Devereux v KRISKOVICH - [2002] WADC 60

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: DEVEREUX -v- KRISKOVICH [2002] WADC 60

CORAM: MARTINO DCJ

HEARD: 18-20 FEBRUARY 2002

DELIVERED : 27 MARCH 2002

FILE NO/S: CIV 1477 of 2000

BETWEEN: MELISSA JANE DEVEREUX
Plaintiff
AND
PAUL TODD KRISKOVICH
Defendant

Catchwords:

Torts - Negligence - Motor vehicle accident - Damages - Personal injuries

Legislation:

Nil

Result:

Damages assessed

Representation:

Counsel:

Plaintiff: Mr T N Cullity
Defendant: Mr J R Brooksby

Solicitors:

Plaintiff: Trewin Norman & Co
Defendant: Greenland Brooksby

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

Nil

Case(s) also cited:

Nil

MARTINO DCJ:

Introduction

On 10 December 1998 the plaintiff was driving on Alexander Drive, Malaga. A car driven by the defendant entered Alexander Drive from a side street controlled by a stop sign causing the plaintiff's car to collide with the defendant's car. The defendant admits that the accident was caused by his negligent driving. The trial of this action was for the purposes of the assessment of damages.

The plaintiff

The plaintiff was born on 4 April 1970. She left school at the age of 15 after having completed Year 10. Upon leaving school the plaintiff obtained employment as an assistant at a hardware store. The plaintiff worked in a variety of retail stores until she ceased employment during her first pregnancy. Her first child, a daughter, was born in 1989. Approximately two years after her first child was born the plaintiff commenced part‑time employment as an assistant at a clothing store. The plaintiff had ceased that work before she became pregnant with her second daughter. Her second daughter was born in 1993. The plaintiff gave birth to a third daughter in 1996. In February 1996 the plaintiff commenced an evening class at Tuart College to improve her computer skills. She completed that course in May 1996.
In December 1996 the plaintiff commenced part‑time employment with the Department of Social Security. That organisation subsequently changed its name to Centrelink. The plaintiff's initial employment was for one month. The plaintiff obtained further employment contracts and continued in employment with Centrelink. At the time of the accident she was employed by Centrelink as an Administrative Services Officer (Class 3) and had a contract of employment until 26 March 1999.
From July 1998 to August 1998 the plaintiff was contracted to work 45 hours per fortnight. Her wage was $862.34 gross per fortnight. The plaintiff chose to reduce her hours of work. She was involved in contested divorce proceedings and needed time to attend to those proceedings. In September 1998 she was contracted to work 42 hours per fortnight and her contracted gross fortnightly earnings were $804.85. From October 1998 the plaintiff's contracted hours were 40 hours per fortnight and her gross fortnightly earnings were $766.52. The plaintiff's evidence was that she was working 21 hours a week at the time of the accident, but her contract and the letter to her solicitors from Centrelink dated 12 January 1999 show that she was contracted to work 20 hours a week. I prefer these documents to the plaintiff's recollection. Human memory is fallible and contemporaneous records are more likely to be correct. In addition Centrelink contributed 13 per cent of her salary to a superannuation fund on her behalf. She was not paid for any sick leave or for holidays. The divorce proceedings were finalised in January 1999.

The accident and its consequences

At approximately 12.30 pm on the day of the accident the plaintiff was driving on Alexander Drive in Malaga at approximately 70 kilometres an hour. The plaintiff's five year old daughter Chloe was a passenger in the car. The plaintiff had collected her from pre‑primary school shortly before the accident.
At the scene of the accident Alexander Drive has two lanes running in each direction. The plaintiff was travelling in the lane closest to the centre of the road. There was a bus travelling in the other lane. A car driven by the defendant came out of a side street, across the front of the bus and into the plaintiff's path. The plaintiff was unable to avoid colliding with the defendant's car. The plaintiff's car could not be driven from the scene of the accident. A photograph of the plaintiff's damaged car is Exhibit A. The car suffered considerable damage. The plaintiff's evidence was that both she and her daughter were very distressed after the accident. I accept that evidence.
The plaintiff telephoned a friend, Mr Sean Kiernan. Mr Kiernan went to the accident scene. The plaintiff had to collect another daughter from school in Ballajura at 3.00 pm. Mr Kiernan took the plaintiff and her daughter Chloe to a shop. They went from the shop to the plaintiff's daughter's school in Ballajura and collected her. They then went home to Scarborough.
The plaintiff's evidence was that when she arrived home she had a bad headache, she had pain under her chin, a painful throat, chest, right hip and shoulder and bruising on her chest. I accept that evidence.
On the following day the plaintiff went to work. She logged on to the computer at her work desk. As she waited for the screen to come up she started crying due to pain she was suffering. Her supervisor Mrs Pamela Stringer decided that the plaintiff was not fit for work and arranged for her to go home by taxi.
The plaintiff attended a general medical practitioner in the practice of Dr David Oldham on the same day. She had bruising in her neck, anterior chest, lower abdomen and under her chin. She was suffering pain in her back, shoulder and neck and headaches.
A few days after the accident the plaintiff noticed pins and needles sensations in her right arm below the elbow, right hand and fingers, lower right leg and right foot. She saw Dr Oldham on 14 December 1998, 18 December 1998 and 24 December 1998. Dr Oldham observed spasm in the right trapezius muscle. He prescribed analgesic and anti‑inflammatory medication, referred the plaintiff to a physiotherapist and advised the plaintiff to rest. In December 1998 Dr Oldham arranged for x‑rays of the plaintiff's neck and lower back and a CT scan of her neck. Those investigations did not show any injury.
Physiotherapy did not improve the plaintiff's symptoms and it ceased in January 1999. On 29 December 1998 Dr Oldham wrote a report to the Insurance Commission of Western Australia. At that time he considered the plaintiff unfit for work. He expected the plaintiff to be totally unfit for work for two to three months and partially unfit for work for a further three to six months. The plaintiff did not return to work and her employment with Centrelink ceased on 26 March 1999 at the expiration of her contract of employment.
In February 1999 Dr Oldham referred the plaintiff to Dr John Quintner, a physician who practises in the fields of Musculoskeletal Medicine, Rheumatology and Pain Medicine. At that time the plaintiff suffered pain in her right trapezius muscle, in the area where the shoulder joins the neck which had suffered injury due to the force of the seat belt, headaches, pain in her back and chest and pins and needles sensations. Dr Quintner arranged for electro‑diagnostic testing of the plaintiff's right arm. That testing did not show any nerve damage. Dr Quintner prescribed medication to relieve the plaintiff's pain. Dr Quintner continued to see the plaintiff. He prescribed a variety of medication to relieve the plaintiff's pain. The medications prescribed by Dr Quinter included Oxycodone, MS Contin, both of which contain opiates and Panadeine Forte, which contains codeine. The body converts codeine into morphine. In June 1999 Dr Quintner prescribed Tramadol. Unlike drugs containing opiates Tramadol is not a narcotic drug and is not habit forming. The plaintiff took Tramadol and occasional Panadeine Forte. She found that Tramadol gave good relief of her pain. Dr Quintner recommended to the plaintiff that she attend the SCAMP program at the WA Pain Management Centre in Sir Charles Gairdner Hospital. That is a six week program designed to assist patients to manage pain and lead a normal life through exercise, counselling and physiotherapy. The plaintiff telephoned the program. The program was due to commence in September. The plaintiff had planned to travel to go to England at that time. She did not enrol in the SCAMP program.
On 22 July 1999 Mr Stuart Brash, orthopaedic surgeon, reviewed the plaintiff at the request of the defendant's insurer. The plaintiff informed Mr Brash that she was suffering constant pain on the right side of the neck, which was relieved by medication, headaches radiating from the neck to the forehead and behind the right ear and pins and needles sensations in the right forearm and the right lower leg. Mr Brash examined the plaintiff and found inconsistencies in her presentation and non‑anatomical sensory changes. He concluded from these inconsistencies that there were "non‑organic or functional factors in the total pain picture" (T215). Mr Brash asked the plaintiff to show on drawings of the human body where she suffered pain ("pain drawings"). Mr Brash described the plaintiff's pain drawings as abnormal. Mr Brash regards them as abnormal because they showed pain in a non‑anatomical distribution. Mr Brash did not mean that he had not seen similar pain drawings completed by other patients. Many other patients have completed similar pain drawings.
Mr Brash concluded that while the plaintiff may have suffered a minor soft tissue injury in the cervical spine any such injury would have settled. He was unable to reconcile the plaintiff's reported symptoms with the clinical and radiological findings. In his report dated 29 July 1999 Mr Brash expressed the opinion that from an "objective anatomical point of view" the plaintiff was fit for the full activities of daily living including returning to part‑time employment and from "an orthopaedic and anatomical point of view" the plaintiff did not require any further treatment. Further treatment was likely to be counterproductive.
Mr Peter Watson, neurosurgeon, saw the plaintiff on 30 August 1999 at the request of her solicitors and wrote a report on the same day. Mr Watson found that the plaintiff had a full range of cervical spine movement. Mr Watson diagnosed the plaintiff as having suffered soft tissue and ligamentous injuries in the accident. The injuries were principally to her cervical spine. In his report Mr Watson expressed the opinion that the plaintiff ceased work due to symptoms caused by the motor vehicle accident. He doubted that the plaintiff was fit for work at the time he saw her but believed that in the future, with an exercise and strengthening program, she would be able to return to work for at least 20 to 25 hours a week. He recommended that the plaintiff add an exercise program to the management of her symptoms. In Mr Watson's opinion the plaintiff had a good prognosis for recovery from her symptoms.
In October 1999 the plaintiff travelled to the United Kingdom with her three daughters. She had planned that trip for approximately two years before the accident. She booked it after the accident. The purpose of the trip was to attend the wedding of Elaine Kiernan, a family friend and the sister of Sean Kiernan. The plaintiff took with her a supply of Tramadol to last her for her stay. She returned to Perth in April 2000.
On the plaintiff's return to Perth the plaintiff found that the defendant's insurer would no longer pay for Tramadol. She was unable to afford to pay for that medication. The plaintiff's consumption of Panadeine Forte increased. Dr Quintner prescribed Oxycodone but that medication was not successful and the plaintiff did not continue with it.
In July 2000 the plaintiff took a holiday in Phuket for eight days.
Dr John Rosenthal, a physician in rehabilitation medicine, saw the plaintiff on 13 September 2000 at the request of the defendant's solicitors. The plaintiff reported to him that she had right occipital headaches, right paracervical and periscapular pain, a dysfunctional sleep pattern, right arm paraesthesia below the elbow and pins and needles. In his report of the same date Dr Rosenthal expressed the opinion that the clinical findings and the results of her investigations did not suggest that the plaintiff had suffered any significant structural or neurological damage. The objective clinical findings did not suggest that the plaintiff carried a musculoskeletal disability of major significance. He found no overt evidence of distress or pain behaviour. Dr Rosenthal agreed with Mr Watson that the plaintiff had suffered soft tissue injuries and that she had a good prognosis for recovery. In his opinion the plaintiff was fit to return to her pre‑accident occupation. Dr Rosenthal expressed major concerns about the plaintiff's ongoing consumption of Panadeine Forte. In his opinion it is notorious for fostering chronicity, causing dependence and rebound symptomology. He considered that medication problems had become more significant in the plaintiff's ongoing subjective complaints of pain than the effects of her soft tissue injuries. Dr Rosenthal recommended that the plaintiff's claim should be finalised and that if the plaintiff continued to exercise and could be successfully weaned off Panadeine Forte her outlook was very satisfactory.
In a report dated 2 November 2000 Dr Quintner expressed the opinion that the plaintiff's symptoms would continue for the foreseeable future, that vocational assessment and rehabilitation would be necessary to facilitate the plaintiff's return to work and that the plaintiff should be able to undertake suitable selected clerical duties on a part‑time basis. He recommended a graduated return to those duties initially for two to three hours a day for three days a week.
On 14 November 2000 the plaintiff saw Mr Brash. Mr Brash again found what he considered to be inconsistencies in the plaintiff's presentation and that the plaintiff's pain drawings were abnormal in the sense in which he uses that word. In his report dated 16 November 2000 Mr Brash expressed the opinion that there were "non‑organic or functional factors present in the total pain picture". Notwithstanding the plaintiff's reports of pain and discomfort Mr Brash expressed the opinion that the plaintiff was completely fit for the full activities of daily living and her pre‑accident work.
Mr John Ker, a consultant physician in rehabilitation medicine, saw the plaintiff on 29 November 2000 at the request of the plaintiff's solicitors. In Mr Ker's opinion the plaintiff's symptoms were musculoligamentous and were caused by the accident. He supported the use of analgesic medication but recommended that the plaintiff reduce her consumption of opiates. He recommended the stretching and exercise and psychological techniques to assist in muscle relaxation and pain management. In Mr Ker's opinion the plaintiff was not fit for work at the time he saw her, but he anticipated that she would become fit for work.
By the end of 2000 the plaintiff decided that she should become more active to improve her condition. She joined a gym for a year. She found gym membership not suitable for her and she participated only for three months. However she continued to exercise and she walked for two‑and‑a‑half‑hours daily. The plaintiff said that her condition improved with exercising and walking. In 2000 the plaintiff applied for employment with Centrelink, but was not successful.
The defendant arranged for the plaintiff to be filmed and videotape on film taken from February 2001 to August 2001 was tendered in evidence. This film show the plaintiff walking freely, stretching and at times turning her head with little if any restriction.
On 1 March 2001 Dr Quintner saw the plaintiff again. She continued to complain of pain in the right side of her neck, the upper trapezius region and the right shoulder. She displayed painful and limited cervical spinal movements as well as painful limited upward movements of her right shoulder. In Dr Quintner's opinion the plaintiff's symptoms would continue and she would require analgesic medication for the foreseeable future. In his opinion with appropriate vocational assistance the plaintiff would be able to undertake selected clerical duties part‑time. He recommended a graduated return to work, commencing with two to three hours a day for three days a week.
Mr Watson saw the plaintiff again on 1 June 2001. His examination of the plaintiff showed that she was tender on the mastoid process over the right side but had a full range of movement of her cervical spine. Mr Watson remained optimistic that the plaintiff's symptoms would improve with time. In his report dated 1 June 2001 he expressed surprise that the plaintiff's symptoms had not improved. He assessed the plaintiff as being able to work in the future up to 20 hours a week in a clerical or secretarial occupation.
On 27 June 2001 and 2 July 2001 Dr Peter Silbert, neurologist, saw the plaintiff. Dr Harold Judelman, who was then the plaintiff's general medical practitioner, referred the plaintiff to Dr Silbert. On 2 July 2001 Dr Silbert injected cortisone into the plaintiff's greater occipital nerve. The plaintiff found that for the first week‑and‑a‑half after having the injection her symptoms had worsened, they then improved for three weeks or so and then returned to their original level. Dr Silbert recommended physiotherapy. Dr Silbert thought that the plaintiff was suffering from a combination of facetal joint pain and muscular pain. However he was cautious in his diagnosis because he had some concerns about the plaintiff's consumption of medication, he did not see the plaintiff until two‑and‑a‑half years after the accident and he did not have any documentation from the other medical practitioners who had been treating her. The defendant's insurer did not wish to pay for physiotherapy and the plaintiff did not have any further physiotherapy. When he saw the plaintiff Dr Silbert did not specifically address the plaintiff returning to work as she had not been working for some time when he saw her. His evidence was that he felt that in view of the plaintiff's activities at home and elsewhere that she would be able to work.
Mr Watson last saw the plaintiff on 3 September 2001. She had only 50 per cent range of movement in her cervical spine. Previously the plaintiff had no significant reduction in that range of movement on Mr Watson's examination. The plaintiff also reported to Mr Watson that her headaches had worsened. Mr Watson attributes the plaintiff's symptoms to a neck injury suffered in the motor vehicle accident. In his opinion the plaintiff remains restricted in the work she can perform. He assesses her capacity as being capable of performing sedentary, clerical or secretarial work for 20 hours a week. Mr Watson's assessment of the plaintiff's capacity to work is based in large part on what the plaintiff has told him.
During cross‑examination Mr Watson was shown some of the videotaped film of the plaintiff that had been taken in 2001. Mr Watson did not see a great discrepancy between what he saw and the plaintiff's presentation to him. On two of the three occasions that he had seen the plaintiff she had displayed little restrictions in movement. Notwithstanding the videotaped film Mr Watson maintained his diagnosis that the plaintiff suffers ongoing pain in the cervical spine and right arm related to largely soft tissue and ligamentous injuries suffered in the accident.
Dr Quintner also saw the plaintiff on 3 September 2001. In his report of the same date Dr Quintner expressed the opinion that the plaintiff's ongoing disabilities were "largely due to pain of neuropathic type felt in the head, neck and right shoulder girdle region". Neuropathic pain is pain caused by diseased or dysfunctional nerves. Dr Quintner did not agree with the diagnosis of soft tissue injuries: "A (pseudo‑) diagnosis of 'soft tissue injuries' has been canvassed in some of the accompanying medical reports. This concept is long outdated as it conveys neither pathoanatomical nor pathophysiological insights into Ms Devereux's biological predicament." In his oral evidence Dr Quinter said that he did not accept a diagnosis of soft tissue damage because over the years it has not been possible to locate damaged tissue in patients who report such pain. He described the diagnosis of neuropathic pain as:
"... a third model, the evidence for which is slowly emerging which doesn't deny that there may be ongoing tissue damage in zygapophyseal joints for example, or that there may be cultural or psychosocial issues involved in individual cases, but its main premise is that the pain is in some way due to something wrong in the nervous system. The pain is being generated within the nervous system which is diseased or dysfunctional. Either there has been some form of nerve injury in the accident or some form of tissue damage, soft tissue if you like, there has been a barrage of messages into the nervous system which have changed the way it functions in terms of how it responds to messages coming from that painful area that are not tissue damaging." (T119)

Dr Quintner advised the plaintiff to try slow release Tramadol. That medication has become available through the Pharmaceutical Benefits Scheme. Dr Quintner did not agree with Dr Rosenthal that medication problems had become more significant than the effects of the plaintiff's soft tissue injuries. In Dr Quintner's opinion Dr Rosenthal's view did not deal with the cause of the plaintiff's symptoms. Dr Quintner did not agree that the plaintiff's symptoms were caused by soft tissue injuries. In Dr Quintner's opinion the plaintiff's condition is likely to continue in the foreseeable future and she will continue to require analgesic medication. He assessed the plaintiff as being fit only for selected part‑time clerical duties.
Dr Oldham saw the plaintiff in November 2001. He wrote a report on 27 November 2001. At that time the plaintiff's medications were Tramadol and Panadeine Forte. Dr Oldham expected the plaintiff's symptoms to improve slowly over the next two to three years. In Dr Oldham's opinion the plaintiff will continue to take Tramadol and Panadeine Forte for the foreseeable future. In his opinion the plaintiff should avoid work activities that are likely to aggravate her pain such as any heavy lifting, sudden physical movements or prolonged sitting with her head looking down. In his oral evidence Dr Oldham said that in two or three years time that the plaintiff would probably not be able to do work that involved leaning forward sitting at a desk, heavy lifting or sudden physical movements. In late 2001 Dr Oldham diagnosed the plaintiff as suffering from depression caused by the pain of the injuries suffered in the accident and the consequent restrictions in her lifestyle. On 29 November 2001 Dr Oldham prescribed Paxtine, an anti‑depressant. Dr Oldham was also shown some of the film of the plaintiff in cross‑examination. His evidence was that the plaintiff's appearance in the film was substantially similar to her presentation to him in his rooms.
In December 2001 Mr Brash saw the surveillance videos that had been taken of the plaintiff. In his report dated 11 December 2001 Mr Brash expressed the opinion that the "surveillance video reinforces my considered opinion that this patient suffered no major lasting injury as a result of the incident now almost 2 years ago. As such I believe Ms Devereux is fit for the full activities of daily living on a full‑time basis and without restriction. She is certainly fit for full‑time work".
Mr Ker saw the plaintiff again on 1 December 2001 and wrote a report dated 2 January 2002. During Mr Ker's clinical examination of the plaintiff she appeared to be in no immediate distress. She had a satisfactory range of cervical spine movements and Mr Ker felt that the plaintiff's cervical range of movements was well preserved. The plaintiff had some tenderness to the right of the midline over the cranio‑cervical junction and further back onto the mastoid process behind the right ear. Mr Ker found tension in the lower muscles of her neck on the right side. The plaintiff had no limitation of arm movement but extreme abduction of the right arm caused discomfort.
Mr Ker supports the plaintiff's use of Tramadol. In his view it is preferable to opiate analgesics. Its advantage is that most patients do not develop tolerance to it and cognitive side effects such as reduction in concentration are usually less. In Mr Ker's opinion the presence of ongoing and intrusive pain reduced significantly the plaintiff's competitiveness in the workforce. In his opinion if the plaintiff received vocational rehabilitation she would be able to take on part‑time sedentary employment.

The plaintiff's current symptoms and restrictions

The plaintiff's evidence was that her symptoms have settled but she still suffers right shoulder pain. She also suffers lower back pain. This developed after the accident and the plaintiff attributes it to being unable to maintain good posture. She gave evidence that she constantly suffers a dull headache with pain behind her right ear intermittently. The plaintiff also gave evidence that she develops pins and needles sensations is she sits or stands for too long. She is stiff in the morning and exercises to loosen her stiffness and to relieve her backache.
The plaintiff said that before the accident she played netball, went rollerblading with her oldest daughter, horse‑riding with her daughters, went to the beach regularly and actively participated in her daughters' sporting activities. She said that she now finds herself unable to participate in active physical games and Mr Kiernan takes her children on many of those activities.
Counsel for the defendant submitted that I should reject the plaintiff's evidence. In his submission the evidence of Mr Brash and Dr Rosenthal demonstrated that there was no physical basis for the symptoms and restrictions that the plaintiff described. He also pointed to the videotaped film showing the plaintiff walking freely and moving with little restriction.
My assessment of the plaintiff was that she gave her evidence in a balanced and straightforward manner. She did not appear to me to be overstating her symptoms or restrictions. The videotape of her activities was not inconsistent with her evidence of her symptoms or her restrictions. Nor were the plaintiff's appearance and activities on the film inconsistent with the great majority of the plaintiff's presentations to medical practitioners. I accept the plaintiff's evidence as to her symptoms and restrictions since the accident.

Whether the accident caused the plaintiff's condition

Mr Brash and Dr Rosenthal believe that the accident was not the cause of any symptoms the plaintiff now suffers because in their view there is no anatomical basis to explain how the accident could cause the condition that the plaintiff now reports. Injuries to soft tissues such as muscles and ligaments generally improve with time. Dr Quintner believes that the plaintiff suffers from a neuropathic pain syndrome and her symptoms result from some form of damage to her nerves. I am not satisfied on the balance of probabilities that Dr Quintner's opinion that the plaintiff suffers from neuropathic pain syndrome is correct. Dr Quintner's opinion does not explain how injuries of the kind suffered by the plaintiff in the accident can lead to nerve damage.
Mr Watson's opinion is that the human body is not perfectly understood. While it is usual for muscle and ligament injuries to gradually improve for some people the improvement does not occur. This is the clinical experience of Mr Watson and many other medical practitioners. Mr Watson acknowledges that medical science does not fully understand why some people who have suffered soft tissue injuries do not rapidly improve. Nevertheless it is his opinion that the plaintiff suffers pain in the cervical spine and right arm related to largely soft tissue and ligamentous injuries suffered in the accident. Mr Ker also diagnosed the plaintiff as suffering symptoms caused by soft tissue injuries suffered in the accident. I prefer the evidence of Mr Watson to the contrary opinions of other medical practitioners. I do so because Mr Watson's opinion is consistent not only with the evidence of the plaintiff, which I accept, but also with the clinical experience of medical practitioners.

Non‑pecuniary loss

The accident has caused significant pain and restriction in her activities and will continue to do so. It interfered seriously with her enjoyment of life and caused her to be unable to work at a difficult time of her life when she would have benefited from the satisfaction and social interaction that employment provides. The plaintiff has developed depression as a result of the accident. I assess the plaintiff's case as being 10 per cent of the most extreme case, which equates to damages for non‑pecuniary loss of $11,700.

Pecuniary loss

I accept that the plaintiff has been unable to work since the accident as a result of injuries suffered in the accident. Initially the pain caused by her injuries prevented the plaintiff from working. There has been some improvement in the plaintiff's condition but she continues to suffer symptoms. These symptoms reduce the plaintiff's competitiveness in the workforce. On the basis of Dr Ker's evidence I conclude that with the benefit of vocational rehabilitation the plaintiff will be able to take on part‑time sedentary employment of the kind that she was doing before the accident. I prefer the evidence of Dr Ker on the issue of the evidence of Dr Rosenthal because Dr Ker's opinion is more consistent with the plaintiff's evidence which evidence I accept. I prefer Dr Ker's opinion to the other medical practitioners because his area of expertise is rehabilitation and the plaintiff's capacity to work was an area he specifically considered when he saw the plaintiff.
At the time of the accident the plaintiff was employed by Centrelink. She worked 40 hours a fortnight for which she was paid $766.52 (before tax was taken out) per fortnight. The plaintiff was a member of temporary staff and had contracted employment to 26 March 1999. The injuries suffered by the plaintiff prevented her from continuing to work. It is likely that if the plaintiff had not been injured she would have wished to return to working 45 hours a fortnight as her divorce was finalised in January 1999. However there is a risk that Centrelink would not have employed the plaintiff after 26 March 1999 because in 1999 Centrelink decided to phase out the employment of temporary staff in the plaintiff's position. The plaintiff performed her job satisfactorily and the assessments of her performance by Centrelink staff were positive. The plaintiff would have been eligible to apply for appointment to permanent staff and she had prospects of being appointed but there was a significant risk that she would not have been so employed. If the plaintiff had not been successful in continuing to obtain employment with Centrelink it is likely that she would have applied for employment with other employers. I consider it unlikely that the plaintiff would have worked more than approximately 45 hours a fortnight for any employer then or at any time. The superannuation benefits provided by other employers are unlikely to have been as generous as those provided by Centrelink. Although the plaintiff will be capable of performing employment of the kind that she was doing before the accident her competitiveness is impaired.
There are therefore uncertainties both for the past and the future as to the income the plaintiff would have earned if she had not been injured. Some of those uncertainties are favourable to the plaintiff, others unfavourable. In my view a fair reflection of these uncertainties is to calculate the plaintiff's past and future loss of earning capacity on the basis of her earnings at the time of the accident and to allow future loss for a year without any deduction for contingencies. However I do not allow any loss for the periods that the plaintiff was overseas because for those periods the plaintiff's injuries were not productive of any economic loss. I calculate the loss as follows:
The period from the date of the accident to 1 October 1999 was 42 weeks. The period from 1 April 2000 to date is 103 weeks, from which I deduct one week for the plaintiff's holiday in Thailand. The total period on which I calculate past loss of earnings is therefore 144 weeks. The plaintiff's fortnightly earnings of $766 are $383 a week gross, $331 a week after tax. 144 weeks x $331 is $47,664. Interest on that figure at 4 per cent per annum is $5,279.
The weekly contributions for superannuation would have been 13 per cent x $383 or $49.79. For the period of 144 weeks the total contributions would have been $7,170. I deduct 30 per cent from that sum for fund fees and taxes to arrive at a figure of $5,018 for the value of past superannuation contributions. Interest on that figure is $556.
I calculate future loss of earning capacity using the multiplier for one year of 50.7 to give a figure of $16,781. I calculate future loss of superannuation contributions using the same multiplier and the weekly figure of $34.85 (a deduction of 30 per cent from $49.79) to arrive at $1,767.
The plaintiff consumes Tramadol, Paxtine and Panadeine Forte. She is able to purchase these medications for $3.60 a pack. In addition the plaintiff uses heat cream and laxative pills which cost $7.95 and $6.00. The pills are required for the side effects of her medication. I estimate her weekly expenditure at $4.25. In my view five years is a reasonable period for future medication. The multiplier for five years is 226.3 and I calculate future medication expenses at $962. There were no evidence or submissions on special damages.

Summary of damages

The summary of my assessment of damages is:
Non‑pecuniary loss  $11,700.00
Past loss of earning capacity  $47,664.00
Interest  $ 5,279.00
Past superannuation  $ 5,018.00
Interest  $     556.00
Future loss of earning capacity                   $16,781.00
Future superannuation  $ 1,767.00
Future medication costs  $     962.00
Total  $89,727.00