Chin v Jenkinson - [2002] WADC 226

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: CHIN -v- JENKINSON [2002] WADC 226

CORAM: LA JACKSON DCJ

HEARD: 16-17 OCTOBER 2002

DELIVERED : 25 OCTOBER 2002

FILE NO/S: CIV 864 of 2002

BETWEEN: GEN CHUH CHIN
Plaintiff
AND
MALCOLM HUGH WATTERS JENKINSON
Defendant

Catchwords:

Assessment of damages for personal injuries arising out of a motor vehicle accident - Decided on own facts

Legislation:

Motor Vehicle (Third Party) Insurance Act 1943

Result:

Damages assessed at $162.43

Representation:

Counsel:

Plaintiff: Mr T Lampropoulos
Defendant: Mr B C Sierakowski

Solicitors:

Plaintiff: Simon Walters
Defendant: Brian C Sierakowski

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

Graham v Baker (1961) 106 CLR 340
Hendrie v Rusli [2000] WASCA 420
Watts v Turpin [1999] WASCA 216
Wylde v 'Arriaza, unreported; FCt SCt of WA, Library No 970359; 23 July 1997

Case(s) also cited:

Hughes v Cornwall [2001] WASCA 157
De Blank v Stemberger [2000] WASCA 358

LA JACKSON DCJ: The plaintiff's claim is for damages for personal injury arising out of a motor vehicle accident on 15 December 2000. The plaintiff was born on 19 June 1965 and was therefore aged 35 at the date of the accident and 37 at trial.
The accident occurred when the plaintiff was stationary at the intersection of Shenton Avenue and Marmion Avenue, Connelly, when the defendant drove a motor vehicle into the rear of the plaintiff's vehicle. Liability was, of course, admitted.

Non-pecuniary loss

Immediately after the accident the plaintiff described his feeling as being unreal and said he felt dizzy. There is no evidence of any neurological injury and accordingly any dizziness felt by the plaintiff at the time does not appear to be of any significance.
By the time the plaintiff got home at about 6.00 pm he said he felt he had a sore neck on the left hand side and that a clear sticky fluid was coming from one of his nostrils. It was however too late to attend his general practitioner. The next morning he attended Dr H Salleh at the Mindarie Medical Centre. Dr Salleh recorded his findings as being a clear fluid coming from the plaintiff's left nostril and a slight degree of muscle sprain at the lower end of the right side of the neck. The reference to the right side of the neck appears to be a mistake as all other reports refer to the left side and the plaintiff says that is where he felt the pain. Dr Salleh referred the plaintiff to the Joondalup Health Campus where the plaintiff attended the same morning. By then the discharge from the nose had ceased. A diagnosis of left sternocleidomastoid muscle strain was made. The plaintiff did not return to see Dr Salleh.
Prior to the accident, between December 1999 and July 2000 the plaintiff had seen a Mr D D Heglund, a chiropractor, because of symptoms in his lower cervical spine and upper thoracic spine. By Monday 18 December 2000 the spinal symptoms returned and the plaintiff went back to see Mr Heglund. He said he has continued to see Mr Heglund every month or six weeks since the accident. Exhibit 1.5 shows an average of one visit per month up to 16 February 2002, there having been 15 visits in 14 months. Then there was a gap of 4½ months to 29 June 2002. This seems a similar pattern to that before the accident where there were 11 appointments to July 2000 and then none for about 5 months. No actual dates of appointments from 29 June 2002 to trial have been provided but it was said they were about every 6 weeks. Mr Heglund has adjusted the plaintiff's spine. Such adjustments have caused symptomatic relief for a time. When the symptoms are sufficiently bad the plaintiff returns back to see Mr Heglund for a further treatment.
Apart from seeing Dr Salleh on the day after the accident the plaintiff has not sought any medical treatment. All other attendances on medical practitioners appear to be at the request of his solicitors.
The plaintiff is a computer analyst. It appears computers are not only his work but also his hobby. Over the years up until the end of 1999 the plaintiff had either been a student in some form of computer or business studies or had worked part‑time. At the end of 1999 he obtained a qualification and at the beginning of 2000 commenced work for Sungard. He found that work was not sufficiently satisfying because the computer systems were established and there was no room for working out new programmes. On or about 1 July 2000 the plaintiff commenced work with DBR Pty Ltd as a computer analyst and still is employed by them.
DBR is an information technology company. Its clients come to it seeking the development of computer technology for business or other purposes. The plaintiff's job is to devise suitable programmes for the use of DBR's customers. In order to do this he has contact with the client, either by email or personally to establish the needs required. He considers the issue and explores the Internet for existing programmes which might be suitable. If they are not to be found then he has to develop a programme specifically for the client.
In order to obtain the work DBR has to tender. The plaintiff is involved in the tender process in the sense of deciding the solution to the client's problems. If the tender is successful the plaintiff is again involved in the development of the programme.
Information technology is a relatively new industry and is developing rapidly. It is necessary for a technician in that industry, such as the plaintiff, to be up‑to‑date with current developments. That requires work on the computer investigating the development of the industry as well as work on the computer for the purpose of developing IT programmes.
Prior to the accident the plaintiff said he not only worked full time for DBR but also at night would spend some time working. Sometimes it was work directly for DBR completing the work he had started during the day, but at other times it was work associated with keeping abreast of current developments so that he could put such information obtained to his employer's advantage. During the first 6 months of his employment he was apparently most successful at doing this type of work and was able to find solutions rapidly. He had apparently built up a good reputation during that time.
Since the accident the plaintiff complains that he has suffered discomfort in his neck which he finds to be a distraction from his work. He finds that he becomes agitated and short‑tempered. He says he no longer uses the computer at nights at home other than for the purpose of receiving emails. He says this lack of use means he can no longer remain on top of current developments in the IT industry. He says as a result he considers his employment to be threatened.
The plaintiff claims his current upper thoracic spine and lower cervical spine symptoms were accident caused. I note the objective record of Dr Salleh (Exhibit 1.12) who described the complaint as being "slight degree of muscle sprain at the lower end of the right side of the neck". As I have noted I think it was always the left side rather than the right side and that is simply an error. The same morning the Joondalup Health Campus report (Exhibit 1.13) notes the plaintiff's complaint of left sided neck pain and examination revealed local tenderness in the left sternocleidomastoid muscle. These observations are to be contrasted with Mr Heglund's report of 21 March 2001 (Exhibit 1.2) in which he noted the plaintiff's complaint in the following terms:
"Immediately following the accident he began to experience discomfort in the low cervical and upper thoracic region as well as the left sterno‑cleido‑mastoidrus muscle. The plaintiff says symptoms came on immediately."
Whilst in general terms I found the plaintiff to be a credible witness I think it must always be difficult to remember back nearly 2 years and to recount the symptoms from time to time. In my view the contemporaneous records are always likely to be more reliable. They are taken by persons whose business and interest is to accurately record the complaints. In this case I prefer the objective evidence to be found by the report of Dr Salleh and the report from the Joondalup Health Campus.
Having said that, the plaintiff went to Mr Heglund on Monday 18 December. Clearly he was then suffering thoracic and lower cervical spine problems because, again objectively, Mr Heglund noted hyper mobility at T5/6, T/23 and C5/6 spinal levels with positive thermal instrumentation readings at those levels. Mr Heglund said one of his diagnostic tools was to take the temperature on each side of the spinal column and if there was a difference this was an indication of some problem in the area. I have no evidence to suggest that test is other than credible.
The plaintiff continued to see Mr Heglund from time to time. He was treated by means of spinal adjustments. At the end of January 2001 his symptoms had decreased to having some upper thoracic discomfort in bed only. But on 23 February 2001 he reported a recurrence of his upper thoracic pain, stiffness and pinching in the cervical region and dizziness. The adjustments relieved the symptoms but then, according to the plaintiff, they would reoccur from time to time and further treatment was sought.
In his report of 21 March 2001 (Exhibit 1.2) Mr Heglund does note:
"The nature of Mr Chin's work does presuppose him to some aggravation in the cervical and upper thoracic region. It has been suggested in order to minimise the strain on those areas that he stretches frequently and moves away from his desk at regular intervals. I am not aware of any periods of work incapacity to present."
In fact the plaintiff had taken no time off work as a result of any incapacity. He took 18 December 2000 off work in order to see Mr Hedlund but it was not his evidence that he was totally incapacitated on that date. On 18 June 2001 Mr Heglund acknowledged that the plaintiff had had some upper thoracic discomfort prior to the motor vehicle accident but did not at that stage believe he had regained his pre‑accident status.
On 22 June 2001 the plaintiff saw Dr Derrick Kuan at the Mindarie Medical Centre. He did so because the plaintiff's solicitors had written to Dr Salleh who had died and it appears Dr Kuan had taken over his practice. It seems Dr Kuan asked the plaintiff to come in rather than the plaintiff seeking his medical advice. At that time Dr Kuan noted the plaintiff's symptoms had almost completely resolved and he could see no reason for any further medical treatment anticipating the remainder of his neck pain would completely resolve. Notwithstanding that opinion, the plaintiff continued to receive chiropractic treatment from Mr Heglund without apparently any change in pattern.
On 16 August 2001 the plaintiff again saw Dr Kuan. Dr Kuan records the plaintiff complaining of ongoing occipital headaches, particularly at night. He notes the plaintiff did not complain of those headaches on 22 June 2001. Dr Kuan noted "Apart from this, there were no symptoms attributable to the accident." He noted in his opinion the plaintiff had no residual disability. His assessment was, "Mr Chin's symptoms appear to be mild, and do not appear to be affecting his daily activities significantly."
The plaintiff was then referred by his solicitors to see Dr Jack Edelman which he did on 5 September 2001. Dr Edelman records, "His current symptomology is that he wakes with slight neck discomfort but during the day as long as he keeps busy he does not feel much in the way of discomfort. There is some radiation into the thoracic area." This report from Dr Edelman seems to be at odds with the plaintiff's evidence as to his own symptoms. In his evidence the plaintiff claimed that he experienced constant neck discomfort which he found to be a distraction and to be an annoyance. Dr Edelman noted that on examination the plaintiff was found to be able to move his neck reasonably well and there were no adverse findings. He described the plaintiff's problems as a soft tissue problem related to his motor vehicle accident. Dr Edelman gave no explanation of that conclusion and was not cross‑examined about it. It appears he had not been told about the plaintiff's pre‑accident chiropractic treatment. He did say "the major cost would be for chiropractic treatment once a month for the next 12 months" by which I take him to be accepting that chiropractic treatment for 12 months from 5 September 2001 would be reasonable.
On 8 February 2002 the plaintiff was referred to Dr Gino Mastaglia. Dr Mastaglia reported the plaintiff telling him:
"He has been left with lower cervical pain with occipital headache and mid thoracic pain as well. The cervical pain that he has he has the need to crack his neck on a regular basis, usually every 20‑30 minutes otherwise it develops into a headache. Also looking up is particularly uncomfortable and does usually lead to a sub occipital headache."
These complaints are not consistent with the evidence given by the plaintiff. The plaintiff said that he tended to develop a headache after about 3 days of work each week, that is, by Wednesday. He made no mention of problems with looking up. Dr Mastaglia noted that the plaintiff had been able to continue working up until the time he saw him and he would be able to continue doing his present work for the foreseeable future. Dr Mastaglia said the plaintiff would have restrictions in competing in the open workforce because he "needs to avoid looking up, being fixed in one position for any period of time, he should avoid any repetitive movement of the upper limb and should avoid any lifting." Dr Mastaglia described the plaintiff's condition as a permanent physical disability amounting to 7.5 per cent. That assessment relates to workers' compensation concepts and is not an assessment of the kind required in this type of case. Dr Mastaglia did not give evidence, his report being tendered by consent.
I note in Dr Mastaglia's report there is no reference to the plaintiff having had back problems before the accident. Indeed he noted "he has always enjoyed good health leading up to the accident in question". It appears Dr Mastaglia was not told of the previous symptoms and previous treatment. It does I think result in there having to be some doubt as to the weight to be given to his opinion that the ongoing condition of the thoracic spine and cervical spine were caused by the accident. It might be argued that because Dr Mastaglia's report was tendered by consent that the defendant must be taken to be consenting to the contents of the report. Whilst in general terms that must be right, where, as in this case, there are slightly different conclusions to be drawn from the evidence, I do not see the Court is restricted in weighing up all of the evidence and coming to a conclusion which may be inconsistent with what is contained in the report which was tendered by consent.
The plaintiff was seen by Mr Heglund on 16 February 2002. Between 18 December 2000 and 16 February 2002, a period of 14 months, the plaintiff saw Mr Heglund on 14 occasions. The next time he saw Mr Heglund was on 29 June 2002, a gap of some 4½ months. In his report of 9 July 2002 (Exhibit 1.5) Mr Heglund does not make it clear whether that attendance was as a result of the plaintiff going to see him because of the need for treatment for his symptoms or whether it was arranged because of a letter from the plaintiff's solicitors dated 17 June 2002 seeking information for the purposes of this action.
On 23 September 2002 the plaintiff was again seen by Dr Edelman. There was no change in symptomology since September 2001. The plaintiff told Dr Edelman he was still attending the chiropractor every month or so. In both his earlier and later reports Dr Edelman related the soft tissue injury he said the plaintiff was still suffering from to be related to the motor vehicle accident. However Dr Edelman in his evidence said he had made no note of the plaintiff's pre‑accident chiropractic treatment. As it was to the same area, I am sure that if he had been told by the plaintiff, he would have noted it. As with Dr Mastaglia's opinion it must be coloured by that lack of information.
Dr Edelman records the plaintiff telling him he needed some intermittent time off work. That again is contrary to the plaintiff's own evidence. The plaintiff's evidence was that he finished work at about 3.00 pm having started early but there was no suggested he was off work from time to time because of his symptoms.
Dr Edelman noted:
"For his work as a computer software writer his future work capacity should be normal and has not been compromised. He will not have to retire prematurely from the work as a result of this accident."
Dr Edelman described the plaintiff's condition as mild to moderate and a percentage disability of the neck of 5 per cent. Once again that is not a figure I understand to be relevant to this action.
Dr Edelman suggested a gym strengthening programme at a cost of $500‑$600. He noted that chiropractic treatment once a month would be reasonable and said that over the next 12 months the cost of that would be about $500. In his evidence Dr Edelman said as the chiropractic treatment was non‑curative, an exercise regime should be tried. He said he advised the plaintiff to exercise. The plaintiff did not take Dr Edelman's advice and continued chiropractic treatment from time to time.
The plaintiff next saw Dr Kuan on 1 October 2002 at the request of the plaintiff's solicitors. Dr Kuan described the plaintiff as complaining of "slight neck discomfort, particularly on the left side. This worsens over the course of the day, however is never especially severe." Dr Kuan noted mild tenderness in the lower cervical area extending into the upper interscapular area. The plaintiff had an unrestricted range of movement. There had been no change in his symptoms. Dr Kuan said the plaintiff had a full capacity for his current work and was likely to retain such capacity. He said his future employment was unlikely to be compromised but he should avoid heavy manual occupations, including heavy lifting and repetitive movements of his upper limbs. Dr Kuan said injuries "are mild in nature". Dr Kuan suggested the plaintiff should have neck strengthening exercises recommending a gym or swimming.
Finally, on 2 October 2002 the plaintiff saw Mr Heglund. Mr Heglund did not report on any attendances by the plaintiff between June and October. The only evidence was generally of appointments every 6 weeks or so. There appears to be no material difference between the plaintiff's condition in October 2002 compared to previous reports. Mr Heglund noted:
"Symptoms after the accident were similar to the symptoms prior to the accident but more intense and frequent.
The motor vehicle accident has aggravated and intensified the problems prior to the accident.
Mr Chin's current symptoms are largely as a result of his accident."
In cross‑examination Mr Heglund explored the extent to which the symptoms had changed after the motor vehicle accident. I have to say his evidence that the current symptoms are related to any significant degree to the accident lacked precision. He relied upon a break of about 5 months between July and December 2000 as evidence that the pre‑existing condition had subsided. I note in Exhibit 1.5 a list of consultations since the accident. There were none between 16 February and 29 June 2002, a gap of 4½ months.
The plaintiff faces some difficulty because of his pre‑existing condition and because the nature of the work was always likely to predispose him to neck and upper back strain. It is difficult to measure the extent to which it was the motor vehicle accident as the sole or a real and substantial cause. Apart from the chiropractor, there has been no comparative evidence given of the plaintiff's medical condition before and after the accident. There were no x‑rays or other objective examination both before and after the accident which could demonstrate objectively any change in the plaintiff accounting for any changes in his work.

I find the plaintiff's neck strain was of short duration. The fact that by Monday 18 December 2000, only a few days after the accident on Friday 15 December 2000, the plaintiff's upper thoracic and lower cervical symptoms had returned, to be evidence of an exacerbation of those symptoms. That exacerbation continued for some months, but the nature of the plaintiff's work would also be likely to continue his problems. Certainly after the end of June 2002 I do not think any symptoms can be proved to relate to the accident.
The plaintiff's claim in this action is subject of the provisions of the Motor Vehicle (Third Party) Insurance Act 1943 and in particular amendments to that Act in 1994. Sections 3A‑3D apply. The Act imposes a ceiling on damages for non‑pecuniary loss which covers what would at common law be general damages. It also provides for no damages to be awarded unless a threshold is reached. Subsection (2) (3) and (4) provide:
"(2)The amount of damages to be awarded for non‑pecuniary loss is to be a proportion, determined according to the severity of the non‑pecuniary loss, of the maximum amount that may be awarded.
(3)The maximum amount of damages that may be awarded for non‑pecuniary loss is amount A, but the maximum amount may only be awarded in a most extreme case.
(4)If the amount of non‑pecuniary loss is assessed to be amount B or less, no damages are to be awarded for non‑pecuniary loss."
The amounts of those prescribed at the date of trial. At that date amount A was $240,000. Amount B was $12,000, namely 5 per cent of amount A. Accordingly, the proportion of the severity of the non‑pecuniary loss must be more than 5 per cent of such loss in a most extreme case. Where the proportion is greater than 5 per cent and up to 20 per cent then the proportion is increased by a sliding scale.
In Wylde v 'Arriaza, unreported; FCt SCt of WA, Library No 970359; 23 July 1997 Franklyn J said:
"In Southgate v Waterford (1990) 21 NSWLR 42, the New South Wales Court of Appeal considered the meaning and effect of s 79(2) of the Motor Accidents Act 1988 of New South Wales. Relevantly, it was the appellant's argument in that case that the 'proportion' there referred to was 'the resulting ratio which existed between the damages awarded on ordinary common law principles and the maximum amount recoverable as fixed by Parliament in s 79(3)'. At 437 the court said:
'The key word in s 79(2) which presents the fatal obstacle to the appellant's contention is "proportion". It is the duty of the court to award damages for non-economic loss only as "a proportion of the maximum amount which may be awarded". Dictionary meanings make it clear that this word imports a "comparative relation between things or magnitudes as to size, quantity, number, etc; a ratio a proper relation between things or parts ... a portion or part in its relation to the whole": see the Macquarie Dictionary (Revised ed) (1985) at 1362. The Shorter Oxford English Dictionary, 3rd ed (1944) at 1601, likewise suggests that the word imports the notion of a relationship:
"Due relation of one part to another; such relation of size, etc, between things or parts of a thing as renders the whole harmonious; balance, symmetry, agreement, harmony."
The foregoing dictionary meanings confirm the ordinary denotation of the word "proportion" as it appears in s 79(2). The court, which may not award damages except in accordance with that section, is therefore enjoined to look for the relationship between the "amount of damages to be awarded for non-economic loss" and the maximum amount which may be awarded, viz (relevantly) $180,000. The harmony or symmetry which is imported by the word would not be achieved if the relationship between the amount of damages awarded by reference to common law principle and the maximum were the accidental one established in the way the appellant urged. Adopting a construction of s 79(2) of the Act by which the maximum could be reached by the application of common law principles, although the case was not one properly described as "a most extreme case", conflicts with the obvious way in which the first three subsections of s 79 are intended to operate together. Accordingly, as a plain matter of statutory construction, the argument of the appellant cannot be accepted.'
and at 440:
'There are a number of ways by which trial judges could approach the task of apportionment required by s 79(2) and s 79(3). It is inappropriate in this case for this Court to mandate any particular way of arriving at the "proportion" required by s 79(2). But clearly, because the task in hand is that of awarding damages for "non-economic loss", it is appropriate for the trial judge to consider and make findings on those elements in the evidence which are relevant to such loss. This will require the judge to consider and make findings on the evidence relevant to those heads of damage formerly considered in the award of general damages. Then it is necessary for the judge to conceive "a most extreme case". Only for such a case may the maximum amount provided by s 79(3) be awarded. The use of the indefinite article "a" has already been noted. Opinions of what constitute "a most extreme case" will doubtless vary. But clearly quadriplegia would fall into that class. The amount to be awarded must then be apportioned somewhere between nil and $180,000; but in a ratio which the judge fixes keeping in mind the fact that the cap of a statutory maximum is retained for a 'most extreme case".'
and at 441:
'It is likely that, over time, experience will develop in assigning cases on the scale, just as earlier it did in the apportionment required for contributory negligence. But each case will necessarily depend on its own facts. At least in the first instance, the determination of the "proportion" is committed by law to the trial judge. He or she has the outside parameters which are fixed by the legislation. The task of determining the "proportion" which follows may not be scientific or normative; but it is not wholly at large. A wide measure of discretion has always existed in fixing damages for non-economic loss. All that this legislation does is to require that the damages under this head be fixed in harmony with the fact that Parliament has determined that a maximum will be laid down, varied from time to time and reserved for 'a most extreme case".'
In Hendrie v Rusli [2000] WASCA 420 the Full Court dealt more specifically with the notion of "a most extreme case" when it said in par [18]:
"It was accepted that the task was to find the right proportion between a most extreme case and the present. As to what might constitute a most extreme case, it was appreciated that a number of different types of cases of horrific injury involving extreme pain, loss of enjoyment of life, physical disability and the like might fall into that class. Paraplegia would certainly do so, particularly in a young person who might have an unaffected expectation of life and many years of disability and suffering ahead. As to how the right proportion is to be struck, appellate courts have simply reminded trial Judges that damages will continue to be awarded by reference to common law principles of assessment, and that there is, particularly in respect of non‑economic loss, a wide measure of discretion."
In this case the plaintiff had a pre‑existing disability to his upper thoracic and lower cervical spine. For a period of 5 months up to 6 months before the date of the accident he had received treatment about once a month. He had not sought treatment for 5 months prior to the accident. After the accident he suffered a strain to the left sternocleidomastoid muscle for which it appears he required no treatment. He had a nasal discharge which appears to have cleared up within a day or so. He had an exacerbation of his cervical and thoracic spine symptoms which required a period of chiropractic treatment. That treatment proceeded at about the same rate as had previously occurred for some 14 months. All of the medical reports indicate the level of disability suffered by the plaintiff post‑accident to be mild or mild to moderate. The nature of the plaintiff's work as a computer analyst was always likely to result in neck and upper back discomfort and it is difficult as time goes on to say the extent to which it was the motor vehicle accident as distinct form his ordinary office work and his pre‑existing disability that accounts for his symptoms. Apart from the first work day after the accident he has had no time off work. He says he has been unable to do substantial work on his computer at night because of discomfort in his neck. Prior to the accident he says he used to enjoy fishing and cycling but when asked about his current participation in those activities he explained he was not doing them because it was now winter. His evidence does not persuade me that there has been any significant level of effect upon his loss of enjoyment of life. His level of pain and suffering is I think mild as is demonstrated by his evidence in which he said the level of pain in his neck caused him after the third day of work to take Panadol, and over the counter analgesic, perhaps twice a month.
As a proportion of a most extreme case of the kind referred to in Hendrie (supra), I am of the opinion the plaintiff's symptoms are no more than 2 per cent.
Even if I am wrong in finding the plaintiff's symptoms after the end of June 2002 were not accident caused, was wrong, his problems are still mild. Even if he was to continue to have his current problems in the foreseeable future, I would still say they would only be 3 or 4 per cent of a most extreme case.
Accordingly there should be no award of general damages (non‑pecuniary loss) in this case.

Past loss of earning capacity

On 18 December 2000 the plaintiff was absent from work in order to see Mr Heglund. Counsel for the defendant has indicated that it was never in dispute that the plaintiff should have been paid for that day but it does not appear that the has occurred. The amount claimed which is not disputed is $155.97 plus interest of $6.96, a total of $162.93. I would allow his claim for that amount.

Future loss of earning capacity

On my finding that the plaintiff's symptoms since the end of June 2002 cannot be proved to be caused by the accident, there should be no award under this head.
But if I am wrong, I would make the following findings. The plaintiff claims what is described as a global sum under this head. He does so on the basis that his ability to perform in his career as a computer analyst has been weakened by his injuries. He says it is a highly competitive industry in which there are frequent changes in technology and in order to remain abreast of those changes he needs to spend considerable time working on his computer out of office hours. He said prior to the accident he would frequently work between the hours of 4.00 pm and 6.00 pm and 10.00 pm and midnight during which time he would then be completing tasks at work or researching developments. He says that as a result of his injuries he finds he becomes tired and irritable at work. He says that he does not feel he is performing as well as he was and he is concerned that he might be retrenched.
The objective facts do not bear out the plaintiff's concerns. At the time of the accident he says there were about 30 people employed by the company in his general area of work. Since that time 15 people have been retrenched but it is noteworthy the plaintiff is not amongst them. Robin Anthony Lehmann, the plaintiff's former supervisor, gave evidence as to the plaintiff's performance. He said that whilst he had noted a drop‑off in the plaintiff's ability to work, there was no change in his work ethic and he was able to perform the work required of him and meet the appropriate deadlines. It may well be that there has been a change to what might be described as the plaintiff's competitive edge but it has not manifested itself in any lack of ability to perform work to a sufficient standard so as to maintain his position when others about him were losing theirs. In the financial year ended 30 June 2001 the plaintiff earned $32,900. The next year it was $37,000. Mr Lehmann himself was retrenched some 6 months ago. He was, of course, not in a position to give evidence about the risks to the plaintiff's employment because of any subjective perception by the plaintiff of a change in his performance. No representative of the plaintiff's employer was called to give evidence. Accordingly I am not satisfied there has been any real risk to the plaintiff's employment in his current position.
To the extent the plaintiff has had an upper spine disability occasioned to some extent by the accident his capacity to earn is diminished. However he cannot recover damages under such a head unless "the diminution of his earning capacity is or may be productive of financial loss". Graham v Baker (1961) 106 CLR 340, 347. See also Watts v Turpin [1999] WASCA 216, par 38.
Given the plaintiff has suffered a potential diminution in his capacity to earn as a result of not being able to undertake heavy labouring work and the like, is that incapacity productive of or is it likely to be productive of economic loss. The information technology industry is a highly competitive one and one which is clearly developing. Despite any incapacity, the plaintiff has been able in the nearly 2 years since the accident to continue working in that industry without any diminution of income and indeed with only one day off work. He is clearly well motivated to work in the industry and his abilities are no doubt recognised by his continued employment when others in the company had been retrenched.
In my opinion there is no sufficient evidence to demonstrate any loss of earning capacity will be productive of economic loss and accordingly the plaintiff's claim for future loss of earning capacity must be dismissed.

Future medical expenses

As with future loss of earning capacity, if the plaintiff's future problems cannot be proved to be accident caused, there could be no award under this heading.
If I am wrong, I make the following findings. Mr Heglund suggests the plaintiff might need to continue to have regular treatments for an indefinite period, perhaps for the whole of his life. Dr Kuan is of the view that no further treatment is warranted. Both Dr Edelman and Dr Mastaglia seem to indicate a limited future period of chiropractic treatment but both suggest as an alternative a fitness regime would preferable
In a most helpful schedule of loss the plaintiff particularised his claim for future medical treatment. It seems to me on the evidence that some allowance should be made for chiropractic treatment, some allowance for advice on appropriate exercises, some modest allowance for a gym, recognising that most exercises are capable of being done at home and some allowance for yoga, tai chi, swimming and a cervical traction kit. No‑one however suggests all of these things are necessary and the plaintiff will need to make choices as to which, if any, he considers to be appropriate. There is a claim for an ergonomically corrected work station in the sum of $1,000 but there has been no evidence of the nature of the work station used by the plaintiff at work or as to what is required to fix it or as to the cost of so doing. There is a global claim for $1,150 for analgesics and anti‑inflammatory medication but clearly this is grossly exaggerated. The cost of Panadol twice a month was not calculated but would I think be quite minimal and readily taken into account in a global figure.
This is not a case in which I think it possible to make any mathematical calculation of future medical expenses. In my opinion a modest some of $1,000 is adequate to cover future medical expenses.
I would allow judgment for the plaintiff in the sum of $162.93 for past loss of earning capacity and interest.