Gorton v Payne - [2001] WADC 233

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: GORTON -v- PAYNE [2001] WADC 233

CORAM: FENBURY DCJ

HEARD: 26-28 JUNE 2001

DELIVERED : 19 OCTOBER 2001

FILE NO/S: CIV 4045 of 1999

BETWEEN: MARIE ANN GORTON
Plaintiff
AND
KIRSTEN PAYNE
Defendant

Catchwords:

Damages - Motor vehicle accident - Soft tissue injuries to shoulder, low back and headaches - Turns on own facts

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943

Result:

Judgment for the plaintiff

Representation:

Counsel:

Plaintiff: Mr T N Cullity
Defendant: Mr K N Allan

Solicitors:

Plaintiff: Trewin Norman
Defendant: K N Allan

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

Nil

Case(s) also cited:

Nil

FENBURY DCJ: This is an action for damages for personal injuries suffered by the plaintiff in a motor vehicle accident that occurred on 28 January 1998. The plaintiff was a passenger in the motor vehicle. She was being driven on Shepparton Road in East Victoria Park. The vehicle collided with a pole after taking evasive action in order to avoid the vehicle driven by the defendant. Liability is not in dispute.
The plaintiff has been involved in two previous motor vehicle accidents. They occurred on 23 May and 10 July 1994. She commenced proceedings in the District Court for damages for the injuries she sustained in those two accidents. Her claim in respect of both those accidents was settled at a pre‑trial conference on 24 May 1996 in the sum of $37,500. The plaintiff agreed that that figure took into account the claim that she then had for loss of earning capacity (T39).
The plaintiff stated that on 15 July 1996 she commenced full‑time work with a company named BGC where she worked until her resignation dated 7 August 2000.
The plaintiff asserts that she suffered personal injuries and loss as a result of the motor vehicle accident in 1998, the subject of the trial, and she blames her resultant residual disabilities as being the primary cause for her resignation from BGC.
It is put on behalf of the defendant that the injuries the plaintiff suffered in the 1998 accident are the same or very similar to the injuries she had previously suffered in the 1994 accidents for which she has already been compensated, and accordingly she is entitled only to a nominal award. It is also put on behalf of the defendant that there were a variety of reasons not connected with the accident for the plaintiff's resignation from BGC.

The plaintiff's evidence; pre 1998 accident

The plaintiff was born on 12 June 1957 and was thus just 44 years of age at the time of trial. The plaintiff gave evidence that immediately following the 1998 accident she felt pain in her arm, neck, left leg and lower back. She was asked whether she had ever previously suffered from pain at all "that is to say, in the last year or two, prior to the accident in 1998?" She answered "On the odd occasion, yes."
The plaintiff said that the injuries she suffered in the 1994 accidents were "soft tissue damage, neck pain, arm pain, lower back". She said she also suffered with headaches. The plaintiff said that although she suffered injuries in the 1998 accident which were "very similar to what I suffered in 1994, as in the neck, the arm and the lower back,…the pain was quite a lot more intense".
A book of various documents including the pleadings and medical reports that related to the 1994 accidents was tendered in evidence (Exhibit A). The injuries pleaded in the statement of claim in concerning the 1994 accidents were as follows:
"(a)Headaches.
(b)Trauma to the cervical region involving spinal, muscular and soft tissue injuries.
(c)Pain to the shoulders.
(d)Pain to the arms.
(e)Pain to the left elbow and wrist.
(f)Trauma to the thoracic region involving spinal, muscular and soft tissue injuries.
(g)Trauma to the lumbar region involving spinal, muscular and soft tissue injuries.
(h)Sleep disturbance and anxiety.
(i)Depression."
It was pleaded in that statement of claim that the plaintiff suffered from continuing and permanent disabilities including "headaches, neck, shoulder, arm, elbow, wrist, back pain, (sic) sleep disturbance, anxiety and depression."
In further and better particulars the plaintiff claimed just over $14,000 for past economic loss and $35,000 for future loss of earnings.
As I have mentioned, the plaintiff settled her claim for the 1994 accidents on 24 May 1996 in the sum of $37,500.
The plaintiff said that she was unemployed at the time her claim was settled. After the claim was settled she said that she commenced working with various employment agencies and eventually obtained a position with BGC. She said that she continued to take medication in the form of Mersyndol Forte but not regularly and sometimes not at all.
The plaintiff said that prior to the 1998 accident her condition had improved. After she commenced with BGC she had limited time off work. She worked from 7.30 am to 5.30 pm. She worked as a telephonist receptionist and had other duties. It was a very busy position. Between 500 and 1,000 calls per day came through the switchboard. The plaintiff also had to arrange board meetings, organise couriers, distribute mail, handle facsimiles, photocopying and other similar matters.
Basically, the plaintiff asserted that prior to the 1998 accident she was in full time employment in a demanding position and coping, albeit with occasional assistance from analgesic medications. She claimed that after this accident her earning capacity was significantly reduced.
Before referring further to the plaintiff's evidence it is convenient to deal with the medical evidence.

The medical evidence

As I have mentioned the plaintiff was involved in a motor vehicle accident on 28 January 1998. The plaintiff had three days off work and then attended upon Dr Ted Collinson at the Kelvale Medical Centre. She was immediately referred for physiotherapy treatment on 1 February. Dr Collinson wrote in Exhibit D1 that the plaintiff required treatment for left shoulder girdle pain secondary to a motor vehicle accident. In his remarks he said the plaintiff had a motor vehicle accident 2 years previously and that "left shoulder girdle pains ‑ really never settled and another MVA 28.1.98 has stirred things up…"
In his report dated 27 February 1998 to the Insurance Commission of WA (Exhibit D2) Dr Collinson advised that when she attended upon him on 1 February 1998 the plaintiff "was complaining of soreness in the left shoulder girdle and arm". The doctor also said that the plaintiff had a previous history of being involved in a motor vehicle accident on 4 May 1994:
"from which she has never fully recovered when she sustained injury to the same area."
Dr Collinson said that on examination the plaintiff had swelling of the left suprascapularis muscle and markedly reduced range of movement of the left shoulder. He said that generally there was a lot of muscle tension throughout the shoulder girdle. He also said that:
"These injuries are consistent with this accident given that she has ongoing problems from the earlier accident. If she had no previous problems at all then I think it unlikely she would have any problems now."
He also said that the plaintiff was experiencing headaches which fluctuated in severity.
Dr Collinson, as I said, referred the plaintiff for physiotherapy and she underwent a technique known as the felden kries physiotherapy technique which addresses muscle spasm. The technique was apparently unsuccessful and consequently Dr Collinson decided to refer the plaintiff to Dr Whiteside for myofascial injections. The plaintiff said that she found the injection procedures carried out by Dr Whiteside to be extremely painful and she discontinued them after a short while. She then also decided to cease seeing Dr Collinson and returned to consult her family doctor, Dr Ian Matthews.
Dr Whiteside wrote in his report dated 9 June 1998 (Exhibit E1) that the plaintiff's "pain pattern" was essentially the same for the 1994 accidents as it was for the 1998 accident. However, on a scale of 1 to 10, he felt that prior to the 1998 accident the plaintiff's pain was measured at 5 out of 10 and that after the accident it was constant at 8 to 9 out of 10. His reports indicate that the plaintiff underwent a number of painful injections which had very modest short term results.
On 7 May 1998 the plaintiff returned to see Dr I G Matthews who had been the family doctor for many years. Dr Matthews had not seen the plaintiff following the 1994 accidents. She was then treated by Dr Williams. She did not return to see Dr Williams because he had moved his practice to an inconvenient distance. During this period the plaintiff said that she had difficulties at work. She had time off. She decreased her hours at work. She occasionally used to sleep in her car at lunch time in order to ease her difficulties with fatigue.
Dr Matthews wrote nine reports (Exhibit F1‑9). His first report is dated 23 July 1998. It is noticeable that he makes no reference in any of his reports to the 1994 accidents. Dr Matthews treated the plaintiff from 7 May 1998 until earlier this year.
In his first report Dr Matthews mentions the plaintiff taking days off work after having had injections. He mentions that she had massage with "Tony's Massage" in Gosnells. In his report of 30 December 1998 he observes that the plaintiff was working full time although taking analgesics. He said that she was limited in her duties in that she was unable to stack boxes as she was expected to do. In the first three months of 1999 Dr Matthews saw the plaintiff on four occasions and reports that she continued to have severe local tenderness in her neck, shoulder and upper arm. She was undergoing physiotherapy. She was wearing a shoulder brace. She was taking analgesics. He mentions that the plaintiff was referred to an orthopaedic surgeon to whom I shall soon refer. Dr Matthews said the plaintiff was limited in her work by her pain and discomfort. As one reads his reports he describes the increasing difficulty the plaintiff was having with her work.
By mid 2000 the plaintiff reported having difficulties in concentration at work. She had reduced her hours to four hours per day. She was referred to a psychologist, Mr Chris Semmens. In his report of 22 September 2000, Exhibit F8, Dr Matthews states that the plaintiff was unable to cope with employment and had ceased working on 11 July but was "hopeful to return in the near future with expected improvement". In his last report Dr Matthews observed that the plaintiff's work capacity was extremely limited.
Dr Matthews referred the plaintiff to a number of other medical practitioners during the period I have just summarised. He referred her to Dr Geoffrey Gee who is a specialist anaesthetist and consultant in pain management. Indeed Dr Gee had seen the plaintiff following her 1994 accidents. In a report he wrote dated 24 July 1995, Exhibit J1, relating to the 1994 accidents, Dr Gee concluded that the plaintiff's symptoms were predominantly muscular. On examination he noted that the plaintiff's left shoulder was elevated with tenderness through the trapezius. She had a good range of movement in her neck.
In his report of 18 August 1998, relating to the 1998 accident, Exhibit J2, Dr Gee reported that the plaintiff was complaining of extensive headaches which extended to the cervical region. She also experienced cervical and chest pain and restriction in shoulder movement. On examination he found that she had particular tenderness on the left shoulder area and he decided that an ultrasound was appropriate. The ultrasound revealed that the plaintiff had some subacromial thickening in the bursa with "impingement on abduction", and he decided to refer the plaintiff to an orthopaedic surgeon, Dr Tony Jeffries.
In his final report dated 27 March 2001 Dr Gee answered specific questions put by the plaintiff's solicitors and he stated that the plaintiff's symptoms were predominantly related to a soft tissue injury in the 1998 accident "superimposed on preceding soft tissue injuries". He expected that the plaintiff's symptoms should settle with time. He also acknowledged that anxiety and stress were contributors to the plaintiff's level of symptoms. He said he believed the plaintiff had capacity to work at least half time in her duties and that he felt she would ultimately return to full time employment.
Dr Jeffries, an orthopaedic surgeon, saw the plaintiff in about October 1998. He questioned the plaintiff in relation to her previous condition and she apparently denied any specific history of neck pain. She said that she did have shoulder pain after the 1994 accidents but it was never investigated. In his report, Exhibit L1, on 23 October 1998, Dr Jeffries reported that the plaintiff's major presenting symptom was pain over the superior aspect of the left shoulder and radiating into the upper arm to the level of the elbow with occasional tingling sensations in the fingers. This was her most significant pain and it was aggravated by activities such as shopping, carrying and also mopping. Overhead movements were difficult.
On examination Dr Jeffries found that the plaintiff had tenderness over the subacromial space. He observed that the plaintiff had had two ultrasounds in May and August of 1998 and his clinical impression was that the plaintiff showed evidence of rotator cuff impingement and tendonitis. He recommended she have an ultrasound guided injection of the subacromial space together with x‑rays.
In his report dated 20 April 1999 Dr Jeffries said that he arranged for the plaintiff to have an MRI examination of the left shoulder. He felt that it was probable the plaintiff would require surgery considering her lack of response to non‑operative treatment.
In his report of 15 October 1999, Exhibit L3, Dr Jeffries reported that he had performed an arthroscopic acromioplasty on 19 August 1999. There was moderate subacromial bursitis and a "partial articular surface tear of the supra spinatous tendon". Six weeks after the surgery he reported that the plaintiff was doing well. He felt she could return to work on light duties. He said that she would have limitations with respect to repetitive overhead use of the arm and carrying and lifting but that she should continue to improve.
In his report of 2 February 2000 he noted the plaintiff had returned to light duties. In his final report of 27 July 2000 he summarised the plaintiff's position thus:
"In my opinion this lady is able to return to work which I understand she has already done. I have advised her that I think she should be able to return to her normal full duties on a graduated basis. She should be guided by Dr Matthews in this respect as he is able to see her on a regular basis. With regard to any limitations, I believe Mrs Gorton may have some ongoing limitations in the short term, particularly with lifting or repetitive use of her left arm."
With respect to the earlier reference concerning the referral of the plaintiff to Christopher Simmonds, clinical psychologist, a report dated 8 September 2000, Exhibit G, made reference to the plaintiff having difficulties with unresolved grief arising out of the loss of her parents in 2000. Her father died in January quite suddenly and her mother died in about July after losing a long battle with cancer. I shall comment about this aspect of the case shortly.
The plaintiff was also referred by her solicitors to Mr Peter Watson who is a neurosurgeon. He wrote a report dated 23 September 1998 (Exhibit C1). Mr Watson felt the plaintiff was able to continue with her work at that time although he felt she might require periods of leave over the following six months to help settle her symptoms. He felt that the plaintiff had suffered a further exacerbation of soft tissue and ligamentous injuries of the cervical spine in the 1998 accident.
In his report dated 26 March 2001, Exhibit C2, Mr Watson observed that the plaintiff's symptoms in her cervical spine and "referred arm pain" had affected her ability to work together with ongoing and increasing headaches and neck pain. She had reduced her hours as a result. He felt she was unlikely to be able to continue to work full time. Mr Watson felt that the plaintiff's lack of overall progress was rather disappointing despite having had successful surgery on her left shoulder with Mr Jeffries. He said:
"Her ongoing complex of symptoms in the cervical spine, associated headache and lower lumbar spine symptoms if anything seem worse despite the fact of the passage of 2½ years."
However he still recommended a conservative approach. He was unable to say, in the absence of recent imaging, whether the plaintiff's working life had been shortened but felt that for the foreseeable future the plaintiff would be restricted to part‑time work.
The plaintiff was also referred to Mr Quentin Malone, a neurosurgeon, who wrote one report, Exhibit M, which is dated 14 February 2001. Mr Malone was not called to give evidence. In the conclusion of that report he expressed an opinion in the following terms:
"Represents with ongoing left sided shoulder pain syndrome, which may well have a component of facetal irritation associated with it. There is no evidence of any nerve root entrapment or radiculopathy."
To complete my review of the medical evidence the only other witness called in the case was Mr Peter Bath, an orthopaedic surgeon called on behalf of the defendant. Mr Bath had seen the plaintiff following the 1994 accidents. In his report of 30 August 1994, which was part of Exhibit A, Mr Bath felt that the plaintiff's symptoms should go on to settle with time. In his report of 27 April 1995 he made reference to the plaintiff having pain over the scapular area near the left shoulder. There was no muscle wasting. There was generalised tenderness and some loss of range of movement.
In the first of his reports relating to the 1998 accident, Exhibit 8A, being a report dated 13 August 1998, Mr Bath spoke of having reviewed the plaintiff on 23 July. In his report he dealt specifically with the plaintiff's pre 1998 accident situation. He reported as follows:
"Following the previous review in April 1995, Mrs Gorton said that her symptoms went on to improve but not to have settled 100 per cent. She said that she continued to be unable to put towels on the line for example with respect to the symptoms in the left arm. She had the same troubles with mopping or using a broom. There was difficulty also with headaches and she didn't get back to basketball or super league indoor cricket because of the symptoms in the left arm. …however she was able to continue her work as a telephonist."
In cross‑examination Mr Bath agreed that the plaintiff had said she "couldn't easily put" towels on the line, she had not said she was unable to do so. He made this concession after reference to his notes.
Mr Bath reported the plaintiff stated that following the 1998 accident she had trouble with headaches and pain in the left shoulder. In the concluding remarks of this report Mr Bath said that the plaintiff's present presenting symptoms were "an aggravation of the pre‑existing symptoms in the left arm" and he noted other symptoms and then stated that he felt the current symptomatology "probably is much the same as that experienced previously".
In his report of 26 March 1999, Exhibit 8B, Mr Bath reported that having seen the plaintiff on 2 March she was using a velcrose support brace for her shoulder. She complained of similar symptoms with headaches and symptoms in the shoulder however, in spite of this she was continuing to work with BGC Contracting. Mr Bath said that he felt the symptoms continued to relate to the plaintiff's motor vehicle accident, presumably the 1998 accident.

Mr Bath's final report, Exhibit 8C, was dated 28 March 2001. He had reviewed the plaintiff on 22 February. He reported on the plaintiff's attendance at work and difficulties that she had suffered which required her to take analgesic medication and occasionally Pethidine injections. Those symptoms relate to migraine, numbness of the right side of the face on one occasion, low back pain and persistent symptoms in the left arm. She advised that she had ceased work but said that this was on the advice of her general practitioner. Her symptoms had improved since she ceased work.
On examination Mr Bath reported that the plaintiff's left shoulder muscles were not wasted and that she had a full range of movement in the joint itself on passive movement. There was diffuse tenderness over the lumbar spine. There was some restriction of movement in the neck. Mr Bath ordered some x‑rays. He examined a bone scan that had been arranged by Dr Malone which showed mild degenerative change but basically Mr Bath's view was that the plaintiff had persistent symptoms of a soft tissue nature. Mr Bath felt that:
"it would not be unreasonable to state that Mrs Gorton is not totally incapacitated for any work at all and in the long term probably she will be able to manage work of a sedentary nature." (sic)
He said that:
"Symptoms have improved after ceasing work and probably, given time it would again be reasonable for Mrs Gorton to re‑start work of a sedentary nature and give things a trial once more."
He felt the plaintiff should be able to manage sedentary work in the long term.

The plaintiff's evidence post 1998

I have already covered much of this in my review of the medical evidence. In her evidence the plaintiff felt that the surgical procedure carried out by Dr Jeffries on her shoulder in August 1999 had helped with the movement of her shoulder but not the symptoms of pain. Repetitive work and especially vacuuming and sweeping caused her significant pain. She continued to take Mersyndol Forte regularly. She continued to remain at work but she had increasing difficulty.
Some time around the end of 1998 a new management team took over in the work place and the plaintiff stated that the atmosphere at work changed and became far more strict and regimented. It was not a particularly happy work atmosphere.
The plaintiff stated that her mother was diagnosed with cancer in early 1999 which also had a significant effect upon the plaintiff's tolerance of pain. She was involved in her mother's treatment at the same time as dealing with her own symptoms. She had some time off from work, in fact used up all her sick leave, and this provided short term relief, but she had difficulty in working without long breaks. Her hours were reduced. Her mother's condition also was deteriorating. She said that she ended up resigning from her work. Her pain had been increasing. She was concerned about letting BGC down because she could not ask for more time off. Her father died in January 2000 and her mother in June.
The plaintiff also said she experienced difficulties in her relationship with Ms Linley Arnott, the Chief Executive Officer's assistant. Prior to August 2000 the plaintiff worked in other sections of BGC and in particular in the block paving division. She said that she was asked to work full time. She increased her medication and Pethidine injections and attempted to work full time for three weeks but she found her symptoms increased. She ended up attending at Armadale Hospital where she received an injection for the pain. She attempted to ring BGC but was unable to get through and then in due course prepared and sent a notice of resignation which was dated 7 August 2000.

The plaintiff's evidence as at the date of trial

The plaintiff disputed any assertion that she had an ability to work part‑time at the present time. She said she would work if she could. She suffers from very bad migraneous headaches. She suffers from low back pain, she grinds her teeth, she suffers from numbness in the face and she suffers from shoulder pain. She also has panic attacks when somebody is driving. She attends for massage twice per month. She attends her general practitioner regularly. She tries to stay fit and would prefer to exercise in a gym if she could. Towards the end of her evidence the plaintiff stood in the witness box and stretched seemingly as a result of discomfort.
In cross‑examination the plaintiff's attention was drawn to comments in medical reports made by practitioners after the 1994 accidents and before the 1998 accident. The similarities between the plaintiff's complaint of symptoms and disabilities after 1994 and 1998 were pointed out to her.
The plaintiff was taken to the medical reports relating to her 1994 accident. In a report dated 14 February 1995 her GP, Dr Brent Williams, had stated that she required a sling to support her left arm. The plaintiff had reported being woken from her sleep in tears due to the pain in her left arm and shoulder. In his report of 11 August 1995 Dr Williams reported the plaintiff continued to have neck and left shoulder pain radiating throughout her left arm. She also suffered from headaches and required ongoing analgesics. The plaintiff told Dr J Edelman, as mentioned in his report of 5 April 1995, that following the second of the 1994 accidents she started to get discomfort around her left shoulder blade radiating down her left arm. She was also still having headaches.
The plaintiff saw the late Mr E R Griffiths, an eminent physician in Perth. His report dated 27 February 1996 mentioned that the plaintiff had suffered neck and lower thoracic spine pain following the first accident. She had headaches. She also had pain in the neck on the left side and pain present in the left shoulder region and the left scapular region. She had problems following the second accident in moving her left arm. She had a "tennis elbow" sort of pain.
The plaintiff's attention was also taken to Dr Gee's remarks, about which mention has already been made. Similarly, the plaintiff's attention was drawn to the remarks of Mr Bath, again which I have already mentioned.
Counsel on behalf of the defendant sought to highlight the similarity between the symptoms suffered by the plaintiff following the 1994 accidents and the 1998 accident with particular emphasis on the fact that she appears to have suffered left shoulder injury in both accidents. This exercise was more educational for the Court than confrontational of the plaintiff.
Counsel then turned his attention to the plaintiff's assertion that the principal reason that she finished with her employment at BGC was because of her symptoms. It was put to her that she had difficulties in her performance at work, and in the perception of her work practices. She was shown a copy of a poem apparently written by another BGC employee upon the plaintiff's resignation. This was a piece of doggerel which became Exhibit 5. When she became aware that counsel was seeking to produce this document the plaintiff found it most amusing. In essence she responded that the remarks in the poem should not be taken seriously. They were meant as a joke by the author.
Having heard the references by other witnesses to this poem I must say that it seems much more likely to be a joke than to have been meant as a serious though poetic review of the plaintiff's work practices. In short the plaintiff denied having had significant difficulties with her work although she did concede she did not get along with the new management. She derided any suggestion that problems caused by her behaviour were a factor in her leaving the job.
On behalf of the defendant it was also suggested that the plaintiff's difficulties were greatly exacerbated by the grief she felt following the untimely death of both of her parents in the year 2000. Obviously this event would have had a role to play in the scheme of things but I am not convinced that any unresolved grief from which the plaintiff apparently suffered figured significantly, causatively, in the matter.
The plaintiff came across in the witness box as a pleasant and intelligent woman, careful in her answers, unfailingly polite and good natured. She seemed a pleasant personality. She did not appear to be having significant pain during her time in the witness box although she stood up and stretched on one occasion towards the end of the morning session.
In reality this case does not seem to me to be one which turns greatly on the issue of credibility having regard to all of the medical evidence that has been adduced. There is no doubt the plaintiff sustained injury in the 1998 accident and it would appear to be beyond doubt that she suffered an aggravation of some areas that were injured previously. Her shoulder was obviously re‑injured or worsened by the 1998 accident such that she came to a surgical procedure. It would appear that she had some symptoms in the shoulder previously but they were not so serious as to require surgery. Necessarily there is some overlap in her symptoms. She had some of her previous symptoms as at the date of the 1998 accident but the fact is she was working full time.
Evidence was adduced from Mr Jeffrey Newman and Mrs McLaughlin, on the plaintiff's qualities as an employee. There is no doubt she was a much respected and valued employee. She had a very good work ethic. She seems to me to have done her best to continue working following the 1998 accident but she eventually got to a stage, for quite a large number of reasons, but very significantly because of the continuation of symptoms, where she felt she could not continue.
Mr Jeffrey Newman, who was the Finance Systems Manager at BGC, and knew the plaintiff quite well in the work place said that he noticed a difference in her presentation when she returned to work following the 1998 accident. There was evidence she was in considerable pain. He spoke about the number of absences at work that she had. He said that she was always dedicated to her work. She was the "best receptionist we ever had". He could not recall her being unable to cope at work. His only recollection is that she spent a considerable time away from work after the accident. But apart from those absences she continued to do the job although she was in pain. She never complained. His view was that any changes in management would not have been likely to have affected the plaintiff. He knew nothing about any personality clashes.
Mrs Bernadette McLaughlin was the accounts payable clerk at BGC and she knew the plaintiff for 4 years. She said that she could tell the plaintiff was in pain by looking at her. She said that during the day the plaintiff used to go and sleep in her car during the lunch break on occasions. She said the plaintiff was a professional in her dealings with the public.
The plaintiff's husband corroborated her evidence, so far as a husband can.
In his submissions counsel for the defendant agreed that the plaintiff had suffered injuries to her shoulder and neck in the accident and he conceded the possibility that the accident had exacerbated the plaintiff's pre‑existing condition. However, it was not conceded that the plaintiff's surgery a year and a half after the accident was required by reason of injuries she sustained in that accident. Nor did counsel concede that whatever ongoing symptoms the plaintiff had were (1998) accident related.
The difficulty faced by the defence on these issues was the concession made by the defendant's witness Dr Bath in cross‑examination at transcript 172 where the following exchange appears:
"…You say that the symptoms essentially were symptoms in the left arm, the neck, the scapular, but on 13 August 1998 for the first time she complains of pain in the left shoulder specifically, doesn't she, when there's no previous ‑ and she does that in the paragraph just above the second last paragraph on the first page. I mean there's…?‑‑‑Right. That's my comment, yes.
There's pain all around the place from 1994 onwards but she had never complained to you specifically about pain in the left shoulder until after 1998?‑‑‑I think she had. I mean, she complained of pains in the arm, in the scapular region. This may be a better localisation of the symptoms but it was my impression that her previous symptoms were related not only to the arm but to the shoulder as well.
In all events if, as you say, Mrs Gorton was a passenger in this vehicle, she was knocked about a bit, this seat belt was involved with the shoulder and if it was true that she complained of immediate pain in the left shoulder following it what significance would that have clinically in terms of aggravation or injury?‑‑‑If that was the case, and I don't think I saw her directly after the accident, that would relate to an aggravation of symptoms in the left shoulder and, as I had assumed, with respect to the rotator cuff in the left shoulder.
Yes, and could well have triggered the need for some sort of remedial action, for example, by Dr Jeffries or Mr Jeffries?‑‑‑Yes."
There was no re‑examination.
Counsel for the defendant appreciated the significance of Dr Bath's concession but nevertheless submitted that merely because the plaintiff may have exacerbated her shoulder symptoms in the accident, that did not mean that the injury was exacerbated to the extent where she needed an operation. He continued to submit that it was just as likely the plaintiff's shoulder symptoms were caused by a pre‑existing condition as it was that they were caused by the accident.
I am satisfied on the balance of probabilities that the plaintiff's shoulder symptoms were caused by the 1998 accident. Although the medical evidence is not entirely clear I accept the plaintiff's evidence on the point. I found the plaintiff in general to be a credible witness and the plaintiff's injuries consistent with the dynamics of the accident.
The extent to which the plaintiff had recovered after the 1994 accidents up until the time of the 1998 accident is difficult to ascertain precisely, however it is significant that the plaintiff was working full time. According to her husband she was attending to her normal household duties and she had not taken analgesics for a considerable time. She may not have been entirely pain free but she had recovered extremely well. In the words of counsel for the plaintiff the accident in 1998 caused her to be "well and truly set back to square one".
Further support for these conclusions is to be found in the comments of the plaintiff's work mates who gave evidence in the case relating to her performance prior to 1998. The 1998 accident caused a significant exacerbation of the plaintiff's symptoms and appears specifically to have caused difficulties with the left shoulder. In addition the plaintiff's headaches and neck and low back pain were also exacerbated.
As I have indicated the plaintiff had surgery upon her shoulder in 1999. On the balance of probabilities the surgery was required as a result of the after effects of the 1998 accident.

Quantum of non‑economic loss

The assessment of damages for non‑economic loss is governed by the provisions of the Motor Vehicle (Third Party Insurance) Act1943 and is to be determined by an assessment of where the plaintiff's claim lies as a percentage of a most extreme case of personal injury (s 3C(5)). Having regard to the fact that the plaintiff was not entirely symptom free at the time of the accident but that she had recovered very well from her previous accidents in my opinion this case represents 9 per cent of a most extreme case. Thus, having regard to the calculations as at 1 July 2001, this amounts to $20,880 less the threshold of $11,500 = $9,380. I award the plaintiff $9,380 for pain and suffering and loss of enjoyment of life.

Economic loss

The plaintiff asserts that following the 1998 accident her work performance declined steadily and an analysis of the hours the plaintiff worked with BGC up until the date of her resignation in August 2000 supports the argument. Clearly she worked less hours as time went by. The plaintiff's assertion is that this reduction in hours worked is primarily the result of the residual disabilities the plaintiff sustained as a result of the 1998 accident. The defendant asserts that the plaintiff's undeniable fall off in work performance judged by hours worked was multifactorial. It was submitted that the plaintiff had difficulties in the work place in her relationship with her superiors and also with the company in general and she also had unresolved grief reactions following the death of her parents. Counsel for the defendant submitted that these matters were very significant in the fall off in the plaintiff's work performance.
The issues relating to the plaintiff's work performance need to be judged in light of the fact that she was very highly regarded as a worker prior to the accident. The preponderance of the evidence is to the effect that she was an extremely good worker who was good at her job. I have already concluded that I am not convinced the plaintiff's difficulties at work and emotional problems caused by family grief separately played a significant role in the decline in the plaintiff's work performance and in her resignation. In my view there can be no doubt the plaintiff was suffering from pain and discomfort relating to problems with her shoulder, with headaches and with low back pain whilst at work in the period following the accident. It may be that her abilities to cope with that pain were adversely affected by her personal perceptions and issues but the primary cause, in my view, of her downward slide in work performance is related to and caused by the 1998 accident.
However I am not persuaded that the plaintiff was ever totally incapacitated save for the period immediately following her shoulder surgery. She resigned from BGC in August 2000 in what might be said to be a precipitous fashion, perhaps unable to carry on for a variety of reasons including those to which I have referred. But I am unconvinced that thereafter she was totally incapacitated, or that she is at the present time. The preponderance of the medical evidence is to the effect that she does have significant retained earning capacity. Indeed she should soon have achieved good if not complete recovery.

Past economic loss

The plaintiff claims the sum of $29,078.90 past economic loss. Of that sum $7,802 net represents the reduction in the plaintiff's hours of work between the date of the accident to 30 June 2000. In my view that sum can be allowed as claimed.
In the schedule no claim is calculated for the period 30 June to 11 August.
The plaintiff claims for past economic loss from 11 August 2000, from the date of her resignation, on the basis of $472.82 net per week for a total of some 45 weeks (as at the date of trial) giving an amount of some $21,276.90.
Having regard to the circumstances of the plaintiff's resignation and all of the other factors, to which I have already referred, I am not convinced that she was totally unable to continue working at that time. It is most strange, as counsel for the defendant asserted, that the plaintiff would cease work without any consultation with her medical practitioners whatsoever.
For the financial year ending 30 June 1999 the plaintiff's net weekly income was $472.82.
For the financial year ending 30 June 2000 her net weekly income was $363.40, which gives a difference of $109.42. I am prepared to allow the plaintiff an amount equivalent to this sum per week from 11 August to the date of judgment = say 62 weeks (11 August 2000 to 19 October 2001) x $109.42 = $6,784.04. I award $14,586.04 past economic loss.
I also award interest at the rate of 4 per cent per annum for 2 years = $1,166.88.

Future economic loss

As I have indicated there is no basis for concluding the plaintiff is totally incapacitated. However she has reduced capacity which, on the preponderance of the medical evidence, should be recovered in due course.

The plaintiff has present earning capacity that she is not exercising. It would seem to me to be reasonable, on the basis of the medical evidence, to assume that after about 2 years the plaintiff should have recovered fully. I am prepared to allow her economic loss on the same basis that past economic loss has been calculated, that is to say $109.42 per week for a period of 2 years which gives a multiplier of 99 x $109.42 = $10,832. I award $10,832 for future economic loss.

Future medical treatment

I was informed that the plaintiff uses one packet of Mersyndol Forte per week at a cost of $12.95. The evidence concerning how long it would be likely that the plaintiff would require to take Mersyndol was most unclear. It was also submitted the plaintiff would require one consultation with her general practitioner per month. Upon the basis that these expenses would be incurred for a period of at least 3 years a claim was formulated for the sum of $3,328.
I am unconvinced that the plaintiff will require this extent of medication and consultation but I do consider that some future assistance by way of medical treatment will be required and accordingly, based upon my earlier findings concerning it being likely to be about 2 years by which the plaintiff should have recovered, I am prepared to allow two thirds of the amount claimed and thus I award $2,200 by way of future medical treatment.

Special damages

Special damages were agreed at $6,184.15.

Assessment

Non‑economic loss  $9,380.00
Past economic loss  $14,586.04
Interest  $1,166.88
Future economic loss  $10,832.00

Future medical treatment  $2,200.00
Special damages  $6,184.15
Total  $44,349.07

I award the plaintiff the total sum of $44,349.07 by way of damages.