De Mamiel v SALKILO - [2001] WADC 182

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: DE MAMIEL -v- SALKILO [2001] WADC 182

CORAM: KENNEDY DCJ

HEARD: 28-30 MAY 2001

DELIVERED : 8 AUGUST 2001

FILE NO/S: CIV 1956 of 1999

BETWEEN: MARGARET DE MAMIEL
Plaintiff
AND
JOHN MONTGOMERY SALKILO
Defendant

Catchwords:

Negligence - Assessment of damages - Woman 52 at accident, 57 now - Fractured vertebrae - Loss of chance to work

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943

Result:

Damages $69,026.65

Representation:

Counsel:

Plaintiff: Mr T B Lyons
Defendant: Mr J R Brooksby

Solicitors:

Plaintiff: Gibson Lyons
Defendant: Greenland Brooksby

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

Nil

Case(s) also cited:

Nil

KENNEDY DCJ: The plaintiff was injured in a motor vehicle accident on 8 October 1996. The plaintiff, one of her sons and her daughter were passengers in a taxi which left the road, rolled and collided with a tree. Liability for the accident has been admitted and it falls to me to determine the plaintiff's quantum of damage.
The plaintiff was born on 3 October 1944 and is now 57 years old. Her family, work and psychological history is of significance in relation to this claim.
She left school after obtaining her junior certificate and then worked basically in retail work, for example, at a jeweller and at other department stores, then at a theatre as a usherette and then in the box office. She married in 1965, she and her husband shifted to New South Wales and again she obtained employment for a short period of time but then she and her husband had four children and she did not work again until 1982 and, during that time, was engaged in being a full‑time mother and carer. She returned to work in 1982 and has a really solid work history until 24 November 1992. In the period of about 16 months prior to that, she had worked as the manager for the Sheridan franchise in "Aherns". There was an annual salary paid monthly but apart from the work of actually selling the Sheridan products, there was a great deal of paper work which required extra attention. By 24 November 1992, she could no longer continue working because of family stress.
The stress appears to have commenced back in the late 1980's when her husband's business went bankrupt and they lost the family home. Her husband is said to be an alcoholic and the marriage broke down. The children who by then were adults seem to have looked to their mother for support. Two of her sons were drug addicts who were also in difficulties with the police and the home in which she lived was raided by the police on a number of occasions. Furthermore, the daughter was an undiagnosed schizophrenic. She is now diagnosed. The daughter made frequent attempts at suicide and at self‑mutilation. The plaintiff was called upon from work on a number of occasions to attend to the daughter's needs. Her State Manager was unsympathetic. On one occasion, the plaintiff was called from work to attend a hospital to which her daughter had been admitted as a result of an attempted suicide. She spent the night with her daughter and went to work the following morning in the same clothes. She was unable to concentrate on work and found it impossible to do the extra tasks required of her position. Furthermore, she had no family support in Western Australia. On 24 November 1992, she gave up work due to stress and depression.
Eventually, in an endeavour to solve the family problems, it was determined that the daughter would travel to New South Wales where her father was and where there was a large family network of support and the daughter was promised work. It is quite clear from listening to the plaintiff that she had put all of her hopes and dreams into this being the solution to her problems. The accident with which we are concerned occurred in the taxi on the way to the airport. The end result was that both the plaintiff and the daughter were admitted to hospital, the husband flew to Western Australia and cared for the two of them during a period of about 10 days. Unfortunately, while he was here, he took the daughter's ticket which had been paid for by her mother obtained a refund on it and kept the money. The plan to send the daughter to New South Wales came to nothing.
After spending two days in hospital, the plaintiff attended her general practitioner, Dr Naylor, who prescribed pain killers and anti‑inflammatories and, subsequently, x‑rays of her back were done and it was then that it was discovered she had fractures in her spine.
She attended the pain clinic and had six cortisone injections from Dr Berrigan and some two months later, had another four and these worked for a period of time but it was not permanent. She was also given a Tens machine but she could not manage this. She saw a Dr Kohn and had laser acupuncture which also gave temporary relief and attended a physiotherapist for about six to eight weeks.
In March 1999, she attended on Mr O'Connor, an orthopaedic surgeon, who had more x‑rays done and he prescribed a jewett brace and referred her to have an uplift in her shoe. She was advised by Dr O'Connor to wear the jewett brace for the rest of her life. Initially, she wore it 24 hours a day for about six weeks but she discovered that it dug into her flesh and she could not sleep. She then wore it during the day only. Then, she was referred to Mr Williams, another orthopaedic specialist, by the insurance company and he advised her not to wear it all the time and also suggested hydrotherapy. She took his advice but discovered that the pain returned. She returned to Mr O'Connor who confirmed his previous advice.
She now wears the brace if she is sitting or standing for any long period of time because otherwise the pain is impossible to cope with. The jewett brace is a metal and plastic contraption which no doubt is uncomfortable from time to time but is designed to give support to the spine.
She has remained on a disability pension since 1992 but was planning to return to work when her daughter went to New South Wales in 1996. She did concede that even when she was applying for jobs before the accident, it was in the back of her mind that her daughter might return to Perth and she was not sure what she would do in those circumstances. She does do voluntary work with the St Vincent De Paul Society shop about twice a month for several hours. It is easy to work there because she can sit down if she wants to whereas in most retail situations, an assistant cannot sit down and if the pain gets really bad, she can go home early if she wants to. She has noticed that even if she does not go home early, by the end of the day, she does have to lay down and take analgesics.
Pain depends on her activity level, however, she does not remain inactive, she does her own housework, she takes her dogs for a walk, sometimes twice a day, because the doctors told her to keep active. She no longer has a car. Recently, she was driven to York not knowing that that was where she was going, she went without the brace and was in bed for three days after that with pain. She finds it difficult to find a comfortable position in bed to sleep and so she takes Muralex at night to relax her muscles and help with sleep and also uses hot packs. From time to time, she takes Brufen, an anti‑inflammatory and Panamax and Panadeine Forte.
Her back is sore most of the time and she is always aware of her back but the level of pain is activity related. She has discovered that she cannot do more than 10 to 15 minutes in the garden and even carrying a heavy pot from the stove to the sink causes pain but she has learned how to minimise the pain by avoiding things that cause problems, however, cold weather does cause her problems.
Prior to the accident, she was teaching a craft group and also attending a spiritual group in her parish, but she had to stop both of these because they each involve sitting for long periods of time and she can no longer do that.
Prior to the accident, she believed that she would be able to return to work about 20 hours a week over four days to begin with and she was pretty confident that she would get back to "Aherns" store. In the meantime, she had applied for retail jobs in a suburb close to her home where there is a large shopping centre.
She has continued to look for work but would need much lighter duties now and certainly could not do the 20 hours that she was planning prior to the accident. Really, she believes that the most she could manage would be three or four hours a few times a week but she would try 20 hours.
In evidence, the following exchange between the plaintiff and defence counsel took place:
"In the last two or three jobs you had, you were engaged in selling?---Exactly.
Light work?---Yes, which I could do part‑time again and I'd look forward to doing.
You could do the 20 hours a week that you were always planning to do, couldn't you?---I couldn't do 20 hours a week now, no.
You see, Mr Anastas feels you could work full‑time and Mr O'Connor has suggested you could work full‑time, as I read it, in any job not involving heavy lifting or bending?---Well, that would most certainly be true if I didn't have my daughter at home requiring - - -
So that's the only thing that stops you working 20 hours a week, is it?---Well, if you put it in that context, 20 hours a week, yes, but I mean, I most certainly do want to go back to work. I do not enjoy sitting at home being abused.
Your daughter doesn't live with you all the time, does she?---No. It's very hard to know when she's going to be there. She's currently there at the moment.
But she spent four months away earlier in the year, didn't she, early last year?---Yes, but at the moment, she is at home. When I say she spent four months away, she would be away for a week and then come home for a few days, and she's just all over the place. It's her condition."
I then asked some questions to clarify this evidence:
"I just don't quite understand the last answers that you gave to Mr Brooksby about - the doctors ... by saying that ... physically, you could work 20 hours a week?---Well, I guess I could if - I mean, I'd have to depend on pain killers to get me through, yes. I mean, I'm finding it very difficult sitting here today.
No one would expect you to depend on ... pain killers to work 20 hours a week?---That's the only way I'd be - I could work four hours - - -
Okay. Let's not operate on the basis that you have to dose up on pain killers?---All right?
All right. So no one operates on the basis that you have to dose up on pain killers to work. So assuming you don't have to dose up on pain killers, how many hours a week do you think you could work or how many hours a day ... and I would really - - -
Everyday?---I don't know if I could do it everyday. I think I'd probably need a day to recover from the day before.
So three days a week?---Yes.
...
All right. So we're saying three days per week. How many hours?---Well, I would give it a go at going back 20 hours a week. I'd be more than prepared to try.
And how long do you work at St Vincent De Paul at the moment?---It is generally three or four hours. If I'm in a lot of pain, well, I'll come home early but it was generally about one o'clock till quarter to four.
What's the effect of that on you physically?---It's quite okay, I mean, I stand up, I sit down, if I'm finding it difficult, I can go and sit down. In a lot of retail work I've had in the past, there are no chairs provided where you can actually sit down to actually give your body a rest, but in that capacity, I can please myself if I want to go and sit down or I needed to have a cup of tea or whatever, but it's very heartening because you get to meet a lot of nice people." (T81‑83)
At present, her daughter, who is now 26, lives at home. She is tearful and depressed and has no motivation. She is coming off the Methadone program and is on Valium and Serapax and they live together in a confined space but the plaintiff tries to stay out of the daughter's way so that she does not antagonise her. The daughter has stayed with her constantly since the accident although she does go off from time to time, but the longest period she spent away from her mother is four weeks.
After the accident, the plaintiff obtained a Homeswest transfer to another home and got a restraining order to keep her son away.
When questioned about suffering depression, problems with her kidneys and low blood pressure, she admitted these but pointed out that they had existed prior to 1992 and she worked then. As to her depression since 1992 it has been documented and to which documents I will refer shortly, she now attributes much of that to the menopause for which she now takes hormone replacement therapy which she says has solved many of her problems.
She gave up work in 1992 due to intolerable family stresses to which I have referred. For some years, she obtained sickness allowance and is now on a disability pension.
The complaint of the defence is that they have obtained many of the sickness allowance review forms from the Commonwealth which refer consistently to the plaintiff having major depression from 1992 to 1999 which means that this medical condition which was such that it prevented her from going to work existed before the motor vehicle accident and continues. The defence further complained that when they made this point, the plaintiff was seen by two psychiatrists, Dr Burvill and Dr Mustac and she presented to them differently from the way she did to social security, so that neither of them declared her to be depressed. If this pre‑existing depression prevents her from working, then there is no economic loss as a result of any physical disability.
If I accept the opinion of both of the psychiatrists, she is not depressed now, she says herself she is not depressed now and, therefore, that does not prevent her from returning to work. She is prevented from returning to work by her major social problems caused by her daughter and also now by her physical injuries.
In turn, the defence say that in that event, since what she has been telling the Commonwealth Department of Social Security is different from what she told Dr Burvill and Dr Mustac, her credibility must be affected.
In dealing with these issues, I have been provided with documented history in relation to the plaintiff which has been tendered by consent. There is a report of 9 May 1993 of her then general practitioner, Dr Szengil. At that time, Dr Szengil referred the plaintiff to a Dr Marshall, a psychiatrist, and in the process, recorded the plaintiff's history. Dr Szengil said that the plaintiff had first attended upon her on 31 December 1992 complaining of depression and of her various social problems including that not only were all of her children addicted and her husband, but she came from a family where her father was addicted to alcohol. Furthermore, she had given up work because she could no longer continue as a result of her problems and was on unemployment benefit and using her savings. Dr Szengil recorded that she had put the plaintiff on anti‑depressants and referred her to the Osborne Park clinic for social work intervention and psychiatric treatment and counselling. There was apparently a dispute with the psychiatrist or social worker at the Osborne Park clinic who is alleged to have said to the plaintiff, "Do you like being a doormat for everyone?", and advised her that her sickness benefits would not be certified after June 1993.
Dr Szengil expressed irritation and frustration with the plaintiff, described "her refusal to organise her life better", and then said, "My attitude toward her now is quite ambivalent. And I lean more towards that of her being a manipulative psychopath".
Exhibits B1 to B8 are then the sickness allowance forms from the Department of the Commonwealth and it is necessary that there be a certificate from a doctor. Further, on two separate occasions, she appears to have also been examined by a doctor in the department.
From 1993 to 1999, medical practitioners, at least three of whom were psychiatrists, have been prepared to certify that she is disabled from working because of major depression. Furthermore, the plaintiff has filled in these forms describing major depression and that includes a form completed after she was seen by Professor Burvill.
Before I go further, it is necessary for me, I think in fairness to the plaintiff, to record one thing. Dr Mustac filled in one of these forms (Exhibit B4) and he described the plaintiff as having "schizophrenia form psychosis" and, later in the same document, described her as having "schizophrenia". Later, Dr Mustac also said that she had spent time in Graylands. The plaintiff was unaware that this was in the forms that had been put in for her by Dr Mustac. By the time she came to be cross‑examined, the defence conceded she had never been in Graylands but maintained that she had suffered a schizophrenia form psychosis or schizophrenia and she was told that Dr Mustac would support that. At the time, I found it surprising because from a lay person's point of view, there was nothing about this plaintiff that would even remotely suggest any sort of psychosis. When Dr Mustac eventually gave evidence, he conceded that she had never suffered a schizophrenia form disorder, nor had she ever suffered schizophrenia. His only explanation was that the plaintiff had been referred to his former wife, ie. Dr Marshall, who was also treating her daughter. He had confused Dr Marshall's notes about the daughter with the notes about the plaintiff. Nevertheless, he says that she was taking "Neulactil" and he maintains that. He could not recall actually writing a prescription for that, but he maintained it. The plaintiff denies it and, in the circumstances, I accept what the plaintiff has to say about that matter.
In this case, this is not a significant issue but I have recorded it for two reasons. The first is that it is simply not accurate to say this about the plaintiff and she is entitled to have that officially recorded somewhere, and the second is that it appears to me from these forms that if some medicos or psychiatrists honestly and reasonably believe that there is no fraud on the revenue by the particular person obtaining sickness allowance or disability pension, then they are prepared to make sure that the person fits into the boxes that the department requires.
There is no doubt and it is well documented that the plaintiff has, and has had in the past, major social problems. The fact that she is unable or unwilling to rid herself of those problems does not mean that they do not exist. The fact that she causes people eventually to become impatient with her because she is not dealing with the problems in the way in which they would deal with the problem or, indeed, is not dealing with them adequately at all, does not mean that they do not exist. It may mean any number of things from a mother's natural inability to give up on her children to the daughter of an alcoholic being trained from a young age to accommodate addictive behaviour.
On two occasions, she has been examined by a Dr Phua who is a medical officer with the Australian Government Health Services. In Exhibit B3, he says of her:
"(The plaintiff) is a 49 year old lady who is severely depressed despite the treatment with Prozac. She feels absolutely hopeless and is socially very isolated. She has a lot of social problems which she cannot solve." (15/11/93)
Again, in a subsequent review, Dr Phua said:
"She has a lot of social problems which seem to defy solution ... I find her unfit to work. Ironically, if she could get out into a part‑time job, it might lift her spirits. However, at present, she seems to be trapped by her social problems." (15/8/94)
It seems fairly obvious from that last comment that the Commonwealth Department is under no illusion as to why the plaintiff is receiving the benefits that she is receiving.

Medical evidence - Psychological

The plaintiff was referred to Dr Peter Burvill by her solicitors and he first reported on 25 May 1998. It will be noted that this is a report done before the last document from social security which refers to her having a major depression.
In his report of 25 May 1998, he recounted the history she had given him which included that she had had no depression or other psychiatric symptoms over a period of 12 months and then went on to say:
"The only indication I had of her ever having a psychiatric illness was on two occasions:
(i)For a short spell following the suicide of her daughter's fiancee, in rather disturbing circumstances, and
(ii)During the first 12 months following the motor vehicle accident, partly in relation to the effects of the motor vehicle accident upon her life and independence, and partly in relation to her upset at not being able to move from the house where they were living at the time of the suicide.
The first of these episodes was quite mild and transient. The nature of the second depressive episode, although it lasted 12 months, was not of sufficient severity to warrant a diagnosis of a major depressive illness, but rather of an adjustment disorder with depression. There is no indication of any psychiatric illness over the past eight to nine months. I do not believe that there are any reasonable grounds to suggest that her depressive spells or ongoing problems with her children had a marked adverse effect upon her recovery from her physical injuries from the motor vehicle accident. I did not find any indication that she was exaggerating her symptoms. Ms De Mamiel has a rather flamboyant manner of expression, but this is a personality characteristic and should not be confused with the exaggeration of symptoms."
It is obvious from that report that the plaintiff minimised her previous problems and she told Dr Burvill that the insurance company were maintaining that she had mental problems which were inhibiting her recovery from the accident and she was plainly anxious to dispel that. At the same time, Dr Burvill conceded that medical reports had been sent to him by the plaintiff's solicitors which made no secret of the fact that she was on a disability pension and had suffered from depression. Dr Burvill sought to excuse the plaintiff on the basis that many people do not regard depression as a "psychiatric illness".
Subsequent to obtaining the documents from social security, Dr Burvill saw the plaintiff again. At that time, there was an allegation in those documents that the plaintiff had suffered from schizophrenia and spent a period of time in Graylands. She denied this to Dr Burvill. She denied auditory hallucinations at any stage but conceded visual hallucinations and told Dr Burvill that she was under the impression that her son, on one occasion, had put marijuana into the spaghetti sauce and on another occasion, she had picked up and handled a sheet of LSD.
Dr Burvill said that there was nothing in any of this that would justify a diagnosis of schizophrenia and there was nothing about her presentation that would cause him to diagnose that. Incidentally, when Dr Naylor (her general practitioner) was being cross‑examined, he said that he had never once known her to suffer from any disordered thoughts.
Dr Burvill also said that he did not illicit any personality traits in his contact with the plaintiff that would cause him to agree with Dr Mustac's diagnosis of "masochistic traits" and he noted that Dr Mustac had provided no basis in his report for that diagnosis. Finally, in conclusion, he said:
"Apart from the expansion regarding the amount of psychiatric disturbance Ms De Mamiel has experienced in the past prior to the motor vehicle accident, my conclusion under the two paragraphs headed "Summary" on page 4 (of my original report) remain. It is clear that Ms De Mamiel had intense environmental stress in the past which has caused a degree of emotional disturbance at times. She still experiences intense pressure from her daughter, and stress and disappointment regarding the continued activities of her two sons, but has not had any major psychiatric disturbance over the past three years. There has been intermittent brief spells of mood swings in reaction to the stresses, particularly related to her daughter. I did not find any indication that she was malingering or exaggerating her symptoms, which was apparently said at one stage by some of the medical specialist who had seen her on behalf of the insurance company. Likewise, I do not believe that there are reasonable grounds to suggest that her ongoing problems with her children have had a marked adverse effect upon her recovery from her physical injuries from the motor vehicle accident."
For completeness, I should also record that Dr Burvill found no sign of the plaintiff being a "psychopath" and thought this was simply an expression of frustration by Dr Szengil.
The plaintiff was referred by the insurance company to Dr Mustac who first reported on 25 August 2000. He does say that he saw the plaintiff for treatment in March 1994 but he does not refer to the schizophrenia and his conclusions in August 2000 are:
"I do not think that the accident has had any psychiatric consequences. Her psychiatric presentation is now, if anything, better than it was in 1994. She seems to have at least been able to insist that her male children stay out of the house.
She certainly did come from a dysfunctional family background and as you are aware, her father was alcohol dependent as well as her husband.
As you can gather from the family and social circumstances of Mrs De Mamiel, I would regard her personal life difficulties as much more of a stressor than her motor vehicle accident. I understand, however, that this motor vehicle accident is now the subject of legal disputation. From a psychiatric perspective, I do not think that there is any evidence for any psychiatric disability directly or indirectly attributable to the motor vehicle accident."
On 25 October 2000, Dr Mustac reported again. This was after the defence had the social security documents and he had re‑read his notes and the notes of his former wife in relation to the plaintiff and he said:
"In summary therefore, it appears that [the plaintiff] had a brief period when she was psychotic but that this remitted either spontaneously or as a result of treatment. Since that time, she has remained well."
It is also the case that in that report, he said that she had been in Graylands.
In evidence, he conceded that she had never been in Graylands and while he says that his notes indicate auditory hallucinations and that his former wife had put her on Neulactil and that he had simply continued it because he had been told that it was working, there was nothing else to suggest that she had ever had any form of schizophrenia or schizophrenia form disorder.
In his first report, Dr Mustac says, without explanation, that the plaintiff has "masochistic personality traits". In evidence, he explained that this was based on what she had tolerated socially.

Medical evidence - Physical

After release from hospital, the plaintiff saw two general practitioners, Dr Ronald Naylor who was her regular general practitioner and Dr Forgione. Dr Forgione was closer to where she lived and with her various social problems, it was sometimes difficult to get to Dr Naylor.
She was found to have fractures of the ninth, tenth and eleventh ribs anteriorly and a depressed fracture of the lower sternum. There were also wedge compression fractures of T6 and T9. At one time, there was a suggestion that the fractured T9 was an old fracture, but that is simply not the case and that is now conceded by all of the medical practitioners. According to the evidence of Mr O'Connor, an orthopaedic surgeon to whom she was subsequently referred, the fracture at T9 was significant. The fractures of the vertebrae were not diagnosed during the two days she was in Royal Perth Hospital and were not in fact diagnosed until Dr Forgione had her x‑rayed. She was in extreme pain when he saw her and, in addition to the fractures, had considerable soft tissue injury and, in his opinion, also appeared to be depressed. He wished to commence her on anti‑depressant medication but she was not happy to do that.
Thereafter, she continued with Dr Naylor who referred her to Dr C S Koh in 1994 for a course of laser acupuncture which assisted a little but not sufficiently to make it worth continuing. She was also referred to Dr Berrigan, a pain specialist, who noted that "problems in the mid‑thoracic spine are often difficult to treat". Nevertheless, they can respond to thoracic dorsal rami blocks which he performed and that did give her some relief so that she was able to walk better. He also prescribed Tens machine but that was of no help to her and performed a trigger point injection in the left para‑spinal muscle. In addition, she completed a course of hydrotherapy which again caused improvement in the sense that she found she was able to walk for longer periods of time.
The plaintiff has, over a period of time, taken a number of analgesics, however, she is reluctant to take medication because her past history includes a right partial nephrectomy in 1984 and subsequent kidney problems because she makes kidney stones.
In January 1999, Dr Naylor referred her to the orthopaedic surgeon Mr O'Connor. On 7 January 1999, he reported, inter alia:
"Her symptoms at the time I saw her were those of constant mid‑thoracic discomfort which she thought was progressively worsening. Her symptoms are aggravated by even the mildest of activities. She has some difficulty sitting for any length of time and her symptoms are worse if she lies supine.
...
On clinical examination, she has a mild thoracic kyphosis and possibly a very small right leg length discrepancy. There was tenderness to the lightest of palpation throughout the entire thoracic and upper lumbar region, perhaps more localised in the mid to lower thoracic area. There appeared to be no increased muscle tone in the erector spinae muscles. Her range of spinal movements were restricted in all directions."
Mr O'Connor then obtained a radiologist report and noted that in addition, she had a small right lumbar scoliosis, a healed osteoporotic crush fracture at T6 and T9 and generally widespread osteopenia and some early anterior osteophytes in the upper to mid‑thoracic region. In evidence, he said she also had a fractured sternum. After obtaining the report, Mr O'Connor suggested that she try a jewett brace. He subsequently reported that this was successful in that she was able to reduce her analgesic intake and there was a small but significant reduction in her symptoms.
In his report of 12 July 1999, Mr O'Connor said:
"I believe that Mrs De Mamiel does have a disability in her spine, being as a result of pre‑existing thoracic kyphosis and the injury she sustained to her spine in the motor vehicle accident in October 1996. I believe that disability represents some 10% loss of function of her spine as a whole.
I believe your client does have a restricted employment capacity, not only because of her age, but because of the disability in her back and the need for her to wear a brace. I believe she would not be able to perform work of a physical nature, or activities that require repetitive bending, stooping, lifting, carrying, working with her arms at or above shoulder level or having to stoop or bend to get into low cupboards. I thinks perhaps limited office work, or work of a minimal physical nature should be within her capabilities."
In evidence, Mr O'Connor also confirmed that the plaintiff has widespread osteopenia which is softness of the bones. The x‑rays, of course, cannot distinguish the causes but it is usually osteoporosis or osteomalacia, which will eventually cause pain.
So far as making a future assessment in relation to the osteopenia, Mr O'Connor would prefer it if we sought the opinion of a metabolic physician but, being requested to provide an educated guess, he said that if she had not had her accident, she would have minor discomfort in her spine and, in another five or 10 years, perhaps with progressive symptoms, she would arrive at the level she is currently at. He can only judge that by the number of people that he has provided jewett braces for and he said that they are usually in their 70's. People between 60 and 65 would possibly need a brace, but it depended on the severity of the symptoms.
As to the source of her pain, he said:
"... I think that you've got sufficient of a mechanical stress on the posterior longitudinal ligament in the facet joints for her to be suffering a mechanical type of pain. I think also by virtue of the fact that whilst I say the fractures are healed, there are still intrinsic - the lattice work is more coarse and what happens is the little trabecular tend to fracture and heal and fracture and heal and fracture and heal and for quite a while that process maintains the balance. With the progressive time, it's possible that you lose it and you get these micro fractures and you can get pain. I think that's part of the problem. I think also just the simple fact that she has bent forward produces the disproportionate compressive load at the front of the vertebral bodies and a disproportionate distraction at the back so that she's got tissues that are trying to pull her back straight and then being over stretched. So I think that there are explanations why she would have pain from several sources despite the fact that there is radiological evidence that the fracture is not getting worse and that there has been some increased density through the fractured area which is consistent with her body laying down extra bone." (T104‑105)
So far as the kyphosis that she has which is the bending forward, he expressed the view that most of that was due to the two crushed fractured vertebrae.
After Mr O'Connor's report of July 1999, she was referred by the insurance company to Mr Williams and Mr Williams gave her advice which was a little different from Mr O'Connor's and I will deal with that a little later. When she was subsequently seen by Mr O'Connor, he reported on 4 April 2001:
"... She informed me that she had since that time seen another orthopaedic surgeon who suggested to her that she should discard the brace. She attempted to follow that advice, trying to spend time out of the brace but over a period of some six to seven weeks, her symptoms progressively worsened and she returned to the brace with relief of the pain. She is now back wearing the brace pretty much full time with good alleviation of her symptoms. Unfortunately, she still has some discomfort. This discomfort is intermittent and seems to be related to levels of activity. She did indicate that she felt, overall, her symptoms were worsening ...
...
Clinically, her kyphosis had remained unchanged. There was tenderness to gentle palpation over the mid‑thoracic and thorocolumbar regions but she did have a good range of minimally uncomfortable spinal movements ...
...
Mrs De Mamiel has been advised to continue wearing her orthosis pretty much full time during the day."
Mr O'Connor said that he did not disagree with Mr Williams that exercise to build up the spinal muscles was important but that would not be sufficient in her case and he said straight out that he disagreed completely that she would not need the brace.
Mr O'Connor said there is a limit to how much muscles can be strengthened at the plaintiff's age and particularly, if starting mechanically with a kyphosis. It is very difficult for the muscles to be able to generate the level of support necessary to straighten a person's spine but he would agree that part of the treatment is to tone up muscles.
In his final report of 25 May 2001, Mr O'Connor confirmed that she would be able to be gainfully employed in sedentary work that did not require bending, stooping, lifting, carrying or working with her arms at or above shoulder level. The restrictions on her return to work should be considered as a result of the combination of her crush fractures, the degree of osteoporosis she has in her spine and her need to wear the supportive orthosis for comfort, which he thought she would be required to wear semi‑indefinitely. Finally, he increased the percentage of permanent disability in her spine to 15 per cent.
So far as her returning to work is concerned, he said that she would not be able to go straight back to four hours a day five days a week, obviously she would have to build up to that and look for the type of work that she would be able to do. Then given that the crush fractures have healed, that she has support from the brace and that the osteopenia is not progressing too much at this stage, she should be able to cope with work for a few years.
The plaintiff was referred by the insurance commission to Mr Nicholas Anastas, also an orthopaedic surgeon, who first reported on 17 November 1997 and at that stage, said that he did not think it was relevant to comment on her ability to work because she was on a pension but he did feel that while she was able to perform some of her household tasks, she undoubtedly would have difficulty with such things as heavy lifting, prolonged bending and hanging out the washing and he believed that her claim should not be settled for a further five or six months to allow stabilisation of her condition but he expected improvement.
When he next reported on 19 October 1998, he said that she should avoid repetitive lifting and prolonged bending and avoid household tasks involving heavy lifting and, in his opinion, she had a disability of a 5 per cent loss of her thoraco lumbar spine.
On 9 May 2001, he did comment on her ability to work and said:
"I do feel that she has the capacity to work more than four hours a week and, accordingly, I would pass her as being fit for work not involving repetitive bending, lifting or anything very physical and, as such, would be fit for office work and clerical duties. She has not done anything other than part‑time or casual work for some time and, therefore, if she were to return to this duty, it should be on a graduated program. In the first instance, I would advise that she work three hours a day five days a week and her time at work could be graduated by one hour each day every fortnight until she reached full‑time."
On 15 July 1999, the plaintiff was seen by Mr Williams at the request of the defendant's solicitors and he reported on 16 August 1999:
"While the underlying osteoporosis would make her more susceptible to wedge fractures, the forces involved in the motor vehicle accident were significant and sufficient to create the wedging fractures in a normal spine so one doesn't see the wedging fractures being influenced by the osteoporosis with such forces involved, there was sufficient force to create wedging thoracic fractures.
She has current limitations with functional capacities with sitting for long periods and pain in the interscapular area and lifting above head level and other limitations as discussed in the report.
Her needs are an intensive swimming and exercise schedule building up muscle protection for her spine and spinal strengthen mobility. She needs daily access to a heated pool program, swimming with varying strokes and walking in the pool and kickboard work and water aerobics."
Later in the same report, he said:
"In terms of the wedging fractures limitation, she has minor annoying disability overall and no more than 10% expressed as a percentage disability of the whole functional spine.
She will have difficulty with working in bent postures and she should retain a range of work capacities in a lighter sedentary work area.
There may be some progressive degenerative change associated with the adjacent disc levels where she has had the wedging fractures.
There is need for specialist review and management of her osteoporosis as it is a complicated picture with her renal stones and there is a need for definitive management of the osteoporosis to prevent the recurrence of further wedging fractures adding to her spinal difficulties."

Still later in the same report, he said:
"I believe she can be returned to a work capacity involving a range of light sedentary work activities, avoiding heavy lifting and awkward posture. I see disability related to the fractures at an annoying level interfering with the heavier work options that I have outlined leaving a range of sedentary work activities with her having full capacity."
He went on to say that, in his view, she did need to build up her muscle strength to minimise her symptoms and there needed to be an intensification of her physical rehabilitation efforts with access to a swimming program.

Conclusion

I have already drawn some conclusions in the body of the judgment and I confirm those. Anywhere where there is a conflict between the evidence of the psychiatrists, I prefer the evidence Dr Burvill and the reasons for that, I would have thought, would be obvious from what I have said already. But in any event, both psychiatrists are in agreement that the plaintiff is not depressed. Where there is any conflict between the evidence of the orthopaedic specialist, I prefer the evidence of Mr O'Connor. He has seen the plaintiff more often, has treated her more often and has adopted a more holistic approach, taking into account her various problems and, of course, it goes without saying that the defendant must take the plaintiff as he finds her.
The evidence is very clear that the plaintiff gave up work because of the overwhelming stress of her social situation and, obviously, she was then suffering from depression. Her situation has changed now, in that she is no longer suffering depression and she has managed to free herself of many of the problems caused by her sons, but certainly she still has major problems with her daughter.
Had her daughter gone to New South Wales on 8 October 1996, I do find that the plaintiff would have returned to work. She has a solid work history and she is a very well‑groomed, well‑spoken woman who would have returned to some type of retail work. She says, of course, that she would have worked about 25 hours a week and continued to work until she was 65 years old. I accept that she would have worked those hours but, on the basis of Mr O'Connor's evidence, her problem with osteoporosis may well have caused her to have to leave work well before the age of 65.
I would not be prepared to find that she certainly would have stayed at work because given her daughter's condition, there is a reasonable chance that she would have returned to Western Australia to live with her mother, who may then have felt the need to leave work again. In finding that there is a reasonable chance that the daughter would have returned to her mother, I take into account not only the pre‑ but the post‑accident history: In the five years since the accident, there is no evidence of the daughter going to live with her father or generally improving her position. While the defendant is responsible for upsetting the initial plans for the daughter's travel, he cannot be held responsible for that continuing over five years.
So far as the defendant upsetting those plans, the plaintiff has lost the chance to return to work. Had she returned to work, given that she had reduced some of her other problems, she may have been strong enough to remain at work even if her daughter had returned to Western Australia and so she has lost that chance as well.
Furthermore, even without her daughter's trip to New South Wales, it seems to me that there was a chance, if she did not have her physical problems, that she would have returned to work in any event. I say that because of her solid work history and the fact that for a period of time, even when her daughter and her sons were with her and had major problems, she continued to work.
There is no way on the evidence, I could find that she has suffered the economic loss claimed for her, but she has lost the chances referred to in the previous paragraph.
In determining the level of the plaintiff's mental and physical condition, it has been necessary to make findings about her credibility. What the plaintiff has told social security and what she told the psychiatrists is different. It is my finding that what she has told social security is not true insofar as she describes herself as depressed and related the history of depression. The plaintiff has been on a pension for many years. She now has physical problems and continuing social problems. It does not seem to me that there is any fraud on the revenue by her being in receipt of a pension. Furthermore, while the medical specialists say that she is physically fit for some work, actually obtaining work is a very different thing, particularly when she has been out of the workforce for the period of time she has. While she should have been honest and, in my view, could have achieved her ends honestly, in all the circumstances of this case and having seen the plaintiff, I am prepared to accept her as an honest witness.
I accept that her mental condition is as she says and her physical condition is also as she says and, as I have already indicated, I prefer the evidence of Professor Burvill and Mr O'Connor. What I do not accept is the interpretation that the plaintiff and perhaps her legal advisers have put on the particular facts. That is to say that the defendant can be held responsible for the fact that the daughter never went to New South Wales at any time in the last five years. That is obviously far too remote. Furthermore, in taking into account the chance she has lost as a result of her physical condition, it is necessary to take into account also that the daughter remains with her and that is no longer the fault of the defendant. Additionally, the plaintiff has widespread osteopenia which no doubt make the motor vehicle accident injury worse than it otherwise would have been but, eventually, it would have caused her physical problems even without the accident.
Insofar as a claim has been made in relation to earnings, it has been made on the basis of work as a sales assistant for 25 hours per week, the net pay from October 1996 to May 2001 has varied from $235.95 through $255 to $271 per week. In addition, there is a claim for superannuation and interest.
As I have already said, it is not possible to assess the plaintiff's damages at anything like the claim that has been made and what I am doing is assessing the loss of a chance in all the circumstances. It is extremely difficult to give this arithmetical respectability but it seems to me that the only thing that can be done is to provide a global amount, and in all the circumstances, a reasonable global amount is $40,000.

Loss of amenities

So far as the plaintiff's loss of amenities are concerned, she has suffered a great deal. She had serious fractures and now has pain. It is undoubtedly the case that she had a pre‑existing condition but it was asymptomatic and it has become symptomatic and it would seem, from the evidence of Mr O'Connor, that she has ended up wearing the jewett brace many, many years before she otherwise would expect to. Further, I accept that she was severely depressed for a period of 12 months after the motor vehicle accident. Again, it must be taken into account that eventually, this plaintiff was, on the medical evidence, going to have these physical problems even without the motor vehicle accident. However, they have been super imposed on her situation and as Mr O'Connor was at pains to point out, the fractures, particularly the fracture at T9, was very significant and it was his view that only the forces of a motor vehicle accident would cause a fracture of that nature. Given the plaintiff's pre‑existing condition, the fact that she then suffered these very severe fractures which has made her situation much worse than it otherwise would be and the injuries much more serious than they may otherwise have been, I accept that as a result of the motor vehicle accident, she has suffered a significant injury and I assess her damages at $33,000. After the threshold deduction provided for by the Motor Vehicle (Third Party Insurance) Act, she is entitled to an award of $21,500.
So far as her future medical expenses, there is the claim for the brace at $4,622.83. On the evidence of Mr O'Connor, she may well have needed this brace eventually in any event and, therefore, I have deducted 20 per cent, giving $3,698.26.
For analgesia, the claim has been made of $4,052.71 which requires a constant intake of eight tablets per day. Given that she has also claimed gym membership and is wearing the brace which has reduced her need for analgesia, it seems to me that that should be reduced to $3,000, which I do.
The evidence of both of the specialists is that the gym membership would be a benefit to her and what she needs to do is to build up the muscles in her spine and that walking is simply not sufficient. The claim for that is $828.39 and I allow that.
As a result of these reasons, the plaintiff is entitled to an award as follows:
Loss of amenities  $21,500.00
Economic loss  $40,000.00
Brace  $ 3,698.26
Analgesia  $ 3,000.00
Gym membership  $     828.39
TOTAL  $69,026.65