Durmanich v Charnaud - [2003] WADC 181

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: DURMANICH -v- CHARNAUD [2003] WADC 181

CORAM: FENBURY DCJ

HEARD: 21-24 JULY 2003

DELIVERED : 22 AUGUST 2003

FILE NO/S: CIV 2253 of 2002

BETWEEN: DIBA DURMANICH
Plaintiff
AND
CATHERINE LINDA CHARNAUD
Defendant

Catchwords:

Damages - Personal injuries - Motor vehicle accident - Soft tissue injuries to the spine - Aggravation of degenerative condition - 15 per cent of worst case

Rules and Practice Directions - Pre-trial provision of medical expert reports - Lack of compliance - Evidence rejected

Legislation:

Order 5, r 8 of Practice Directions of District Court

Order 36A Supreme Court Rules

Result:

Judgment for plaintiff

Representation:

Counsel:

Plaintiff: Mr T M Cullity
Defendant: Mr B C Sierakowski

Solicitors:

Plaintiff: Edwards Lawyers
Defendant: Brian C Sierakowski

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

Nil

Case(s) also cited:

Nil

FENBURY DCJ: This case requires an assessment of damages for personal injuries allegedly suffered by the plaintiff in an accident that occurred on 14 May 1998. The defendant has admitted liability for negligence.
At the material time the plaintiff was stationary in her early model Volkswagen Golf Hatchback behind another vehicle, at some traffic lights. The defendant was stationary behind the plaintiff. The defendant was driving a Mitsubishi Pajero 4‑wheel drive wagon with a roo bar. Apparently the defendant mistakenly believed the plaintiff had set off and the defendant drove her vehicle into the rear of the plaintiff's vehicle. This occurred on two occasions in quick succession. From the photographs of the damage to the plaintiff's Golf, making allowing for its age and smaller size, the impact was of some significance. On that issue, according to the plaintiff, her head hit the head rest on the back of her seat with sufficient force to break a comb that she was using to keep her hair in place on the back of her head.
The plaintiff's occupation is alleged in the statement of claim to be that of a social trainer "at all material times". In fact the plaintiff had not worked in that capacity for some five years or so prior to the accident. For several years before that period she had worked as a social trainer.
The plaintiff gave evidence that a month after the accident she mentioned the motor vehicle accident to her general practitioner on 18 June 1998. She made an official report, in the sense of making a claim, in consultation with her general practitioner on 29 July 1998. In November she consulted a chiropractor upon whom she attended for some 13 visits. Thereafter she began to treat herself, she underwent massage, and attended Chinese herbalists. The plaintiff's symptoms deteriorated.
In par 5 of the statement of claim, the plaintiff particularises 35 injuries arising from the accident, many of which are symptoms. All of the injuries can, when distilled, be fairly categorised as amounting to soft tissue injury to all three segments of the spine.
As I have mentioned the plaintiff sought relief from non‑conventional health disciplines and preferred to treat herself. She disliked taking medications or pills. The defendant pointed to her lack of attendance upon medical practitioners as suggesting lack of significant injury or symptoms.
At trial, however, evidence was adduced on behalf of the plaintiff from two orthopaedic surgeons, a consultant physician in rehabilitation medicine, a neurosurgeon, a psychiatrist, two general practitioners (one of whom is described as being expert in a field known as myofascial medicine), and two chiropractors. There was internal conflict amongst some of these witnesses as to the most appropriate treatment for the plaintiff and as to the nature and existence of certain spinal abnormalities but nevertheless there was powerful evidence that there is pathology in the plaintiff's spine to corroborate her complaints of symptoms.
Before considering the medical evidence in more detail I shall briefly review the evidence of the plaintiff.

The plaintiff

The plaintiff was born on 21 June 1962, thus 41 years of age at trial. She appeared large boned and of medium build. She looked very well presented and carefully groomed. She became visibly distressed and emotional during her counsel's opening remarks.
The motor vehicle accident on 14 May 1998 occurred at a particularly bad time for the plaintiff. She had very recently separated from a relationship. She had spent the previous five years unemployed but caring for her son. She said that immediately prior to the accident she had made enquiries about work. She said that prior to the accident she had no relevant physical or emotional symptoms.
On the date of the accident the plaintiff was driving her Golf Hatch when, as I have mentioned, it was struck from behind by a Mitsubishi Pajero 4‑wheel drive. Photographs of the plaintiff's car show significant damage to the rear. Apparently the car was worth $2,300. It was drivable after the accident but the plaintiff disposed of it.
Immediately post‑accident the plaintiff said that she suffered a feeling of cloudiness in her head and tightness in her neck. She said her head was turned to the left at the time of the accident. She said that there was sufficient force for her head to hit the head rest. This broke a comb which caused "excruciating pain" when the clip shattered and pierced her.
After the plaintiff drove home she found that her whole body ached and that "every single joint was sore". However the plaintiff said that she was able to do most things in the home but at a much reduced rate. She had her eight year old son to look after.
The plaintiff said that she did not seek medical treatment "hoping to get better by herself". However, in May 1998, she attended upon a chiropractor, Ross Gilmour. This came about because she read of chiropractic week and discovered she could attend for a review without fee. There was no treatment given initially.
As I have mentioned, the plaintiff first mentioned the accident to her general practitioner, Moira Summers, in about June but she did not make any claim at that stage. In a subsequent visit in either June or July she again attended upon Dr Summers and was prescribed anti‑inflammatories which she took for a short period but not long because she was not happy with that "sort of treatment".
The plaintiff decided to medicate herself and acquired analgesic medication called "Pain Stop" from the chemist without prescription. The plaintiff said that every joint in her body still ached including elbows, wrists, shoulders, neck. The neck was the greatest problem. She said the pain was quite "diverse" – probably meaning diffuse. She said she had pain shooting up into her head and sometimes down from her head. She said her spine gave her trouble all the way down and all over her back. Her hips…"they are sore and sometimes one or both". Sometimes it is a sciatic type of pain. She has stiffness in her right knee and ankle.
As I have mentioned the plaintiff asserts she had no symptoms pre‑accident. She worked as a social trainer which required amongst other things the lifting and carrying of disabled people. Although she had not worked for several years prior to the accident, she said she could not have done that sort of work afterwards.
The plaintiff returned to see Mr Gilmour, the chiropractor, in about November 1998 and she attended upon him on 13 occasions over a period of two months for physical manipulation. The plaintiff said that she was getting better during this period. However, she commenced to have difficulties in her dealings with the Insurance Commission of Western Australia which she alleged was tardy in reimbursing her for her expenses.
The Insurance Commission of Western Australia referred the plaintiff to Dr Rosenthal who produced an opinion about her situation which resulted in her ceasing to see Mr Gilmour.
Immediately the issue of her attendance upon Dr Rosenthal was raised by counsel, the plaintiff became visibly distressed and emotional. She said that Dr Rosenthal had said to her "I'll grant you an occasional back rub" but that was all. Dr Rosenthal denied saying that when he was called to give evidence. The plaintiff maintained that she could not see the point of "an occasional back rub" when she required regular chiropractic care.
It was quite clear the plaintiff had a major problem so far as her dealings with Dr Rosenthal and mere historical reference to it brought back to her a great deal of stress and anxiety. As I said she became emotional, and she began a great deal of audible sighing.
The plaintiff maintained that after she had seen Dr Rosenthal, she had no further treatment for a year or more. She said she put up with her symptoms. However, in due course she began to pursue Chinese remedies. She attended an acupuncture clinic. She commenced to take potions and herbs of various kinds and expended considerable moneys therefor. She maintained she had spent $2,200, although she did not produce any documentation. The plaintiff maintained that she had no real confidence when she embarked upon this course of treatment but she did find that she was getting better and that she did not have as much pain as she had had previously. She still had back pain but not as much.
During 2000 the plaintiff said that she sought Chinese treatments of various kinds on those occasions when she could afford it. She also attended for remedial massage which she said gave her great relief, especially with respect to feelings of numbness that she had felt in her hands. Massage costs some $60 per hour and she said that she spent of the order of $640 with "very very good results". She said that the masseur had worked over her whole body and focused on her neck, low back, legs and foot. As a result of that treatment she said her body was not "spasming" or "cramping" as much as it had previously.
During 2002 the plaintiff attended upon a variety of conventional medical practitioners, at the behest of her legal advisers. She had x‑rays, she had various scans, and in due course she was told, following an MRI scan, that she had degeneration in her cervical spine at C5/C6. She said this is the primary source of her pain now and that it is getting worse. It was clear during her description of these matters that the plaintiff has adopted some of the medical jargon and is quite convinced of the accuracy of the diagnosis. The plaintiff is convinced that she is deteriorating.
The plaintiff said that she has trouble sleeping almost every night, waking up with her hand or hands and foot or feet feeling numb. Especially on activity, she feels as if her neck is held in a vice that is being tightened. She feels tingling on her right shoulder. When she spends time at a computer and then stands up she says she can feel every vertebrae. She feels shooting pains into the scalp area of her head on standing up. She says that she wishes to have treatment to "halt the degeneration".
Following the pre‑trial conference the plaintiff said that she was referred to Dr Peter McCarthy, a psychiatrist. Apparently this was an independent referral in the sense of it being agreed between the parties that Peter McCarthy was a suitable psychiatrist upon whom the plaintiff could attend for review. The plaintiff said that her condition is worsening and that she would like to receive treatment. She said that the experience has affected her adversely. She agreed that she was anxious but she did not consider that she suffered from depression. She maintained that the difficulties in getting treatment, enough treatment, caused by the refusal of the Insurance Commission to provide funds, had placed enormous pressure upon her.
With respect to physical pursuits she said that she would like to jog but she cannot do so. She engages in Tai Chi occasionally but it does not assist. Swimming produces discomfort in her neck. Prolonged postural immobility causes her problems. Prior to the accident she said that she loved renovating and decorating her home. She used to mow the lawn regularly. She cannot do these activities now. When she drives a motor vehicle she feels anxiety.
With respect to the future the plaintiff said:
"Given the seriousness of the motor vehicle accident I'd like a multidisciplinary approach."
She would like myofascial trigger point injections and physical manipulation. She would like to receive herbal treatment for a lengthy period of time to "halt the degeneration". She said that chiropractic care is also helpful to get her spine back into normal shape.
However, she said that she would never contemplate surgery.
It was quite clear the plaintiff was very much in favour of and accepted the views of Dr Whiteside, a witness called on her behalf. She accepted and picked up on much of his terminology as revealed in his reports.
In cross‑examination the plaintiff stated that her motor vehicle was in very good condition with a good body and no rust. She rejected the suggestion the accident was minor saying it was "quite forceful". She agreed she made no complaint of injury at the time to the defendant. She denied she asked the defendant not to report the accident. She said she was quite happy not to report it because she did not want to get the defendant into trouble. She was grateful that the defendant paid her $1,500 without fuss for the damage to her motor vehicle.
The plaintiff said that when she went to see her local general practitioner after the accident she took her son. She said that she took her son to all of the doctors she saw and also to the herbal treatments. She said that he "begged" for more treatment.
The plaintiff agreed that between 1999 and 2001, being a period of just over three years, that she did not have any medical treatment.
The plaintiff was asked about other factors that had impacted upon her life since the accident and may have had an adverse effect upon her physical and mental health. She agreed that her former husband had threatened her life following his release from prison. She said that this made her a "little bit anxious". Lack of financial support during critical periods was also a relevant factor.
The plaintiff agreed that the last time she had worked prior to the accident was for the Disability Services Commission in February 1993, some five years prior to the accident. She agreed she had had no paid employment for the period of five years prior to the accident. She said that her son was born on 16 February 1991. She commenced to do some voluntary work when her son went to school in about 1997.
The plaintiff said she saw Dr Rosenthal in February 1999 and had no further chiropractic treatment thereafter. She saw Dr Gild on 3 April 1999 and the next occasion she received any medical treatment in a conventional sense was in March 2002 when she saw Dr Ker. She said she had been to a number of doctors in the interim but they had said to her to go back to her treating GP.
In 2002 the plaintiff said she travelled to New South Wales on holiday with a male companion and her son. She consulted a doctor in New South Wales because of symptoms that were aggravated by the travel. It was noticeable that in responding to counsel's questions the plaintiff regularly tossed her head about and revealed no obvious restrictions in movement. Nor did she make any complaint in court. When asked about symptoms she maintained that a lot of her joints ached and particularly her right leg. However she said that frequently she did not attend upon doctors because she did not want to make a fuss.
It was pointed out to her that since May 1998 she has taken very little in the way of medication apart from the analgesic "Pain Stop" available over the counter. She said that she would prefer to put up with her symptoms rather than to take medication daily.
With respect to disabilities the plaintiff said that she used to jog regularly before but she does not do so now. She goes walking occasionally. She has tried swimming but this produces symptoms. She said that she has been trying to maintain her health but that her difficulty is that "my neck is out of alignment with my spine". She cannot do breast stroke.
The plaintiff maintained that, but for the accident, she could have returned to work at the Disability Services Commission. She had a very good work record with them. In the course of this interchange the plaintiff occasionally shifted position in her chair but otherwise presented normally. It was only when counsel began to discuss the plaintiff's interaction with Dr Rosenthal that she became agitated.
When it was put to her that some of the specialists, for example Dr John Ker the rehabilitation expert, were of the view that chiropractic treatment was inappropriate for her she said she understood this but in spite of that advice she wished to undertake further chiropractic treatment. She said that she did not keep receipts relating to her herbal treatment because she was sure the Insurance Commission would never pay given their past dealings with her especially after she had seen their doctor being Dr Rosenthal. She conceded that she had attended most of the medical practitioners she did at the behest of her solicitors except for the orthopaedic surgeon, Dr Anderson, upon whom she attended of her own volition.
As the cross‑examination drew to a close the plaintiff said that her main worry is her degenerative condition in her cervical spine which troubled her given she was only a young woman. She said the pain was getting progressively worse in her cervical spine. She said that she is unable to work. She has on occasions done work for a friend of hers who is a tetraplegic (as a result of stroke not trauma). She does cooking and cleaning for her friend and also feeds her friend. She cleans cupboards and the like. She said that after doing this work, on the next day, her head is "'cloudy' because my neck is out of alignment". She said that the chiropractor had told her this. The plaintiff said the Chinese potions and herbs helped her because "they draw circulation to the damaged area". She opined that despite the effect of medical advice she would "do my own thing".
The plaintiff said that in recent years her symptoms have dramatically worsened and that this was because, as a chiropractor told her, she had a chipped bone in her neck.
The plaintiff gave her evidence in a clear fashion. She was unfazed during cross‑examination. She had a tendency to become emotional and distressed from time to time, sometimes without any obvious cause. Indeed she became distressed during those occasions she was listening to evidence at the back of the Court.
The plaintiff was very interested and involved in the conduct of the case. She regularly passed notes to her counsel and kept notes during the evidence. As I have mentioned she has adopted some of the jargon of health professionals she has seen in describing her situation.
Generally speaking the plaintiff was a good witness for her cause. She had a tendency, I think, to over dramatise. But there seems to me to be no doubt that she suffered symptoms as a result of the motor vehicle accident. She has had pain to various degrees, particularly in her cervical spine, since the accident. However she is not a person who likes to have involvement with members of the medical profession, to take medication and the like. She prefers to treat herself. I accept that she has given truthful evidence about that matter.
It is true that she has taken little in the way of medication nor has she sought conventional medical treatment. However she prefers to treat herself in alternative ways. That does not mean that she has no symptoms or, necessarily, that the symptoms are not significant.
On the other hand I think it must be said that if her symptoms had been very severe, she would be likely to have sought conventional medical treatment. I do think that although her symptoms have been persistent, it cannot be said that they have been incapacitating such as, for example, to confine her to bed. She has had ongoing pain since the accident but she has managed to put up with it, generally, and deal with it in her own way.

In support of her evidence about her history, work ethic and personality, the plaintiff called Kerry Ann Rickards who is also a carer for disabled persons and whom has known the plaintiff for seven or eight years. Her child attended the same pre‑primary school as the plaintiff's child. She and the plaintiff used to go to the beach together. They went jogging twice per week with their dogs. They had occasional lunches.
Mrs Rickards said the plaintiff was the sort of person who liked to help other people and also to help out at her child's school. She was a good mother who did the best for her son in spite of her personal difficulties and in particular her separation from her partner. Mrs Rickards said the plaintiff was not emotionally dysfunctional prior to the accident. She was a very strong woman, and a very physical person who mowed her own lawn and the like. After the accident she was much subdued. In cross‑examination Mrs Rickards said that she had moved away from the plaintiff just prior to the accident and has seen less of her thereafter.
Obviously Mrs Rickards was a personal friend of the plaintiff but she seemed to me to be quite a good witness. She also was a bit dramatic but she was direct. She is a practising Christian. She was quite convincing in what she had to say.

Medical evidence

I shall first deal with the evidence of the orthopaedic surgeons Dr Anderson and Dr Williams and the rehabilitation specialist Dr Ker as I think it is appropriate that they be grouped together given their areas of speciality.
Dr Anderson saw the plaintiff on two occasions being 14 February and 4 July 2003.
Dr Anderson was sometimes difficult to follow in his evidence because he mumbled. He was elderly but no doubt very experienced.
Dr Anderson said that he did not address the question of the causation of the plaintiff's symptoms but mainly focused on diagnosis. His view was that the symptoms were not severe and that conservative treatment was appropriate.
Dr Anderson was initially unconvinced that the plaintiff was significantly symptomatic when he first saw her in February but he changed his view when he saw her in July. On the last occasion he concluded that there was abnormality in the plaintiff's cervical spine at C5 and C6. He had not been previously convinced of this. He did concede the role that other factors might have played in the plaintiff's presentation such as her life style, personal problems and matters of that kind. However, his view was that given there was evidence of an abnormality at C5 and C6, that this was the most likely cause of the plaintiff's symptoms. He said the plaintiff did have a problem at that area but he still was of the view the symptoms were not severe.
As to causation he said that it was very difficult to assess that retrospectively given his lack of involvement with the plaintiff immediately after the accident.
It was put to him that the plaintiff exhibited merely moderate degeneration at C5/C6 and that this was consistent with a woman of her age. Dr Anderson did not seem to agree with that assertion. Dr Anderson saw no fracture in the cervical spine.
Dr Williams is another orthopaedic surgeon who was called to give evidence. Dr Williams is a witness upon whom the plaintiff heavily relied in her case. He was not significantly challenged by the defendant. I shall refer briefly to his reports.
Dr Desmond Williams first saw the plaintiff on 4 December 2002, more than four years after the accident. The plaintiff was referred by her solicitors. In his report dated 6 December 2002 being Exhibit C1 he described the plaintiff's current problems as:
"Locking and sharp pain felt in her neck on the right side. Further there is tingling in the right and left hands with generally the right hand worse than the left and these symptoms are generally worse with activity. …Currently her problems include waking at night and she has persisting neck ache and pain radiates into her scalp upwards and also into her upper limbs. …She is tender in the upper cervical spine in the mid line. Her shoulders showed full ranges of motion. There was no restriction in abduction. She was tender in the mid thoracic spine in the upper thoracic area."
Dr Williams then reviewed the plaintiff's x‑rays and considered materials provided to him and then concluded that:
"This patient has had a soft tissue injury to her cervical and thoraco lumbar spinal areas and there is evidence of some mid cervical degenerative change with segmental stiffness in the cervical spine."
He also said that there were, in addition to physical issues consequent to the accident:
"Ongoing psychological issues and the patient is tearful in discussions with regard to ongoing symptoms and problems functioning and her ongoing need for appropriate treatment."
Dr Williams reviewed the plaintiff on 30 January and again on 14 February 2003. In his report dated 25 February 2003 he refers to having arranged an MRI study of the plaintiff's cervical spine. He reported on his specific findings at some length on pages two and three of that report and then makes the following comment:
"This patient is aged 40 and there is an area of significant localised degenerative change and with the instability shown on the plain films, one would see these changes as directly related to involvement in the motor vehicle accident as it is localised pathology and the motor vehicle accident is the only injury of significance."
And later:
"As I review the findings of the MRI study, I would see the level of permanent residual disability in the cervical spine as a higher level than earlier assessed and I believe at best in 6‑12 months, if she has an appropriate physical therapy programme, the level of disability is 10 per cent, expressed as a permanent residual disability reflecting disability of the whole spine and at its worst, if she does not have benefit from an appropriate programme, with her underlying degenerative change and her instability in the mid cervical area with the severe changes confirmed in the MRI study I would see a disability up to 15 per cent, expressed as percentage disability of the whole functional spine." (sic)
And:
"I believe it must be recognised she has genuine underlying pathology and I see the motor vehicle accident as the only factor contributing to her localised degenerative change and progressive changes in the mid cervical area."
Dr Williams then addressed specific questions raised in the correspondence he had received from the plaintiff's solicitors. There is no doubt his view is that the plaintiff has progressive degenerative change and instability and that this has been caused by the injury the subject of this action which he described as a moderately severe injury. Periods of incapacity have resulted. Dr Williams also expresses the view that the plaintiff will not make a full recovery but that with treatment her symptoms can be reduced. He felt that the plaintiff was capable of undertaking a range of occupations but that she will "be required to avoid particular stresses on her neck with prolonged periods of awkward cervical postures." In discussing the fact that the plaintiff has developed post traumatic degenerative change in the mid cervical area, and that this will progress, Dr Williams mentioned the possibility that at some future time the plaintiff may undergo surgery but although he felt the plaintiff was not suitable as a candidate at this time.
In his report of 30 June 2003 Dr Williams mentions he reviewed the plaintiff on 27 June. Much of what he says in the report is repetitive of his earlier report. Again he sets out the findings from the MRI study of February 2003 which reveals significant pathology. He says:
"We are therefore seeing a cervical spine that is far from normal with disturbance of the postural alignment and instability and degenerative change and progressive degenerative change since her accident."
Further, he said:
"Her problems were resultant from a significant impact and she has had a programme of management that has not been well focused and there are now significant psychological issues ongoing with anxiety, depression and tearfulness."
Dr Williams was a strong witness for the plaintiff's case. His view was that the plaintiff had not had a well managed programme. He felt that she would be greatly assisted if she was supported with proper treatment and rehabilitation. Dr Williams was not seriously challenged by counsel for the defendant in cross‑examination. In my view his evidence can be accepted. There was no challenge made to his qualifications.
The plaintiff also adduced evidence from a consultant physician in rehabilitation named John Ker, a witness well known to this Court. Dr Ker produced two reports dated 6 March 2002 and 4 June 2003. Dr Ker saw the plaintiff on two occasions being 5 March 2002 and 28 May 2003.
It is obvious, on reading the reports, that Dr Ker's opinions are closely aligned with those of Dr Williams. His view was, although he had not seen the plaintiff immediately after the motor vehicle accident, that she had suffered a musculo‑ligamentous strain to her right sided neck structures in the accident, together with some strain injury of her lower lumbar spine. Considering the passage of time over which symptoms had been experienced by her, he felt that she would be likely to have ongoing restriction. Dr Ker agreed with Dr Williams that there was evidence of degenerative pathology in the plaintiff's disc space at C5/6. Dr Ker suspected that this pre‑dated the accident.
Dr Ker was concerned with the degree of the plaintiff's distress during his interaction with her. When he saw her a year later, on 28 May 2003, Dr Ker found more marked degenerative narrowing at C5/6 with evidence of retrolisthesis of C5 on C6. He said in his second report:
"Subtle degenerative change is also seen at the C4/5 level. CT scans confirmed this two level disease with, at C4/5, a tiny left sided postero lateral disc protrusion adjacent to the exiting left C5 nerve root. At C5/6 there is clear evidence of a broad based posterior osteophytic disc ridge."
Dr Ker sums it up thus:
Clearly, it would appear that there has been advance particularly in the discogenic changes at the C5/6 level when these are compared to this lady's first radiological study – a limited chiropractic radiograph of 30 November 1998. In the absence of any evidence of degenerative pathology at other sites in the cervical spine, I think it is reasonable to postulate that the advance in this woman's cervical degenerative disease can be directly attributed to the motor vehicle accident."
Later in his report Dr Ker re‑states that in his view it is unlikely the plaintiff will further improve in the cervical or thoracic spine. He felt that, on the contrary, due to the development of degenerative change in the cervical region, she will continue to have neck pain and stiffness. His view was that any employment open to the plaintiff would necessarily be of a sedentary nature because "manual materials tasks or work that involves regular bending and lifting are quite unsuitable".
In short, in his reports, Dr Ker paints a gloomy picture of the plaintiff's future. She is likely to have ongoing problems.
In his evidence Dr Ker, when pressed, described the injury as being of moderate severity. In his view manipulative treatment was inappropriate, especially when it was not suggested there was significant loss of function, but just symptoms of pain and discomfort. He tended to support the plaintiff re‑training as a social worker, assuming a basically sedentary occupational requirements, but he felt the plaintiff's symptoms may deteriorate. He was not able to predict.
In cross‑examination Dr Ker was pressed by counsel with the assertion that because of the plaintiff's medical history post accident, and her lack of attendance upon conventional medicine, that she was not likely to have had significant symptoms. Counsel put it in terms of, given the plaintiff had not seen a doctor for "a thousand days", did this not suggest the claim is a most modest one?
Dr Ker was unfazed by this line of cross‑examination and was quite convinced that the plaintiff's presenting difficulties, and current condition on x‑ray, was accident caused.
For what it is worth Dr Ker's view was that the plaintiff did not seem to be exaggerating her symptoms. Of course that is a decision for the Court.
In short Dr Ker's view was that the plaintiff had significant symptoms in the neck and there was pathological evidence for this.
Thus it can be seen that both Dr Williams and Dr Ker were strongly supportive of the plaintiff's case.
Dr John Rosenthal, being the only witness of a similar discipline to Drs Williams and Ker, called on behalf of the defendant, gave evidence and apart from suggesting, perhaps half heartedly, that the plaintiff's symptoms were exaggerated, he seemed also to agree that there was pathology for the plaintiff's neck symptoms. Dr Rosenthal was a specialist in rehabilitation medicine who had several qualifications including some obtained from the United States of America.
The plaintiff was referred to Dr Rosenthal by the Insurance Commission in February 1999. The plaintiff seems to have had an excessive personal reaction to her consultation with Dr Rosenthal. She was obviously very hostile towards him.
In his first report dated, I think, 4 February 1999, Dr Rosenthal summed up his views as follows:
"Her main injury has been a soft tissue cervical strain which continues to produce a mild degree of cervical dysfunction which is supported by objective clinical signs. I think it is most unlikely that she has sustained any bony injury…
This lady is symptomatic but not incapacitated, she could return to the work force should she choose to do so. …
Subject to her radiology being normal I would not anticipate there being any permanent disability."
As is now apparent of course, the plaintiff's radiology was far from normal.
In his second report dated 14 March 2003, after dealing with logistic difficulties and personal difficulties arising from the consultation, which do not need specific reference in my view, Dr Rosenthal reported on having seen the MRI scan of the plaintiff's cervical spine. Dr Rosenthal made comment about the plaintiff's spine, radiologically, and then recounted his impressions of the consultation winding up with the observation:
"For a substantial part of the consultation, Ms Durmanich was sobbing loudly in a rather non‑convincing theatrical‑histrionic manner. … At the conclusion of the consultation, she left with her friends. Shortly afterwards she returned and was standing in my waiting room writing down the details of my diplomas that are exhibited. This was tolerated for a reasonable period and I then asked her to leave my office.
Ms Durmanich exhibits bizarre and abnormal personality traits. Her beliefs and behaviour are in my opinion irrational. I can only suggest she be assessed by psychiatrists. You will appreciate my reluctance to undertake a physical examination in the circumstances of threat and irrational behaviour."
In his penultimate paragraph Dr Rosenthal states as follows:
"Now that I have had the opportunity to see her x‑rays and MR scans, I do think it is probable that the motor vehicle accident has aggravated pre‑existing degenerative change at C5/6 possibly causing slight segmental instability. … The disability equation applied by Mr Williams would seem reasonable in the circumstances."
It can be seen therefore that, in the broad, Dr Rosenthal agrees with Dr Williams and Dr Ker. It is a question of degree perhaps, but there is no dispute as to the fundamental findings it would seem.
Apart from the orthopaedic surgeons and Dr Ker, to whose evidence I have already referred, the plaintiff also adduced evidence from chiropractor, Mr Ross Gilmour.
I do not propose to refer to Mr Gilmour's report in any detail. Suffice it to say that in one of those reports, Exhibit C14A, being the report of 15 July 2003, he makes reference to the plaintiff having a "very small bony evulsion" … "overlying the right lateral uncinate process of superiorly of C6" (sic). In other words a small bony fracture. Apart from that Mr Gilmour's views do not appear to differ in their conclusions from those of the doctors whose evidence I have already reviewed. In short Mr Gilmour's evidence added little to the plaintiff's case.
Following the pre‑trial conference, apparently as a result of some consultation between the parties, the plaintiff was referred to a mutually acceptable psychiatrist named Dr Peter McCarthy. He saw the plaintiff on 23 April and produced a report dated 16 May 2003.
Dr McCarthy felt the plaintiff would meet the criteria for "mixed anxiety and depressive disorder" as laid down by the manual entitled "ICD No 10 F41.2". He said in his report that this diagnostic category was used when symptoms of both anxiety and depression are present but neither set of symptoms considered separately, are sufficiently severe to justify a diagnosis.
Dr McCarthy's view was that the main requirement for psychiatric assistance and counselling for the plaintiff related to her personal life and not the accident.
Following receipt of that report it appears the plaintiff then was referred for a second opinion to another psychiatrist, Dr Boon Loke, whose report was dated 28 June 2003, and whose report is the subject of dispute.
Dr Loke diagnosed the plaintiff as having an "adjustment disorder with anxiety" which was a diagnosis he reached using the DSN4 terminology, being a different reference to that of Dr McCarthy.
It appears to me that the diagnoses of both psychiatrists are not too different. Dr Loke felt the plaintiff could be assisted by some anti‑depressant medication. But in short I do not think his evidence advanced the plaintiff's case.
There were a number of other single reports from minor medical players in the plaintiff's case and I do not think they need any more specific mention.
Suffice it to say, as will be apparent, in my view the plaintiff has established her primary case of having suffered spinal injury as a result of the motor vehicle accident and she is obviously entitled to damages. It is clear that she has had a miserable time, from time to time, over the last five years. She has not sought much in the way of medical attention, over the years, because she does not like doctors and does not like taking medication. She has however sought relief on many occasions with what might be described as alternative remedies. These include Chinese herbal medicines, manipulation and chiropractic assistance, and the like.
The defendant appears to say that the plaintiff's case suffers in its quality because of the plaintiff's failure to seek conventional medical assistance and treatment over the years. Having seen the plaintiff give evidence and having heard what she has had to say, I have difficulty in accepting this proposition.
On the other hand, of course, it would seem that if she was suffering symptoms that were of severe continuing pain, rather than of pain which is less than severe and which is periodic, then she would have been likely to seek conventional medical treatment.
I have no doubt that she has suffered symptoms and has suffered pain from time to time over the years. I have no doubt that those symptoms have been getting worse as her degenerative condition has progressed. How bad it has been on occasions, and how bad it has become, is difficult to gauge given the lack of treating medical evidence during the period. She is clearly in a fragile emotional state. This appears in part due to her personal difficulties but also must have been exacerbated by her chronic symptoms which are getting worse.
In my view a fair assessment of damages for the plaintiff's pain and suffering and loss of enjoyment of life would be an assessment of this case as falling in the range of 15 per cent of a most extreme case which is 15 per cent of $249,000 = $37,350. Pursuant to s 3C(5) of the Motor Vehicle (Third Party Insurance) Amendment Act 1994 I am only able to award that sum less $12,500 which gives $24,850.

Economic loss

The plaintiff's claim for past loss of earnings is put on the following basis, by reference to par 11.1 of the Amended Statement of Claim;
"1.prior to the accident the plaintiff was employed as a social trainer with the Disabilities Service Commission from 7 November 1983 to 24 January 1991 working 38 hours per week on average and earning on average $428.60 net per week.
2.As the result of the birth of her son the plaintiff worked part‑time between approximately March 1992 and approximately February 1993 for 19 hours per week and earned $222.50 net per week.
3.At or about the time of the motor vehicle accident the plaintiff had decided to return to full time work as an education assistant with the Education Support Service at Mt Hawthorn Primary School and had made enquiries of the Principal of the school or alternatively she had decided to return to her previous work as a social trainer.
4.As a result of the plaintiff's physical incapacity caused by the accident from June 1999 she enrolled in a three year social science degree at Edith Cowan University studying both full and part‑time. She had previously completed a bridging course to qualify to commence her degree in the first semester of 1999.
5.But for the accident the plaintiff had the capacity to work 40 hours per week in a wide range of occupations. As a result of the accident caused injuries the plaintiff's earning capacity has been severely compromised in that she is unable to return to her previous work as a full time social trainer handling adults with disabilities and her future capacity is at best in part‑time light sedentary work at the completion of her degree.
6.Had it not been for the accident the plaintiff would have returned to full time work from about not later than May 1998 and would have been earning not less than $428.60 net per week."
As I have mentioned the evidence revealed that for a period of about five years prior to the accident the plaintiff had not been in the work force. She was involved in a relationship and she was rearing her child.
The plaintiff gave evidence that shortly prior to the accident she had made enquiries at the Mt Hawthorn Primary School with a view to employment. Few details were available about this and this assertion was not supported by any other evidence. Particularly, the person to whom the plaintiff made this alleged approach was not called as a witness. Be that as it may, upon her child reaching school age, and given her good work history up until his birth, I am prepared to accept that the plaintiff would indeed have sought work at or about the time he commenced school or shortly thereafter. I do not think the period of five years pre‑accident during which she did not work is necessarily an adverse factor to take into account in the equation. Her maternity is a reasonable explanation for that.
The plaintiff asserts that following the accident her work capacity has been significantly compromised. The medical evidence seems to me to support this assertion. I refer particularly to the evidence of Dr John Ker, the consultant physician rehabilitation medicine. Dr Desmond Williams is also supportive of the proposition and I think it is reasonable to accept that the plaintiff is no longer physically able to work as a social trainer. Her decision since the accident to commence study with a view to obtaining a degree that would enable her to pursue an occupation of a sedentary kind in the form of social work seems to me to be a decision consistent with her allegations of incapacity. The plaintiff is not saying she is totally disabled. She is simply saying that she has no longer the capacity to work in the area of her pre‑accident experience.
I do not think it is unreasonable for the plaintiff to take this approach and it is appropriate that she receives some support during the necessary re‑training. I reiterate that, on the medical evidence, the accident is the cause of her predicament.
Counsel for the plaintiff in his submissions prepared a schedule of economic loss that contains various arithmetic calculations assuming an employment commencement date on the day following the accident and assuming continued employment thereafter. Indeed the amount claimed, as at 22 August 2003 being the date of delivery of this judgment, is for the sum of $117,496.40 together with interest at 4 per cent for 5.25 years amounting to $24,674.24 giving a total claim for past economic loss at $142,170.64. The calculation is based upon the plaintiff's net weekly earnings as a social trainer in 1991 being $428.60 multiplied by 274.14 weeks being the passage of time between 15 May 1998 (the day after the accident) and the date of judgment.
The calculation for past loss of superannuation entitlements is similar in style. It claims a total of $11,918.32 inclusive of interest.
The plaintiff's calculation for future loss of earning capacity basically seeks financial support for the period that will be required for her to complete her social science degree which is alleged to be a period of three years. During her studies it is conceded that the plaintiff would be able to work for about eight hours per week and that therefore her net loss per week during that period would be some $392.43 being the income currently receivable by a social trainer of $480.43 net per week less $88 for retained capacity part‑time giving $392.43.
This sum is then calculated for three years with a multiplier 143.6 which gives $56,352.95.
In addition the plaintiff seeks a global sum "of not less than $50,000 to take into account her permanent diminution in earning capacity as a result of the accident caused injuries for the balance of her working life to age 65."
Somewhat curiously this allegedly results in a total claim for future loss of $98,910.16 which seems to me likely to be a typographical error, and the claim in fact is, as put, $116,352.95.
There is also a claim for future loss of superannuation benefits based on similar assumption.
In his final submissions at trial Mr Cullity seemed to acknowledge the inappropriateness of formulating a claim based upon arithmetic calculations given the fact that the plaintiff had not worked for five years prior to the accident and given the necessary contingencies that would be required to be brought into account in all the circumstances. Commencing with an observation about the claim for $50,000 to account for "permanent diminution in earning capacity" Mr Cullity said at transcript 299:
"Obviously the $50,000 is a pure pluck out of the sky. There is no basis for that. It may be that at the end of the day that a reasonable approach for your Honour to make is not to embark upon any of these fancy calculations but simply to, if not pluck a figure out of the sky, at least consider a global award for both past and future economic loss given that she has been out of the work force for some time and that the evidence as to her re‑emergence into the work force is somewhat skimpy, and that's a concession that I would make.
On the other hand, she had lost a partner who had been giving her some support just prior to the motor vehicle accident. So I suppose the urgency to find some form of support and financial income was far more urgent as a result of that issue…"
I think this is a case which does require consideration of what Mr Cullity calls a global award, rather than a pretence at calculation.
Given the fact that the plaintiff had not worked for five years prior to the accident I do think it unlikely she would have immediately returned to full time work as a social trainer at the time of the accident, and have worked full time up to the trial. According to her evidence the work is arduous and physically demanding. It involves caring for adult people who are intellectually and physically handicapped. The plaintiff would have been unlikely to cope with the physical demands of the job on a full time basis until she acquired some fitness for the job. Of course having been out of it for five years, this would be easier said than done.
I also think that, given the fact that the plaintiff was a sole parent following the accident, she would be unlikely to have committed to work that prevented her from being at home when her year 1 primary school child returned home from school. It was clear on the evidence that she was a loving and caring mother and I think she would have placed significant importance on the child's quality of life, perhaps more so than upon the need to earn a full time wage which would prevent her from being home when he returned from school.
Nevertheless, I think the plaintiff would have obtained employment and worked part‑time, at least for the first two or three years until her child got older. It is very difficult to be precise about these matters but I think an award for past economic loss in the region of half of what she would have earned if she had worked full time as a social trainer would be reasonable and therefore, in round figures, I would award her $60,000.
Interest for 5.25 years at 4 per cent = $12,600 giving a total for past economic loss inclusive of interest at $72,600.
Similarly I would award her about half of the claim for past loss of superannuation entitlements and accordingly award her the sum of $6,000 inclusive of interest.

Future loss of earning capacity

As I have mentioned the plaintiff used to work as a social trainer which is physically demanding work. By reason of the degenerative condition in her cervical spine, she is not able to work in that capacity in the future. She has thus suffered a diminution in her earning capacity.
On the other hand however she seeks to re‑train as a social worker and seeks support for the obtaining of a social science degree. That is an occupation that might be described as "higher up the food chain" and one which can be pursued in a basically sedentary fashion. She apparently does have capacity to pursue employment in that regard.
Consequently it seems to me that the loss of her ability to obtain employment that is physically demanding is not likely, really, to be productive of economic loss for her in the future. I think that counsel's global sum claimed of $50,000, "plucked out of the sky" is an excessive estimate in the circumstances.
The plaintiff's claim for support for a period of three years to re‑train, is estimated to be some $56,000. Of course as counsel for the defendant pointed out, and as Mr Cullity conceded was a valid point, it may be that the plaintiff will fall into more remunerative work and not suffer any economic loss at all.
Doing the best that I can and, again, accepting Mr Cullity's invitation I think that a fair award for the plaintiff to compensate her for future economic loss including future loss of superannuation entitlements would be the sum of $60,000. Another factor that I take into account in reaching this view is that, as a student, and with treatment, I think the plaintiff should be able to work for more than eight hours per week given that she will be relieved of maternal responsibilities and given her improvement following treatment.

Future medical treatment

The plaintiff has prepared and provided a schedule for future medical treatment seeking just over $20,000 as follows:
"Specialist
1 visit to an orthopaedic surgeon once per annum for 30 years at $150 per visit or $2.88 per week x 739.6 = $2,130.
Physiotherapy or chiropractic treatment
10 weeks of intensive treatment – three visits per week at $39.50 per visit = 30 visits x $39.50 = $1,185.
10 weeks at one visit per week = $39.50 x 10 = $395.
Thereafter; one visit per month for 30 years = $39.50 x 12 = $474 per annum or $9.11 per week x 739.6 = $6,737.75.
Procaine injection therapy one course at $2,300.
Chinese herbalist
2 years at $76 per week x 98.5 = $7,486.
Sub total: $20,233.75."
In my view the claim for attendance upon the specialist and for the physiotherapy and chiropractic treatment is justified based upon the medical evidence that was adduced in the case.
However the Procaine injection therapy course recommended by Dr Whiteside is not something that I would be prepared to award. Dr Whiteside's views were much in contest in this case and his treatments are not accepted by all members of the medical profession. I prefer the opinions of the orthopaedic surgeons as to future treatment and would not allow this claim.
In relation to the claim for attendances upon a Chinese herbalist the plaintiff gave evidence that she had obtained relief from such attendances in the past. Her claim was unsupported by any documentation nor by any purveyor of such medicines nor any witness whatsoever. In the circumstances its very difficult for me to make allowance in the sum claimed. I decline to make an allowance for that amount.
In the result therefore I award the sum of $10,447.75 for future medical treatment.

Special damages

The plaintiff submitted a schedule of special damages seeking the sum of $6,173.75 excluding what was described as expired HIC being a sum of $375.25.
I was told by counsel that the schedule is agreed as to quantum but not as to liability. In other words it is agreed that the alleged amounts paid or claimed by various entities are accurate and that the plaintiff has either paid them or is liable to pay them.
I was advised at T242 by Mr Cullity that:
"Special damages had been agreed and we are going to discuss those during closing addresses."
Mr Cullity in fact made the briefest reference to special damages in his closing remarks at T289. He didn't purport to speak to them in any length at all. Mr Sierakowski at T280 however did deal with the issues relating to special damages and he informed the Court that whilst it was agreed the expenses were incurred, liability was in dispute. He conceded that the amounts claimed as being repayable to the HIC were due and payable and I would award $375.25 in accordance with the schedule.
In paras 2‑7 inclusive of the schedule, a claim is made for outstanding accounts in the form of consultations and also x‑ray expenses in the total sum of $2,854.25. I would allow this claim less the consultation fee for Dr John Whiteside in the amount of $131.25. I shall shortly explain my reasons for doing so. I therefore award the plaintiff $2,723.00 for outstanding consultation accounts.
Paragraphs 8 and 9 relate to medical treatment accounts paid by the plaintiff's solicitors for Peter Silbert EMG Studies in the sum of $350 which I would allow.
Again, for reasons I will shortly explain, I would not allow the consultation fee with Mr Michael Lee in the sum of $114.
In respect of pars 10, 11 and 12 of the schedule being accounts paid by the plaintiff I would allow the claim for consultations with John Donat who I think was a masseur in the sum of $640. As to the claim for Bejing Acupuncture and Herbal Clinic in the sum of $2,200 I note that this appears to be an estimate made by the plaintiff. It is unsupported by any other evidence whatsoever. I feel difficulty in allowing it therefore but I do accept the plaintiff's evidence that she has sought and obtained relief from Chinese herbal remedies. This was so in pursuit of her preference for alternative treatment. I would be prepared to allow her $1,200 therefor. I allow the pharmacy claim for $15.50.
That gives a total of special damages in the sum of $5,303.75.

Dispute on admissibility of medical evidence from Mr Michael Lee neurosurgeon, Dr Boon Loke psychiatrist and Dr John Whiteside GP

Counsel for the defendant objected to the reception of evidence from these three medical witnesses, an objection which was foreshadowed at the beginning of the trial (T3) and then dealt with during the trial at T242. No adjournment was sought.
The evidence was in fact received upon the basis that its admissibility would be decided later.
Counsel for the defendant's submission relied upon the assertion that there had been a failure to comply with the Practice Directions of the District Court and of the Rules of the Supreme Court.
The relevant chronology in this matter is that there were some six or so pre‑trial conferences all of which obviously failed to resolve the matter. The matter had been entered for trial in November 2000. The last pre‑trial conference was on 19 March 2003 and following that conference, pursuant to O 5, r 8 of the consolidated rules and practice directions of the District Court, the plaintiff was obliged to file and serve, inter alia, an index of the reports of any expert witnesses that the plaintiff intends to call at trial (O 5, r 8(1)(a)(iii)). That event should have occurred by 2 April 2003. In fact the index was filed eight days late on 10 April 2003.
The names of none of the witnesses, Mr Michael Lee, Dr Boon Loke, or Dr John Whiteside, were on the index. Nor was the plaintiff's attendance upon them referred to in the chronology that was also filed by the plaintiff at that time.
There was a listing conference on 2 May 2003.
As Mr Cullity conceded at T242:
"…there have been breaches of O 5, r 8 in relation to the fact that the three relevant pieces of evidence namely Dr Whiteside, Dr Lee and Dr Boon Loke are not included on the index of the reports of expert witnesses as required…"
It is clear that the pre‑trial conference procedures were conducted in ignorance of the reports of any of the named witnesses. Mr Cullity said that Mr Michael Lee's evidence was required because of an observation made by the orthopaedic surgeon Dr Williams in his report of 25 February 2003. It should be noted in passing that the report of Mr Michael Lee is the 20 June 2003, the report of Dr Boon Loke is 28 June 2003, and the reports of Dr Whiteside are dated 12 April and 9 July 2003. As can be seen, this trial commenced on 21 July 2003.
Obviously the material arrived well after all pre‑trial procedures had been completed and prior to trial and, relevantly, at a time when it was too late for the defendant to respond.
As to the need for another psychiatrist's report from Dr Loke, Mr Cullity said that it was agreed after the pre‑trial conference that a psychiatric assessment was to be obtained from a mutually agreed practitioner. He submitted that it was implied that the plaintiff should have liberty to obtain a second opinion. In the result of course the second opinion was not significantly different in my view.
The plaintiff's attendance upon Dr Whiteside was, again, the result of a decision apparently made by the instructing solicitors.
In short Mr Cullity submitted that account should be taken of the material in spite of the violence done to the rules.
Mr Sierakowski submitted that his objection was "all about enforcement of the rules". As he put it:
"My objection basically is that the rules haven't been complied with and it’s a question for the Court at the end of the day to say 'Well do these rules have any substance and teeth or is it going to be the case that the plaintiff can call what evidence he or she chooses at any time regardless of the rules of the Court'". (T246)
Under O 36A of the Supreme Court Rules, by par 2, it is stated:
"Unless the Court otherwise it directs, a party must serve on the other parties in accordance with this rule copies of all medical reports the substance of which that party intends to rely on at the trial or hearing."
And by sub rule 2 par 3:
"Copies of the medical reports mentioned in par 2 shall be served not later than the following times; …
(b)where the report comes into existence after the action is entered for trial, as soon as practicable thereafter."
This matter was entered for trial as I have indicated in November 2000. The final listing conference prior to the commencement of the trial was 2 May 2003. Clearly the subject reports having come into existence a long time after the matter was entered for trial were not served, relevantly, as soon as practicable thereafter. Case management principles and the pre‑trial conference system in this Court are all designed inter alia to maximise the chances of reasonable compromise to avoid matters going to trial and to promote a circumstance where the trial is conducted on the same evidential basis as the pre‑trial conference. Order 5, r 8 is intended to have meaning in the process. In this case the plaintiff has attended upon two if not three further medical practitioners well after the last of six pre‑trial conferences.

Quite frankly I do not think it was necessary for any of these three witnesses to be called by the plaintiff. It seems to me that the medical witnesses are all expressing opinions about the single medical question namely whether the plaintiff received an injury to her spine and if so what the physical consequences of that have been and are likely to be in the future. Order 36A, r 5 empowers the Court to limit the number of medical witnesses.
I do not think the plaintiff has complied with O 36A, r 2(3). The subject reports, although provided to the defendant, were not provided as soon as practicable after the matter was entered for trial. Sub rule 4 or O 36A says:
"Except with leave of the Court, or pursuant to a direction of the Court, or where all other parties agree, no witness may give medical evidence at the trial or hearing of a cause or matter unless the substance of that evidence has been disclosed in writing to all other parties within the time limited by direction under par 4 or, when no such direction has been given, a reasonable time before trial."
No direction was given under par 4.
In my view the substance of the evidence of the three subject witnesses was not given, relevantly, a reasonable time before trial. I do not take any account of the evidence that I heard from the three subject witnesses nor do I allow any of the costs of their involvement. And I do so primarily because I agree with counsel for the defendant that it is high time that the Practice Directions of this Court in this jurisdiction be taken seriously.

Assessment

Non‑pecuniary loss  $ 24,850.00
Past economic loss including superannuation
and interest  $ 78,600.00
Future loss of earning capacity including loss
of superannuation  $ 60,000.00
Future medical treatment  $ 10,447.75
Special damages   $ 5,303.75
$179,201.50