Foote v Atkinson
[1990] TASSC 156
•14 December 1990
Serial No B79/1990
List "B"
COURT: SUPREME COURT OF TASMANIA
CITATION: Foote v Atkinson [1990] TASSC 156; B79/1990
PARTIES: FOOTE
v
ATKINSON
FILE NO/S: 176/1988
DELIVERED ON: 14 December 1990
JUDGMENT OF: Wright j
Judgment Number: B79/1990
Number of paragraphs: 37
Serial No B79/1990
List "B"
File No 176/1988
FOOTE v ATKINSON
REASONS FOR JUDGMENT WRIGHT J
14 December 1990
At 2.30am on 13 December 1986 the plaintiff, a trainee auxiliary nurse at St Johns Park Hospital, New Town, was in her car, stationary at the traffic lights at Albert Road, Moonah waiting for them to change in her favour before moving off. The defendant's vehicle collided heavily with the rear of the plaintiff's vehicle, causing extensive crush damage to the boot area and deforming the driving seat in which the plaintiff was sitting. The plaintiff sustained a whiplash type injury to her neck and now sues for damages. Liability has been admitted and it remains for damages to be assessed.
The plaintiff was 23 years of age at the time of the accident, having been born on 10 June 1963. She had emigrated to Australia from Great Britain in 1973 with her family. After attending school in the North West of the State, she commenced working at Edgell's factory at Quoiba and then in January 1986, she began a two year course as a trainee auxiliary nurse at St Johns Park, a geriatric hospital at New Town. Although her training was general in nature, a good deal of emphasis was placed upon care of the elderly and diseases and disabilities suffered by elderly patients. As it was not the hospital's policy to employ male attendants at the time, a good deal of heavy lifting work devolved upon the auxiliary nurses and trainees. A substantial number of the elderly patients lacked any form of mobility and had to be lifted, carried or supported as they were moved from place to place in the hospital. In addition, they had to be bathed, toileted and fed. Their beds had to be made, their linen had to be changed and generally a great deal of personal attention, involving heavy lifting and other manual exertion was required.
Because of the motor vehicle accident, the plaintiff's training and examinations were interrupted to such an extent that the completion of her course was substantially delayed by several months. Immediately after the collision the plaintiff was unaware of any serious injury and went home to bed, but the following morning she woke up in considerable pain after a restless night. She said her neck was excruciatingly painful and she could hardly lift her head off the pillow. She attended the emergency department at the Royal Hobart Hospital but x–rays of her cervical and thoracic spine failed to disclose any evidence of a fracture or dislocation. Analgesics and muscle relaxants were prescribed and she was advised to rest at home and undertake physiotherapy. Initially the plaintiff suffered pain in both sides of the neck and the right shoulder and shoulder blade area. The medication did little to reduce the pain and although she attempted to return to her studies at St Johns Park two days after the accident, she found that she was unable to do so.
She began wearing a soft collar which had been prescribed for her at the Royal Hobart Hospital and she also had medical treatment from Dr Lewis at the Hopkins Street Clinic. He referred her to Northside Physiotherapy where she began a sustained course of physiotherapy between January and May 1987. She was able to resume work in mid–February 1987 and in May 1987 she undertook examinations she had been prevented from taking in December of the previous year as a result of the accident.
At this stage the plaintiff was still experiencing pain down the right side of the neck, across the right shoulder blade and down into her right arm. She said that the right arm felt heavy and developed a "pins and needles" sensation occasionally. She had a "heavy" feeling about her head and shooting pains and muscle spasms She also experienced headaches from time to time. The plaintiff said that she was near to tears the whole of the time and that the pain was constant and excruciating. The other staff on the ward where she was working showed a good deal of understanding and sympathy and they assisted her in performing the heavier duties.
Following a short break for a scheduled vacation in February 1987, the plaintiff returned again to St Johns Park and at first she was able to cope with the work quite well. However, as she resumed her heavy lifting duties and similar tasks, she found that the neck became progressively worse and soon reached its original severe level. She found that analgesics reduced the pain slightly but neither analgesics nor anti–inflammatory tablets which she was also taking made any long term difference to her condition. A course of acupuncture provided by Dr Lewis succeeded in relieving the heavy symptoms in her head for a short period of time, but the neck pain continued unabated. As a consequence the plaintiff had to take further time off work from the end of March until the middle of June 1987. During this time she sat for the examinations in May and although she achieved good results, she found that studying aggravated her symptoms She said that concentrating led to headaches quite easily, and reading notes, writing notes, and looking down at her books constantly, aggravated the neck pain. She also noticed that turning her head quickly caused shooting pains in the neck.
She was off work again between August and September 1987 when she underwent a gall bladder operation but it was common ground that this had nothing to do with the accident. On returning to work in September she found that she was once more able to cope with her work as a trainee auxiliary nurse and she said:
"I had good days and bad days still. If I had done a lot of lifting on the ward for that day I got home and my neck was stiff and sore. I used to rub it with Metsal or some Deep Heat and just generally take it easy that night so I could get back to work the next day. On the whole I found I was able to cope with the work."
She also said that if she had two or three days in a row when she was required to do a lot of heavy lifting she may need a day off the following day to recover from the pain in her neck.
Following the Christmas break in December 1987, she returned to work in mid–January 1988. At this stage she said that although she had a constant "niggling" pain, on the whole she was feeling quite relaxed and well. However she was transferred to work in a ward where heavier lifting was required of her and before long she found that the old pattern of symptoms had re–established itself. By March 1988 she had resumed fairly regular visits to the physiotherapist and although her daily work routine was interrupted by a study segment (referred to as "Block"), she found little relief from this source. Sitting still taking notes and studying with her neck bent continued to cause her problems despite being supplied with an armchair and a draughtsman's table by her tutors. Notwithstanding these setbacks, she managed to achieve credits in her examinations.
Upon resuming work in the hospital she found that after completing only two shifts she required more time off work. She was having difficulty sleeping and had also become somewhat depressed. In early June, as part of the continued sympathetic co–operation she was receiving from the administrators, she was given a position assisting the recreation officer. The duties she then had to perform were considerably lighter than those involved with the normal work on the ward. In July 1988 she was transferred to a ward where light work was available, and she found this beneficial. However, she was still needing to wear her neck collar all of the time whilst she was on duty. She sat for State examinations in August 1988 and achieved credits in all subjects.
She had first consulted Mr John Liddell, a neurosurgeon in April 1987 and she returned to see him in September 1988 for further assessment. Mr Liddell's opinion was that the plaintiff had suffered from an acceleration/deceleration injury to the cervical spine involving ligamentous and other soft tissue damage. He had been guarded in his early prognosis and even when she reported substantial improvement to him in November 1987, he was unable to rule out the possibility of her requiring further investigations and/or treatment at some time in the future. When he saw her in September 1988, she complained to him of pain in the right side of the neck with radiation into her shoulder, interscapular and right shoulder blade region. She was also experiencing thick and sluggish feelings in the right arm, with intermittent paraesthesias in her right arm, radiating into her ring and little fingers. His examination revealed that the movements of her cervical spine were severely and diffusely restricted. There was also a severe degree of diffuse tenderness in the mid–line throughout the whole of the cervical spine region. X–rays however were unremarkable.
Mr Liddell arranged for the plaintiff to have some diagnostic facet blocks performed by Dr Michael Jackson. Dr Jackson performed the first of these procedures in October 1988 and he too noted that the plaintiff suffered moderate to diffuse decrease in her cervical movements in all directions. He also noted tenderness on the right side of the neck between C4, 5 and 6. He considered this to be the likely source of her ongoing symptomatology. He tested her with a TENS machine but the results were not beneficial. The plaintiff said that the relief she received from the facet blocks was transitory only. These diagnostic procedures were carried out on four or five occasions between October 1988 and April 1989. Dr Jackson formed the opinion that the plaintiff was unfit for work as a trained auxiliary nurse and gave her a month's sick leave after the first facet block and she continued on sick leave until she ceased employment at St Johns Park on 13 October 1988. If she had continued her training uninterrupted by the accident and the gall bladder operation, she would have graduated in January 1988. Allowing for the time taken for the gall bladder procedure, she would have graduated by March 1988. On this basis some six or seven months of the delay in her qualifying can be attributed to the motor accident.
The plaintiff says that upon graduation she expected to take up three months' temporary employment at St Johns Park and then, if given the option to do so, she would have continued on as a temporary or permanent employee. After applying for a position at the Mersey General Hospital without success, she applied to the St Johns Park authorities for "on call" work, that is, part time relief employment. The plaintiff anticipated that she would be able to pick and choose the shifts on which she worked, but in a letter to her dated 5 December 1988, Ms M J Fawdry, the Acting Director of Nursing, made it clear that she had serious reservations about the plaintiff's ability to perform this type of duty. Ms Fawdry indicated that she would be prepared to reconsider the plaintiff's application if she obtained two specialist medical reports indicating her fitness to carry out work as a trained auxiliary nurse (a TAN) at St Johns Park. Conscious of her limitations in carrying out heavy nursing duties, the plaintiff applied for a number of positions as a child care attendant, but without success. There is no direct evidence to suggest that she failed to obtain this employment as a result of her neck disability.
In late April or early May 1989, the plaintiff succeeded in obtaining employment at the Jack and Jill Child Care Centre. This work involved looking after children ranging from about two months to five years of age. This was casual work only and was available on one or two days a week at first, later increasing to an average of three days a week. The plaintiff found that she could cope with this work and she continued in this employment until June 1989 when she moved to Queensland. At that time she had become romantically involved with her present de facto husband, Robert Reynolds, and he wished to travel interstate. Additionally, the plaintiff anticipated that moving to a warmer climate may provide her with long term relief for her painful neck symptoms Additionally, she had found that there were few jobs available in Hobart at the time for trained auxiliary nurses outside the geriatric area and she had realised that it was necessary that she should avoid employment which involved constant heavy lifting.
One of the disabilities of which she complains is an inability to drive a motor car for long distances. However, she managed to drive her motor car from Melbourne to Queensland, albeit with numerous stops on the way. She did however find it necessary to wear her soft collar and she found that after each day's driving, her neck was very sore indeed. In Brisbane, she was fortunate enough to obtain employment as an enrolled nurse (the Queensland equivalent of a trained auxiliary nurse) at the St Andrews War Memorial Hospital working in the sterilising department. This work was much less arduous than the duties that she had been performing at St Johns Park and which she would have been required to perform had she obtained employment as an enrolled or auxiliary nurse on the wards. Her principal duties involved cleaning and sterilising surgical equipment and utensils and preparing theatre gowns for the surgeons and operating theatre staff. These were distributed by trolley to their various destinations. Generally the plaintiff coped well with this work and experienced few problems There were however some days when her neck was sore and there were one or two occasions when she needed time off. On one occasion she attempted to play ten pin bowls, a sport in which she had previously played competitively, but after only half an hour's play her symptoms had progressed to such a stage that she found it necessary to take the next three days off work. She saw general practitioners on two occasions and was prescribed analgesics for pain relief and she also underwent a bone scan and x–rays at the direction of a neurosurgeon. She continued her employment in Queensland until February 1990. She then returned to Tasmania.
Her main reason for doing so was that she found the Queensland heat very oppressive and it had failed to provide long term symptomatic relief for her neck. She believed that she had successfully arranged to obtain a job at the New Norfolk District Hospital but on returning to Tasmania, found that the position was not available. Nevertheless, she soon obtained employment at the Kingborough Nursing Home on 28 February 1990. However, the Kingborough Nursing Home is a geriatric nursing establishment and it was necessary for her to perform duties similar to those which had previously caused her trouble at St Johns Park. She said:
"Probably just after about a week of being in there I progressively got worse. My neck started to get sorer and sorer and my shoulder to the stage after I was there about a month I was having a lot of trouble with my neck, a lot of trouble carrying out the duties there so I went to see a doctor, Dr Marstrand at the Hopkins Street Clinic and she wanted me to stop work more or less immediately and because I'd only just started there and didn't want to sort of let them down and also let myself down, because I needed the money, I tried to keep working but probably after two days after I'd seen her I had to come off work because of my neck. I just couldn't lift any more."
The plaintiff said that she was then off work for about 2½ weeks. This was in early April. The plaintiff said:
"Once I was fit to go back to work I rang them up to see if any work was available and I was told, 'No, ring up in a couple of day's time'. So I rang up in a couple of day's time the answer again was, 'no ring up in a day or two', and I did this on approximately about four occasions. At this stage I still didn't have any work I was getting no income of any sort and my neck was quite aggravated and I can't think of any reasons but I was actually starting to get worse again and so I resigned from the job there."
Mr Graeme Cauley, the Director of Nursing at the Kingborough Nursing Home was called to give evidence on behalf of the defence. He gave evidence as to the circumstances in which the plaintiff ceased working at the nursing home and he said:
"I recall that she went off sick for three days and then I was informed that she had gone to Launceston and would contact me when she was ready or when she was better."
He also said that she did not come back to work at all after that time and when asked whether she had subsequently made further contact with him, he said he was unable to recall. He said that if she had come back seeking work after sick leave, further employment would have been available to her. He regarded her standard of work as very satisfactory. On the face of it, although Mr Cauley did not claim perfect recollection, there appears to be a discrepancy between his evidence and that of the plaintiff as to the circumstances in which she ceased working at the Kingborough Nursing Home. I find this discrepancy difficult to explain as the plaintiff was a generally impressive witness and I found the great bulk of her testimony completely credible and reliable. However, little turns upon this conflict in the evidence as it is plain that the plaintiff ceased work at the Kingborough Nursing Home following a period of incapacity brought upon by the heavy nature of her work.
Mr Liddell, Mr Hunn, a neurosurgeon called by the defence and several nurses and nursing administrators who gave evidence, as well as Mr Cauley himself, all agreed that the duties of a trained auxiliary nurse were physically demanding and Mr Liddell and Mr Hunn also agreed that the plaintiff should not be undertaking work of this kind.
A report dated 6 September 1988 by Mr Graeme Duffy, an eminent neurosurgeon who died earlier this year, was tendered in evidence by consent. In that report Mr Duffy expressed the following opinion:
"I believe that she would be capable of undertaking work as an auxiliary nurse although she would be advised to avoid heavy lifting."
Mr Duffy saw the plaintiff on one occasion only shortly before she had completed her training as an auxiliary nurse. He was not cross–examined of course, and in any event, his opinion about her capacity to perform nursing work is very heavily qualified by the requirement that she should avoid heavy lifting. As already mentioned, it seems that this is almost impossible except in very selective fields such as the sterilising department job held by the plaintiff in Queensland.
Defence counsel, Mr Jackson, submitted that as the plaintiff was prepared to seek employment in the nursing field, her claim to be disabled from this work must be viewed with a degree of suspicion. It was also submitted that because of the plaintiff's conflict in evidence with Mr Cauley, and her failure to call corroborative evidence from Mr Robert Reynolds who was present at the court during the course of the trial, that her evidence should be viewed with some circumspection, if not mistrust. I paid close attention to Miss Foote while she was giving her evidence and I saw no indication that she was practising deceit or exaggeration. My inclination to accept her evidence as truthful was substantially strengthened by the candid way in which she responded to cross–examination about her present attitude to working as a trained auxiliary nurse. She freely admitted to Mr Jackson that she is seeking employment in this area at the present time and would undertake such employment if it was forthcoming. A plaintiff who was seeking to maximise her claim would hardly make these concessions, particularly in light of the medical evidence which supports the conclusion that she should not be working as a nurse at all. When Mr Jackson suggested to Mr Liddell that the plaintiff's willingness to undertake nursing work and child care work perhaps indicated that her symptoms were not as bad as she claimed, Mr Liddell very neatly summarised the position when he said "[it] tells you one of two things, it tells you something about the extent of her symptoms or the extent of her desire to get on and do what has to be done". It tells me that the plaintiff has a genuine vocation for nursing and a desire to continue in her chosen profession for as long as she is able although her past experiences suggest that from a practical viewpoint she is unable to do so. I think it is to the plaintiff's moral credit that, notwithstanding her disability, she continues to seek employment in the area of her vocational choice. The whole of the evidence however satisfies me that she should be regarded as disabled from working in this sphere and indeed, in any other area of employment in which constant heavy lifting, bending or stooping is required. She will also have difficulties in any sedentary job where she is required to bend over a desk or keyboard for sustained periods of time.
I do not overlook the point made by Mr Jackson that during her employment over a period of six or seven months in Brisbane the plaintiff only required five days off work in total and three of these were not related to the nature of the job but resulted rather from her ten pin bowling activities.
Before entering the work force the plaintiff said she had an ambition to undertake general nursing. However she failed to matriculate and consequently was unable to do so. It is noteworthy however, that Della McCallum, a friend of the plaintiff who gave evidence at the trial, and her de facto husband Robert Reynolds, both of whom originally qualified as trained auxiliary nurses are now undertaking further study to qualify for their general nursing certificate. The award salary payable to a general nurse is considerably higher than that payable to a trained auxiliary nurse. I am of opinion that it would be within the plaintiff's capacity to achieve the academic standard required for qualification as a general nurse. However, it is plain that the physical demands of such employment would be beyond her. It was not put as part of the plaintiff's case that her lost earning capacity should be assessed against an assumed income as a general nurse and I have no intention of performing that exercise. To a degree it is speculative to suggest that the plaintiff would have developed in this way, but it is not without significance that evidence given at the trial strongly supported the view that general nurses are in much greater demand than trained auxiliary nurses. Coupled with the significant financial advantage that a general nurse has over a trained auxiliary nurse, it is easy to see why someone such as the plaintiff would be motivated to develop his or her career along the general nursing path.
It was submitted that no allowance should be made in the award of damages for either past or future economic loss. An award of this kind is of course made for lost earning capacity and there is no need to refer to authority to support this trite observation. The defence submission was in part based upon the proposition that the plaintiff had not restricted herself in applying for employment in the past and it had not been shown that any jobs which she failed to obtain were due to the disability in her neck. In my opinion, this submission is only partly correct. In my view it is highly likely that the plaintiff would have continued on at St Johns Park after her qualification in October 1988 had she been 100% physically fit. Whether she would still have been employed at that institution is perhaps speculative, but I am satisfied that in view of the high regard in which she was held by Ms Marsha Fawdry and Mrs Margaret Mollison, her good academic results and her high degree of motivation, that in all probability she would have remained in constant employment as a trained auxiliary nurse until the present time had it not been for the injury that she sustained to her neck in December 1986. In reaching this conclusion I do not overlook the fact that opportunities for employment as a trained auxiliary nurse in private hospitals are somewhat limited in Hobart.
The plaintiff says that she has no desire to continue with her present job preparing food at the Sandwich Factory in Launceston for the rest of her life and she has applied to enrol at the TSIT next year to undertake a Bachelor of Applied Science course. This is a course of three years' duration and the plaintiff sees it as an avenue to obtaining future employment as a medical laboratory assistant. She has not yet been notified that her application has been accepted and in any event, I feel unable to accept her counsel's submission that the award of damages should in effect provide her with remuneration commensurate with a trained auxiliary nurse during the three or four years in which she may be involved with this course of study. It cannot fairly be said that she has been driven to this as a rehabilitative measure necessitated by the accident. It is something that she may well have undertaken at this stage of her life whether she had been injured or not.
In my opinion, this is not a case where damages for lost earning capacity can be assessed by using some mathematical yardstick. It is plain however that the plaintiff has lost a significant part of her earning capacity. She is no longer able to undertake the employment for which she was trained between 1986 and 1988. Many other avenues of employment are closed to her because she is precluded from heavy lifting. Occupations requiring her to sit at a desk and use a keyboard are also likely to cause serious problems The plaintiff has also learnt to type with a view to obtaining a job as a medical receptionist. She undertook this course at the TAFE in Launceston. However she finds that sitting still in one position aggravates her neck condition. She is doubtful whether she could cope with a clerical job involving long periods of typing. In my opinion, these doubts are well founded. In view of her past history I think it entirely likely that the neck injury will flare up from time to time and she will be obliged to take time off from work. At the present time the plaintiff is earning $244 net per week. Defence counsel submitted that she could not realistically expect to earn more than this as a trained auxiliary nurse. However Mr Di Falco, the personnel officer at St Johns Park Hospital, New Town, gave evidence which satisfies me that a full time auxiliary nurse employed upon rotating shifts is likely to earn penalty rates averaging 28% above basic pay over the period of one year. Current gross base salary of a two year trained auxiliary nurse is $21,191 per annum. There are currently 73 full time trained auxiliary nurses employed at St Johns Park Hospital. By reference to evidence given from other administrators of nursing homes and the like, two features of significance emerge. Firstly, that where possible, such institutions will employ general nurses rather than TANS and secondly, that where TANS are employed, a pattern can be seen suggesting that the greater number of them choose to be employed on an "at call" or part time basis only. I agree with defence counsel's submission that there are only limited opportunities for a TAN to obtain employment at the present time, but I cannot agree with his contention that the employment pattern at private nursing homes indicates a likelihood that the plaintiff would not be employed full time as an auxiliary nurse if she was working in that capacity at the present time. It was also submitted that as the plaintiff had full time work as a TAN in Brisbane and voluntarily ceased that employment, it can no longer be said that any diminution in earning capacity which she has is caused by the injury sustained. I have considered this argument carefully but I have come to the conclusion that the plaintiff's journey to Brisbane was substantially motivated by her hope that the sub–tropical climate would alleviate her symptoms, whereas in fact the Brisbane heat was found to be so debilitating as to seriously discomfort her. I think it reasonable that she should have ceased that employment and I also think it reasonable and appropriate to attribute any current diminution in her actual earning capacity to the accident in December 1986.
I am satisfied on the probabilities that not only is the plaintiff restricted in the sphere of employment now available to her, but also that she is at a disadvantage in competing for jobs within her present physical capabilities. I consider it likely that many employment applications will require disclosure by her of her neck injury. Several of the employment applications tendered in evidence reveal that she has been obliged to do this in the past. I also find that when she applied for work at the Kingborough Nursing Home, it was suggested to her by Mr Cauley (even if he did not make it a positive requirement) that she should disclaim any entitlement to workers' compensation for subsequent injuries to the neck. Plainly therefore she will have a dilemma whether to make known to a prospective employer the fact that she has a partial disability. If she discloses the true position she will be at a disadvantage. Any prospective employer would naturally be concerned about his potential liability for future workers' compensation claims if he employed such an applicant. In conclusion, therefore, I take the view that the plaintiff is currently receiving less remuneration for her labours than she would have had she not received the neck injury. Furthermore, I take the view that she is at a disadvantage in the labour market as a consequence of that neck injury. In my opinion, an award of $55,000 for both past and future economic loss would be appropriate in this case. In reaching this figure I have taken into account the possibility that the plaintiff's disability is not necessarily permanent and that it may resolve itself in years to come. However, I should say that on the basis of Mr Liddell's opinion, which I prefer to that of Mr Hunn in this respect, I think it unlikely that the plaintiff's condition will improve significantly in the future.
I have also taken account of the fact that the plaintiff is likely to marry and may have children. However, current social and economic practices are such that working mothers are the norm rather than the exception and consequently, I would consider it likely that she would return to the work force soon after the birth of each child.
The plaintiff said that at the present time she has pain down the right side of her neck, across the right shoulder blade and into the right upper quarter of her back. On rare occasions she experiences the "heavy" feeling and "pins and needles" in her arm. She says that there is always a heavy feeling in her head and that her pain is always present in the form of a constant mild ache. This ache is quite easily "stirred up" into pain. She said that she felt quite sore in the witness box sitting still being unable to move about. I should record that I noticed the plaintiff touching her neck on several occasions while she was giving evidence and also later during the trial when she was sitting in the body of the court. I have no reason to suspect that this was a performance put on for my benefit and I accept that the plaintiff was experiencing a moderate degree of discomfort in the neck during the greater part of the trial.
Asked by her counsel as to her limitations, she said:
"There's nothing I can't do, I have difficulties doing most things. Things like vacuuming I now do left handed ... ironing I can't do for any length of time, I sort of try and limit it to half an hour's ironing at a time because the constant pushing an iron makes my shoulder ache. Hanging the washing on the line, every time I hang the washing on the line it makes my neck and shoulder ache and I have developed a peculiar sort of style of having one arm up and the other sort of like here and I try and pull the clothes line down to reach as well as I can. Washing the windows, I do thinks like that left handed and occasionally as I said I do it right handed and my shoulder starts aching after a very short time."
She also said that she washes her car left handed and that driving long distances causes her to become stiff and sore. She participated in many sporting activities before her accident in December 1986 but I accept defence counsel's submission that the greater part of her sporting activity occurred when she was living on the North West coast and before she commenced her employment at St Johns Park. No doubt the diminution of her sporting involvement was due in part to the work load and study requirements at the hospital. The plaintiff said that whilst living on the North West coast she used to play netball, badminton and tennis on a competitive basis. She also played squash and volley ball. She enjoyed swimming, especially in summer and would swim either at the beach, the pool or in a river somewhere on most summer days. She was hopeful that she would continue with these activities once she had settled in to Hobart and made new friends. She also enjoyed disco dancing.
Since the accident she has tried to play squash and tennis on a couple of occasions, each time she has found that her symptoms have been aggravated. She was encouraged by the physiotherapist and doctors to swim but she found that "just fun swimming it's fine no problems at all but actually doing strokes and laps and things like that ... stirs it up." She has tried this on several occasions with the same result. She is unable to dance with the same vigour as she did prior to the accident. Knowing that she will pay for her exuberance with a headache the following day, she now tends to avoid going to dances. She has not tried net ball since the accident. She takes medication from time to time, mainly Panadol or Panamex but on occasions she requires a strong analgesic such as Panadene Forte. On average she spends about $10 per month on medication. Mr Liddell expects that she will continue to experience significant discomfort for a long period of time. He is also of the view that it may be necessary to undertake further investigations with a view to considering surgical intervention. Mr Liddell said:
"I think the ideal situation would be for us to hope to define one particular joint, disc or area of the spine that was symptomatic in which case if we were to fuse that area there would be a reasonable chance of improving the situation. Neck injuries are frequently not quite as simple as that and there may be damage to two or three levels and addressing one particular level may produce a less than ideal result so it's by no means black and white."
He also said that the plaintiff's pain may arise from the facet joint in which case further investigation of facet blocks would be appropriate. Further investigative procedures that he suggested were a cervical myelogram and a CT scan, coupled with a diagnostic discography. Dependent upon the outcome of those procedures it may be necessary to operate and perform a discectomy. He said that a myelogram and a discogram would require about three days of hospitalisation and the discectomy procedure would require anything from a week to a week and a half.
The plaintiff is aware of Mr Liddell's recommendation and is currently opposed to undertaking any of these procedures. Mr Liddell said that he could understand this attitude and that he regarded it as quite a reasonable reaction on her part to refuse to undergo either the diagnostic or surgical procedures. He added:
"I think it would be pertinent to make one comment with regard to discography. That's an invasive procedure, you stick your needle into a disc and that's not something that I would undertake until someone had gotten to the point where they had felt that their symptoms were sufficiently severe to justify surgery. It's not something that one does simply to find out what's going on".
No estimate was given of the period during which the plaintiff would be incapacitated following any of these operations. Nonetheless it is appropriate that some allowance should be made against the possibility that the plaintiff's condition will deteriorate to such an extent that she may elect to undergo these procedures. Taking into account the hospital costs and surgeons' and anaesthetists' fees, as well as the plaintiff's potential loss of income, I think it would be reasonable to allow a moderate sum against this contingency. I propose to allow the sum of $1,800.
For future medical expenses I propose to allow the amount claimed in the plaintiff's particulars dated 2 September 1990, namely, $2,978, accepting as I do that she is likely to continue spending about $10 per month on analgesics and the like. It is also likely that she will need to consult a doctor from time to time or undertake some further physiotherapy.
In assessing the plaintiff's past and future economic loss, I have left out of account the sum which it was agreed she had lost up until she ceased employment at St Johns Park. I allow this item as agreed at $3,625.80.
In assessing an amount for pain, suffering and loss of amenities and enjoyment of life, I take into account the chronic nature of the plaintiff's condition and her vulnerability to the onset of pain brought about by relatively commonplace physical activity. All in all I think a proper sum under this head is $26,000.
I therefore assess the plaintiff's damages as follows:
Pain, suffering and loss of amenities $26,000.00
Past and future loss of earning capacity
after October 1988 $55,000.00
Past economic loss to October 1988 $ 3,625.80
Allowance for future diagnostic or
surgical procedures $ 1,800.00
Future medical and pharmaceutical expenses $ 2,978.00
Total $89,403.80
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