Chaplin v SCHIPPERS
[2005] WADC 12
•1 FEBRUARY 2005
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: CHAPLIN -v- SCHIPPERS [2005] WADC 12
CORAM: COMMISSIONER GREAVES
HEARD: 3, 16-18 & 20 AUGUST 2004
DELIVERED : 1 FEBRUARY 2005
FILE NO/S: CIV 157 of 2003
BETWEEN: MICHELLE LOUISE CHAPLIN
Plaintiff
AND
ANTON CHRISTIAN SCHIPPERS
Defendant
Catchwords:
Damages - Assessment - Motor vehicle accident - Liability admitted - Causation - Whether collision caused soft tissue injury to plaintiff's back, neck and right knee, resulting in clinical depression - Whether plaintiff's preexisting condition caused or substantially contributed to soft tissue injuries - Extent to which plaintiff's earning capacity as clerical assistant and beautician reduced - Credibility of plaintiff's evidence - Assessment in accordance with reasons
Legislation:
Nil
Result:
Judgment for the plaintiff in the sum of $310,352.47
Representation:
Counsel:
Plaintiff: Mr H O Moser
Defendant: Mr M A McAuliffe
Solicitors:
Plaintiff: Tan & Tan
Defendant: Dibbs Barker Gosling
Case(s) referred to in judgment(s):
Bowen v Tutte (1990) A Tort Rep 81-043
Jongen v CSR Ltd (1992) A Tort Rep 81‑192
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
Shorey v PT Ltd (2003) 77 ALJR 1104
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588
Case(s) also cited:
Nil
COMMISSIONER GREAVES: On 6 September 1999, the plaintiff was driving in a northerly direction on Malaga Drive. She approached the intersection of Malaga Drive and Beach Road intending to turn left and proceed in a westerly direction. At that time the defendant was driving a Ford Falcon motor vehicle fitted with a roo bar and towing a trailer. The defendant was following directly behind the plaintiff along Malaga Drive. When the plaintiff was nearly stationary at the intersection, she noticed the defendant in her rear vision mirror approaching at a speed of approximately 80 kilometres an hour and not appearing to slow down or attempt to stop. The plaintiff applied her brakes in a forceful manner so as not to collide into the car in front of her in case of an accident. The defendant's vehicle collided into her vehicle pushing the plaintiff's vehicle into the car in front of her. The plaintiff's vehicle was then shunted sideways so that it ended up half on the kerb and half on the road with the vehicle facing in a westerly direction. The impact of the collision was such that it was necessary for the plaintiff to be cut free from the vehicle.
While liability is admitted several issues arise on the pleadings and the evidence in relation to the plaintiff's claim for damages. The plaintiff alleges, in short, that she suffered soft tissue injuries to her back, neck and right knee. She alleges that the symptoms of those injuries persist. She alleges that as a result she has developed clinical depression. She alleges that her injuries have reduced her earning capacity as a secretary and beautician.
The defendant does not admit the plaintiff sustained injury or loss as a result of the accident. The defendant alleges that if the plaintiff sustained injury or loss, it was caused or substantially contributed to by injuries suffered by the plaintiff in a motor vehicle accident occurring on or about 10 March 1987, a pre‑existing condition of her right knee, pre‑existing asthma, a congenital defect of her lumbar spine at the L5/6 level, pre‑existing neck, back and hip pain, the plaintiff's morbid obesity and poor level of fitness, and a fractured toe suffered by the plaintiff while overseas in or about 2001.
The first issue that arises is whether the collision was a cause of the plaintiff's injuries? The onus remains on the plaintiff throughout to establish that her injuries were caused by the accident. The onus on the plaintiff is to show on the balance of probabilities that the accident was "a" cause of the condition for which she claims damages: Shorey v PT Ltd (2003) 77 ALJR 1104 at 1110 per Kirby J, and the authorities there cited. Whether the collision was a cause of the alleged injuries is a question of fact to be determined on the medical evidence applied to the facts proved by the plaintiff.
The second issue requiring determination is the pre‑existing condition of the plaintiff's back, neck and right knee, her pre‑existing obesity, and the level of her pre‑existing depression, if any. The third issue is whether any such pre‑existing condition has contributed to the plaintiff's injuries and continuing symptoms. A fourth issue arises whether any such pre‑existing condition would have caused similar symptoms absent the accident.
Finally, the credibility of the plaintiff's evidence is in issue in relation to each of the above questions and in relation to her pre‑accident earning capacity and whether any accident caused injuries have resulted in a loss of earning capacity.
That credibility is to be determined on the evidence in accordance with the approach explained by Kirby J in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588 at [89] to [93].
I propose to approach the consideration of these issues by first referring to the plaintiff's own evidence and that of Dr Brockhoff and Mr Slinger in support of her case, in order to explain the nature and extent of the alleged injuries and the manner in which they are alleged to have affected and continue to affect the plaintiff. I shall then turn to analyse the credibility of the plaintiff's evidence in relation to the facts relevant to the issues I have identified, by reference to certain of her evidence, the medical evidence for the plaintiff and defendant and the plaintiff's husband's evidence. I shall make findings in relation to the credibility of the plaintiff's evidence relevant to her pre‑existing condition and the alleged injuries.
Thereafter, I shall consider the evidence for the plaintiff and the defendant relevant to the issue whether the collision was a cause of the plaintiff's alleged injuries and symptoms. I shall determine the plaintiff's pre‑existing condition and whether it caused or contributed to her injuries and symptoms. In this context, I shall determine the submission made on behalf of the defendant that the plaintiff failed to call critical witnesses in relation to this issue. I shall also determine whether her pre‑existing condition would have caused similar conditions absent the accident. I shall determine the likely prognosis of the plaintiff's injuries on the evidence.
I shall then turn to consider the plaintiff's pre‑accident capacity for employment and the likely duration thereof prior to the alleged injuries, and the extent to which those injuries will or may be likely to truncate or compromise that capacity. Finally, I shall assess the damages to which the plaintiff may be entitled in accordance with these findings.
The plaintiff describes the double impact at T53‑54. The plaintiff was conveyed to Sir Charles Gairdner Hospital where x‑rays were taken but she was not admitted. At T56, the plaintiff describes how she was then feeling:
"Really sore, aching. My chest was aching, my head was aching, my arm, my back, my leg, my ankle was throbbing. I don't know how, but I came out of it without a scratch."
The following day, the plaintiff consulted her general practitioner, Dr Peter Brockhoff. She describes her condition then at T57:
"My arm here, I had a – my arm actually apparently bent and I had a big haematoma they called it – a big bruise that came out like a balloon my arm which I have still got some damage under here, you can feel the bubbles under the skin. My hand was all sore and bruised where it has been squashed I believe. My back, I had bruising all down my face, down my head, all down my chest, the wheel mark on my chest as well as the seat belt and a very nasty bruise across my stomach. My legs were aching, my knee was – things just are sore."
Dr Brockhoff referred the plaintiff to a physiotherapist. He also referred her to a psychologist, Mr Tony Grinieri, because the plaintiff was not "coping with sleeping". She continued to see Mr Grinieri for about a year and a half. The plaintiff also saw Dr Foot and Dr Wu at the Ord Street Clinic for manipulation. In October 2003, the plaintiff first saw the clinical psychologist Mr Nigel Jones.
At T65, the plaintiff gave evidence that after the accident she experienced headaches nearly all the time and that they desisted for a while and now seem to be coming back. They occur now once or twice a week. The plaintiff did not experience headaches prior to the accident. She takes medication for the headaches and may lie down. She described her present symptoms as sore behind her right shoulder blade. She said her back was very sore under the shoulder blade going down to her waist. She said she had pins and needles in her hands and legs. She said (T66) sometimes her shoulders "lock up". She explained: "You go to do something and every now and then … it just stops but sometimes it's fine."
The plaintiff said she has a lot of trouble with her back which she described as follows (T66):
"Continual throbbing on the right side from under the shoulder blade down under my bra strap down to my waist. It seems to go across – like, down and then across and then around – and quite often I get it through here or my hip.
… And my hip locks up, my knee locks up, and my foot locks up."
The plaintiff went on to say she experiences throbbing in her right arm where the haematoma was which she said sometimes feels "quite hot and burning". She said that sometimes she loses the grip in her right hand. She described herself as right‑handed. At T67, the plaintiff described the soreness in her right hip as a "jutting sharp pain". She described the symptoms in her right leg as follows (T67):
"The tenderness all down the side; the right knee. I have a lot of trouble kneeling. I try not to kneel at all. Getting up, putting any pressure on that knee is excruciating. The knee clicks a lot. I'm not sure if I said that. My knee gives way. I'll just be walking or doing something and it will just give way on me without warning, and my ankle gives way as well."
At T70, the plaintiff stated that she received no treatment for depression prior to the accident. She said she was having problems with her weight and Dr Brockhoff prescribed Prozac.
In his report of 17 December 1999 to ICWA, Dr Brockhoff records that the plaintiff was taken to Sir Charles Gairdner Hospital for assessment where she was found to have the following injuries: back and neck pain, bruising to right forearm, bruising to right knee, bruising to right shoulder and anterior chest wall, and lower abdominal pain. He continues:
"She attended me for the initial consultation on 09.09.1999. Examination at that time showed stiff and painful neck movement in all directions and tenderness over the trapezius and upper back. Her neck movements were reduced by 50%. Examination of the lumbar spine also revealed markedly reduced movements due to pain as well as tenderness over the spinous processes. There was also marked tenderness and bruising over the exterior surface of the right forearm and tenderness on the anterior aspect of the right shoulder.
Mrs Chaplin was seen again on 13.09.1999 complaining of lower abdominal pain which was now worse than previously and aggravated by walking. She also stated that the right shoulder and mid back pain was getting worse. Examination revealed lower abdominal tenderness and pelvic tenderness. Because of her body habitus it was difficult to assess her intra‑abdominal organs but there was no suggestion of an acute condition.
Mrs Chaplin further attended on 25.09.99, 13.10.99, 15.11.99 and 01.12.99. At the latter visit, there was residual soreness across her back, pain in her right knee with reports of occasional locking while walking and persisting back pain. The problems in her right shoulder had largely settled and the bruising of the right forearm was nearly resolved.
Examination at this visit revealed superficial tenderness of the thoraco‑lumbar spine with a good range of movement. Flexion was to mid‑shin but extension and straightening was painful. Lateral flexion was about 50% or normal due to pain and rotation was also limited by pain.
Neck movements had improved considerably with 60 degrees of rotation to the left and 80 degrees to the right. Mrs Chaplin continues to attend physiotherapy and hydrotherapy and an exercise programme has been arranged for her. She has achieved good results and this programme should continue."
In his report of 24 July 2000, Dr Brockhoff records that the plaintiff continued to have problems with the right knee which was painful particularly when she climbed stairs and when she was getting in and out of buses and cars. He records that she told him that the right knee gave way a couple of times whilst stepping down from a bus on a recent holiday. He records her complaint that her neck and back pain had also increased with jabbing right‑sided back pain radiating to the right buttock. At p 3 of his report, Dr Brockhoff observes:
"Xrays performed on 25.01.2000 of her cervical spine, dorsal spine, lumbosacral spine and right knee show evidence of degenerative disease at all levels as well as a congenital abnormalities of the lower lumbar vertebral with a transitional vertebral at the lumbo‑sacral junction and sacralisation of L6. These degenerative changes will contribute to the ongoing nature of her pain and disability. …
Mention has been made by Mr J M Saunders, and indeed he has emphasized this several times, of the contributing effect of Mrs Chaplin's obesity on the rate of recovery. I believe Mrs Chaplin is addressing this problem which should help with her ultimate recovery."
In his report of 18 November 2002, Dr Brockhoff states that note was made on 10 July 1996 of an accident in 1987 which resulted in a back injury but there was no specific consultation concerning any back pain problem. Between 31 January 1994 and 9 September 1999 there were 33 consultations with Mrs Chaplin and none related specifically to a back, neck or hip problem.
In his further undated report that appears to have been generated in August 2004 (exhibit 11), Dr Brockhoff records the history of the plaintiff's obesity:
"Further to our conversation on 13/08/2004 I have examined my notes to find references to weight loss programmes. Michelle has had a long battle with her weight which came to a head in June 1998. She came to see me on 04 June 1998 in a tearful state about her inability to lose weight. She was in a significantly depressed mood about her repeated failures to lose weight. We decided to try the Modifast (a food replacement regime) program. Also I note also that she sought help from Roger Lavell, clinical psychologist, who attempted hypnosis focussing on an appropriate eating and exercise regime in February and May 1998.
On 4 September 1998, I note that she was seeing Dr Esther Tham and had undertaken a nutritional program and had in fact lost 4 kilograms.
Michelle presented again on 2 September 1999 in a further depressed mood because of her continuing failure to lose a significant amount of weight. We discussed the use of antidepressant medication in the context of improving her mood and motivation as well as the recognised side‑effect of weight loss associated with the use of certain anti‑depressant medication. Accordingly I started her on fluoxitine (Prozac). The accident intervened before any beneficial effect could be noted.
Since that time I note that in May 2000, she restarted the Modifast program, losing 4 kilograms in the first 2 weeks. Her weight loss attempts have been sporadic since then, limited by her inability to exercise as a result of her ongoing chronic back pain. On 8 February 2001 I noted a further loss of 2 kilograms to 102.5 kilograms (down from an initial weight of 112‑113kg). On 20 September 2002 her weight had again increased to 108 kg. We discussed the use of Reductil, a new weight loss drug. She could not take this in conjunction with her anti‑depressants so these were reduced and finally ceased in October 2002 before commencing the Reductil.
That is where it was left.
Her depressed mood was due to her inability to lose weight, not to a true endogenous depression at that time."
Dr Brockhoff gave evidence before me at T229 about the x‑ray report exhibit 12 dated 10 July 1996. He said the plaintiff told him she had had an accident in 1987 which resulted in some back pain and for which she had had several treatments. He said the plaintiff had no concerns about her back on 10 July 1996 but she had some concern about exhibit 12 which demonstrated some congenital abnormalities. He said a further x‑ray was taken that demonstrated "a transitional vertebrae and some developmental narrowing and some congenital changes in her lumbar spine". He said no action was taken and no treatment was required: "This is something which she just has."
Dr Brockhoff was also asked to comment on the circumstances in which he came to prescribe Prozac for the plaintiff on 2 September 1999. He said the plaintiff had "a depressed mood because of her inability to lose weight". He said she was not clinically depressed.
In cross‑examination Dr Brockhoff said he had no details of the 1987 accident at all. He said on 10 July 1996 the plaintiff was more concerned about the thought of a congenital abnormality in her spine. The plaintiff told him that she had back pain from the 1987 accident at the time of the accident for which she had treatment. He said he had no entries in his notes relating to back pain from the first time he saw her in October 1991 until his note of 10 July 1996 and then 9 September 1999. On 10 July 1996, Dr Brockhoff recorded that the plaintiff expressed no concern about back pain then. He said the plaintiff has not mentioned postural back pain to him. Counsel for the defendant referred Dr Brockhoff to the undated report (exhibit 11). He expressed the opinion that on 2 September 1999 the plaintiff's depressed mood was such that it warranted intervention with medication. He agreed that it seemed to be the case that the plaintiff was not coping with her weight and the pressure she was under at that time from her husband to work with him.
Dr Brockhoff was asked about a note of 15 July 1997 to the following effect:
"A painful clicking right knee for 5 to 6 years after falling when stepping out of an elevator which was stopped high over the floor."
Dr Brockhoff was also referred to his note of July 1996 to the following effect (T234):
"On 30 July 96, she slipped on water in a shopping centre today, delivering flowers. Works for her brother‑in‑law who is a wholesale florist. Bruising and abrasions in the right knee, pain lateral flexion and the assessment was jarring and bruising with some muscle strain."
In July 1996, no radiological examination was undertaken. In July 1997 the plaintiff did not mention the shopping centre incident. She was a little tender in the medial joint line but there was no instability, no swelling, no fusion. The plaintiff said her knee ached and she had some pain going up and down stairs. No treatment or medication was prescribed. Between July 1997 and September 1999 Dr Brockhoff said he had no entries relating to the plaintiff's knee.
The spinal surgeon, Mr Barrie Slinger, first saw the plaintiff on 17 July 2001 and in his report of 1 October 2001 (exhibit 9) expressed the following diagnosis at p 5:
"This lady sustained soft tissue injuries in the motor vehicle accident of 1999. I am not aware of any other factors, which have contributed to her symptoms, and her presentation is quite consistent with those injuries.
…
The nature and extent of [the plaintiff's] injury is that of soft tissue injuries to the spine as a whole and to the right knee. The remainder of the symptoms in the upper and lower limbs presumably relate to the soft tissue injuries in the cervical and lumbar spine respectively."
Mr Slinger expressed the opinion that the plaintiff was capable of undertaking part time employment in her previous accounting position by modifying her work station and avoiding remaining in any one position for any length of time. He considered her disability to be permanent. Mr Slinger reviewed the plaintiff on 27 July 2004 and reported to her solicitors on 28 July 2004 in exhibit 9 where he maintains his diagnosis of the plaintiff's injuries. He records a history consistent with the evidence of the plaintiff. He records the results of his examination of the plaintiff at p 3 of his report as follows:
"In examination she presented as a lady, a little overweight, who gave her history clearly, presented in an entirely appropriate fashion, moving on and off the couch with some discomfort and there were no inconsistencies.
In the proximal spine tenderness was noted in the posterior mid line, movements were restricted with lateral flexion to two thirds and the remainder of movements to half the expected range with what was said to be 'cracking' or 'crepitus' throughout the range.
In the upper limbs there was no evidence of any neurological deficit. At the shoulders there was no wasting, no tenderness and movements were full in flexion abduction whilst internal rotation adduction at the right shoulder was limited to half the expected range and at the left shoulder lacking a few degrees.
In the remainder of the spine tenderness was most marked in the thoracic segments, to a lesser extent in the lumbar segments, with movements forward bending fingers reaching to the upper third of the tibia. The remainder of movements were limited to half the expected range, whilst rotation was somewhat less restricted. Straight leg‑raising was not limited and there was no neurological deficit in either lower limb.
At the right knee there was no wasting, no tenderness and movements were full and painless."
In evidence before me, counsel for the plaintiff asked Mr Slinger at T163 whether the plaintiff complained about pain in the neck and a feeling of dizziness other than on looking down or turning to the left, which he refers to in his reports of 20 January 2004 and 28 July 2004. Mr Slinger confirmed his record of the plaintiff's history as she gave it to him and said that if the plaintiff had complained of dizziness with respect to other movements he would have recorded it. Mr Slinger also expressed the opinion that the plaintiff's improved symptoms about the knee were probably due to the fact that she had reduced her weight at the time. Mr Slinger expressed the opinion in relation to his examination of the plaintiff that there was very little, if any difference between his observation on 27 July 2004 and his two previous examinations of the plaintiff (T164).
The clinical psychologist, Dr Nigel Jones, gave evidence on behalf of the plaintiff. His report dated 5 February 2004 became exhibit 7. He formed the opinion that the plaintiff suffers from symptoms consistent with major depression. At T72, Dr Jones said he made this assessment in accordance with the DSM-IV criteria by comparing her behaviour and her symptoms to that which you would probably find within a normal population. He expresses the opinion at p 2C of the report that the plaintiff's condition is caused primarily through her chronic pain and her inability to perform her previous occupation. In cross‑examination at T77, Dr Jones accepted for the purposes of his treatment he assumed that the plaintiff's chronic pain arises from injuries sustained in the motor vehicle accident. Dr Jones said he had no information about back pain or knee pain that the plaintiff may have suffered prior to the motor vehicle accident (T77). He expressed the opinion (T80) that the death of the plaintiff's father had no bearing on the diagnosis of depression. He said (T80) the depression has been caused by the loss of functionality in the plaintiff. He said he had spoken to Dr Brockhoff about the plaintiff but Dr Brockhoff did not use the words "significantly depressed mood" to describe the plaintiff's condition on 2 September 1999. Dr Jones said that Dr Brockhoff told him that in his opinion the plaintiff did not meet the diagnostic criteria for depression at that time.
Counsel for the defendant asked Dr Jones about his opinion at p 4 of the report that the plaintiff's depression is not inhibiting her from work. He agreed that it is the chronic pain that inhibits her from work and not the depression. He observed (T83) there have been periods of the depression when it has been severe enough that the plaintiff has been bedridden in which circumstances she obviously could not go back to work. Otherwise, he agreed that the plaintiff was capable of work notwithstanding her depression.
Counsel for the defendant cross‑examined the plaintiff about her symptoms at T117 et seq. She said she sometimes experiences difficulty with her neck and continued (T117):
"It depends if I've been sitting for a while, keeping my head the same for a while, if I turn my quickly to the right it clicks and I get like a dizziness, and sometimes it's like a semi‑blacking out. I sort of just lose my balance."
The plaintiff described this sensation as "aching, pulling" from behind the right ear down the right‑hand side of her neck across the top of her right shoulder. She said she can turn her head about halfway to the right without her neck pulling and hurting. She said she is not restricted in moving her head to the left. She said if she puts her head right back she experiences a clicking and it sometimes locks on her. She said (T120) that since the accident, she has experienced different levels of discomfort in her neck on different days. On a good day she believes she has a greater range of movement in her neck. On a bad day, she can hardly move her head around, to the right and the left, more up than down. She agreed the right‑hand side causes more pain than the left, particularly when she moves her head to the right.
Counsel for the defendant cross‑examined the plaintiff about the evidence of Mr Slinger that she told him that she experiences neck symptoms if turning quickly or moving into certain positions such as looking down or turning to the left. She immediately corrected left to right but repeated that sometimes it does go to the left. She continued (T125):
"He asked about both sides and, as I said to you, I have it more to the right; only very slightly to the left."
The plaintiff said that she sensed discomfort in her back "about immediately" after the motor vehicle accident. Her whole body was aching and throbbing (T126). The pain became more specific on the right side to the spine from the waist to the shoulder blade, where she experiences pain nearly all the time, sometimes it's a throbbing, a continual ache. She said (T127) this pain has improved slightly since the accident. Anti‑inflammatory medication relieves the pain.
The plaintiff said she experiences symptoms in her right arm "quite often". She said (T128) she experiences general numbness, tingling in her fingers and a throbbing where the haematoma was on her arm. She has difficulty using her right hand. The level of strength in her right hand varies.
The plaintiff was cross‑examined about abdominal pain (T130). She said this occurred at the time of the accident and eased probably within a few months after the accident once the bruising seemed to subside. She experiences no abdominal discomfort from the accident now. The bruising causes no discomfort now.
Dr John Saunders and Dr John Rosenthal gave expert evidence for the defendant to which I shall shortly refer.
The credibility of the plaintiff's evidence
The credibility of the plaintiff in this case is in question in relation to the pre‑existing condition of her back, neck and right knee, whether the plaintiff suffered from pre‑existing depression and if so, to what extent, and whether the plaintiff, contrary to her evidence, has substantially recovered from the soft tissue injuries sustained on 6 September 1999. The credibility of the plaintiff is also in issue in relation to her evidence about her pre‑accident employment and the number of hours worked.
Counsel for the defendant referred the plaintiff to exhibit 10 and her tax returns for the years ended 30 June 1998 and 1999. At T104 – 105, counsel put to the plaintiff that in each return the plaintiff had failed to disclose income derived from her business as a beautician. He suggested to the plaintiff that her evidence of that income was a fabrication or that the plaintiff had engaged in tax evasion. The plaintiff denied both suggestions and said that her husband or the accountants could explain the non‑disclosure. The plaintiff's husband, Mr Neil Chaplin, gave evidence subsequently but was not asked nor cross‑examined about the matter.
In answer to counsel for the defendant, the plaintiff acknowledged that she sustained "a very mild" whiplash injury in a motor vehicle accident on 9 March 1987. She accepted that the injury was sufficient to make a claim and receive compensation in the sum of $15,000 (T106). Counsel also asked the plaintiff about "a knee problem prior to the motor vehicle accident". The plaintiff said she was not exactly sure when she slipped and fell on her knees. She said she consulted Dr Brockhoff. She said he did not prescribe treatment "because it just seemed to be bruising that came out anyway" (T107). The plaintiff denied that she continued to have some discomfort with the right knee, in particular prior to 6 September 1999. The plaintiff said: "It wasn't an ongoing problem." Although she admitted she had had a problem with her right knee she said it did not cause restriction of movement from time to time or cause her difficulty in bending, squatting, standing or climbing stairs. She described the knee problem as "very minor" (T107).
The evidence of Dr Brockhoff at T234 was that in July 1997 he had made a note that the plaintiff had a painful clicking right knee for five to six years after falling when stepping out of an elevator. He said the plaintiff was a little tender in the medial joint line but there was no instability, no swelling, no fusion. The plaintiff complained of some pain going up and down stairs. He prescribed no medication. He had no note in relation to the plaintiff's right knee between July 1997 and September 1999. In my opinion, analysis of this evidence can only be equivocal in assessing credibility. It may be open to conclude that the plaintiff in her evidence understated her right knee symptoms over a number of years. It is equally open to conclude that the symptoms were such that the plaintiff did not seek medical advice until July 1996 and did not refer to the painful clicking right knee until July 1997, and were such that she had no occasion to mention the right knee again before 6 September 1999.
At T108 – 116, counsel for the defendant cross‑examined the plaintiff about her weight, her back and her depression prior to 6 September 1999. The plaintiff said she has had a weight problem since her early 20's. She said she is an asthmatic and her medication contributes to her weight because it contains steroids. She spoke about a number of attempts to reduce weight and said that Dr Brockhoff had encouraged those attempts since she first saw him in the early 1990's. She acknowledged that she saw Dr Brockhoff on 4 June 1998 in a tearful state about her inability to lose weight. She said she did not agree that she was "in a significantly depressed mood about her repeated failures to lose weight". The plaintiff said she was "frustrated" (T109). The plaintiff acknowledged she saw Dr Brockhoff again on 2 September 1999. She said she did not remember discussing her mood and motivation with Dr Brockhoff but she knew she was having problems with weight loss (T110).
Counsel for the defendant cross‑examined the plaintiff at T112 about the circumstances in which she consulted Dr Brockhoff on 10 July 1996. The plaintiff said she "rarely" had discomfort with her back prior to the motor vehicle accident. She could not describe the discomfort. She said she did not recall that far back. She said she had "a slight neck problem". She said she did not recall going to see Dr Brockhoff on 10 July 1996. She said she did not recall an x‑ray taken of her back in July 1996. Counsel referred the plaintiff to exhibit 8 and her answers to interrogatories. At T114, the plaintiff said she did not disclose her visit to Dr Brockhoff on 10 July 1996 and the x‑ray of her back because she did not recall it. In answer to question 6 in exhibit 8, the plaintiff said she suffered from depression once and that three days prior to the accident she was diagnosed with depression. In cross‑examination (T115) the plaintiff said she did not now believe she was suffering from depression then. Counsel asked her why she answered question 6 to that effect and she replied: "Maybe that's what I thought it was. I don't know."
The evidence of Dr Brockhoff (T229) was that the plaintiff came to see him on 2 September 1999 in "a depressed mood because of her inability to lose weight". Dr Brockhoff agreed in cross‑examination (T232) that the plaintiff was suffering from more than a variation in mood. The plaintiff was working two jobs and her condition reflected her general ability to cope with her work and at home. In my opinion, it is open to conclude that Dr Brockhoff was not in a position to diagnose and did not diagnose clinical depression in the plaintiff on 2 September 1999. It is equally open to conclude in the circumstances that the plaintiff's answer to interrogatory 6 to the effect that she was diagnosed with depression on 2 September 1999 was a fair report by the plaintiff of what she believed occurred on her visit to see Dr Brockhoff. In these circumstances, I conclude there is no inconsistency between the plaintiff's answer to the interrogatory and her evidence which should on analysis affect the determination of the credibility of the evidence of the plaintiff in this regard.
The plaintiff was then cross‑examined about her evidence that if she turns her head quickly to the right it clicks and she becomes dizzy. The plaintiff was asked at T125 whether she could account for why in two separate reports Mr Slinger referred to the left rather than the right and she said she could not. She was not the author of the report and she could not be expected to account for it. More importantly, the plaintiff was then asked whether she told Mr Slinger it was the left and she replied:
"He asked about both sides and, as I have said to you, I have it more to the right; only very slightly to the left."
The plaintiff said (T118) she was able to turn her head halfway to the right and not fully to the left. She said when she tries to push beyond those points she experiences pain. Her evidence at T120 was that on a bad day she can hardly move her head to the right or the left. The video evidence (exhibit 2) depicts the plaintiff moving freely in a number of different locations and positions. She is shown repeatedly looking to the left and to the right. The plaintiff does not appear to be suffering discomfort in those movements. It is not open to conclude that the movements depicted are for the plaintiff beyond the limits at which pain occurs on occasions when it does occur or on occasions when dizziness occurs when it does occur.
At T145, counsel for the defendant asked the plaintiff whether she last worked for her husband just before Christmas 1999 and she agreed that was her evidence. Counsel referred the plaintiff to the report of Dr Brockhoff dated 24 July 2000 where he says that at that time the plaintiff was working for her husband a few hours a week. The plaintiff said she may have told Dr Brockhoff that. She said she doubted if she was still working then. She was trying to help out a little bit, two hours a week. She said she finished the regular hours that she had worked for her husband before Christmas 1999. The evidence of Dr Brockhoff is not inconsistent with that of the plaintiff and her explanation that she finished regular work for her husband before Christmas 1999.
The plaintiff's husband, Mr Neil Chaplin, gave evidence that prior to 6 September 1999 his wife worked in his business Westralian Insurance and Financial Services for an average of 20 hours per week, more or less (T262). At T279, counsel for the defendant referred Mr Chaplin to the evidence of Dr Brockhoff in relation to the consultation on 2 September 1999 that the plaintiff had complained that her husband was pressuring her to increase the amount of work she was doing in the business. Mr Chaplin expressed the opinion his wife may have felt some pressure before that because he wished to move to Christmas Island, and as the plaintiff herself said, she did not wish to go. Mr Chaplin agreed (T281) that prior to the accident the plaintiff was working long hours at Rocket Couriers and assisting in Mr Chaplin's business. Counsel asked Mr Chaplin whether it was a fair assessment to say that the plaintiff was "not coping". He replied that the plaintiff and he enjoyed their work for many, many years because it was a family business. He said the plaintiff did not tell him she was not coping. She told him subsequently she did not wish to go to Christmas Island. Mr Chaplin expressed the opinion that the plaintiff's work at Rocket Couriers and for him was not a problem for her before the accident. Counsel put Dr Brockhoff's evidence to Mr Chaplin that the plaintiff was not coping. He said they had their ups and downs. Mr Chaplin agreed there were times when the plaintiff could not cope (T281). In my view, the evidence of Mr Chaplin corroborated the evidence of the plaintiff that for many years prior to the accident she had been working long hours for her husband and Rocket Couriers.
I find that the plaintiff had a motor vehicle accident in 1987 from which she suffered back pain at the time. I accept her evidence that prior to 6 September 1999 the plaintiff "rarely" had discomfort in her back and that she had "a slight neck problem". I find on the evidence of Dr Brockhoff that he made no entry in his notes relating to back pain from the first time he saw the plaintiff in October 1991 until his note of 10 July 1996 and then on 9 September 1999. I find on his evidence that the plaintiff made no complaint to him about back pain on 10 July 1996.
In relation to the plaintiff's right knee, I find on her evidence and that of Dr Brockhoff that the plaintiff suffered a painful clicking right knee for five or six years up to 1997 after falling when stepping out of an elevator. I find that this condition resulted in little restriction of movement in the right knee and no treatment was prescribed. I find the plaintiff mentioned the condition of her right knee to Dr Brockhoff once only in July 1997 prior to 6 September 1999. I conclude that the condition of her knee resulted in little disability prior to 6 September 1999.
I accept the evidence of the plaintiff that she has had a weight problem since her early 20's, partly contributed to by her asthma medication. I accept her evidence that by 4 June 1998 she was frustrated by her inability to lose weight. By 2 September 1999, the plaintiff was able to describe her state of mind about her weight as depressed. I find on her evidence and that of Dr Brockhoff that he was not in a position to diagnose and did not diagnose clinical depression in the plaintiff on 2 September 1999. I find that on 6 September 1999 the plaintiff's weight was in the vicinity of 100 kilograms.
It is open to conclude from these findings that the plaintiff was largely asymptomatic in her back, neck and right knee prior to 6 September 1999. In my opinion, such a conclusion is consistent with the evidence of the plaintiff and that of her husband that prior to the accident the plaintiff was working long hours at Rocket Couriers and also assisting in Mr Chaplin's business. On the balance of probabilities, given my analysis of the credibility of the evidence of the plaintiff in relation to her symptoms prior to 6 September 1999, I conclude that at the date of this motor vehicle accident the plaintiff was largely asymptomatic in her back, neck and right knee. I also find on the balance of probabilities that while the plaintiff was frustrated at her inability to lose weight, she was not suffering from clinical depression at the time of the motor vehicle accident.
Was the collision a cause of the plaintiff's alleged injuries and symptoms?
As proposed I shall now consider this issue in the determination of which I shall also determine the plaintiff's pre‑existing condition and whether it caused or contributed to her alleged injuries and symptoms. In this context, I shall determine whether the plaintiff failed to call material evidence. I shall determine whether her pre‑existing condition would have caused similar symptoms absent the accident. I shall determine the likely prognosis of the plaintiff's injuries.
I have already referred to the evidence of Mr Slinger in which he explained his conclusion that the plaintiff sustained soft tissue injuries to the spine as a whole and to the right knee on 6 September 1999, and that the remainder of the plaintiff's symptoms in the upper and lower limbs relate to those soft tissue injuries in the cervical and lumbar spine respectively. In the course of his evidence, Mr Slinger was asked to express his opinion about the extent to which, if at all, the plaintiff's obesity has contributed to her symptoms and disability. In relation to this issue, Mr Slinger said (T159):
"… there's a great deal of misinformation from a number of my colleagues who believe that being overweight affects symptoms in the spine. It doesn't, directly. Being overweight affects symptoms in the lower limbs, because of the weight‑bearing nature, in the hips and the knees. In the spine, being overweight usually means that you're unfit and the most important fact when I treat patients with spinal injuries or spinal disabilities is to emphasise a need to tone their muscles; not to lose weight. If you lose weight you don't have muscle tone, you have more pain. So the fact that people are overweight in itself is not a problem but if you're – as I've just explained – unfit or flabby at the same time, as people often are, that is. So I emphasise to people exercise not losing weight. Now, in the lower limbs it's different because you are taking direct weight through the joints and I believe being overweight can influence symptoms in the hips, the knees and the feet. But in the cervical spine and in the lumbar spine, as I've explained, directly, losing weight is of no benefit in managing those symptoms other than getting fit and improving muscle tone as I've said."
Mr Slinger was then asked to refer to exhibit 12 and to give his interpretation of what that report means with regards to any degenerative changes in the plaintiff's spine. Mr Slinger replied (T160):
"It indicates, your Honour, that she has some minor diffused degenerative changes in the lumbar spine which I would consider would be essentially normal for her age group. To put it another way I would not be surprised that somebody in this age group has those changes."
Counsel for the plaintiff then referred Mr Slinger to the reports listed at the bottom of p 4 of his report of 1 October 2001 and to give his interpretation of the x‑ray results. Mr Slinger replied (T161):
"Again, your Honour, in the cervical spine or neck it shows some minor degenerative changes, similarly in the thoracic spine. I've previously mentioned the lumbar spine. I emphasise the changes are minor and similarly at the right knee there are some minor degenerative changes at the joint between the kneecap and the femur, the patella‑femoral joint not the knee‑joint proper."
Mr Slinger then expressed the opinion that similar degeneration does not normally occur in the knee and that where it does it is sometimes associated with an injury. He considered that the plaintiff's weight may have contributed to the symptoms in her right knee (T161).
Mr Slinger also explained that he reached the conclusion that the remainder of the plaintiff's symptoms in the upper and lower limbs presumably relate to the soft tissue injuries in the plaintiff's spine because he could find no other evidence of injury in the upper and lower limbs. He presumed those symptoms to be referred pain from those injuries (T162). It is consistent with Mr Slinger's evidence that on his second review of the plaintiff he found that she had improved symptoms about the knee and he expressed the opinion that was probably because she had reduced her weight at that time (T163).
Counsel for the plaintiff then referred Mr Slinger to the evidence of Dr Saunders that the plaintiff had suffered a soft tissue injury to her neck and lower back and that she has aggravated a pre‑existing degenerative disease. Mr Slinger disagreed because the plaintiff had no pre‑existing symptoms. He said it was possible the plaintiff had rendered symptomatic her pre‑existing degenerative changes that may well have been made more painful because of the accident (T165). Mr Slinger went on to say that in the absence of the accident, the plaintiff may well have continued asymptomatic indefinitely, and to say otherwise is purely speculative. He said we all get backache but not many of us develop chronic debilitating symptomatology.
Counsel for the plaintiff referred Mr Slinger to the evidence of Dr Saunders at p 2 of his report of 11 September 2003 where he says the plaintiff could flex and extend her neck through a good range without pain. Rotation to the left and right was slightly limited by pain. Lateral flexion to the left and right was also painful towards the limit. At T168 Mr Slinger observed that in his opinion the plaintiff had some restriction in rotation which was not gross. He suggested that his assessment of the restriction was similar to that of Dr Saunders and explained the inherent difficulties in making any such assessment (T168). Mr Slinger was referred to the opinion of Dr Saunders that the plaintiff may have suffered from neuropraxia in the right forearm, but there was no evidence to suggest that the plaintiff had a significant neuropathic syndrome in the right forearm. At T169, Mr Slinger expressed the opinion that the plaintiff's symptoms are most likely referred from the neck as referred pain from the soft tissue injury.
In relation to the evidence of Dr Saunders in his report of 30 October 2003 that he estimated disability in relation to the plaintiff to be a 5 per cent loss of the non‑economic function of her cervical spine, a 10 per cent loss of the non‑economic function of the thoraco‑lumbar spine and a 5 per cent loss of the non‑economic function of the right knee, Mr Slinger said at T170 that he would assess the loss of function in the cervical spine at 10 per cent, in the thoraco‑lumbar spine at 10 per cent and 5 per cent in the knee (T170).
Counsel for the plaintiff referred Mr Slinger to the statement of Dr Rosenthal at p 2 of his report of 7 October 2002 where he says on formal examination there is inhibition of neck movement with facial grimacing. At T171 Mr Slinger said the plaintiff was never histrionic with him and presented in an entirely appropriate fashion. She was not exaggerating. Mr Slinger was referred to the statement of Dr Rosenthal at p 2 of his report of 3 September 2003 where he said that the plaintiff's neck movements were hesitant and cautious "with an apparent component of voluntary inhibition". Counsel for the plaintiff asked Mr Slinger whether he had a similar experience in his examination of the plaintiff and he said he did not (T171). Mr Slinger was referred to the statement of Dr Rosenthal at p 3 of his report of 3 September 2003 where he says there were discrepancies between the plaintiff's subjective complaints and the objective clinical findings and an implied inconsistency with the range of cervical movement. Mr Slinger said he did not understand the use of the word "implied" in this context (T172).
Counsel for the plaintiff referred Mr Slinger to the evidence of Dr Rosenthal at p 1 of his report of 2 October 2003 where he says there are no apparent restrictions with using either upper limb. She is able to flex, extend and rotate her neck spontaneously through a reasonably full range of movement. Mr Slinger expressed the opinion that the plaintiff has a range of movement which is not obviously restricted. He considered the statement of Dr Rosenthal to be consistent with his examination and opinion of the plaintiff.
In cross‑examination, Mr Slinger confirmed that in his assessment the plaintiff was restricted in the movement of her arms and neck. He said he would expect a full range of movement at the shoulder in the case of a person of the plaintiff's age, but not necessarily in the neck. He said the shoulder is not commonly subject to degenerative change. He confirmed his opinion that the plaintiff's restrictions in the upper limbs, including the shoulder, are due to her painful restriction of movement in the neck which is very common (T174). He considered the pain throughout her arm down to the tingling in her fingers, the pins and needles were all symptoms attributable to the neck injury.
Mr Slinger confirmed he was given no history of a previous injury to the plaintiff's right knee (T176). In relation to the x‑ray taken in 1996, Mr Slinger said the plaintiff told him that she had some minor discomfort from the lower back which did not restrict her day to day activities. She did not tell him that she had had such discomfort most of her life (T177).
Mr Slinger conceded that in the video exhibit 2, the plaintiff has a range of movement which was freer than she exhibited in consultation (T179). Mr Slinger was cross‑examined about the issue in relation to the evidence of the plaintiff that she experiences pain when turning to the right while his note was that she had complained of pain on turning to the left. He agreed that in the video the plaintiff was seen to turn her head to the right and the left without discomfort. Mr Slinger said that he would not expect every time she looked to the left she would get dizzy. He believed the symptoms were intermittent (T181). Mr Slinger observed (T183) that the plaintiff did not appear to move very much in respect of her back but certainly she did not present as a stiff person walking around. He said he did not see her bending over as in a full range of movement. She flexed a little (T183).
Mr Slinger expressed the opinion the plaintiff is now able to work four to six hours a day. He said (T185):
"I'm making a guess, an assessment, an educated assessment that she's restricted because of what she's told me because of the fact that she is stiff in her neck, that she has trouble sitting and standing for long periods; she does have symptoms of the upper limbs as well as her lower limbs. So I believe she is capable of part‑time work, not full‑time, and that's the reason I've made that assessment."
Mr Slinger accepted that he was reliant on the plaintiff's subjective complaints of discomfort and observed that in the case of soft tissue injury such as those sustained by the plaintiff, there can be no objective findings (T186). He expressed the opinion that to suggest the absence of such objective findings in the present circumstances is significant is a nonsense (T187).
In his report for the defendant of 27 January 2000 (exhibit 1a), Dr Saunders explains his conclusions to which I have already referred that the plaintiff suffered a soft tissue injury to her neck, her lower back, and has probably aggravated pre‑existing degenerative disease of the cervical spine, the lumbar spine, and also the right knee. He acknowledges that the plaintiff denies experiencing any symptoms prior to the accident. He says there is little doubt that with the degree of degenerative disease in the neck, back and hips, and the associated congenital anomaly of the back, that the plaintiff would have eventually suffered symptoms from these conditions. He says further the association of being considerably overweight would also have precipitated problems with her back in the future. He says there is no doubt being overweight to the extent that she is has affected and delayed the recovery from her accident related problems to her lower back and right knee. He confirmed these opinions at T11.
Owing to the fact that his evidence was taken de bene esse, Dr Saunders did not have the opportunity to comment on the evidence of Mr Slinger about the significance of the plaintiff's obesity. At T16, Dr Saunders identifies what he says seem to be differences between the clinical findings that he made and those of Mr Slinger. Dr Saunders saw the plaintiff again on 11 September 2003 and in his report of that day he records his assessment of how far the plaintiff could flex and extend her neck, rotate to the left and the right, and flex to the left and right without pain, abduction and flexion of both shoulders were limited towards the end because of pain and pulling across the shoulders. He could detect no significant abnormality in the right forearm or hand.
In cross‑examination, Dr Saunders said he could not predict when the plaintiff's back may have become symptomatic owing to her weight, but "with that amount of weight she's going to get a back problem." (T23)
At T25, Dr Saunders acknowledged that the unfortunate thing about pain is that it is a subjective thing. He said he had difficulty with the number of things that the plaintiff told him she could not do, and yet it appeared from his examination that she could. He said it was difficult to find that she could not work. (T26)
Dr Saunders expressed the opinion at T31 that the pre‑existing degenerative disease in the plaintiff's spine was "more of a causal relation than the accident." He accepted the proposition that the accident aggravated the pre‑existing condition. He expressed the opinion the plaintiff had a significant injury to the neck that aggravated the pre‑existing degenerative disease. He expressed the opinion that the injury to the right knee is certainly solely associated with the pre‑existing degeneration. At T39, Dr Saunders acknowledged that if the plaintiff struck her knee in the accident on the patella, that could have caused some damage to the patellofemoral joint.
Dr John Rosenthal gave evidence (T245) that in his opinion the plaintiff had neck and back strain injuries which are likely to have clinically activated a pre‑existing degenerative change. He said she also suffers from osteoarthritis of the right knee. Dr Rosenthal expressed the opinion that he believed the plaintiff had a retained capacity in relation to the type of work that she was used to. Dr Rosenthal said he attached no importance to the video films exhibit 2 (T247). Dr Rosenthal explained his opinion in his report of 2 October 2003 that the plaintiff is able to flex, extend and rotate her neck spontaneously through a reasonably full range of movement. He agreed for a person of her age, with the degenerative changes in her neck the range was reasonable (T247). He also agreed that the plaintiff may have good and bad days. He said he believed that the plaintiff's pre‑accident symptoms from the history that she gave him were mild, posture related and transient. (T248).
Counsel for the plaintiff put the evidence of Mr Slinger in relation to the significance of the plaintiff's weight to Dr Rosenthal for comment at T249 as follows:
"His position is that the weight per se does not have an impact on the degenerative changes in the back. It's more the question of whether or not carrying excess weight you also have the muscle tone to support the spine in whatever activity you do. Do you agree with that position?---Not entirely, because if you look at the epidemiology of degenerative disease it is far more prevalent in obese patients than non‑obese patients. Now, I think that what he's saying to some extent is that the severity of degenerative change that we experience is probably to a large extent part of our DNA; it's an inherited tendency, because some people who are as thin as pretzels get severe degenerative disease, so obviously obesity is not the whole answer. But I think there is epidemiological evidence to suggest that if you are obese you are subjecting your weight bearing and your axial joints, which is the spine, to an increased wear and tear load. It's true that the spine is better protected by good muscle corsetry, particularly a tight stomach and tight back muscles; this does have a protective role in preventing spinal pain. It doesn't prevent degeneration but it will prevent spinal pain. So I presume he's talking about a level of spinal fitness that protects the back in these circumstances, yes."
Dr Rosenthal considered the plaintiff had a "slight" restriction in the range of movement of her neck (T250) and expressed the opinion that the range of movement "varies so much on a diurnal basis." (T251) Dr Rosenthal went on to acknowledge that the motor vehicle accident has caused problems greater than those that would have occurred by the natural progress of the pre‑existing condition. He acknowledged it was not possible to predict the progress of degenerative disease.
At T254, Dr Rosenthal expressed the opinion that degenerative change in the knee is a little bit different to degenerative change in the spine in the sense that the weight bearing is different. He considered the plaintiff had significant degenerative change in her right knee. He said he would definitely suggest that the plaintiff was having some knee problems in 1997. Counsel for the plaintiff asked Dr Rosenthal about his report of the plaintiff's "facial grimacing". He accepted the plaintiff may have been having a bad day, or it could have been "hyper‑vigilant pain behaviour." (T256) He was also asked about his statement that the plaintiff's neck movements were hesitant and cautious and reflected voluntary inhibition. Dr Rosenthal said that also was hyper‑vigilant pain behaviour: "It's just that people don't do things because they anticipate that it is going to hurt." He said it did not affect his overall view of her disability and her credibility.
Dr Rosenthal went on to say that her injury has impacted on her quality of life, but that it has not impacted significantly on her capacity to undertake the sedentary type of work that she was doing prior to the accident. He explained why at T257 as follows:
"The reason why I don't believe so, it is the – firstly, occupational health and safety guidelines provide for people in sedentary work to get up after every hour and stretch and do things. I mean, that's not a special requirement any more. That happens in the public service and everywhere. The second thing is – I know sitting is said to be a problem but she has been able to sit in an aircraft; she has been able to sit in a motor vehicle. I'm sure she sits – she has been able to sit in a motor vehicle. She is able to sit and watch TV, I'm sure. She would have to spend a substantial part of her time sitting because of her knee problem and the fact that her muscle tone is down, it does indicate that a significant part of her life is sedentary. This is the basis of my assertion that there is a retained capacity to work in that self‑employed sedentary capacity."
In re‑examination, Dr Rosenthal said he agreed with the evidence of Mr Slinger that the plaintiff was capable of returning to work for four to six hours a day, five days a week. He suggested that the plaintiff could undergo a "graduated return to work" to 38 hours a week over a period of six to eight weeks.
In my opinion, the evidence of Mr Slinger, Dr Saunders and Dr Rosenthal in this case is all to the effect that the plaintiff sustained soft tissue injuries to her neck and back in this collision. Given the nature of the impact, it seems to me that is hardly surprising. Mr Slinger reached the same opinion in relation to the plaintiff's right knee. Dr Saunders expresses his opinion in relation to the plaintiff's right knee in terms of the plaintiff's having probably aggravated pre‑existing degenerative disease in the right knee. In his opinion, the injury to the right knee is certainly solely associated with the pre‑existing degeneration, although he acknowledged the plaintiff could have damaged the patellofemoral joint. Dr Rosenthal expressed very much the same conclusion when he said he considered the plaintiff had significant degenerative change in her right knee and must have had knee problems in 1997.
Mr Slinger's opinion of the severity of the degenerative change in the plaintiff's right knee differed from that of Drs Saunders and Rosenthal. In this context, however, it seems to me to be important that I have concluded that the court should accept the evidence of the plaintiff and Dr Brockhoff that the plaintiff suffered some painful clicking in the right knee for several years prior to 1997, but was otherwise asymptomatic in the right knee. Mr Slinger did not know of the previous injury to the plaintiff's right knee, but postulated that the type of degeneration he observed was sometimes associated with previous injury. Like Drs Saunders and Rosenthal, he agreed that the plaintiff's weight may have contributed to her symptoms in the right knee. Primarily, however, Mr Slinger was of the opinion that the plaintiff had rendered symptomatic her pre‑existing degenerative changes in the right knee in the accident.
In the light of my conclusion that the evidence of the plaintiff about the pre‑existing condition of her right knee should be accepted, in my view the opinion of Mr Slinger should also be accepted.
I find that the plaintiff suffered a soft tissue injury to her right knee in the accident on 6 September 1999 and thereby rendered the prior degeneration in her right knee symptomatic and more painful than it had been previously. I also find that the plaintiff's weight has delayed the plaintiff's recovery from the soft tissue injury sustained in the accident.
As I have said there can be no doubt whatever on the medical evidence that the plaintiff suffered significant soft tissue injury to her neck and spine in the collision. The medical evidence also establishes that the plaintiff had degenerative changes in the cervical, thoracic and lumbar spine and the associated congenital anomaly at L5/6. Mr Slinger and Dr Saunders were not agreed about the extent of the degenerative change. I find, however, that prior to 6 September 1999 the plaintiff was largely asymptomatic in her spine. I find any discomfort she may previously have experienced was mild and posture related given her height.
I accept the evidence of Mr Slinger that in the case of the present soft tissue injuries no objective clinical findings are possible. I also accept his opinion that the plaintiff's weight has not directly affected the symptoms in her spine, while I equally accept the opinion of Dr Rosenthal that degenerative disease is far more prevalent in obese patients. I find, however, on the balance of probabilities that the collision and soft tissue injuries to the plaintiff's back and neck have rendered symptomatic the degenerative changes that had previously caused little discomfort to the plaintiff. I do not accept the opinion of Dr Saunders that the degenerative disease in the plaintiff's spine was "more of a causal relation than the accident". That opinion is not consistent with the evidence of the plaintiff that I have accepted.
A great deal of evidence was directed to individual assessment by the expert medical witnesses of the plaintiff's range of movement in the neck, shoulders and arms. I accept the opinion of Mr Slinger that the plaintiff has a range of movement which is not obviously restricted and the opinion of Dr Rosenthal that range of movement varies from day to day. Mr Slinger considered his assessment of the plaintiff's range of movement in her neck was similar to Dr Saunders and Dr Rosenthal.
I find that as a result of the degenerative changes in the plaintiff's neck and spine being rendered symptomatic by the soft tissue injuries sustained in this collision, the plaintiff has suffered and continues to suffer the following symptoms. She experienced headaches once or twice a week but they are now infrequent. She did not experience those headaches prior to the accident. She experiences pain behind her right shoulder blade that extends down to her waist. The pain takes the form of continual throbbing that extends into the right arm. I find she sometimes loses the grip in her right hand. I find that the plaintiff has some restriction in rotation of the neck which is not gross and that extreme rotation to the right, more than the left, may on occasion cause pain and dizziness. I find lateral flexion to the left and right may also be painful towards the limit, while flexion and extension of the neck to extremes is less painful. I find that the plaintiff's restrictions in her right arm and shoulder are due to the plaintiff's restriction of movement in the neck and that the pain throughout the right arm and tingling in the plaintiff's fingers together with the pins and needles are attributable to the soft tissue neck injury.
I find that the plaintiff's weight, while it may have predisposed the plaintiff to degenerative disease in the spine and delayed recovery of the soft tissue injury to her knee, has not caused or contributed to her injuries. I find that her symptoms are the consequence of the soft tissue injuries sustained in the collision.
I find on the balance of probabilities that the plaintiff did not suffer from clinical depression prior to 6 September 1999. I find she was continually frustrated by her inability to lose weight prior to the accident to the extent that Dr Brockhoff was able to observe that her mood was depressed. In my opinion, however the plaintiff may have described her condition in her answers to interrogatories, Dr Brockhoff's observations on 2 September 1999 fall far short of a diagnosis of clinical depression and as I have observed he did not make such a diagnosis.
Counsel for the defendant made a submission in closing that the plaintiff did not call a number of witnesses, including Dr Malone, Professor Wan, Mr Grinieri, Dr Foot, Dr Wu and the physiotherapist Elton. In these proceedings, as I have observed, the plaintiff carries throughout the burden of proving that the collision was a cause of the plaintiff's alleged injuries and symptoms. In my opinion, the plaintiff has discharged that burden on the balance of probabilities and the defendant has not shown that the evidence of any one or more of these witnesses would have been significant in the determination of the issues. In my opinion, no conclusion adverse to the plaintiff can or should be drawn from the fact that such witnesses were not called.
As I have also observed, the defendant has asserted that the several different aspects of the plaintiff's pre‑existing condition have caused or contributed to the plaintiff's injuries. It was also submitted on behalf of the defendant that the court should conclude that absent this accident, the plaintiff would have developed similar symptoms in her neck, back and knee. The court is required to assess the degree of probability that the plaintiff would have developed her current symptoms in the neck, back and knee and clinical depression. This requires consideration of the hypothetical effect of the pre‑existing degenerative disease in her spine and knee. This question is not susceptible of scientific demonstration or proof: Malec v J C Hutton Pty Ltd (1990) 169 CLR 638. In my view, the evidence of Mr Slinger is to be preferred to that of Dr Saunders in relation to the extent of the degenerative disease and the likelihood that the plaintiff would have been affected in the future. I accept the plaintiff may have remained asymptomatic in the neck and back for many years and I assess the chance that she may have developed her current symptoms absent the accident as no more than 10 per cent. In relation to the plaintiff's knee, the evidence of pre‑existing degenerative disease in the knee and the plaintiff's weight leads me to conclude that there was a 20 per cent chance that the plaintiff would have developed symptoms in the right knee similar to those that she now experiences absent the accident.
I accept the evidence of the psychologist, Dr Jones, that the plaintiff's condition is caused primarily through her chronic pain and her inability to perform her previous occupation. I find, therefore, that the future prognosis of the plaintiff's injuries and symptoms is poor and that it is unlikely that they will improve in the foreseeable future.
The plaintiff's past and future earning capacity and assessment of damages
I turn to consider the plaintiff's pre‑accident capacity for employment and its likely duration and the extent to which the plaintiff's injuries may truncate that capacity, together with the damages to which the plaintiff is entitled.
The evidence of the plaintiff was that she completed school to leaving standard and thereafter undertook clerical work in various positions. She said she began to work for her husband in 1991, although his evidence was that she began to work for him in 1989. Until his retirement in 2003, her husband was a licensed insurance broker. The plaintiff was not engaged in the management of the business. The evidence of her husband was that she initially undertook telemarketing work and then became engaged in the preparation of quotations for general insurance, in data input, in filing and in contacting clients. The plaintiff became experienced in both general and life insurance.
The plaintiff gave evidence that in 1997 she began to work part time for her brother‑in‑law in a business known as Rocket Couriers. In that year, she also graduated as a beautician. She said it was her intention to build that business up. She did that by working for friends which remained the position at the time of the accident. The evidence of the plaintiff was that she worked at Rocket Couriers between 20 and 35 hours per week undertaking bookkeeping and secretarial work. She said she received between $350 and $500 per week at Rocket Couriers. In 1998 and 1999 she also worked for her husband as needed. She said she was working seven days per week at this time. She said her husband paid her a distribution from the business in the sum of $200 per week. She observed that on 6 September 1999, she had three jobs. Her husband gave evidence that at this time she worked for him approximately 20 hours per week. He said the plaintiff was a workaholic like himself.
Counsel for the plaintiff submitted that the court should accept the evidence of the plaintiff and her husband and conclude that the plaintiff's pre‑accident capacity for employment was that of a full time clerical assistant. I accept that submission and find that the plaintiff was so employed by Rocket Couriers and by her husband at the time of the accident.
It is then necessary to consider the likely duration of that employment if the accident had not occurred. In view of the conclusions that I have reached and expressed in relation to the plaintiff's condition and symptoms prior to the accident, I consider it is very likely the plaintiff would have continued to carry out clerical duties, probably in the insurance industry, for her husband or other employer for the foreseeable future. I do not accept the submission of counsel for the defendant that the court should conclude that it is likely that the plaintiff would not have continued to exercise her pre‑accident earning capacity owing to the ill‑health of her husband and his subsequent retirement. If anything, it is perhaps more likely that she would have continued in full time employment owing to that retirement, notwithstanding that she may have had increased domestic duties in attending to her husband. Counsel for the plaintiff submitted, and given the conclusions I have reached on the evidence I find that it is very likely the plaintiff would have continued in full time employment until the age of 65.
I turn to consider the extent to which the plaintiff's injuries have truncated or compromised her earning capacity and are likely to do so in the future. The plaintiff gave evidence that she returned to work at Rocket Couriers for two weeks in December 1999 for no more than six hours a day. She said she also made four or five attempts to work in her husband's business up until the end of January 2000. The evidence of the plaintiff was that she could not sit for sustained periods of time, for instance at a keyboard. She found she was making errors that she would not have made previously. She nevertheless persevered and took courses at TAFE in Powerpoint and Quick Books which courses she completed. The plaintiff had completed her qualifications as a beautician prior to the accident. The plaintiff also gave evidence of the restrictions she experiences in carrying out domestic duties and sitting for any length of time while travelling. These experiences are consistent with her experiences when she attempted to return to her clerical duties and beautician's work. I have accepted the evidence of the plaintiff that the referred symptoms from her soft tissue injuries result in symptoms that are worse on some days than others.
On the evidence of the plaintiff and the medical opinion that I have accepted, I find the plaintiff was totally unfit for work until the end of January 2000. Thereafter, I find the plaintiff was capable of returning to clerical duties for four to six hours a day, five days a week. In my opinion, the plaintiff's symptoms have at all material times been such that they may be accommodated in the workplace by making provision for the plaintiff to move regularly from any sedentary position. I do not accept the submission of counsel for the plaintiff that the plaintiff was totally incapacitated for her pre‑accident employment until 17 July 2001.
In my opinion, the plaintiff's partial incapacity remains. I accept the opinion of Mr Slinger that it is likely that the plaintiff's present symptoms and condition will continue on a permanent basis. It is plain on the evidence to which I have referred that the plaintiff's physical and mental condition is chronic. Mr Slinger did not exclude the possibility of spontaneous improvement while Drs Saunders and Rosenthal were of the view that the plaintiff is capable of a graduated return to full time clerical duties over a period of three months. In my opinion, the future cannot be predicted in all the circumstances in terms more precise than those adopted by Mr Slinger when he said he could not exclude the possibility of spontaneous improvement in the plaintiff. It is no more than a possibility.
Loss of past earning capacity
The plaintiff was totally incapacitated for a period of 20 weeks from 6 September 1999 to 31 January 2000. Counsel for the plaintiff submitted that the court should have regard to the salary paid to Debra Newman who took over the plaintiff's duties. The evidence was that she received $20,800 per annum ($400 gross per week). Counsel for the defendant submitted that this figure bore no relationship to the plaintiff's exertion in carrying out clerical duties for her husband. The court is required to determine the plaintiff's loss of earning capacity, not loss of earnings. The number of hours the plaintiff worked for her husband varied on the evidence. I consider however it is far more likely than not that the plaintiff would have continued to work in her husband's business on the same basis until his retirement. Therefore I have found the plaintiff would have continued in full time employment. Prior to the accident the plaintiff received $200 per week from her husband. The plaintiff was also working for Rocket Couriers. I accept the submission of counsel for the plaintiff that the plaintiff's average weekly income prior to the accident at Rocket Couriers was $551. I therefore assess the plaintiff's gross income during her period of total incapacity as $751 per week. In the absence of evidence, I estimate the tax on this sum as $176 per week. For the period of total incapacity from 6 September 1999 to 31 January 2000 (18 weeks being 20 weeks less 2 weeks employment) the plaintiff should receive $575 x 18 = $10,350.
In accordance with my findings, the plaintiff was partially incapacitated from 1 February 2000 to the date of trial on 16 August 2004 (237 weeks). I find that after her husband retired the plaintiff could have expected to earn at least if not more than the distribution from her husband and her income from Rocket Couriers. I assess the plaintiff's gross weekly income during the period of partial incapacity as half her gross income during her period of total incapacity (ie half $751) $375.50 in respect of which I estimate the tax as $50 per week. The plaintiff's net income during the period of partial incapacity would therefore have been $325 per week. For the period of partial incapacity prior to trial the plaintiff should therefore receive $325 x 237 = 77,025. I assess the plaintiff's loss of past earning capacity as $10,350 + $77,025 = $87,375. The plaintiff is entitled to interest on this sum at 4 per cent or $2,621.25. Under this head, the plaintiff should receive an award of $89,996.25.
Loss of past superannuation
In accordance with the assessment of past loss of earning capacity I assess this loss in the sum of $5,581.63 as follows:
(a)06.09.99 – 31.01.00 (18 weeks x $751) @ 7 per cent $946.26
(b)01.02.00 – 30.06.00 (22 weeks x $375) @ 7 per cent $577.50
(c)01.07.00 – 15.08.04 (215 weeks x $375) @ 8 per cent $6,450.00
$7,973.76
Less 30% in accordance with Jongen v CSR Ltd
($2,392.23) = $5,581.63
Future loss of earning capacity and superannuation
The plaintiff was born on 29 April 1958 and is 46 years old. I have found that the plaintiff's partial loss of earning capacity is likely to continue for the foreseeable future with the possibility of spontaneous improvement. I have assessed that partial loss as $325 net per week. This is a case where I have found the plaintiff is partially fit for clerical duties subject to some restrictions. Prior to the accident, the plaintiff was engaged in part in her husband's business and at Rocket Couriers. Otherwise, there was no evidence of the availability of clerical work, particularly in the insurance industry or the plaintiff's likely earnings from it. As the learned Chief Justice observed in Bowen v Tutte (1990) A Tort Rep 81-043 at 68,086:
"Where it is clear that the plaintiff has suffered a loss of earning capacity, as where there has been a total loss of capacity to earn in the occupational profession for which the plaintiff has previously been employed, the Court will do its best to place a value on that loss, notwithstanding the absence of evidence of the availability of employment within the plaintiff’s residual capacity and evidence of the amount which could be earned in such employment."
In this case, doing the best I can to place a value on the plaintiff's future loss of earning capacity, I consider the plaintiff's present partial loss of earning capacity a fair basis for the assessment of the plaintiff's future loss, given the findings I have made about her pre‑accident capacity and her likely future employment absent the accident.
I have found that in the absence of the accident the plaintiff would very likely have worked as a clerical assistant until the age of 65. The 6 per cent multiplier for 19 years is 599.5. The plaintiff's future loss of earning capacity may be calculated as $325 x 599.5 = $194,837.50. In my opinion, this sum should be reduced by 20 per cent to allow for the contingency that the plaintiff's condition will spontaneously improve and the chance that the plaintiff would have developed similar symptoms in her back and right knee absent the accident so that the plaintiff is entitled to an award of $155,870 under this head.
The plaintiff is also entitled to an award in respect of loss of future superannuation or 9 per cent of $155,870 less 30 per cent in accordance with Jongen v CSR Ltd (1992) A Tort Rep 81‑192. I award the plaintiff $14,028.3 less $4,208 = $9,819 80 under this head.
Cost of future medical treatment and medications
The plaintiff claims the cost of consultation with her general practitioner once every month for five years. I have found the plaintiff's condition is chronic and I consider it is unlikely the plaintiff will require consultations of that frequency. I would allow four consultations a year at $40 each on $160 a year for five years, a total of $800. For medication and massage therapy over five years and psychological counselling over one year, I make a global award allowing for contingencies of $10,000. The plaintiff is entitled to $10,800 under this head.
Special damages
Special damages in relation to physiotherapy, occupational therapy, chiropractor, massage, medications and travel have been agreed in the sum of $5,905.75. The plaintiff also claims the sum of $1,831.60 in relation to past psychologist's fees. The quantum of this sum is agreed and in view of the conclusions I have reached in relation to the plaintiff's depression I consider this sum to be reasonable.
The plaintiff claims the sum of $11,636 in relation to past cleaning expenses. The calculation of the quantum of this sum is not clear and I allow a global sum of $5,000. The plaintiff is entitled to special damages in the sum of $12,737.35.
General damages for non‑pecuniary loss
The plaintiff claims general damages based on 15 per cent of a most extreme case. Counsel for the defendant suggested 12½ per cent. In my opinion, 15 per cent is more appropriate in the light of the evidence and conclusions I have reached in relation to the plaintiff's past condition and symptoms and her future prognosis. Amount A is $257,000 of which 15 per cent is $38,550. Deduction of amount B $13,000 results in an assessment of $25,550. In my opinion, the plaintiff is entitled to general damages in the sum of $25,550.
Conclusion
The plaintiff is entitled to judgment as follows:
Loss of past earning capacity $89,996.25
Loss of past superannuation $5,581.63
Loss of future earning capacity $155,870.00
Loss of future superannuation $9,819.80
Cost of future medical treatment and medications $10,800.00
Special damages $12,737.35
General damages for non‑pecuniary loss $25,550.00
$310,355.03
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