Daglarkiran v De Vecchis - [2011] WADC 146

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: DAGLARKIRAN -v- DE VECCHIS [2011] WADC 146

CORAM: SWEENEY DCJ

HEARD: 10 NOVEMBER 2010

DELIVERED : 16 SEPTEMBER 2011

FILE NO/S: CIV 1208 of 2009

BETWEEN: NURSEL DAGLARKIRAN
Plaintiff
AND
VINCENT JOSEPH DE VECCHIS
Defendant

Catchwords:

Motor vehicle collision - Personal injuries - Claim for damages - Liability admitted - Turns on own facts

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943 s 3C

Result:

Awarded $30,534.03 damages

Representation:

Counsel:

Plaintiff: Mr K S Pratt
Defendant: Mr K N Allan

Solicitors:

Plaintiff: Stephen Browne
Defendant: K N Allan

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

Nil

SWEENEY DCJ:

Introduction

On 2 December 2007 the plaintiff, Mrs Daglarkiran, was a passenger in her husband's car as he was driving along Alexander Drive, Dianella. Their three young children were in the back seat. The defendant, in his car, entered Alexander Drive from Yirrigan Drive without giving way and struck Mr Daglarkiran's car in a T‑bone fashion. Negligence is accepted on the part of the defendant.
It is the plaintiff's case that she has suffered ongoing injuries to her neck, thoracolumbar spine and right shoulder as a result of the collision. In the particulars of pain and suffering there is reference to bilateral shoulder pain, lower back pain and mid‑thoracic pain (which might be back or front).
The term 'thoracolumbar' has been employed by various witnesses to mean various things. I find it a broad and imprecise term, given that it is not being used to denote the thoracolumbar junction. I conclude then, as the defendant concluded in submissions, that the plaintiff claims for both thoracic and lumbar pain.
She seeks damages for pain and suffering and past and future medical treatment. She has never been employed and makes no claim for loss of earning capacity or gratuitous services.
The extent of the plaintiff's injuries and whether they were actually incurred in the collision are the issues before the court. The defendant's position is that there is a lack of continuity in the plaintiff's complaints of suffering pain in these three areas.
As to the right shoulder, it is common ground, consistent with all the medical evidence, that the plaintiff now suffers from subacromial bursitis and tendonitis and requires surgery. I will detail that evidence later. The defence accepts that the plaintiff did complain of shoulder pain shortly after the collision but then argues that she made no further complaint of any symptoms until mid‑November 2008. The defence also relies upon the evidence of Dr Bowles, occupational physician, that in May 2008 and January 2009 he saw no indication of such a condition.
The defence also questions the mechanism by which the shoulder incurred such an injury and challenges the plaintiff's evidence that this was occasioned by her moving her right arm back, just prior to impact, in a protective stance to guard her children in the back seat. The defence position is that the plaintiff has failed to discharge the onus of proving on the balance of probabilities that her shoulder was injured in the collision to such an extent that resulted in the later diagnosis.
The defence challenges causation in relation to the lower back pain and points to a lack of complaint of such symptoms to her general practitioner and the physiotherapist.
As to the plaintiff's other complaint of neck pain, the defence accepts that she made complaint of neck pain following the collision, but again points to the lack of continuity in complaint of such symptoms to her general practitioner (GP).
The defence also challenges the credibility of the plaintiff generally and suggests that she is dwelling upon her symptoms and therefore exaggerating them, arguing that any symptoms are in fact fairly modest and that, even if causation is proved, should result in only a modest award of damages.
A key area for me to consider, then, is the history of the plaintiff's complaints to her GP, her physiotherapist and the specialists she subsequently attended. The defendant's position does rest to some extent upon the premise that an absence of complaint on the part of a patient equates to an absence of symptoms. That proposition needs to be scrutinised in light of the particular facts of this case.

The first six months following the collision – the plaintiff's evidence and her treatment

The plaintiff has some limited English but gave evidence through an interpreter, which is apparent in some of the direct quotes from her evidence below.
She was born and raised in Turkey and left school at age 11. She has never been employed. She met and married her Turkish husband at the age of 19 and in 2003 they moved to Australia. At the time of trial they had four children, who were then 11, 6, 4 and 2 years of age. At the time of the collision, the youngest child had not yet been born and the plaintiff testified that, although she was unaware of it at the time, she must have been pregnant at the time of the collision.
Prior to the collision, she said, she was in good health and did not have any persistent pains in any part of her body and had not suffered any previous injury. There is no evidence to contradict that and I accept it.
What she recalls of the collision is suddenly realising that there was about to be an accident and, as a result, turning back to hold her children, all three of whom were in the back seat of the car. She said she did not turn her whole body, but just extended her right arm. I consider that evidence to be credible and that movement to be an entirely natural, instinctive one for a mother to make. The only other thing she recalls is her knee touching the bottom of the glove box.
At the point of impact, she said, 'I shake and I notice my head moving to front and back and then hitting the head – seat – head on the seat … I was shocked and I felt immediate pain on my back, and on my knee – on my knees. I obviously passed out at the moment' (ts 11). She has given an inconsistent history to doctors as to whether or not she lost consciousness, but nothing was made of that.
She said her back pain was in the middle of her back, pointing to the area of her waistline and just below, and said she still has that pain. She indicated that her neck pain was to the right side at the back (ts 13). She said her shoulder was hurting in the area of the joint between her arm and upper body and she still has that pain. She could not pinpoint the precise point of the pain, but said it is the area where her limb joins her upper body (ts 13).
She said she regained consciousness in the ambulance and recalls feeling severe pain to her neck, right shoulder and back (ts 12). Once she was at Sir Charles Gairdner Hospital, she was asked where the pain was and, as a result, was sent to the x‑ray unit for radiography on her neck, shoulder and back (ts 12).
The Patient Results from Sir Charles Gairdner Hospital Emergency department indicate that the plaintiff complained of 'C3 ‑ C5 tenderness' (neck), 'tender right AC joint' (acromium clavicular joint, which, according to Dr Baskaranathan, is broadly midway between the outside edge of the shoulder and the inside edge) and the 'right 5^th ‑ 7^th ribs laterally' (mid‑chest). No fractures were identified. It is immediately apparent that the history taken from the patient at the hospital makes no reference to back pain specifically, but if the rib pain was to the back, or included the back, that reported pain was rather higher than the plaintiff indicated in her evidence (waistline and below).
I will note here Dr Bowles was cross‑examined about clinical notes from Sir Charles Gairdner Hospital. If that is something different from the Emergency department notes, that document was not put before me.
Dr Goodheart helpfully explained that the spine can be divided into four major areas, the cervical spine being from the top of the spine to the base of the neck, the thoracic spine consisting of the 12 vertebrae to the bottom of the ribs, the lumbar spine from the bottom of the ribs through to the sacral region and the sacrum at the base of the spine (ts 75) and described the lower back as equating to the lumbar spine (ts 76).
The plaintiff said that, once she returned home, she went to see her GP in the next couple of days, because the pain was still there in those parts of her body. He prescribed medication, painkillers and some creams. She mentioned Mobic (an anti‑inflammatory), 'Nuro‑something' and Panamax. She said she also purchased Panadol and Voltaren gel over the counter (ts 16).
Dr Kanungo, the plaintiff's usual GP, made notes of that first visit on 3 December 2007. His recollection was limited to his notes, which indicate that the plaintiff complained of right‑sided chest and armpit pain on right arm abduction (moving the arm out to the side), right scapula and shoulder region pain and mid‑thoracic pain. In cross‑examination he explained that the mid‑thoracic area is vertebraes 4 to 7, being in between the two shoulders. That suggests the rib pain complained of in Emergency included the back. Dr Kanungo agreed that there was no complaint of lower back pain at that time.
In cross‑examination the plaintiff denied that she had complained of pain in her armpit, but I see no reason why the doctor would have invented that or so misunderstood her complaint and I find that she did make that complaint.
I earlier commented that it was not apparent from the Emergency department notes whether the pain to the ribcage was front or back, or both. Dr Kanungo testified that from the outset the plaintiff had complained of, amongst other things, anterior chest pain (ts 116). That, coupled with his evidence of pain between the shoulders, suggests overall thoracic pain.
On examination, Dr Kanungo found the plaintiff to be tender on the right upper chest wall, over the right trapezius, over the right lateral cervical muscle and the scapulothoracic region. He diagnosed her as suffering from whiplash and prescribed Naprosyn tablets and Voltaren gel.
The plaintiff testified that those treatments were not effective. She went back to her GP, who then referred her for physiotherapy.
The notes from the practice indicate that she saw Dr Panicker on 7 December 2007, who referred her for physiotherapy. The plaintiff said her regular GP is Dr Kanungo but, when he is unavailable, she also sees Dr Panicker at the same practice (ts 28).
Dr Panicker made no further notes as to the symptoms she complained of that day, simply referring back to the earlier note by Dr Kanungo, but confirmed in evidence that he had examined her and not simply relied upon his colleague's examination. He agreed that, on that date, he referred her for physiotherapy because of pains in her neck and chest. When asked whether he had noted any referred pain into the right shoulder he said there may have been, but he did not note that in his referral to the physiotherapist (ts 95). I do not consider that to be very significant. The letters of referral in this case are very minimal in information.
The plaintiff believed there was a waiting period (ts 14) before she could commence. It is common ground that she first saw a physiotherapist on 12 December 2007 and that her last session was 6 May 2008 (ts 16). She testified that she only stopped physiotherapy due to her advancing pregnancy (ts 14). Her youngest child was born on 11 September 2008.
The physiotherapist, Ms Catherine McNee, testified that during that first attendance, which was for the purposes of assessment, the plaintiff complained of right‑sided neck pain, right‑sided chest and sternum pain and right breast pain. She complained that the pain was aggravated by any housework, such as cleaning or cooking or lifting, and eased when she used a heat pack or did a bit of massage. The plaintiff had also said that the pain was not affecting her at night, but was worse in the morning and then stayed the same throughout the day.
As part of the assessment process, Ms McNee marked the areas of pain, and levels of reported intensity of pain, on drawings of the human body, which are before the court.
Ms McNee marked the chest area and intensity of the pain and described the pain complained of as 'a throbbing sharp pain. It's of deep nature. It's constant and on a visual analogue scale, it's from 6 to 8 out of 10 for severity, and she had no hand like, no shoulder, elbow or wrist pain. It was more just neck and kind of upper, in this region here' (ts 51) which she then illustrated as being 'up into the neck there, like that, and breast' (ts 51).
Although she said the plaintiff was not complaining of shoulder pain, the area that Ms McNee marked on her chart appears to encompass the entire right‑sided neck and upper chest and shoulder region.
She also performed an examination on the right shoulder joint in which she noted that the patient had limited movement and flexion, in other words forward movement, and had pain in the right neck and upper trapezius. She said her forward movement was limited to 125 ‑ 130 degrees and her abduction (sideways) was limited to 90 degrees, whereas both of those movements ought to be 180 degrees. She also said the plaintiff showed restrictions in moving her hand behind her head and her hand behind her back.
She assessed the patient's scapulothoracic area, which she explained is the shoulder girdle consisting of the scapula and the shoulder joint complex, and her assessment was that the plaintiff suffered pain on both elevation and retraction (pulling the shoulder blades together).
Ms McNee also noted that the goal for the patient was 'to relieve pain in neck and shoulder and scapula' and confirmed that was a reference to the right shoulder.
The inference is clear, then, that the plaintiff was complaining of pain in the shoulder area and I find that she did. She was also showing considerable restriction of movement, including internal rotation. There is no suggestion, however, of pain in the lumbar spine region. The back pain is all consistent with the initial complaint to the hospital and is distinctly in the region of the upper chest.
In relation to the plaintiff's neck, Ms McNee testified that she tested the six movements of the neck and the plaintiff reported that all movements were painful, the most painful movements being extension (looking up) and also a left side bend which caused pain in the right side of her neck. She also showed restricted right side bend movements and pain at C3, C4, C5 and C6 and also tenderness to palpation on C2, C3 and C4. These complaints of neck pain are all consistent with the Emergency department notes.
Ms McNee's overall assessment was that the plaintiff was 'pretty tender, pretty sore' and she administered massage and heat to the neck and upper trapezius region and upper thoracic spine and also gave her gentle range of movement exercises to try and improve some of the movement that was restricted. Ms McNee commented that the plaintiff was so sore that she could not really do a lot of hands on treatment and Ms McNee considered the possibility of hydrotherapy in those circumstances and also recommended the use of a contour pillow for the plaintiff's neck.
The plaintiff attended for physiotherapy again two days later on 14 December where 'she said the pain was a status quo, so re pain, it was a five or six on that particular day out of 10. She's functionally – she said the pain when she uses her arm like cooking or making a salad gave her the pain in the right neck, upper‑trap region. Also had difficulty brushing her hair with her right hand. So it was just functional activities' (ts 56). Ms McNee recommended two weeks hydrotherapy and also performed some physiotherapy treatment herself. At this point then, 12 days after the collision, there had been no complaint of lower back pain. There was, however, consistent complaint of pain in the neck, upper chest and shoulder, impacting upon the use of the right arm.
The plaintiff next came to see Ms McNee on 31 December 2007. At that time the plaintiff expressed the view to Ms McNee that the hydrotherapy was not giving her much relief and that she was predominantly using her left hand and arm to deal with her day‑to‑day activities as her right hand was very painful and felt cold and it was painful to iron and vacuum and do dishes (ts 56).
Ms McNee recorded that the plaintiff said her pain was about the same 'seven or eight out of 10. Right neck, upper trapezius, but this had changed slightly, it was radiating down into her upper arm and also down into her middle finger and she also complained of low back pain after sitting for longer than – or greater than 10 minutes' (ts 56).
That is the first mention of lower back pain in the materials before the court, four weeks post‑collision. Ms McNee confirmed in her evidence that the plaintiff initially saw her for neck and chest pain but, on the third visit, complained about lumbar spine pain (ts 61). It does not mean that lower back pain was suffered for the very first time on 31 December 2007, but it had not been mentioned on 14 December, two weeks earlier, and the plaintiff did not, in the interim, attend her GP in relation to any lower back pain, or at all.
I find that the lumbar pain, or thoracolumbar pain, did not manifest itself within the 12 days after the collision and therefore came on somewhere between 13 and 29 days post‑collision. I do not consider it at all probable that the plaintiff experienced that pain earlier, yet failed to mention it to her doctors or her physiotherapist. And it is unlikely, given its reported severity, that she endured it for long after it emerged, before complaining of it. I find it is likely it emerged closer to 31 December, than to 14 December 2007.
In that regard, while I consider it simplistic to equate absence of complaint to absence of symptoms, this absence of complaint occurred at a time when the plaintiff was attending upon her doctors and her physiotherapist and was complaining specifically of the pain arising from the collision. It has not occurred at a time when she stoically avoided attending doctors, hoping things would settle down, nor at a time when she was focused on her advancing pregnancy.
Nor is she a stoic person. There is quite some evidence that she is not. She is a patient who described her pain as being 10 out of 10 (to Dr Baskaranathan), and 'very bad' and 'terrible' (Dr Bowles). A description of pain as being 10 out of 10 ought to equate really to agony, pain of the worst imaginable kind, and it is inconsistent with the medical evidence overall that the plaintiff should be suffering such extremes of pain. That is not to say that the plaintiff does not genuinely believe her pain is at that level and indeed her threshold for pain may be such that pain does feel extreme to her.
She also shows some sign of either deliberate exaggeration of her incapacity or, more likely, I find, a genuine belief in her reduced physical ability which is not matched by her objective situation. I refer particularly to her consultation with Mr Anastas in which she reported pain on simulated movement of her spine (evidence which I will detail later).
The plaintiff was also somewhat theatrical in her manner of giving evidence. I invited her very early to look at her counsel, rather than me, when giving her evidence, but there were numerous occasions when she grimaced rather obviously, or held her lower back to demonstrate her discomfort, and looked plaintively at me, as if to be sure that I was observing her pain. She may well have been in some discomfort from sitting still for a prolonged period. The salient point, however, is that she presents consistently as someone who will complain of pain when she is suffering and does not show any tendency to be stoic or understated in her descriptions of that pain. Consequently, I find that if she made no complaint of thoracolumbar, or lumbar, pain during the 12 days following the collision, it is because she did not suffer it. She may not have suffered it for quite some time after 12 days. All that is known is that she complained of it 29 days post‑collision.

Returning to the history of her consultations, the plaintiff consulted Dr Kanungo, her GP, on 3 January 2008, speaking through an interpreter. Again, the doctor's recollection was really based upon his notes. He had noted that she had 'back pain and abdo pain which is not related to car accident'. He was not asked to pinpoint the site of the back pain, but in cross‑examination he said the back pain complained of that day was not related to the collision and explained that it related to a 'women's medical condition' (ts 106). He was not questioned further about that conclusion.
In the same consultation, Dr Kanungo noted that the plaintiff was complaining of right‑sided neck pain and was taking Panadol and Panadeine. That pain he did attribute to the collision and said that she had complained of painful right paraspinous muscles which, he said, was not 'referred pain from the neck', but was a right localised neck pain. I understood him to mean the pain coincided with its source. He said it was appropriate that she take Panadol and Panadeine (ts 106).
He noted that, on examination, she had 'tender spots all over' but that her passive movement was 'full'. He recommended she continue physiotherapy and hydrotherapy and that he would review her in two weeks.
In cross‑examination, the plaintiff denied that she had complained to her GP of pain over the whole of her back and said that the pain had always been in the same particular spot (ts 36). I do not consider Dr Kanungo's evidence was to the effect that the plaintiff had complained of pain over the whole of her back, but rather that his examination drew complaints of tenderness all over. The distinction may be subtle, but it is there.
The plaintiff insisted, however, that she did not suffer any pain at an area higher than the spot on her back that she had shown to the court (at the waist and just below) (ts 34). That evidence is quite inconsistent with her complaints of pain in the upper thoracic spine and shoulder region to the physiotherapist. Dr Baskaranathan also later found pain around the region of the bra line. I reject her evidence on this point as unreliable.
Either the plaintiff does not associate the pain to her upper chest and shoulders with back pain, or her memory has now become fixated on the lumbar back pain and blotted out the upper chest pain. Whatever the explanation, she is unreliable on that point.
Dr Kanungo agreed that the consultation of 3 January 2008 related both to the MVIT claim and also other medical issues, the thrust of that cross‑examination being to establish that he did not impose a rule that an appointment had to be one or the other, and that the plaintiff was free to discuss symptoms from the collision with him on any occasion she chose. He agreed there were a series of consultations during which no complaint was made in relation to the collision commenting 'I think she prioritise her medical condition over motor vehicle at that … as you know, she's a woman' (ts 108).
That, I think, was a reference by Dr Kanungo to the plaintiff being focused on her pregnancy. It was clear that Dr Kanungo's first language is not English, and he was a bit lacking in confidence in expressing himself at any length. The clarity of his evidence suffered, on occasion, as a result.
On 24 January 2008 the plaintiff consulted Dr Helen Vu of the same practice, speaking through an interpreter, and the consultation appears to have focused exclusively around her pregnancy. Relevant to this case, however, the plan notes indicate that a number of medications were ceased on that day, including the Naprosyn and the Voltaren gel, because of the pregnancy.
There were multiple consultations with the GPs in the weeks and months that followed concerning the plaintiff's pregnancy and also other medical issues unrelated to the collision, such as difficulties with allergies. There was no further consultation with any GP during the period of the plaintiff's pregnancy in which reference is made in the consultation notes to any symptoms arising out of the collision.
In cross‑examination, the plaintiff maintained that she had told her GPs about all of the injuries she has complained of, namely the pain in her neck, right shoulder and lower back (ts 29).
The plaintiff also denied that, after her initial complaints of shoulder pain, she then made no further complaint until seeing her GP in 2008. She also denied that she had made very little complaint about her neck during 2008 to her GP and said:
I definitely refuse that. Whichever medical practitioner I visited during that period, I made them all know about the pains and my back, shoulder and neck. (ts 38)
When asked whether she told her doctors about what was wrong with her 'every time you saw them' she replied 'Yes, I was. In those days, I was visiting my GPs to have prescription medication for my pains and they knew about my pains over time' (ts 29). It would seem, however, that any such medications were ceased due to her pregnancy in January 2008. She could not remember how many times she saw her GP during 2008, but said she regularly visited her doctors and was mainly being managed for her injuries by her GP, while also being referred to other specialists and physiotherapy (ts 29).
When it was pointed out that she was not referred to any specialists until the beginning of 2009 (leaving aside Dr Bowles, for a medico‑legal assessment) she countered that her treatment had been interrupted due to her advancing pregnancy and agreed she had not seen a specialist until after the birth of her child (ts 29). She said 'All my focus in those days was about the birth' (ts 29). She also explained that, when she found out she was pregnant, certain medical tests had to be postponed, for example the x‑ray to her back (ts 36).
When it was put to her that, if she was in such great pain, she must have visited her GP regularly, she replied:
I did attend to all appointments that my GP gave to me and he was not able to do anything more than prescribing painkillers to me and referring me to other health professionals. (ts 31)
She found it unlikely that she only saw her GP twice after the accident in 2007 and then three times in 2008 and felt that she had seen him more times than that (ts 31). Indeed she had and the question was a confusing one. When it was put to her that she had seen him more than that, but not because of the accident, she maintained that every time she visited him 'my accident injuries were on the agenda and he was monitoring how I was going' (ts 31).
I do not accept the plaintiff's evidence to the extent to which she claims to have regularly mentioned her symptoms. If she had, I find it likely her GPs would have made notes of that and I am supported in that conclusion by Dr Kanungo's later notes of 7 October 2008 in which he noted that he had not been consulted about her pain during pregnancy, which he confirmed in evidence.
I do not draw from that, however, an inference that the plaintiff was not suffering from any symptoms. During that same period, the plaintiff was attending physiotherapy. It would be quite natural for the plaintiff to assume that her doctors were aware she was suffering the symptoms she had several times informed them of, and that she was still in treatment for by way of physiotherapy, without the need for her to repeat them. It was equally natural for her to feel there was no point in raising the same symptoms when she could no longer take painkillers and, after a time, could no longer do physiotherapy.
There is a distinction to be drawn between a patient not complaining of a symptom at all, such as the thoracolumbar pain, while complaining of other symptoms said to be collision‑caused, and a patient not reiterating her complaints to a doctor to whom she has already detailed her symptoms more than once.
There is nothing in the notes of the general practice to suggest that the plaintiff was ever asked how her physiotherapy was going. Dr Kanungo confirmed that in his evidence. And there is certainly nothing in the notes to suggest that she reported to any GP that she had recovered from the collision, or that her symptoms had improved to any degree.
In the meantime, after the third session on 31 December 2007, the physiotherapist, Ms McNee, had gone on maternity leave. The plaintiff continued with physiotherapy, being seen by others at that practice. She kept appointments on 16, 18, 21 and 30 January 2008, 6, 13, 20, 22 and 27 February 2008, 5, 12, 17 and 26 March 2008, 11 and 15 April 2008 and 6 May 2008. It defies reason that she would attend so many sessions were she not continuing to experience symptoms.
There is a note of 18 January 2008 to the effect that the plaintiff was complaining of increasing low back pain. On 21 January 2008, her low back pain was worsening. On 22 February 2008, her neck pain was reported as slowly improving, but her back pain continued to be severe. However, on 27 February 2008 it was noted that her condition continues to fluctuate and that sometimes her neck and back are okay, but at other times they were severe. On 5 March 2008 it was noted that her neck pain was slowly settling but her back pain was increasing. Throughout March 2008, she reported her back being very sore, with her neck sore but with some fluctuation.
In her evidence, Ms McNee summarised all of the notes of her colleagues as follows:
She didn't make a lot of progress. You know, like her pain fluctuated, went up and down depending on the day. She was obviously treated according to what they found on the day, but most of the time it was both the cervical or lumbar mobilisation with massage and heat and some exercises … neck pain slowly improving, back pain continues to be severe. Yep, it's all – it's basically neck and back, yeah, in all of those ones, all those entries. (ts 59)
The plaintiff testified that, over the period of that physiotherapy, the right side of her neck, her right shoulder and her back continued to cause her pain. When asked 'where in the back?' she replied 'It just about my pelvis. Pelvis, yeah' (ts 15). She said she found the physiotherapy, particularly the massage component, extremely painful, forcing the physiotherapist to massage her very softly (ts 15). That description of her back pain tends to suggest it was quite low on her back, truly lumbar, even sacral at that stage.
She said she stopped using the Mobic due to her pregnancy, as advised by her GP. That is borne out by the consultation notes of Dr Vu, mentioned earlier.
The plaintiff testified that, in the last stages of her pregnancy, she was using Panamax and Voltaren gel (ts 16), which were ineffective in reducing the pain. She testified that she always had the pain (ts 16) and it definitely did not lessen and stayed the same or more painful than before.
She said during her pregnancy, and after she stopped physiotherapy, the pain in her shoulder and neck was 'as it had always been' (ts 48) but agreed the pain was worse at the end of her pregnancy and afterwards and said she struggled more with her household duties. She was unable to give any medical explanation, of course, as to why the pain was worse at the end of her pregnancy and after the delivery (ts 48).
One does not need to be a medical specialist, however, to understand that a woman in an advanced state of pregnancy may be less tolerant of pain as she becomes more physically uncomfortable and carries more and more weight on her belly, with no recourse to effective painkillers. And then, of course, following delivery, she has the stress of a newborn baby to look after (not to mention the other three children and a husband), while undergoing hormonal changes and probable sleep‑deprivation.
And there were other emotional stressors. The plaintiff explained that two of her children, including her youngest, suffer from PKU (phenylketonuria, a very serious condition) and as a result require a closely monitored diet, which means she is cooking two sets of meals (ts 20). She explained that PKU can affect her children's activity levels in varying ways, sometimes rendering them extremely docile and other times rendering them hyperactive. She said it is a permanent condition (ts 27). She said it is 'extremely difficult' and she is 'really struggling' to look after her children.
In cross‑examination she agreed that 'things got really bad' in her shoulder and back during the later period of her pregnancy and after her child was born (ts 47) in September 2008. She agreed that her life was harder after the birth of her baby and said:
I was affected both physically and mentally and the fact that my child was born with these blood defects, the toll on me mentally and physically because I was not in perfect health and attending to the baby's needs has been pretty strenuous, you're right. (ts 46)

Dr Michael Bowles' first consultation on 29 May 2008

On 29 May 2008 the plaintiff was sent to see Dr Michael Bowles, occupational physician. Dr Bowles explained in evidence that he conducts independent medical assessments for medico‑legal purposes (ts 210). He examined the plaintiff with the assistance of an interpreter. His is the earliest of the various specialist reports before the court. This assessment took place, then, at the end of all the physiotherapy and while the plaintiff was still pregnant. The defendant places significant reliance upon this report.
The history he took from the plaintiff was to the effect that, after the collision, she suffered neck and back problems, the neck pain being immediate and the strong pain developing approximately 20 days after the event.
Her current complaints included trouble with headaches, constant pain to the neck, more left‑sided than right, to the extent to which she was sometimes unable to sleep, some radiation of pain into both trapezial regions and also discomfort into the left arm.
It does seem odd that every other medical specialist has noted that the plaintiff was complaining of right‑sided neck pain and discomfort into the right arm, apart from Dr Bowles. And the next time Dr Bowles saw the plaintiff, she was complaining of right‑sided neck pain and right shoulder pain.
The neck pain could be something that might alter on a particular day, or at least give the patient the perception that it is worse on one side than the other on a particular day, and I do not consider that a patient will necessarily be able to pinpoint the source of neck pain the way a doctor or lawyer might expect them to. And she had previously complained of pain in her trapezius on both sides.
I consider it unlikely, however, that her symptoms had so altered between arms. I also find it unlikely that a person telling a false story would not at least recall which shoulder was supposed to be painful. I can only conclude that there was some misunderstanding. At one point in her evidence, the plaintiff did testify (ts 21) that she could 'only use the right arm' to wash her children, before being asked 'use which arm again?' The answer made it clear she was speaking of pain in her right arm and needing to use her left arm to avoid the pain.
The objective fact is that the plaintiff's right shoulder currently requires surgery. It rather follows that it is her right arm which gives her difficulty and not her left. And yet she gave that evidence. Perhaps the plaintiff is someone who does not automatically know her right from left and needs to think about it before responding. She would not be an orphan in that regard. Or perhaps communicating through a translator leads to an occasional misunderstanding.
For whatever reason, I am satisfied that she was not in fact suffering pain in the left arm and nor did she mean to convey that to Dr Bowles. I find that what she intended to convey was that she was suffering some radiation of pain into both trapezial regions and also discomfort into the right arm. In any event, Dr Bowles remarked that neurological examination of the upper limbs was normal.
She complained to Dr Bowles that, whatever she did, even light house duties, she would feel pain, and the pain continued even if she lay down. The plaintiff said that her worst problem was her neck and that her sleeping was not good.
The plaintiff noted neck complaints throughout her neck but more so on the left side radiating out into the trapezial regions, through the thoracic spine and down the left flank and musculature. Light palpation over all of those regions and in particular the neck was reported as being painful. Dr Bowles said that she showed a good range of movement in the neck but grimaced and complained of pain at the end stages with rotation (side to side) and lateral flexion (ear to shoulder) on both sides.
She also complained of pain in the mid‑thoracic spine. He remarked 'there was little thoracic movement to request'. I understand him to mean she demonstrated considerable restriction. Mid‑thoracic pain is more consistent with her initial complaints of pain following the collision.
Dr Bowles reported that the plaintiff did not complain of any lumbosacral pain, apart from some discomfort in the left buttock and left leg, which she said would occur when she sat or bent over and that she had difficulty sitting on the floor. That is broadly consistent with her evidence of pain in the pelvis area. In cross‑examination, the plaintiff denied that she complained about pains in her leg (ts 42) but I accept that she did.
On examination, Dr Bowles found no restriction in her lumbosacral range of movement.
During his examination of her lower limbs, the plaintiff demonstrated an ability to raise her straight leg to only 20 degrees. He explained in evidence that this consisted of having the plaintiff lie flat on a couch, he would then pick up the patient's leg and lift it as far as was comfortable for the patient and have her tell him when it became too painful (ts 216). A normal range of flexibility is around 60 to 70 degrees, with more flexible people achieving 90 degrees. She showed therefore considerable restriction. By contrast, however, she was able to sit up and have the legs extended to 90 degrees, which he considered to be an inconsistency. Such a marked difference does indeed seem an inconsistency. Dr Bowles said, in isolation, one inconsistency is generally not considered significant as one will often find one aspect of a plaintiff's presentation that does not quite add up (ts 217). Dr Bowles noted more than one aspect of her presentation which he regarded as inconsistent.
Dr Bowles found that:
In essence, there was little to find from an objective perspective. There was evidence of inconsistencies, with light touch tenderness, discrepancies between straight leg raising supine and seated, thoracic movements between formal and informal movements, and callousing on the hands not consistent with Ms Daglarkiran's notation of little household activity.
The reference to a difference between formal and informal movements was the difference between results of his formal examination, where 'there was little thoracic movement to request' as opposed to his observations of her when she was moving casually and was not showing any restriction (ts 217). He explained that the sort of casual movement he observes is how the patient leaves the office and that sort of movement where he is not giving her instructions to do anything (ts 218). He considered those inconsistencies to be inexplicable on the basis of physical injury.
Broadly speaking, I would not be inclined to place a great deal of weight on some difference in observation between formal and informal observation, given that Dr Bowles indicated that he leaves the room while the patient undresses and re‑dresses. The range of movement involved in walking into an office and sitting down cannot be great, although he would also have an opportunity to see the patient move from a seated position to a position on her back and returning again to a seated position. In this case I place a little more weight on it in relation to the thoracic movement, however, given that Dr Bowles indicated 'little thoracic movement to request', indicating a presentation of some real restriction, which is likely I find to manifest itself in casual movement to at least some observable degree.

Another inconsistency which Dr Bowles mentioned is that he noticed callouses on the plaintiff's hands, which he considered inconsistent with a claim to the effect of 'I'm not doing anything, and sitting at home, twiddling my thumbs' (ts 217). That is not a totally fair summary of the plaintiff's position. She complains of pain on any activity and difficulty in carrying out normal household activities. It is inherent in her claims of pain, however, that she does attempt those activities. And the fact is, she is the mother of four children, and has not been able to abandon the care of them entirely to her husband.
In cross‑examination Dr Bowles accepted that callouses on the hands might take weeks to months to resolve and agreed they could probably take six months to disappear (ts 227). He accepted that callouses on the hands might not be an inconsistency. He also agreed that he had made no later comment about callousing on the hands and agreed that, if he had seen callousing on a later examination, he would have mentioned it (ts 227). It would seem that the callouses disappeared over time, consistent with reduced activity. I place no weight on the fact of calloused hands.
Dr Bowles was cross‑examined as to bias. He disagreed with the proposition that it was his living to seek out inconsistencies in a patient's presentation, commenting:
I let a lot go. No, that's not correct. As I said, it needs to be taken in the context. So if I find one or two, I often will just say that they're there and make no light of them. (ts 227)
While I consider that it is, to an extent, Dr Bowles' perception that part of his task is to seek out inconsistencies in a patient's presentation, it does not follow that he performs that role dishonestly, or that he does not honestly report on the presentation he observes, including where that presentation might be consistent with collision‑caused injuries. Dr Bowles certainly does not adopt a view of unquestioning acceptance of a patient's presentation. There is something of the air of the investigator about him, but that does not mean that his observations are necessarily inaccurate. It may however lead to a greater tendency on his part to perceive inconsistencies and to judge the patient's presentation accordingly.
Dr Bowles found the nature of the plaintiff's complaints to be mechanical cervicothoracic symptoms with no obvious disability and said it was too early to comment on any permanent disability. In cross‑examination Dr Bowles explained that 'mechanical pain' is pain made worse with movement (ts 239). He concluded in his report 'It is likely the complaints do relate to the motor vehicle crash in terms of residual whiplash associated disorder, with some likely embellishment'. His conclusion that there was probably some embellishment was based upon the inconsistencies he found. He certainly did not suggest that the plaintiff was injury free (ts 218).
He considered no further medical treatment was required and that Panadol and heat packs were sufficient and adequate treatment at that time. Although his report did not say as much, that focus on the cervicothoracic region appears to dismiss the discomfort in the left buttock and left leg either entirely, or at least as a collision‑related injury.
In relation to his comment 'neurological examination of the upper limbs was normal', Dr Bowles explained that what he was looking for was any impingement in the nerve function of the arms, either from the neck or from carpal tunnel syndrome or an elbow nerve problem. He said he was looking to see that the nerves in the hand are working normally, which involves assessing whether sensation, power and musculature is normal, whether reflexes are symmetrical, and whether the function of the limbs, apart from the joints, is clinically within normal limits (ts 215). He testified that, when he examined the plaintiff on 29 May 2008 'there was no history or – or signs in the arms to suggest that there was a significant nerve root problem or neurological problem' (ts 215).
Dr Bowles was unable, however, to say whether he had examined the plaintiff's shoulders at all. He makes no reference in his report to having done so. He said he generally asks a patient to raise their arms above their head but could not advance that any further (ts 218).
In later evidence, referring to his final consultation on 22 December 2009, Dr Bowles said that previous examinations had not shown any complaint to the shoulder and, consequently, he had not then gone into specifically examining for impingement syndrome or any rotator cuff pathology, because she had not complained (ts 223).
It was put to the plaintiff in cross‑examination that, in May 2008, she made no complaint to Dr Bowles of shoulder pain. The plaintiff insisted that she did mention her painful right shoulder to Dr Bowles and said she explained exactly where her pains were (ts 40).
Dr Bowles agreed, however, that the plaintiff had made complaint to him of pain from her neck going into her left shoulder. I have already found that I consider there was some misunderstanding concerning which shoulder she meant.
When asked to explain the potential relationship between symptoms in the arm and symptoms in the neck, he explained that 'pathology in the neck can lead to a person perceiving pain in their arm. And also, at the back of their shoulder is quite a common referred pattern of – of pain that people will perceive their pain in other places than where the actual pain generation is. So that's where the neurological aspect of that process comes through' (ts 215). His view appears to have been that any arm pain was explicable on the basis of neck pain.
The salient point is that there was complaint of pain in the shoulder, reportedly impacting upon the use of the arm, understood by Dr Bowles to be the left arm, and regarded by him as referred pain from the neck. There was also complaint of pain inhibiting sleep.

Dr Kanungo's report of 22 July 2008

Dr Kanungo wrote a report on 22 July 2008 (while the plaintiff was still pregnant and at the end of all of the physiotherapy) in which he diagnosed the plaintiff as having suffered a whiplash/soft tissue injury to the right side of her neck, shoulder and scapulothoracic region.
He stated:
Mrs Daglarkiran was not seen after 13/1/2008 in regard to motor vehicle accident and there was no feedback from physiotherapy has been received to date. Hence I presume good recovery from the above treatment and no further measures are required.
That presumption was made by the doctor, however, without consulting the physiotherapists, nor the patient herself. In the circumstances, I attribute no weight to it at all.

Treatment following the birth of the plaintiff's fourth child

On 11 September 2008, the plaintiff gave birth to her youngest child.
The last note in the physiotherapy clinic notes before the court indicates that she attended that clinic three weeks post‑delivery. The note itself is undated but the visit must have been around the beginning of October 2008. She is noted to still be complaining of neck and lower back pain and to be having difficulty sleeping due to neck and right shoulder pain and tightness. Her pregnancy now behind her, she clearly began to focus once more on the symptoms she attributed to the collision.
The next significant consultation in relation to the collision occurred on 7 October 2008 when the plaintiff consulted Dr Kanungo, GP, about the MVIT claim. The doctor announced in evidence: 'beside what I wrote I cannot recollect anything'. His notes from that consultation read as follows:
came to see about MVIT.
explained the lawyer and specialist report.
clearly explained although she was pregnant at never time she did not consult me or raised the issue of pain.
says use to take panamax and rub
which i was not aware.
last physio – ‑ 4/12 and 5/12 ago.
getting worse day by day for the last 3 days could not sleep.
continue the same.
using special pillow and it is not helping.
panamax and taking her husband medication.
about 8 a day.
bought it from shop when on inquiry where she got the script.
not breastfeeding.
o/e neck flexion and extension painful.
lateral rotation says okay.
back pain ‑ ‑ whole back.
diffuse.
clinically nil significant.
back pain when getting up from sitting.
appears muscular.
explained to the patient.
need letter for acceptance of liability.
The doctor prescribed Panamax tablets. In cross‑examination, he said that he did not fully recollect but he thought the plaintiff had been told to come and see him to ask for a specialist report. He agreed she was complaining of pain to her whole back of a diffused nature and said that that was not something he was able to measure anatomically. He also agreed that he was surprised by her complaints of pain because she had not mentioned them during her pregnancy. His note recording to the effect that the plaintiff had not raised these symptoms with him during pregnancy was no doubt inspired in part by the fact that he had only recently written a report in which he presumed she had made a 'good recovery'.
When it was put to her that she had never advised her GP that she had suffered continuing back pain during her pregnancy, the plaintiff said:
I advised my GP about the pain in my back starting from the time before I knew that I was pregnant till to the time I – you know, I delivered the baby, so he always knew that I was suffering from back pain. (ts 36 ‑ 37)
It was put to her that her GP did not know she was suffering from back pain until around the time of the birth of her child and she responded:
I advised my GP immediately after the accident, starting my first visit to him after the accident, that I had pain on my back. But it might be that because after my pregnancy was discovered, he decided and told me that nothing significant can be done about that back situation until I delivered the baby. Perhaps we didn't talk about it too often during the period until I delivered the baby. (ts 37)
It was then put to her:
I didn't mean to suggest you didn't make the complaint earlier, but during – you then really made no complaints until about the time your baby was delivered. And you agree with that, from what I understand?
The plaintiff did not quite understand that question and maintained:
It's not true, once again. I advised the GP about the pain in all my troublesome areas of my body immediately after the accident, and he knew from the outset when I first visited him for the sort of injuries that I had problem – I had pain in my back, and he knew it all along. And one of the reasons why I was referred to a physiotherapist was my pain condition because the physiotherapist obviously tried to alleviate the pain on my back. (ts 38)
I find that the plaintiff did not make complaints of back pain to Dr Kanungo during the course of her pregnancy. She is unreliable on that point. But nor do I find that fatal to her credibility generally, for reasons I mentioned earlier.
I find it was simply a case of the doctor being in a practice with, no doubt, other patients waiting and he has noted and responded to whatever the plaintiff volunteered on any particular visit. She had any number of issues, unrelated to the collision, that she raised with the doctor over the months.
And for her part I think it likely she worked on the basis that he knew she was receiving physiotherapy, and then her pregnancy was advancing and the pregnancy became the focus of her world, and the other things would have to wait. I accept that she would have assumed at that point there was nothing much that could be done and she could not take painkillers and there was not much point in raising the matter with him until she had given birth.
That does not detract, however, from the significant difficulty for the plaintiff's case that she did not complain of lower back pain until 29 days after the collision.
About five or so weeks later, on 17 November 2008, the plaintiff saw Dr Panicker (probably meaning Dr Kanungo was unavailable) complaining of ongoing pain in her neck and right shoulder related to the collision. In cross‑examination Dr Panicker confirmed there was no complaint on that day of either lumbar or thoracic pain (ts 96). He prescribed Mersyndol caplets.
In relation to the plaintiff's complaint of ongoing right shoulder pain, he agreed that, at that time, he associated that with the neck pain, seeing it as pain radiating from the neck. He agreed that was a common complaint (ts 96). He also agreed that neck pain and associated radiating pain into the shoulder could be exacerbated by looking after children (ts 96).
A month later, on 18 December 2008, the plaintiff saw Dr Kanungo. Again the doctor's evidence was limited to the content of his notes which read:
back pain.
worse after delivery - - noted put on weight.
cannot get up after sitting.
cannot clean and cannot carry/vacuum.
alone/cannot come for review.
o/e back – diffuse lower.
flexion end of range pain, extension painful.
ref to Dr BASKar.
ct Lsspine.
mobic and panamax given.
In cross‑examination, Dr Kanungo confirmed that the reference to back pain getting worse after delivery was a reference to the same back pain of which the plaintiff had complained in October.
He explained that the reference to 'ct Lsspine' was a reference to his ordering a CT scan on her lumbar sacral spine and the reference to Dr Baskar was a referral to Dr Baskaranathan.
The CT scan of the lumbosacral spine was performed by Dr Sanjay Nadkarni on 23 December 2008. Significantly, it revealed mild concentric disc bulges at L3/4, L4/5 and L5/S1 level, with moderate degenerative changes in the facet joints at the L3/4 and L4/5 level and moderate to severe degenerative changes in the L5/S1 facet joints.
These degenerative changes cannot have been caused by the collision. They are not injuries. Dr Anastas confirmed in his evidence that they cannot, of themselves, be related to the collision.
There is of course no evidence that these degenerative changes were symptomatic prior to the collision. But there is equally no evidence that they became symptomatic immediately following, or in the days following the collision. The first complaint of lower back pain was on 31 December 2007.
The next significant consultation was on 5 January 2009 when the plaintiff saw Dr Kanungo. His notes indicate:
ct ‑ ‑ explained.
nil significant.
mild bulging.
adv hydrotherapy.
prolong sitting gets pain.
cont mobic and panamax.

Dr Ross Goodheart

Dr Ross Goodheart, consultant neurologist, saw the plaintiff on 8 January 2009. He was, I found, an impressive witness, careful and considered in his answers and willing to allow for potential limitations in his own expertise, which might have caused him to have a particular focus in his examination.
To Dr Goodheart the plaintiff provided a history of looking to her right and to the rear of the car to attend to her children just prior to the collision.
She told him that she noted immediate neck pain, worse on the right‑hand side and, by the time she was discharged from hospital, she was troubled by neck pain and lower back pain, which symptoms have persisted.
Her claim to have been troubled by lower back pain by the time she left the hospital is inconsistent with the Emergency department notes, her consultations with Dr Kanungo and Dr Panicker on 3 and 7 December 2007 respectively and her first two sessions in physiotherapy. But that is the history Dr Goodheart took from her and he agreed in cross‑examination that, when he examines a patient, he is pretty much obliged to accept what the patient tells him (ts 84). His conclusions linking an injury to the collision must obviously be informed by the history taken from the patient.
The plaintiff described being significantly troubled by neck pain, headache and lower back pain during her pregnancy, which symptoms had not changed significantly following the birth of her child.
Dr Goodheart noted that, at the time he saw her, she was troubled by neck pain to the right of the midline and that pain would tend to radiate through the right shoulder region towards the right elbow. He testified that the plaintiff had told him that the neck pain could move from the right side of the neck through the suprascapular region of the right shoulder and down into the right elbow (ts 74).
Although she also complained to Dr Goodheart of significant headache, she gave no evidence of that and consequently her complaint to him is hearsay.
On examination, there was restriction in her neck movement, particularly with lateral flexion (moving her ear to shoulder) to both sides, but also with flexion (moving her chin downwards). She described tenderness over the lower right neck. He found formal testing of her muscle power was limited by pain in her right arm.
She also described being troubled by constant lower back pain radiating into both buttocks, made worse by prolonged periods of standing or lifting.
On examination, he found restriction in her thoracolumbar spine in both flexion (moving forward) and extension (leaning backwards). The formal testing of muscle power in her legs was limited by pain.
Dr Goodheart was of the opinion that the plaintiff suffered a predominant soft tissue injury to her neck in the collision and continues to experience symptoms on this basis with associated soft tissue symptoms in the right arm. His interpretation of her shoulder pain, therefore, was that it was associated with her neck injury.
He considered these symptoms would persist for the foreseeable future and felt that she had suffered a permanent 10% loss of the full efficient function of her neck, which encompassed the accompanying soft tissue symptoms in the right arm, that is to say the radiating pain to her right shoulder and beyond, and her associated headaches (of which the plaintiff gave no evidence).
He said he based that assessment on his experience of assessing patients with neck problems rather than looking at any particular scale (ts 79). He described a loss of 2.5% as being a fairly minimal set of symptoms and a loss of 20 or 25% as being a pretty significant injury 'so – so here we're in the, I guess, moderate – mild to moderate range' (ts 79).
Dr Goodheart was also of the opinion that the plaintiff had sustained a predominant soft tissue injury to her thoracolumbar spine in the course of the collision, with continuing symptoms. In cross‑examination he explained that, when he referred to the thoracolumbar spine, he was not referring to the thoracolumbar junction where the lumbar meets the lower thoracic spine, but was referring to the whole lot in total (ts 83). I view that evidence, however, against the backdrop of the plaintiff complaining to him of lower back pain, rather than overall thoracic and lumbar pain.
He felt she had sustained a permanent 15% loss of the full efficient function of her thoracolumbar spine, and explained:
I think one thing here is that the patient was suggesting that her lower back was more troublesome than her neck and associated right arm symptoms, so that – that might be a factor, as well. (ts 79)
He considered that, at the time of his review, the plaintiff remained partially incapacitated in relation to domestic duties, social and recreational activities and sporting activities and was limited in her capacity to care for her children. He considered that she may benefit from further courses of anti‑inflammatories and painkillers and possibly from physiotherapy, but did not see any scope for surgical intervention.
Dr Goodheart was asked in cross‑examination whether he had been able to draw any distinction between the plaintiff's symptoms pre‑pregnancy and during pregnancy. He explained that he was aware that she had been pregnant for most of the period between the time of the accident and his consultation with her. He said it was relevant for him to ask whether she had experienced symptoms pre‑pregnancy and also to enquire about symptoms during her pregnancy, and said she had told him she was significantly troubled by pain during pregnancy. He added, however:
I don't think it would be possible for me to suggest that there was something additional going on that was definitely related to her pregnancy but, then again, the – the flavour of her back pain I think was fairly consistent throughout. (ts 85)

A day later she complained to Dr Kanungo of right‑sided chest pain, armpit pain on right arm abduction, right scapula and shoulder region pain and pain in between the two shoulders. Four days later, she again complained of those things to Dr Panicker.
When she saw the physiotherapist Ms McNee for the first time the plaintiff complained of, amongst other things, right chest and breast pain, pain in the trapezius muscles, shoulders and scapula and pain on pulling both shoulder blades together. In the days that followed the plaintiff complained of pain in using her right arm. A month after the collision she reported predominantly using her left arm.
The inference is overwhelming that she sustained some trauma to her right shoulder in the collision and the injury did not resolve itself through physiotherapy, nor the effluxion of time.
I accept her evidence that the pain remained constant, notwithstanding that she did not complain to her GPs of that pain. I accept that her pregnancy eclipsed her collision‑related issues and she felt there was nothing that could be done for her while pregnant and unable to take medication.
In November 2008, her complaint of shoulder pain emerged again and she has been complaining ever since. That shoulder pain has been interpreted as radiating neck pain by some, but there is, I find, a consistent pattern of complaints of right shoulder pain.
There is no evidence that the plaintiff has suffered another trauma to her shoulder apart from the collision. And, in the end, it is simply too great a coincidence that she complained of a tender acromion clavicular joint immediately following the collision, to reject the causal connection.
I find the plaintiff has proved, on the balance of probabilities, that she incurred that injury during the collision. The degree of pain it caused her, which appeared to worsen over time and particularly after giving birth to her youngest child, may well have been affected by the amount of housework and child‑rearing duties she carried out from time to time, which activities cannot reasonably be avoided by any conscientious mother. I accept that injury is currently quite debilitating and painful and I accept her evidence as to the impact it has on her everyday life, in making personal grooming and washing difficult, in making bathing her youngest children difficult, in making housework harder and much slower, and in making running after the children more difficult and I am prepared to infer, as I commented earlier, that grocery shopping is likewise harder and that her general mood is also compromised by being in chronic pain.

General damages

This being a motor vehicle collision which occurred after September 1993, any award for general damages for pain and suffering, loss of amenities and loss of enjoyment of life is subject to s 3C of the Motor Vehicle (Third Party Insurance) Act 1943, by which Parliament has limited the amount of damages which can be awarded. The maximum amount which can be awarded is currently $350,000 for a 'most extreme case', which is not a defined term but which clearly relates to very serious and debilitating injuries, such as quadriplegia or serious head injuries. I have to assess the plaintiff's injuries in order to decide what percentage of a 'most extreme case' her situation represents. Once that percentage is arrived at, the Act prescribes the amount to be awarded after deducting a base figure, also prescribed. The scheme of the Act is such that, if the percentage is less than 5.5%, the deduction of the base figure results in no award.
My assessment cannot take into account the lower back injury which I am not satisfied was collision‑caused and it cannot take into account any thoracic back pain which the plaintiff denied in evidence.
Overall, I assess this case as falling at no more than 11% of the most extreme case, which, after deduction of the base figure of $17,500, results in an award of $21,000. My assessment of 11% of the most extreme case encompasses both the neck symptoms and the right shoulder symptoms, which the plaintiff has now been suffering for three years and 10 months. I work on the assumption that the plaintiff will have the surgery to her right shoulder and that she has a 95% chance of making a complete recovery, but a very small chance of not recovering. Her incapacity will then be considerably less and related to the neck only but, to make that recovery, she will have to endure painful surgery and a six‑month recovery time.

Special damages

Most of the past expenses had been agreed and paid but there remained in dispute a total sum of $1,083.75 representing the cost of the injections into the right shoulder and the various associated ultrasounds. It follows from my findings above that I award that sum. Past travel expenses are agreed at $143.48, and there is an outstanding Medicare account for $106.80, also agreed, so I award, in total, $1,334.03 for special damages.

Future expenses

I accept that the plaintiff both requires and will undergo the decompression surgery and should be awarded the likely cost of that surgery and recovery, which has been agreed between the parties.
I was told the parties have agreed a total sum of $6,100. The schedule I was given with various items in fact totalled $6,400, but I will honour the total sum I was told was agreed and award $6,100 for future medical costs, for the medical fee to the orthopaedic surgeon for the surgery itself, the hospital fee including the theatre fee and an overnight stay, the anaesthetist's fee, rehabilitative physiotherapy sessions and post‑operative consultations with the orthopaedic surgeon.
There are some further expenses claimed, which are in dispute. No evidence has been led in relation to these specific items, but it is apparent they will be required and I am prepared to draw some broad inferences based upon the evidence overall.
A sum of $2,000 is claimed for future physiotherapy sessions at the rate of $60 per session, equating to about 33 sessions excluding the rehabilitative sessions post‑surgery. I do not consider 33 sessions will be either required, nor attended, but I allow for some physiotherapy by way of 15 sessions, resulting in a sum of $900. The claim of $500 for travel is I feel excessive and I allow $100. There will be some attendances upon a general practitioner, but I reduce the sum claimed of $1,500 down to $600 for around 10 visits. And finally, I allow $500 for painkillers. Of the disputed items then, I have allowed a total sum of $2,100.
That results in a total award for future medical expenses of $8,200.
I award damages as follows:
General damages: $21,000.00
Special damages: $1,334.03
Future medical expenses $8,200.00
Total award: $30,534.03