Dray v COLLINS - [2004] WADC 149

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: DRAY -v- COLLINS [2004] WADC 149

CORAM: CRISFORD DCJ

HEARD: 23-26 MARCH, 1 APRIL, 7 MAY 2004

DELIVERED : 23 JULY 2004

FILE NO/S: CIV 2604 of 2002

BETWEEN: TAMELA LEE DRAY
Plaintiff
AND
TROY ANTHONY COLLINS
Defendant

Catchwords:

Damages - Assessment - Plaintiff 28 year old nursing student at time of motor vehicle accident - Minor compression fracture of the upper aspect of the body of T12

Legislation:

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

Result:

Judgment for the plaintiff in the sum of $44,129

Representation:

Counsel:

Plaintiff: Mr A S Stavrianou
Defendant: Ms B A Mangan

Solicitors:

Plaintiff: Stoddart & Co
Defendant: Phillips Fox

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

Andjelic v Marsland (1996) 70 ALJR 435
Jongen v CSR Ltd (1992) Aust Torts Reports 81‑192
Southgate v Waterford (1990) 21 NSWLR 427

Case(s) also cited:

Black v Motor Vehicle Insurance Trust [1986] WAR 32
Bowen v Tutte (1990) Aust Torts Reports 81-043
Foyster v Goynich [1984] WAR 80
Griffiths v Kerkemeyer (1977) 15 ALR 387
Hodges v Frost; Frost v Hodges (1984) 53 ALR 373
Husher v Husher [1999] HCA 47
Jongen v CSR Ltd (1992) Aust Torts Reports 81-192
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Nolan v Hamersley Iron Pty Ltd [2000] WASCA 304
Paul v Rendell (1981) ALR 569
Purkess v Crittenden (1965) 114 CLR 164
Randall v Dul (1994) 13 WAR 205
Shorey v PT Ltd [2003] HCA 27
Ta v Lucky Import and Export Co Pty Ltd [2002] WASCA 65
Thomas v O'Shea (1989) Aust Torts Reports 80-251
Watts v Rake (1960) 108 CLR 158
Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485

CRISFORD DCJ:

Introduction

The plaintiff is aged 28 years, having been born on 12 June 1975.
On 23 October 2000 the plaintiff was the driver of a Holden Barina motor vehicle which was involved in a collision with a motor vehicle being driven by the defendant.
The plaintiff alleges that the accident was caused by the negligence of the defendant and that as a consequence of it she sustained soft tissue injury to the cervical, thoracic and lumbar areas of her spine and to her right shoulder, a minor compression fracture of the upper aspect of the body at T12, aggravation of a pre‑existing non‑symptomatic spondylolysis at L5, various cuts, bruises and grazes, post‑traumatic stress disorder and an adjustment disorder.
The defendant admits that he was negligent but does not admit the plaintiff suffered the injuries and thereafter sustained loss and damage. However, he says that if the plaintiff did sustain the injuries and the loss and damage alleged, then such loss and damage was caused or alternatively contributed to by a pre‑existing degenerative or other condition of the spine and a work related accident which occurred on 23 July 2003.

The plaintiff

The plaintiff completed her Tertiary Entrance Examination at the end of 1992 whilst attending Iona College.
She commenced an applied science course at TAFE but did not continue with that course.
She then started full‑time employment at a sports store in Rockingham where she worked for four to five years.
She commenced a nursing degree at Edith Cowan University ("ECU") (Churchlands Campus) in 1997. She completed that year as a full‑time student. In 1998 she did part‑time study. She continued to do full‑time study in 1999 at the James Cook University in Townsville, Queensland.
She had moved to Queensland in 1999 with her then boyfriend who had been transferred through his employment with the Army.
In the year 2000 she returned to Western Australia and recommenced her degree at ECU. She completed one semester and then withdrew prior to the end of the second semester.
In the first semester in 2000 she had taken substantial amounts of time off her studies. She had not received any credit towards her degree for the units undertaken by her in Queensland and felt disillusioned at having to redo that part of her course in Western Australia.
Prior to her withdrawal from studies she had taken up a position as a nursing assistant with a nursing agency, Healthstra, where she was initially given six to seven weeks contract work with the Silver Chain organisation. She commenced with Healthstra in July 2000 and worked there until May 2003.
The accident occurred on 23 October 2000 at about 1.30 pm whilst the plaintiff was travelling to Shenton Park Hospital for employment purposes.
She started again with Healthstra on 8 November 2003.
In 2001 she returned to her nursing course. This she completed and graduated in December 2002.
She commenced with Fremantle Hospital in May 2003 due to wanting to spend time with her partner's parents who were visiting from overseas. She could otherwise have started employment early in the year of 2003.
She commenced part‑time work of four days a week in October 2003. She says this was due to her back difficulties. However, she initially reported it as due to the distance she had to travel to work from her home in Safety Bay each day.
On 23 July 2003 she sustained a right shoulder injury whilst lifting a patient. That resolved to the state it had been prior to the lifting episode.
In late 2003 she enrolled in a 12 month perioperative graduate diploma course in order to better equip herself in an area of less physically demanding work. She is currently working 72 hours per fortnight in theatre. She started this nursing role two weeks before the trial began.
She gave evidence of being a fit and healthy person prior to the accident.
She has no recall of the impact at the time of the accident but was thereafter aware of a sharp pain in her back. She was taken to the Emergency Department at Fremantle Hospital by the police. Her brother attended to collect her on the same day. She was to be followed up by her general practitioner, if necessary.
At that time of discharge she was complaining of slight sternal pain, lower back pain and sore thighs.
Her mother who was residing in the north of the State flew to assist her for a period of time although the exact length of her stay is unknown. Her mother stayed with her and her brother at a house owned by the parents in Safety Bay.
For the first couple of days after the accident her evidence is that she was sore. During that period of time her mother helped her get off chairs and out of bed. She would spend a few hours a day helping her.
The back pain initially included radiated pain to her left leg and in the first few months she had pins and needles. The radiated pain is now there occasionally.
Her evidence is that the back pain still continues to affect her. She has difficulty sleeping and takes Panadol on a nightly basis in order to sleep. She occasionally takes anti‑inflammatory medication.
She has stiffness in her neck after a long day and also some left shoulder stiffness.
She has had headaches "quite often" since the accident. They were occasional prior to the accident.
She uses a heat pack for her back, she has a TENS machine and uses a Breville massager. Her partner, Steven Adams, also massages her on a regular basis in order to alleviate her back problems.
After the accident she stated she was unable to exercise to the same extent as before and has put on 15 kilograms in weight.
Her evidence was her physical activity has reduced. Prior to the accident she was quite fit playing indoor beach volley ball, attending a gymnasium four days a week, swimming most days, running and had participated in some triathlons. She was a student at the time.
She is still a gym member and is able to do some swimming one to three times a week at a reduced distance. She walks her dog and she does yoga. She does not garden as much as before.
In cross‑examination it became apparent that she had been able to play the game of touch rugby up until about the end of 2003. Dr Bath noted she commenced playing touch rugby in early November 2001. She did not play that game prior to the accident. Her evidence is that she no longer plays that game. She accepted this was due to work commitments. It was also her evidence that she continued to play out the season of indoor beach volley ball after her accident. She played one or two games in 2002.
For a period of time she suffered from memories of the accident and flashbacks and is concerned about cars approaching from the lefthand side of her motor vehicle.
She is in a stable and secure relationship with her partner, although her evidence is there has been some change in that relationship due to her lack of self‑esteem and changed perception of her body image. As a result of this her sexual relationship with her boyfriend has diminished somewhat. She met Mr Adams in May or June of 2000 – about four months prior to the accident. Their relationship developed some six months after meeting and they commenced living together in July 2001.
Mr Adams is now called upon more frequently to assist in general household duties. His evidence was that the break-up of those duties was about equal with him doing more of the heavy tasks involving bending.

Medical evidence

The plaintiff did not seek any medical assistance for any injuries or difficulties as a result of the motor vehicle accident until she saw a general practitioner on 9 November 2000. Her evidence was she did not see a GP on a regular basis. She accepted in cross‑examination that her attendances on Drs Bath, Williams, Mastaglia, Lord and Watson were as a result of the Court proceedings rather than what she perceived as a medical need.
In the statement of claim filed 14 October 2002 the plaintiff indicates that she has suffered post‑traumatic stress disorder and an adjustment disorder.

David Lord

The plaintiff was seen by Dr Lord, psychiatrist, on 28 June 2002. In his report of the same day Dr Lord opines that Ms Dray continues to experience an adjustment disorder as a result of the car crash. He was of the view that from a psychiatric perspective the plaintiff's symptoms will improve with the passage of time and that her prognosis is satisfactory.
He was of the view at that stage a clinical psychologist may well be able to assist the plaintiff in relation to her anxiety as a result of being a passenger in the motor vehicle. It was not necessary for her to attend on a psychiatrist. The plaintiff indicated she did not want to see a "shrink" but preferred to discuss issues with her partner.

G L Mastaglia

The plaintiff attended on Dr Mastaglia, physician in rheumatology, on 27 March 2002 and 20 January 2004. His suggestion was that she increase her physical activity and that at least on 27 March 2002 no physical treatment was required. He suggested more active physical interventions which she could undertake herself.
He was then concerned whether she would be able to carry out full‑time nursing duties in an unrestricted capacity based on the symptoms she was experiencing at that time, some 18 months post‑accident. He suggested that she had a 10 per cent permanent disability of the cervical spine, 10 per cent permanent disability of the thoracic spine and a 20 per cent permanent disability of the lumbar spine.
He indicated early retirement from the workforce may be indicated.
In his later report of 21 January 2004 he saw the choice of a post‑graduate diploma in theatre work as being a wise decision on her part and should be persevered with on the basis that she would then be able to continue to work in her chosen field. It would overcome the disabilities and restrictions experienced by her in general surgical wards.
He noted she has lower backache and a stiff neck. She will be prone to aggravation with her pain if she continues normal nursing duties.
He noted her activity level prior to the injury and included her playing touch football in that. He noted on 21 January 2004 that "she is currently walking only". He also noted that she will make an attempt at increasing her exercise with a view to regaining some lost muscle tone. The loss of muscle tone was one of the problems for her back stability.
She would have long term problems with chronic pain.
She may require chiropractic treatment or physiotherapy as and when any pain flared up. She needs to visit her GP regularly.
In cross‑examination Dr Mastaglia indicated that his views would have been different if he had been aware she had continued to play indoor beach volley ball and had not played touch rugby prior to the accident but had started it post‑accident and played until December 2003. On the basis of the information gleaned from her that she had played those activities pre‑accident he formed the view that she now had less capacity physically and:
"I then interpreted that as being that she was in pain and she was in constant distress, so I'd be concerned about that information."
He was also of the view that she would have the capacity to work full‑time if she could avoid lifting, bending, working in confined spaces and doing repetitive tasks.
He was of the view that some of the present problems could be remedied and addressed by the plaintiff herself in terms of physical activity "fine tuning of eating habits and lifestyle changes".

David Watson

David Watson, consultant physician, saw the plaintiff on 11 November 2003. She gave a history in the main consistent with the history given to other doctors. She then continued to suffer neck stiffness and pain, low back pain and headaches.
He felt as a result of the accident she had some compromise of her ability to work by about 20 per cent. This included a similar reduction in her capacity to undertake activities of daily living. He noted her exercise is limited to walking.
He did not recommend physiotherapy, treatment or medication.
He did not think she was as depressed as when Dr Lord had seen her in the middle of the previous year. He had the impression that the improvement in that regard had been encouraging.
He was of the view that in doing bedside nursing duties the plaintiff would only be able to work four days a week. He felt that in general terms if she was able to work four days a week she should manage to get good employment because there is a shortage of competent and committed nurses everywhere in the system across the board – private sector, community nursing and public hospitals.
He stated that he hoped that she would be able to work full‑time once she got away from heavy bedside nursing. He saw her prognosis as good.
He did not anticipate early retirement from the workforce as a result of the injuries and was of the view that if she moved away from bedside nursing that her disability would decrease and at most it would be 5 per cent.
He was of the view the work injury of 23 July 2003 had a temporary effect only.
In his evidence he noted no obvious soft tissue swelling around the fracture of T12 on the x‑rays. If there is such swelling it is a measure of the force of the injury and bleeding associated with it. He saw no evidence of arthritis at the fracture site or the facet joints behind that site.
Again he had not been aware of her physical activity post‑accident and indicated that would influence him. He did not say how.

Peter Bath

Peter Bath, orthopaedic surgeon, reviewed the plaintiff on 14 November 2001 and 20 January 2004 and produced two reports. In his earlier report of 17 November 2001 he noted ongoing restrictions of neck stiffness with some thoraco lumbar pain with activity. He was of the view her symptoms should improve and settle down with time. It was unlikely there would be symptoms and restrictions of a permanent nature. She did not require assistance in her daily duties and her prognosis should be good.
In his further report of 20 January 2004 he noted she was having difficulty with repetitive bending and lifting and leaning over making beds. She was sore at the end of each day and this became progressively worse at the end of her four day work stint. There was a restriction of movement in her cervical and lumbar spine.
He was of the opinion that any residual disability related to the small compression fracture at T12 and not to the radiological features of the asymptomatic spondylolysis at L5. He saw no evidence of arthritis.
He did not foresee that the ongoing low back pain would be severe enough to prevent her from carrying out full‑time nursing activities even if these required some modification. She did not need to be directed to another occupation.
He did not recommend further treatment. He did not think there would be a longstanding and substantial disability.

Desmond Williams

Desmond Williams, orthopaedic surgeon, saw the plaintiff three times, the last occasion being 4 March 2004. When he first saw her on 13 November 2002 her problems were persisting back pain in the mid‑lumbar area particularly on the right side. Also left sided back pain and buttock pain. There was neck pain and stiffness in the right shoulder.
His strong management advice was to intensify her own physical rehabilitation with sporting activity. He said in his evidence that pain and stiffness would be modified depending upon commitment to physical rehabilitation. In his report of 22 September 2003 he saw the need for her to make time to fit in the rehabilitation needs in order to see her problems resolve further.
He did not agree with the overall assessment of disability as set out by Dr Mastaglia. He felt it was too great. He did not agree that early retirement from the workforce was warranted.
On the other hand he did not agree with the optimism shown by Dr Bath.
His view was that there were degenerative arthritic changes at the T 11/12 level evident on the x‑rays. Also he found she had the identified pars defect in the lumbar spine at the lower lumbar level. In his final report of 19 March 2004 he notes her symptoms have not been exacerbated from this underlying lower lumbar instability.
He also reviewed her in 2003 and 2004.
In line with other medical opinion he noted she should avoid heavy lifting, repetitive bending and working in awkward postures and lifting with unsuitable back posture. There would be some limitation in her capacity to reach across broad areas of nursing involving heavy activities. However, his view was her earning capacity in a range of nursing areas was not limited.
His advice in 2002 was that she should complete her nursing training but target an appropriate work area.
In terms of permanent residual disability he saw it in the order of 5 per cent of the cervical spine representing an "annoying level". He saw that there could be a thoracic spinal disability in the range of 10‑15 per cent. The higher level took into account potential arthritis if there was no response to conservative treatments.
He was of the view that there may be a need for continuing and regular anti‑inflammatory or pain relief medication in the medium term. She would need general practitioner review perhaps three times a year, orthopaedic review perhaps once a year and physiotherapy on two to four occasions over 12‑18 months.
In his report of 8 March 2004 he again suggested intensifying her swimming and exercise schedules and generally pursuing fitness and weight reduction programmes. Her complaints were of back pain and some neck stiffness.
He was of the view she will remain with some elements of permanent residual disability related to the accident. The cervical problems should resolve but the thoracic problems have the potential of persisting pain. His assessment was consistent with his earlier report. He saw the lumbar difficulties as not being accident related.
He was of the view that she would be able to cope with appropriate nursing activities as long as spinal stresses were avoided. She required flexibility in her work position. He confirmed in his evidence that she was capable of working full‑time in appropriate nursing activities.

He, at that stage, saw the cervical problems resolving with appropriate management strategies over the coming 12‑18 months. However, the thoracic problems had the potential for persisting pain, such pain being related to the development of traumatic arthritis in the area of injury in the thoracic spine.

Nursing opportunities

One of the main issues of the trial revolved around the future ability of the plaintiff to continue working in her chosen profession of nursing on a full‑time basis.
It was clear that all the medical evidence indicated the heavy bending and lifting associated with general ward type nursing duties was not an option for the future career of the plaintiff. The availability of alternate nursing possibilities was canvassed.
The plaintiff's evidence was that there was a huge shortage of nurses and nursing assistants and that at university the understanding was that nurses would not have any difficulty finding employment.
David Watson was of the view there was a shortage of competent and committed nurses everywhere in the system.
The plaintiff called two witnesses, both presently employed with Fremantle Hospital. One Shreena Peters held a degree in nursing from Edith Cowan University (1992), had obtained a post‑graduate diploma in health science based on education and was presently a staff development educator. She had held this position since February 2002. The second was Lynett Hudson who had been a registered nurse for 34 years. She had obtained a Bachelor of Applied Science from Curtin University in 1987. For the past 15 years she had been the clinical nurse manager at Fremantle Hospital.
Both nurses agreed that ward nursing was generally physically demanding and heavy. It inevitably involved bending and lifting. Ms Peters was of the view nursing in an operating theatre situation was "different", not necessarily easier. She had not worked in theatre herself.
In order to progress to less physically demanding work it was necessary to have a few years of basic experience. If a nurse was to persevere in the difficult early years then it was likely the more senior she became there was more opportunity of less physically demanding work.
It was also accepted that some areas of nursing were less heavy than others and that a back injured nurse could try to channel herself into the less heavy areas. These areas included out‑patients within the hospital system.
Neither nurse had experience outside of the hospital system to any great extent but both conceded that there were likely to be employment opportunities, given the nursing shortage, in areas such as community health (child health and school nursing), corporate health, occupational health and safety and palliative care.
The plaintiff had made it clear that whilst she was presently working in the theatre area she had hoped to have contact with conscious rather than unconscious people in her nursing career. Theatre had not been her original area of interest although it is clearly part of the rotational graduate programme in which she was involved. She has also targeted graduate studies in this area.
The defendant called Barbara Macleod, a registered nurse who was the managing director of Carealot Home Health Services Pty Ltd, to give evidence.
Ms Macleod had a Bachelor of Applied Science she obtained in 1988 and a second degree, a Master's degree in nursing in 1999. These qualifications were obtained from the Curtin University School of Nursing. She had extensive experience especially in community health and as a community nurse.
Carealot Home Health Services Pty Ltd had been established in 1996 and it provided in home health care to people in need.
The business employed around 110 staff. Registered nurses were used in a supervisory coordinating role and also in the area of health management. She saw that nursing within the community as a registered nurse came within lighter nursing duties in a physical sense. She preferred to employ younger nurses who had a keener and more flexible approach despite any lack of experience.
Her evidence, which I accept, indicated that there was more and more availability for nurses to pursue careers within the community as opposed to an acute nursing situation within a hospital setting. Experience was not the deciding criteria in her view.
A letter tendered by consent on a date after she had given her evidence showed the agency had employed one registered nurse since January 2002. She was not sought to be recalled by either party to elaborate on this piece of evidence or to explain what should be understood by it.
Lynelle Griffiths, a registered nurse since 1976 and presently the staffing coordinator of ACES Nursing Agency gave evidence in relation to nursing opportunities.
Ms Griffiths had initially worked as a theatre sister with the Bicton Annexe for 16 months. Thereafter she had worked in the intensive care unit at Royal Perth Hospital for 10 years before doing post graduate studies.
Her present position as staffing coordinator at the agency saw her primarily involved in the supply of critical care nurses to hospitals or hostels. ACES Nursing Agency had a subsidiary agency called Nurses Own and this subsidiary agency dealt with community based nursing.
Ms Griffiths had no personal experience as a community nurse but as a staffing coordinator had dealings with the allocation of community based nurses.
The main thrust of her evidence as far as it was relevant was that in her view community nurses needed a broad experience base.

The award for pain and suffering and loss of amenities

The plaintiff's injuries arose from a motor vehicle accident after 1 July 1993. The provisions of s 3C of the Motor Vehicle (Third Party Insurance) Act 1943 cover the amount of damages to be awarded to the plaintiff for non‑pecuniary loss.
Non‑pecuniary loss is defined in the Act to include pain and suffering, loss of amenities of life, loss of enjoyment of life, curtailment of expectation of life and bodily or mental harm. Subsection (2) of s 3C of the Act provides that:
"(2)The amount of damages to be awarded for non‑pecuniary loss is to be a proportion, determined according to the severity of the non‑pecuniary loss, with the maximum amount that might be awarded."
The maximum amount of damages that may be awarded under the Act for non‑pecuniary loss is currently set at a figure of $249,000 ("Amount A").
Subsection (3) of s 3C provides as follows:
"(3)The maximum amount of damages that may be awarded for non‑pecuniary loss is Amount A, but the maximum amount may be awarded only in a most extreme case."
A useful guide to the interpretation of these provisions is to be found in Southgate v Waterford (1990) 21 NSWLR 427. The New South Wales legislation under consideration in that case was set in somewhat different terms to s 3C of the Act but, as it stood at the time, provided that damages for non‑economic loss were only to be awarded in cases where there had been significant impairment of an injured person's quality of life and required the Court to assess the amount of damages to be awarded for non‑economic loss as a proportion, determined according to the severity of the non‑economic loss, of the maximum amount which the legislation permitted to be awarded.
In the joint judgment Gleeson CJ, Kirby P and Meagher JA said at 440:
"There are a large number of ways by which trial judges could approach the task of apportionment required by s 79(2) and s 79(3). It is inappropriate in this case for this Court to mandate any particular way of arriving at the 'proportion' required by s 79(2). But, clearly the task in hand is that of awarding damages for 'non‑economic loss', it is appropriate for the trial judge to consider and make findings on those elements in the evidence which are relevant to such loss. This will require the judge to consider and make findings on the evidence relevant to those heads of damages formally considered in the award of general damages. Then it is necessary for the judge to conceive 'a most extreme case'. Only for such a case may the maximum amount provided by s 79(3) be awarded. The use of the indefinite article in 'A' has already been noted. Opinions of what constitute 'a most extreme case' would doubtless vary. But clearly quadriplegia would fall within that class. The amount to be awarded must then be apportioned somewhere between nil and $180,000; but in a ratio which the judge fixes keeping in mind the fact that the cap of a statutory maximum is retained for 'a most extreme case'."
The effect of s 79 of the NSW Act was also referred to by the High Court in Andjelic v Marsland (1996) 70 ALJR 435. It was there said by Brennan CJ, Dawson, Toohey and Gaudron JJ (at 438) that:
"The limits set by s 79 serve to distinguish the damages payable under that section from common law damages to non‑economic loss in another important respect. They quantify the maximum and minimum that may be awarded at any given time and do so in a context where individuals' entitlement is, subject to those limits, to be assessed on the basis of the proportional severity of his or her loss to that of a most extreme case. Although there may be subjective elements involved in questions of the proportional severity, s 79 is concerned to quantify compensation by reference to fixed limits, excluding awards of damages as they are ordinarily understood."
The accident was undoubtedly a traumatic experience for the plaintiff.
The current complaints of the plaintiff is that she has a dull pain in the middle of her back on a daily basis and some stiffness in her neck and right shoulder.
Although she sustained shoulder injury in July 2003 during the course of her employment she indicates that it has now recovered completely and she is back to where she was prior to that work related injury. The medical evidence is supportive of this.
The plaintiff is likely to experience some ongoing problems with chronic pain. She has a permanent disability to her back as a result of the fracture to her thoracic spine. It was not a bad fracture and, indeed, has been characterised as a slight or minor fracture. However, the resultant pain continues to affect her to some degree in the areas of employment and leisure activities. She may experience arthritic changes in 5‑10 years time.
She also has difficulty with stiffness to her cervical spine which should resolve, according to the medical evidence.
In order to continue working full‑time in her chosen profession as a nurse the plaintiff will need to modify her career path. She has taken steps in this regard.
I am satisfied there is opportunity for the plaintiff to redirect herself to the many and varied areas of nursing which cater for those nurses not in a position to bend and lift to the extent required in acute nursing situations found on wards. These opportunities exist within a hospital setting and also within the community. However, the plaintiff has lost the opportunity to pursue any area of nursing she wishes. Some avenues are now simply not available to her.
As a result of the accident I find she had a short term adjustment disorder which has now largely resolved. Whilst she is saddened by the results of the accident there is no up to date psychiatric evidence to suggest that this is likely to affect her long term.
It will be necessary for the plaintiff to modify some of her previous exercise habits but I find she is still well able to exercise but does not exercise to the extent recommended by the health professionals consulted during the course of these proceedings. Indeed her level of exercise appears to have reduced despite some objective improvement in her physical condition as reported by the health professionals.
She was able to play the team sport of touch rugby after the accident and continued with beach volley ball until work and a change in residential location intervened. She is able to swim and do yoga. Her present lack of exercise is exacerbating her problems. Non‑weight bearing, water based activities would assist in strengthening her core muscles. Pilates and Tai Chi have also been recommended.
In summary, the plaintiff has suffered a small diminution of her ability to enjoy life and to engage in activities of a work, domestic, social and sporting nature, which she previously enjoyed. These problems will continue to some extent.
Having identified the evidence relevant to those heads of damages that customarily fall within an award of general damages, the next step I am required to take is to postulate what might be a most extreme case in which the maximum amount of damages, currently standing at $249,000 may be awarded for non‑pecuniary loss, and then apportion damages by comparing the severity of its non‑pecuniary loss with that likely to be suffered in a most extreme case.
When the plaintiff's injuries and associated symptoms are compared with what may be regarded as a most extreme case, for example quadriplegia, it seems clear that the plaintiff's initial injuries and symptoms, their progression and treatment, the prognosis for their improvement and the effect that they have had on her enjoyment of life place her case at no more than 12.5 per cent of a most extreme case. This 12.5 per cent of $249,000 is $31,125.
Section 3(5) provides that:
"If the amount of non‑pecuniary loss is assessed to be more than Amount 'B' but not more than Amount 'C', the amount of damages to be awarded for non‑pecuniary loss is the excess of the amounts I assessed over Amount 'B'."
Amount 'B' is $12,500. Amount 'C' is $38,000. The non‑pecuniary loss of $31,125 is more than Amount 'B' but less than Amount 'C'. The excess of the amounts I assessed over Amount 'B' is $18,625. This means the plaintiff is entitled to $18,625 for non‑pecuniary loss.

Past economic loss

The claim under this head is for various periods including:
(a)from 23 October 2000 to 7 November 2000 – the fortnight immediately following the accident;
(b)for about one week in May 2002;
(c)from time to time following the accident on various occasions totalling an aggregate of 35 days, and
(d)the loss arising from the need to reduce working hours each week.
Counsel for the plaintiff has sought a "global" amount.
Not only was there a lack of precision in detailing the periods relating to this aspect of the claim but, in some respects, a complete lack of evidence. It is not possible to make an assessment with any precision and I intend to award the plaintiff a global amount of $5,500 inclusive of superannuation and interest. This is based, in the main, on the two week post accident recovery period and a loss of income from October 2003 when she started to work a four day week until trial.
The plaintiff reduced her work from full‑time (five days) each week to part‑time (four days) each week in October 2003. Her evidence was that her back could simply not sustain the heavy bending and lifting required over a five day period. She initially reported that her request to reduce her working hours was related to the distance she was travelling between the hospital and her then residential property in Safety Bay. She was not able to reduce her hours immediately and accepted that. She intended to work full‑time until the new roster came out.
She did not provide any medical evidence to support her request to reduce hours and none was required.
The medical evidence, overall, was that the heavy bending and lifting associated with general nursing duties was likely, given the accident related injuries, to be difficult for her.
I accept that moving to four days a week whilst doing general ward duties in her graduate year is supported by the evidence as being appropriate and that her diminished capacity results from the injuries she sustained in the motor accident.

Voluntary services

The plaintiff has claimed a global amount of $5,000 for voluntary services provided by her partner, Steven Adams, and her mother Dahnne Dray.
The plaintiff's mother flew to Perth to assist her daughter for an unspecified period of time after the accident. I accept the need for assistance provided by her mother arose solely from the plaintiff's accident caused injuries and that she is entitled to be compensated, at commercial rates, for such services. In that regard I am prepared to allow assistance by Mrs Dray of three hours a day for a period of 10 days at an agreed rate of $12 per hour ‑ $360.
Steven Adams assisted his partner in various ways, most of which appear to be a rearrangement of household chores. However, he has provided some massage which has given the plaintiff some pain relief and which would otherwise need to have been sought on a commercial basis. I will allow massage of one hour each week for a period of two years at the agreed rate ‑ $1,248.
The total for this head is thus $1,608. However, in view of the restrictions contained in s 3D(6) and (7) of the Motor Vehicle (Third Party Insurance) Act 1943 no award is made.

Special damages

In evidence was a set of chiropractic treatment accounts relating to the accident in an amount of $411.
The plaintiff also gave evidence of a need to take painkillers and anti‑inflammatory medication albeit mild on a regular basis. There was no other evidence that satisfied me other matters needed to be considered under this head.
I intend to award a global amount of $600 for special damages.

Future loss of earning capacity

A week or so prior to the commencement of the trial on 23 March 2004 the plaintiff commenced work in the operating theatre. She did so on the basis of part‑time work of four days each week or 70‑72 hours per fortnight.
The plaintiff's position is that she is not fit for any full‑time work activities. The defendant is of the view that she is and could always have worked full‑time.
The evidence is that if she worked full‑time rather than part‑time in theatre or any other nursing area as a registered nurse she would not suffer any loss of income.
Dr Williams in his report of 19 March 2004 was of the view that:
"She will cope with a full range of nursing activities with the exception of ward nursing activities which involve bending, lifting, working in awkward postures and coping with sudden spinal stresses.
She will cope with a range of specialised nursing areas, such as her current theatre work activity, and a full range of capacities with regard to administrative and community nursing activity.
With regard to theatre nursing, she will have limitations with regard to particularly unusual long theatre lists that can occur in such specialities as cardiac or neurosurgery. She will generally cope with the standing activities and general nursing activities of theatre nurses in a full range of nursing areas that would comprise generally 90 per cent of theatre nursing activity."
He had previously stated in his report of 8 March 2004:
"9.I believe she will generally retain the capacity to seek employment in the open market place with the appropriate training and skills in a work area such as theatre nursing and other specialised areas of nursing avoiding spinal stresses."
He had also noted in that report she had reduced her working hours since October 2003. He was of the view she should be able to increase her work activity as a theatre nurse with her shoulder problems resolving.
The plaintiff's evidence at trial in relation to her shoulder and neck was that they were mostly stiff rather than painful.
Even as early as 22 September 2003 he was of the view:
"Overall, there will not be limitations with regard to her coping with full‑time work activities in the nursing area but she will have to take great care with regard to lifting and bending activities that provide unusual stresses on the thoracolumbar spine. Therefore whilst she can conduct full‑time work activities as a nurse, she will have to be careful of particular risk situations in the work environment."

He was of the view that any functional limitations would resolve if there was attention to physical rehabilitation.
Dr Williams had been called by the plaintiff. He had seen the plaintiff on a yearly basis since November 2002 and was of the view that the difficulties with her cervical spine had potential to resolve over the coming 12‑18 months. He said that the cervical spinal problem should not interfere with her work capacity.
The wedging fracture of the T12 vertebral body was potentially likely to cause the development of traumatic degenerative arthritis becoming significant over the coming 5‑10 years.
Mr Watson in his report to the plaintiff's solicitors of 1 December 2003 was of the view that whilst she would remain symptomatic for at least another year or two, her disability would decrease to at most five per cent if she moved away from bedside nursing.
Peter Bath in cross‑examination said that the plaintiff could work full‑time provided that she avoided heavy lifting and bending. He said that working in the operating theatre as a nurse was not heavy work.
Dr Mastaglia in cross‑examination on 24 March 2004 gave evidence that if she had employment that avoided the limitations of lifting, bending, working in confined spaces, doing repetitive tasks and working overhead that she would be able to work on a full‑time basis.
The overwhelming view of the medical evidence whether called by the plaintiff or the defendant was that the plaintiff was able to work on a full‑time basis if she modified her nursing activities from general ward duties to areas less likely to require lifting and bending. In March 2004 the defendant commenced working in the operating theatre as part of her graduate programme. She will complete her graduate diploma in the perioperative area at the end of 2004.
The plaintiff has maintained employment and there is no evidence she cannot continue her employment on a full time basis as long as she modifies some of her movements. The evidence from all areas supports her being able to do that both in the short and long term – initially in theatre work and later with experience in a variety of areas.
The thoracic wedging fracture will, potentially, cause difficulties at a stage in the plaintiff's nursing career when she will have more experience and this should enable her to channel her career into less physically stressful areas.
Within that time frame she will have had the experience and opportunity for further study as she is now doing to equip her in other areas whether in a hospital setting or in general community nursing.
The evidence does not show the plaintiff has made an assiduous effort in her rehabilitation in terms of physical activity. The early medical reports recommend certain activities which involved water related and low impact measures to strengthen and rehabilitate the spine. These have not been pursued to any great extent.
Whilst I reject the suggestion of the defendant that the plaintiff generally lacked commitment to her studies or career the evidence is that she has picked and chosen what she does in a physical activity sense to fit in with her residential and social circumstances rather than to pursue a rehabilitation programme. The progression from student to registered nurse has left her with less time to exercise at her pre‑accident level with or without injury.
Her physical activities were not always made known to the health professionals and that may have caused some pessimism in the initial assessment of her condition.
In my opinion the medical evidence demonstrates that if the plaintiff does the physical rehabilitation suggested whilst modifying her lifestyle she should be better able to physically withstand the demands of most daily work.
Her present complaints insofar as her back is concerned are likely to resolve to an extent where full‑time work in the area such as the operating theatre is possible. Whilst, occasionally, there may be some difficulties overall I accept she can do this work full‑time.
Taking all the medical evidence especially that of Dr Williams into account it is my view that the plaintiff should be allowed a period of 18 months from the date of trial to fully allow her spinal area which is presently giving her difficulties to resolve as much as it can and for her to complete her studies and graduate diploma.
The evidence is that her present loss is $200 net on a weekly basis. The 18 month multiplier on the 6 per cent tables is approximately 75 and the resultant sum is $15,000 which is the amount I intend to allow under this head.
The plaintiff is also entitled to an award of lost superannuation benefits for the same period calculated in accordance with Jongen v CSR Ltd (1992) Aust Torts Reports 81‑192 61,706 at $18 per week x 75 – 30 per cent being $1,404.

Future medical expenses

The evidence in regard to the need for future medical treatment varied from specialist to specialist. The plaintiff even when advised to seek various assistance from health professionals has chosen not to. She did not attend her GP on a regular basis as advised or engage in any of the treatments suggested.
However, the plaintiff does have an undisputed need for some ongoing review and assistance at least for a period from her GP, possibly some physiotherapy, an orthopaedic review on occasion and possibly some psychological counselling. She also has headaches that require some analgesics. A global amount of $5,000 was sought. I intend to award a global amount of $3,000 for this component.
In summary:
Non‑pecuniary loss  $18,625
Past loss of economic capacity  $ 5,500
Special damages  $     600
Future loss of economic capacity                   $15,000
Future loss of superannuation  $ 1,404
Future medical expenses  $ 3,000
$44,129
The plaintiff is entitled to judgment in the sum of $44,129.