Gracie v Pearman

[2008] WADC 77

GRACIE -v- PEARMAN [2008] WADC 77

Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WADC 77
Case No:	CIV:165/2006	Heard:	19 FEBRUARY 2007
Coram:	SWEENEY DCJ	Delivered:	30/05/08
Location:	PERTH
No of pages:	41	Judgment Part:	1 of 1
Result:	Damages assessed
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Parties:	PAMELA GRACIE DOROTHY MAY PEARMAN
Catchwords:	Damages Assessment Motor vehicle accident
Legislation:	Nil
Case References:	Brasser v Graham & Graham [1985] WAR 180 Thomas v O'Shea (1989) A Tort Rep 80-251 Wylde v Aristondo ‘Arriaza, unreported; FCt SCt of WA; Library No 970350; delivered 23 July 1997 Nil

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION : PERTH CITATION : GRACIE -v- PEARMAN [2008] WADC 77 CORAM : SWEENEY DCJ HEARD : 19 FEBRUARY 2007 DELIVERED : 30 MAY 2008 FILE NO/S : CIV 165 of 2006 BETWEEN : PAMELA GRACIE

Plaintiff

AND

DOROTHY MAY PEARMAN
Defendant

Catchwords:

Damages - Assessment - Motor vehicle accident

Legislation:

Nil

Result:

Damages assessed

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Representation:

Counsel:

Plaintiff : Mr T Lampropoulos
Defendant : Mr J R Brooksby

Solicitors:

Plaintiff : Simon Walters
Defendant : Greenland Brooksby

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

Brasser v Graham & Graham [1985] WAR 180
Thomas v O'Shea (1989) Aust Tort Rep 80-251
Wylde v Aristondo 'Arriaza, unreported; FCt SCt of WA; Library No 970359; delivered 23 July 1997

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1 SWEENEY DCJ: The plaintiff claims damages from the defendant for injuries received in a motor vehicle collision which occurred on 6 August 2004. Liability for the collision is admitted by the defendant but, while the defendant in her conduct of the trial accepts that the plaintiff suffered an unspecified injury to her chest, she generally otherwise denies that the plaintiff suffered any injury in the collision and in particular denies that the plaintiff suffered any permanent injury. Consequently, she also denies that the plaintiff's future earning capacity has been diminished.

The collision

2 The plaintiff's memory of the collision is somewhat sketchy. On 6 August 2004, she was driving along Poynter Drive, Duncraig with her young daughter Margaret as a passenger. The defendant's vehicle drove out of Galston Place approaching from the plaintiff's left and failed to give way to her. The plaintiff heard a bang and tried to brake. She recalls both cars skidding. She was unable to describe the moment of impact including any physical impact between herself and the car or any object in the car and did not recall any immediate symptoms. After the impact, she recalls hearing a car horn and a man opening her car door and asking her if she was okay and it was then that she became aware of an excruciating pain in her chest. She was taken to Joondalup Hospital and recalls that, despite being given pain killers, every time the ambulance went into a dip on the road she felt chest pain.

3 The Police report of the road traffic crash (Exhibit B), completed by Constable Reynell, confirms that the defendant had stopped at the T-junction of Poynter Drive and Galston Place and then, mistakenly thinking her way was clear, pulled out in front of the plaintiff.

4 Also tendered was a Police form P 72 report of road traffic crash dated 26 August 2004 (Exhibit C), in which the plaintiff stated "I was also wearing my seat belt on impact hit the steering wheel". The plaintiff was unable to recall the moment of impact in her evidence at trial, but it is uncontroversial that she received a chest injury by some means in the collision and I infer, consistent her account to the Police, that the plaintiff's chest impacted the steering wheel in the collision.

The plaintiff's personal circumstances and work history leading up to the collision

5 The plaintiff was born on 12 October 1960 in Scotland, completing primary and high school education to year 10. She married young in 1976

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and, that same year, commenced work as a nursing assistant while she was pregnant with her first child Paul. At that time she was working two to three shifts per week for a few hours at St Johnston Infectious Diseases Hospital. Her first child was born in September 1976.

6 Having taken a few months off work, she returned to work at the same hospital in the same capacity, initially working evening shifts and then, when her oldest son reached about six months old, progressing to work night shifts. Her husband Mr Gracie was able to look after the boy in her absence and that arrangement suited the family.

7 The plaintiff's second child Ian was born in January 1980. Again the plaintiff worked while she was pregnant, took some few months off when Ian was born and then returned to her previous work.

8 In 1982 the family moved to Brisbane, Australia where ultimately her husband secured employment. The plaintiff worked again as a nursing assistant at Hillcrest Nursing Home, performing night shifts while her husband looked after the two children. That employment lasted about nine to ten months until, in 1983, the plaintiff commenced work as a prison officer at a women's prison in Queensland, which employment lasted for a period of about five years and consisted of working various shifts.

9 The family moved to Perth in 1988 and the plaintiff resumed her occupation as a nurse's assistant at Warwick Nursing Home. She worked regular shifts at that establishment, usually night shifts and was also on call for Silver Chain Nursing Association. Her third child Robert was born in March 1990 and, as was her habit, the plaintiff worked while pregnant, took some few months off when her third child was born and then returned to work. She left Warwick Nursing Home to work exclusively with Silver Chain Community Nursing, which consisted of being on call to enter the patient's home at night, make cups of tea, turn patients over who required such service and generally tend to the elderly and infirm. During the same period she sometimes worked evening shifts for terminally ill patients.

10 The plaintiff had no formal training before commencing work as a nursing assistant in 1976 but, during the course of her employment over the years, she has undergone various courses relevant to her work.

11 In 1993 the plaintiff divorced. Her oldest son Paul was then spending some time living away from home but she still had full-time care

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of her two younger children and received assistance by way of babysitting from her mother and friends.

12 In 1994 the plaintiff entered a de facto relationship with a Mr Mark Peterson to whom she bore her fourth child, Margaret. Again the plaintiff worked during pregnancy, took a few months off work and then returned back to her employment with Silver Chain Community Nursing. She largely worked night shifts while Mr Peterson looked after the children. That relationship broke down in about 2002 and the plaintiff has been single since and still has the care of her younger children.

13 Until a couple of years ago she continued her employment with Silver Chain Community Nursing. She was on their permanent staff but then changed her relationship with that body to one of casual employment. Silver Chain would, from time to time, ring up and ask her to work a shift. She also worked for AAA Nursing agency, which steered quite a lot of work her way and, over time, became her main source of work.

14 The plaintiff desired a break from hospice nursing which, she explained, involved working with the terminally ill and was quite draining. In April 2003, when her daughter Margaret was about eight, the plaintiff commenced work at Hollywood Hospital and was still working there 16 months later when the collision occurred.

15 She had first worked at Hollywood Hospital when AAA Nursing agency sent her there for some night shift work and, ultimately, she applied for permanent employment at the hospital as a nursing assistant. She was employed on contract.

16 The plaintiff described the hospital as an old Veterans Affairs hospital and her duties involved looking after elderly patients by lifting them in or from their beds, turning them over, rubbing their backs to make them more comfortable, and listening to their conversations. Mostly, she worked the night shift, which enabled her to take her children to and from school.

17 She described her nursing work as pretty heavy. She usually worked with another nursing assistant to perform the heavy lifting tasks. She conceded that there was equipment provided, such as hoists, for the purpose of lifting and moving patients, but said that the nursing assistants would not always use the equipment. She explained that when the patient requested to be moved she would tend to respond to their needs immediately, rather than ask them to wait while she obtained specialised

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equipment. Similarly, she said, if a patient looked like they were about to fall, she would simply respond to that situation immediately. She worked most Friday and Saturday nights and sometimes took on an extra shift, which tended to be Tuesday nights.

18 A staff history report (Exhibit V) was maintained by Ms Tracey Sariago, the manager of clinical nursing at Hollywood Hospital and detailed, in fortnightly periods, the shifts rostered to the plaintiff and the shifts and hours she actually worked between 28 April 2003 and 1 October 2005.

19 During her first month at the hospital, the plaintiff worked three shifts per fortnight. Thereafter, she worked between four and six shifts per fortnight and a maximum of six shifts per fortnight, consistent with her evidence of two night shifts with a possible additional shift per week. Apart from a couple of periods where she worked less shifts, this pattern continued throughout 2003.

20 During the fortnightly period 27 January 2004 to 7 February 2004 she worked only three shifts, calling in sick and taking a day's leave, but she worked five shifts the fortnightly period following and three shifts coupled with two on-the-job training courses the period following that. The next five fortnightly periods, taking us to 15 May 2004, the plaintiff worked her usual pattern of between four to six shifts per fortnight.

21 The pattern changes notably from 18 May 2004, some three months prior to the collision and the defendant placed considerable emphasis upon this change. In the fortnight 18 to 29 May 2004 the plaintiff worked only two shifts, cancelling a third and taking two annual leave days for two other shifts she had been booked to work. In the following fortnight 4 to 12 June 2004 the plaintiff worked only two shifts, cancelling two. During the fortnight 18 to 26 June 2004 the plaintiff worked only two shifts, cancelling two.

22 During the fortnight 29 June to 10 July 2004 the plaintiff worked three of her booked shifts, the hospital cancelling two further booked shifts which the evidence indicated might occur if the hospital was not busy that night. The plaintiff cannot be held responsible for that. The following fortnight, 16 July to 24 July 2004, the plaintiff worked four shifts, so that July 2004 represents a return to her usual pattern of working a minimum of two shifts per week.

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23 During the following fortnight, 30 July to 7 August 2004, the plaintiff did not, according to the shift roster, arrive for her booked shift of 30 July 2004. Nor did she attend her booked shift of 31 July 2004, however that is attributed in the shift roster to "roster error," which appears to relate to an incident in which the plaintiff was not informed she was booked on. She called in sick on 6 August 2004, following the collision that same day.

24 May and June 2004 do represent a change in her usual pattern. July 2004 however does not, apart from her having missed a rostered shift on 30 July 2004.

25 Ms Sariago had supervised the plaintiff in her work on the ward at the hospital and had known the plaintiff for some 13 to 14 years. They had previously worked together and, in 2003, when the plaintiff applied for a position at Hollywood Hospital, Ms Sariago had interviewed her for the position. Ms Sariago managed the Gordon ward, in which the plaintiff worked.

26 Although defence counsel characterised Ms Sariago as the plaintiff's "friend," her evidence to my mind was more to the effect that they were friendly acquaintances. Ms Sariago explained that she worked the day shift while the plaintiff worked the night shift and she said they barely had contact with each other except if the plaintiff worked a day shift or happened to come in during the day for some reason. The plaintiff testified that "while you could say she was a friend" they never socialised and much of their communication was by way of leaving notes.

27 Ms Sariago said that, if the plaintiff had worked six shifts in a fortnightly period, then she must have requested to work those shifts, as that was over and above her contractual hours. Ms Sariago agreed that, around 18 May 2004, there was a reduction in the plaintiff's work, but she was unable to recall a specific phone call concerning that. She said she did not normally change someone's shifts unless they agreed to that, so the arrangement must have been mutual.

28 Ms Sariago recalled speaking to the plaintiff on the night of the collision when the plaintiff informed her that she would be unable to work that night. She recalled a later telephone call in which the plaintiff informed her she had a fractured sternum and would be unable to work for four weeks.

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29 The plaintiff was cross-examined on the content of the staff history report and did not dispute the contents of the document, but was unable to recall the individual dates recorded therein, which is not surprising.

30 She said that in the period leading up to the collision she worked, almost exclusively, on night shift and called upon her mother and friends to look after the children in her absence. She said that the shifts which she had "self cancelled" in all likelihood pertained to her experiencing difficulty in obtaining a babysitter and she had the occasional day off sick. She also took an occasional day's leave and said that sometimes she was offered the day off if the hospital was not very busy.

31 She was unable to recall any particular roster where she had simply not turned up but did recall a night where she was not aware she was booked to work, being the roster error recorded. She said that the roster was worked out months in advance. She agreed that some time around July or August 2004 she had experienced some difficulties with obtaining child minders, although the work roster suggests this is more likely to have been in May and June.

Plaintiff's symptoms in the weeks following the collision

32 The plaintiff testified that she was at the hospital for a few hours and was then discharged home. She was suffering a lot of pain in her chest region and a couple took her to their house and gave her some cold packs. Over the next couple of days her chest was really painful and her recollection was that she went back to Joondalup Hospital and was prescribed Tramadol, as to which she suffered a reaction by way of vomiting. She was also "really achey" in her neck and shoulder.

33 The Joondalup Emergency Department discharge summary of 6 August 2004 (Exhibit P) indicates the principle diagnosis as being "musculoskeletal pain – sternal region" from a motor vehicle accident. Under the category of interim results is noted that the cervical spine series (or review) indicated a mild degree of change at C5/6 but no evidence of bony trauma, no pneumothorax to the chest and no rib fractures. The plaintiff was said to be vomiting and suffering pain in her sternal region and was discharged having been given Naproxen and Panadol for pain relief. She was to consult her general practitioner.

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34 The plaintiff testified that, in the period of time shortly following the collision, she was really aching and her neck and shoulder were really painful. She said her general practitioner advised her to wait until her chest injury settled down and so six to eight weeks went by before she commenced physiotherapy to treat her symptoms.

35 The Seacrest Medical Centre notes (Exhibit H) indicate that the plaintiff consulted her doctor on 10 August 2004. The notes recorded in the Health summary merely indicate that she had been involved in a motor vehicle accident on Friday. Dr Feng was not a witness before me and was no longer working at Seacrest Medical Practice as of November 2004.

36 On 16 August 2004, the plaintiff consulted Dr Tania Yuen, also of Seacrest Medical Centre. According to Dr Yuen's report of 4 November 2004 (Exhibit I), the plaintiff: "presented with persistent central chest discomfort and mild neck pain a week after a motor vehicle accident. She complained that the pain was not resolving post accident".

37 It was suggested to Dr Yuen in cross-examination that the plaintiff had not complained of neck pain at that time. The Seacrest Medical Centre notes were far from satisfactory. I have already referred to the fact that there were no meaningful notes in relation to Dr Feng's consultation. Dr Yuen explained that the only note she generated from this consultation was the data she personally keyed in to the medical centre's computer data base and there were no hard copy notes taken. The data base indicates the consultation on 16 August 2004 was in relation to the plaintiff's concern that she had some bleeding behind her sternum and pain at the sternum which was "slightly getting better, mainly dull and present with movement". The patient was reported as otherwise well and taking pain relief. Her sternum was tender to palpation and the doctor recorded "nil other finding". Dr Yuen recorded in her notes that the pain was most likely musculoskeletal pain and indicated a possible small fracture of the sternum. She prescribed further pain killers.

38 The notes in the data base were entered by Dr Yuen on two separate occasions. The notes appearing under 16 August 2004 are scant. When Dr Yuen consulted the data base for the purpose of compiling her report of 4 November 2004, she discovered that her notes were incomplete and she felt that a portion of the data she had entered had disappeared. She accepted she may not have entered that data completely. On 1 November 2004 she supplemented those notes. There is no mention in those notes of the patient complaining of neck pain. I also have no information as to what was contained in the letter from the plaintiff's

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solicitor to the doctor which generated the report. I consider it is unlikely, however, that Dr Yuen would have included reference in her report to the plaintiff having complained of "mild neck pain" if no such complaint was made and I find that, as of 4 November 2004, Dr Yuen was compiling her report from memory being only a matter of weeks after the consultation itself.

39 This view is supported by the plaintiff's P 72 report of the road traffic crash (Exhibit C) in which the plaintiff describes her injuries as "fractured sternum, bleeding behind sternum, severe whiplash". The document is dated 26 August 2004, approximately three weeks after the collision. The document indicates that the plaintiff was at least complaining of neck pain following the collision, whether or not she was suffering it.

40 In cross-examination the plaintiff said she thought she had complained of neck pain to Dr Yuen, though eventually she conceded she could not recall.

41 In light of the cross-examination of the plaintiff, her summary prepared for her solicitor, dated 27 October 2004 (Exhibit D) and apparently received by him on 4 November 2004, was tendered. The plaintiff informed her solicitor:

"Since my accident I have had severe neck pain, my right shoulder gives me severe pain most of the time, any pressure lifting aggravates my neck and right shoulder … I am quite nervous driving and find it very difficult and painful turning my head to the right."

42 The document's relevance is to rebut recent invention and it is consistent with the police report and Dr Yuen's report that the plaintiff had complained of neck pain. I find that the plaintiff did complain of neck pain to Dr Yuen.

43 On 18 August 2004 the plaintiff presented to Joondalup Hospital Emergency Department with vomiting and chest pain. The final diagnosis was recorded as "Tramadol reaction, fractured sternum" although, in the medical notes, the presence of a fractured sternum is queried rather than asserted and the chest pain is noted to be improving, except for the plaintiff's immediate complaint which followed taking her first Tramadol tablet and then vomiting, which is noted to have caused her significant pain.

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44 The plaintiff testified that she was due to work at Hollywood Hospital on the night of the collision and was unable to work that night and it was her recollection that she had seven to eight weeks off work after the collision, returning to work in September 2004. In fact the time off work was around five weeks, but nothing turns on that.

The plaintiff's return to work in September 2004 and eventual resignation

45 The plaintiff testified that, when she returned to work in September 2004, she felt pretty useless and a lot slower than normal in her performance of her work tasks and, when it came to moving patients, she was very aware of their weight. She said that, following the collision, she did not feel comfortable with her performance as a nursing assistant, because if she perceived that a patient was going to fall, she was not confident that she had the strength to catch them and she did not consider it fair on whichever nursing assistant she was partnering at the time.

46 Her evidence is in contrast to Ms Sariago's evidence that she would not attempt to catch a patient and would merely guide them to the floor. I accept Ms Sariago's evidence but I also accept the plaintiff's evidence in this regard and find that her reaction, while to her physical risk perhaps, was a natural and instinctive one. The plaintiff also said that she was required to do shoulder lifts, by which I understood her to be referring to lifting the patient further up the bed, which caused her pain in her shoulder. It is readily apparent that such manoeuvres would test the muscles.

47 She said that, by the time her shift finished at 7 am, she would be in "so much pain" in her neck and shoulder and her head would be thumping. She believed the headache was probably generated from her neck. She was not able to date when her headaches started, but she felt it was probably a few weeks after the collision. She said the physiotherapy, which she commenced some six to eight weeks after the collision, gave her relief for a time and assisted her headaches, but then gradually the pain would creep back.

48 In response to these symptoms, the plaintiff said she dropped a night shift and thought she would limit herself to merely one or two shifts per week, but found that insufficient to alleviate her symptoms. She said she used to drag herself to work. She did have time off and cancelled shifts and said she used up all of her sick leave and was then faced with the prospect of taking leave without pay, which she also on occasion did. She went on unpaid leave and ultimately resigned in February 2006,

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she said because she could not do her work properly due to the pain in her shoulder and her neck.

49 The staff history report (Exhibit V) indicates that, commencing with the night of the collision, the plaintiff missed eight consecutive rostered shifts. She returned to work on 10 September 2004 and between then and 9 October 2004 worked 10 shifts, indicating a return to her usual pattern of work.

50 She called in sick for the shifts of 15 and 16 October 2004 and did not arrive for a booked shift on 19 October 2004.

51 She worked her next eight booked shifts between 22 October and 13 November 2004 again, broadly speaking, indicating a return to her usual pattern of work, but cancelled two shifts in November 2004 and a further shift in early December 2004. She worked only three shifts in December 2004, but then worked seven shifts January 2005.

52 She worked only three shifts in February 2005, calling in sick for two shifts, cancelling two and failing to attend one.

53 She then worked seven shifts in March, six shifts in April, and only two shifts in May, although the records do not indicate that she was rostered on to complete any more shifts than two.

54 She called in sick on 11 June 2005, worked only one shift that month and only two shifts in July.

55 The last shift the plaintiff worked was 23 July 2005. She called in sick for the two shifts she was booked to work in August 2005, called in sick for the shift of 3 September 2005, failed to attend her only other booked shift on 17 September 2005 and went on extended leave on 1 October 2005.

56 By letter of 7 February 2006 (Exhibit E), she resigned. She did not state a reason for her resignation.

57 In summary, in September 2004 the plaintiff resumed her usual work pattern but thereafter her attendance at work, broadly speaking, decreased until it decreased very noticeably in the last few months of her employment at the hospital. October 2004 and January and March 2005 were exceptions, where she worked close to her usual pattern of at least two shifts per week, but such periods were then followed by periods of noticeably less shifts worked.

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58 Ms Sariago recalled a telephone conversation, around November 2004, in which the plaintiff informed her that she was having personal problems at home to do with babysitting and wanted to drop her hours. She said the plaintiff made no complaint of suffering any physical difficulties.

59 Ms Sariago said the same issue arose again, around 30 April 2005, when again the plaintiff wished to drop her hours because of family issues. In cross-examination, Ms Sariago said that would have occurred at the time the plaintiff dropped her hours from her extra hours down to performing two shifts per fortnight, but was extremely vague as to when precisely the telephone conversation had first occurred. After some hesitation, she pinned 30 April 2005 as being the date on which the plaintiff appeared to have reduced her shifts to working only Saturday nights, which was a shift attracting higher pay. Ms Sariago said she thought there was a telephone call at that time when the plaintiff had indicated she wanted to reduce her hours. That coincided in broad terms with the reduction in the shifts worked by the plaintiff.

60 Ms Sariago recalled a discussion with the plaintiff in which she said that she had problems at home and needed leave in order to sort those problems out. Ms Sariago said that she assumed that the plaintiff's family problems were temporary and she could only relate those telephone calls to times when the plaintiff had cancelled shifts she was allocated to work.

61 The plaintiff was put on leave without pay which, according to the staff history report (Exhibit V) occurred on 1 October 2005. The arrangement was that the plaintiff was to contact Ms Sariago in time, but no such contact was received until February 2006 when the plaintiff resigned. Ms Sariago said that the plaintiff had not mentioned any health issues that she had at that time and nor had she ever complained to Ms Sariago about experiencing physical difficulty with the work to be performed.

62 The plaintiff accepted in cross-examination that she was having trouble with her eldest son at the time, which was "partly" the reason why she reduced her hours and shifts. He is now sixteen and she had some disciplinary problems with him. At one stage he went to live with his father for a five month period and he currently lives with his brother and comes home to live with the plaintiff occasionally.

63 She agreed that she had told Ms Sariago about those issues and also agreed that, at the time, she was coping with the work she was

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performing. She also agreed that she had never complained to her supervisor that she was not coping physically with the work. She said she was aware that Hollywood Hospital had a good programme in relation to injured workers and agreed that she did think they would be supportive of her situation. She said however that, being a single mother, she didn't want to complain in case she lost her job and she just kept thinking that in time her injuries would get better. The plaintiff insisted that she did stop working at the hospital due to the injuries caused in the accident. She said she did not want to stop working, because she had children to support.

64 The plaintiff accepted that she gave the hospital no reason for her resignation and said that she did not want to, because she was hoping to continue in nursing. She also said she did not want to complain about her neck in case, in the future, she had to go back and do some more nursing, even though it would been pretty hard going. She denied resigning because she was not coping with her children and said she had been nursing while raising a family for thirty years, but that she was in a lot of pain and did not think it fair that she could not pull her weight at work.

65 She agreed she had told Ms Sariago that she was having problems with her son and believed she had told Ms Sariago that he is a typical teenager and that she just had to hang in there. In response to the proposition that she had in effect swapped her Hollywood Hospital night shifts for a preferable job which she could do during the day, the plaintiff responded that she had not left her children alone in any event, because she always had her mother or a friend looking after the children.

66 The plaintiff was cross-examined about certain medical symptoms she was suffering in July and August 2005, recorded in the Seacrest Medical notes. The clinical notes from 20 July 2005 indicated, and the plaintiff confirmed, that she was suffering urinary abnormalities for several months. That is consistent with the plaintiff having called in sick on 11 June 2005, worked only one shift that month and only two shifts in July.

67 The clinical notes of 4 August 2005 indicated, and the plaintiff confirmed, that she suffered a persistent cough from a cold and a tender chest, which gave her difficulty sleeping. She called in sick twice in August 2005, which coincides with that recorded illness in at least early August.

68 The defence put to the plaintiff that she resigned from her job at Hollywood Hospital, not because of any physical difficulties caused by

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the collision, but rather because of her family problems and other stressful things in her life at that time, which the plaintiff denied. The stressful things alluded to are the illnesses of June, July and August 2005.

69 It was put to the plaintiff in cross-examination that, when she saw Dr Hahnel in November 2004, she did not inform the doctor that she had previously been injured in a collision. She said that consultation related to her feeling tired and she remembered being tested for iron deficiency. She said Dr Hahnel was not her regular doctor and that she was not entirely confident with seeing a new doctor at Seacrest, because she had been with her previous doctor for some 18 years. That was presumably a reference to Dr Feng. The plaintiff agreed it would have been sensible to inform Dr Hahnel of the collision and her neck and shoulder problems, but when asked why she did not, she said she wondered what the point would be, because all the doctor would do would give her time off, which she could not afford.

70 It was put to the plaintiff in cross-examination that she had failed on two further occasions, in July and August 2005, to mention to Dr Hahnel any symptoms of pain resulting from the collision. This was contrasted with her consultation with Dr Hahnel on 5 October 2005, when she detailed her symptoms to that doctor.

71 The plaintiff said the doctor already knew of that situation and she did not think that there was anything the doctor could offer her. She denied that she felt in the 5 October 2005 consultation that she had to blame all of her symptoms on the collision.

72 The July and August 2005 consultations were in regard to the urinary problems and the persistent cough mentioned earlier. I do not accept the proposition that every time a patient consults a doctor for a specific problem they will necessarily, or are even likely to, give an account of every other problem they are suffering, particularly when the other problems are chronic and within the knowledge of the practitioner or her colleagues already.

73 In any event, Dr Hahnel, after initially agreeing with the proposition that she had not previously been told by the plaintiff that she had been involved in a motor vehicle accident or suffered any symptoms from it, then found in the Seacrest Medical notes a reference on 5 April 2005 to her having referred the plaintiff to a physiotherapist. She concluded from that notation that she was aware the plaintiff had been in a collision.

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Plaintiff's evidence as to her current symptoms

74 The plaintiff testified that she no longer suffers any pain in her chest, but still suffers pain in her neck and shoulder and suffers from headaches once a week or a fortnight, depending upon her activities. For the headaches she takes a couple of Panadol tablets and lies down, which is successful in taking the pain away. She said she takes pain-killers for her neck and shoulder and also tries to be sensible in terms of her activities. She said she does not "fly about like I used to" in relation to her household chores and will stop and give herself breaks.

75 She said she used to be a good jogger and also played squash and the odd netball game but she has not attempted these activities since the collision because she was aware they were all pretty physical activities and hence avoided them. She now walks for exercise.

76 She said she experiences pain in her neck and shoulder on a daily basis which, at its base level, consists of an ache, but, if she aggravates it by activity, becomes pretty painful, particularly on the right side of her neck and the right shoulder, more so than the left side. She said her driving is now unaffected and "fine" which she then retracted saying "it's there" but that her neck has been "pretty good" for a couple of months.

77 She said her sleeping is now quite good, apart from the stress of the case. The plaintiff testified that she takes anti-inflammatories (which are her mother's) and also Nurofen Plus for pain relief. She uses Voltaren gel, an anti-inflammatory. She still undergoes the occasional course of physiotherapy for her neck and shoulder, which provides her with relief and she felt the last time she had physiotherapy was two to three months prior to the trial. She also occasionally has a massage.

78 The plaintiff testified that, but for the collision, she felt she would probably still be with Hollywood Hospital and, as her youngest child got older, she would probably have done extra shifts.

79 As to her current ability to work as a nursing assistant, the plaintiff said that she could not work at Hollywood Hospital now if she were paid a million dollars and that she only achieved it by using a lot of pain killers and found it hard going. She said however that she is not one to complain.

80 The plaintiff said that she can now move her neck and shoulders freely, but not confidently, because she still has pain in the right shoulder

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and has had since the collision. She said she is able to move her head, neck, arms and shoulders normally. The plaintiff appeared to have some difficulty in understanding the concept of "restricted movement" but in cross-examination, said that she has restricted movement in that, if she hangs up washing, she has to stop. When that was clarified, she agreed that her movements are not restricted but certain movements bring on more pain. She said if the symptoms really flare up, she stops what she is doing, has a shower and rests.

Plaintiff's evidence as to her employment after the hospital

81 The plaintiff testified that she currently supports herself by a combination of a Centrelink payment, maintenance payment she receives for her daughter Margaret and the income she makes from looking after two little girls for a few hours a week. She said her mother had also occasionally given her modest amounts of money. She said she had been performing the tasks of child minding for a year or two for a working couple and said that she might work for a couple of hours here and there, but that it was not a permanent arrangement. She said that she was coping fine with that job and described the two girls as being 3 ½ years old and 17 months old.

82 She described her plans for the future as involving trying to get a little business going teaching children to paint on canvas. The idea is that she will go along to a playgroup, provide a canvas for each child and supervise them while they paint. That business scheme had not at the time of trial commenced, however she has made some preliminary inquiries. There is no evidence before me as to the commercial viability of such a business.

83 In cross-examination the plaintiff was unable to specify when she began child minding, but later agreed with the proposition that it was around July or August 2005, her last shift actually worked at the hospital being 23 July 2005. She described the job as involving only a couple of hours in the morning to see the children to school and said that job had lasted about 12 months. Given the age of the children described above, this job appears to relate to different children to those she was minding at the time of the trial. She also said she was only working for one family at a time.

84 The plaintiff denied having informed Dr Kerr that she was performing child minding work involving sustained hours from 8.00 am to 5.00 pm five days a week and said that she has never worked those hours. She said the hours she worked were from 8.30 am until the point of

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dropping the children to school and she said had not worked sustained hours in December 2005 or any other time. She said in December 2005 she would have been working for about one and a half hours in the morning, making a total of seven hours a week.

85 The plaintiff described her current work hours as eight hours per week working for a couple in Gwelup at the rate of $16 per hour and said that is all the work that she currently performs. She drops her own daughter off to school in the morning and then proceeds to the couple's house on Tuesdays and Fridays and the job earns her about $80 to $100 per week. She testified that she only works a couple of hours in the morning, arriving around 8.45 am to 9 am and finishing around 1.00 pm when they return. She said the job can consist of four hours work, or sometimes as much as six or seven hours work, but the couple knows that she has to pick her own daughter up from school from 3.00 pm.

86 She said they will simply contact her and ask her if she can come over on Tuesday for four hours and, although she was cut off in her answer, appeared to be indicating that, once she has worked for a total of four hours, she is tired. She said she and the two children paint, colour in, dance and she feeds them but that does not involve lifting the children into a high chair.

87 She said she has not worked in a kindergarten, but she has worked at her daughter's pre-primary from 9.00 am to 3.00 pm when she filled in for someone on an occasion prior to the collision. She said the work she performs is not physically demanding, but is more about thinking up activities for the children.

88 In relation to her future plans she explained that she would prepare the paint pots and canvasses for the children. She agreed there was nothing to stop her working full-time at a kindergarten.

89 The plaintiff denied informing Dr Hahnel that she worked at a supermarket stacking shelves and was unable to account for Dr Hahnel's impression in that regard. Nothing was made of that in cross-examination.

Plaintiff's taxation returns

90 Before me were the plaintiff's taxation returns for the years ending 30 June 2004, 2005 and 2006 (Exhibit A). The plaintiff's individual tax return for 2004 indicated a gross income from her wage occupation of carer of $23,684 and income of $4,523 by way of her single supporting parent allowance, a total of $28,207. For the 2005 financial year, the

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plaintiff earned $12,910 from her wage occupation of carer, and $8,834 by way of allowances for the child, a total of $21,744. For the 2006 financial year, the plaintiff earned $1,025 paid out by Ramsay Health Care Pty Ltd, and $511 paid out by AAA Nurses Agency Pty Ltd, together with $12,674 by way of allowances for the child, making a total income of $14,210. Her wage occupation is noted as nursing assistant. There does not appear to be any mention of any income derived from child minding. Nothing has been made of that.

Medical evidence as to the plaintiff's current and future employment capacity

91 Dr Claudia Hahnel, general practitioner, of Seacrest Medical Centre provided a report dated 14 October 2005. Dr Hahnel saw the plaintiff on 5 October 2005, when the plaintiff's current symptoms were said to "include ache right cervical region, and right upper thoracic area which is present daily. It is made worse by physical activity, like lifting, cleaning etc. It always aches after work…"

92 Dr Hahnel noted "she has been able to continue her usual duties at work without restriction, although suffering some pain and requiring medication". Dr Hahnel noted however that jobs involving lifting would be best avoided and felt that the plaintiff's current occupation, which "I believe, is doing supermarket shelf stacking, on 'infill' … is not really suitable".

93 The report makes reference to the "already existing degenerative changes in her spine, noted on x-ray done at emergency department, Joondalup Hospital" and comments "the accident has certainly flared up a pre-existing degenerative neck problem; but I don't know to what extent this would otherwise now be symptomatic". Finally, the report concludes "I believe the injury sustained in the motor vehicle accident has healed; just the cervical spine osteo arthritic deterioration has continued. There also remains a residual sharp pain in the sternum – only noted when sneezing". Dr Hahnel indicated the plaintiff may require pain relief, anti-inflammatory medications, physiotherapy and exercise by way of future treatment.

94 Dr Hahnel testified that she understood the plaintiff to be then working as a nursing assistant with shelf stacking as a secondary job, but volunteered that she could be wrong about that. At the time of her consultation with Dr Hahnel, the plaintiff had recently applied for unpaid leave from Hollywood Hospital and had not completed a shift for well over two months. Dr Hahnel makes no reference in her report to the

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plaintiff having worked as a nursing assistant and the plaintiff said she had never worked in supermarket shelf stacking in the last 20 years. There is no evidence that she did.

95 The notes entered into the data base of the Seacrest Medical Centre for this consultation contained the notation:

"Physio ceased 6/52 ago; seemed to have full ROM at that time; went back to work july last year, continued throuout since then. Sx since ceased physio – ache R cervical area and R upper thoracic region. This is present daily, uses nurofen plus. Made worse by lifting, so always sore after work, a bit stiff also."

96 There is no reference in the notes to the plaintiff's occupation as such. "July last year" in fact predates the collision.

97 I have already commented on the inadequacy of the note system at Seacrest Medical Centre. I found Dr Hahnel's report to contain a number of inaccuracies. Dr Hahnel said that she believed the plaintiff had told her that, as of October 2005, she was still working and she wrote her report based upon what the plaintiff had told her. The plaintiff in fact worked her last shift at the hospital in July 2005.

98 Initially, Dr Hahnel agreed with the proposition that she had not previously been told by the plaintiff that she had been involved in a motor vehicle accident but, having consulted an earlier set of notes, concluded that she had been told in an earlier consultation.

99 In her report of 9 February 2007, Dr Hahnel noted the plaintiff's current symptoms as including occasional stabbing pain in the right upper shoulder/trapezius when she uses the arm, especially reaching over her head, settling to an ache which may be present for a few hours to days, and also pain in the right side of the neck which may develop spontaneously, often at night in bed. Dr Hahnel noted on examination:

"There is slight restriction of movement of the neck, with mild discomfort on the right lateral flexion, and rotation to the right, some tenderness to palpation of the right upper trapezius muscle. The chest and sternum is pain free now."

100 In the more recent report, Dr Hahnel appeared to have an understanding of the plaintiff's occupation, although again stated that the plaintiff had returned to work in July 2005. The doctor indicated that the plaintiff had found her ability to do her job was limited by a need to slow
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down and avoid lifting in order not to flair up the neck pain and that she ultimately had resigned from her job at Hollywood Hospital in 2006. Dr Hahnel said that any work requiring lifting was unsuitable and would remain a problem in the future and believed that the plaintiff would not be able to go back to her pre-injury nursing duties, and was therefore unable to apply for work in the career she trained in. The doctor concluded that the plaintiff has a residual injury to her neck, but was unable to express this in a percentage disability.

101 Dr Hahnel is a general practitioner. Her evidence was broadly consistent with the evidence of Dr Kerr and Professor Mastaglia who are both very qualified to express their opinions.

102 Dr John Kerr, consultant physician in rehabilitative medicine, saw the plaintiff on 19 December 2005, some four and a half months after her last shift at the hospital and prior to her resignation.

103 Dr Kerr indicated that the plaintiff had, by way of history, said that she had suffered chest discomfort for around 6-8 weeks following the injury, which then settled however, on occasions and particularly on sneezing, she would again experience pain.

104 Dr Kerr formed the view that a radiological study had shown evidence of a subtle undisplaced sternal fracture line. He maintained that view in the face of the report from the Perth Radiological Clinic of 6 August 2004 (Exhibit M) which makes no reference to such a fracture and a report of Dr Kit Fraser of 6 August 2004 (Exhibit N) which similarly, in relation to the chest, concludes "no other significant abnormalities demonstrated". Neither expressly excludes a sternal fracture. Dr Kerr said to reject the diagnosis of a fracture to the sternum would be to ignore clinical signs of severe pain in the sternum and bleeding behind the sternum. He expected a subtle undisplaced fracture to take some six weeks to heal prior to a patient being able to resume work and, in response to the proposition that the plaintiff had been able to commence work in a little over a month, concluded that the plaintiff must be somewhat stoic.

105 Additionally, the plaintiff reported ongoing neck pain, primarily central, but subsequently right-sided and some restriction of neck movement. Dr Kerr said that this was located in the mid cervical spine initially and was associated with movement restriction but, over time, her symptoms became more specifically right-sided, with discomfort directly above the superior angle of the right scapular. She complained that she

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still had pain low and to the right above the shoulder blade, affecting her sleeping.

106 She had been treated with anti-inflammatory and analgesic medications and physiotherapy which had focused on maximising the range of movement into the plaintiff's right upper limb.

107 On examination Dr Kerr observed the plaintiff was able to dress and undress and suffered no specific tenderness to her cervical and thoracic spine, apart from some discomfort in the mid-line over the spinous process of C3. In cross-examination, Dr Kerr agreed that while she had pre-existing changes at C5-6, he understood it had not been symptomatic and nor did he agree that her pain could be localised to that segment specifically. He found that an evaluation of her range of movements demonstrated subtle reduction at the extremes of all movement and the reproduction of pain low on the right side of the neck. She undertook a full range of bilateral shoulder movements without any form of restriction. She described tenderness directly above the superior angle of the right shoulder blade, with some very mild extension of discomfort around its superior margin.

108 Dr Kerr understood that the plaintiff returned to work seven to eight weeks after the collision (in fact five) but found that her work duties at Hollywood had exacerbated her pain both in the area of her sternum and also her right-sided pain. The seven to eight weeks noted, while inaccurate, accords with the plaintiff's memory so that is the history he was given.

109 He understood the plaintiff, as at 19 December 2005, to be involved primarily in child minding work during the day, often involving sustained hours from 8.00 am – 5.00 pm, which he described as clearly less physically demanding work. His notes of her work hours was quite inconsistent with the plaintiff's evidence, but she did describe her hours in quite vague terms because her employers can be quite spontaneous as to when they need her and how long she is needed for and she also expressed herself in terms of weekly hours. I conclude there has been a misunderstanding between her and Dr Kerr in this regard. Again, nothing was made of this discrepancy.

110 When asked if he would maintain his opinion that she could cope with those hours if, indeed, she had been working rather less hours, Dr Kerr retreated from his opinion, on the basis that she would not then

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have demonstrated that she could work those hours, though he left open the possibility that she could.

111 Dr Kerr concluded that he doubts that the plaintiff has the capacity to work reliably as a nursing assistant, but said she will retain her current work capacity and remains fit for work as a child minder. He considered it very likely that, if she attempted to work as a nursing assistant, she would suffer increased pain and stiffness. He said that any work task involving regular bending, pulling, manual lifting or undertaking resistive upper limb tasks is beyond the plaintiff's capacity to sustain in any consistent manner.

112 He did not see any specific need for the plaintiff to consider premature retirement from the workforce and described the plaintiff's injuries as mild. He assessed the plaintiff's residual disability as a result of the motor vehicle accident injuries as being "some residual disability in the cervical region – disability associated with musculo – ligamentus strain which is an impairment, at maximum, of 5 per cent of the function of the cervical spine". He considered, by way of future treatment, the plaintiff would require simple analgesia and, from time to time, further physiotherapy, a programme of stretching and self-maintenance through exercise.

113 Professor Frank Mastaglia, consultant neurologist, saw the plaintiff on 13 April 2006, which is some nine months after her last shift at the hospital. He described her current symptoms as having improved following the collision, but failed to resolve fully.

114 He said the plaintiff still has intermittent neck pain, more severe on the right than the left, which is usually present when she gets up in the morning and, in addition, occipital or more generalised headaches two to three times per month and still some aching in the chest at times. He described the treatments the plaintiff administered to herself as being hot pack applications to the neck, a hot shower when she wakes at night with pain in the neck, physiotherapy on an intermittent basis and, when the pain is more severe, the taking of Nurofen Plus.

115 On examination, the professor found the plaintiff's neck movements to be mildly restricted, in particular lateral flexion to the left and rotation to the right, which gave rise to right-sided neck pain. He found moderate tenderness to pressure over the mid and lower cervical (neck) spinous processors and right lower cervical facet joints as well as the right trapezius and suprascapular muscles (above the shoulderblade and below

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the neck). In cross-examination, he placed the injuries to the lower cervical spine as being from about C5 down, so that is different to Dr Kerr's evidence.

116 He considered that the plaintiff did not attempt to exaggerate her symptoms or her level of disability and concluded that she had clearly suffered a significant soft tissue injury to the lower cervical spine as well as an injury to the sternum, with a possible fracture, as a result of the motor vehicle accident.

117 He considered the plaintiff to have suffered a residual disability of 7.5 per cent in relation to the neck injury received in the motor vehicle accident and described that neck injury as being of moderate severity.

118 Professor Mastaglia noted that the plaintiff was coping with part-time child minding and he anticipated she would be able to continue working in that part-time capacity for the foreseeable future but commented:

"Whether or not she would be able to resume her nursing duties remains uncertain at this stage. I think it is unlikely that her injuries will affect her long-term employability, but she could be restricted in her ability to compete in the open workforce if she tried to get back into nursing work."

119 He concluded that the plaintiff would need analgesic and anti-inflammatory medications and creams for symptomatic relief and may also require physiotherapy at times. If she suffered a flare-up, he considered she may need steroid injections into the joint, but did not consider any form of surgery would be indicated.

120 He saw the plaintiff again on 14 February 2007, when she indicated that she no longer suffered from any aching in her chest, but that her neck pain and headaches had remained essentially unchanged. She still complained of intermittent aching and pain in the neck brought on and aggravated by physical activities such as lifting. In addition, the plaintiff still complained of headaches once or twice per fortnight.

121 On examination, the professor found the plaintiff's neck movements were again mildly restricted and there was again moderate tenderness to pressure of the lower cervical spinous processors and facet joints and, to a lesser extent, over the right trapezius and medial scapular area. He did not consider there had been any significant change in the plaintiff's condition.

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122 The professor commented that the plaintiff:

"has been able to continue doing part-time child minding work for 8 to 10 hours per week in clients' homes, but does not feel that she would be able to cope with longer hours or with her previous work as a nursing assistant."

123 The professor commented "whether or not she would be able to cope with a return to nursing duties remains uncertain" and he considered there was a potential for such work on a full-time basis to aggravate her condition.

124 Dr Kerr saw the plaintiff for the second time on 5 February 2007, close in time to her second consultation with Professor Mastaglia. He said that, over the past year, the plaintiff had had little in the way of therapy other than some intermittent physiotherapy and she had also maintained her mobility with some simple exercises. She reported the presence of predominantly right-sided pain in the cervical region, which radiated in and around the superior margin of the right scapular. He noted that left-sided symptoms were also present, but rather more minor. The plaintiff was still complaining of headaches, primarily occipital, but radiating to the frontal region and associated with her neck pain. The plaintiff also indicated continued occasional disturbance to her sleep from neck and shoulder pain, but her chest discomfort had fully settled.

125 On examination Dr Kerr noted that, while the plaintiff's range of neck movements was reasonably preserved, the extremes of lateral flexion to the left and rotation to the left reproduced right-sided neck discomfort. The plaintiff also reported muscle tension and discomfort on palpation to the mid-cervical region to the right of the mid-line and subtly to the left. Dr Kerr found palpation of the musculature around the cervical region and scapulae did demonstrate subtle increased tension, more right than left-sided. Professor Mastaglia did not comment on left-sided symptoms however, in relation to the first consultation, he commented that the plaintiff's neck pain was more severe on the right than the left and, in relation to the second, he said her neck pain had remained unchanged. Dr Kerr mentioned, in relation to the first consultation, the neck pain becoming more right-sided and in the relation to the second consultation being more to the right and only subtly to the left. Their evidence in this regard then is, on closer scrutiny, quite consistent.

126 Dr Kerr concluded that the plaintiff, as at February 2007, remained fit for her current work in child minding, but unsuitable to return to work

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as a nursing assistant, due to her residual symptoms related to her cervical spine and right shoulder region. He considered the plaintiff would retain now, and in the foreseeable future, her ability to continue work in child minding and child supervision, but that any work involving significant lifting, spinal bending or carrying tasks would be unsuitable. He considered that she would not be competitive for work as a nursing assistant.

127 Dr Kerr concluded that the plaintiff continued to exhibit disability in the form of a soft tissue strain injury, which he placed at 5 per cent of the function of the cervical spine and, again, described her injuries as mild.

128 On 23 June 2006, the plaintiff was seen by Dr Michael Bowles, occupational physician, at the defendant's request. This examination then is six months after Dr Kerr first saw her, two months after Professor Mastaglia first saw her and around seven months prior to her second consultations with both Dr Kerr and Professor Mastaglia.

129 Dr Bowles overall conclusion is that, while the plaintiff did suffer injuries in the collision, these have likely since resolved and he sees no reason why she cannot work as a nursing assistant, but considers it likely she will suffer normal aches and pains in the neck and back. His evidence then is to be contrasted with that of Dr Kerr and Professor Mastaglia and is relied upon by the defendant.

130 Dr Bowles was cross-examined on the basis of a positive bias against the plaintiff. I did certainly detect scepticism on the part of Dr Bowles and a general stance of approaching the plaintiff's complaints with a desire to scrutinise them carefully to look for inconsistencies which might disprove her claims. There was something of the air of investigator about him. I did not find him entirely impartial. That is not to say of course that a doctor should simply accept a patient's claims unquestioningly, but the doctor's evidence concerning the potential fractured sternum gives an example of his attitude towards the plaintiff's claims.

131 Dr Bowles expressed the view that the plaintiff did not suffer a fractured sternum in the collision and considered there to be no positive evidence emanating from the radiological clinic reports supporting such a conclusion. That was an opinion which was clearly open to him. The doctor then commented in his report, however:

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"This is a little curious when compared to what Ms Gracie said today, feeling that she had been told that 'she had a fractured sternum and a bleed behind the sternum and she needed to keep an eye on the situation' ".

132 Ultimately, Dr Bowles noted in re-examination that the expression "curious" was inappropriate. He denied that he had meant by such comment to cast aspersions on the plaintiff's credibility.

133 I note that the doctor was armed with the Joondalup Health Campus medical assessment notes and, indeed, specifically referred to them in his report, while not drawing the reader's attention to the fact that those same notes drew, as a final diagnosis, the conclusion that the plaintiff had suffered a sternal fracture. A second notation queried the fracture.

134 Given his comment about the plaintiff's report to him that she had been told she had suffered a fractured sternum, fairness required a reference to that diagnosis which was before Dr Bowles, whether or not he agreed the diagnosis was correct. The plaintiff's understanding is unlikely to have been invention or exaggeration on her part and, given the Joondalup notes and indeed Dr Kerr and Prof Mastaglia's evidence on this aspect, the plaintiff is highly likely to have been told by someone that she had, or had likely, suffered a fractured sternum. The selective way in which this topic was dealt with in Dr Bowles' report gives a quite different impression to the reader.

135 Dr Bowles was armed with all previous reports concerning the plaintiff. He said he asked her about "problems related to the motor vehicle accident" and the plaintiff said that she got headaches in the back of her head, but also in different areas in different times, with no identifiable precipitating factor. She said she felt the headaches may relate to stress.

136 She also complained of pain in the upper cervical spine at the base of the skull, both on the right and the left. She complained of discomfort in the mid-cervical spine and said that all of the areas may ache and this was variably present. She described an ache at the top of her right shoulder blade which would come and go and said that overhead activities, such as hanging out washing or lifting heavy objects overhead increased the pain, as did use of her right arm.

137 The plaintiff said that she had always had backache, which she felt was a consequence of nursing over the years and did not relate to the motor vehicle accident. She noted that overdoing physical work could

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precipitate neck ache and also said her neck was sometimes stiff when driving.

138 In relation to her work commitments Dr Bowles noted in his report that, as of June 2006, the plaintiff said she had not worked for 12 months. That accords with when she worked her last shift at the hospital. She reported doing voluntary work at her daughter's school, such as running the uniform shop, and said she was on a sole parent pension. She also reported that she had worked for a few months as a child minder and nanny, but complained that this irritated her shoulder by such activities as holding the young child on her right hip. She said she had not done any supermarket work in 20 years.

139 The plaintiff also, according to Dr Bowles report, said that she had, prior to the collision, worked three eight hour shifts per week which was quite heavy work but, on her return to work, found doing three nights too hard and so had dropped one of those nights. She said her work had made the pain ridiculous, but that she had continued with the odd shift through agencies doing non-physical work, such as sitting by a patient who needed observation.

140 Dr Bowles noted that the plaintiff showed "no sign of restriction or impairment to informal examination". He explained in his evidence that informal examination meant his casual observation of the way in which the plaintiff entered his rooms and sat down.

141 On the day of the consultation, the plaintiff indicated her complaints to be at the base of the skull and the muscles alongside the neck, more so towards the back of her ear. She also complained of mild discomfort from time to time in the muscles alongside the neck further down, and some central ache around the C4/5 region. He said when he requested her to move as part of his formal examination, she showed no movement into extension (looking up), and very little movement to lateral flexion (side head movement) in either direction. She noted discomfort at the top of her right shoulder blade at the back with no left-sided complaint.

142 Dr Bowles explained that there was a significant difference between his observations of the plaintiff on informal examination, where she showed no sign of restriction or impairment, and her range of movement on formal examination, where she was unable to look up at all and showed very little movement when moving her head from side to side. He did not say, however, to what extent her natural movements in

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entering his rooms and sitting down actually involved looking up and moving her head from side to side.

143 Dr Bowles concluded that the plaintiff had been injured in the motor vehicle collision and had suffered a front chest injury and a whiplash associated disorder. Dr Bowles concluded however that, given that the plaintiff returned to work for some time following the collision and given "a lengthy period of gap in treatment", it was likely that the accident related injuries had been resolved. He also noted that the plaintiff's range of movement appeared to have significantly reduced since Dr Kerr had seen her in December 2005 when her range of movement showed subtle reduction in extremes of all movement and that Dr Mastaglia had also noted good neck range of movement. In consultation before him, Dr Bowles had noted very limited movement on formal examination and again commented the difference was a "little curious".

144 Dr Bowles also formed the view that, in keeping with the plaintiff's own complaint to him, her neck pain varied from place to place and from time to time, as did her headaches.

145 Dr Bowles contrasted Prof Mastaglia's findings in April 2006 of tenderness in the mid and lower cervical spinous processes and lower right cervical right facet joints with Dr Kerr's observations in December 2005 of mid-line tenderness over the spinous processes of C3 and nowhere else.

146 Dr Bowles pointed out that, when he saw the plaintiff, she had tenderness in the upper cervical musculature and mid-line complaint in the mid cervical spine, but not elsewhere. Dr Bowles concluded that this variation of symptoms goes against any specific ongoing injurious process where one would expect ongoing complaint in a specific area.

147 This rests on the premise of course that a patient may be counted on to pinpoint her neck pain with accuracy in a single consultation. It also makes no reference to Dr Kerr's finding that the plaintiff's range of movements demonstrated pain low on the right side of the neck, which demonstrates a broad consistency between the observations of Dr Kerr and Professor Mastaglia. The difference in their evidence was that Dr Kerr placed the injury at C3 and Professor Mastaglia at C5. Both however saw the plaintiff within a week of each other and I conclude the difference is one of diagnosis, not a shifting set of symptoms.

148 Dr Bowles saw no reason to preclude the plaintiff from undertaking her activities as a nursing assistant if she wished, but found it likely she

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would suffer aches and pains, both in the neck and back and even elsewhere, which he regarded as "the norm" for a human being. In his opinion there was no permanent disability relative to the motor vehicle accident.

149 Finally, Dr Bowles explained in his report that he attributed "these issues as being brought on by the reporting bias induced of an ongoing personal injury claim." Dr Bowles explained in evidence that being involved in litigation had an influence on the outcome for the patient's health, in that it prolonged recovery and the time taken for the patient to return to work and that the system, in requiring a person to prove their disability, could influence what they attributed to the collision. Dr Kerr acknowledged that a patient involved in litigation may be influenced to attribute all symptoms to the collision.

150 No doubt such comments have validity. Dr Bowles drew nothing, however, from the plaintiff's comments that she had always suffered back ache as a nurse and did not attribute that to the collision and that she believed her headaches may be tension related. I regard both of those comments demonstrate an attempt, as far as a patient may, to fairly separate the collision-related from the non-collision related complaints. Due to the impression I formed of his report generally, I cannot be confident that the comment as to her headaches represents a verbatim account of what she said and whether it relates to all of her heachaches, given the inconsistency between that comment and her evidence and the evidence of Dr Kerr and Professor Mastaglia. He was not cross-examined on this point however.

151 Dr Bowles saw the plaintiff again on 10 January 2007, so a few weeks prior to the second consultations with Dr Kerr and Professor Mastaglia. During that consultation, according to Dr Bowles' report, the plaintiff stated that she spends time at her daughter's school providing voluntary assistance helping some of the slower readers and occasionally helps out with childcare, looking after children of a friend of a friend, but is involved in no paid employment and is hoping to undertake her own business in the form of child art activities.

152 Dr Bowles noted her complaints in January 2007 were of headaches in various regions, including behind the right ear and the base of back of the head which she felt may be tension-related and which she treated with over-the-counter medication. She also complained of left-sided neck pain, noting discomfort looking both left and right, as well as looking up, and also complained of right trapezial discomfort. She told Dr Bowles she

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had a constant ache and soreness around the left mastoid process and the left side of her neck. She also noted a variable ache at the top of her right shoulder blade, particularly noticeable when she was lying down.

153 Dr Bowles observed no sign of restriction or impairment of movement on informal examination. On formal examination the plaintiff made no complaints of tenderness to the right side of her neck (which Dr Bowles noted correctly had been a central feature of her complaints previously). Her range of movement showed no extension, mildly restricted movements to the left and right, and normal flexion. She noted discomfort across the top of her right shoulder blade.

154 Dr Bowles compared the plaintiff's complaints as of January 2007 to her previous examinations and stated that he was a little surprised that she made no complaint in relation to the right side of her neck, in contrast to her complaints to Drs Kerr and Hahnel and Professor Mastaglia, which reinforced Dr Bowle's view that the injury sustained in the accident had resolved.

155 A few weeks later, of course, she was to see Dr Kerr and Professor Mastaglia, again complaining of right-sided symptoms.

156 While the failure to complain to Dr Bowles of right-sided neck pain is inconsistent with the other medical evidence, it does not materially detract from the broad and consistent pattern of ongoing right-sided pain in the neck and above the shoulder blade.

157 When she saw Dr Bowles the second time, the plaintiff showed restriction in her head and neck movement left and right and also noted pain across the top of the right shoulder blade. The thrust of her evidence is that she at times exacerbates the pain by activities, which she then ceases and so she regulates her activities and hence in that way regulates her discomfort. The discrepancy in her pain may then be explained by what activities she did, or did not, partake in over the days preceding the consultation. Her report of pain may also have been influenced subtly by the mood of the consultation itself, her mood on the day and her level of rapport with the doctor.

158 I reject the suggestion that the plaintiff's claim that she has suffered these symptoms since the collision is the result of "reporting bias induced of an ongoing personal injury claim" which utterly fails to give the plaintiff credit for attempting, in her consultation with Dr Bowles, to distinguish between collision and non-collision caused pain. I prefer the evidence of Professor Mastaglia and Dr Kerr to that of Dr Bowles.

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159 I am satisfied to the required standard that the plaintiff suffered a subtle undisplaced fracture to her sternum during the collision when her chest impacted with the steering wheel. I accept Dr Kerr's evidence in this regard in preference to Dr Bowles's evidence, supported as it is by the Joondalup notes and the symptoms of sharp pain behind the sternum coupled with bleeding. I consider the plaintiff's return to work some four weeks after the collision is explained by her stoic character. In any event, not much turns on whether the clearly painful injury she suffered to her sternum amounted to a fracture or not.

160 I find that she also suffered a whiplash injury in the collision, being a significant soft-tissue injury to the cervical spine, leaving her with ongoing pain and discomfort in the neck, particularly the right side of the neck with some subtle reduction in the extremes of movement, together with pain above the right shoulder blade. I find she suffers from regular headaches, particularly brought on by activity, such as hanging out the washing, which are most probably related to the injury, although they may at times be tension related.

161 There were some discrepancies between her evidence and the history related by her doctors, which the doctors generally appeared to regard as their error and, as nothing was made of those discrepancies, I intend to disregard them. I also disregard the issue raised in the defence of a pre-existing degenerative condition. Nothing was made of this at trial. There was no evidence that the condition was symptomatic pre-collision and Dr Bowles, called by the defence, made nothing of this.

162 The plaintiff's work history indicates that she has consistently worked while raising children, ceasing work only for the birth of each child and a modest period after each birth. She continued to work as single mother after her divorce and again after the breakdown of her relationship with Mr Peterson in 2002. The staff history (Exhibit V) is indicative of a reliable employee, who suffered periods of mundane illness.

163 She returned to work in a physically demanding job approximately a month after a collision in which she suffered a painful chest injury and I consider her to be somewhat stoic in that regard, as did Dr Kerr. Dr Hahnel was also struck by the plaintiff as being "fairly stoic".

164 She did experience issues with her son, as many parents of teenagers do, and I find that this impacted upon her reliability as an employee for a time. It is, however, highly unlikely that a woman of the plaintiff's work

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history would cease work and eventually resign over such issues, particularly when her resignation so materially affected her financial situation, as evidenced by her taxation returns. She had a young daughter to support and issues with her son were unlikely to have been constant, or permanent.

165 I accept her evidence that she resigned due to her injuries and the ongoing pain she suffered. The plaintiff gave her evidence plainly and with restraint. She impressed me as both an honest witness and also a witness not given to overstatement. Rather she tended to testify in a quiet and understated way. She did not present as a person who was in any way tailoring her evidence to advance her case.

166 An example of this was that she was unable to clearly recall when she first complained of neck symptoms. When shown her own report of the collision to the police (Exhibit C) and her reference to having suffered "severe whiplash," the plaintiff had no apparent understanding of what she really meant by that expression and said she presumed it referred to her having been jolted forward in the collision. A more self-serving witness would have seized upon the document as evidence of complaint of neck symptoms immediately following the collision.

167 Similar comments can be made about her concession in cross-examination that she was then coping with her work when she told Ms Sariago that she was having problems at home. That was a concession which was very favourable to the defence. That time frame coincided, however, with notable reductions in the number of shifts the plaintiff was working, a strategy I accept she employed as a method of enabling herself to cope better.

168 I find that the plaintiff attempted, with some physiotherapy initially and by reducing her shifts, to "drag" herself to work and that she had periods when she coped better than others. I find that she remained hopeful that the situation would improve over time and that she adopted a stoic stance of trying to endure in silence, rather than informing the hospital she was no longer coping with her work. I do not accept that her return to work is indicative of a person who is not suffering the sort of chronic pain described, or that failure to regularly consult doctors reflects a lack of ongoing difficulties.

169 I do accept the plaintiff was self-conscious about her work performance and felt she was not pulling her weight and was also conscious that she may be regarded as less competitive in the future if she

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complained. That is consistent with her failure to give the hospital any reason for her resignation. Had she been keen to contrive an injury related resignation, her letter would have been an opportunity to complain of injury. Her issues with her son and probable stress over difficulties with child-minding in all probability reduced her resilience and ability to cope with the pain she suffered, but I do not accept that they were the cause of her resignation. Had she not suffered injury in the collision, I am satisfied she would have continued to work at the hospital. In light of the pain she suffered I consider it entirely reasonable that she chose to no longer endure an occupation in which she required regular painkillers and anti-inflammatory gel, reduced shifts and reduced hours to cope. I find she has proved her case on the balance of probabilities.

Past economic loss and interest

170 I have been assisted by the plaintiff's schedule of loss which set out detailed calculations for me. Due to the difficulties in assessing the income she earned in child minding I have decided in this case to calculate her past loss to the date of the trial, rather than from the date of the judgment.

171 The plaintiff commenced work at the hospital on 28 April 2003, but the taxation return for that financial year is not in evidence.

172 The plaintiff's individual tax return for 2004 indicated a gross income from her wage occupation of carer of $23,684, which equates to an average of $455.46 gross weekly income. I have previously referred to the plaintiff's issues with her teenage son and babysitting difficulties on occasion, but the 2004 financial year is a year in which I conclude those difficulties were suffered, their impact being obvious in May and June, which did result in reduced shifts.

173 In the 2005 financial year, the collision having occurred early in that financial year, the plaintiff earned $12,910 gross from her wage occupation of carer. For the 2006 financial year, the plaintiff earned a total of $1,536 gross income from her occupation of carer.

174 The plaintiff does not press for a higher income figure than that represented by the 2004 financial year's income, which to my mind strikes the balance between an assumption that she would have followed her usual pattern of working between four to six shifts per fortnight against the risk that she would have to cancel shifts or reduce shifts due to parenting issues, difficulty obtaining a babysitter and other contingencies. The 2004 financial year contained such difficulties and so I am satisfied

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on the balance of probabilities that, were it not for the injuries suffered in the collision, she would have earned as much as she did earn in that year. Her gross earnings on that basis then, working on an income of $23,684, or an average of $455.46 gross weekly income, from 6 August 2004 to trial (a period of just over 2 ½ years) comes to a total of $59,210. The plaintiff claims the difference between that figure and her actual earnings for that same period.

175 During that period the plaintiff has earned money from child minding. In cross-examination she agreed with the proposition that she commenced child-minding around July or August 2005, her last shift actually worked at the hospital being 23 July 2005. She described the job as involving only a couple of hours in the morning to see the children to school and said that job had lasted about 12 months. She also told Dr Bowles that she had only done this job for a few months but that it had irritated her shoulder by holding the young child on her right hip and so she had stopped. There is no evidence as to what she earned in that job.

176 When she testified at trial she was again engaged in childminding for a couple who live in Gwelup and found she was coping with that job. She was employed in that capacity when she consulted Dr Kerr and Professor Mastaglia in February 2007. It is not clear to me just when that arrangement commenced. Her evidence was that she earned $16 per hour and around $80 to $100 per week. The taxation returns do not mention income derived from child-minding. Dr Bowles understood she was not in paid employment. I accept her evidence at trial however that she was. The evidence was very vague however and the plaintiff said she had worked at child minding for "a year or two," which presents me with a very imprecise time span.

177 It is impossible for me to arrive at any precise figure as to how much the plaintiff has supplemented her income with childminding over the relevant period, but I am invited to reduce her lost earnings by $5,000 to represent the approximate earnings from child minding. Working on the plaintiff's evidence that she earned between $80 to $100 per week, that equates to working between 62 and 50 weeks and that is broadly consistent with her evidence on this issue, such as it was. In the circumstances I accept that estimate of $5,000 as representing the extent to which the plaintiff's income has been supplemented.

178 Adding that figure to the amount the plaintiff earned from her job as a carer during that same period, which totalled $14,446, the plaintiff's total gross earnings from the collision to the time of trial was $19,446.

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The difference between that figure and her expected earnings of $59,210 is $39,764.

179 Applying a taxation rate of 15.3 per cent, which was approximately that applied by the Australian Taxation Office to the plaintiff's earnings (including her child allowance) for the 2004 financial year and resting on the assumption that the same rate of taxation would be applied if she had earned similar figures, the net figure calculates to $33,680. In addition, the plaintiff claims interest on that sum at half the gazetted rate of interest, namely 6 per cent, so that is to say at 3 per cent (as to which see Brasser v Graham & Graham [1985] WAR 180 and I accept it is appropriate to make that award. Applying that rate over the period of 2 ½ years results in a figure of interest on lost past earnings of $2526.

180 The plaintiff claims for loss of employer superannuation contributions at the rate of 9 per cent of the gross loss of $39,764, less an allowance of 15 per cent for administration costs. There is no challenge to that method of calculation and I accept it and allow a figure of $3,042 by way of lost superannuation contributions.

Future employment capacity

181 I have earlier detailed the evidence of Dr Kerr and Professor Mastaglia. Dr Kerr concluded that he doubts that the plaintiff has the capacity to reliably work as a nursing assistant, but said she will retain her current work capacity and remains fit for work as a child minder. He considered it very likely that, if she attempted to work as a nursing assistant, she would suffer increased pain and stiffness. He said that any work task involving regular bending, pulling, manual lifting or undertaking resistive upper limb tasks is beyond the plaintiff's capacity to sustain in any consistent manner.

182 Professor Mastaglia anticipated the plaintiff would be able to continue working as a child minder on a part-time basis but expressed uncertainty about whether she would ever be able to resume her duties as a nursing assistant. He considered it unlikely that her injuries will affect her long-term employability, but she could be restricted in her ability to compete in the open workforce if she tried to get back into nursing work.

183 The plaintiff testified that she no longer suffers any pain in her chest, but still suffers pain in her neck and shoulder and suffers from headaches once a week or a fortnight, depending upon her activities. She treats the headaches with Panadol and lies down and also regulates her level of activities and gives herself breaks.

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184 I am satisfied, on the balance of probabilities, that the plaintiff does retain a working capacity but that, if she returned to working as a nursing assistant, she would likely find that her symptoms would be exacerbated. The work described is physical and involves lifting patients, some of whom would be unable to assist in that process. I do not consider the provision of pulley systems to facilitate lifting would remove the likelihood that a nursing assistant will involve herself in lifting, pulling, pushing and otherwise bearing the weight of adult patients. She would, in order to cope with her injuries, need to use regular painkillers, work reduced hours, self-cancel booked shifts and would be unreliable because of her need to take breaks and regulate her activities to accommodate her injuries.

185 The evidence of Dr Kerr and Professor Mastaglia was broadly consistent in this regard and I accept in particular the opinion of Dr Kerr that work involving regular bending, pulling, manual lifting or undertaking resistive upper limb tasks is beyond the plaintiff's capacity to sustain in any consistent manner.

186 These limitations on her ability to perform her tasks without risking exacerbating her injury and the need to reduce and monitor her work hours will more likely than not reduce her ability both to work satisfactorily and to compete in the open workforce. She would still be capable of performing shifts where what was required was merely sitting and watching the patient through the night and she did perform some shifts of that nature after her collision. There is no evidence as to the call for such services in the market.

187 The plaintiff will be similarly affected should she seek alternative employment in any field in which bending, lifting, pulling, pushing or generally physical activity engaging the neck and shoulders is required.

188 I do not consider this to be a case where the onus is upon the defendant to show what alternative employment opportunities there may be for the plaintiff (as to which see Thomas v O'Shea (1989) Aust Tort Rep 80-251). She is in alternative employment. There appears to be no reason why she cannot work as a child-minder in a private capacity. If, however, it was to be suggested that she could avail herself of employment other than child minding I consider there is an onus on the defendant to put evidence before me in that regard, which she has not done so. The defendant's case is that the plaintiff remains fit for assistant nursing. It was suggested in cross-examination that the plaintiff might work in a kindergarten but there is no evidence before me as to the

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likelihood of her gaining employment in a kindergarten. She has no qualifications in that field and has made no attempt to gain employment in a kindergarten.

189 The plaintiff testified that she earns $16 per hour child minding, averaging between $80 - $100 per week, which equates to some five to six hours work a week. While Dr Kerr expressed concern about her ability to work longer hours if she had not proven her capacity to do, I consider it likely she could cope with some longer hours providing she was not required to lift the children or other heavy objects. It is highly unlikely however that child minding or working as an unqualified assistant in a kindergarten is likely to result in anything other than a very modest income.

190 There is evidence the plaintiff is hoping to commence a business run providing children with canvas and preparing paint for them and guiding them through that activity, but there is no evidence that such a business is really viable and likely to produce a real income. Again, it is unlikely that such a venture could yield anything more than the most modest income.

191 I am satisfied the plaintiff has lost her pre-collision earning capacity and that her residual earning capacity is very modest.

192 The plaintiff gave evidence that, as her youngest child got older, she "would have just carried on working in the hospital" and that, as her daughter got older, she "probably would have done extra shifts". She claims for future loss of earning capacity on the basis that she could have been expected to work as a nursing assistant until she was 65 years old. There was no evidence before me that she intended to work until 65 years of age specifically, but I infer from her evidence that she intended generally speaking to keep working. This evidence was unchallenged. I consider it appropriate to take her pre-collision weekly average net wage of $385.77, assume she would have worked a further 19 years for which the multiplier on the 6 per cent interest table is 600, resulting in a net figure of $231,462 and to then discount that figure by 6 per cent to recognise the contingencies that the physically demanding nature of the work, or other factors, may have caused her to retire earlier than 65 years or otherwise reduce her workload and also to take account of the issues she was experiencing with one of her children and the risk that such issues or other parenting issues might arise in relation to her other children from time to time.

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193 The reduction of 6 per cent may seem low, but I have also taken into account, in assessing that discount, that the maturing of young daughter may also have seen the plaintiff more reliably working six shifts per fortnight than she was in the financial year for 2004, from which that figure is derived and also possibly taking on more shifts. The discount of 6 per cent to the figure of $231,462 results in a net figure of $217,574.

194 I have found the plaintiff retains some earning capacity and I must put a value on that. I am satisfied she retains an ability to earn a very modest income through private employment as a child minder and finds she remains capable of working for around 2 to 4 hours a day in that capacity, providing she does not engage in any of the physical activities which will exacerbate her injuries. There is the possibility of similar work in a kindergarten or running a small business supervising children painting, but all these occupations are likely to attract only modest earnings. I also consider the plaintiff remains capable of performing limited nursing shifts which consist of watching the patient through the night, although her limitations would have to be clearly spelt out and may well make her uncompetitive in that field. The evidence is not clear that the plaintiff will be indefinitely incapable of working as a nursing assistant, though both Dr Kerr and Professor Mastaglia, whose evidence I accepted, had reservations in this regard and consider such work will exacerbate her injuries. I also find she is likely to be uncompetitive in the field of assistant nursing. Taking into account all these factors I assess her residual earning capacity should be set at 25 per cent of her pre-collision earning capacity. The discount of 25 per cent to the net figure of $217,574 results in a figure of $163,180.

195 The plaintiff claims for future loss of employer superannuation contributions at the rate of 9 per cent of the net future loss of earnings of $163,180. Again, there is no challenge to that method of calculation and I accept it and allow a figure of $14,686 by way of lost future employer superannuation contributions.

General damages

196 This being a case involving a motor vehicle collision which occurred subsequent to September 1993, any award of general damages for pain, suffering and loss of amenities must be in accordance with sections 3A, 3B and 3C the Motor Vehicle (Third Party Insurance) Act 1943. Those provisions require me to assess the nature and extent of the injuries suffered by reference to a most extreme case: see Wylde v Aristondo 'Arriaza, unreported; FCt SCt of WA; Library No 970359;

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delivered 23 July 1997. The applicable maximum award for an extreme case being $279,000, I am now to apportion this case and the loss suffered by the plaintiff as falling somewhere between nil and the most extreme case.

197 The plaintiff suffered the initial pain to her sternum, which I accept was severe, and required her to forego work for a period of a month and then resolved sometime after her return to work. During her initial recovery she reacted badly to a medication, causing vomiting which was no doubt also very painful. In addition I accept that her neck gave her pain from shortly after the collision, originally centralised, on occasion slight pain on the left side but predominantly right sided. I accept she suffered pain in the right shoulder blade region. I accept her neck injury in turn produced headaches.

198 This pain has impacted upon her ability to cope with usual housework activities and, particularly being a single mother, that has caused difficulty. Activities particularly like hanging out washing have been a difficult chore and the plaintiff has had to stop when the activity causes her pain. Her ability to drive was affected for some time though I find this has all but resolved, except for a remaining subtle reduction in movement of her neck at extremes which leaves her still aware of her injury when driving.

199 I accept that her level of general sporting activity has markedly decreased and that she has gone from a woman who played team sports to a woman who now walks for fitness.

200 She has had to suffer the anxiety of her deteriorating performance at work in a field in which she has worked for many years and I accept that she has been stoic and has performed shifts while in pain in an attempt to remain employed in her field.

201 While over time the chest injury has completely resolved, the neck pain and pain above the right shoulder blade remains and she has suffered headaches once a week or fortnight which she has treated successfully with over-the-counter painkillers.

202 When I compare this to a most extreme case which I would apprehend to be, for example, quadriplegia or debilitating head injury, I regard the plaintiff's initial symptoms including pain, their resolution in the case of the chest injury and ongoing nature in the case of the soft-tissue injury, their effect on her enjoyment of life and their prognosis, as placing this case at no more than 7 per cent of a most extreme case,

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which equates to 7 per cent of $279,000 or $19,530. The amount of damages I am to award under this head is the excess of $19,530 over the deductible amount set down by the Act of $14,000. Accordingly I make an award of general damages of $5,530.

Future medical treatment

203 The plaintiff claims a global amount of $5,000 for future physiotherapy, physical therapy and continued consumption of painkillers and anti-inflammatory medication. Dr Kerr considered, by way of future treatment, that the plaintiff would require simple analgesia and from time to time further physiotherapy, a programme of stretching and self-maintenance through exercise. I consider it appropriate to make some allowance in this regard, but given the lack of evidence that the plaintiff had undergone any lengthy course of physiotherapy and that she tended more to resort to stretching at home and taking it easy and refraining from physical activities, I consider an award of $2,500 to be adequate.

Special damages

204 Special damages have been agreed between the parties at $183.80 and I make an award for that amount.

Summary of award

General damages $5,530.00

Past economic loss $33,680.00

Interest on same $2,526.00

Past loss of superannuation $3,042.00

Future loss of earning capacity $163,180.00

Future loss of superannuation $14,686.00

Future medical treatment $2,500.00

Special damages $183.80

Total $225,327.80