Cornwall v Hughes - [2000] WADC 50

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: CORNWALL -v- HUGHES [2000] WADC 50

CORAM: GROVES DCJ

HEARD: 1-3 SEPTEMBER 1999

DELIVERED : 22 FEBRUARY 2000

FILE NO/S: CIV 1870 of 1998

BETWEEN: KAREN DIANE CORNWALL
Plaintiff
AND
ANTHONY HOWARD HUGHES
Defendant

Catchwords:

Damages - Assessment - Personal injuries from motor vehicle accident - Whiplash injury of mild severity, myofascial type pain and temporomandibular arthromyalgia - Work and personal factors causing overlay of anxiety and stress - Effects of medication - Termination of employment - 24 year old Bank employee.

Legislation:

Motor Vehicle (Third Party Insurance) Amendment Act 1994, s3C.

Result:

General damages $16,875, special damages $491, future medical expenses $3000, past economic loss $4,486.68 and out of pocket expenses $128.28.

Representation:

Counsel:

Plaintiff: Mr D R Clyne
Defendant: Mr J R Brooksby

Solicitors:

Plaintiff: Simon Walters
Defendant: Greenland Brooksby

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

Southgate v Waterford (1990) 21 NSWLR 427
Wylde v Aristondo 'Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997

Case(s) also cited:

March v E & M H Stramare Pty Ltd & Anor (1990-91) 171 CLR 506
Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485

GROVES DCJ: The plaintiff claims damages from the defendant for injuries she suffered in a motor vehicle accident on 21 March 1997. Liability is admitted and the matter proceeded by way of an assessment of damages. The defendant denied that the plaintiff suffered the loss, injury or damage alleged and pleaded:
"3.Further the defendant says that:
(a)any psychological condition or symptoms from which the plaintiff has suffered or may be suffering were not caused by the motor vehicle accident pleaded in paragraph 2 of the statement of claim, but were caused by a gynaecological condition suffered by the plaintiff;
(b)any economic losses which the plaintiff may be found to have suffered were not caused by the motor vehicle accident pleaded in para 3 of the statement of claim, but were caused by the termination of the plaintiff's employment by reason of her unsatisfactory performance of her duties over a period of time commencing prior to the date of the motor vehicle accident."
Thus the degree, if any, to which the plaintiff's gynaecological condition was causative of a psychological condition or symptoms and the extent to which the accident may have been causative of her losing her employment is very much in issue in these proceedings.

Pre‑accident history

The plaintiff was born on 25 October 1972 and was 24 years of age as at the date of the accident. On 14 May 1990 she commenced employment with Challenge Bank. She trained at the bank's Wanneroo branch and thereafter worked at the Morley, Victoria Park and Karrinyup branches and on the relief team filling in at different branches where necessary. She worked as a Customer Service Officer (CSO).
On 25 October 1995 a performance assessment of the plaintiff was undertaken by her Supervisor at the Balcatta branch. Her Quality of Work was rated at the higher end of the scale of unsatisfactory with the comment:
"Karen has the ability to be accurate in her work but is continually disorganised and makes several errors".
Quantity of Work was rated at the low end of satisfactory with the comment:
"Any work completed is within required time frame. Karen is often disorganised and untidy with her balancing which in turn creates discrepancies. She often has to be reminded to go on cash."
Her Communication Skills were rated above required standard. Her Team Participation Skills were rated at the high end of unsatisfactory with the comments:
"Karen will neglect teller duties to do back office duties or balancing, this causes friction amongst other staff."
Her Individual Skills were rated at the high end of unsatisfactory with the comment:
"Karen is sometimes late to work and has to rush her start of day procedures which result in errors."
Under Additional Comments her supervisor noted, inter alia:
"Karen has some excellent qualities but is let down by her careless approach to work."
In her response the plaintiff acknowledged that this was a disappointing appraisal. Notwithstanding this assessment in February 1996 the plaintiff was appointed to the position of Senior Customer Service Officer at the bank's Floreat branch.
Banking was the plaintiff's chosen career. She impressed as being a career oriented person. After appointment as second‑in‑charge at Floreat she saw her next career step was to become a Supervisor and then to be a Manager. She intended to continue working in the bank up until the age of 31 when she proposed to commence a family but thereafter it was her stated intention to return to the bank part‑time.
In November 1996 the merger of Challenge Bank with Westpac Banking Corporation was announced and thereafter commenced the process of integrating the two bank's operations into one. For Challenge staff it meant training to familiarise with a different computer system, new policies and banking procedures to be adopted and adhered to and new banking products to be marketed. At Floreat there was both a Challenge and a Westpac branch which two branches were to be integrated into one. The plaintiff spent a week training at the Westpac site and there was ongoing contact between officers of the two branches. By about January/February 1997 the plaintiff felt confident with the new banking procedures.
Also as part of the amalgamation all Challenge staff underwent performance appraisals in February 1997. The plaintiff's appraisal was completed by both her Challenge Customer Service Manager (CSM) and the Westpac Floreat CSM. Areas of concern regarding her performance were raised and included making of frequent mistakes, some relating to simple issues which placed pressure on fellow staff and frequently referring to the CSM simple issues which should have been known to her as a senior staff member. The plaintiff was placed on Interim Performance Review for 6 weekly intervals commencing 10 March 1997. This was in effect a "poor performance" rating that being the stage where a staff person was identified as not performing to the required standard and a process is put in place to manage that and give them an opportunity to improve.. The plaintiff was disappointed by this rating and felt that she was being placed on probation.
On 10 March 1997 the plaintiff acted outside of compliance in the opening of a new account and this was drawn to her attention. She failed to follow instructions in rectifying the situation. On 19 March 1997 she failed to process a credit relating to a traveller's cheque. This was not located until 4 April 1997 and when subsequently drawn to the plaintiff's attention she could not explain how the cheque had been misplaced and noted "I cannot believe that I was stupid enough to make this error."
On 21 March 1997 the plaintiff was on a rostered day off. She was stationary in her motor vehicle at traffic lights on Ocean Reef Road near the Mitchell Freeway when another vehicle driven by the defendant drove into the rear of her vehicle. She did not see the defendant's vehicle before impact and had no warning of the impending impact. The impact caused the back of the plaintiff's head to hit the head rest. Her head hurt but she was able to get out of her vehicle. She was conveyed by ambulance to the Emergency Department of the Joondalup Health Campus from where she was discharged home wearing a soft collar.
She attended her general practitioner the next day and was certified unfit for work for 4 weeks.

Post accident work history

The plaintiff returned to work on a graduated programme which involved undertaking minor back room duties. She commenced working 2 hours per day 3 days per week and her progress at work was monitored weekly and modified according to her symptoms. Her working hours were increased in half hour blocks over the following weeks.
Because she was on a poor performance rating at the time of her accident she was still subject to the requirement of performance reviews at 6 weekly intervals. Her interim performance review for the period 10 March 1997 to 20 March 1997 was completed after her return to work after the accident. The review covered the 2 week period immediately preceding the accident. Her overall performance rating was recorded as "Effective" which was defined as "Met the majority of competence requirements and objectives. The officer has performed in an able manner and achieved the performance requirements of the job." The CSM noted that "training was undertaken during first week of this period and appeared to be quite effective for Karen's knowledge of tasks and duties related to CSO role. Good improvement displayed in errors becoming less frequent".
Her next performance review was for the period 23 April 1997 to 23 May 1997. This was her first month back at work after the accident, she was on the graduated return to work programme and undertaking minor duties. Diary memos of 28 April and 2 May record errors made by the plaintiff in processing documentation. The plaintiff's response on the first memo was that it "…slipped past without me realising". Her overall performance rating was recorded as "Effective" and her CSM's comments on overall performance stated:
"Karen has displayed considerable improvement mainly concerning her job knowledge and team work ability. Karen now requires minimal assistance for completion of assigned tasks and displayed a better understanding of the CSO tasks. Karen has become more conscientious with follow‑up of correct forms and the accurate completion of such forms or procedures. Karen is extremely polite and friendly to customers and has received compliments on her courteous manner on a few occasions."
Shortly after that review the Challenge and Westpac sites at Floreat were to be amalgamated into one branch. As the plaintiff would not be able to physically assist in the moving process she was transferred to the Northlands branch for approximately 2 months over that period of the amalgamation. Whilst at Northlands she was still attending doctors, physiotherapy and hydrotherapy appointments and as she had run out of sick leave she was using up her annual leave. When she left Northlands she was working 6 hours per day and for at least the last 3 weeks was undertaking teller duties due to a shortage of tellers. Her Manager in a memorandum dated 4 August 1997 noted that she had been monitoring the plaintiff's performance at Northlands branch which she described as "acceptable" overall although she had occasion to speak to her on several occasions about punctuality and for failure on two occasions to follow correct banking procedures.
On 8 August 1997 the plaintiff returned to the new Challenge Bank branch at Floreat. She had been advised that the Customer Services Officer positions had been filled as a consequence of the amalgamation of the two branches and that she would be placed on teller duties. On 13 August 1997 the plaintiff attended a formal counselling session conducted by Nicola Bull, the branch CSM in the presence of Natalie Hayes, Regional Operations Manager. For discussion were her "unacceptable performance levels". Reference was made to the earlier appraisals and the matters raised by the Northlands CSM. The bank's expectations both as to attitude and work performance were outlined against the background performance under review. The plaintiff was put on notice that her performance in these areas would be monitored on a weekly basis with a full performance review after 2 months. Her ongoing suitability for employment was under consideration and she was advised "…that the bank will provide her with one further, final, opportunity where her performance will be assessed against agreed objectives and competences weekly…". The plaintiff's evidence was that she was shocked to be told that her performance was not satisfactory and it was her description that she had 2 months to prove her worth to the bank. She was willing to take up the challenge. In her written comments made after that meeting she stated, inter alia:
"I would like to believe that I have a high level of dedication and application however I will say that the neck injury coupled with some other medical problems that have come up ‑ laser treatment on my cervix for possible cervical cancer ‑ has given me cause to worry, be concerned, generally feel depressed about and annoyed with and sick and tired of if you can understand my meaning ‑ that may impact on my ability to consistently meet this objective."
There then followed, as had been indicated to the plaintiff, a close monitoring of her performance. The bank's procedures, when an employee is placed on "poor performance", required documentation of errors/mistakes and breaches of procedure if such were to occur. Over the following weeks a litany of errors, failure to comply with the bank's standards or procedures and her relationship with other staff members was recorded by the CSM by way of diary memos. Sometimes there were a number of memos on any one day. On each memo the plaintiff recorded her response and outlined her action plan to ensure that the same errors or breaches did not occur again. To reinforce her awareness she put post‑it notes around her computer screen to remind her of proper procedures where she had breached previously. Matters the subject of such memos included security breaches, receipt of third party cheque deposits, cash errors, dress standards, discrepancies in balancing, proof errors, compliance with FID requirements, etc. Undoubtedly some such issues and errors were minor in nature however the majority would be seen to be more serious in nature particularly having regard to the numerous failures to comply with the procedures laid down by the bank. They could simply not be overlooked. Understandably the plaintiff felt that she was under the microscope and her every activity monitored. On occasions she felt that she was possibly overly cautious in what she did as she was particularly concerned not to make any errors. Her confidence in her own ability was impacted. Be that as it may she continued to make errors which were brought to her attention. Weekly check lists were compiled and weekly discussions with her CSM were undertaken to discuss her performance and other issues.
On 15 September 1997 the plaintiff wrote to Rachel Sackville of the Finance Sector Union. In the letter she wrote of feeling "…like I'm being harassed." She was anxious that she did not wish to be terminated and stated "I believe I can be an asset to the bank and now that I'm nearly all better since my car accident and also the laser treatment I had to my cervix last month (28 August) the consistencies will show up again."
Her purpose in contacting the Union representative was to ascertain whether she might benefit from Union representation at the next formal performance review.
The 26 September 1997 weekly discussion appears to have been quite heated with the plaintiff accusing her CSS and CSM of inciting a vendetta against her. That was denied and the plaintiff was counselled to recognise that she was making errors and encouraged to avoid making those errors and thereby lift her performance. Nevertheless the diary memos continued evidencing more errors and failure to accord with bank procedures.
The third formal counselling occurred on 23 October 1997. The performance review was for the period 11 August 1997 to 10 October 1997. As the plaintiff had been working as a teller during this period she was reviewed in that capacity. A teller is a lower graded role than that of a CSO. Thus the plaintiff's performance was reviewed against this lesser standard. Her overall performance rating was recorded as "Unacceptable". That rating is described as "The officer's performance is unacceptable against competency requirements and objectives. The performance will be subject to a monthly review." The comments on overall performance summed up the situation.
"Karen is always found to be friendly, polite and smiling towards customers and staff. Karen also received a verbal comment from a customer complimenting Karen on her service standards. Karen also achieved excellent CFS results. Karen takes interest in all staff and enjoys socialising.
During this period Karen required training or coaching concerning: steps involved with locating a cash error, how to process FID when paid by cash, time sheet completion and acceptance of third party cheque deposits. Karen has been observed offering her assistance to fellow staff on only a few occasions, mainly within the last 2 or 3 weeks.
Numerous errors have occurred over the last 9 weeks resulting in a total of 27 memos being completed. Main areas of concern in Karen's overall performance relating to these memos are: processing of credit card payments via proof, cash dockets not being processed correctly, batches being out of balance, third party check deposits, FID processing errors and general processing errors in Karen's front office value transactions."
The plaintiff was advised that as her performance levels were not acceptable her file would be referred to the Human Resources section of the bank to enable the bank to consider all of its options including her dismissal. The plaintiff was allowed 24 hours to place any matters in writing to the bank to enable full consideration to be given to all her circumstances. In her memorandum next day to the Manager, Human Resources, the plaintiff stated, inter alia:
"In March of this year I had a car accident which I believe has had a residual effect on me and has impacted negatively on my work performance. My accident meant that from March to August of this year I was on a graduated return to work program. I have also been on medication, antidepressants, which was prescribed to relieve my neck injury and to regulate my sleep patterns. I believe this medication may have affected my memory and concentration. I will return to my doctor to confirm the side effects of my medication. If, as I suspect, my memory loss and lack of concentration are side effects I will see if my doctor can prescribe alternative medication.
In addition in August I suffered further health complication which required surgery and increased my stress.
. . .
I have found the whole process of my performance review, and in particular, the issuing of the diary memos, very stressful and demoralising."
On 29 October 1997 the plaintiff attended her general practitioner who declared her to be not fit for work. Arrangements were made for the plaintiff to consult a clinical psychologist and a pain specialist. On 19 January 1998 she was certified as fit to go back to work part‑time. She contacted the bank and on 20 January 1998 she went to the bank's Head Office where she was advised that her employment was to be terminated forthwith.

The plaintiff's medical treatment

After the accident the plaintiff was conveyed to the Emergency Department of the Joondalup Health Campus. She was complaining of neck pain and limitation of movement. Examination revealed some tenderness over the paraspinal muscles. There was a near full range of cervical spine movement with no evidence of neurological dysfunction in the upper or lower limbs. She was discharged home with a soft collar.
On presentation to her general practitioner the next day she complained of pain in her neck, upper and lower back, and right shoulder. She was certified unfit for work for one month. She was referred for physiotherapy and later hydrotherapy both of which were continued through to the end of July.
Towards the end of July she was referred to Dr S Baskaranathan, a consultant physician, complaining of musculo skeletal symptoms, including sore neck and shoulders, jaw pain and general tiredness. By this time she was on a graduated return to work programme and was working 6 hours, 5 days a week. After examination he concluded that the soft tissue injury sustained in the motor vehicle accident had become more of a generalised regional myofascial pain syndrome. He prescribed Prothiaden, an antidepressant, which he informed the plaintiff would help with her neck pain, sleeping and jaw pain.

Dr John Rosenthal, a specialist in rehabilitation medicine, saw the plaintiff on 6 August 1997. He noted that the plaintiff had been seen by Dr Baskaranathan who had prescribed Prothiaden but that the plaintiff had not commenced taking it. From the history which he obtained he noted that there had been significant improvement with the plaintiff's headaches being infrequent and usually occurring with stress, fatigue and tightening the prosterior musculature. He noted her range of cervical movement was good. He recorded her present condition as being that her symptomatology is predominantly myalgic (muscle pain). He noted clinical evidence of parafunctional jaw activity with the characteristic associated sleep disturbance and regional muscle hyperalgesia. He proposed that she should take the Prothiaden to regulate her sleep pattern and that she should see Dr Delcahno for assessment of her temporomandibular joint function. He regarded her as being fit to work normal hours as a Bank Customer Service Officer.
At about this time the plaintiff started taking the Prothiaden, initially every second day. It was her evidence that they helped her although they did have the sort of side effects which Dr Baskaranathan had indicated to her that it would. Those side effects were dried mouth and blurred vision. He had told her it was an antidepressant drug.
Dr Baskaranathan reviewed the plaintiff on 5 September 1997. The plaintiff reported to him an overall improvement in her symptoms. She continued to have bilateral jaw pain from the temporomandibular joints which he suspected was due to grinding her teeth in a non‑restorative sleep. He felt that this would improve when her sleep was corrected to restorative sleep with the help of Prothiaden. He reported further that the plaintiff had not been regular with Prothiaden. He expressed the view that the plaintiff had recovered sufficiently to return to her normal hours of work as a Bank Customer Service Officer.
On 15 September 1997 Dr Shane Wignell reported to the plaintiff's employer:
"Karen's symptoms have improved to the point where she could return to full‑time hours. However I feel she should avoid heavy lifting, tasks that involve lifting to above shoulder height."
The plaintiff returned to full‑time work that day. It is to be noted that it was also on this date that the plaintiff wrote to her Union representative advising that she was "… nearly all better since my car accident…".
On 26 June 1997 the plaintiff had been was referred to Dr M Oehlers for a slightly abnormal Pap smear. On 3 July 1997 she underwent a coloposcopy. She was reviewed by Dr Oehlers on 22 July 1997 with the fact that cervical biopsies had indicated CIN (Cervical Intra Epithelial Neoplasia) II/III. On that occasion he discussed with her the requirement for cervical laser treatment. That was rediscussed again on 27 August 1997 where other factors were covered including possible future infertility. Dr Oehlers report of 19 August 1999 notes that she "seemed to accept the discussion with an open mind and she was obviously concerned at the time of the severity of this condition." On 28 August 1997 the plaintiff underwent cervical laser treatment. The laser treatment of the cervix was apparently successful. Follow‑up Pap smears have been satisfactory.
On 23 October 1997 the plaintiff had had her third formal counselling at the bank. She later spoke to her neighbour Mrs Margaret Roberts, an enrolled nurse, who had raised with her possible side effects of Prothiaden. That prompted the plaintiff to go to a chemist and obtain a print‑out of the possible side effects which Prothiaden may have. The plaintiff identified that she was experiencing five of the nine identified side effects. She discontinued taking Prothiaden. On 29 October 1997 the plaintiff was diagnosed by her general practitioner as developing post trauma stress and was declared not fit for work for about 2 weeks. She was referred to pain specialist Dr H Hamzah and to clinical psychologist Dr William Douglas.
Dr Douglas in his report to the plaintiff's general practitioner of 10 November 1997 reports that she presented with a range of symptoms a number of which he described as consistent with anxiety. Based upon the history with which he was presented Dr Douglas expressed the view that:
"…She continues to suffer from symptoms of a depressive illness which arise primarily as a result of her pain and disability, and further compounded by the frustration of returning to her pre‑accident level of work performance."
Dr Hamid Hamzah is a consultant in anaesthesia and pain management. The plaintiff consulted him on 11 November 1997. Upon examination he noted movement of her cervical spine was good in all directions and noted tenderness over the greater occipital nerves bilaterally and some tenderness over the facetal areas at C5/C6 bilaterally. The latter discomfort was addressed with a facet joint injection on 15 December 1997 which provided some relief and on 9 February 1998 a radio frequency rhizolysis was performed.
The plaintiff was referred to Dr Robert Delcanho, a specialist in orofacial pain for assessment of her temporomandibular joint pain. He saw her on 24 December 1997 and upon the clinical history and examination concluded there was some evidence of temporomandibular joint problems which he believed was of a soft tissue myofacial nature with input from the cervical and masticatory muscles. He was not of opinion that her TM‑joints suffered direct injury with the problems being suffered in that area of a secondary myofacial nature. Conservative treatment was recommended. An occlusal splint was fitted. At subsequent reviews significant improvement was noted with only occasional use of the splint with intermittent jaw pain principally brought on if her neck pain was aggravated.
The plaintiff presented for medico/legal review with Dr John Rosenthal on 23 February 1998. On examination he noted scalp and diffuse muscle tenderness medial to and above both scapulae extending upwards along the paracervical musculature. Range of neck movement was reasonable and no muscle spasm apparent. It was his opinion that her ongoing symptoms were myalgic. He noted the associated chronic stress situation, largely due to employment and psychosocial factors. Nevertheless the motor vehicle accident had produced some stress as evidenced by the sleep disturbance and parafunctional jaw activity. He did not think that facet joint injections and rhizotomies were a good option for her. He described her symptoms as myalgic with centrally mediated secondary hyperalgesia. He did not think that her problem was facetal.
Following their final reviews both Dr Rosenthal and Dr Baskaranathan expressed largely similar opinions.
(i)On examination the range of cervical movements was hesitant but full with some myalgic end range discomfort. There was some persisting scalp and masticatory muscle tenderness and myalgic nature of her symptoms was confirmed with her complaint of discomfort on full arm elevation.
(ii)Her accident caused injury had not been serious and her myalgic symptoms were completely reversible. Had she been involved in an appropriate active physical rehabilitation programme her recovery would have been much quicker.
(iii)There was no skeletal pathology which could perpetuate her symptoms.
(iv)Her symptoms associated with her parafunctional jaw activity had reasonably settled with the use of the occlusal splint.
(v)The type of fibromyalgic symptoms she described were frequently associated with stress and is often perpetuated by stress and it often occurs without there being any antecedent soft tissue trauma.
(vi)They were not of opinion that she had sustained any physical residual disability as a result of the accident. This was a view also expressed by Dr Hamzah.

The plaintiff's support witnesses

Margaret Therese Roberts is an enrolled nurse who had been a neighbour of the plaintiff's for 4 years. She recalled an occasion when she observed the plaintiff distressed when her car had a flat battery and the plaintiff would be late for work. This was while the plaintiff was working at the Northlands branch. Another occasion was prior to the plaintiff's work appraisal towards the end of October 1997. Mrs Roberts described the plaintiff as waffling, not making sense and not herself. The plaintiff told her she was having an appraisal the next day. On the next meeting shortly thereafter the plaintiff told her that she had been taking Prothiaden and Mrs Roberts mentioned the side effects of this medication. This information then caused the plaintiff to obtain from a chemist a print‑out of the side effects.
When Mrs Roberts saw the plaintiff on subsequent occasions it appeared to her that the plaintiff was more her normal self. It was within 2‑3 months after giving her the information on Prothiaden that the plaintiff was back to normal.
Susan Baile is employed by Challenge Bank and she first met the plaintiff at the Innaloo branch where the plaintiff came as relief staff. She recalled the plaintiff as being easy going, happy go lucky, friendly and good with customers and staff. Ms Baile was second‑in‑charge at Northlands when the plaintiff came there as additional staff. The plaintiff was on light duties. She described the plaintiff as being a very different person who had obvious physical pain and was not coping with her job and life. She described her as being close to tears a lot of the time, under pressure, sick, shaking, would forget things and generally found her to be unwell physically. Ms Baile has seen the plaintiff since she left the bank and described her as being back to where she was before the accident, that is happy, relaxed and normal.
Robertina Kelly has been a Challenge Bank employee at Floreat for 14 years and works part‑time. Pre‑accident she described the plaintiff as helpful, obliging with customers and a person who knew her job. Post‑accident they only worked together for a short time after the branches amalgamated. The plaintiff was on the teller line and Ms Kelly noted a definite change in that the plaintiff was vague, apparently had difficulty remembering procedures as evidenced by post‑it notes around her terminal, quiet, distant, a little bit emotional and upset easily. The witness did not indicate when in time this was. Nor did she give any evidence of whether or not she was aware of any factors other than the accident which might have contributed to this change.
Brendan James Radalj is employed by Challenge Bank as a Customer Services Officer at Floreat. He and the plaintiff had worked together at a number of branches prior to Floreat. He described her as being good at her work and a person with a happy cheery personality. Post‑accident when the two Floreat branches merged they worked together again and he described the plaintiff as being different personality wise in that she was quiet, kept to herself, sometimes not happy and totally different to the person he had known. He was not aware as to what she may have been unhappy about.

Chronology

At the risk of being repetitive it will be of assistance if an outline of the foregoing is provided by way of a brief chronology.
14 May 1990        Plaintiff commenced employment with Challenge Bank.
25 October 1995   Performance Assessment ‑ unsatisfactory.
February 1996      Appointed senior Customer Service Officer at Floreat Branch.
November 1996    Merger of Challenge Bank and Westpac announced.
February 1997      Appraisal ‑ areas of concern raised ‑ placed on interim performance review for 6 weekly intervals commencing 10 March 1997 ‑ "poor performance" ‑ plaintiff disappointed by this rating and felt she was being placed on probation.
10 March 1997     Acted outside compliance.
19 March 1997     Failed to process traveller's cheque credit.
21 March 1997     Accident ‑ Dr certified her unfit for work for 4 weeks ‑ complained of pain in neck, upper and lower back and right shoulder.
1‑20 March 1997 Interim Performance Review ‑ "effective".
23 April‑23 May   Interim Performance Review ‑ effective.
June/July 1997     Transferred to Northlands branch ‑ during last 3 weeks at Northlands working 6 hours per day on teller duties.
26 June/3July
and 22 July 1997   Dr Oehlers ‑ cervical biopsies had indicated CIN.
25 July 1997        Dr Baskaranathan prescribed Prothiaden.
4 August 1997     Northlands Manager Report ‑ Performance overall "acceptable".
6 August 1997     Dr John Rosenthal ‑ she had not commenced taking Prothiaden ‑ fit for normal work.
early August 1997 Plaintiff commenced taking Prothiaden ‑ initially every second day.
8 August 1997     Returned to new Challenge Bank, Floreat branch ‑ no position as Customer Service Officer and placed on teller duties.
13 August 1997     Formal counselling session with Nicola Bull and Natalie Hayes ‑ "unacceptable performance levels" ‑ performance to be monitored on a weekly basis with a full performance review after 2 months.
Close monitoring of plaintiff's performance followed ‑ a number of errors were recorded by way of memorandum.
27 August 1997     Dr Oehlers ‑ discussed cervical laser treatment ‑ also discussed possible future infertility.
28 August 1997     Underwent cervical laser treatment with successful outcome.
5 September 1997 Reviewed by Dr Baskaranathan ‑ plaintiff reported overall improvement in symptoms ‑ continued to have bilateral jaw pain from TMJs ‑ he reported she had not taken Prothiaden regularly ‑ considered she had recovered sufficiently to return to normal hours of work.
15 September 1997 Dr Wignell reported that symptoms improved to the point where she could return to full‑time work but avoid heavy lifting.
Plaintiff returned to full‑time work.
Plaintiff wrote to Rachel Sackville of Finance Sector Union ‑ she wrote of feeling "…like I'm being harassed…now that I'm nearly all better since my car accident and also the laser treatment I had to my cervix last month…".
26 September 1997 Weekly discussion with her CSS and SCM ‑ quite heated meeting. Plaintiff accused them of inciting a vendetta against her ‑ counselled to avoid making errors and thereby lift her performance.
23 October 1997   Third formal counselling ‑ Performance Review for period 11 August‑10 October when she was reviewed in capacity as a teller (a lower graded role than CSO). Over the 9 week period 27 memos had recorded numerous errors made ‑ overall performance rating recorded as unacceptable.
Plaintiff advised that her performance levels were not acceptable and her file would be referred to Human Resources Section of the Bank to consider options including dismissal.
23 October 1997   Plaintiff ceased taking Prothiaden after having spoken to her neighbour, Mrs Margaret Roberts (a nurse). Plaintiff went to chemist and got a print‑out of side effects of Prothiaden.
24 October 1997   Plaintiff put in writing to Manager, Human Resources, matters impacting negatively on her work performance including reference to car accident, medications and belief that medication may have affected her memory and concentration.
29 October 1997    Plaintiff attended her GP who diagnosed her as developing post‑trauma stress ‑ declared unfit for work for 2 weeks.
10 November 1997 Plaintiff attended Dr William Douglas ‑ she presented with a range of symptoms described as consistent with anxiety.
11 November 1997 Plaintiff attended Dr Hamid Hamzah ‑ tenderness.
15 December 1997 Plaintiff attended Dr Hamid Hamzah ‑ facet joint injection provided some relief.
24 December 1997 Plaintiff attended Dr Robert Delcanho ‑ some evidence of TMJ joint problems ‑ an occlusal splint was fitted.
19 January 1998     Certified by GP as fit to return to work part‑time.
20 January 1998     Plaintiff presented herself for work and advised that her employment terminated.
9 February 1998     Attended Dr Hamid Hamzah ‑ radio frequency rhizolysis performed.
23 February 1998    Plaintiff reviewed by Dr John Rosenthal ‑ ongoing symptoms were myalgic ‑ noted chronic stress situation largely due to employment and psycho social factors. Nevertheless motor vehicle accident produced some stress as evidenced by sleep disturbance and parafunctional jaw activity.

Evidence relevant to Prothiaden

Very relevant to the plaintiff's case is the issue as to whether or not Prothiaden which was prescribed for her by Dr Baskaranathan on 25 July 1997 to help with her neck pain, disrupted sleep and jaw pain could have caused or contributed to her unsatisfactory performance at work in the period August, September and October 1997. The plaintiff contends that side effects of Prothiaden include memory loss and lack of concentration and her unsatisfactory performance at work over those months she ascribes to the use of Prothiaden. It is relevant therefore to review the evidence concerning Prothiaden.
It was the plaintiff's evidence that whilst she was working at the Northlands branch she started experiencing jaw pain. She was referred by her GP to Dr S Baskaranathan, consultant physician. Her evidence was that she explained to him that she was having trouble getting up in the mornings and she was experiencing tiredness as though she were getting no sleep. She told him about her jaw pain and Dr Baskaranathan suggested that she was grinding her teeth in her sleep. He prescribed Prothiaden to help regulate her sleeping pain. The doctor told her it would ease her jaw pain, help with neck pain and would help her sleeping and to overcome the lethargy which she felt. The plaintiff filled the prescription on 28 July 1997 but did not start taking Prothiaden straight away because Dr Baskaranathan had told her that it was an antidepressant and she said that she was not a depressed person, she was a happy person and she did not think that she needed to take the medication. She had not commenced taking Prothiaden before seeing Dr Rosenthal on 6 August 1997. He suggested she should take the Prothiaden to regulate her sleep pattern. She commenced taking Prothiaden initially every second day. Dr Baskaranathan had told her to expect side effects of dried mouth and blurred vision which she did. She developed a skin rash which she showed to Dr Baskaranathan on 5 September 1997 and he told her that it was nothing to worry about. She then went to a GP at the Balga Medical Centre who suggested that she must have been allergic to something, although he could not say what it was. That doctor, a Dr Wong, gave her a steroid injection. She also said that she experienced problems going to the toilet and had no sex drive. She described these as side effects also. It was her evidence that the first time she mentioned side effects was to Dr Wong and that was prior to 15 September 1977. Dr Wong was not called. It was her evidence that her work performance changed while she was taking Prothiaden. She was making repetitive errors, silly mistakes and "errors that I never used to make before were just popping up". She said that the effect this had was that she was constantly being given notices by her Manager. At her appraisal on 23 October when asked what was wrong with her, why was her appraisal so bad, it was the plaintiff's evidence that she could not answer those questions because she didn't know. She later spoke with her neighbour who, she said alerted her to a range of side effects of Prothiaden. She went to a chemist and got a print‑out of what Prothiaden was all about. Her evidence was that she found that of the nine side effects mentioned she was having at least five of them. She did not identify what the nine described side effects were, or which five of them she was experiencing. She stopped taking the Prothiaden and said that by about 2 weeks later she felt she was more alert, wasn't looking through hazy eyes and was a lot sharper.
In cross‑examination she acknowledged that she did not go and see her doctor about coming off Prothiaden. On 29 October 1997 she saw Dr Edwardes and told her of her "situation" which she described as being not able to perform her duties at work and that she believed that as she had been taking Prothiaden during that time it had affected her adversely and she did not want to take it any more. She said it was not until the week that she stopped taking Prothiaden that she was aware of its side effects. She said that she stopped taking Prothiaden because she believed it had adversely affected her performance, she had had a skin rash, problems urinating, lethargy and a low sex drive. She had quite a number of the written side effects and she felt that the medication was the cause of it and so she stopped taking it immediately. She was referred to the statement in her letter of 15 September to Rachel Sackville where she said she was "nearly better". Her explanation was that "The Prothiaden was making me feel like everything was alright" and that she did not then recognise the symptoms.

She also said that she told Dr Oehlers that she was on Prothiaden and that she was having dried mouth, blurred vision and dizziness. He did nothing about it and told her she would be alright. No reference is made to this in his reports which were tendered by consent and nor was Dr Oehlers called. When she saw Dr Baskaranathan on 5 September she had a skin rash and enquired if it could be caused by the Prothiaden. It was her evidence that he told her not to worry about it. Although she was then experiencing dried mouth, dizziness and blurred vision she did not tell Dr Baskaranathan about that as they were symptoms which he had told her to expect. She did not mention impaired memory or concentration to him. There was no evidence that she told him of any difficulties or problems that she might have been having at work or any other factors which might have caused her concern or stress. Although it was Dr Baskaranathan's evidence that the plaintiff had told him that she had not been regular with Prothiaden (as noted in his report of that date) the plaintiff joined issue on this saying that from early August she had taken Prothiaden regularly.
On 29 October 1997 the plaintiff saw Dr S Edwardes at the Balga Medical Centre. The plaintiff had previously seen a Dr Vasantha Preetham at that practice following her motor vehicle accident and he had managed her accident related injuries up to 9 May 1997. She had also seen a Dr Bari who had referred her to Dr Oehlers with the gynaecological problem. On 29 October Dr Edwardes certified the plaintiff as not fit for work for about 2 weeks. Arrangements were made for the plaintiff to consult a clinical psychologist and a pain specialist. Her manuscript note of 29 October states:
"Karen was injured in a car accident on 21‑3‑1997 and suffers from ongoing soft tissue problem.
In the last 2 months Karen was put on medication to help her symptoms but unfortunately she experienced troublesome side effect of the medication.
Problem with concentration and memory, etc.
She is now developing post trauma stress."
In her note of 5 November 1997 she states:
"About 2‑3 months ago Karen was put on Prothiaden by her previous GP to help her symptoms but unfortunately she experienced side effects of Prothiaden which were impaired alertness, dry mouth, dizziness, skin rash. Karen has stopped this medication since 23 October 1997 and felt a lot better. But she is still suffering from post trauma stress…"
In cross‑examination Dr Edwardes readily conceded that insofar as the reference to Prothiaden, troubles and side effects, she had simply set out what the plaintiff had told her. The plaintiff was stressed and tearful at the consultation. Dr Edwardes conceded also that she was not aware of any work problems which the plaintiff might have been having at that time. Her report to the plaintiff's solicitors of 9 December 1997 indicates that at some point in time before then the plaintiff had told her that she was worried about losing her job. Dr Edwardes did not in her evidence express a medical opinion as to what were or are the known side effects of Prothiaden, if any.
The plaintiff was referred to Dr William Douglas, clinical psychologist, whom she saw on about 10 November. His report of that date details the history which she gave him. Although the report does not mention Prothiaden he did note that he was told of "impaired concentration, memory and general work performance being below par". His report states:
"I gained the impression that up until the time of her motor vehicle accident her working history had been satisfactory with the bank, but during the course of her rehabilitation and return to work there had been problems noted in her work performance. During the months of August and September she felt as though she was under great pressure at work which I believe compounded an underlying and substantial depressive disorder. In my view, she continues to suffer from symptoms of a depressive illness which arise primarily as a result of her pain and disability and further compounded by the frustration of returning to her pre‑accident level of work performance."
He acknowledged in cross‑examination that he was reliant upon what the plaintiff had told him so far as ascertaining what her symptoms were. He was not told that pre‑accident the plaintiff had been put on a "poor performance" rating with regular reviews. He readily acknowledged that the symptoms with which the plaintiff presented would be consistent with those he would expect to find in a person who had thought or been told that they had cervical cancer in August, who believed that she was being harassed at work and that she was about to lose her job after having been with her employer for some years. That is, the symptoms with which she presented were consistent with depression arising from her employment situation and genealogical problems and could arise quite apart from her motor vehicle accident situation. Impaired concentration, memory deficit and general work performance being below par are, he said, symptoms of a depressed mood. His conclusion that her depressive illness arose primarily from accident related injuries was thus questionable.
In a report dated 9 December 1997 addressed to Rachel Sackville of the Finance Sector Union which was submitted to the bank to try and retain the plaintiff's employment, Dr Douglas reported:
"I also confirm that in my opinion Karen Cornwall's impaired concentration, memory and general work performance during the months of August and October was primarily due to an underlying depressive illness where symptoms of impaired concentration were almost certainly compounded by the antidepressant medication that she was taking at the time. In hindsight it seems quite clear that she was having an adverse reaction to this medication which was actually making her symptoms worse."
That may be understood to be saying that the antidepressant medication was not the underlying cause of impaired concentration, memory lapses and poor work performance. Underlying that was the plaintiff's depressed mood which could be attributed to stress and anxiety associated with her work place situation. As much as is clear is that Dr Douglas once he was aware of all those matters which could have been causative of the symptoms with which the plaintiff presented could not attribute them solely to the motor vehicle accident. Furthermore he did not attribute the underlying depressive illness to the medication itself. It may have been a compounding factor but was not the causative one. Even so, that was an ex post facto conclusion which lacked any other credible support.
Dr Baskaranathan prescribed Prothiaden at the lowest dose rate of 25mg at night. It was his evidence that he warned her of side effects of mental alertness and drowsiness if taken in excess doses. He did not go through a full list of side effects but told her of the common side effects which occur. The plaintiff was experiencing disrupted sleep patterns and bilateral jaw pain. The Prothiaden was prescribed to enable restorative sleep which in turn would reduce the grinding of her teeth and hence the jaw pain. He reviewed her on 5 September 1997. She continued to have jaw pain. She told him that she had not been regular with Prothiaden whereupon he advised her to take it every night to restore the sleep pattern. Asked in cross‑examination if she had complained of any side effects at this consultation he responded "not really, no otherwise I would have alluded to that in the report". There was no evidence of the plaintiff having mentioned what was happening in her work place or her then recent gynaecological problem to him.
Dr John Rosenthal, a specialist in rehabilitation medicine was called on behalf of the defendant. He saw the plaintiff on 6 August 1997. The plaintiff informed him that she had been given a prescription for Prothiaden but had not commenced taking it. Again there was no evidence that the plaintiff mentioned to him at that time either events happening in her work place or the gynaecological problem which had been diagnosed and for which she was then awaiting laser treatment.

Findings on the evidence

It is the plaintiff's case that all the errors and procedural breaches which she was making in the course of her employment in August, September and October 1997 were as a consequence of the injuries sustained in her accident and the adverse side effects which she experienced as a result of taking Prothiaden. In particular she claimed lack of concentration and loss of memory which she ascribed to that medication.
On a close analysis of the evidence I am not able to accept that proposition. It ignores the fact of all those other circumstances which were giving rise to stress and anxiety in the plaintiff's life at that time. It also overlooks the fact that prior to commencing the medication her performance at work was under scrutiny. In many instances the errors which she made in those months were of a similar type to those which she had made even prior to the accident. For example in October 1995 there were references to discrepancies in balancing, neglecting teller duties, lateness for work and careless approach to work. In February 1997 reference to frequent mistakes and referring simple matters which should have been known to her to others. On 10 March 1997 failing to comply with bank procedures and not assisting other staff when customers were waiting. Before going on the medication and when she was at Northlands Susan Baile noted that she would forget things and was under pressure. Nor is it consistent with the statement in her letter of 15 September where she wrote of being "…nearly all better since my car accident…". If she were suffering the symptoms of which she complained it does not sit well with that statement. Her explanation was that she did not realise until towards the end of October that she could attribute everything to the claimed side effects of the medication. She did not mention to either Dr Baskaranathan or to Dr Rosenthal that she was experiencing any side effects. There was no evidence that she mentioned any of those matters to Dr Shane Wignell, who on 15 September 1997 certified her fit to return to full‑time hours. Dr Wignell was not called. There was no evidence that after 15 September the plaintiff attended any medical practitioner about her condition until 29 October when she saw Dr Edwardes. She gave evidence that she had earlier told Dr Wong and Dr Oehlers but neither of them apparently held any concern. There was no evidence that she told any of the medical practitioners of any concern or worries about her employment relations.
There were a number of other factors which throughout the relevant months which in one way or another, contributed to her anxiety and stress levels. After the February appraisal she felt that she was being put on probation. She said that came as a shock to her. A possible inability to have children, cervical cancer and the cervical laser treatment were obviously matters of concern. In the plaintiff's words in her response following her counselling session on 13 August, this "…has given me cause to worry, be concerned, generally feel depressed…". Being on "poor performance", being monitored weekly and having to respond to the numerous memos raising errors, discrepancies and non‑compliance with procedures gave rise to the plaintiff feeling that she was being harassed and the subject of a vendetta. Not being able to get along with her supervisor and other relevant people at the branch was something which she later mentioned to Dr Douglas. That conflict would serve to exacerbate the situation. The plaintiff was, in her words, a career person and she aspired to advancement within the bank. When she returned to Floreat it was not as a CSO but as a teller which was a lower graded role. Concern for her career in the bank was another element contributing to the stressful situation. The merger of the two banks may have exposed the plaintiff as being a person whose employment in the merged entity might have been at risk. These events were threatening to her ambitions in her chosen career and were no doubt worrying to her. It follows that as things were going from bad to worse for the plaintiff the level of anxiety grew and so did the level of stress. Some of these factors may also have contributed to the sleep disturbance, teeth grinding and consequent TMJ pain.
Furthermore there was no direct medical evidence that memory loss and lack of concentration are in fact side effects which might be experienced by some persons prescribed Prothiaden. The plaintiff ascribed these things to the effects of Prothiaden after she said she had obtained a print‑out from a chemist. It was all very convenient for the plaintiff to put all of her problems at work down to this single factor. That ignores the reality of the situation. Furthermore it does not explain her "poor performance" at work which preceded her taking the medication.
I do accept however that her accident related injuries may have caused her some difficulty and inconvenience in her daily work when she returned to the bank. That was to a large extent ameliorated however given that:
(i)her injuries are described by the doctors as being only of "mild severity";
(ii)she had been off work for 4 weeks immediately following the accident;
(iii)when she did return to work it was on a graduated basis doing light and varied duties. Initially it was 2 hours per day, 3 days per week and thereafter steadily increased. It was not until the end of July at Northlands that she was working 6 hours per day. She was not required to assist in the moving process when the two Floreat branches amalgamated;
(iv)during this rehabilitative period she continued to have physiotherapy and hydrotherapy;
(v)she was certified fit for work by Dr Rosenthal on 6 August 1997, by Dr Baskaranathan on 5 September 1997 and by Dr Shane Wignell on 15 September 1997. She returned to work full‑time on that latter date.
The symptoms which the plaintiff displayed were consistent with the sort of symptoms which might have been expected in the stressful situation which she found herself in the work environment disregarding the fact of the motor accident. The situation was conducive to the plaintiff becoming greatly depressed as Dr Douglas found that she was.
In all the circumstances I am not persuaded to the requisite degree that the plaintiff's employment related problems can be attributed to the accident or to her claimed side effects of Prothiaden. In the end it was but a straw at which the plaintiff clutched so as to provide an excuse for her continuing unsatisfactory work performance. Thus I find that the motor vehicle accident and treatment therefor were not the cause of her termination and thus she cannot lay claim for damages in respect of the depressive illness and claimed loss of earnings consequent upon her work place circumstances. Her absence from work after 29 October 1997 was not a consequence of her motor vehicle accident but was consequent upon the stress of her work place situation and subsequent termination.

Diagnosis

I am satisfied that the medical evidence supports the following diagnosis:
1.Neck
I find that the plaintiff sustained a soft tissue injury of mild severity to her cervical spine.
2.Back
I find that the plaintiff sustained soft tissue injury or non‑bone injury to her lumbar spine in the accident.
3.Shoulder region
I find that the plaintiff experienced radiated pain across the shoulders and around both shoulder blades.
4.Jaw
Although the temporomandibular joints did not suffer direct injury in the accident I find that soft tissue myofascial pain was consequent upon a disturbed sleep pattern resulting from the cervical pain.
5.Headaches
The plaintiff experienced frequent headaches associated with the soreness of the neck and low back.

Prognosis

I find that with conservative treatment the plaintiff's accident related injuries have resolved. Such residual disability as there may be of the cervical spine is very slight. It is the consensus of medical opinion that her symptoms will fully resolve. She was certified fit to return to full‑time work approximately 6 months after the accident. Any restriction of arm raising or heavy lifting will resolve and the plaintiff's general musculature will benefit with an active physical rehabilitation programme. The symptoms associated with her parafunctional jaw activity have settled with the use of the occlusal splint. Other than for reviews no further treatment is necessary.
It is my finding that from 15 September 1997 when Dr Wignell certified her as fit to return to full‑time work the plaintiff was able to carry out her pre‑accident duties with her employer. Such matters of which she complained after 23 October 1997 were not the consequence of her accident.

General Damages

The plaintiff is entitled to general damages for the accident itself and for the consequent pain, inconvenience and other matters generally referred to as the loss of amenities.
The award of damages for loss of enjoyment of life and amenities generally requires a consideration of s3C of the Motor Vehicle (Third Party Insurance) Amendment Act 1994 ("the Act"). This section imposes limitations upon an award of damages for non-pecuniary loss and it applies to the present case. Section 3C(3) provides that the maximum amount of damages that may be awarded for non-pecuniary loss is, at the present time, $219,000 and that that amount may be awarded "only in a most extreme" case.
In Wylde v Aristondo 'Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997, the court adopted the same approach to the Act as the New South Wales Court of Appeal did to the Motor Accidents Act 1988 (NSW).
In Southgate v Waterford (1990) 21 NSWLR 427 at 440 the court said:
"There are a number of ways by which trial judges could approach the task of apportionment required by s79(2) and s79(3). It is inappropriate in this case for this Court to mandate any particular way of arriving at the 'proportion' required by s79(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 s79(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'."
For the purpose of this assessment I repeat all of my findings in relation to the nature of the plaintiff's injuries, the diagnosis and prognosis.
The legislation requires me to assess general damages by relating the plaintiff's case to a most extreme case. To do this I need to consider each of the plaintiff's physical injuries and psychological injuries as well as the interaction between and combination of the two. I cannot base my consideration of her physical injuries on the level of her complaints about them or her perception of them.
I place the plaintiff's case at 12½ per cent of a most extreme case. This percentage of the maximum amount that may be awarded of $219,000 equates to $27,375. The provisions of s3C(5) of the Act requires an assessment in this amount to be reduced by $10,500.

I award the plaintiff general damages in the sum of $16,875.

Special damages

I allow the following special damages claimed by the plaintiff:
Balga Medical Centre $236.00
Dr R Delcanho $255.00
$491.00
The plaintiff also claimed expenses owing to CRS Australia for rehabilitation training subsequent to her termination of employment. For the reasons outlined above I do not allow those expenses.

Future medical treatment

Dr Robert Delcanho indicated that future treatment for the plaintiff's intermittent jaw pain may involve annual checks of the occlusal splint and such adjustments as may be necessary from time to time. So far as any intermittent neck or back pain the use of simple analgesics and anti‑inflammatories and occasional massage is indicated. It is not possible to make this assessment using a mathematical calculation. Therefore I assess the need for future medication and expenses in the global amount of $3000.

Economic loss

The plaintiff seeks damages for past economic loss and future loss of earning capacity.
Following the accident time taken off work was taken against the plaintiff's accrued and continuing sick leave entitlement. Her sick leave entitlements ran out by 16 June 1997 and thereafter time taken off work was taken against her annual leave entitlements. From 17 March 1997 to 16 June 1997 a total of 41 sick leave days were taken. From 18 July 1997 to 17 September 1997 (by which time the plaintiff had been declared fit to return to full‑time work) 9 days recreation leave were taken. It is noted that 3 days were taken in August which no doubt was around the time of her laser treatment. Had she had any sick leave entitlement at that stage no doubt those days would have been taken as sick leave rather than recreation leave. The total leave both sick and recreational is 50 days.
On 29 October 1997 Dr Edwardes diagnosed the plaintiff as developing post trauma stress and declared her to be not fit for work. Had the plaintiff had sick leave entitlements then the time off thereafter could have been taken against that entitlement. However that was not available to her by reason of the sick leave taken as a consequence of the accident. As it was she took the balance of her recreational leave and thereafter leave without pay. In those circumstances the plaintiff is entitled to be "reimbursed" for the loss of the 50 days taken up to 17 September.
At the time of the accident the plaintiff was earning $495.15 gross per week which is $391.85 net per week. Thus $391.85 net per week for the period of 50 days (10 working weeks) totals $3918.50.
Interest is allowed on that sum from 17 September 1997 at 6 per cent per annum (2 years 5 months) totalling $568.18.
The claim for past economic loss is allowed at $4486.68.
For the reasons earlier outlined it is my finding that the plaintiff is not entitled to damages for past economic loss as a result of events following 23 October 1997.
From 15 September 1997 the plaintiff was fit for full‑time employment in the capacity in which she had been employed prior to her accident. The medical evidence is to the effect that her future employability has not been compromised by reason of her accident related injuries. In the circumstances it is my finding that there is no entitlement to damages by way of future loss of earning capacity.

Out of pocket expenses

The plaintiff also makes claim for reimbursement of out of pocket expenses incurred in respect of physiotherapy, swimming pool entrance fees, medication and travel expenses. I allow all those items which precede 15 September 1997 which totals $112.04. Interest is also allowed on that sum at the rate of 6 per cent (2 years 5 months) which totals $16.24.
Out of pocket expenses will be allowed in the total sum of $128.28.

Summary

In summary therefore damages will be allowed as follows:
General damages  $16,875.00
Special damages  $491.00
Future medical expenses            $3,000.00
Past economic loss  $4,486.68
Out of pocket expenses                 $128.28
Total$24,980.96