FAULKNER-PEARCE v Scott - [2001] WADC 208

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: FAULKNER-PEARCE -v- SCOTT [2001] WADC 208

CORAM: FENBURY DCJ

HEARD: 15-16 MAY 2001

DELIVERED : 5 SEPTEMBER 2001

FILE NO/S: CIV 2040 of 1998

BETWEEN: MICHELLE SOPHIE FAULKNER-PEARCE
Plaintiff
AND
JUSTIN SCOTT
Defendant

Catchwords:

Damages for personal injury - Soft tissue spinal injury

Legislation:

The Motor Vehicle (Third Party Insurance) Act 1943

Result:

Judgment for the plaintiff

Representation:

Counsel:

Plaintiff: Mr B S Spinks
Defendant: Mr J G Staude

Solicitors:

Plaintiff: Marks and Sands
Defendant: John G Staude

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

Wylde v 'Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997

Case(s) also cited:

Nil

FENBURY DCJ: This is an action for damages for personal injuries allegedly sustained by the plaintiff in a motor vehicle accident that occurred at approximately 10.00 am on or about 23 June 1996. Liability having been admitted on behalf of the defendant, it was only the assessment of damages that was required.
At the time of the accident the parties were driving in opposite directions in Lord Street, East Perth. The plaintiff's vehicle ran into the side of the defendant's vehicle when the latter turned across the path of oncoming traffic at an intersection.
In her evidence the plaintiff said that after she got out of her vehicle following the accident she felt sore all over her body. Particularly she felt pain and discomfort in her left leg and in her lower back. According to the plaintiff the collision was substantial resulting in her vehicle having to be towed away after it sustained significant frontal damage.

The issues

It is the plaintiff's case that she has suffered back discomfort and disability ever since the accident. She sustained a significant exacerbation of her symptoms whilst on holiday in Kalbarri in about December 1996. The plaintiff asserts that she is restricted in certain activities and has continued to have symptoms for the last five years. She also makes a claim for economic loss.
The defendant asserts that the plaintiff has had very little in the way of medical treatment and has attended upon medical practitioners infrequently. Consequently, according to the defendant, the plaintiff's symptoms are minor. The defendant asserts that the incident at Kalbarri was a separate distinct injury which had nothing to do with the accident. The defendant disputes any significant economic loss.
In response the plaintiff agrees that she has attended upon medical practitioners infrequently but strongly denies that this indicates a lack of symptoms and she maintained that her lack of attendance upon medical practitioners is for plausible acceptable reasons given her family history.

The plaintiff's evidence

Following the accident the plaintiff attended at Royal Perth Hospital where she was examined by Dr Rippey. The notes of that attendance became Exhibit 2. Although Dr Rippey did not give evidence in the trial it is apparent that he examined the plaintiff, noted she had been involved in a motor vehicle accident and recorded that she suffered soft tissue lower back and left thigh injuries. There was no bruising nor deformity and the plaintiff had a full range of movement although there was pain on that movement. Dr Rippey diagnosed a soft tissue injury to the back/leg and recommended treatment in the form of rest and analgesics. The plaintiff was advised to follow up with her general practitioner if required.
For the following two or three weeks the plaintiff asserts that she experienced significant low back pain which was acute at times on the left hand side. The pain was persistent to the point where she found she could not sleep or get comfortable.
With the persistence of her symptoms of back pain the plaintiff decided to attend upon her general practitioner and she was prescribed Panadeine Forte. Unfortunately she had an unpleasant reaction to Panadeine Forte which she did not ever take again. The plaintiff continued to suffer persistent back pain especially on standing, bending and lifting and on some occasions the pain would become so acute that she would have to sit down. The plaintiff gave evidence that she had problems getting into her car. She also said that her back pain varied from a dull pain to a sharp pain on occasion.
The plaintiff stated that her family had an interest in a vineyard and on occasions she was expected to help with activities such as pruning. This activity required her to bend forward from the waist for prolonged periods. The plaintiff found that her symptoms were significantly exacerbated and she had problems at night with pain that she described as niggling pain. She had a constant dull ache at the bottom of her back which was made worse by prolonged postural immobility such as sitting or standing.
The plaintiff said that she had never suffered from chronic pain before of any kind and she had great difficulty in coming to terms with the persistence of her symptoms. In spite of the persistence of her symptoms however the plaintiff said that she did not frequently see her general practitioner. She said that she knew her doctor would tell her to adopt a back sparing regime, to rest, and to take analgesics when required.
Two other factors impacted upon this issue. During her evidence the plaintiff occasionally remarked that she was a person who did not like to complain; that she had a certain stoicism. However she did attend upon a general practitioner when the pain became too much to bear and she was occasionally referred for physiotherapy and was prescribed analgesia. She said that she attended upon a physiotherapist on approximately six occasions but found that, far from obtaining relief, her symptoms appeared to get worse.
On one occasion the plaintiff's general practitioner referred her to an osteopath from whom she obtained some relief. He demonstrated exercises that she should undergo, gave her massage and recommended further changes in her life style. She was advised by the osteopath that her pain was caused by her muscles "spasming".
A secondary factor that bore upon the frequency of the plaintiff's attendances upon medical practitioners for her persistent back pain related to her experiences with her father. The plaintiff appeared to concede that her attendances were less frequent than her complaints of symptoms might otherwise have been anticipated to justify but this was in part because of a view she had reached about the ability of the medical profession to assist her. She stated that her father had back pain for many years and that from her observation, all that doctors were able to offer him was a "gag" for his pain. She said that her father had a ruptured disc and that she had lived with him during the period of his greatest discomfort during which she grew to dislike general practitioners. As a consequence of all of these matters the plaintiff reached the view when she was having her own pain that she would rather manage it in her own way than attend doctors and take medication. Hence, according to the plaintiff, the Court should not draw an inference concerning symptoms based upon the relatively few medical attendances.
In general terms I consider that the explanations for the plaintiff's lack of confidence in general practitioners being able to relieve her pain on any significant or prolonged basis was plausible. The plaintiff felt that changes of life style, management of her activities and perhaps occasional maintenance visits to somebody like an osteopath were all likely to help her with her pain and these were the reasons why she did not frequently attend her general practitioner. The cross‑examination of the plaintiff did not change this view. Counsel for the defendant agreed that the frequency of visits to medical practitioners was not determinative on the point but in any event, having heard and assessed the plaintiff, I do not consider that the lack of the plaintiff's attendances upon medical practitioners is of particular significance.
As I have mentioned, some time in December 1996 the plaintiff and her husband went on holiday to Kalbarri which obviously involved a long drive in her motor vehicle and prolonged sitting. The plaintiff took breaks during the journey and did not suffer any particular event.
One day whilst at Kalbarri, following some time spent at the beach, the plaintiff said she and her sister had collected some shells and rocks. On returning to the car the plaintiff leant through the window and bent forward to pick up a bag of shells. She felt an acute stabbing pain in her back. The pain was so extreme as to be disabling. The plaintiff had some massage in Kalbarri but unfortunately this gave her only short term relief and the family holiday had to be curtailed. The plaintiff and her husband returned home to Perth where she spent the next two days in bed unable to move.
In cross‑examination variations in the plaintiff's account of the circumstances of her suffering the exacerbation of her pain in Kalbarri were put to her. It was alleged that she had told the defendant's medical specialist, Dr Edibam, that she sustained the injury when she was reaching forward into the car from the outside rather than bending over whilst in the car. I did not think this discrepancy was particularly significant. The plaintiff was consistent in her account of suffering an injury whilst in or near her car when she bent over. There was no dispute that, whatever the way the plaintiff suffered her injury in Kalbarri, that she did suffer some sort of incident and that pain followed which resulted in premature termination of the holiday. The plaintiff had gone to Kalbarri for two weeks but stayed only about five days.
In my view any inconsistency between the plaintiff's evidence concerning how she sustained her Kalbarri injury and the account that she gave to Dr Edibam was inconsequential and, furthermore, seemed to be the result of mere misunderstanding.
The plaintiff gave evidence that she had a number of disabilities as a result of the injury to her back. She said she had trouble sleeping at night and often had to get up. She had problems in prolonged postural immobility. In giving evidence about some of these matters the plaintiff became distressed in the witness box, especially when she described how she could not pick up her child and that he "knows I can't pick him up".
The plaintiff said that she had localised pain around the base of her back. She said her pain had never been as acute as it was when she was in Kalbarri. She said that she has managed her problems by being careful about her activities.
The plaintiff said that prior to the accident she had never suffered from any significant back pain whatsoever.
In cross‑examination, after preliminaries, counsel for the defendant focused for some time on the plaintiff's evidence concerning the location of damage to her motor vehicle and on the quantum of that damage. Alleged discrepancies in the plaintiff's statements about these matters were put to her in an attack upon her credibility. To my mind it was unlikely the plaintiff would lie concerning the location of damage to her vehicle in the circumstances of the case. I did not think there was a significant difference between her saying that the damage was to the front of the car or to the corner of the car. As to the variation in her assertions about the cost of repairs, it was not great. I did not believe that the plaintiff was exaggerating or that her credibility suffered significantly as a result of that particular line of attack.
Counsel for the defendant then turned his attention to the issue of the gaps in the continuity of medical treatment of the plaintiff. He strongly suggested that the lack of medical treatment indicated that the plaintiff's symptoms were minor. The plaintiff agreed that she had not had any formal treatment for her symptoms since about February 1997. Counsel then commenced to analyse the plaintiff's claim for special damages and cross‑examined the plaintiff concerning her claim and her lack of record keeping. It was pointed out to her that she did not claim for the costs of the massage in Kalbarri. A number of minor inconsistencies were put to the plaintiff but I did not think these were very significant.
At approximately 11.40 am on the first day of trial during evidence in chief the plaintiff started to demonstrate, I think quite unconsciously, symptoms of discomfort. She started massaging her own lower back. So far as can be told from the perspective of the trial judge, she was acting naturally and convincing in this behaviour. Indeed during her cross‑examination she occasionally repeated this activity.
At the conclusion of the cross‑examination relating to the plaintiff's claim for damages for non‑economic loss the plaintiff remained fairly unscathed. True it was that there was a paucity of medical evidence to support her complaints of pain. Furthermore, it seems to me to be fair to say that it is a rare case that is proved without extensive medical evidence. Counsel for the defendant placed significant weight on the lack of evidence of numerous visits to medical practitioners.
On the other hand I was impressed by the plaintiff's evidence that she treated herself, modified her own life style and with the assistance of her sister attempted to cope without attending upon medical practitioners. In a sense she stabilised her symptoms herself. I have some sympathy for her rhetorical question concerning what repeated visits to general practitioners would achieve given she suffered from soft tissue injury. The plaintiff described the steps she took to minimise her symptoms. She avoided heavy lifting and was careful generally in her activities.
There was a moment in the cross‑examination by counsel for the defendant when it was put to the plaintiff that the extent of the modifications she had made to her behaviour and activity suggested serious disability. In essence the plaintiff said that that was precisely the case. Overall I was favourably impressed by the plaintiff as a witness in this case. I think she has suffered a considerable degree of discomfort in her back as a result of this motor vehicle accident and the pain has been ongoing. She has done quite well in managing to cope with it.

Economic loss

The plaintiff also claims that she has suffered economic loss. In her evidence she stated that she finished school in about 1987 and then travelled overseas. She also travelled around Australia and Indonesia. She engaged in farm work from time to time and worked on vineyards.
In 1992 the plaintiff returned to full time study for a Bachelor of Social Science through the Edith Cowin University. She said that she had had work experience with children.
The plaintiff's father died in 1993 and she reduced her study loan at university and commenced doing units externally. She continued children's studies up to the date of the accident.
After the accident the plaintiff said that she failed a unit because she had problems sitting down and had difficulty focussing on her studies. Following her return from Kalbarri she came to the realisation that she could not lift children, that she had physical limitations, and that this would have an effect upon her choice of vocation. In 1998 she became aware of a psychology degree course that was available which she decided to pursue. Early in that year she considered that her employment prospects were very poor but that she had to make sacrifices.
The plaintiff has continued her studies in psychology and is now in her third year. She stated that she would like to practice in the area of child psychology. In that regard she has had some casual work experience at the Great Southern Regional College with children. She sometimes works for an entire week and sometimes just for a few hours.
In January 1996, following the death of her father, the plaintiff and her sister started up a business involved in design. In due course she gained an opportunity to do creative work at an annual country function known as the "Big Day Out Concert". She was paid $1,400 for her efforts. Apart from designing the show the work involved lifting heavy props and erecting a set and back drop for decorative purposes. There was also heavy duty work and cleaning up afterwards.
The plaintiff said she has had no involvement in the Big Day Out Concert since the accident. Her partner Natalie was used in her place. The plaintiff asserted that but for the motor vehicle accident she would have continued with her work at the Big Day Out Concert.
The plaintiff stated that she also did work for her mother in a shop that was located in the Subiaco markets. Although she was not actually paid for this work it was set off against family debts. She stated that earlier in 1994 and 1995 her mother had provided her with $1,400 worth of support and consequently she was happy to provide unpaid labour in the shop.
The plaintiff said that after the accident she was not able to assist with her mother at the Subiaco markets for a period of three weeks. Even when that period passed she found the work very difficult because it involved prolonged standing on a concrete floor and frequent stooping all of which caused her back discomfort.
Counsel for the plaintiff produced a schedule of special damages to which the plaintiff spoke. She stated that she spent about $5 per week from the date of the accident to the present on medical expenses. She had massage from private practitioners. She purchased a physiotherapy ball for the sum of $80.
In cross‑examination the plaintiff said that her husband was the site manager for the Big Day Out Concert in January 1996 and that she had got the job through him. She said she only worked with the Big Day Out Concert on the one occasion being in 1996. She agreed there was no such concert in 1998. She said that her son was born on 30 January 1998.
The plaintiff was cross‑examined concerning her claim for future economic loss and she conceded that the wine business was not carried on for profit prior to the motor vehicle accident. She was also questioned concerning answers to interrogatories about the work she had done for her mother at the Subiaco markets. She agreed no formal record was kept either of the debt she was working off or the amount that she was notionally paid whilst working there. The plaintiff asserted that she could not now work long days on her feet in a boutique on any business with a concrete floor. Nor could she work in the vineyard.

The medical evidence

The principal medical witness relied upon by the plaintiff was Prof James Taylor.
Having regard to his qualifications, experience and the extent of his publications, Prof Taylor was clearly an expert in spinal problems.
Professor Taylor's role was to give a medico/legal opinion. He was not a treating specialist of the plaintiff. He wrote one report dated 9 December 1999 which was exhibit 5.
Professor Taylor described seeing the plaintiff on the date of his report at the request of her solicitors.
Following examination of the plaintiff, and perusal of her x‑ray films and CT scan Prof Taylor concluded that the plaintiff had suffered soft tissue injuries in the lower lumbar spine possibly affecting L4/5. His view was that the plaintiff's injuries and symptoms were attributable to the motor vehicle accident. However he concluded that the persistence of the symptoms may also in part be related to the plaintiff's previously asymptomatic lumbar scoliosis.
Professor Taylor felt the plaintiff had a mild disability due to "partial loss of the normal function of the thoraco lumbar spine amounting to 10 per cent loss of function". The tenor of Prof Taylor's evidence concerning the plaintiff's prospects was that it may take a year or two (after December 1999) for the plaintiff to be able fully to return to her pre‑accident activities. It is noted, of course, that the plaintiff was still suffering symptoms in May 2001 ‑ the time of trial. How much longer she will suffer symptoms is difficult to judge.

Professor Taylor said that scoliosis suffered by the plaintiff was not necessarily a painful condition in itself. That was especially the case here considering scoliosis was only of 8°. He said that the plaintiff's legs were unequal in length. This led to an oblique pelvis and consequently a scoliosis as a compensation. He said that this does not cause pain in itself but can prolong low back pain if the low back pain is caused by other things such as trauma.
Professor Taylor queried the significance of tests carried out by Dr Edibam, the defendant's expert, wherein the plaintiff was required to bend from the waist and touch her legs as low as possible and then, whilst in the sitting down position, sit up and reach forward. He felt they were not of significant use in trying to find inconsistency in presentation. This issue came about because Dr Edibam placed some weight upon the difference in the plaintiff's performance of those tests. Professor Taylor's view was that normal people can flex further from a sitting position than from a standing position in any event.
In cross‑examination Prof Taylor was pressed on his views concerning the similarities between the symptoms suffered by the plaintiff as a result of the motor vehicle accident and the symptoms she suffered following the Kalbarri incident. His opinion was that but for the motor vehicle accident, the plaintiff would in all likelihood not have suffered an injury in the Kalbarri incident.
Professor Taylor's evidence was supported in some aspects by that of Dr Warren Saint, a general practitioner called to give evidence on behalf of the plaintiff. Dr Saint's report was written for the defendant's insurer and was dated 19 October 1997 (Exhibit 6).
Dr Saint explained that he only saw the plaintiff on three occasions. He saw her on 5 July 1996 for the first time and she was seen for the last time on 6 January 1997. As to the last consultation his report states:
"At that time she was continuing to have a lot of low back pain with frequent radiation of pain down her leg."
In the report Dr Saint anticipated that the plaintiff would be totally unfit for work for a short period of one or two weeks post accident but that the period of partial incapacity was more likely to be of the order of 9‑12 months. Dr Saint stated that by reason of his lack of more frequent contact with the plaintiff he found difficulty in speaking about her prognosis but at par 6 of his report he states:
"Michelle Faulkner had a pre‑existing developmental lumbar scoliosis of 8° convex to the left. The injuries that she sustained in the traffic accident would have definitely made this condition which was asymptomatic prior to the accident symptomatic."
Dr saint referred the plaintiff to an osteopath named David Yaksich.
Mr Yaksich gave evidence and produced a very brief report dated 25 November 1999 which is Exhibit 7. His view was the plaintiff's problems were "skeletally and muscularly involved". He said that when he saw the plaintiff she was emotional in her descriptions of discomfort.
The only witness called on behalf of the defendant was Dr Edibam who is a well known orthopaedic surgeon in Perth. Dr Edibam's report dated 2 October 1998 became Exhibit A. Dr Edibam was engaged on behalf of the defendant by the insurers to provide a medico/legal opinion.
The defendant's counsel relied upon the evidence and report of Dr Edibam as amounting to evidence of statements made by the plaintiff which were inconsistent with her evidence. I have already commented on the differences between the plaintiff's account of the mechanism of her Kalbarri exacerbation, as allegedly told to Mr Edibam and what she stated to the Court. I think I have already indicated. I do not think there is any significance. There was misunderstanding. There was no clear inconsistency. Certainly no inconsistency such as to found an assertion of lack of credibility or reliability in the plaintiff as a witness.
Dr Edibam placed some reliance on tests that the plaintiff underwent and he mentions this in his report as follows:
"Movements of her lumbar spine were difficult to interpret as on formal examination she had limitation of flexion, she could only bring her finger tips down to just past her knees but when I looked at her, testing her by McNabb's method she appeared to have full range of lumbar flexion."
As I have stated I do not think there is great significance in different performance in these exercises and I accept what Prof Taylor says about it.
Dr Edibam said that by reason of the fact that the plaintiff had a pre‑existing scoliosis, then he felt that "it is more than likely that she did suffer from grumbling backache previously as well, although she denies this."
I accept the plaintiff's evidence that she had no pre‑accident back pain. I also prefer the views of Prof Taylor to the effect that its not necessarily the case that there would be pre‑accident symptoms even in the presence of the scoliosis.
Dr Edibam's view was that the plaintiff's description of her Kalbarri incident was that she had pain on that occasion which was significantly different to her previous back pain. Again I do not think there is any significance in that. In his evidence Dr Edibam agreed that it was possible that the plaintiff's scoliotic deformity together with the trauma of the plaintiff's motor vehicle accident could have rendered the plaintiff's back symptomatic. This was a significant concession in my view. He also offered the observation, however, that there is nobody in the community who has not had backache. Generally his opinion was that whatever aches and pains the plaintiff had, they would not have been significant and amounted to no more than "minor backache".
Counsel for the defendant prepared a summary of his closing address which was most helpful. He made much of the abandonment of the plaintiff's claim for past and future gratuitous services and urged the Court to reject the plaintiff's explanation and asserted that the fact was most significant on the issue of the plaintiff's credibility and reliability. Similarly counsel relied upon the plaintiff's abandonment of her claim for past economic loss save for the claim for $1,000 being the loss of income from the Big Day Out Concert in 1997.
There is a statutory threshold fixed at $5,000 for claims for gratuitous services and there is no doubt that the plaintiff's claim as originally pleaded greatly exceeded that threshold (totalling some $20,000 for both past and future services).
It is indeed curious why the claim was abandoned in total at trial by counsel for the plaintiff. From what counsel for the plaintiff stated it would appear the claim was formulated more by the plaintiff's original solicitor than the plaintiff. He also relied on the plaintiff's evidence that she did not see the further and better particulars of the claim for past and future gratuitous services after they were prepared by the solicitor. He said there must have been some communication breakdown.
In short counsel for the plaintiff asserted that no negative inference should be drawn about the plaintiff's credibility arising from the abandonment of this claim and that "a person should feel to modify their claim as the case proceeds and evidence comes to light…"
As I have stated I formed a favourable view of the plaintiff's evidence judged by her demeanour in the witness box. This issue is not a matter which causes me to revisit my conclusion that the plaintiff was an honest and reliable witness in general. Furthermore in my experience as a judge it is not unknown for claims of this kind to be presented to the Court with quantification of the claim for damages under some heads being much inflated. In the circumstances of this case I am not prepared to make an adverse finding because of this event. Furthermore I do not think that the plaintiff's abandonment of her claim for past economic loss by way of income is of significance on the issue of credibility.
Counsel for the defendant then turned his attention to the lack of evidence on certain issues in the case and in particular he pointed to the absence of any "corroborative lay evidence such as would be available from her husband, sister and mother concerning the effect the plaintiff's injuries and disabilities had upon her."
In my view, although the evidence identified by counsel for the defendant is often called, the failure to call such evidence is not critical, especially in a case where favourable findings are made about the plaintiff generally. If I had concerns about the plaintiff's credibility and reliability then her failure to produce the sort of evidence counsel referred to would be much more significant. But I do not have such concerns.
Counsel for the defendant continued this line of attack by highlighting the absence of any evidence concerning the plaintiff's studies such as to enable some assessment to be made of her claim for future economic loss. He also pointed out the lack of medical evidence to support any allegation of inability to pursue those studies. With perhaps more emphasis counsel attacked the lack of receipts and records as would normally be provided to substantiate a claim for special damages. As counsel put it:
"It would represent a radical departure from the practice of this Court in personal injury cases to allow unvouchered expenses as special damages. Even on a 'doing the best I can' basis a court would, in my respectful submission, have difficulty in allowing any of the special damages owing to the plaintiff's unsatisfactory nature of the proof." (sic)
In essence counsel for the defendant's submissions on the assessment of the plaintiff's damages focused on the assertion that the Kalbarri incident and the discomfort and pain that followed thereafter were not related to the accident. I do not accept this submission. I accept the evidence of Prof Taylor and of the plaintiff and have reached the view that the plaintiff has established on the balance of probabilities that her low back symptoms at all material times have been caused either directly or indirectly by the motor vehicle accident upon which she sues. Although it is true that in some cases strategic events at trial such as the abandonment of particular claims under certain heads of damage, can have a significant effect upon an assessment of the credibility and reliability of the party, I do not think this is one of those cases. As I have explained earlier I was favourably impressed with the plaintiff. I have also reached the conclusion, and I accept the submission of counsel for the plaintiff, that for the purposes of this case the Kalbarri incident and what followed is causally related to the accident.

Assessment

As counsel mentioned during the trial the assessment of general damages for the plaintiff must be made according to the provisions of s 3C of the The Motor Vehicle (Third Party Insurance) Act 1943. The approach to assessment, as counsel submitted, should follow that set out by the Full Court in Wylde v 'Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997.
Counsel for the plaintiff asserted that the plaintiff's claim amounted to at least 10 per cent if not 12½ per cent of a most extreme case which, following the current threshold, puts his assertion at an assessment of between $22,500 and $28,125.
Counsel for the defendant submitted that upon making the findings that I have, the evidence "would justify a modest award of general damages at the lower end of the scale".
I have no doubt at all the plaintiff has had back discomfort of varying degrees of significance from time to time over the last five years since this accident occurred. She has not chosen the path of seeking continual assistance from the medical profession, drugs, and physiotherapists. She has managed to manage her difficulties in her own way. I have no doubt that she suffers from those difficulties. In my view a fair assessment of general damages would be to judge her claim as being of the order of 12 per cent of a most extreme case thus I assess damages at $27,000 which, after the current deduction of $11,000 results in an award of $16,000 general damages.

Past economic loss

The only entitlement the plaintiff has established under her claim for past economic loss is that for the Big Day Out Concert in 1997 which I assess at $1,000.

Future economic loss

It is most difficult to assess future economic loss given that the plaintiff's principal witness, Prof Taylor, in his report on 9 December 1999 (exhibit 5) said as to prognosis:
"I would suggest that her prognosis is good for an eventual almost complete recovery but this may take one to two years."
Contrasted to that opinion is the fact the plaintiff still has obvious discomfort. In his submissions counsel for the plaintiff said this:
"Now there has been what you could consider, I will accept, a paucity of evidence on the question of future economic loss but that on its own doesn't mean that no award can be made for future economic loss. Now, some of the issues that she's put before you, your Honour, is that she still suffers from the problems today, compounded with the fact that she discontinued a career in child care, still feels unable to pursue employment with the Big Day Out. That in itself is sufficient for your Honour to make some sort of global award." (T80)
Counsel then referred to the passage in the third edition of Harold Luntz's book on The Assessment of Damages at p 98 where, as to the quantification of the claim for future economic loss the author says this at par 1.9.28:
"It is sometimes suggested that this entails the plaintiff in providing that not only the physical loss, but also the value in money terms of that loss, and that if this is not done no more than nominal damages may be awarded under the particular head. This is not so. Numerous cases in the High Court and elsewhere have held that where it is clear that the plaintiff has suffered some real loss the Court must do its best to place a value on that loss, despite the paucity or even absence of evidence on the point."
Although counsel did not refer to it the author continues on to say:
"It depends to some extent on the availability of such evidence to the plaintiff. The consequence of failure to lead evidence which should have been readily available is that the plaintiff cannot complain that the damages as assessed are too small to cover the actual situation…but the Court is not precluded from making a substantial award even in such a case."
The plaintiff's intention is to qualify as a psychologist. It was clear she had the intellectual wherewithal to achieve that end. She had continuing back discomfort whilst sitting in the courtroom at the time of trial but there is no evidence before me as to how long she can expect to continue to have back trouble. As a matter of common sense she might be likely to be afflicted with low back pain if she has an occupation that requires prolonged postural immobility such as sitting. Given her intellect this is likely. But whether that will produce economic loss or not is very unclear. I think it is unlikely to produce significant economic loss. She will put up with the discomfort as she has shown she is able to do. The only medical evidence before me is that of Prof Taylor which states that her symptoms should resolve. Indeed they should have resolved before now. There is no other evidence about the matter. It seems to me that there is no evidence before me that the plaintiff "has suffered some real loss" in the sense of loss of earning capacity in the future.
On the other hand she has had discomfort for five years when the medical opinion seems to suggest that her discomfort will be short lived. Am I therefore to conclude that because she has had discomfort for the last five years, in the absence of medical evidence, that she will have discomfort indefinitely which may produce economic loss? There just seems to be an absence of evidence on the point. "Doing the best that I can" for future economic loss I award her $1,000.

Special damages

The claim for special damages was set out in a schedule, which had no evidentiary weight as a document.
The plaintiff has never kept any receipts and produced none in court. The calculations suggested to support the claim are reconstructed and based upon assumptions. There can be no doubt the plaintiff has consumed analgesics from time to time in the past but to calculate this on the basis of $5 per week seems to me to present difficulties in the absence of other evidence. I tend to agree with the observations of counsel for the defendant concerning the effect of the lack of any vouchers for the plaintiff's claim for special damages. However I do accept that the plaintiff must have required some medication from time to time in the past. I am prepared to allow her $500 for past pharmaceuticals.
The difficulties with the claim for special damages, such as that for massage expenses, is highlighted by the method of calculation for the attendances upon one Ken Dealy. The plaintiff asserts that she attended upon Mr Dealy "approximately" ten times for massage and physiotherapy since the accident. She therefore claims for ten attendances at $25 per hour. It is a very inaccurate and shoddy way to proceed. She also then claims for the expenses paid to the woman named "Penny" in Kalbarri, for "approximately" two occasions. In all the plaintiff claims $390 for physiotherapy and massage. I am not prepared to allow that claim based upon evidence of that quality but she obviously did make some payments for physiotherapy so I will allow her $200.
I will allow the plaintiff's claim for treatment by the osteopath, David Yaksich at $315 as claimed.
Having regard to what Prof Taylor stated about the claim for aromatherapy and "essential oils" I am not prepared to make any award for that nor for the "physiotherapy ball", the yoga videos and other items of special damages. I am not persuaded that the plaintiff is continuing to take significant quantities of medication and that she will need to continue to do so in the future. My assessment is therefore:
General damages  $16,000.00
Past economic loss  $1,000.00
Future economic loss  $1,000.00
Special damages  $1,015.00
$19,015.00