| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : CLAFTON -v- TODD [2004] WADC 256 CORAM : O'BRIEN DCJ HEARD : 14 NOVEMBER 2004 DELIVERED : 17 DECEMBER 2004 FILE NO/S : CIV 2787 of 2003 BETWEEN : KARYN DIANNE CLAFTON Plaintiff
AND
MARLENE TODD
Defendant
Catchwords: Motor vehicle accident Damages Turns on own facts
Legislation: Workers' Compensation and Rehabilitation Act 1981 s 67(2), s 76
Motor Vehicle (Third Party Insurance) Act 1943 s 3D(6), s 3D(7)
Result: Damages awarded
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Representation:
Counsel:
Plaintiff : Mr T Lampropoulos
Defendant : Mr P R Momber
Solicitors:
Plaintiff : Ilberys
Defendant : Peter Momber
Case(s) referred to in judgment(s):
Southgate v Waterford (1990) 21 NSWLR 427
Case(s) also cited:
Nil
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1 O'BRIEN DCJ: On 18 February 2000, the plaintiff was driving her car along Canning Highway. She was stationary waiting to turn right when her car was rear ended by a car driven by the defendant. The defendant was travelling at a speed of about 70 kilometres per hour. The force of the collision caused the plaintiff's car to spin about 180 degrees and into the path of an oncoming car. The plaintiff's car was a write off.
2 The defendant admitted liability in negligence for the accident. 3 The issue in this trial is whether the plaintiff suffered injuries in the accident sufficient to cause her permanent incapacity for work. 4 The issue is complicated by other injuries the plaintiff suffered prior to the accident, including work related injuries. 5 The defendant pleaded a general defence and put the plaintiff to proof that her injuries were caused by the accident and caused permanent incapacity for work. The defendant in effect asked the court to draw an inference that the plaintiff's injuries are either not related to the accident or have been exaggerated for reasons including the following: • The vast majority of consultations the plaintiff had with her general practitioner, Dr Sembi, are specifically noted as being relevant to her work related injuries and not accident related injuries; • Dr Sembi's notes make little mention of complaints about back pain until 3 July 2000 when the plaintiff jarred her back at hydrotherapy; • After Dr Sembi informed the plaintiff that the employer's insurer would not accept liability for massage and hydrotherapy, the plaintiff complained of lower back pain with more regularity; • After her workers' compensation claim was settled, the plaintiff did not seek further treatment for the work related injuries.
The motor vehicle accident 6 The plaintiff described the accident as follows. Her car was stationary and she had her foot on the brake waiting to turn right. She saw the defendant's car in her rear vision mirror and described it as being "a fair way back". She was waiting for an oncoming car to pass before turning right. 7 She felt a bang and believed that she had been knocked unconscious "momentarily" and felt pain in her head. She felt her car being "forged
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ahead very quickly" and start to spin. Then she felt another bang and that was when she hit the oncoming car. 8 She said: "Instantly, I had this sore … I had a bump on the head but my neck and my whole body felt like it had just twisted like a corkscrew, especially my neck". 9 She said that at the scene, that she felt her head and neck and whole body "feeling twisted". 10 She was admitted to Royal Perth Hospital for observation. She got up to go to the toilet and had a sharp pain down her leg and in the right buttock. She also suffered a bump on the head and bruising to her eyes and across her chest from the seat belt. 11 The duty doctor advised her to see her general practitioner and to have X-rays done. 12 In the weeks following the accident, the plaintiff said that the "whip lash" was the "immediate and the worse pain". The plaintiff testified that her neck swelled up at the front, that she was having difficulties swallowing and had severe pain right around the neck, particularly on her jaw line. 13 The plaintiff testified that after the accident she felt very shaky and nervous about driving. She had difficulty sleeping with flash backs of the accident for a couple of months. She was very jumpy as a passenger in a car. 14 The plaintiff was certified unfit for work for three weeks. She testified that the main injury suffered in the accident was to her lower back, specifically the sacroiliac joint which had become unstable. However, the plaintiff's evidence, supported by the medical evidence, is to the effect that injuries which she suffered at work were exacerbated by the accident. 15 Since the accident, the plaintiff claims that she has suffered ongoing pain in the back, neck, right upper buttock, right leg, hip, groin and pelvis area. She also claims that her on-going disabilities include displaced posture, inflammatory damage to her right sacro-iliac joint, on-going headaches, disturbed sleeping pattern, mood swings and restriction in her movements and function.
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16 The plaintiff claims that her disabilities have required her to have assistance in the performance of her household and domestic duties.
17 The plaintiff also claims that she will be unable to return to the workforce in the future.
The plaintiff's work history 18 The plaintiff left school in Year 10 and attended night school doing a typing course. 19 From 1965 to 1967 the plaintiff worked with the Salvation Army as a full-time receptionist/typist. 20 The plaintiff was first married on 13 December 1969 and had three children. There are no specific details as to the time she took off work to look after her children but it would appear this was the case. 21 From 1987 until 1994, the plaintiff worked as an office secretary and administrator with the Uniting Church for about 20 hours per week. She was typing on "an old electric typewriter" and developed "problems" with her hands and elbows due to repetitive typing. This condition appears to have been diagnosed as psoriatic arthritis. 22 In 1995, the plaintiff did a retail course and from then on worked in the retail trade. This was because of the arthritis experienced in her former occupation. 23 From 1995 until 1998 the plaintiff worked in a card shop as a shop assistant. Thereafter until May 1999 she worked full-time as a pharmacy assistant at a pharmacy. 24 In May 1999 the plaintiff married for the second time. From 17 May 1999 to 22 August 1999 she reduced her hours to three days a week. 25 On 23 August 1999 the plaintiff commenced work at Chemart as a part-time pharmacy assistant. 26 Three weeks after the accident, the plaintiff went back to work and found that a friend of the manager's wife had filled her job. Her hours were cut down over a period of about two months to around 12 hours a week, then eight hours and eventually to three hours per week. The manager became very unpleasant and rude towards the plaintiff.
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27 In April 2000 the plaintiff stopped working. This appears to be by mutual agreement between her employer and her.
Summary of previous injuries 28 The plaintiff was born on 24 July 1950 and is now 54 years old. When she was 16 years old, the plaintiff fell down some stairs and landed on her "tail bone". She did not experience any symptoms until she was about 18 years of age when she felt pain in her back as she was moving furniture. A doctor told her that she may have fractured her tail bone and that it would heal itself. 29 Since the furniture removing incident, the plaintiff has experienced occasional pain if she over-exerts herself, for example, by gardening or shifting furniture. 30 In early August 1999, the plaintiff was working out at her gym using what is commonly referred to as an "ab roller". This is a piece of equipment which is assists sit-ups. The plaintiff felt a twinge in her neck ("the gym injury"). Over the next few weeks, her neck pain worsened. On 29 September 1999, Dr Narula performed a C5-6 cervical fusion. Simply put, this operation involves the insertion of a metal cage at the C5-6 level of the plaintiff's spine. 31 The plaintiff recuperated for about three weeks and then went back to work. She had commenced work as a pharmacy assistant at Chemart on 23 August 1999. At the time she was working 22 hours per week. 32 On 19 November 1999, the plaintiff was standing at a sink at work when a box of nappies fell from a shelf and struck her on the neck and shoulder. The force of the blow knocked her down. Another box then fell off the shelf and hit her in the centre of her back. Each of the boxes weighed 3.6 kilograms. 33 The plaintiff immediately experienced "severe" pain to her neck and shoulder. 34 She claims that her neck symptoms were aggravated and that she suffered an injury to her left shoulder. 35 The plaintiff did not take time off work. However, on 7 December 1999, she lifted a box of perfumes and further aggravated her neck and shoulder symptoms. I shall refer to the incidents on 19 November and 7 December as the "work place injuries".
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36 Until that stage, the plaintiff's employer had been paying her medical bills. However, after the incident on 7 December 1999, her employer required her to make a workers' compensation claim. Her working hours were reduced by mutual agreement, from 22 hours to 15 hours per week.
37 The plaintiff's main symptoms at this stage were pain in her left shoulder and pins and needles in her left arm. Every time she moved her arm, she experienced sharp pain where the shoulder joins the arm. The pain would radiate up the left side of her neck. 38 Mr Halliday performed arthroscopic surgery on 16 August 2000 on the plaintiff's left shoulder. She wore a sling for a few weeks. The plaintiff testified it took at least 12 months for her to regain reasonable movement. She testified that it was only in the last 12 months that she has had full rotation of her shoulder.
Post accident injury 39 There is reference in the notes of Dr Sembi, who has been the plaintiff's general practitioner for 14 years, of the plaintiff jarring her back during hydrotherapy treatment on 3 July 2000. The plaintiff was not asked any questions about this incident by either counsel. Dr Sembi testified that the plaintiff was under going hydrotherapy for her work related injuries. The defendant does not plead that the hydrotherapy incident was the cause of the plaintiff's lower back pain or that the chain of causation has been broken by the incident.
Workers' compensation claim 40 The plaintiff had been receiving workers' compensation payments as a result of the work place injury on 19 November 1999. There was a conciliation conference on 15 November 2002. On a date unknown between 15 November 2002 and 19 January 2003,the plaintiff settled her compensation claim in the sum of $20,000. 41 It would seem that the plaintiff was paid workers' compensation for a 26 per cent disability of her shoulder which was not considered to be permanent. 42 The memorandum of agreement pursuant to s 76 and s 67(2) of the Workers' Compensation and Rehabilitation Act 1981 refers to the nature of the disability as "originally neck and left shoulder" and at the time of settlement "left shoulder, left arm".
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43 The total amount paid to the plaintiff including her weekly payments and expenses was $87,281.83.
44 As far as I can make out from the evidence, the plaintiff was certified as unfit for work from early April 2000 until settlement of her workers' compensation claim. At one or more stages during that time she was certified fit for light duties. However, she did not return to work. She participated in two work trials but was unable to cope due to her work place injuries.
Present symptoms and lifestyle 45 The plaintiff testified that she experiences pain in her sacro-iliac joint for 98 per cent of the time. The pain travels down the side of the right hip to the top of the leg bone. Sometimes it affects the groin or pelvis area. Sometimes the pain travels to the knee, ankle and toes. 46 Walking too quickly aggravates the pain. The plaintiff testified that she has to press up on her right leg when going up stairs, and when entering a car must swing her legs in together to support her right leg. She testified that she tries to walk at a reasonably slow pace but finds that she has pain later on in the evening. 47 The plaintiff testified that her "intimate relationship" with her husband was affected. By June 2000 she and her husband could no longer go ball room dancing. She stopped going to the gym. 48 Before the accident the plaintiff was a keen gardener but can no longer shift heavy things. She cannot sit for long periods. She can only drive a car for 10 minutes before experiencing pain down her leg. She uses a posture pod when driving. When in bed she places a pillow between her knees and wears a back support to try to keep the sacro-iliac joint stable. She also uses heat patches to relieve the pain. 49 She found that when she lifted up her grandson she felt a pain in her buttock and was advised by the physiotherapist to be mindful of every activity she undertakes. 50 Before her husband died, he would do the heavier house keeping jobs such as vacuuming and cleaning the shower. They went shopping together and her husband would push the trolley. 51 The plaintiff testified that two or three times a week her daughter drops in to stretch her leg which gives her some relief from the pain.
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52 Since her husband's death, the plaintiff's daughter has dinner with her every Tuesday and on occasions does the vacuuming, scrubs the shower and any other job that needs doing. The plaintiff testified that she has a light battery operated carpet sweeper.
53 The plaintiff testified that she does not have difficulty with jobs which involve using her upper body such as hanging out the washing if the clothes are in a trolley. She unloads the front loading washing machine by sitting on a little stool. 54 A man is employed to mow the lawn every three weeks and does the weeding on request. 55 Ms Sherry Heany, the plaintiff's daughter, testified that she would pull her mother's leg on average about 2 or 3 times a week. She testified that she helps the plaintiff with various household chores but was unable to specify how often this would occur but said it would be at least once a week. This would be either at the plaintiff's request or she would offer to assist. 56 The first five prolotherapy injections inserted by Dr McCallum helped ease the pain but the last two made no difference at all. I refer to these below. 57 The plaintiff testified that she has massage therapy once a fortnight and sometimes more frequently. Her masseur also stretches her leg. 58 The plaintiff testified that she takes pain killers and uses anti-inflammatory cream more then once every day. She uses heat patches every day and has a portable heat pack. 59 She continues with the physiotherapy when the massage or leg pulling do not provide relief from the pain.
Work capacity 60 The plaintiff testified that she was hoping that all her injuries would be resolved so that she could return to work 22 hours per week which she was working after her second marriage. She reduced her hours from full-time when she married. However, she testified that because of her husband's sudden death leaving such a gap in her life that she would like to return to work into her sixties.
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The medical evidence
Dr McCallum 61 Dr McCallum is an orthopaedic surgeon who has been treating the plaintiff since 3 August 2001. His initial opinion was that the "quite marked multifidus wasting that is evidence in the lower lumbar spine which will affect the stability of the sacro-iliac joint". 62 Dr McCallum described a number of injuries. He testified that the most predominant injury was an injury to the right sacro-iliac joint. There was also an injury to her thoracolumbar spine which was a soft tissue injury. He said that there were secondary injuries to the plaintiff's pelvic floor. However, the plaintiff did not plead injuries to the pelvic floor and gave no evidence about them. I do not intend to discuss that particular injury any further. 63 He testified that the cause of the injuries was the very high rotational injury of the accident and the fact that the plaintiff's foot was on the brake on impact which cause a force to come up through her right leg into her right pelvis and hence into the sacroiliac joint. The specific injury to the sacro-iliac joint was "at least a stretching of the deep interosseous ligament," but the sacrotuberous and sacrospinous ligaments and the long dorsal ligament of the pelvis were also affected. These injuries led to the instability of the sacro-iliac joint. 64 Dr McCallum testified that activities such as walking, running, jumping, swimming, going up stairs, and turning over in bed can displace the joint. He said that patients quickly learn what their capabilities are. 65 Under cross-examination, Dr McCallum referred to a bone scan taken on 26 February 2002 which reported: "The sacroiliac joints show bilateral changes posteriorly more marked on the right side in the lower aspect of the sacrum and the right acetabulum has diffused low grade increased uptake without any femoral head abnormality adjacent to this". 66 Dr McCallum testified that this finding supported the view that the ligaments around the sacroiliac joint had been stretched. 67 Dr McCallum testified that when he first saw the plaintiff August 2001 she was incapable of work. In 2003, she had improved. In his view, the plaintiff was then capable of doing three to four hours work at a time.
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68 When Dr McCallum saw the plaintiff on 8 September 2004, he reported that she was "a great deal better" than when she first presented. However, she was not pain free. She still had pain in the region of the right buttock radiating into the right trochanteric area (lateral hip), pain in the lateral thigh into the anteroom-lateral knee area and down into her ankle. She experienced pain if she drove a car for 10 minutes or walked over 10 metres; general physical activity made her sore.
69 Under cross-examination, Dr McCallum testified that the plaintiff had regressed when he saw her in 2004. He noted that it was "significant" that her husband had died in the meantime and wondered if there was some other factor which contributed to her regression. 70 He testified that the plaintiff's ability to work had vastly improved, her ability to stand for a period had improved significantly but he was unable to express a view as to whether the plaintiff would be able to sit or stand for long enough to be employed for economic reward. 71 Dr McCallum testified that the plaintiff would have difficulty in sitting and standing for an extended period. There would be some problems with bending and intermittent pain associated with carrying objects. 72 Dr McCallum is one of few medical practitioners in this State who use prolotherapy as a treatment for back (and other) pain. This involves injecting the relevant ligament (here the right dorsal interosseous) with a solution of glucose under radiological guidance. 73 Dr McCallum injected the plaintiff seven times over a period of three years. Five of these injections provided some relief from pain. The plaintiff testified that the last two made no difference.
Ms Nola Pericles 74 Dr McCallum referred the plaintiff to Ms Nola Pericles, a physiotherapist, who has specialised in joint problems and manipulative therapy with experience since 1971. 75 Ms Pericles has treated the plaintiff over 80 times since first seeing her on 6 August 2001 until 28 October 2004. 76 Ms Pericles reported on 20 October 2004 that: "The prolotherapy has stabilised the joint considerably but it does not have normal tightness and [the plaintiff] still needs to
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take care with all activities or the sacro-iliac joint and pelvis will not be centered causing an increase of right groin and leg pain". 77 Ms Pericles testified that her aim was to stabilise the joint in conjunction with the prolotherapy. Treatment included manipulation, taping the joint and exercises which the plaintiff performed. Ms Pericles testified that the plaintiff was "very good" at looking after her condition. Ms Pericles testified that the plaintiff's condition was not curable but was treatable. 78 Ms Pericles also noted a big improvement in the plaintiff's condition since 2001 when she was in constant pain and when her functionality was poor. She said that the plaintiff can now sit and stand for much longer and her functionality is about 70 per cent better now than was initially. However, the plaintiff still experiences pain but the intensity is "considerably better". 79 It would appear from Ms Pericles' evidence that there has been considerable improvement in the plaintiff's functionality. This has resulted from the combination of prolotherapy and physiotherapy over the last three years. However, she would not expect the pain to completely resolve. Pain levels would be dependent on the activities pursued by the plaintiff and on-going treatment to keep the joint stabilised.
Dr Harper 80 Dr Harper, an occupational physician, reviewed the plaintiff once on 24 January 2003 and again on 17 September 2004. He was of the view then that the plaintiff was incapacitated for all forms of gainful employment and "based on the nature of her symptoms" he believed it unlikely that the plaintiff would be able to return to the work force in the future. He stated that the plaintiff's restrictions include the avoidance of climbing stairs, walking, prolonged sitting or standing, lifting or bending. 81 Dr Harper stated that the principal causes of the plaintiff's disability was thoracolumbar, sacral and hip pain which were absent prior to the accident. Given that the plaintiff was symptom free in this regard before the accident and that her disabilities are consistent with the nature of the accident, he felt it "probable" that the accident had caused her to retire from the work force. Under cross-examination, Dr Harper said that 80 per cent of those who complain of back pain do not have any radiological evidence to explain it.
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82 After his examination of the plaintiff in September 2004, Dr Harper's opinion was not altered. He was of the view that the plaintiff cannot compete for work in the open work force and that she is 100 per cent unemployable as her condition is permanent.
Dr Kagi 83 Dr Kagi, a consultant orthopaedic surgeon, examined the plaintiff on 9 December 2002 at the request of the defendant's insurer. The only findings of significance by Dr Kagi are: "Some evidence of lack of correlation between symptoms and signs observed at examination (the difference between straight leg raising whilst seated and supine and the ability to sit up and near touch her toes whilst seated compared to her inability to flex past her knee with her finger tips whilst standing). These observations together with the setting of the motor vehicle accident and the recovery period of a work caused injury to her left shoulder, make me suspect that there may well be non-organic factors contributing to her presentation." 84 However, Dr Kagi reviewed a CT scan taken on 5 July 2001 and his "generous interpretation" was the identification of a bulge at L4/5 which he said could account for her "sciatica". 85 Dr Kagi was of the view that the pain the plaintiff experienced in her right buttock was "most likely to be a right sciatic radiculopathy and the site of the pathology could well be the L4/5 intervertebral disc demonstrated on the CT scan dated 5 July 2001". 86 The plaintiff reported that the mid thoracic left rib and sternal pain came on 6 months after the accident and he thought that this is more likely to be "Tietze's syndrome, inflammation of the costochondral region of the thorax of uncertain origin rather than being traumatic in origin…[the] degenerative changes in her thoracic spine …could be underlying the thoracic spinal complaint". 87 Dr Kagi's examination revealed a discrepancy in the signs and symptoms as explained by him. It is difficult to attach much weight to his opinion given that he only saw the plaintiff once; that he stated that further investigation to prove or otherwise the diagnosis of sciatic radiculopathy could include an MRI scan of the lumbosacral spine; and that there is no evidence that he was provided with or had access to any
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medical reports other that X-rays done in 2000, 14 August 2000, 5 July 2001, and a bone scan done on 26 February 2002.
Dr Silbert 88 Dr Silbert is a neurologist who was called by the defendant and who reviewed the plaintiff at the request of the defendant on 28 January 2002 after performing an EMG on 26 November 2001. 89 He was of the view that the left shoulder pain experienced by the plaintiff was caused by boxes of nappies falling on her at work. He testified that he felt it was important in his opinion that in the week before the accident, Dr Sembi had injected that plaintiff in the shoulder to relieve her arm pain and this had "good effect". In his report dated 28 January 2002, Dr Silbert opined that the accident "may have aggravated her cervical symptoms, and may be a minor contributor to her left arm symptoms, but…the majority of [the] symptoms relate to the left shoulder". Without factoring in the low back pain of which he was aware at the time of examination, Dr Silbert was of the view that the plaintiff would be fit to return to work on a full time basis as a pharmacy assistant but should not be involved in lifting anything above shoulder height. 90 Dr Silbert's evidence is relevant to the issue of the cause of the arm and shoulder pain which he attributed to the shoulder and not the neck. He was further of the view that the accident could have aggravated the shoulder pain in a minor way.
Psychological Report 91 The plaintiff testified that she consulted with Ms Bower on the recommendation of her solicitor to ascertain to what extent the accident had affected her psychologically. Ms Bower's report dated 26 September 2001 simply confirms the distress and pain suffered by the plaintiff. The report is not relied upon to support a claim for damages for nervous shock and post-traumatic stress disorder which was abandoned during the course of the trial.
Dr Sembi 92 Dr Sembi is the plaintiff's general practitioner who has been treating her for 14 years. The defendant relies to a large extent on Dr Sembi's evidence in cross-examination to cast doubt on the accident as the cause of the plaintiff's present symptoms and the extent of her disability.
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93 Dr Sembi's notes reveal that the plaintiff consulted one of his colleagues on the day of the accident and complained of pain in her low back between her shoulders and across her chest region. She was tender at C7-T6 and at L3/5. There is no specific mention of low back pain in Dr Sembi's notes until 3 July 2000 when the plaintiff reported that she had jarred her back whilst doing hydrotherapy four weeks earlier. Hydrotherapy had been prescribed for her work related injuries. In the meantime, in consultations under the [abbreviated] heading "workers' compensation", the plaintiff had been treated for shoulder and neck pain.
94 On 3 July 2000, the plaintiff complained of low back pain and pain in her right hip. Her right sacro-iliac joint was noted as tender but no tenderness was noted on the left. 95 On 4 August 2000, the plaintiff complained of pain in her right lower back radiating into her hips. She was tender over her right sacro-iliac joint and into her right gluteal area. Dr Sembi testified that he attributed this to the jarring incident at hydrotherapy. 96 From then on, the plaintiff made intermittent mention of low back pain. On 31 January 2001, Dr Sembi reported the plaintiff's complaint that her low back pain had been playing up since the accident. Thereafter there are several notations about back pain. 97 In August 2001, Dr Sembi referred the plaintiff to Dr McCallum. Thereafter, Dr Sembi's involvement in the treatment of the low back pain was to update referrals and renew prescriptions. Dr McCallum took over the substantial management of the plaintiff's back condition in conjunction with Ms Pericles.
Video surveillance 98 The defendant tendered three video tapes recording the plaintiff's movements on 15 November 2002, 7 and 8 June 2003, and 16 and 17 August 2004. 99 The surveillance video tape recorded the plaintiff shopping, driving a car, entering and exiting a car, and attending a barbeque in a public place. 100 In my view, there was no behaviour of the plaintiff which was inconsistent with her reported symptoms. The video tape recorded on 7 and 8 June 2003 depicted the plaintiff rubbing her back briefly as if she were in pain. However, in this vision, she appears to be walking more easily than shown in the earlier vision. This is consistent with
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Dr McCallum's evidence that the plaintiff made some improvement in 2003 after physiotherapy. The video tape recorded on 16 August 2004 depicted the plaintiff getting into the driver's side of the car on two occasions. She did so slowly and apparently tentatively. She entered the car by sitting on the seat and swinging both legs into the car in the manner described in her evidence. 101 There was no vision of the plaintiff bending, lifting any heavy objects, squatting, walking briskly, or otherwise doing anything inconsistent with her reported symptoms. 102 Dr McCallum testified that certain of the plaintiff's postures when standing confirmed the presence of her reported symptom of low back pain.
Causation 103 The plaintiff testified under cross-examination that three days before the accident, the pain in her shoulder was getting worse and that she was not coping. She said that her shoulder and neck pain were the main reason for leaving the job but she was also experiencing leg pain. She said that she was incapacitated because of her shoulder but "the other" (I infer the back pain) was increasing. She agreed that she did not complain to Dr Sembi that the accident injuries were so disabling that she could not work. 104 It would seem from the plaintiff's account, that on legal advice, she was keeping the work related injuries, which were the subject of legal proceedings connected with workers' compensation, separate from the accident related injuries which were the subject of a so called "MVIT" claim. 105 When being treated by Dr Sembi for the work related injuries the plaintiff said that her accident related injuries were "on the back burner" and being handled by a massage therapist as those injuries were then not as severe as her shoulder problem. She was receiving massage therapy for her back pain. 106 By August 2001, Dr McCallum had taken over the management of the plaintiff's back pain and was providing treatment in conjunction with Ms Pericles. The plaintiff was obliged to see Dr Sembi regularly about her work related injuries because she was on workers' compensation and regular medical reports were required for the payment to continue. Dr Sembi had told that plaintiff that there was nothing further he could do
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by way of treatment for her work related injury. Once the workers' compensation claim was settled she had no cause to see Dr Sembi about the work related injuries which had substantially resolved by then. 107 I accept that the plaintiff was more concerned with her shoulder (and neck) injury which did not substantially resolve until 12 months or so after the arthroscopy. This could explain the relatively few references to the "MVIT" claim in Dr Sembi's notes. The work related injuries preceded the accident. The work related injuries were clearly causing her the most pain until the arthroscopy was performed. The issue was complicated by two sets of legal proceedings relating to the two sets of separately caused injuries. 108 Dr McCallum testified that the accident was the cause of the injuries for reasons outlined above. 109 There was quite lengthy cross-examination aimed at discrediting Dr McCallum's opinion as to how the impact might have caused the injury. This was predicated on counsel's description of himself as a "layman". In the end result, Dr McCallum was not swayed in his view as to how the impact caused the injury and there was no other evidence to the contrary. 110 Given that: (a) Dr Sembi informed the plaintiff that the insurance commission would not pay for hydrotherapy; (b) There is relatively little mention of low back pain in Dr Sembi's notes from 15 February 2000 until the present time, given the plaintiff's evidence of continuing, significant and incapacitating back pain; (c) Once the workers' compensation claim was settled, no further treatment for the work related injury was recorded. 111 The defendant submits that an inference can be drawn that the plaintiff exaggerated her back pain in order to maximise her claim for damages for the accident related injury. 112 However, the numerous consultations under the workers' compensation heading were no doubt required by the employer's insurer in order to justify the continuation of workers' compensation payments. 113 The plaintiff testified that Dr Sembi was unable to do much more for her work related injuries. It is a reasonable inference to draw that the
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plaintiff did not require the frequent medical updates for her work related injuries after settlement. I accept the plaintiff's evidence that her work related injuries were her main pre-occupation even post accident It may have been the case that the plaintiff's back pain was improving as might be expected until the hydrotherapy incident. Since that incident, the plaintiff's back pain worsened. The defendant does not plead that this incident was an intervening event breaking the chain of causation. 114 I have no doubt whatsoever that the plaintiff has suffered low back pain since the accident. The diagnosis made by Dr McCallum, her treating specialist since August 2001, is substantially unchallenged. The plaintiff has undergone invasive and painful treatment (prolotherapy) since August 2001. She has had physiotherapy no less than 80 times since first consulting Ms Pericles. She has attempted to manage her condition with massage therapy. She has made every effort to minimise her pain and improve her functionality since the accident. There is not the slightest suggestion from Dr Sembi, Dr McCallum or Ms Pericles that the plaintiff's condition is not genuine, or that she is malingering. My own impression of the plaintiff as she testified, and as she was closely and probingly cross-examined, is that she was a truthful witness who was not attempting to exaggerate her symptoms. 115 In my view, it is more probable than not that the plaintiff did incur the low back injury in the accident. My reasons for this finding include: • There is no evidence of any recent or significant back pain prior to the accident; • The plaintiff's description of the accident; • Dr McCallum's explanation as to how the injury to the sacroiliac joint was caused by the impact; • The plaintiff's description of the pain and impact on her functionality and lifestyle since the accident, which I accept; • The invasive and ongoing treatment she has received which has alleviated her pain to some extent; • The evidence of Dr Sembi, Dr McCallum and Ms Pericles as to the plaintiff's symptoms which substantially confirms the plaintiff's account.
The plaintiff's work capacity 116 It is clear that from the date the plaintiff stopped working until her workers' compensation claim was settled in November 2002, she was
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unable to work because of her work related injury regardless of whatever pain she had in her back. However, at the same time, she was complaining of lower back pain which was being treated initially by massage and hydrotherapy and from August 2001 was managed by Dr McCallum and Ms Pericles. 117 Under cross-examination, the plaintiff testified that she might be able to work as a ticket seller if she had the opportunity of applying heat packs when in pain and depending on whether she was "having a bad day or a good day". However, she would not be able to work without interruption to her work and she had no training in that type of work. 118 Dr McCallum reported after reviewing the plaintiff on 13 January 2004 that "[It] is obvious that she is not yet stable enough to maintain a standing posture to allow her to return to work, so as far as I am concerned, she is still unfit for work". Dr Harper testified that the plaintiff cannot compete for work in the open work force and that she is 100 per cent unemployable as her condition is permanent. 119 However, it would seem that with on-going treatment, along the lines described by Dr McCallum and Ms Pericles, and with careful personal management of her condition, the plaintiff may be in a fit condition to work for short periods at a time in a job which would not aggravate her back injury. 120 An assessment in mathematical terms is difficult to make. Doing the best that I can, I would assess the plaintiff's on-going incapacity for work at eighty per cent. 121 Summary of specific findings in relation to the accident related injuries 122 It does not seem to be in dispute that the plaintiff's work related injuries were aggravated by the accident. In the week or so prior to the accident Dr Sembi had treated her with injections which provided some relief. Since the accident, the pain from her work related injuries increased. There is no evidence specifically addressing the prognosis in relation to the work related injuries but for the accident. It is difficult to make any assessment as to what level of pain the plaintiff would have suffered had the accident not occurred. However, an award of damages should include a component related to the aggravation of the pre-existing injuries.
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123 I find that the plaintiff has suffered back and leg pain as result of the accident for the reasons outlined above. The symptoms appear to have been resolving until the hydrotherapy incident in July 2000 which aggravated the accident related injuries. Given that the plaintiff's pain still persists despite on-going treatment and her careful management of it, it is reasonable to expect that the pain will continue to fluctuate for the foreseeable future.
124 For reasons expressed above, I find that the plaintiff is 80 per cent incapacitated from working.
Damages 125 In calculating past and future loss of earning capacity, I adopt, with the defendant's concurrence, the figures and method of calculation provided in the plaintiff's revised schedule of damages filed on 4 November 2004. The figures are amended for reasons outlined.
Past loss of earning capacity 126 At the date of the accident, the plaintiff was working as a pharmacy assistant for 15 hours per week. She was unfit for work for 3 weeks immediately following the accident as a result of the accident related injuries. She is therefore entitled to loss of earning for that three week period as follows: 18 February 2000 to 10 March 2000 $241.20 x 3 = $723.60 127 Prior to the accident, as a result of the work related injuries, the plaintiff had reduced her working hours from 22 to 15 hours per week. By the time her workers' compensation claim was settled, it is my view, that but for the accident, the plaintiff would have been capable of working for 22 hours per week. 128 Accordingly she is entitled to past loss of earning capacity based upon 22 hours per week from the date her workers' compensation payment ceased in, say, February 2003, to the date of trial calculated as follows: 01/02/03 to 30/10/04: $339.36 x 91weeks $30,881.76 129 The interest on past loss of earning capacity is calculated as follows: 31,605.36 x 0.03 x 4 = $3,792.64 130 The plaintiff is entitled to past loss of superannuation being 9 per cent of her income less 15 per cent for "expenses" calculated as follows: 01/02/03 to 30/10/04: $393.36 x 91 x 0.09 x 0.85 = $2,738.38
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Future loss of earning capacity
131 I have determined that the plaintiff will remain 80 per cent unfit for work in any occupation for which she has training and experience until the age of 65 years. She is entitled to 80 per cent of her total loss of earning capacity at the rate of 22 hours per week as a pharmacy assistant. 132Income $339.36 x 409.65 (weekly multiplier for 10.7 years) $139,018.82 Less 20% $ 27,803.76 133 Superannuation $393.36 x 409.65 x 0.09 x 0.85 $ 12,327.20 Less 20% $ 2,465.44 Contingencies 134 There are many contingencies affecting the plaintiff's potential work capacity including her age, previous work experience and her previous medical history as outlined above which she would have to disclose in a general sense to a prospective employer. The plaintiff has not had the financial need to work since her husband's death. There are no other details of her financial situation. Although the plaintiff testified that she would like to have worked into her sixties, given her past work history and the possibility at least that she would not need to work to support herself, there is a real chance that she would not have worked until the age of 65 years. I would therefore deduct six per cent for contingencies.
Future medical treatment, medication and travel 135 The defendant has agreed the cost of special damages as claimed relating to future medical expenses but not the need or frequency of them. 136 Given that the plaintiff's condition is treatable but not curable, it is reasonable to make an award of damages for future medical treatment and medication. 137 I am satisfied that the plaintiff is following the advice of the health professionals who are treating her and doing her best to manage her condition.
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138 Given the frequency of treatment by her physiotherapist since 2001, it is reasonable to expect that the plaintiff will require treatment once a month for, say, the next 10 years. Similarly, the cost claimed for massage treatment once a fortnight for the next 10 years is also reasonable. The evidence is that the plaintiff will require at least one more prolotherapy treatment (injection).
139 The evidence supports a finding that the plaintiff will require painkillers, anti-inflammatories and sleeping pills. The amount claimed is $70 per month for two years. This is reasonable. 140 I would expect that there would be a number of annual reviews by her general practitioner and much less frequently by her orthopaedic surgeon. 141 The parties have agreed past travel expenses at $1500. An award in the sum of $1000 for future travel expenses is not unreasonable. 142 The plaintiff claims the sum of $20,980 for these heads of claim as set out in the revised schedules of damages dated 4 November 2004. 143 In my view, there should be a global amount of damages for the items discussed above. Doing the best I can by reference to the evidence and the calculations made in the plaintiff's revised schedule of damages, I would make an award of $15,000 for future medical treatment and medication and an award of $2,500 for associated travel expenses. Past and future voluntary services
144 The plaintiff claims an award of damages for past voluntary services of two hours a week since the accident. The evidence is relatively vague as to the amount of time involved in family members (including the plaintiff's late husband) assisting the plaintiff. On balance I am prepared to accept that the claim for past voluntary services is made out. 145 The plaintiff appears to be managing her household tasks quite well. However, I accept that her daughter visits two or three times a week to pull the plaintiff's leg to relieve pain and has dinner with the plaintiff once a week when she performs some household tasks either at her instigation or at the plaintiff's request. This is likely to continue for the rest of the plaintiff's life (29.57 years as per the ABS Life Tables Cat No 3302). 146 Accordingly, I find that the plaintiff's claim for future voluntary services has been proved.
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147 The restrictions contained in s 3D(6) and s 3D(7) of the Motor Vehicle (Third Party Insurance) Act 1943 ("the Act") do not apply in the circumstances.
148 The calculations are as follows:
Past voluntary services 149 91 (weeks) x 2 (hours per week) x $12.50 (hourly amount agreed) = $2,275.00
Future voluntary services 150 $25.00 (weekly cost) x 730.2 (weekly multiplier over life expectancy) = $18,255.00
Non-pecuniary loss 151 By s 3C of the Act, a limit is imposed on the award of damages that can be made for non-pecuniary loss. Non-pecuniary loss is defined to include pain and suffering, loss of amenities of life, loss of enjoyment of life, curtailment of expectation of life and bodily or mental harm.
152 The prescribed maximum amount that can be awarded under this head of damages at present is $249,000: s 3C(3). This amount can only be awarded for a case that was assessed to be "a most extreme case". I must determine the amount of general damages as a proportion of the maximum amount that may be awarded under the Act. This approach is in accordance with the principle outlined in Southgate v Waterford (1990) 21 NSWLR 427 at 440.
153 It is generally accepted that a person who was rendered a quadriplegic as a result of an accident falls into the class of a most extreme case. Considering the impact that quadriplegia would have on a person's non-pecuniary loss, and having regard to the effect that this accident has had upon the plaintiff's loss in that regard, in my view, a fair assessment is that the plaintiff's injuries amount to eight per cent of a most extreme case. Thus, the plaintiff is entitled to $19,920. I deduct amount B, which is the sum of $12,500. This gives a sum of $7,420 which I award for the plaintiff's non-pecuniary loss.
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154 SUMMARY
Past loss of earning capacity 18/02/00 to 10/03/00 $ 723.60 01/02/03 to 30/10/04 $ 30,881.76 Interest $ 3,792.64 Superannuation $ 2,738.38 Future loss of earning capacity Income $111,215.05 Superannuation $ 9,861.76 $121,076.81 Less contingencies (6%) $ 7,264.61 $113,812.20
Voluntary services Past $ 2,275.00 Future $ 18,255.00
Travel Past $ 1,500.00 Future $ 1,000.00
Future medical treatment/medication $15,000.00
General damages$ 7,420.00 Total $197,399.00(Rounded up)
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