hurt. I have hit my head really hard on the head‑rest and I have hit my shoulders on the back of the chair.”. The plaintiff and the defendant drove their respective vehicles to the side of the roadway. The plaintiff got out of her car to see what damage had been caused. She said the defendant lifted the bonnet of his car and as he did so she saw a piece of white plastic “fall out from under the bonnet”. She said it looked to her as though the protruding tow bar of her vehicle had “hit his radiator and fan and broken pieces of the fan off”; she said the defendant told her that what had fallen off was a piece of the fan. The plaintiff said (in cross-examination) she observed her car to have “scuff” marks on the tow bar and on the rear bumper bar, and the bumper bar had “moved” indicating to her some damage had occurred.
At some point the plaintiff had telephoned Mr Chajka to inform him she had been involved in an accident and to ensure she would ask “all the right questions” of the defendant. The plaintiff and the defendant exchanged details; she said the defendant told her he would telephone her the next day to give her information about his insurer. The plaintiff then left the scene, drove to Mrs Silverston’s home, where she spoke to her about the accident, and after about two hours, when she felt “that I could drive”, she drove to the Sturt Road police station, reported the accident and then drove to her home.
The plaintiff related that on arriving home she had a bad headache, her shoulders were hurting and she went to bed, but did not sleep very well because of pain. The following morning, the plaintiff said, she had pain across her neck and pain and stiffness in her right shoulder; she went to consult her general practitioner, Dr Caldwell, who examined her and prescribed for her anti‑inflammatory and analgesic medication.
The plaintiff said she had gone on foot with her legal advisers to view the intersection about one month before the trial began. She saw a stormwater kerbside drain inlet on the northern side of Cross Road; she was not able to say whether or not that drain was present on the day of the accident, but she said the rear end of her vehicle was aligned with the eastern end of the drain when the defendant’s vehicle struck her car. In cross-examination the plaintiff agreed that fixing the point of impact by reference to the eastern end of the drain inlet was an approximation only and the impact may have occurred two or three metres to the east or west of her approximate point.
The plaintiff identified exhibit P15 to be estimates for and the ultimate cost of repairs carried out to her Volvo car by Western Crash Repairs; the removal and replacement of a left‑hand rear tail‑light noted in those documents was to rectify damage caused to the light in a collision which had occurred in 1999.
The plaintiff’s case is that the force of the impact in the collision caused injury to her neck and to her right shoulder, the ongoing consequences of the latter of which has precluded her from resuming her former occupation as a nurse, has adversely affected her ability and capacities to engage in physical activities she could previously perform and has severely impacted upon her enjoyment of life. Since the date of the collision, the plaintiff has undergone, and still undergoes, treatment in relation to her shoulder, and she has not been in any paid employment.
In cross-examination, the plaintiff said she remembered that, when reporting the collision to the police, she told the policeman she was not sure what speed her vehicle reached in its travel across the intersection, the police officer enquired, “Do you think it was 20, 30, 40 or ...” and she nominated 20kph “but ... I should not have because I am not really sure”. The plaintiff identified exhibit P16 to be a copy of a document prepared by the police officer when she reported the accident. Under the heading “driver”, a line against the word “injury” is blank; the plaintiff said she was asked by the police officer whether an ambulance had attended at the scene of the accident “for an injury” and she had replied, “No, an ambulance did not attend the scene”. I accept her evidence of that conversation.
The plaintiff said that under heavy braking her vehicle came to a stop no more than about two feet from the rear of the stationary car ahead of her, her vehicle angled slightly to the left, the other angled slightly to the right, and it was but a moment after she stopped that the defendant’s vehicle collided with her car. She said she did not know whether her vehicle skidded as she braked to a halt. She repeated her evidence that she had braced herself, her hands gripping the steering wheel, anticipating she could collide with the car in front of her; she denied she had told two medical reporters (Mr Hoare and Dr Awerbuch) that she had braced herself because she saw the defendant’s car about to collide with the rear of her vehicle. Taken to a statement she made to her solicitor (exhibit D19) the plaintiff agreed it contains the passage “In any event, I did stop [short of the car ahead] and I noticed that when I looked into the rear vision mirror another car approaching with its front dipping down sharply. I feared there was going to be an accident and so I tightly gripped the steering wheel.”. It was put to her that, apprehensive the defendant’s car was about to collide with her vehicle, she braced herself; she said:
“A:No, there wasn’t that timeframe to look, see him coming, think he was going to hit me and brace myself. I was in a braced position not hit the lady in front of me. I looked up, there was the car there behind me and I was still gripping the wheel. I gripped the wheel, continued gripping the wheel.
Q:So it’s not true that you gripped the wheel because you feared there was going to be a rear end collision.
A:When I saw the car I thought he would not be able to stop, I was continually gripping - I still was gripping the steering wheel.”
The plaintiff said she was not sure whether her foot was still on the brake of her car when the collision occurred.
The defendant was employed as a jockey at the date of the collision. He had ridden in a hurdle event at Morphettville Race course during the morning and was driving his Ford Fairlane car along Cross Road en-route to Castleton, his hometown in Victoria, from whence he had come earlier in the day, to ride in a race meeting at Hamilton or Warrnambool.
The defendant said that in the course of driving his vehicle before May 2000 he had occasionally struck animals crossing the roadway, causing damage to his vehicle. In exhibit P32 (photographs of the defendant’s Fairlane car) he identified in Photograph C two splits in the top of the front bumper bar to be damage that had occurred, before 15 May 2000, when he ran over a fox, and on the same or an earlier occasion a split at the bottom of the bumper bar had also been caused; to secure the bumper bar and to prevent any animals “shooting up” into his radiator, he had mounted a piece of aluminium plate “in the bottom” which can be seen in Photograph A, securing it by pop rivets to the bumper bar and the bottom of the radiator. Photographs 1 and 2 show a side view of the “wrap-around” front bumper bar, apparently displaced from its designed position. The defendant described that the bar is usually secured to the bodywork of the car by plastic clips, which “pop off” in the event of the bar striking some object; he said he had trouble with the bar “popping off” before and after the collision on 15 May 2000.
Concerning that collision, the defendant related that the line of three vehicles behind which he had stopped at the intersection accelerated across the intersection and he followed suit travelling behind the plaintiff’s Volvo. The Volvo then braked, the car ahead of it braked, the leading car “spun into MacDonald’s”, the defendant braked “and I slid into the back of the Volvo ... I kissed it”. He said his speed, and that of the Volvo, was slow when he braked.
The defendant said he got out of his car and walked to the driver’s side window of the Volvo; as he did so he glanced at the front of his car and saw radiator coolant running from it. At the Volvo he asked the plaintiff how she was - she replied, “Not too bad. How’s me car?”. He told her his car was (expletive), that the plaintiff’s car looked alright, but he would have another look. He saw that the rear end of the Volvo “looked alright” but he noticed then, or as both cars were being driven to the side of the road, that the left, rear tail‑light, or brake light, of the Volvo was “holed”. Having parked at the roadside the defendant lifted the bonnet of his car and saw that the radiator had been “kicked” back toward the fan, coolant was leaking from the bottom of the radiator and the aluminium plate that he had installed was buckled; he said the plate is still in the same buckled state affixed to his car.
In the photographs P32 (those marked B and 6-13 inclusive) the defendant pointed to indentations in the front registration plate of his car caused (he said) in the collision by the ball and tongue of the tow bar at the rear of the Volvo. He said he did not see any damage to the radiator grille of his car.
The defendant telephoned to a friend asking him to come and tow the car to the friend’s house in Morphett Vale where he stayed that night; when he was there he spoke on the telephone to Mr Chajka. He said a new radiator was installed and he was able to drive his car to Victoria the next day.
The defendant’s evidence is that the plaintiff remained in her car throughout, that is she did not get out of the car at any time. He saw her speaking on her mobile telephone when she was seated in the car and that is where she was when they exchanged particulars. The defendant said that when they were providing these particulars to each other, the plaintiff placed her right hand to the back of her head and said, “Oh, my neck”. I prefer the plaintiff’s evidence that she did get out of her car - it is not something she would be likely to forget and there is no reason why she would invent such an action on her part.
In cross-examination the defendant said that his vehicle was in about the middle (but it could have been before or after that point) of the intersection when the Volvo started to brake and he had no idea what speed his vehicle had reached before he started to brake, but, when he braked, the wheels of his vehicle “locked” and he skidded into the rear of the Volvo, directing his vehicle “toward the left a bit, because there was cars to my right hand side”. He explained that in expressing his vehicle “kissed” the Volvo, he meant “just touched it ... otherwise there would have been more damage I presume”.
The plaintiff tendered the defendant’s answers to interrogatories. In those answers the defendant stated that his vehicle had travelled three to four car lengths from its stationary position and was midway across the intersection, travelling at less than 20kph and about three quarters of a car length behind the plaintiff’s vehicle, when he saw the plaintiff’s vehicle begin to brake; he braked hard, his wheels began to skid and he steered to the left because there were vehicles in the lane to his right. He “believed” the plaintiff steered her vehicle to the right. He states he can recall that when his vehicle struck the plaintiff’s vehicle, both vehicles “stopped immediately thereafter with neither vehicle continuing to move after the initial impact”.
I will return later in these reasons, to the evidence concerning the manner and force of the collision and the opinions of Mr Hall and Professor McLean about those matters.
After completing year 12 at school in 1972 the plaintiff was accepted by the Royal Adelaide Hospital (RAH) for, and embarked upon, training as a nurse, a career she had always wanted to pursue. In February of the following year, 1973, the plaintiff was travelling as a passenger in the vehicle being driven by Mr Chajka; while that vehicle was stationary at traffic lights a car collided with the rear of it, a forceful impact as the plaintiff called it, which threw the plaintiff forwards and then backwards causing what the plaintiff described as a substantial neck injury for which she obtained treatment, including physiotherapy, and for nine months she wore a neck brace. The plaintiff related that her injury was exacerbated when, in April 1973, a taxi in which she was a passenger reversed into a tree.
The plaintiff was not able to resume her nursing training because of the neck injury and in the early part of 1974 her employment as a nurse trainee with the RAH was terminated on medical grounds related to that injury.
By the end of the year 1975 the plaintiff felt sufficiently recovered from her neck injury to embark on a recreational management course. Having completed that course, over a period of two years, the plaintiff obtained a position as a chiropractic assistant in which she worked for four years without experiencing problems with her neck, except for some stiffness which Mr Chajka would relieve by hand massage. The plaintiff decided to apply again to the RAH for training as a nurse; she underwent and passed a medical examination which included an assessment of her ability to perform various physical activities such as bending and lifting. She was accepted for training commencing in January 1982. The course to qualify as a Registered Nurse extended over three years during which the plaintiff worked in various hospitals in metropolitan Adelaide.
Upon successfully completing her examinations in 1985 the plaintiff commenced work at the RAH as a registered nurse, and also embarked on an advanced nursing course. However, in May 1985 the plaintiff was diagnosed to have a cancer; among the treatment options offered to the plaintiff she chose that which required she immediately undergo an hysterectomy. After three months recuperation the plaintiff returned to her duties as a registered nurse working in the neurosurgery unit and, from time to time, being deployed as a relief nurse to other sections and units of the hospital.

Aware that the training of nurses had changed from being within a hospital setting to being an academic course, the plaintiff decided to apply to enrol for the Diploma of Nursing. Not expecting to be accepted upon her first application, having regard to what she had been told had been the experience of others, the plaintiff also applied to undertake a midwifery course. A position in each course was offered to her – she chose the diploma and commenced her studies in 1988, changing her nursing work to nightshifts so that she could attend lectures and complete assignments during the day. Upon completion of the diploma the plaintiff then undertook the Bachelor of Nursing degree while continuing to work in the neurosurgery unit at RAH; she completed the degree in 1991. The plaintiff described that she found the combination of studying part-time and working to be very demanding.
In 1993 the plaintiff successfully applied for a position as a registered nurse in the thoracic procedure unit at RAH. That was the position she still held at the time of the accident in May 2000. The work of the unit is mainly the investigation of tumours by means of bronchoscopy, a procedure carried out by a medical practitioner assisted by two registered nurses. The plaintiff described in some detail the duties of a nurse before, during and after such a procedure; I accept that they require a nurse to be physically capable of
·assisting and sometimes restraining patients, and
·quickness, dexterity and efficiency in moving within the procedure room to set up for the investigation and during the progress of it to bring surgical and other equipment to the operating surgeon.
I accept the plaintiff’s evidence that she enjoyed her work, found it challenging and exciting, and that she wanted to continue working as long as possible.
In March 1999, a vehicle emerged from the car park of the New Market Hotel, Adelaide, and collided with the left side of the car the plaintiff was driving which was stationary in a line of traffic. This was the occasion the rear tail‑light of her vehicle was damaged. The plaintiff said she might have had some neck stiffness as a result of that incident, but no other symptoms, and she did not take any time away from her work.
The plaintiff related that during the period of two weeks after she consulted Dr Caldwell on 16 May 2000 she was in a lot of pain, sleeping was difficult and whether at night or during the day she was unable to find a position in which to lie or sit down that did not apply pressure to her shoulder blade area. She purchased a reclining chair at a cost of $2,640.
At a consultation with Dr Caldwell on 25 May 2000 the plaintiff was referred to a physiotherapist for treatment. In September 2000, the plaintiff was referred to Dr Malcolm Smith, an associate professor in the rheumatology unit at the Repatriation General Hospital, for continuing neck and right shoulder pain which disturbed her sleep and affected her ability to dress herself, brush her hair and her teeth. In October 2000, the plaintiff was seen by Mr Lehonde Hoare, a consulting surgeon. The plaintiff said that by this time she had taken to sleeping on the reclining chair because her neck and right shoulder pain caused restlessness which disturbed Mr Chajka’s sleep, the pain prevented her from elevating her right arm, made it difficult for her to dress, shower, brush her teeth and hair and it hampered activities such as laundering and hanging out clothes, housework and driving and writing. The plaintiff handed to Mr Hoare diary notes of her observations of her pain, incapacities and limitations made during the approximately three weeks before she consulted Mr Hoare; a copy of it and the plaintiff’s list of her limitations (also handed to Mr Hoare) is annexed to Mr Hoare’s report, dated 2 November 2000. The plaintiff gave evidence in relation to her notes, enlarging on them to speak of her difficulties in carrying out the activities of shopping, her inability to groom or exercise her dog and ceasing to entertain friends at home for a meal, or to go out to restaurants or the theatre because of an inability to sit for long periods and the risk when in public places of being “bumped” on her right side.
The plaintiff described that commencing about three months after the collision a deep, aching pain in her right shoulder blade became a stabbing piercing pain, but her neck pain progressively resolved before May 2001. In that month, when she was performing an exercise recommended by her physiotherapist, she felt a “popping” sensation in her right shoulder blade area and almost immediately the stabbing pain ceased, leaving her with only the deep aching pain in that area; she was still unable to raise and keep elevated her right arm, but she could move the arm further than she had been able to during the preceding 12 months. The plaintiff has persisted with physiotherapy treatment, which she says causes an increase in her pain and discomfort to a varying extent after each session, but there has been no improvement in her arm and shoulder since the “popping” incident. Once or twice a week Mr Chajka massages the plaintiff’s right shoulder blade area - before the “popping” incident he had done that three or four times each week.
The plaintiff estimated that before the collision she spent about 15 to 20 hours each week attending to the housework, and Mr Chajka about two hours per week. For the period of 12 months following the collision, the plaintiff was able to do very little of that work, Mr Chajka spent more than 10 hours a week on those tasks and help was also employed, but the plaintiff said that since the “popping” incident she has been able to perform about five or six hours around the house, Mr Chajka now does about four hours and a cleaning service is employed to come in every two or three months, but the house is not kept as tidy as it was before the collision because items have to be left out to be within easy reach for her.
From a time which, as I understand, was in about mid-2000, the plaintiff and Mr Chajka have slept in separate bedrooms so that the plaintiff’s restlessness, on account of her painful shoulder, does not disturb his sleep. Since the collision, sexual relations between them have ceased because of the plaintiff’s ongoing pain and discomfort in her shoulder.
The plaintiff said that her inability to do the things she did prior to the collision has made her feel frustrated and sad and she has lost part of her former personality. Her social life has been curtailed, cooking, which she used to enjoy, is difficult because of her inability to prepare food or lift heavy pans and the plaintiffs have taken to purchasing fast or pre-prepared foods; prolonged trips by motor car are no longer enjoyable or possible due to discomfort caused by the motion of the car, she cannot reach with her right arm to pull down and fasten her seatbelt and any other activity requiring the elevation above shoulder height and the use at elevation of her right (dominant) arm, or the use of the arm and hand in tasks such as egg painting or wrapping gifts, is inhibited by pain and discomfort in her right shoulder area.
The plaintiff has undertaken short WEA courses to attain some typing and computer skills with a view to equipping herself to try and obtain employment, other than in nursing the duties of which she considers she is not physically capable of resuming, but the plaintiff’s assessment is that it is unlikely she will be successful in securing any alternative employment.
In cross-examination the plaintiff said that since the collision her walking posture is different, she does not walk briskly, or swing her right arm, (which she said for the three years before trial she had positioned, although not always consciously, such that the right forearm is held across the abdomen), and her level of fitness has reduced and her general fatigue has increased. Concerning the movement of her right shoulder, the plaintiff said that since the collision flexion and abduction of her right arm is restricted to 90⁰, but she cannot maintain it at that level because of pain and that is why she avoids elevating her arm, positions the arm across her abdomen and uses her left hand and arm in activities where she had formerly used her right, dominant limb.
Since the collision the plaintiff has been treated, or has been assessed, by, inter alios, Dr Caldwell, her general practitioner; Mr Hoare; Dr Meegan, an occupational physician; Associate Professor Smith, a senior consultant rheumatologist and Ms Cathy Trankalis, an occupational therapist; she was assessed at the defendant’s request by Dr Mark Awerbuch, a consultant physician in musculoskeletal disorders and rheumatology. Reports from each of those persons were tendered and they gave evidence.
The plaintiff has been taking various medications since the collision, including Panadeine Forte for pain and Tomazepam, both of which she had regularly taken for many years before the collision, the first she said for migraines and the second to help her to sleep, something she had always had difficulty in bringing about. Dr Caldwell, in his evidence, said that the plaintiff suffered from chronic insomnia before the collision and attempts to ween her from Tomazepam had been unsuccessful.
Aspects of the plaintiff’s medical history before the collision were put to her from the notes made by her general practitioner including (post-1992 as the plaintiff acknowledged), muscle spasms in the upper thoracic area, pain in the left trapezius area and a painful right knee, the latter being the result of a fall and then an incident with a barouche. The plaintiff said she did not recall an occasion on 1 August 1997 reporting to Dr Verrall, a partner of Dr Caldwell, experiencing pain in the right trapezius area, which increased on turning her head, following an occasion when, three days earlier, she had read in bed with the back of her head leaning on the bed-head; Dr Verrall’s note, on which the defendant relies, is to that effect, and that the plaintiff was referred for “physio heat massage and soft collar”.
The plaintiff was shown video recordings taken covertly in August 2001 and January 2003 depicting her in various activities.
The recording taken in August 2001 shows the plaintiff entering a motor car driven by Mr Chajka, alighting from the car and walking to, and later from, a building where, the Court was told, the plaintiff had an appointment for a medical examination. The plaintiff used her right hand to open the car door when she first got into the vehicle, on several occasions she smoothed her hair with her right hand and, when walking, she swung her right arm in an apparently normal manner. On no occasion did the plaintiff hold her right forearm across her abdomen as she walked.
The recording taken in January 2003 shows the plaintiff leave her house, enter a friend’s car and she then dined with the friend at a fish café. The plaintiff appeared to use her right hand and arm in a normal fashion in the course of those activities.
Questioned about her recorded movements involving her right hand and arm, the plaintiff agreed that she was seen by Dr Awerbuch on 15 October 2003 to whom she said she had constant pain in the right shoulder blade region:
“Q:And you went on to tell him that pain was aggravated by washing your hair and by any activity involving any degree of elevation of your right arm. Do you remember telling him that.
A:That I wasn’t able to keep my arm elevated? Yes.
Q:I’m sorry, say that again.
A:Yes, that I wasn’t able to keep my arm elevated.
Q:No, no, I’m asking you whether you recall telling him that the pain in your shoulder was aggravated by any activity involving any degree of elevation of your right arm.
A:Yes.
Q:Is that the truth, is it.
A:Yes.
Q:See I put it to you that it’s plain from the two videos you’ve seen that you are capable of elevating your right arm without any apparent restriction or discomfort.
A:I’m not able to keep the arm up and elevated. I didn’t say I couldn’t move my arm.
Q:Did you tell Dr Awerbuch that any activity involving any degree of elevation of your right arm aggravated the pain in your shoulder.
A:Yes. The pain in my shoulder is aggravated by moving my arm.”
The plaintiff rejected the suggestion that she had exaggerated her symptoms both to the persons who had examined her, or treated her, and to the Court.
Mr Chajka is an accountant. In 1987, after working as an accountant for many years, first with a hospital fund and then with a hospital, he established his own accountancy practice and has since worked in that business; for two years or more before trial he worked about 70 hours per week as a sole practitioner.
Mr Chajka said that before the collision the plaintiff was an outgoing, gregarious and active person. He and the plaintiff would go out every week to dine with friends, and they would also go on motoring trips. He said that the plaintiff did all the cooking and “did basically everything (around the house) ... I did very little”, but after the collision the plaintiff “had considerable pain and was unable to do most of the things that she was doing previously”. He said that during the first 12 months after the collision he observed the plaintiff to be in pain each day - she complained to him of some sort of stabbing pain in addition to aching in her shoulder blade, and she disturbed his sleep to such an extent that he moved into a separate bedroom after about two months; there was little of what he described as “socialising”, he did more of the house cleaning, laundering and vacuuming, the plaintiff did no cooking, and he got into a routine of buying take-away meals. He summarised to say he was engaged in these “home duties” tasks for some 10 hours per week. At about 12 months after the collision there was an occasion when the plaintiff told him there had been a “release” of her stabbing pain and thereafter he observed “less pain on her face and less grimacing ... there was a definite improvement” and the plaintiff took up attempting tasks around the house “taking on a greater role and doing more things”, but her improvement seemed to cease. Mr Chajka assessed that he now spends no more than about five hours each week on household duties, principally the heavier tasks, and fewer take-away meals are purchased because the plaintiff does “bits” of cooking. He related he has observed that the plaintiff can apply her make-up only with awkwardness, and that drying herself and brushing her hair are activities to accomplish which she has adapted her movements to limit the use of her right arm. The detail of his evidence, in substance, concerning the plaintiff’s post‑collision demeanour, apparent discomfort and limitation in her activities, and his own housework and domestic tasks, broadly coincided with the plaintiff’s description of those things although there were differences between them of the time both before and after the collision he spent upon the tasks. I note Mr Chajka was not in Court when the plaintiff gave evidence. He said, and I accept, that he had not discussed with the plaintiff the evidence she gave.
In cross-examination, when questioned about the plaintiff’s use of Panadeine Forte and sleeping tablets before the collision, Mr Chajka said he was aware that she used such medications, but his evidence is that he had no real recollection of the frequency of use, except that it was not daily, and such use of the former medication as he did observe did not cause him any concern.
Mr Chajka said that his estimate of the 10 hours reducing to five hours which he spent each week in carrying out household duties included three to four hours, reducing to about two hours, engaged in going to purchase take-away meals.
Concerning the plaintiff’s manner of walking, Mr Chajka said that the plaintiff does not swing her right arm as she did before the collision, and he has observed that at times her right arm is positioned across her waist, or it is straight down her side with her fingers holding her skirt.
Heidi Silverston (“Ms Silverston”) is currently the Director of Nursing, Administration, at the Royal Adelaide Hospital where she has been employed in various positions, including as the nursing director in several areas, during her entire career as a nurse. She has known the plaintiff for about 20 years, beginning when they met during nursing training. Although they have not worked in the same areas, they are close friends who would frequently go on social outings together, or visit each other. She described the plaintiff to have been a reliable, dependable person with a great sense of humour, and relatively active, often driving to Ms Silverston’s house when she lived in Modbury, a journey of 40 minutes or so, for coffee or for a meal.
Ms Silverston described that on the day of the accident in May 2000, the plaintiff arrived at her house in Malvern in a shaken and distressed state, told her she had been in an accident, and complained to her she had hit her head and that she had a headache; the plaintiff left after about two hours.
Ms Silverston said that she did not notice the plaintiff apparently suffering any discomfort in anything she did before the accident, but since that event she had observed her to grimace, wriggle about and get up to walk around the room on the occasions they have been together, which until recently have been less frequent than before the accident; she said she had noted that the plaintiff has difficulty in donning a jacket or putting on a seat belt without assistance, that she mainly uses her left arm in any activity and when walking, she is “protective of her right arm”.
Ms Silverston’s present position entails administrative duties; she has completed a Master of Health Administration. She said that the plaintiff has not in the past expressed to her any interest in moving from clinical nursing to nurse administration. Ms Silverston’s observation is that the plaintiff enjoyed the work she had been doing, which involved having patient‑care contact. Without objection, Ms Silverston said that the average age of nurses in South Australia is 41.6 years and she is aware of a nurse, said to be in her 70’s, who is still working as a nurse; it was not stated whether that nurse is in a clinical area or engaged in administrative tasks, but Ms Silverston agreed (in cross‑examination) that clinical nursing requires an ability to carry out a wide range of lifting and bending duties. Exhibit D39 is an extract from an article published by the South Australian Department of Human Services in 2002 tabulating the number of nurses by age group. It shows the average age of registered nurses is 42.6 years; 782 (3%) are over 60 years and 29 (0.13%) are over 70 years.
Hilary Spacey (“Ms Spacey”) is and has been since 1994 a clinical nurse consultant at the Royal Adelaide Hospital with a responsibility for 29 nurses on the respiratory, or thoracic, ward, which includes the thoracic procedure suite in which the plaintiff worked as part of a group of four nurses, three of whom, including the plaintiff, worked four days per week between the hours of 8.00am and 4.30pm. Nurses in the thoracic procedure suite have to assist with bronchoscopies and be trained in other procedures so each of them has to be a registered nurse; two nurses are engaged in the activities in the procedure suite, and two in the recovery area one of whom can be an enrolled nurse whose duties are to assist, that is “to run and fetch”. The registered nurses rotate between them the duties in the suite and the recovery area. In the event of there being a lack of work in the thoracic procedure unit, which occurs about once or twice every two months, the registered nurses are deployed to other areas of the hospital upon clinical duties.

Ms Spacey described the duties of a registered nurse employed in the thoracic procedure unit to require the nurse to, inter alia, stand in one position for a long length of time carrying out activities involving the use of a bronchoscope, to reach up to about shoulder height to manipulate switches, to lift or assist in lifting patients to transfer them between a barouche and the procedure bed and to cleanse and clean bronchoscopes. The duties are set out in exhibit P20 and the plaintiff is depicted in photographs exhibit P11 engaged in some of the tasks. At least once in the course of a daily session there is an x‑ray procedure, for the purpose of which, and for up to 20 minutes, the nurse is required to wear a lead apron; in the plaintiff’s case, the apron weighed 9.5kg.
Ms Spacey said that the work of a clinical nurse involves stretching and lifting and carrying weights, a nurse’s capacity to perform which requires the nurse to have no injuries and be under no work restrictions limiting her functioning. If there are injuries or restrictions, a nurse may be assigned to a position the duties of which are modified to accommodate the individual’s limitations.
Exhibit P21 comprises a summary of the two appraisals which Ms Spacey wrote concerning the plaintiff’s skills, capabilities and work capacity in 1995 and 1997 in her position in the thoracic procedure unit, both of which support Ms Spacey’s opinion that the plaintiff would have continued to work in the unit.
Barbara Wright (“Ms Wright”) is a registered nurse and a friend of the plaintiff by whom she was supervised in 1987 in her training as a nurse and with whom she later worked in the neurosurgical ward of the Royal Adelaide Hospital until 1991. Ms Wright was complimentary of the plaintiff’s nursing and other skills in the hospital setting.
In 1996 Ms Wright left the Royal Adelaide Hospital and took a position with an agency which provided contract nurses to hospitals and the like institutions. I will have some regard to Ms Wright’s evidence that she has worked in country hospitals with nurses aged in the range of 69-76 years; her observation, and her experience, is that such hospitals are very short of, and are desperate to obtain, staff.
Ms Wright’s evidence included her observations of the plaintiff, since the accident in May 2000, when she visited the plaintiff or went with her for a meal at a café or restaurant or took her on trips by motor car. Before the accident, Ms Wright related, the plaintiff was a happy, cheerful and positive person, but following that event, the plaintiff showed a reluctance to join in outside social activities with her by going for a meal, seemingly, in Ms Wright’s assessment, becoming isolated from her friends and losing her formerly confident attitude. Ms Wright noted that the plaintiff nursed her right arm, supporting it on a pillow when being driven as a passenger on trips with Ms Wright to country towns, and when walking the plaintiff sometimes supported the arm with the other hand, or put her right hand into her pocket to support the arm, and shied away from the possibility of her arm inadvertently contacting a passing pedestrian. She said she had seen the plaintiff when demonstrating learned computer skills, pull out a drawer and support her right arm on it while using a mouse, during which the plaintiff evidenced some discomfort and she had also noted that the plaintiff is restless, “she will wriggle and squirm her arm around” after being in a seated position for about 15 minutes, and in activities requiring the use of her hand, Ms Wright said, the plaintiff tends to use the left hand, rather than the right as had been the case Ms Wright observed before the collision.
Dr Caldwell’s evidence included two reports, dated 18 November 2001 and 16 October 2003. At her first consultation with Dr Caldwell on 16 May 2000, the plaintiff complained of headache, pain and stiffness radiating across her upper back and shoulders; on examination he elicited tenderness over the upper back and neck and a generalised reduction of all neck movements. He prescribed analgesics. At a review on 22 May 2000 he noted that the plaintiff had persisting neck and upper back pain and headache; neck stiffness was still present and there was tenderness over both trapezius muscles. Dr Caldwell prescribed anti‑inflammatory medications; on both this and the previous occasion Dr Caldwell considered that the plaintiff was unfit for work and certified accordingly. When he next saw the plaintiff on 29 May 2000 he recorded that the plaintiff had continuing upper back pain and disability, reduced head movements to the right and trapezius pain, particularly on the right side; he referred the plaintiff for physiotherapy.
Dr Caldwell continued to see the plaintiff at twice monthly intervals - her headaches and neck pain improved, but “her pain seemed to localise between the medial border of the right scapula and the thoracic spine and she was incapable of holding her right arm up for any length of time”; he prescribed Celebrex, an anti‑inflammatory, Amitriptyline for night pain and Tomazepam for sleeping, in addition to which the plaintiff occasionally used Panadeine Forte for pain. Regular physiotherapy continued, but Dr Caldwell judged that the plaintiff was making little progress and on 27 September 2000 he referred her to Associate Professor Malcolm Smith, whom the plaintiff had consulted, some years before this collision, concerning patello femoral osteoarthritis involving the right knee. Dr Caldwell also referred the plaintiff to Dr Meegan.
From various x‑rays or scans of the plaintiff’s thoracic spine and shoulders, and Professor Smith’s opinions, Dr Caldwell noted in his report, dated 18 November 2001 “the conclusion was reached that (the plaintiff) has a degenerative arthritis of the thoracic spine which was aggravated by the motor vehicle accident with pain originating in either the costo‑vertebral or costo‑transverse joints on the right side”. In the same report, Dr Caldwell recorded that the plaintiff continued with physiotherapy, gymnasium work and hydrotherapy, medications and used a trans‑cutaneous nerve stimulator, but she declined to have injections into the facet joints of her thoracic spine “because of associated risks”. By the date of the report, Dr Caldwell considered that the plaintiff’s reported progress, of a 50% improvement from her initial condition, had been slow, noting that “the sharp piercing pain in her back had gone since May, but she still suffers a deep aching pain in the region of her right scapula”. He considered that because of the plaintiff’s inability to hold her right arm up for any length of time, a movement required as part of her nursing duties, the plaintiff was not fit to return to those duties.
Dr Caldwell’s second report, dated 16 October 2003, followed a review of the plaintiff in June 2003 when she complained of scalp hair loss beginning in March 2003, which Dr Caldwell, having referred the plaintiff to a dermatologist for treatment, concluded from the dermatologist’s report was related to emotional stress. Concerning what he referred to as the plaintiff’s shoulder problem, he noted that she felt there had been little change.
Dr Caldwell has been the member of his practice with the principal responsibility for the plaintiff’s care since shortly before the plaintiff’s accident in May 2000. In his evidence he said, concerning his observations of the plaintiff’s right shoulder, that his practice was to examine all the passive and active movements of the shoulder recording any positive findings.
In the course of giving his evidence, Dr Caldwell had before him the handwritten notes made by whichever doctor in his practice the plaintiff consulted on the date of the particular note. A transcription of the notes between June 1978 and June 2001 had been attempted by those instructing the defendant’s counsel. Dr Caldwell was taken to the transcription, some of the “illegible” notations in which he was able to decipher from the original notes and some of the transcribed words he altered, either because the note was made by him, or he had some familiarity with the script of the author. The practice entries from 26 June 2001 to 5 November 2003 inclusive were all made by Dr Caldwell and were transcribed by him, as exhibit P25, which is accepted by the parties to be accurate.
The notes record, inter alia, that:
·    in June 1990 a dog jumped on the plaintiff’s back and she experienced pain in the left side of her neck, there was tenderness in her cervical spine and the left trapezius which was still present, although improved, some 10 days later.
·    in July 1992 the plaintiff fell and hurt her right knee, and episodes of increasing pain brought her to see a doctor on 26 October 1992. After conservative treatment, the knee improved and by the end of December 1992 the knee was feeling better.
·    in July 1993 the plaintiff experienced muscle spasms in her lower cervical and upper thoracic para-vertebral muscles, and tenderness. Referred for physiotherapy, the physiotherapist (Mr Eddy Simionato) reported (exhibit D26) “significant tension particularly the (left) upper trapezius which has a very prominent trigger point”. Mobilisation and heat and releasing massage was undertaken to which it was expected the plaintiff should respond.
·    in August 1996 the plaintiff experienced pain in her right knee when it was crushed between a bed and a barouche. She was referred to Professor (then Dr) Smith who assessed (report dated 24 October 1996) that the plaintiff had “a right patello femoral joint osteoarthritis secondary to a combination of impact trauma on the right patello some six years ago, but persistent trauma to her knee as the result of her occupation and also her excessive weight”. She was referred to physiotherapy for exercises; alternative invasive procedures were considered, but not recommended.
·    in March 1999 the plaintiff complained of being slightly stiff in the extremes of neck movement following a motor vehicle collision in North Terrace; there was no pain or other symptoms.
There are other entries in the notes to December 1999, concerning bouts of nausea, migraines, respiratory complaints and other ailments and the prescription of Panadeine Forte and Tomazepam.
In relation to the examinations of the plaintiff following the collision in May 2000, the notes, significantly in my view, record the plaintiff’s doctor’s observations made approximately twice each month in the period to the date the plaintiff saw Professor Smith in October 2000. Those observations (amongst others) include “tender T1 and over both clavicles”; “tender both trapezius, restricted neck movements”; “trapezius pain especially on the right”; “levator scapulae muscle strain. Cervical joint strain plus trapezius strain”; “still trouble lifting right arm. Good mobility of neck, but pain on rotation. Slowly improving”; “still deep pain to right side of mid‑line, upper back, fairly good neck mobility. Tender right para‑spine medial to border of scapula” (this was on 4 July 2000); “still pain in right trapezius and medial border of right scapula and trapezius”; “sharp pains, still medial border of scapula”; “still having stabbing pain through medial border of scapula”. That latter entry was recorded on 27 September 2000 when Dr Caldwell referred the plaintiff to Professor Smith.
I referred earlier to Mr Hoare. In his report, dated 2 November 2000, he records that he arranged for ultrasound examinations of the plaintiff’s shoulders and a x‑ray of her full spine following his examination of the plaintiff on 12 October 2000 in the course of which he elicited tenderness down each side of the neck and over the right shoulder and shoulder blade with some tenderness also around the left shoulder blade; he noted restrictions in the overall range of active shoulder movements on both sides with aggravation of pain in the shoulder blade areas of the upper back and between the blades upon movement toward the extreme in either direction. Films he requested did not reveal any significant soft tissue abnormality in the shoulder areas and, except for minimal degenerative changes in the spine, there was no evidence of structural soft tissue or bony damage in those areas.
In his report, Mr Hoare described that in the collision the defendant’s car “crashed forcibly” into the rear of the plaintiff’s vehicle. He wrote:
“In accidents such as this quite severe forces are generated which are partly dissipated in vehicular deformation and partly in changes in the direction, velocity, acceleration or deceleration of the vehicles concerned. However, some of the forces are obviously absorbed by the occupants.
In this instance there would have been a severe acceleration force applied to the vehicle in which (the plaintiff) was the driver and she would have suffered a direct blow to her back delivered via the upright portion of the seat in which she was sitting; and her neck would have been prone to injury as the unprotected head was flung in a fore and aft direction on the trunk restricted by the seat belt.
The consequence is that soft tissue injuries arise in these areas which become painful and this leads to muscular spasm and limitation of movement.”
In Mr Hoare’s opinion, the plaintiff displayed a considerable impairment of the full efficient and comfortable function of her cervical spine with recurring headaches, pain and stiffness in her neck, particularly on the right side, the pain radiating into the right shoulder and shoulder blade area and to some extent into the left shoulder and shoulder blade area, all of which had precluded her from returning to her work.
It was put to Mr Hoare (from, I infer, an article by Bailey, Wong and Lawrence, an article of which Mr Hoare said he was not aware) that in a rear end collision at a speed of the order of 5 kph to 10kph where the driver of the target vehicle is “braced” in a seated position, that is gripping the steering wheel, there is unlikely to be sufficient force generated to cause any long-term injury to such a driver; Mr Hoare agreed but said that there is a likelihood of tears to the tensed muscle fibres, and although it might reasonably be expected transient soft tissue injury would resolve uneventfully with the passage of time, aided by some physiotherapy, whether that is the case depends on the age and circumstances of the individual: “If I am middle-aged and I have had other injuries and I am depressed, I think you are less likely to make that recovery, except for a very long time” (Tx 307). Mr Hoare also said it is his opinion that if the force of the collision was with the tow bar of the target vehicle, rather than with “crumple zone” components, the effect on the driver would be greater.
Mr Hoare, who examined the plaintiff on only one occasion, diagnosed a soft tissue injury to the muscles supporting the neck, the muscles radiating towards the shoulders and a component of injury to the fifth, sixth and seventh cervical nerves which supply not only the lower neck muscles but also the muscles of the shoulder blade and shoulder; in his view were the neck to become non‑symptomatic over time there could still be pain, in the shoulder blade and shoulder, being “referred” from the neck. On his examination, he elicited pain in the trapezoid muscle on both sides - that muscle acts on both the shoulder and the shoulder blade. The plaintiff’s complaint to Mr Hoare was that most of the pain was in the right shoulder and shoulder blade area. He noted from the x-rays he ordered that there were signs of degenerative disease in the 3-4 and 5-6 levels of the cervical spine. He said his findings at examination were consistent with the progress of the plaintiff’s degenerative changes or the aggravation of that process by “the” injury, which I infer meant an injury of the nature of that he described the plaintiff could have suffered in the collision. The plaintiff did not complain to him of any thoracic pain and he did not consider that the plaintiff suffered in the collision injury to the costo-vertebral or costo-transverse joints for the reasons he explained, that is he would not expect such an injury in a collision of the nature of that in which the plaintiff was involved.
Dr Meegan examined the plaintiff on a number of occasions, and recommended treatment for her, between November 2000 and November 2003.
At his first examination, Dr Meegan elicited tenderness in the right lower cervical paraspinal region (that is the level of C6-C7), the right upper trapezius (which appeared myofascial), the thoracic spine at T5 and T6 and the inferior and medial scapula border (which also appeared myofascial); the plaintiff complained that she was particularly troubled by the scapula pain. By “myofascial” Dr Meegan explained he meant an involvement of muscles and soft tissue.
In April 2001 Dr Meegan reported that the plaintiff’s “problem” included right sided T5/6 segmental dysfunction “with likely costo-vertebral, costo-transverse and facet joint origin and with associated rib dysfunction and right scapulo-thoracic dysfunction with right trapezius and rhomboid myofascial pain”. In February 2002, his observations about the plaintiff’s problem were the same. In November 2003 he summarized “(the plaintiff) continues to present with T5/T6 segmental dysfunction probably with involvement of costo-vertebral and costo-transverse joints. CT of thoracic spine previously showing some degenerative change and a bone scan which was normal …. She has been disinclined to costo-vertebral or costo-transverse joint injection. She has otherwise exhausted conservative treatment”.
Dr Meegan, in November 2001, considered it was reasonable for the plaintiff to not undertake the invasive injection procedures. In his view, the plaintiff in November 2003 was not able to return to nursing duties “because of ongoing restriction for heavy lifting (more than about 5kgs) prolonged or repetitive bending, twisting, overhead activity with thoracic extension and prolonged sitting or standing without the opportunity to alter her posture”.
In his evidence Dr Meegan said the information he had from the plaintiff’s solicitors that the defendant’s vehicle “ploughed into the rear” of the plaintiff’s vehicle implied to him there had been a collision of some force; he agreed that a “minor bump” was less likely to cause a chronic injury but, “my experience has been that sometimes in what seems a minor accident people do complain of acute and chronic injury”. He also expressed the view, while professing no expertise in the area and speaking only from a knowledge of basic physics, that a collision force applied directly to and through a tow bar of a vehicle may result in less damage to the vehicle than where the same force is progressively absorbed by other less rigid areas, but some greater force would be transmitted to the occupant of the vehicle in the case of the former.
Dr Meegan said that from the history, and his examination, the plaintiff’s experience of pain arising in the region of the left hand side of the right scapula in “overhead activity”, was not referred pain from the cervical spine; the plaintiff’s tenderness and pain in the right scapula region and pain and difficulty with repetitive activity with the shoulder, and with overhead activity, was consistent with his examination of the scapulo-thoracic region and (as he finally postulated his diagnosis to be) damage to the costo-vertebral and costo-transverse joints which could be caused by forces transmitted to the back of the thoracic cage when, for example, the chest wall is compressed against a restraining seat belt or the torso rotates around the point at which the shoulder is restrained by the belt. Dr Meegan said it has not been his experience, and he did not agree, that it is virtually impossible for a collision, such as that described by the plaintiff, to cause damage to the costo-vertebral or transverse joints; in his view that could occur causing ongoing pain, and secondary pain in associated muscles, in the areas such as the rhomboid and low trapezius, which he inferred to be a reflex mechanism and a common phenomenon. He agreed that except for the history given to him by the plaintiff and his own clinical examination there is no evidence of trauma to the costo-vertebral or costo-transverse joints.

Dr Meegan said he would not expect to see the plaintiff demonstrating any evident functional incapacity were he to see her “out and about … in her day to day activities”. He agreed that, in isolation, the plaintiff’s clinical signs may not support his opinion that she cannot work as a nurse, but he said that he (and I infer any medical examiner) cannot exclude from consideration the plaintiff’s history, particularly of her work as a nurse prior to the collision. As to the degenerative processes in the plaintiff’s spine, Dr Meegan’s view is that he cannot be sure they would have become symptomatic in any event - they “might have remained just an incidental finding”.
Professor Smith at his first examination of the plaintiff found tenderness to palpation in the midline of the T6-T8 region and to the right of it which reproduced pain “referred to the right scapula region”; tenderness to palpation in the muscles of the right side of the upper thoracic spine also referred pain to the same region. He found a full range of movement of the right shoulder joint, some mild restriction of right lateral flexion and that rotation of the cervical spine to the right reproduced some right shoulder pain. Plain x-rays, he concluded, showed degenerative changes in the cervical and thoracic spine, and a CT scan of the latter showed degenerative arthritis, particularly from T7-T9, predominately on the right side with osteophyte formation. His opinion was that the plaintiff had degenerative arthritis in the thoracic spine which had been aggravated by the collision. He decided to pursue conservative treatment including continuing physiotherapy and a transcutaneous nerve stimulator. By January 2001 he reported the plaintiff “was still frustrated at the lack of progress with her ongoing conservative treatment for her chronic pain”. After discussion about a nerve block to assist with pain control, the plaintiff was reluctant to proceed with that “in view of the potential risks of such an invasive procedure”.
Upon an examination at a review in November 2003 Professor Smith found tenderness along the medial border of the right scapula, and an inability to abduct her right shoulder above 95^obecause of discomfort in the right scapula; while flexion was less restricted it still aggravated right scapula pain. Rotation of the plaintiff’s thoracic spine to the right was limited to 40^o by right scapula pain, while rotation to the left aggravated that pain only at the end range of the movement. A test of the plaintiff’s latissimus dorsa muscle did not reveal any winging of the right scapula but when elevating her right arm in the course of that manoeuvre, right scapula pain was reproduced.
In his report dated 17 November 2003 Professor Smith wrote that his initial assessment had been that the right scapula pain may be referred pain from structures within the thoracic spine because of scapula pain on thoracic rotation and the degenerative changes shown in the CT scan to be in the thoracic spine, but some features of his examination suggested to him that the pain may relate to the rotation of the right scapula; he suggested a CT scan of that region. He considered that the functional capacity assessment carried out by Ms Cathy Trankalis in May 2001 made it clear that the plaintiff did not have the capacity to work as a registered nurse at that time, and there having been no apparent progress in the plaintiff’s symptoms since that assessment it is likely that functional incapacity continued.
The balance of Professor Smith’s report dated 17 November 2003 contains his comment upon the report of Dr Awerbuch dated 16 October 2003.
In his evidence Professor Smith said that the plaintiff’s symptoms were consistent with injuries suffered in the collision, but he agreed the absence of any history of symptoms before the collision and then symptoms after that event was what he found “sufficient” to reach that conclusion. He said that in his first examination of the plaintiff he had considered that, from her history, her neck symptoms were not disabling and the focus was upon pain in the right scapula which caused discomfort when she abducted her right shoulder to 95^o, and on flexion to a little further elevation. He considered that the plaintiff’s complaint of pain in the scapula region was unrelated to pre-collision episodes of pain in the neck like that upon which he reported in 1996 and in his opinion it is highly unlikely that there would be referred pain, in the scapula region, from the cervical spine. He agreed that if on examination soon after the collision, and in October or November 2000, active movement of the plaintiff’s right arm did not reproduce scapula pain then it is less likely that there is a causal connection between the collision and a later finding of scapula pain. However if the examination was of passive movement of the right arm and there is a “muscle or tendon” component of the injury, not a joint abnormality, there would be no pain or restriction in such a movement; he said he could not be certain but upon re-reading his report dated 12 November 2000 he thought it was passive movement of the arm he examined, as to which he observed in his first report “(the plaintiff) had full range of movement of the right shoulder joint”.
Taken to his first report in which he postulated the pain in the scapula region was emanating from either the costo-vertebral or costo-transverse joints of the thoracic spine he said were those joints to have been degenerate at the time of the collision that could have been aggravated by the collision and that is the mechanism he was proposing as the cause of the plaintiff’s pain but as to whether there was such an aggravation, he said, was outside his field of expertise; in his view aggravation would be less likely were the plaintiff’s spine to have been “rigid” in the collision.
It was put to Professor Smith that if there were to have been an incident such as that reported to Dr Verrall in August 1997 when the plaintiff experienced tenderness and increasing pain in her right trapezius area after reading in bed, that might indicate degenerative changes in the plaintiff’s thoracic spine had become symptomatic. He said that in Dr Verrall’s notes the location of the site of the pain was higher than the site he (Professor Smith) had recorded and that the source could have been degenerative processes in either the lower cervical or upper thoracic spine, but (in re-examination) he said he did not believe there was any relationship between the area of pain he had identified and that which Dr Verrall had described “which indicated a totally different position”.
Professor Smith agreed that “it has not been possible to provide any reliable or definitive diagnosis of the problem in” the plaintiff’s right shoulder. He said investigations have shown degenerative change in the thoracic spine and it is based on that, and his findings on examination, he is of the opinion the plaintiff’s problem in the scapula region “may actually be referred pain from the thoracic spine area”. However on the occasion of his last examination and although his findings still pointed to that as a possible cause, it appeared the plaintiff had pain related to the rotation of the scapula and the chest wall which raised the possibility of a dysfunctional bursa under the scapula as an alternative explanation. He agreed that if either of those causes of pain were a consequence of the aggravation in the collision of some underlying degenerative changes he would have expected findings of those to be manifest within a matter of weeks, or months, after the collision and absent such finding it is less likely that (as I understood his evidence) the collision is causally related to them or either of them; he said he would be surprised if a dysfunctional bursa would persist for so long after the collision. In re-examination Professor Smith said, with benefit of hindsight, that at his last examination of the plaintiff he was paying more attention to whether scapula movement may have a relationship to her pain, and it is possible he had earlier overlooked scapula movement as being a contributor, but he considered that thoracic spine movement was the major producer of the plaintiff’s pain when he first saw her in 2000. He said (Tx 504):
“I still feel the most likely explanation is the referred pain from the thoracic spine because that’s the consistent finding between the two examinations, but I have not excluded the possibility that there is a local cause for the problem as well, and certainly it appeared more possible, not probable, but possible there is a local cause for her pain which, of course, doesn’t exclude the possibility of two causes”.
Dr Awerbuch saw the plaintiff on two occasions, in October 2001 and October 2003; in relation to each occasion he provided a report.
The plaintiff complained to Dr Awerbuch of aching in the right shoulder blade region of which she was particularly aware when using the right arm, and an inability to elevate the right arm much above shoulder level because that aggravated the pain in the right shoulder region. In summary, Dr Awerbuch’s opinion, and his evidence, was that having regard to his clinical examination, reports of other medical practitioners provided to him, diagnostic films and reports thereon which he saw, and, I infer, the history he obtained from the plaintiff, he was unable to identify evidence of any injury attributable to the collision which might reasonably explain the plaintiff’s ongoing complaints. He said he disagreed with the “postulates” advanced by other examiners as possible causes of the plaintiff’s symptoms and complaints, but suggested a diagnostic procedure of local anaesthetic blocks under CT control by an experienced radiologist to determine whether or not a possible, although uncommon, case of injury to or disease of the costo-vertebral joints could be a biological explanation for the plaintiff’s pain at the level of the lower part of the blade of the scapula or even conceivably pain close to the shoulder blade. That suggestion was not taken up by the plaintiff for reasons which, as I understand her evidence, were drawn from the views of both Professor Smith and Dr Meegan that (as I apprehend) similar “invasive” procedures contemplated by Professor Smith were attended by risks which it is not unreasonable for the plaintiff to refuse to hazard.
Dr Awerbuch prepared, and there were tendered, a further two reports, both dated 4 December 2003. The first included his observations concerning the plaintiff’s movements as shown in the two video recordings I have referred to, from a viewing of which he stated his impression to have been that the plaintiff appeared to use her right arm in an uninhibited way, with no obvious discomfort and although on no occasion was her right arm elevated above shoulder level, she raised her right hand above that level and ate with a fork using that hand which he considered suggested that it is unlikely the plaintiff would have difficulty brushing her teeth or hair using her right hand. He took issue with Mr Hoare’s opinion that the plaintiff suffered injury to several levels of the cervical spine with a radiation of pain from those levels into the scapula area which, notwithstanding localised pain in the neck had settled, caused the plaintiff’s ongoing scapula pain. In his view, if, as Dr Awerbuch considered to be the case, the plaintiff has no neck pain and a full, or near full, range of lateral rotation of the cervical spine, there is no irritation of the C6, C7 or C8 nerve root, the symptoms or signs of which include pain in the neck, shoulder and medial border of the scapula with (depending on which nerve root is involved) pain in the lateral or dorsal arm and forearm, or the medial aspect of the arm and forearm, sensory changes in some fingers of the hand, weakness in the intrinsic muscles of the hand, or deficit or weakness in the biceps or triceps; in his opinion “(the plaintiff) does not have even one objective abnormality which one might construe as supporting a diagnosis of nerve root irritation ... the range of lateral rotation of the cervical spine is inconsistent with an hypothesis of scapula region pain originating from irritation of cervical nerve roots”. In his view, if the pain in the scapula region was referred from the cervical spine, a full range of shoulder movement and a restricted range of cervical spine movement would be expected because there is no pathology in the area to which the pain is referred - the pathology is in the area from which it is referred, namely the neck.
In the same report, Dr Awerbuch stated that Mr Hoare’s hypothesis is inconsistent with what he described to be the minimal degenerative changes in the cervical spine, with no evidence of osteoarthritis of the facet joints, shown in the x‑rays of the plaintiff’s spine taken on 13 October 2000, commenting “it is also difficult to imagine that anyone would have seriously considered the possibility of pain of cervical root origin without proceeding on to a CT scan or MRI of the cervical spine” observing that the plaintiff “is likely to have had the same minimal changes of degenerative changes in her cervical spine at least in early 1982” according to the report of x‑rays taken at that time. In his view, although the plaintiff upon examination by him “ceased active movement of the cervical spine at two thirds of the normal range” she did not complain of scapula pain on neck movement, and voluntary restriction of such movement is not an objective finding from which conclusions can be drawn as to whether or not there is any underlying pathology.
As to Mr Hoare’s opinion that he would not expect non‑weight bearing movement of the arm below shoulder height to cause scapula symptoms, but scapula symptoms to occur above that height, Dr Awerbuch stated (citing Gray’s Anatomy) that the scapula contributes 30⁰ to the movement of abducting the arm to 90⁰. Mr Hoare’s opinion was that the abduction of the arm to 90⁰ involves the scapula to a small extent as it stabilises itself on the chest wall “to hold the shoulder blade steady while the joint can work”. Neither on abduction nor flexion of the arm up to 90⁰ would he (Mr Hoare) expect the plaintiff to complain of any excessive pain; but once elevation of the arm goes beyond 90⁰, the shoulder blade rotates on the chest wall and he would expect complaints of pain in the scapula region were the pathology to be in the neck as postulated by him. Dr Awerbuch stated he was unaware of any pathological condition known as “rotation” of the scapula.
In his evidence, Dr Awerbuch confirmed (as appears in his report) the plaintiff told him at the first examination that in the collision her vehicle had been pushed forward, she had no idea how far, but her vehicle did not strike the car in front of her. I consider that it is of some significance for two reasons - first, it is an example of the variations in the memories of events which those involved in motor car collision have, and honestly believe they have, in circumstances where the event of the collision occurs in a very brief space of time; and secondly, it may be of some significance where I turn to deal with the opinions of Mr Hall and Professor McLean.
Dr Awerbuch, in cross‑examination, was questioned at some length concerning a report, or reports, by Dr Robin Williams who examined the plaintiff at the request of the defendant. Dr Williams was not called by either the plaintiff or the defendant to give evidence, and his reports are not before the Court. The plaintiff’s legal advisers did take steps to arrange for Dr Williams to attend to give evidence, but for reasons I need not elaborate upon, that did not occur. It appears from the questioning of Dr Awerbuch that Dr Williams was of the opinion the plaintiff had suffered in the collision an injury in the region of the right shoulder blade causing some form of soft tissue damage of uncertain pathology. Dr Awerbuch said he did not agree with that opinion, or Dr Williams’ finding that the plaintiff has a scapulo‑thoracic dysfunction, a condition which Dr Meegan found. However, there is no evidence from Dr Williams before the Court and I do not consider this is a case in which the absence of Dr Williams should redound to the disadvantage of the defendant, even to the limited extent permitted by Jones v Dunkel.
In his report, dated 16 October 2003, Dr Awerbuch stated his view concerning Dr Meegan’s “implication” that the plaintiff’s sources of pain where one or more costo‑vertebral and costo‑transverse joints, one or more thoracic facet joints, the right sixth rib and the right scapulo‑thoracic region. As to the costo‑vertebral and costo‑transverse and thoracic joints, Dr Awerbuch said that Dr Meegan adduced no evidence to support there being injury to, or disease of, the joints and he (Dr Awerbuch) had found no published data to support the view that joints are vulnerable to injury in a rear-end collision, particularly if it is of low impact; in his opinion, the “dorsal spine and lumbar spine are fully supported by the seat back and held in position by the seat belt. There is thus almost no scope for the dorsal spine or lumbar spine to move sufficiently to generate the sorts of forces required to result in indirect injury”. Further, in his opinion, neither rib dysfunction nor scapulo‑thoracic dysfunction is a recognised medical diagnosis in any contemporary classification of medical disorders.
Dr Awerbuch agreed that the movement induced in the spine by a whiplash effect occurring in a rear-end collision can cause injury, but it is his view there is continuing debate about the degree of force that has to be applied to cause injury and although there are proponents of the view that a whiplash can cause injury resulting in chronic pain, in the case of such pain, “nobody has ever established the pathology, if it exists, to explain the neck pain that occurs after minor rear-end collisions ...”. He stated it to be his opinion that in the plaintiff’s case “I don’t think there was a whiplash here at all” (Tx792). He was questioned concerning an article in the journal “Spine”, published in 1999 in which, upon a review of the literature, it was concluded there is no epidemiological or scientific basis for the statements that whiplash injuries do not lead to chronic pain, rear impact collisions that do not result in vehicle damage are unlikely to cause injury and whiplash trauma is bio‑mechanically compatible with common movements of daily living. Dr Awerbuch said he thought the article to be a good study with the results of which he generally agreed, but said “my recollection is that there was no referral in that report of chronic pain in an area other than the neck. They were really talking about whiplash; all of those articles deal with whiplash and chronic neck pain. They didn’t deal with chronic upper back pain of unknown cause”.
Mr Hall visited the intersection and made measurements of some of its features. He calculated that if the defendant’s vehicle was stationary at the intersection behind a line of three cars waiting for the traffic lights to change, and the collision occurred adjacent to the stormwater inlet, then the defendant’s vehicle would have travelled approximately 65 metres from its stationary position to the point of impact, and were the defendant to have accelerated at .1g, his speed at impact would have been approximately 27-29kph.
I accept the plaintiff’s evidence as to the approximate position of the point of impact.
Mr Hall said that if he assumed the defendant was travelling at 20kph and ¾ of a car length behind the plaintiff’s vehicle when he saw that vehicle brake, then “even with a very good reaction time of one second, an impact at about 15kph would have occurred [with the plaintiff’s Volvo]” representing a speed change in the Volvo of 12-15kph.

I assess the plaintiff’s past economic impairment in the sum of $93,493.
As part of her contract of employment, the plaintiff’s employer made contributions to a superannuation fund on her behalf. The plaintiff relies on the certificate of Mr B.A. Watson, a consulting actuary, prepared on the assumptions set out in the report (exhibit P46). For loss of past employer contributions the plaintiff claims, as the present value, $14,769.66 (to the date of trial). My own calculation produces $14,714.25, which is based upon the gross salary the plaintiff would have been receiving from RAH at the date of trial ($764.80 gross per week). However, the rate of pay to the plaintiff from the date of the collision to trial would have been $635.20 (gross) rising to $764.80 (gross). I have not had the benefit of seeing the plaintiff’s calculation. I will adopt my own, discounted to have regard to the lower gross rates for some of the period; to achieve that I can do more than make a broad assessment. I will allow $14,000 for the present value of lost employer contributions for superannuation.
Turning to the claim for future economic impairment, I am satisfied that by reason of the injury the plaintiff suffered in the collision she is presently excluded from her former work as a registered nurse in the thoracic procedure suite, and from the work of a general clinical nurse; I find it is more likely than not the plaintiff will never be physically capable of carrying out the full duties of a nurse in either of those positions by reason of the consequences of her injury which prevent her from maintaining the elevation of her right arm, above shoulder level, to carry out activities with the arm in that position or to carry or lift heavy weight using the right arm in a position away from her body, each of which is an essential capacity required in the plaintiff’s pre-collision employment.
From the certificate of Mr Watson (exhibit P46) the present value at 1 December 2003 of a payment of $1 per week to the plaintiff
·to age 60 or prior death is $389.
·to age 65 or prior death is $528.
·for the whole of her life is $817.
The plaintiff’s net wage at trial was $596.80. If the plaintiff is precluded by her disability from any pre-collision economic capacity then, to age 65 years, damages for her economic impairment before any adjustment for contingencies, favourable and unfavourable, would amount to $315,110.
The plaintiff had signs of degeneration in her spine before the collision. Those in the thoracic region in particular were appropriate to her age and the evidence is that but for the collision they may have continued to be but a clinical appearance without causing any disabling symptoms. However, the plaintiff’s previous injury to her neck, with persisting symptoms of neck discomfort and the incident in 1997 when the plaintiff suffered shoulder pain cannot be ignored and neither can her regular use of panadeine forte and tomazepam before the collision which I conclude were likely taken by the plaintiff to enable her to continue with inter alia her work (that was the effect of Mr Chajka’s evidence), and cope with her chronic insomnia and her life generally. Further, the plaintiff has, and had before the collision, a condition in her knee which adversely affects her ability to kneel or squat and which was exposed, Professor Smith said, to persistent trauma “as a result of her occupation and excessive weight”. The plaintiff’s evidence, which I accept, is that she wished to continue to work for as long as she could, but I consider it is unlikely she would have remained in the demanding role of a nurse in the thoracic procedure suite, or in general clinical nursing duties, until she reached 65 years of age. It is more probable the plaintiff would have retired at about 60 years of age. The present value calculation to that age, or prior death, is $232,155.
The plaintiff I find is not left with no capacity to earn an income. To her credit she is anxious to equip herself to obtain other work and has set about acquiring computer skills. Her personality has impressed those who know her. She has demonstrated a capacity and aptitude for study since she was a young woman. Organisational skills and the ability to fill a responsible role were undoubtedly part of her accomplishments. I have no doubt the plaintiff would be an asset to any employer in positions which her present physical limitation would permit her to fill. Her considerable experience and training would in my view be a great advantage to her in positions which Ms Trankalis described as consultative or educational in the context of training or instructing nurses. In Ms Trankalis’ opinion the plaintiff was capable at the time she last assessed the plaintiff of working for some 20 hours per week in the sort of tasks Ms Trankalis described, with the supports or work place arrangements identified by Ms Trankalis. Whilst it is by no means certain that the plaintiff will secure such a position or that there is a place for the plaintiff in the RAH, tailored to the plaintiff’s limitations, it is the case that so far the plaintiff has not pursued those possible opportunities for employment.
The matters I have mentioned in the previous paragraphs are those which go to indicate, in my view, that the plaintiff has not by reason of her physical limitation entirely lost her economic capacity.
Of course, if the plaintiff had not been injured in the collision she may have voluntarily ended her employment in the thoracic procedure suite and in that event obtained other work which would have permitted her to continue in the workforce beyond the age of 60 years, at a salary commensurate with or greater than that which a position in the thoracic suite paid.
Balancing the several adverse or advantaging contingencies and the other matters to which I have referred I assess the plaintiff’s future economic impairment in the sum of $150,000.
This brings me to the claim for the loss of future employer superannuation contributions. The plaintiff’s claim for the present value of future employer superannuation contributions is $38,321, based upon Mr Watson’s certificate and that the plaintiff would have worked to the age of 65 years. Having regard to my assessment of the plaintiff’s future economic impairment, I assess this head of loss in the sum of $18,000.
The plaintiff’s evidence that prior to the collision she devoted about 15‑20 hours per week to household and domestic tasks was not challenged by the defendant. Mr Chajka’s contribution to activities of that kind was estimated by the plaintiff to be about 2 hours per week; Mr Chajka’s memory is that he did very little. It is likely the plaintiff’s estimate of Mr Chajka’s involvement is the more accurate. There is no reason to doubt the plaintiff’s estimates, but I bear in mind that they are only estimates.
The plaintiff said that during the first 12 months (approximately) after the collision, to the time she experienced the “popping” sensation in her shoulder area, she was able to do very little of the household and domestic tasks, and Mr Chajka spent more than 10 hours per week on those activities; after that period of 12 months, the plaintiff’s contribution increased to 5 to 6 hours per week and Mr Chajka’s reduced to about 5 hours per week. In Mr Chajka’s case estimates of time included going to purchase take‑away meals for both himself and the plaintiff.
Where a plaintiff has shown a need for the provision of gratuitous services because of a personal injury, the plaintiff is entitled to damages assessed by reference to the market cost of providing the services: Van Gervan v Fenton (1992) 175 CLR 327: Garland v Clifford (1996) 67 SASR 47. However, only services provided by a parent, spouse or child can be the subject of such an award and then only to an amount not exceeding four times the State average weekly earnings, unless the Court is satisfied the rendering of such services has saved, or will save, the plaintiff the cost of engaging some other person to provide the service in which case the damages awarded “must not reflect a rate of remuneration for the person providing the service in excess of State average weekly earning”; s35A(1)(g) and (h) and ss(2) of the former Wrongs Act as it applied at the date of the collision.
Where the services, or part of the services, were provided by a plaintiff’s spouse before the tort as part of the ordinary domestic relationship between them, no allowance is made by way of a reduction to reflect that fact if the services are performed to meet the needs of the injured spouse caused by the tort. Van Gervan v Fenton; Garland v Clifford.
If the voluntary services are not provided to meet the specific needs of the plaintiff caused by the injury, but are rather a re‑arrangement of household chores so that the provider performs a greater share because of the disabilities from which the plaintiff suffers, no award can be made; the provider is not performing services for the plaintiff
“..... (the provider is) merely performing a share of the work which is necessary in any household to enable it to run. That work is done by (the provider) for the joint benefit of the whole of the family including (the provider).” Vail v Formato (SASC) (1989) 10 MVR 12 at 17 per King CJ.
Ms Trankalis compiled, and listed in her report, dated November 2003, a number of recommendations for the modification of, or provision of, furniture, fittings and appliances in the plaintiff’s house and the provision of services, which she considered the plaintiff required having regard to the plaintiff’s limitations as Ms Trankalis assessed them. The cost of a group of some (purpose built bedroom storage, purpose built corner desk, modifications to the kitchen and laundry) depended on quotations being obtained and they were not before the Court. The estimated cost of other items is stated (totalling $4,733.00) together with the expected life of each of them before replacement would be necessary. Services for cleaning, laundering and household maintenance totalling 10 hours per week at a cost of $75.00 per week and the preparation of a meal five times per week (at $22.00 per hour) are listed, together with $88.00 per week for four hours for “assistance with identification and participation in social and recreational activities” which Ms Trankalis considered necessary for six months, the object of which would be to advise the plaintiff about and introduce her to available alternatives for activities judged to be within her capacities. Lawn mowing, gardening, rubbish removal and gutter cleaning services are also included in the list, but as to those, in my opinion, there is no evidence at all to justify them - historically they had never been done, or they had been done by Mr Chajka or the service was routinely purchased before the collision.
Aside from Mr Chajka’s approximately three hours per week now devoted to household tasks (in addition to about two hours per week taken up in going to purchase pre‑prepared meals) and the engagement of a cleaning service every two or three months, it would appear that the bulk of the household tasks have been performed, since about May 2001, by the plaintiff, although, as I have noted earlier, the plaintiff says the house is not as tidy as it used to be before the collision. That being the case, the plaintiffs have accomplished between them all the tasks which before the collision used to occupy both of them, on the plaintiff’s evidence 17 to 22 hours per week, two hours of which were contributed by Mr Chajka. I assume the plaintiff’s contribution, before the collision, included preparation for the main meal each day, but how many hours that took each week was not stated.
I accept that for the first 12 months after the collision, the plaintiff, by reason of her injury, was not able to perform household and domestic chores to any significant extent and that Mr Chajka provided those types of services, he devoting about 10 hours per week to them which I find were reasonably needed by the plaintiff. The judgment of the majority in Van Gervan v Fenton makes it clear that there is to be no allowance by way of a deduction from such gratuitous services to reflect the services which were provided before the collision and would likely have been provided even if the plaintiff had not suffered injury (Garland v Clifford).
For the period from about May 2001 to trial, I find that Mr Chajka provided services to which he devoted about five hours per week.
The gratuitous services for both periods included time expended by Mr Chajka in obtaining take‑away meals. In my view such a task can properly be the subject of compensation to the extent the performance of it provided for the reasonable needs of the plaintiff as a consequence of her injury.
For the first period I conclude that the plaintiff was effectively precluded by her injuries from regular driving and from preparing meals each day. I therefore, find that the obtaining of take‑away meals was reasonable to meet the needs of the plaintiff. As to the second period, I do not accept that the plaintiff was unable to travel by car to obtain take-away meals on the occasions Mr Chajka performed that task; in my view, it was within the plaintiff’s physical capacity to do so and that Mr Chajka continue to undertake the chore was no more than an arrangement to meet his work commitments.
To what extent, if any, does the principle to be derived from Vail v Formato impact upon a claim for damages for the provision of gratuitous services? In my view, the majority in Van Gervan v Fenton rejected (at pages 335-337) the previous interpretation of Griffiths v Kerkmeyer (1997) 139 CLR 161 which denied recovery where the services provided were to be seen as ordinary incidents of family life to be met by a re-arrangement of chores. In any event, I consider that the services provided to the plaintiff by Mr Chajka have been more substantial than “a mere re-arrangement of domestic chores”, the phrase used by Kirby J in Hodges v Frost (1984) 53 ALR 373 at 380. The balance of about three hours of services provided by Mr Chajka in the second period was I find, necessary to meet the plaintiff’s reasonable needs by reason of her injury.
From exhibit P48 the commercial rate for services of the kind provided by Mr Chajka, assuming the provision of a commercial service was on a weekday, was:
·in the first period $12.00 per hour;
·in the second period $13.00 per hour rising to $14.00 per hour from June 2003;
·plus in each case an agency service fee of $16.50 per visit Monday to Wednesday and $22.00 per visit Thursday to Friday.
The organisation which provided Ex: P48 (Dial an Angel) charges a minimum of three hours per visit. For past gratuitous services provided, I assess the Plaintiff’s damages:
(a)     for the first period and assuming three “visits” per week
$12.00 x 10 hours x 52 =   $   6,240.00
$16.50 x 3 x 52 weeks =   $ 2,574.00
sub total  $   8,814.00
(b)    for the second period and assuming one “visit” per week
$13.00 x 3 hours x 104 =  $   4,056.00
$14.00 x 3 hours x 28 =  $   1,176.00
plus $16.50 x 132 =   $   2,178.00
Total   $ 16,224.00
To this should be added the engagement of a cleaning services once every two or three months. Between 6 June 2000 and the date of trial, the service (Dial an Angel) attended on 17 occasions for up to three hours each time; that is equal to about 0.28 hours per week. The plaintiffs claim on that account is in Ex. P14 “Special Damages”.
As to future assistance for the needs of the plaintiff I refer to what I said earlier in these reasons concerning the plaintiff’s likely improvement in the future. I do not accept that the plaintiff will reasonably need in the future services to the extent of those identified by Ms Trankalis, which total 10 hours per week plus the time involved in preparing five meals per week. They have not been provided, to that extent, in the period of more than three years before trial and to the extent they have not been provided, the plaintiff must have accomplished them.
I am not satisfied that the plaintiff’s disabilities, consisting substantially as I have found of impairment in the use of the right arm when elevated above shoulder height and lifting weights with the right arm, when the arm is extended away from the body, result in the plaintiff reasonably needing all of the services identified by Ms Trankalis. In particular, I reject as being reasonably necessary the services of a facilitator, for even six months, in relation to social or recreational activities.
In my opinion, and I find, three hours per week plus the time taken up every two or three months by the cleaning service engaged by the plaintiff is the highest possible need justified by the evidence. Assuming the cleaning service were occupied for three hours every three months, the total would be 168 hours per year. The present value at 5% of $1.00 per week for life to a female aged 51 years is $817.00 (exhibit P46). Adopting a simple approach of 168 hours at $14.00 per hour, with an average of 1.077 visits per week (at $16.50 per visit) produces $3,276.06 per annum, or $63.00 (approximately per week). That weekly figure multiplied by $817.00 produces $51,471.00. I discount that to $30,000 for the favourable contingency that the plaintiff’s need for future services will reduce, and as she ages she would, in any event, have likely progressively required similar services.
The total of my assessment for past gratuitous services is $16,224.00. That exceeds four times the state average weekly earning ($896.80 per week x 4 = $3,587.20), but pursuant to s37(A)(2) I am satisfied that the gratuitous services provided in the past by Mr Chajka have been reasonably required by the plaintiff and saved the plaintiff the cost of engaging a person to provide those services. $896.80 per week equals, for a 37½ hour week, $23.91 per hour which is greater than the approximately $13.00 per hour for the first period and the approximately $18.00 per hour for the second period. I therefore, fix the sum of $16,224.00 for past gratuitous services.
As to both the past services and the future assistance, the defendant submitted that the plaintiff is not entitled to damages for an incapacity to provide services which she, but for the consequences of her injury, would have provided within the household that she and Mr Chajka maintained. For this submission the defendant cited Weinert v Schmidt (2002) 84 SASR at 307.
In Weinert v Schmidt the Trial Judge included, in his award for future services, damages for the plaintiff’s restricted ability to perform domestic services for and care for her young children and her husband. Perry J, with whom Williams J agreed, adhered to his decision in Kite v Malycha (1998) 71 SASR 321 that it is not appropriate to allow in favour of a plaintiff an award of damages to compensate for the plaintiff’s reduced ability to provide services to other members of the plaintiff’s family; a claim in respect of such an impairment may be brought by the plaintiff’s spouse; or in the case of children, by those children under Lord Campbell’s Act Legislation in the event of the plaintiff’s death by reason of the injury giving rise to the incapacity.
In the present case there is no claim by the plaintiff for loss of her home‑making capacities – her claim is specifically for her restricted ability to meet her needs, principally cleaning her home and laundering, drying and ironing clothes. I think that it can be safely assumed that Mr Chajka also benefited from the plaintiff’s former ability to carry out those tasks, but if, as I find the plaintiff has a reasonable need for assistance in those activities, in my opinion, the fact that Mr Chajka obtains some benefit from the provision of that assistance should neither disentitle the plaintiff from an appropriate award nor reduce it; Morgan & Ors v Gibson (NSW Court of Appeal, 6 June 1997 Unreported; BC 9702442).

Concerning the items of equipment listed on page 14 of Ms Trankalis’ November 2003 report, in my opinion the MPA trolley, steam iron, stable table, front loading washing machine, stand for washing machine and a stand for a clothes dryer have not been shown to be necessary to meet the specific needs of the Plaintiff; they would appear to be no more than the replacement, or acquisition, of ordinary household items. I am prepared to accept that by reason of her injury, and to assist her in fitting herself for an alternative occupation, the plaintiff reasonably needs an adjustable office chair, an executive adjustable slope-board, a document holder and typing tutorials. The need for a steering‑wheel spinner, electrically reclining lounge chair and a Ms Pegg’s clothes line have also been shown to be reasonably necessary. The wheel-spinner and the electrically reclining chair are both included in the plaintiff’s list of Special Damages; from Ex. P46 the present value of the cost of replacing those items, at the frequency stated in the exhibit is $2,128.00. From the same exhibit the cost of acquiring the other items and the cost of replacing them at the intervals stated in the exhibit is $2,715.00. The item “purpose built corner desk” which Ms Trankalis recommended for computer hardware and space for reading and writing tasks, was one for which a quotation would need to be obtained. No quotation for, or any other evidence about. the cost was presented to the Court; I decline to speculate. I also decline to speculate about the precise nature and cost of the modifications to rooms in the Plaintiff’s house listed at page 14 of Ms Trankalis’ report. It was for the plaintiff to bring forward evidence on those matters; the plaintiff having failed to do so, it is inappropriate for the Court to guess.
I assess this head of damages in the sum of $4,843.00.
Special Damages
These are listed in Ex P14; they are agreed as to quantum.
I find that the items, in the list, for the purchase of a steering‑wheel spinner and electrically reclining chair and the cost of obtaining the services of “Dial an Angel” should be allowed; the spinner permits the plaintiff to more easily drive a motor car, the chair avoids the troubling discomfort the plaintiff experiences when sleeping and the services of “Dial an Angel” were reasonably necessary. Those items total $3,663.50.
I turn to deal with the remainder of the items which can be grouped under several headings.
(a) Medical Practitioner Service
I see no reason to disallow the claim for services obtained from Dr Caldwell, Dr Jones & Partners, Dr Meegan, Professor Smith and Gribbles Pathology. There is a claim for consultation with a psychologist, Mr R Stratil, one in 2001 and two in 2003; no reports by him were before the Court but I infer the plaintiff was referred by Dr Caldwell for those consultations, one of which I adverted to earlier in these reasons. I will allow all these items. Insofar as Medicare payments were made on the plaintiff’s behalf, I include them; the defendant is obliged to repay them direct to Medicare (Lunz 4^th Edition at 4.4.4).
The total is $2,699.40.
There is a claim for taxi fares to attend medical appointments, appointments with Ms Trankalis and to attend courses at WEA. I allow them in full; the amount is $767.70.
(b) Chemist Expenses
These total $2,575.55 expended for the purchase of, among other preparations, panadeine forte ($1,101.25) and Tomazepam ($154.70) in the period 16 May 2000 to September 2003. The plaintiff was a regular user of those two drugs before the condition. I will deduct $600.00 on that account. I allow $1,975.55.
(c) Physiotherapy Services
(i) Between 29 May 2000 and 12 October 2000, there were 19 consultations with Adelaide Day/Night Physio. The last of them seems to have coincided with Dr Meegan’s conclusion that physiotherapy was of no benefit to the plaintiff. I will allow in full the amount claimed less the amount paid by the plaintiff’s health fund; there is no evidence that the plaintiff is obliged to refund those payments to the health fund: Sibley v Milutinovic (1990) Aust. Tort Reps 293. The amount allowed is $46.55.
(ii) Between 1 December 2000 and 23 October 2003 there were at least 207 visits to Physio One, more than half of which were for hydrotherapy, unsupervised hydrotherapy and unsupervised gymnasium. Until March 2001 the plaintiff’s health fund paid $1,250.55 towards the total cost of $6,018.00. Having regard to Dr Meegan’s opinion that from in about October 2000, physiotherapy was of no benefit to the plaintiff, but accepting that some of the activities prevented wasting of the plaintiff’s right arm, I will allow one third of the difference between $6,018.00 less $1,250.55 that is, $1,590.00.
There is a claim for mileage for these visits in the sum of $862.73. I will allow one third; the amount is $287.00.
(d) WEA
There is a claim for $607.00, fees paid for computer and keyboard skill courses undertaken in October and November 2003. I will allow those in full; the amount is $607.00.
Future Medical Expenses
The plaintiff submitted that a sum of approximately $10,000 be awarded to represent the present value of the future cost of medication (and I infer visits to a medical practitioner to obtain prescriptions therefor), Professor Smith’s ongoing investigation (including imaging) and Ms Trankalis’ view, at page 15 of her November 2003 report, that the plaintiff would benefit from physical exercise and activity (intermittently supervised by a physiotherapist) three times per week, the management of her weight, pain management, and the support of a psychologist. As to pain management and psychological services there is no evidence from a medical practitioner or a psychologist to support that view. As to activities intermittently supervised by a physiotherapist there is no evidence of a future need attested to by a physiotherapist or medical practitioner; in September and October 2003 the plaintiff attended, at a cost of $5.50 per visit, 10 unsupervised gymnasium or hydrotherapy sessions, the efficacy of which, and all similar sessions in preceding months, Professor Smith considered to be of no utility, as I understand his evidence. However those sessions have, I infer, contributed to the plaintiff avoiding wastage of her right arm.
In relation to further procedures by, or at the direction of Professor Smith, one of those has been refused by the plaintiff because of potential risk; the other concerns an investigation into the possible presence of a bursa, which if present Professor Smith considered unlikely to be a consequence of the collision. Medications on prescription in the past have included Panadeine Forte and Tomazepam, both of which the plaintiff frequently used before the collision.
I calculate from Exhibit P14 that for medical consultations with her general practitioner, physiotherapy consultations, prescription medicine and unsupervised hydrotherapy and gymnasium sessions, the plaintiff incurred approximately $34 per week in the months before trial. The sum of $10,000 represents the present value of a payment of $12.23 per week for life for a woman of the plaintiff’s age. I will allow a notional $10 per week, producing in the round $8,000.
Non Economic Loss
The plaintiff I find, was much debilitated by her injuries for the first 12 months following the collision. There was then a considerable improvement. She has been left with an ongoing restriction in her right arm, which as I have said, affects her ability to elevate and use her arm above shoulder height and to carry weight with the arm extended away from her body; There is painful discomfort in the area of her right scapula for the relief or control of which she has required in the past and will continue to require in the future, medication but likely at a reducing rate as she adapts to and comes to terms with her restrictions. I accept that her condition has had a substantial impact upon her sense of wellbeing and her marital relations and that those consequences, with her inability to continue her work in the Thoracic Suite and to fully pursue all of her previous activities, has made her despondent.
The plaintiff’s condition, or her perception or reaction to it, is likely to improve. It is also likely the plaintiff will seek out and obtain employment of a sedentary nature. In my view both of those factors will reduce the plaintiff’s emotional stress concerning her limitations.
On the scale of 0-60 I select 18. The multiplier is agreed to be $1,580. I award $28,440.
For the components of the award which attract interest, that is the past economic loss, past gratuitous services and paid special damages, I fix $17,100 as a lump sum in lieu of interest.
Summary
Economic Impairment
                 Past  $    93,493.00
                 Future  $ 150,000.00
        Superannuation Contributions
                 Past  $    14,000.00
                 Future  $    18,000.00
        Past Gratuitous Assistance  $    16,224.00
        Future Care and Assistance                   $    30,000.00
        Future Aids  $     4,843.00
        Future Medical and Medicine               $     8,000.00
        Special Damages
                 Past Aids/Assistance  $     3,663.50
                 Medical Expenses  $     2,699.40
                 Taxis  $        767.70
                 Chemist Expenses  $     1,975.55
                 Physiotherapist Expenses             $     1,636.53
                 Mileage  $        287.00
                 WEA Courses  $        607.00
        Non Economic Loss (scale 18)            $    28,440.00
        Interest  $    17,100.00
The total is $391,736.68.
I turn to the claim by Mr Chajka. The claim is pleaded in this way (Statement of Claim paragraph 8).
“8. As a result of her injuries, the plaintiff has been unable to provide to her husband, the second named plaintiff Michael Chajka, the society, companionship, assistance and services in the manner in which she was able to prior to her injuries. The second named plaintiff has suffered loss of consortium and claims damages”.
Consortium comprehends the performance of domestic duties, management of household affairs, the provision of support and assistance by and the companionship and society of the injured spouse. For the loss or diminution of those and the other conjugal incidents of the relationship (including sexual intercourse) the claimant spouse is entitled to damages; Toohey v Hollier (1955) 92 CLR 618 at 626-629; Bresatz v Przibilla (1962) 108 CLR 541. But the award is to be confined to the material and practical consequences of the loss or diminution (Andrewartha v Andrewartha (1987) 44 SASR 1; Lobb v Ellis (1989) 153 LSJS 235) and the award should be “moderate as between the parties”; Meadows v Maloney (1973) 4 SASR 567.
I accept the evidence of the plaintiffs as to the cessation of sexual intercourse between them following the collision. Whether that state of things will continue was not the subject of any direct evidence, but consistent with my view that the plaintiff will adapt to her restrictions and there will be improvement, I do not think the past is a sure guide to the future.
For similar reasons, that is the plaintiff’s likely future improvement, the impact upon Mr Chajka in the past of the plaintiff’s reduced ability to provide her society and companionship to the extent she did before the collision will likely be significantly ameliorated and there will be a resumption of, if not to the full extent then in the quality of, those matters which make up consortium, particularly if the plaintiff returns to the workforce in some capacity.
I assess Mr Chajka’s damages in the sum of $6,000.
There will be judgment against the defendant:
·for the plaintiff Mrs Chajka in the sum of $391,736.68
·for the plaintiff Mr Chajka in the sum of $6,000
I will hear the parties on the question of costs.