Fane v Smart - [2001] WADC 118

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: FANE -v- SMART [2001] WADC 118

CORAM: COMMISSIONER GREAVES

HEARD: 17-19 APRIL 2001

DELIVERED : 22 MAY 2001

FILE NO/S: CIV 1931 of 1999

BETWEEN: BERNADETTE FANE
Plaintiff
AND
RACHEL ANNE SMART
Defendant

Catchwords:

Damages - Assessment - Motor vehicle accident - No evidence of loss of past or future earning capacity - Damages for pain and suffering assessed at 4 per cent of a most extreme case - No award

Legislation:

Nil

Result:

Claim dismissed

Representation:

Counsel:

Plaintiff: Mr K J Bradford
Defendant: Mr J P T Olivier

Solicitors:

Plaintiff: Bradford & Co
Defendant: Talbot & Olivier

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

Nil

Case(s) also cited:

Nil

COMMISSIONER GREAVES: The plaintiff in this case is a qualified physiotherapist. Her evidence is that she obtained a Bachelor of Applied Science in Physiotherapy in 1980. In that capacity, she worked at the Sir Charles Gairdner Hospital from 1983 to 1986. She thereafter returned to university where she obtained a graduate diploma in manipulative therapy. She obtained employment as a manipulative therapist until she took maternity leave in July 1989. While on leave, she completed postgraduate studies in physiotherapy business planning and worked part‑time at the Kalamunda Physiotherapy Centre. Subsequently, the plaintiff was employed as a physiotherapist full‑time at that centre. Towards the end of 1994, the plaintiff applied for and obtained the position of physiotherapy coordinator at the Kalgoorlie Regional Hospital.
On 26 July 1995, the plaintiff was travelling south along Boulder Road when the defendant turned in front of her and struck the right front of her vehicle. She gave evidence that by the time she arrived home she was aware her neck was sore and she had developed a very bad headache. She said the neck pain was fairly low in the base of her neck spreading into the left shoulder. She said she returned to work after two days. She found after working at her computer for 20 minutes, her neck symptoms required her to take a break. She found she could not do a full morning of clinical work. She found she was developing paraesthesia and pins and needles in her left arm, which on one occasion stopped her continuing treatment to a patient.
The plaintiff herself obtained physiotherapy treatment which relieved her symptoms. She gave evidence that her neck and shoulder pain and arm paraesthesia have continued until today. She described the pain as a feeling of heaviness in her arm which usually comes on after her neck and shoulder pain. The heaviness is followed by paraesthesia which she described as pins and needles down to her fingertips. The symptoms disappeared while she was on holiday. In August of 1996, the plaintiff gave birth to her second child. She said that during her maternity leave, activities such as carrying her baby or pushing the pram aggravated her symptoms. She continued:
"Because of the ongoing symptoms that I had, I was actually really struggling at home to even look after her, so when I was due to go back to work I negotiated with the hospital to go back to work on a limited basis."
The plaintiff worked 25 hours per week for 12 months from the middle of 1997. Thereafter she returned to work full‑time in her position as physiotherapy coordinator. She modified her workload in order to spread her clinical duties and thereby avoid aggravation of her symptoms. She continued as physiotherapy coordinator at the Kalgoorlie Regional Hospital until September 2000 when she resigned.
The plaintiff said that during the last two years in that position, owing to staff shortages, she was forced to do more clinical work. She said her symptoms started to get worse and she was feeling chronically tired and exhausted. It was found she had developed an iron deficiency which was treated and has resolved. The plaintiff and her husband then decided to return to Perth. She said that in December 2000 she found that she was feeling better for having not worked for three months. She applied for the position of physiotherapy coordinator at Bentley Hospital at a similar level to her previous position at the Kalgoorlie Regional Hospital.
By Exhibit 1, the plaintiff stated that to the best of her knowledge and belief she was of sound health and had no disability or injury likely to affect her work performance or which could recur or be aggravated by the type of work for which she was applying. The plaintiff now says these statements were false. After interview, the plaintiff was offered the position at Bentley Hospital. She said she was very concerned of the nature of the clinical work that was involved, including the heavy geriatric and psycho‑geriatric work. She said she feared dropping a patient if her arm symptoms came on. Instead, the plaintiff again obtained part‑time work at the Kalamunda Physiotherapy Centre where she now undertakes six to eight hours clinical work per week. She sees three to four patients a day, more than which aggravate her arm symptoms.
The plaintiff gave evidence there are no positions in the public sector which do not include clinical work.
In cross‑examination, the plaintiff accepted that she left Kalgoorlie Regional Hospital of her own volition more than five years after the accident. She said she made mention, when the hospital was short staffed, she was having some difficulty doing the clinical work. She said she told her supervisor Dr Donnelly she was struggling, especially when the hospital was short staffed. She said she was concerned about the type of clinical work she might be required to carry out at the Bentley Hospital. She said she was concerned that she might be required to carry out a full day of clinical work each week. She asked Dr Donnelly to be a referee in her application for the position at Bentley Hospital. In cross‑examination she said she expressed no concern to Dr Donnelly about her capacity to undertake the position because "… my understanding was that it wasn't that I couldn't do the work permanently …"
Further in cross‑examination, the plaintiff said that, in 1997, when she asked Dr Donnelly to approve her reduced hours, she told Dr Donnelly she did not feel that she could cope with full‑time work at that stage because her arm symptoms were still playing up. She agreed the main reason she resigned in September 2000 was her then iron deficiency. The plaintiff agreed that the job she was offered at the Bentley Hospital attracted the same level of remuneration as her position at the Kalgoorlie Regional Hospital.
Doctor Anne Donnelly was the Medical Director of the Kalgoorlie Regional Hospital from December 1994. She gave evidence that the plaintiff was directly responsible to her to manage the physiotherapy department which included a clinical component, maybe a quarter or a third of the plaintiff's duties. Dr Donnelly gave evidence that she had very little recollection of the fact that the plaintiff had a motor vehicle accident. From an examination of the personnel file, she acknowledged she was aware of the accident. She recalled the plaintiff coming back to work part‑time in 1997. She said she did not recall the plaintiff's telling her that the plaintiff could work only 25 hours per week as a result of her accident‑caused injuries. She said she believed it was related to the plaintiff's family responsibilities. She said the plaintiff said nothing about the motor vehicle accident when she resigned in September 2000. Doctor Donnelly said the plaintiff ran her department well and she was happy with her performance.
In cross‑examination, Dr Donnelly agreed it was not her practice to inquire into the health of staff members including the plaintiff. She observed nothing in the plaintiff's performance which appeared to impact on her ability to undertake her duties. She did not know the plaintiff well personally and only in the working relationship. The plaintiff called Ms Ann Kirkman who has worked at Kalgoorlie Regional Hospital since April 1995 as a physiotherapy assistant. She saw the plaintiff on a daily basis. She said that in the last two years of the plaintiff's employment at the Kalgoorlie Regional Hospital, the plaintiff sometimes appeared tired, sometimes sitting down and rather tearful.
The proprietor of the Kalamunda Physiotherapy Centre, Mrs Elizabeth Fountain, described the plaintiff as an excellent clinician. She said in 1993, the plaintiff took a full patient load for the hours she worked. She says she now is much slower and was obviously having difficulty with anything heavy. She said she had observed the plaintiff treating patients and her difficulty manipulating the patient's neck, which involved holding the weight of the head. She said she wished the plaintiff could "give it a bit more". In cross‑examination, Mrs Fountain accepted that when the plaintiff returned to Perth, she wanted the plaintiff to work for her full time. She said she did not realise the extent of the plaintiff's problems.
The manager of the general health program at Bentley Hospital, Mr Jonathon Harrison, gave evidence that 30 per cent of the duties of the position of physiotherapy coordinator at Bentley Hospital require clinical treatment in the out‑patient's department and that it was in the discretion of the coordinator when those duties were carried out.
The evidence of the orthopaedic surgeon, Mr John Croser, in his report of 13 September 1995, is that plain films and a CT scan of the cervical spine suggest a soft tissue injury at C7. Mr Michael Lee could find no neurological deficit and no specific cause for the plaintiff's left arm symptoms. In his report of 30 November 1999, Mr Lee says:
"She has an excellent understanding of the nature of pathology and I think the only thing that she can reasonably do is to be as active as she can within the limits of her symptoms on the basis that continuing physical activity in the long term should be beneficial but she has to balance this with her symptoms."
The orthopaedic surgeon, Mr Ian Skinner, expressed the opinion in his report of 25 August 1998 that the plaintiff was best suited to employment in a mixed administrative and clinical role. The spinal surgeon, Mr Barrie Slinger, formed a similar opinion which he expressed in his report of 10 April 2001. He was of the opinion that the position of a physiotherapy coordinator at Bentley Hospital was within the plaintiff's present and future capacity.
Dr Salvatore Febbo gave psychiatric evidence that the plaintiff is suffering from major depression. He said she presented her history in a chronological order and went into quite significant detail as to what had happened over the years. In cross‑examination, he said the plaintiff did not mention her application for the position of physiotherapy coordinator at Bentley Hospital to him. In his report of 27 March 2001 at p 6, Dr Febbo relates his diagnosis in part to the history which the plaintiff gave him that she was unable, from a physical perspective, to adequately perform the clinical component of her work.
It is axiomatic that the onus is upon the plaintiff to prove the facts on which her claim for damages for pain and suffering and loss of amenities, and loss of earning capacity, which the Court is required to assess in this case, is based. In my opinion, the evidence in this case establishes on the balance of probabilities that the plaintiff has suffered no loss of earning capacity productive of economic loss, either past or future. The evidence to which I have referred reveals that the plaintiff remained in employment at the Kalgoorlie Regional Hospital until she resigned in September 2000. The evidence does not establish that she resigned as a result of the soft tissue injury which she sustained nearly five years before. The evidence establishes on the balance of probabilities, that the plaintiff is now capable of undertaking the position of a physiotherapy coordinator such as that which she declined at Bentley Hospital. The evidence establishes that it is very likely that she will retain that capacity for such a position in the future. The plaintiff, therefore, is entitled to no award for loss of earning capacity or loss of superannuation benefits.
In assessing damages for pain and suffering and loss of amenities in this case, the Court is required to consider the percentage of a most extreme case.
On the evidence, the plaintiff suffered no more than a modest whiplash injury to the neck. In my opinion, the discomfort which the plaintiff has experienced is no more than 4 per cent of a most extreme case or 4 per cent of $225,000, being $9,000. In those circumstances, since this assessment is below the threshold, the plaintiff is entitled to no award of damages for pain and suffering and loss of amenities. Likewise, in my opinion, the claim for past and future gratuitous services has no basis in fact.
Accordingly, in my opinion, the plaintiff is entitled to no award of damages in this case and the claim should be dismissed.