Day v Gascooke No. DCCIV-99-1850

DAY v GASCOOKE
[2002] SADC 66
Judge Rice
Civil
Introduction

These proceedings seek an assessment of damages arising from a rear-end motor vehicle collision. Liability is not in issue. Apart from less significant heads of damage, the plaintiff claims that she has suffered a substantial loss of her past and future earning capacity despite earlier work-related injuries, a later work-related injury and two other injuries. She says she retained a residual working capacity despite some earlier disability to the right wrist and thumb. Particularly, the plaintiff planned to become a medical receptionist.
The defendant’s case is that the earlier injuries had deprived her of any earning capacity as at the time of the subject collision. Consequently, so it is submitted, her earning capacity was not further reduced or extinguished as a result of the collision.
A resolution of these issues involves a consideration of the High Court case of Medlin v The State Government Insurance Commission (1994-1995) 182 CLR 1 in the light of factual findings made by me. There are other issues but these are the most important and have consequences upon other aspects of damages.
Circumstances of the motor vehicle collision
At or about 3.00 p.m. on 7th January, 1997, the plaintiff was the driver and sole occupant of a small Daihatsu Charade which was in a stationary position facing west on Grote Street at the traffic lights at its junction with West Terrace, Adelaide. The plaintiff was waiting for the lights to turn green to enable her to do a left-hand turn into West Terrace. Her car was in a position to be the first car to move off. At that time the plaintiff was on her way home from work as a Wards Maid at Wakefield Hospital, Adelaide.
Whilst the plaintiff was in that position, her car was struck from behind by a car being driven by the defendant. Although it is not important, it may well be the case that the defendant thought the plaintiff was going to move off but, in fact, she remained stationary. Both vehicles then moved around the corner on to West Terrace and the drivers exchanged details. There is no suggestion other than that the collision was relatively minor. The photographs (exhibit P6) confirm that position. Those photographs show dents in the boot/hatch and rear bumper bar.
The plaintiff’s evidence concerning her injuries arising from the collision
I find the following facts.
Although there were no immediate symptoms, about half an hour later, by which time she had arrived home, the plaintiff felt pain on both sides of her neck, in her shoulders and down her back right down to her waist. She said it was even worse the next day.
She did not go to her general practitioner, Dr Westlake, until the day after the collision. He gave her Capadex and Panadeine Forte if the pain was really bad. She was referred to a physiotherapist whom she saw the following day at which time the pain was the same.
The plaintiff was off work for three weeks. She saw Dr Westlake and the physiotherapist on a number of occasions over that period. When she returned to work, her neck, shoulders and back were still very painful, with little change since the collision. This pain led to significant restrictions in her ability to perform her pre-collision work. That pain and those restrictions must be considered in combination with a number of pre-existing conditions to which I will refer later. Quite apart from pain associated with specific jobs upon her return to work, generally the pain remained and was possibly worse.
About two months after the collision, the plaintiff resigned her employment with the Wakefield Hospital. On a number of occasions she was asked why she stopped work after her return. At p.43 of the transcript she said this:-
“Q.Why was it that you stopped work after that return, what brought the work to an end.
A.It was just everything, you know, just from the pain and everything that I had to do, was just too much.
Q.Apart from the general pain being too much, did you suffer any particular injury to any finger or your hand when you went back to work after the car accident.
A.Yes, I did.”
That injury also led to her consulting Dr Westlake. She did not return to work after that day.
As I have said, as to other work-related injuries, I deal with those below.
She was then asked (pp.43-44):-
“Q.You have told us before the break, and even after the break, of many incidents at work where you injured your hand, or other parts of your body, and got back to work eventually. Why was it that you didn’t go back to work after this occasion.
A.It was just so sore and I couldn’t - that is why I wasn’t doing the computing as well because I just couldn’t bend it and I knew I couldn’t do the work. I wouldn’t be able to wring cloths or anything, so it was so painful and my back was hurting me as well, so -
Q.When you say your back, which part of your back do you mean.
A.Neck and right down again, right where it was before.
Q.What did that have to do with you either not going back to work at Wakefield Hospital or not doing your studies.
A.I think I just gave up.
Q.It was -
A.It was so bad.
Q.The pain in your neck and back, at this time, after you stopped work following the finger injury, was it something you suffered every day.
A.Yes.
Q.Did the pain vary during the day, for example, was it any better or worse when you first woke up than when you went back to sleep at the end of the day.
A.I was a bit sore in the morning, then it sort of eased a little bit, but at the evening it became sore again.”
Concerning the neck and back pain sustained as a result of the collision, the plaintiff continued with physiotherapy and hydrotherapy, both before and after her resignation.
She was then asked (pp.46-47):-
“Q.Apart from that therapy then, any other treatment for your neck or back.
A.Just putting heat on it and putting creams on it and taking pain killers.
Q.What pain killers do you take for that pain.
A.A variety really, but mostly the last ones I’ve been taking Panadex.
Q.Do you need a prescription for those.
A.Yes.
Q.Who gives you that.
A.Dr Westlake has been doing that.
Q.Does that continue to the present time.
A.Yes.
Q.Apart from seeing Dr Westlake for your neck and back, have you continued to see him for pain in your hand and your thumb in particular.
A.Yes.
Q.How often do you visit the general practitioner for either of those problems.
A.About every two months, something like that.
Q.How does it sort of balance out in terms of whether you go there because of the neck/back problem or whether you go there for a hand problem or whether it’s for something else, or is it a number of things at the same time.
A.It could depend. Sometimes I go for a flu injection things like that, I just ask for different things.
Q.What do you seek help from Dr Westlake about more, your neck/back or your thumb/hand or is it about the same.
A.About the same. He just talks about all of it.”
She then went on to describe the assistance her mother gave her and the difficulties she (the plaintiff) has in performing normal household activities, e.g. vacuuming, cleaning, mopping, washing and hanging out clothes.
She was then asked (p.49):-
“Q.Over the last few years since you stopped work, how would you describe the pain. Has it been more or less constant or has it changed one way or the other.
A.No, it’s just been constant.”
Finally, she gave evidence about her general loss of enjoyment of particular recreational interests by virtue of pain experienced since the collision. She identified clogging (apparently like tap dancing) that she gave up because of the pain.
Generally, I accept the evidence of the plaintiff. Although it was shown at times that she was not an altogether accurate historian, I nonetheless accept she was endeavouring to be both accurate and truthful, and I accept the evidence quoted above.
Other injuries, mostly work-related
As mentioned, the plaintiff suffered a number of work-related injuries plus one at home and one in the city. Most were sustained before the collision. The last occurred between the collision and her resignation in April, 1997. Those injuries are referred to below. Where necessary, I will deal separately with the medical evidence concerning those injuries:-
1.In 1993, an injury to the thumb when winding up a bed followed by further knocks to the same thumb. She took a couple of weeks off work and then returned to light duties.
2.A further injury to the same thumb performing the same task. She was uncertain about taking time off. Dr Sach gave her cortisone injections into the base of the thumb. She returned to work on light duties and reduced hours, gradually building up.
3.This was an injury sustained at home when the plaintiff fell down some steps and badly twisted her ankle. She took up to a couple of days off work and then went back to work performing the same duties.
4.On this occasion the plaintiff struck and cut her head on the edge or corner of a records cupboard. There was some bleeding, pain at the site of the injury and soreness on the left-hand side of her neck. She took the balance of the day off but was otherwise unaffected by it.
5.In early August, 1994, the plaintiff aggravated her ankle by tripping on a gutter after taking curtains to a linen room. She did not take time off. She took care to protect her ankle.
6.For about a three month period, the plaintiff was a theatre assistant and then returned to ward cleaning. When cleaning a sink a heavy grate fell on her right thumb. She went home for the day but there were no lasting effects.
7.There was an injury to the left elbow when it struck a machine in a cramped linen room in the High Dependency Ward. She went to the doctor at the hospital itself and did not take time off work.
8.There was an injury to the right elbow when the plaintiff struck it on the handle of a heavy trolley. There was a bruise and she went home.
9.The second of the non-work injuries occurred when the plaintiff was walking about the city when she fell and injured her lower right arm in trying to break, or brace for, the fall. She said it was very sore and she saw the doctor at the clinic at the hospital. She was given cortisone to relieve the soreness. There were no lasting effects.
10.In 1996, when moving a heavy linen trolley, the plaintiff pulled a muscle in the middle of her back. She took time off for some days to rest her back. There were restrictions upon her return to work, but they do not seem to have been of longstanding.
11.There was one injury sustained after the collision. On the 8th March, 1997 (using the date referred to in Dr Guirguis’ report of 26th May, 1998), the plaintiff was turning on a tap that was difficult to move. She twisted the index finger of her right hand; it was so sore she could not bend it. Doing another job a short time later, she again injured that finger, such that there was more soreness. She saw Dr Westlake about the injury. She has not returned to work since that day. I refer again to her evidence at p.43 referred to above.
Medical evidence concerning injuries sustained in the collision
Under this heading it will be necessary to refer to various excerpts from the many reports.
I have referred above to the evidence of the plaintiff concerning the injuries sustained by her in the collision. I now turn to the medical evidence in that regard. Despite suggestions to the contrary (see the report of Dr Johnson dated 7th April, 2000 (D13), there is no evidence of any psychiatric condition which could cause the plaintiff to imagine pain when there was none.
The plaintiff spoke about various consultations with her general practitioner, Dr Westlake, relating to the collision. Essentially, the plaintiff complained of diffuse pain in the neck and shoulders with associated headache. There was a later complaint of pain in the mid lumbar and sacral back and over the lateral aspect of the right hip and knee.
The other various reports of Dr Westlake relating to consultations in 1997 and 1998 mostly showed some improvement in her condition but certainly not total. As well as the use of analgesia, the plaintiff underwent physiotherapy and hydrotherapy treatment. Indeed, Dr Westlake’s report of 26/7/98 refers to “apparently some deterioration in the neck pain” between 9/9/97 and 14/11/97.
In Dr Westlake’s report of 29/09/2000 he had this to say concerning her spinal injuries as at 9/6/2000:-
“The next and last occasion Ms Day presented regarding her spinal injuries was on 9/6/2000. She reported continuing back pain daily with activities such as lifting shopping and when walking. There was also intermittent night pain causing disturbance of her sleep. She was using Panamax or Capadex for analgesia several times each week for the pain. The neck pain was intermittent and occasional, again coming with driving, doing washing and when bending forward.
On examination there was tenderness over the lower lumbar and sacral vertebrae, right upper lumbar paravertebral muscles and sacroiliac joints. The range of movement of the lumbosacral spine had not changed, though pain was elicited at the limits of all movements. There were no signs of any nerve root irritation or dysfunction. The lower cervical spine was tender and the cervical spine extension was severely restricted. Other movements were not significantly reduced, though again eliciting pain at their limit.
Ms Day’s neck and back injuries appear chronic but stable and the long term disability is likely to persist. It was suggested that she continue with the same treatments.”
The plaintiff was also seen by a number of specialists. Dr Cohen’s report of March 24, 1997 deals with her injuries in the collision in this manner:-
“She has also had complaints in regards to her thoracic and lumbar spine. Again it is probable that they have suffered physical stress in the subject collision and have resulted in some degree of soft tissue injury. In regards to the lumbar spine there is restriction, particularly with extension, but otherwise a moderate range of movement was demonstrated.”
In Dr Cohen’s report of 7th October, 1997, he said this:-
“This lady does have a more limited working capability. In regards to her spinal injuries she should not be involved in any undue bending or twisting, nor lifting of weights of any consequence. In that regard she would be more suitable for light bench work where she is able to stand and sit as need be. However, the disabilities in regards to her hand will reduce her ability to undertake much work. She is right hand dominant and could only undertake light work which did not require any significant repetition, nor the lifting of weights or handling of objects requiring some strength and dexterity.”
Finally, in his report of 14 March, 1998, Dr Cohen at first noted that the motor vehicle injuries do result in impairment. He then had this to say in paragraph 3:-
“3.In regards to my assessment, firstly in regards to her cervical spine and with reference to Table 5.1, in regards to my previous examination the loss of her range of movements would have been about one quarter of the normal range of movements. However, during my most recent examination, as given in my report of the 27th February 1998, it is probable that the restriction in her range of movements are greater than before and certainly approach close to half the normal range of movements. She has, therefore, a 10% impairment of the whole person in regards to her cervical spine.
In regards to her thoraco-lumbar spine, with reference to Table 5.2, she has lost about half of the normal range of movements and has, consequently, a 20% impairment.”
The plaintiff was also seen by Dr Guirguis. In his report of 26 May, 1998 he said this under the heading of “ASSESSMENT AND OPINION”:-
“The clinically widespread pain and the presence of tender fibromyalgic points suggests the development of fibromyalgia as a secondary effect to the soft tissue trauma she has sustained to her neck and back following the motor vehicle accident in question. There are other fibromyalgic manifestations present, and particularly the sleep disturbance, a degree of depression, and daytime stiffness and fatigue. There is evident reduced fitness and flexibility, which will add further to the general picture of chronic pain.”
In Dr Guirguis’ report of 4 November, 1998, he confirmed his earlier findings and gave this as an answer to one of the specific questions:-
“I believe that the initial musculo-ligamentous injury to her spine has resulted in the development of a fibromyalgic condition, manifested by stiffness, fatigue, sleep disturbance, and widespread pain associated with Depression and multiple tender points affecting classical sides. This area needs to be addressed by psychological counselling and increasing her level of activity, with reassurance that this will not cause tissue damage.
In answering your specific questions:
1. ........
2. ........
3.There is partial incapacity as a result of her widespread pain and spinal stiffness, including difficulties in performing and sustaining manual work, or work involving adopting static posture of the spine, excessive bending, twisting, pushing or pulling, also climbing or walking for long distances.”
Finally, in his report of 24 August, 2001, Dr Guirguis answered one of the specific questions in this way:-
“(b)The injuries she sustained in the motor vehicle accident in question has caused partial incapacity for work, she is unable to return to unrestricted cleaning duties, and having been out of work for the last four years, it is unlikely that she will be able to tolerate any kind of sustained duties, except for the most sedentary.”
As against those opinions, Dr Johnson was called on behalf of the defendant. His main report is dated 7th April, 2000 (exhibit D13). His summary of findings is as follows:-
“My assessment of this lady is that she is one who is not unfamiliar with the medico-legal process. The impact of her accident on 7th January 1997 was small and whilst I believe she may have suffered some minor musculo-ligamentous strain to her cervical spine, I believe the injury was such that she returned to work after two weeks. I am of the opinion that the effects of the subject accident would have resolved probably over the course of the subsequent six months. I am of the opinion that there is no organic basis to her continuing complaints. I would conclude that she has made a complete recovery from the effects of any injuries sustained in the subject accident on 7th January, 1997. There is evidence of functional overlay and a suggestion of exaggeration of her symptoms.”
Dr Johnson was, in my view, quite rightly criticised for portion of that summary. The opening and concluding sentences suggest that the plaintiff may be exaggerating her symptoms for the purposes of these proceedings (pp.208-209). He repeated in evidence that, in his opinion, there was no organic disability with her neck, mid-back or lower back as a result of the accident. He based his opinion on the history given to him by the plaintiff and his examination of her. There were four main factors that led him to that conclusion. First, that it was a low impact collision; secondly, that she continued in her former occupation after two weeks; thirdly, there was a significant voluntary contribution to his findings of restricted mobility of the cervical spine; and, finally, her neck was symptom free for perhaps a month.

A consideration of the cross-examination on those points showed that they were open to other reasonable explanations in the context of the case. Further, Dr Johnson’s views were coloured by the opening and concluding sentences of his written assessment as referred to above. Yet further, he was not prepared to give any consideration to the opinion of her general practitioner who had been treating her for many years.
On the balance of probabilities, I favour the views of Drs Cohen and Guirguis that the plaintiff suffers on-going pathology to the neck in the form of musculo-ligamentous or soft tissue injury resulting from the subject collision. The extent of the disability is referred to in the reports quoted above. I accept that the injuries sustained in this collision will last for an indefinite period. To the extent it is to the contrary, I reject the evidence of Dr Johnson.
Medical evidence concerning injuries apart from those sustained in the collision
The plaintiff was referred to Dr J Tomlinson and Dr R Sach concerning her right wrist, right thumb and right index finger. Dr Sach provided reports of 23rd August, 1993, 31st March, 1994, 11th July, 1996 and 7th July, 1998 (all exhibit D22). In his report of 11th July, 1996 he said as follows:-
“1.She would have difficulty with all her normal duties as a cleaner. Some heavier activities which place undue stress upon the right thumb would be beyond her.
2.She is fit for lighter cleaning duties.”
In Dr Sach’s report of 7th July, 1998, the following observations and conclusions are included:-
“It is my impression that her symptoms were perhaps a little worse than when previously seen. However this is consistent with the slow progression of her osteo-arthritic changes. It is likely this will continue.
.........
5.She is able to undertake lighter working tasks. She would have difficulty still with heavier work duties.”
Dr Tomlinson also provided a number of reports (exhibit P3). Dr Tomlinson summarised the position concerning the right thumb as follows:-
“With regards this injury, Mrs Day is currently suffering from degenerative arthritis of the right first carpometacarpal joint. This injury is consistent with being caused by events described by Mrs Day. This injury significantly incapacitates Mrs Day. She finds it difficult to perform any activities requiring any grip strength or repetitive use with her right hand. Mrs Day would be suitable for activities which avoided these manoeuvres.”
Concerning the right index finger, this was said:-
“Again, history of injury and type of injury sustained is documented on this report. This injury is consistent with the cause stated by Mrs Day. Mrs Day reports some difficulty with grip strength and difficulty with gripping with her hand due to pain and as such would need to avoid activities documented above for the thumb injury.”
Dr Guirguis also assessed the right hand. One of his conclusions was as follows (exhibit P3 at p.32):-
“She is currently partially incapacitated in particular activities involving excessive use of cleaning implements, lifting, turning and twisting, pushing and pulling, etc.”
This survey of that evidence suggests, and I so find, that those problems were not such as to preclude later work as a medical receptionist. Those problems may have meant that some tasks of a medical receptionist could not have been undertaken for an extended period (for example, typing), but that type of work was still able to be performed by her.
The other relevant injury for these purposes was that occasioned by hitting her head on the edge or corner of a records cupboard (see para.4 of “Other injuries, mostly work-related” referred to above). However, the medical evidence in that regard, particularly that of Dr Westlake and Drs Cohen and Guirguis, does not show there to have been any residual injury arising from that incident.
Resignation from Wakefield Hospital
I referred to this topic earlier. I make it clear that I find, on the balance of probabilities, that the plaintiff continued to suffer from the neck injury resulting from the subject collision as at the time of her resignation from the Wakefield Hospital. Further, I also find, on the balance of probabilities, that she resigned from the Wakefield Hospital partly as the result of that on-going injury. Although there were earlier injuries that gave rise to difficulties in her work, they were not such as to preclude her from working at the hospital. As I have also found, earlier injuries did not preclude her from working as a medical receptionist. However, as a result of the subject collision, she is no longer able to do that type of work.
Those findings bring me to a consideration of Medlin v The State Government Insurance Commission (supra).
As Medlin’s case makes clear, the plaintiff receives an award of damages for loss of earning capacity and that award is measured by reference to the extent to which loss of earning capacity has been productive of economic loss (see also Cotter & Ors v Hrelescu South Australian Full Court [2001] SASC 408).
A need to give consideration to Medlin’s case arises from the fact that the plaintiff, through her then solicitor, had commenced negotiations in about November, 1996 to “generally settle up” all of her worker’s compensation claims and resign. An agreement to that end was prepared and probably signed by her at about that time, but she then had second thoughts and sought the advice of another solicitor. In the result, as at the time of the subject collision, there was no final agreement and she remained in employment at the hospital.
The plaintiff made it clear that her injuries arising from the collision were a contributing factor to her decision to resign (pp.71-72). However, she admitted in cross-examination that the process of seeking agreement whereby she would resign in exchange for a settlement of all her worker’s compensation claims had nothing to do with the subject collision (pp.75-77).
Although it may seem that there is some discrepancy on this topic, in my view they are reconcilable. Obviously, there were discussions about resignation and negotiating a lump sum settlement before the collision. But, on the evidence, that was not a concluded agreement and certainly there was no evidence about the original amount as compared with the final amount.
However, in any event, even if she had resigned before the collision and the injuries from the collision prevented her from exercising her residual earning capacity, she would still be entitled to an award.
For these purposes, I refer to the two limbs of Medlin’s case.
The first limb is sufficiently encapsulated for the purposes of this case in the following quotation (p.11):-
“As has also been mentioned, the plaintiff’s evidence supported a finding that the effects of the accident were that his routine administrative and teaching work used up all his energy with the consequence that he was incapable of doing the research and creative work which he desired to carry out and which, one would think, would be and should be expected of the holder of the Chair of Philosophy in a major university. In these circumstances, the relevant question was not whether the plaintiff ‘should’ have continued in his University post or whether his decision to retire was not ‘reasonable’ but whether, in the context of what was reasonable between the plaintiff and the defendant in determining the defendant’s liability in damages, the premature termination of the plaintiff’s employment was the product of the plaintiff’s loss of earning capacity notwithstanding that it was brought about by his own decision to accept voluntary retirement.”
The second limb is contained in this quotation (pp.11-12):-
“A plaintiff is not precluded from recovering damages for loss of earning capacity merely by reason of the fact that he or she voluntarily left employment which was unsuitable or in which he or she was unhappy. The continued availability of such employment will, of course, be relevant to the question of the existence and extent of any loss of earning capacity and a finding that a plaintiff’s termination of employment was not the product of an accident-caused loss of earning capacity will necessarily preclude the calculation of damages on the basis that it was. Such a finding does not, however, mean that damages cannot be recovered for loss of earning capacity in relation to the period subsequent to the termination of that employment if there is in fact an accident-caused loss of earning capacity which has been or will be productive of financial loss during that subsequent period.”
On the facts as I have found them, the plaintiff comes within the first of these limbs. Even if that were not the case, she would nonetheless come within the second. She is entitled to an award of damages for past economic loss and future loss of earning capacity.
The plaintiff’s plans to work as a medical receptionist
I accept the plaintiff’s evidence and find as follows.
As I have already touched upon, the plaintiff’s pre-collision injuries were not such as to prevent her from performing work as a medical receptionist. It must be acknowledged, however, that the tasks of a medical receptionist, or the time performing some tasks, would need to be modified or rotated.
The plaintiff showed an interest in occupational, health and safety issues some years prior to the collision. She undertook a certificate course in Occupational Health and Safety commencing in 1994 and continuing through until mid-1996 at the Douglas Mawson TAFE. She initially undertook that course because she was appointed an occupational, health and safety representative at work. She kept on with that course even after she was such a representative. She did that because it was of interest to her and she thought she may be able to do that type of work in the future.
In the latter part of 1996, the plaintiff switched her focus to another TAFE course by the name “Certificate II in Office/Clerical Procedures” because she decided she may wish to become a medical receptionist. Her academic results for that course, exhibit P5, reveal it is the type of course that would equip a person to be able to work as a medical receptionist, although she did not complete the typing/computing side of it.
At the end of 1996, the plaintiff decided she wanted to continue with the course, particularly computing, because the establishment and maintenance of medical records involved working with computers. She commenced the course in early 1997 but did not complete it. She was hoping to find work as a medical receptionist at a hospital or doctor’s surgery. She said that, as soon as she obtained the requisite certificates, she planned to try to get another job. She would not have left the hospital until she had secured another position.
Although this aspect of the plaintiff’s claim is not referred to in the pleadings, I accept her evidence referred to above. The courses undertaken at TAFE, particularly that relating to equipping her for work as a medical receptionist, provide abundant support for her plans.
Nature of work as a medical receptionist
There was very little precise evidence on this topic. Some initial evidence I received on this topic de bene esse was later withdrawn.
The evidence to which I am able to have regard drew a general distinction between the types of medical practices. In smaller practices there is a lot of variety of tasks because there may be a small number of receptionists. In larger practices, in part due to specialisation of functions, variety is lost or reduced because one or a number of people perform one function and someone else another. It is difficult in this case to be precise about whether the plaintiff could do a particular job because no specific job with specific tasks is available for comment.
However, the injury to her hand and thumb (not being the result of the subject collision) would not have prevented her performing the general tasks of a medical receptionist. There may have been a need to rotate certain tasks. Before the subject collision, there was a realistic possibility of the plaintiff exercising her capacity as a receptionist. I find that capacity was lost, relying upon Dr Guirgis, as a result of this collision.
Assessment
Non economic loss - pain and suffering
As indicated above, this action is subject to the constraints imposed by the provisions of s.35A of the Wrongs Act, 1936 (SA) (as amended). The legislative requirement is that her “....ability to lead a normal life was significantly impaired by the injury for a period of at least seven days”; (see s.35A(1)(a)(i)). The sum prescribed by the said Act in relation to this claim is $1,550.00 (see s.35A(1)(b)(i), (ii) and (6)). Having regard to the severity of the injuries and any significant impairment to the leading of a normal life, a numerical value of between 0-60 is to be assessed and applied to the prescribed sum.
The plaintiff suffers from neck pain, headache and some back pain. It is probable she will have that pain for the rest of her days. She was some weeks off work. There was some early improvement but then the pain in those areas returned to about how it was originally. In the years since she stopped work, the pain has been constant. There was and is sleep disturbance.
Her family, social and normal day-to-day activities have been affected to a substantial degree. I refer to the various reports quoted above. There is a “...general picture of chronic pain” (see again Dr Guirguis’ report of 26 May, 1998).
In my view, the appropriate numerical value is 7. I have already made it clear that I am not prepared to act on the evidence of Dr Johnson. I have also made a slight reduction by virtue of her worker’s compensation payment for the pain and suffering associated with the hand injury. She is not to be double compensated.
Applying the numerical value of 7 to the prescribed sum, the allowance for past and future non economic loss or pain and suffering becomes $10,850.00. There is no interest to be added to this award (see s.35A(1)(k)).
Past economic loss - past loss of earnings
The plaintiff is entitled to recover any net loss of earnings caused by the collision. In calculating this loss, it is necessary to establish the dollar value of her pre-accident earning capacity and then calculate from it the resultant loss of income to trial. It is necessary to make some findings as a precursor to that calculation:-
·the plaintiff was born on the 12th October, 1943;
·at the time of the subject collision on the 7th January, 1997, she was aged over 53 years;
·at the time of trial, the plaintiff was 58 years;
·the plaintiff resigned her employment with the Wakefield Hospital on the 20th March, 1997 (71); she was paid until that date;
·at the time of the collision and up to the time she left the hospital, the plaintiff worked 62 hours per fortnight earning approximately $335.00 net per week (see 1997 Group Certificate - exhibit P20 - showing nine months earnings of $12,731.00 net);
·at most, the period of past economic loss would be from March, 1997 until November, 2001, a period of about four years and eight months; however, from that period would have to be deducted a period of time to allow for retraining as a medical receptionist, a period which I have allowed as twelve months.
From this point I need to be guided by the principles referred to in Malec v J.C. Hutton Pty Ltd [1990] 169 CLR 638. In my view, the plaintiff was capable of performing the duties of a medical receptionist prior to the collision, but there would have to be some modification of the duties to take account of a number of her earlier injuries.
Some contingencies would then come into play. It may be that no such specific position becomes available or one that suited her; if it did, applicants with little or no injuries would be better placed to secure it. If the plaintiff secured it, there is the risk she could not, in fact, cope with the demands of the position. Because of her limitations she might further injure herself and be forced to resign. General economic conditions would also be relevant. To take proper account of these contingencies and uncertainties, the award for past economic loss must be heavily discounted.
In addition to that, there must be a further reduction in accord with the Manser v Spry [1994] 181 CLR 428 principles to avoid double compensating. I accept that, to some extent, double compensating is avoided because I have allowed a retraining period of twelve months when there are no lost earnings. To allow for these contingencies, I have reduced the award by 50 per cent.
In determining the amount, I have had regard to Hillier v Hewitt [2001] SASC 225, per Olsson J at para.42, per Gray J at paras.75-83. As already mentioned, I am considering a period of about three years eight months. I have used as a general guide the Clerks’ (South Australia) Award (exhibit P17). I allow an amount of $26,000.00 under this heading.
Interest
The plaintiff is entitled to interest on this past component of economic loss (see s.39 of the District Court Act, 1991). The period of the calculation should be from the time when the liability to compensate commenced (here 20/3/97), discounting only for the slow accumulation of the loss over the period of about three years and eight months. The appropriate rate of interest is 6.4 per cent being the approximate average of the commercial rates prevailing since 1st January, 1998 (see Third Schedule, Supreme Court Rules). Accordingly, the calculation (i.e. $28,000.00 multiplied by 6.4 per cent per annum multiplied by three years and eight months) results in all to an allowance for interest of $6,100.00.
Future economic loss - future loss of earnings
The plaintiff is to be compensated for the extent to which her injuries resulting from the collision have caused a diminution of her earning capacity in the future.
On the findings I have made, there has been a diminution of the plaintiff’s capacity to earn in the future and will cause her resulting loss. Upon the evidence, one would not expect her injuries to improve in any marked way. In fact, they would probably deteriorate.
Although there is no direct evidence on the point, I am prepared to proceed upon the basis that the plaintiff would have retired aged 65 years. Submissions on behalf of the plaintiff proceeded on that basis. Her future loss of earnings is to be calculated from trial to aged 65 years, that is, a period of about seven years.
The same general contingencies as before need to be taken into consideration. More so with the greater risk of injury as she becomes older. I discount the award by about 60 per cent. I allow an amount of $48,000.00 under this heading.
Interest
This heading of loss attracts no interest; (see Thompson v Faraonio (1979) 24 ALR 1 at 6).
Medical expenses
During the course of the trial, I was provided with a schedule of past medical expenses. There is very little evidence expressly on these matters, although there was general evidence about the need for pain relief etc. The schedule is not specific as to which injury the expenses relate. I can only adopt a very broad approach to these expenses and allow 50 per cent of them, namely, $200.00
I also make an allowance to compensate the plaintiff for the likely cost of future medical treatment in the amount of $500.00.
Interest on past medical expenses
The plaintiff is entitled to interest on such payments (see s.39 of the District Court Act, 1991). The calculation ($200.00 multiplied by 7.0 per cent per annum multiplied by four years eight months) results in an allowance of interest under this heading of loss of $65.00.
Gratuitous housekeeping services
The plaintiff is entitled to recover in her damages an allowance for gratuitous housekeeping services previously provided by her to the family: (Shannan v Evans (1977) 138 CLR 563 per Murphy J at 598; Hodges v Frost (1984) 53 ALR 373).

This heading of loss, insofar as it relates to gratuitous services, is circumscribed by s.35A(1)(g), (h) and (2).
I find that the plaintiff’s mother provided some household help and that saved the cost of engaging another person to provide those services.
Mrs Shorter, the plaintiff’s mother, gave evidence that, prior to the injuries relating from the collision, she would stay for the weekend at the plaintiff’s house. Initially, that was to help with ironing, vacuuming, dishes and the garden because of the hand and thumb injury (149). After the plaintiff stopped working at the Wakefield Hospital, she continued to assist her daughter but did more work, doing work her daughter had been able to do prior to the injuries resulting from the collision (150-2).
The amount of assistance given by Mrs Shorter was quite considerable and increased after the collision. It continued over a number of years. I am prepared to allow only a modest amount under this heading and award $800.00.
I calculate interest on this amount at $260.00 using a rate of 7.0 per cent per annum
Quantum
Non economic loss (prescribed
sum of $1,550 numerical value 7)  $10,850.00
Economic loss - loss of earnings
         Past   26,000.00
         Interest   6,100.00
         Future   48,000.00
Economic loss - medical expenses
         Past and future  700.00
         Interest on past expenses  65.00
Housekeeping services
         Past  800.00
         Interest            260.00
$92,775.00
I will hear the parties on the question of costs.

[2002] SADC 66

27 May 2002