Ferraloro v Ahlfeld - [2004] WADC 35

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: FERRALORO -v- AHLFELD [2004] WADC 35

CORAM: GROVES DCJ

HEARD: 15-17 SEPTEMBER 2003

DELIVERED : 5 MARCH 2004

FILE NO/S: CIV 457 of 2002

BETWEEN: VINCENT MICHAEL FERRALORO
Plaintiff
AND
JOHN AHLFELD
Defendant

Catchwords:

Damages - Assessment - Motor vehicle accident - Personal injuries - Cervical strain of mild to moderate severity - Whether knee pain a pre-existing condition - 41 year old restaurant manager - Turns on own facts

Legislation:

Motor Vehicle (Third Party Insurance) Amendment Act 1994, s 3C

Result:

Damages of $32,397.96 awarded

Representation:

Counsel:

Plaintiff: Mr J G Staude
Defendant: Mr J R Brooksby

Solicitors:

Plaintiff: Chan Galic
Defendant: Greenland Brooksby

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

EMI (Australia) Ltd v Bes [1970] 2 NSWR 238
Ferraloro v Boston, unreported; DCt of WA; Library No 1430; 3 February 1986
Hendrie v Rusli [2000] WASCA 249
Ramsay v Watson (1961) 108 CLR 642
Southgate v Waterford (1990) 21 NSWLR 427
St George Club Ltd v Hines (1962) 35 ALJR 106
Wylde v 'Arriaza, unreported FCt SCt of WA; Library No 970359; 23 July 1997

Case(s) also cited:

Nil

GROVES DCJ: On 19 December 1996 Vincent Michael Ferraloro was the driver of a 1991 Ford Falcon EA Sedan and was stationary at traffic lights in Loftus Street, West Perth, at the intersection with Cambridge Street. Whilst waiting for the traffic lights to change a motor vehicle driven by John Ahlfeld, collided into the rear of Mr Ferraloro's vehicle. The accident was caused by the negligence of Mr Ahlfeld. Liability is admitted. Quantum of damages is in issue.
Mr Ferraloro was wearing a seatbelt. The impact caused him to be propelled forward and then back in his seat. He claimed that his left knee impacted with the hand brake below the dashboard to the left side of the steering wheel. The force of the impact caused a rear deck mat to be thrown forward into the front seat area. His immediate feeling was one of shock. His vehicle suffered damage to the rear bumper which was left hanging off. When he went to move the vehicle he was unable to engage the gears. He later learned that the impact had caused damage to the chassis requiring its re‑alignment. Damage to the front of Mr Ahlfeld's vehicle was extensive even though he claimed to have been travelling slowly at impact. The tow bar on Mr Ferraloro's car had gone through his front grill and into the radiator. His car was a write‑off. Both vehicles had to be towed away. I conclude, given the extent of the damage to both vehicles that the impact was reasonably severe.

The plaintiff's injuries

The plaintiff claims to have sustained the following injuries:
(a)Cervical spine sprain injury productive of pain stiffness and discomfort in the neck region with pain and stiffness in both trapezius muscles.
(b)Occipital and frontal headaches associated with the cervical spine sprain injury.
(c)Thoracic spine sprain injury productive of interscapular pain and bilateral trapezius muscle pain.
(d)Left knee soft tissue (contusion) injury.
(e)Moderate left rotator cuff syndrome causing pain in the left shoulder.
The defendant concedes that the plaintiff did sustain some degree of soft tissue injury to the cervical thoracic spine. The defendant denies however that any injury was sustained to the left knee. The defendant alleges further that if Mr Ferraloro did suffer any disability to the neck, the back or the left knee that such disability does not relate to the accident but relate to a pre‑existing disability namely polyarthritis synovitis.

The plaintiff's history

In order to appreciate the issues it is necessary to outline the plaintiff's history prior to this accident. The plaintiff was born on 5 December 1961. On 2 December 1983 he was injured in a motor vehicle accident (the first accident). Mr Ferraloro was sitting in his stationary vehicle on the road verge outside his home when another vehicle mounted the kerb and struck the rear of his vehicle. Mr Ferraloro "…went forward hit his chest on the steering wheel and his knee on the dashboard, he then went backward and his neck was flung back over the seat." He pursued a claim for damages for the injuries sustained by him. Liability was admitted. His claim came before this Court on 26‑27 November 1985 and Reasons for Decision delivered 3 February 1986: see Ferraloro v Boston, unreported; DCt of WA; Library No 1430; 3 February 1986 per Kennedy J. For convenience I reiterate the history to that stage as stated by her Honour.
"The plaintiff left school in 1977 having obtained his Achievement Certificate. He worked as a labourer for about 12 months then on the 1^st of November 1978 he was apprenticed as an electrical installer and completed that apprenticeship on the 31^st October 1982. Earlier in the same month he was seen by Mr I Stewart, an orthopaedic specialist, because of swelling in his knees. At that time Mr Stewart thought there had been a softening of the cartilage on the back of the knee cap and advised an appropriate exercise activity programme.
The plaintiff was retrenched due to lack of work on the 23^rd December 1982 and apart from one period of three weeks and one separate period of one day he has not worked since then. The plaintiff was receiving Unemployment Benefits until September 1983 when he was transferred to Sickness Benefits and is now in receipt of an Invalid Pension.
I accept the plaintiff's evidence that he had no further problems with his knee until mid‑1983 when he saw a chiropractor who did not help him. He returned to Mr Stewart in August 1983 and by this time he was complaining of some back, ankle and right wrist soreness, and sore gritty eyes. At Mr Stewart's suggestion he was referred to Dr J Edelman, a specialist rheumatologist.
When the plaintiff saw Dr Edelman initially he told him that some two years prior to this first visit his right knee began to give him problems with recurrent swelling, but over the last three to four months his knees had become a constant problem with constant swelling giving him pain, and that he had a lot of difficulty moving and bending his knees because of the pain. He had also noticed that his right wrist and left ankle had become weakened and sore and swollen. Over the same period of time he had begun to get low back pain and stiffness in the morning. He had also noticed grittiness and burning in his eyes, a heat rash on his back and extreme dryness of the scalp and flaking of the skin. His fingers had also become a little stiff and he had marked morning stiffness in quite a lot of his joints.
Dr Edelman diagnosed the plaintiff's condition as psoriatic spondyloarthropathy. This condition does not have the positive blood test of rheumatoid arthritis but has the psoriatic skin condition with it, hence the name, and it usually behaves like rheumatoid arthritis. It is a disease which affects the joints. There are several types of it, the plaintiff has the polyarticular type and among the joints it affects are his knees, ankles, wrist and low back.
In September 1983 the plaintiff was admitted to Osborne Park Hospital. Both knees and left wrist were injected and he was prescribed bed rest. He was given exercises and physiotherapy and prescribed medication. In November 1983 he was admitted to Sir Charles Gairdner Hospital for injection of radioactive dye into both knees and his right wrist to try to stop them producing fluid and this worked.
The plaintiff was discharged from hospital on the 26^th November 1983. At that time he felt really well and I accept that he was cheerfully optimistic about his future, and in the New Year he intended to look for work in his trade. Less than a week after his release from hospital he was injured in this motor vehicle accident."
Later in her Reasons her Honour records that:
"Dr Edelman admitted the plaintiff to hospital in July 1984 because of complaints of severe low back pain going into his buttock and hip. He attributed that to the arthropathy. He again admitted the plaintiff in April 1985, at this time the plaintiff's arthritis was reasonably controlled…"
Her Honour also found that:
"The plaintiff has pain and restriction of movement in the cervical spine and periodic debilitating headaches which necessitate medication and are frequently associated with nausea."
Thereafter until his next accident in December 1996 details are a little sketchy. Dr Edelman noted that in 1987 the plaintiff was admitted to Sir Charles Gairdner Hospital with his left leg swollen. In July 1992 he again saw Dr Edelman. Mr Ferraloro was still then unemployed. Mr Edelman noted that there was then "…no evidence of disease…". On 9 February 1993 Mr Ferraloro attended on his GP, Dr G R Koski complaining of a painful knee, back and lower back with involvement of a number of joints. On 25 March 1993 a Royal Perth Hospital report noted then that Mr Ferraloro's only symptomatic complaint is left knee pain. In August and September 1993 Dr Koski noted continuing arthritic pain in the wrists, hands and knees and again referred Mr Ferraloro to Dr Edelman. In 1995 he started up his own security business which provided security and protection services to pharmacies, hotels, nightclubs, etc.
In November 1996 Mr Ferraloro again presented to Dr Koski with swelling and pain in his finger joints, wrists, left knee and ankle and was again referred to Dr Edelman. He was prescribed Naprosyn and Salazopyriene which brought the condition under control. This flare‑up of the psoriatic arthritic condition had settled when on 19 December 1996 the second rear end collision occurred.

Plaintiff's complaints and treatment post accident

On arrival home after the accident Mr Ferraloro was feeling pain in his back. He went to his GP next day but Dr Koski was away. He was seen by a Dr Govinnage. He saw her on 20 and 31 December 1996. The brief medical notes indicate that he complained of pain and stiffness in the neck and shoulders and back area. He was prescribed Panadol and on the second occasion referred to physiotherapy. It was Mr Ferraloro's evidence, although the medical notes do not record it, that he also complained of soreness to the left knee as a result of the accident.
On 5 January 1997 Mr Ferraloro completed an Accident Report Form addressed to SGIC. In answer to the question "Were you injured?" he answered "Yes" and "If so, nature of injuries" he stated "Neck and shoulders".
He saw Dr Koski on 16 January 1997 when Dr Koski noted his complaints of pain in the neck and shoulders, the back and soft tissue injury to the left knee. Feldene was prescribed. On examination the range of neck movement was limited and physiotherapy was continued for the neck and shoulder complaint.
On 24 January 1997 Mr Ferraloro attended Dr Edelman whose report to Dr Koski of that date states:
"Vincent seems to have done well from the Salazopyriene. He is going to continue the Naprosyn and the Salazopyriene for the moment.
I note to add to his worries he has had a recent car accident which has given him some neck symptoms but hopefully this will settle down."
On 11 April 1997 Mr Ferraloro completed a Notice of Intention to Make Claim form addressed to SGIC. In response to the question "Nature of known injuries" he responded "Neck and shoulders". Asked also had he had any previous accident resulting in injury he responded "Yes" and in response to the question "Injuries sustained" he responded "Legs and lower back". A date for that accident was not stated but presumably it is referring to his first accident back in December 1983.
Because the physiotherapy was not giving any relief for the neck, shoulders and headaches Dr Koski referred Mr Ferraloro to Mr Desmond Williams, orthopaedic surgeon in June 1997. He saw Mr Williams on 19 June 1997. Mr Williams took a history and ascertained that:
"His initial problems included shoulder soreness and neck soreness on the right side and pain in the lower thoracic area."
Seemingly no mention was made to Mr Williams of injury to the left knee or of his long standing psoriatic arthritis condition for which Mr Ferraloro was having continuing treatment at the time of the accident. It was Mr Ferraloro's evidence that he did not make mention of any knee injury because he was seeing Mr Williams only about his neck, shoulder and headache problems. On examination Mr Williams found that in both the cervical spine and thoraco lumbar spine there was good flexion with little limitation. X‑rays of the cervical spine and thoracic and lumbar spines were undertaken. Mr Williams' report of 23 June 1997 concluded:
"This patient has had soft tissue injury to the cervical and thoraco lumbar spine when involved in the motor vehicle accident of December 1996 and at his age of 36 he has quite marked pre‑existing mid cervical degenerative change and symptoms have been exacerbated from that area. There is also degenerative change in the lower thoracic area. The lumbar area is reasonably well preserved."
Mr Williams recommended physical rehabilitation with swimming and exercise schedules in a heated pool.
On 9 October 1997 Mr Ferraloro attended on Dr Koski complaining of left knee symptoms. He had mentioned knee pain to Dr Koski on 16 January 1997 but this was the first occasion when he made mention of his knee having impacted with the dashboard/hand brake in the accident. He was referred to Mr Greg Janes, an orthopaedic surgeon, who sent him for an MRI. His report of 4 November 1997 (tendered by consent) states:
"When I reviewed him last I felt a lot of his symptoms were located to the patellofemoral joint but he also had an element of medial and lateral joint line tenderness.
MRI demonstrated a moderate sized baker's cyst and early degenerative changes particularly in the medial side. There was also narrowing and thinning of the articular cartilage on the medial side of the trochlear groove. There is no major structural abnormality.
I therefore injected his knee today with Kenacort and Marcain and sent him to physiotherapy."
Mr Ferraloro did not reattend on Mr Janes.
The MRI report dated 30 October 1997 (tendered by consent) indicated (1) joint effusion and baker's cyst, (2) early medial compartment degenerative change, and (3) no evidence of ACL tear, meniscal tear or MRI evidence of chondromalacia patellae.
In January 1998 on follow up by Dr Koski Mr Ferraloro reported that the injections had given a short lived improvement but he still complained of significant pain in the left knee. He was having physiotherapy on the leg at that time. In February 1998 he complained of ongoing headache, cervical spine discomfort and low backache with no significant change in his symptoms. In September 1998 he reported that his left knee had given way on him on two occasions on the previous day. In November 1998 he complained still of continuing neck pain and discomfort and of his left knee having given way occasionally. On 29 January 1999 he was referred to orthopaedic surgeon, Mr Peter Honey. On 19 February 1999 a left knee arthroscopy:
"…revealed deep fissuring of the central part of the patellofemoral groove. There were two parallel fissures. A chondroplasty was performed here. Patella tracking seemed ok. The posterior surface of the patella was affected by slight softening but no major fissure formation. Thereafter Mr Ferraloro continued to experience pain in the left knee with swelling. A cortisone injection into the knee provided some temporary relief."
His report of 6 September 1999 states:
"I did undertake arthroscopy on 19 February…and this demonstrated chondromalacia/cartilage injury over the central part of the trochlear groove in the distal femur consistent with a dashboard type knee injury (an injury in which the flexed knee is driven forward into a solid object). Arthroscopy involved inspection of the area and then debridement (tidying up) of the damaged articular cartilage."
Dr Honey reviewed Mr Ferraloro on a number of occasions through 1999 and noted that he had continuing complaints of a painful left knee with difficulty in squatting, kneeling and going up and down slopes. During this time the plaintiff was continuing to have physiotherapy. Eventually in February 2001 Mr Honey performed further chondroplasty and retinacular release. On 1 March 2002 further surgery was undertaken which changed the alignment of what was diagnosed as a misaligned kneecap. The surgery has been beneficial in that the plaintiff has not since experienced the knee collapse although he still does have intermittent pain.

Is the left knee condition a consequence of the accident?

The defendant contends that the plaintiff did not hit his knee as alleged. In the event that I find that he did the defendant contends that no injury was suffered but rather the problems associated with the left knee are a consequence of the pre‑existing psoriatic arthritis.
As far back as 1982 Dr Edelman made a diagnosis of psoriatic arthritis in a number of the plaintiff's joints including his hands, wrists, ankles and knees with swelling and pain. On each occasion when there were flare‑ups of the condition it was brought under control with medications. Once treated it did not flare again for a long period of time.
The history and nature of the plaintiff's psoriatic arthritis is that it would flare up from time to time and would cause him significant and severe pain accompanied by swelling in the joints of the fingers, elbows, knees and ankles. Significant flare‑ups occurred in 1982/83, 1985, 1992/93, 1996/97 and 2002. The condition responded to treatment and in the period between flare‑ups caused no problem for the plaintiff whilst in remission. One month prior to the accident he had a flare‑up and was on medication. The condition was under control and in remission at the date of the accident.
It was the plaintiff's evidence that he did have significant and severe knee pain immediately after the accident. It was his evidence also that he did tell Dr Govinnage when he attended on her that he had a painful left knee albeit that the complaint was not recorded in her notes of the attendance. Dr Govinnage was not called. The main concern however was the neck and shoulder complaint and treatment was directed towards these areas. The plaintiff certainly did mention to his regular GP Dr Koski when he saw him on 16 January 1997 that he had a sore knee and Dr Koski recorded "left knee soft tissue (contusion) injury." The plaintiff says that the soreness and swelling in his left knee at the time was overshadowed by the ongoing neck and shoulder pain for which he was undertaking physiotherapy.
Apart from that mention to Dr Koski there was no further mention of the left knee until October 1997 (some 10 months post accident) whereupon he was referred to Mr Janes and the MRI was done.
It is the case that neither in the Motor Vehicle Accident Report nor in his Notice of Intention to Claim no mention was made of having suffered an injury to the left knee. Likewise when he attended on Dr Edelman on 24 January 1997 no mention was made of any knee injury. Likewise when he saw Dr Williams in July 1997.
The medical reports of orthopaedic surgeon, Dr Greg Janes were tendered by consent (exhibit 12). In October 1997 Mr Ferraloro reported to him that he had experienced "…grating and crepitus in his knees with a feeling of instability with locking and giving way." Dr Janes noted tenderness over the patellofemoral joint and also the medial and lateral joint line. He concluded that most of Mr Ferraloro's symptoms were patellofemoral in nature. He referred him for an MRI. His report of 4 November 1997 (referred to earlier) outlines the findings on MRI. He foreshadowed the likelihood of Mr Ferraloro requiring arthroscopic treatment.

Mr Peter Honey performed surgery on the left knee and is the only person to have "seen inside the knee". He said that at surgery there was no evidence of arthritic or ligament damage in the back of the knee. There was no evidence of a generalised inflammatory arthropathy such as psoriasis. It was his opinion that Mr Ferraloro had a patellofemoral joint problem. Whilst acknowledging that the problems with patellofemoral joints can arise without a specific incident it was his understanding that Mr Ferraloro did not have any complaint of a patellofemoral problem until post the motor vehicle accident. Mr Honey considered that the changes which he saw were consistent with a traumatic injury. It was his opinion that "…it is probable that his problem was due to the traumatic injury."
Dr John Rosenthal, a consultant in rehabilitation medicine, saw Mr Ferraloro on 21 and 26 May 2003 on referral by the defendant's solicitors. In reliance on the history given to him and on Dr Janes' clinical observation that there seemed to be a patellofemoral problem as proven arthroscopically by Mr Honey Dr Rosenthal concluded that the left knee condition was attributable to the accident. He opined that the history of psoriatic arthritis had no current clinical relevance. His report of 16 May 2003 (exhibit 6) states that "this type of inflammatory arthropathy is usually fairly benign and amenable to treatment".
Dr Edelman in his report of 19 March 2003 (exhibit 3) concluded that:
"…the problem that this gentleman had following the motor vehicle accident would not in all probability be due to the disease but due to the direct injury to the knee."
Likewise, the general practitioner Dr Koski attributed the bony damage to the left knee as being accident caused. He distinguished between the psoriatic arthritis pain which he described as being general around the joint with the symptomology of the knee injury where the pain was indicated as being under the kneecap and more localised and with less swelling.
Dr Williams on the other hand expressed very forcefully a contrary opinion. It was his opinion that the deteriorating condition of the knee was a consequence of the underlying psoriasis and knee maltracking which caused the plaintiff's problems with the left knee. The starting point for Mr Williams was the lack of documented complaint prior to October 1997. He would have expected that the knee complaint would have been mentioned when he and other doctors took a history of the plaintiff's complaints. This overlooks the complaint of left knee pain made by the plaintiff to Dr Koski on 16 January 1997. Furthermore, when Mr Ferraloro saw Dr Edelman on 24 January 1997 it was for review of his psoriatic arthritis flare‑up which had preceded the accident and was not a consultation for the purpose of reviewing any accident related injuries. Likewise when Mr Ferraloro was referred to Mr Williams it was to deal with shoulder and neck soreness on the right side and pain in the lower thoracic area. He was not seeing Mr Williams in relation to the knee and whilst one might expect that it might have been mentioned in the context of an overall history the fact that it was not mentioned is not something from which it can be said that Mr Ferraloro did not in fact have a knee injury resulting from the accident.
Dr Williams articulated his opinion that all of the plaintiff's left knee problems were explainable on the basis of his long standing knee complaints in his report to the defendant's solicitors dated 13 June 2003 and two reports of 15 September 2003, they being on the first day of trial. In oral evidence Mr Williams reiterated the opinions there expressed. After reviewing Mr Ferraloro's history and management he concluded that there was "…no compelling evidence that the motor vehicle accident of December 1996 has played a role in the emergence of his patellofemoral pathology." It was his opinion that Mr Ferraloro presented with two major knee pathologies; the psoriatic generalised knee sinovitis and the underlying patellofemoral maltracking that, in his opinion, would be the factors contributing in a major way to the emergence of a condromalasic patellofemoral symptom complex.
With respect to Mr Williams whilst he rationalises his conclusions in his reports and whilst that is not without some merit it is nevertheless against the preponderance of medical evidence and the probability that the left knee complaint is accident related.
Guidance, insofar as the issue of causation is concerned, can be taken from the decision of Herron CJ in EMI (Australia) Ltd v Bes [1970] 2 NSWR 238 where, at 242, his Honour cited St George Club Ltd v Hines (1962) 35 ALJR 106 and Ramsay v Watson (1961) 108 CLR 642 to support the proposition that:
"It is not incumbent on the applicant upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant's contention is correct. Medical science may say in individual cases that there is no possible connection between the events and the death, in which case of course, if the facts stand outside an area in which common experience can be the touch stone, then the judge cannot act as if there were a connection. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connection that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try."
I am satisfied that the overwhelming preponderance of medical evidence as I have identified does in this case permit and supports a causal connection between the knee injury and the condition for which the plaintiff eventually came to surgery.
I have no reason to find that Mr Ferraloro was not truthful in his evidence as it was both cogent and credible. No doubts were expressed by any of the medical practitioners as to the veracity of his history and symptoms from time to time.
The defendant contends further that the fact that the plaintiff did not mention in the Accident Report Form or Notice of Claim injury to his knee, and made no reference to the knee to Dr Edelman on 24 January 1997 or to Dr Williams in June 1997 "strains credulity". I do not accept that assertion. I have earlier commented on the lack of reference to the knee injury to the doctors. It was the case which I accept that the principal injuries which were the subject of his initial complaints were the neck, the shoulders and the back. They were the areas of initial concern. The hit on the knee was not as productive of pain as the other injuries and so it is understandable that would be of lesser significance insofar as his overall well-being was concerned. It is apparent however that as the neck, shoulders and back condition improved the knee condition worsened with the difficulties which were experienced and compelled his referral to Dr Janes. I do not accept therefore that the fact that reference was not made to the knee in the report forms that I can conclude that in fact no such injury did occur. Those matters together do not persuade me that Mr Ferraloro was an untruthful witness.
Furthermore, subjective evidence points to a conclusion that the plaintiff did suffer impact to his left knee in the accident.
(i)The pain was anterior sharp and localised in nature and was of a different type of pain and distinguishable from the generalised psoriatic arthritis pain.
(ii)When the plaintiff attended on Mr Janes he complained of having a grating and crepitus in the knee with a feeling of instability with locking and giving way. He was not then able to run or kneel or lift his young child. These incidents had not happened to him pre‑accident.
(iii)At the time when he became troubled with the left knee which required attendance on Dr Janes he was not then afflicted with a flare‑up of the psoriatic arthritis. No other joints were then giving him any trouble. On prior occasions when he had flare‑ups multiple joints in all limbs were inflamed.
(iv)Since the surgery his left knee condition has resolved, ie he has not experienced instability with locking, etc.
All these matters draw me to the conclusion that he did sustain an impact to the knee in the collision and that the operative procedures were a consequence of that impact.

Injury to the neck and shoulders

It is not disputed that the plaintiff did suffer a whiplash type injury of mild to moderate severity in the accident. On presenting to Dr Koski on 16 January 1997 Mr Ferraloro complained of a range of symptoms in the neck and interscapular area and in the right shoulder. Occipital and frontal headaches were associated with these symptoms. Mr Williams report of 23 June 1997 (exhibit 10) after reviewing x‑rays of the cervical, thoracic and lumbar spines states:
"This patient has had soft tissue injury to the cervical and thoraco lumbar spine when involved in the motor vehicle accident of December 1996 and at his age of 36 he has quite marked pre‑existing mid cervical degenerative change and symptoms have been exacerbated from that area. There is also degenerative change in the lower thoracic area. The lumbar area is reasonably well preserved."
Mr Williams recommended intensive physical rehabilitation with swimming and exercise schedules. At review in October 1997 Mr Ferraloro was still complaining of persistent headaches, neck soreness and neck stiffness (this was after referral to physiotherapy). By February 1998 Mr Williams noted that the spinal symptoms had improved significantly clinically. At review on 4 June 2003 Mr Williams clinical review showed:
"…flexion/extension with stiffness and half range overall. Rotation had cut off at the extremes of the range. He was tender in the mid cervical area, lower cervical area and the mid line.
His thoracic spine showed generalised tenderness along the mid line but it was not well localised.
His left shoulder showed full motion range.
His right shoulder showed just a little cut off at the extreme of the abduction range."
In his report of 26 May 2003 Dr Rosenthal opines:
"I find no objective clinical evidence of him carrying a disability of significance in the thoraco lumbar spine.
In the cervical spine there is objective clinical evidence of his having right upper faecetal dysfunction and associated cervicogenic headache consistent with the history of a motor vehicle accident related strain injury.
I would confirm therefore that Mr Ferraloro has a low order of permanent residual disability in the … cervical spine attributable to this crash."
Mr Ferraloro had no prior history of neck pain. Mr Williams' evidence was to the effect that he would have expected the plaintiff to be over the effects of any accident caused injury to the neck but acknowledged that the pre‑existing degenerative changes would have prolonged the symptoms.

General damages for loss of amenities

The plaintiff is entitled to general damages for the accident itself and for the consequent pain and suffering, loss of amenities and loss of enjoyment of life.
The award of damages for loss of enjoyment of life and amenities generally requires a consideration of s 3C of the Motor Vehicle (Third Party Insurance) Amendment Act 1994 ("the Act"). This section imposes limitations upon an award of damages for non-pecuniary loss and it applies to the present case. Section 3C(3) provides that the maximum amount of damages that may be awarded for non-pecuniary loss is, at the present time, $249,000 and that that amount may be awarded "only in a most extreme case".
In Wylde v 'Arriaza, unreported FCt SCt of WA; Library No 970359; 23 July 1997 the court adopted the same approach to the Act as the New South Wales Court of Appeal did to the Motor Accidents Act 1988 (NSW). In Southgate v Waterford (1990) 21 NSWLR 427 at 440 the court said:
"There are a number of ways by which trial Judges could approach the task of apportionment required by s 79(2) and s 79(3). It is inappropriate in this case for this court to mandate any particular way of arriving at the 'proportion' required by s 79(2). But clearly because the task in hand is that of awarding damages for 'non-economic loss' it is appropriate for the trial Judge to consider and make findings on those elements in the evidence which are relevant to such loss. This will require the Judge to consider and make findings on the evidence relevant to those heads of damage formally considered in the award of general damages. Then it is necessary for the Judge to conceive 'a most extreme case'. Only for such a case may the maximum amount provided by s 79(3) be awarded. The use of the indefinite article 'a' has already been noted. Opinions of what constituted 'a most extreme case' will doubtless vary. But clearly quadriplegia would fall into that class. The amount to be awarded must then be apportioned somewhere between nil and $180,000; but in a ratio which the Judge fixes keeping in mind that the cap of a statutory maximum is retained for a 'most extreme case'."
The task is to find the right proportion between a most extreme case and the present. As to what might constitute a most extreme case see also Murray J in Hendrie v Rusli [2000] WASCA 249.
Accepting Mr Ferraloro's evidence and having regard to the medical evidence and prognosis I am satisfied that as a result of the accident the plaintiff sustained ‑
(a)a soft tissue cervical strain of mild to moderate severity; This was on top of pre‑existing degenerative change which was asymptomatic pre‑accident.
(b)minor discomfort and stiffness in both trapezius muscles;
(c)headaches of varying severity associated with the cervical strain which are continuing;
(d)minor pain and discomfort in the thoracic spine;
(e)a soft tissue injury to the left knee.
Having regard to those matters and to the evidence generally I find that the plaintiff's initial injuries and symptoms, their progression and treatment, their current status and the effect that they have had and will have on the plaintiff's enjoyment of life puts the plaintiff's case at 15 per cent of a most extreme case. This percentage of the maximum amount that may be awarded of $249,000 equates to $37,350. By s 3C(5) of the Act if the amount of non-pecuniary loss is assessed to be more than $12,500 but not more than $38,000 then from the award made is to be deducted the sum of $12,500.
Therefore 15% = $37,350 reduced by $12,500 = $24,850.
Accordingly general damages will be allowed in the sum of $24,850.

Economic loss – past and future

A claim made for past and future loss of income was abandoned by the plaintiff at the outset of trial. Accordingly no allowance is made under these heads of damages.

Special damages

Consequent upon my finding that the operative procedures to the left knee were a consequence of the traumatic impact the plaintiff is entitled to recover the costs associated with treatment. The plaintiff tendered a schedule of special damages which included the costs of surgical treatment by Mr Honey and theatre and hospital charges, costs of physiotherapy with Life Care, Wembley over the period July 2000 to June 2002 and travelling expenses. The defendant did not take issue with the reasonableness of the charges or expenses. Accordingly, I will allow the special damages as claimed which total $6,547.96.

Future medical expenses

It was Mr Ferraloro's evidence that he continues to see an osteopath (cost $25 per week), attends on Dr Koski occasionally and has medication in the form of Panadeine/Panadol Forte as and when required. There was no evidence that further operative treatment for any of his accident related injuries will be necessary. A modest sum should be allowed for ongoing treatment.
Accordingly $1,000 will be allowed for future medical expenses.

Summary

In summary therefore damages will be allowed as follows:
General damages  $24,850.00
Special damages   $6,547.96
Future medical expenses   $1,000.00
Total  $32,397.96