Greenwood v Banham
[2001] WASCA 335
•1 NOVEMBER 2001
GREENWOOD -v- BANHAM [2001] WASCA 335
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 335 | |
| THE FULL COURT (WA) | 01/11/2001 | ||
| Case No: | FUL:147/2000 | 10 AUGUST 2001 | |
| Coram: | MALCOLM CJ STEYTLER J WHEELER J | 10/08/01 | |
| 26 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| C | |||
| PDF Version |
| Parties: | TANIA LOUISE GREENWOOD MAUREEN BANHAM |
Catchwords: | Damages Measure and remoteness of damages in action in tort Negligence Motor vehicle accident Damages for non-pecuniary loss Whether statutory limitations on award for non-pecuniary loss correctly applied Correct principles applied |
Legislation: | Motor Vehicle (Third Party Insurance) Act 1943 (WA), s 3A, s 3B, s 3C, s 3D, s 3E |
Case References: | Southgate v Waterford (1990) 21 NSWLR 427 Wylde v 'Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : GREENWOOD -v- BANHAM [2001] WASCA 335 CORAM : MALCOLM CJ
- STEYTLER J
WHEELER J
- Appellant (Defendant)
AND
MAUREEN BANHAM
Respondent (Plaintiff)
Catchwords:
Damages - Measure and remoteness of damages in action in tort - Negligence - Motor vehicle accident - Damages for non-pecuniary loss - Whether statutory limitations on award for non-pecuniary loss correctly applied - Correct principles applied
Legislation:
Motor Vehicle (Third Party Insurance) Act 1943 (WA), s 3A, s 3B, s 3C, s 3D, s 3E
(Page 2)
Result:
Appeal dismissed
Category: C
Representation:
Counsel:
Appellant (Defendant) : Mr J R Brooksby
Respondent (Plaintiff) : Mr T N Cullity
Solicitors:
Appellant (Defendant) : Greenland Brooksby
Respondent (Plaintiff) : Trewin Norman & Co
Case(s) referred to in judgment(s):
Southgate v Waterford (1990) 21 NSWLR 427
Wylde v 'Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997
Case(s) also cited:
Nil
(Page 3)
1 MALCOLM CJ: This was an appeal against a judgment of HH Jackson DCJ in the District Court dated 14 August 2000 by which the learned Judge awarded the respondent damages for personal injuries in the sum of $34,670.65. The claim arose out of a motor vehicle accident on 11 October 1997, when the respondent's vehicle was stationary at traffic lights on Morley Drive, Dianella and was struck from the rear by a motor vehicle driven by the appellant. Liability for damages for negligence was admitted. The case involved the assessment of damages only.
2 The respondent was a female pre-primary school assistant or teacher's aide, who was born on 25 January 1943. Her claim was for general damages, economic loss and future medical expenses relating to pain and suffering, essentially arising from neck, mid-thoracic and lumbar pain and headaches.
3 At the conclusion of the argument on 10 August 2001 the Court was unanimously of the opinion that this appeal should be dismissed and ordered that the appeal be dismissed and that the appellant pay the respondent's costs of the appeal to be taxed. It was then indicated that the reasons for making those orders would be published later. These are my reasons.
Findings of fact
4 Counsel for the appellant accepted the findings of fact made by the learned Judge in par [73] of his reasons as follows:
Whilst I am not satisfied that the pre-accident symptoms of other collisions had entirely resolved and although I think it likely from the evidence of the videotape film and other evidence, that the [respondent] has exaggerated her symptoms, I find that she did suffer some injuries in the collision and the effects are continuing. I accept the medical evidence, however, which suggests likely improvement over 18 months or two years. Further, I must have regard to the probable effects of the [respondent's] age. (As to her age as a general factor in the assessment of general damages, I make no variation from the findings I otherwise make. This is not a case in which permanent or long term injury is involved, in my view.)"
5 As to general damages, the learned Judge said at [74] – [75]:
(Page 4)
- "The claim for general damages is subject to the provisions of s 3A to s 3E of the Motor Vehicle (Third Party Insurance) Act 1943.
Given the statutory restrictions I would allow a figure being not much more than 10 per cent of a most extreme case, say $25,000. Those provisions reduce that to $14,000."
6 As to past economic loss, the learned Judge said at [76] – [77]:
At the time of the accident the [respondent] was approaching 55 years of age. She was working about 29 hours per week over a five day week during school terms and earning $354 net per week. After the accident she took time off work until commencement of the 1998 school year. She also took off one week from work in the second term of each of the 1998 and 1999 school years. In late January 2000 she took another week off work. She says this was due to her symptoms but she also was caring for her husband who had had surgery. On each occasion she was paid sick leave by her employer. She claims $2,500 for loss of sick leave credits.
For a number of reasons, but especially the lack of evidence as to various matters concerning sick leave entitlements Mr Brooksby argues that no claim for loss of sick leave credits is established. I agree. I have no evidence as to the basis on which such credits accrue or the quantum of those lost or their recoverability."
7 So far as future economic loss is concerned, the conclusions of the learned trial Judge were:
"The [respondent] claims to experience difficulties performing her employment duties.
She says that prior to the accident it was her intention to work until aged 60 but due to the problems she is experiencing it is unlikely that she will be able to work past the end of the 2000 school year. She will turn 58 in January 2001 and says that she will thereby lose two years' income.
At a rate of $354 net per week after applying the multiplier that amounts to $32,388.66. She also claims loss of superannuation
(Page 5)
- entitlements at a rate of eight per cent of $435 gross per week for that period, $3,232.92.
A book of income tax returns, assessments and group certificates, pay slips and correspondence relating to her employment history and a further pay slip were tendered by consent as Exhibits 2 and 2A. Her current earnings are $708.01 per fortnight.
On the balance of probabilities I am not satisfied that the [respondent] will cease employment before the age she would otherwise have retired, which I am prepared to put at 60 years, but I am satisfied there is a greater chance of that because of the symptoms she does have. I allow $15,000 on that head, assuming the chance of early retirement to be about 40 per cent."
8 In respect of the respondent's claim for future medical expenses, the learned Judge noted in [83] that the respondent had filed a schedule of future medical expenses which became Exhibit 3. The respondent said that she would require to consult her general practitioners, attend hydrotherapy and physiotherapy treatment and to take medication in the future. On the basis of a future need for these services for two years her claim was for a sum of $57.57 per week calculated in accordance with the multiplier on the 6 per cent tables for a period of two years. It was agreed that the reasonable cost of 20 Panadeine Forte tablets was $10.35 and 50 Voltaren 50mg tablets was $15.90. The learned Judge allowed the claim under this head at $5,670.65.
9 On this basis, damages were assessed by the learned trial Judge as follows:
General damages $14,000.00
Economic loss 15,000.00
Future medical expenses 5,670.65
Total $34,670.65
Grounds of appeal
10 By her appeal, the appellant, who was the defendant in the action, seeks an order that the damages be reduced on the grounds that, in summary:
(Page 6)
- (1) The award of $25,000 (or approximately 11.1 per cent of the most extreme case) by way of general damages was outside the range of a sound discretionary judgment.
(2) The award of $15,000 by way of future economic loss was excessive and beyond the range of a sound discretionary judgment.
(3) The award of $5,670.65 by way of future medical expenses was excessive as there was no evidence to support the continued intake of the drugs claimed, or the continued provision of physiotherapy treatment at the level claimed or at all.
(4) The learned Judge should have made no award in relation to future medical expenses.
11 It was contended that the learned Judge should have found that:
(a) the appropriate level of damages should have been a minor percentage of the most extreme case; and
(b) the respondent was unlikely to retire prematurely given that she had continued working for two and a half years and that she had exaggerated her symptoms; what symptoms she had would improve; there would be no permanent disability; and
(c) the respondent needed little, if any, medical treatment in the future.
Background
12 On 11 October 1997 the respondent stopped at traffic lights on Morley Drive, Dianella and "a little while afterwards" she was hit from behind and her car was pushed into the oncoming traffic. She had not seen the vehicle approaching from the rear. The boot of her vehicle was pushed in and over the wheels. The radiator of the other vehicle was pushed in, but did not "go right up to the car". The respondent said that she had very severe headaches virtually straight after the accident and was shaky. She left the scene with the tow truck driver in his truck and they went to her son's workplace where they picked up his car.
13 Not long after the accident the matter was reported to police. That having been done, and suffering a very bad headache, the respondent sought medical advice.
(Page 7)
Medical and post-accident history
14 The respondent's usual doctor was not at his rooms and her brother took her to see the locum of his general practitioner, a Dr G Claydon. The respondent was prescribed rest and painkillers and x-rays were ordered for the following Monday when she also saw Dr Claydon, still very sore and with a headache. She was having difficulty walking and her whole spine was sore. She had pain in the right leg and ankle also.
15 Dr Claydon prescribed Panadeine Forte and Voltaren with rest and referred her to a physiotherapist, who supplied a soft collar. The respondent used up 11 weeks of sick leave credits, returning to work at the start of the 1998 school year. She rested, had hydrotherapy and physiotherapy, took painkillers, had several visits from rehabilitation specialists and as a result acquired a new chair and desk and continued to see Dr Claydon regularly. She returned to working the same hours as before in late January or early February 1998, working 29 hours per week over five days. She remained at work until taking a week off in May. Her role was to set up equipment, prepare for activities and participate in pre-school activities, such as mat sessions, music, physical education and table activities such as play dough and painting. Being pre-school children, the furniture and chairs are low and small. Using them and sitting on floors the respondent found "very difficult". Her back and neck became sore. Asked about her condition after returning to work in 1998 she said:
"I find it difficult to stretch up above my head for any length of time, and I've found that I couldn't lift some of the things that I used to lift before and I can't bend over the tables and things for any length of time. Sitting for any length of time or standing for any length of time everything seems to jam up and the pain is worse. I have pain every day but that adds to it."
16 The respondent continued with twice-weekly physiotherapy which provided temporary relief.
17 In May 1998 she assisted a child to get down from a playground cargo net and her back became "very, very sore". She took a week off work, saw the doctor, rested and had "a lot of hydrotherapy". After a week, although still sore, she returned to work. During the school year, especially, the respondent takes about two Panadeine Forte daily and Voltaren. In 1998 she did hydrotherapy and following a programme prepared by her physiotherapist.
(Page 8)
18 The respondent worked in 1999 taking another week off in May and then one term off on long service leave. She took the week off in May with chest pain radiating into her arm. A report from Dr Hands of Western Cardiology dated 18 October 1999 which was in evidence excluded any cardiac origin from the respondent's chest wall symptoms.
19 In all, the respondent took off some 12 weeks and visited her daughter overseas, taking with her some medications and continuing her exercise programme. However, in this period she did not undertake any physiotherapy. She said that she suffered a lot of pain in that time, although she rested a lot, which gave her relief. She returned to work in September 1999. The learned trial Judge relied on the following passage in her evidence:
"Is the fact that you're most of the time dealing with 27 children have any effect on your symptoms?---Yes. I have to constantly think of different strategies to deal with different situations with children and we do a lot of different things every day with the children and sometimes children need to be restrained and I have difficulty in that and I sometimes have to call for assistance when you've got autistic children there in the class. By the end of the day I'm suffering from fatigue and the pain is quite strong some days when I go home.
... How would the pain compare on an average Monday to say an average Friday?---It's pretty sore by Friday. It gets worse as the week goes on. By the end of term it's quite bad too. Generally the first week of my holidays I have to do a lot of resting to catch up."
20 The respondent's employment was for six and a half hours per day for four days each week, including cutting and photocopying learning materials, operating the video, scrubbing paint and other materials off surfaces, demonstrating and assisting with motor skills and sport and physical education in the playground, which the respondent found difficult. On Fridays she prepared for the following week.
21 The respondent also took a week off work in early 2000 while her husband was hospitalised. Sitting at the hospital caused considerable discomfort, as did caring for him after discharge. The respondent's evidence, which appears to have been accepted by the learned trial Judge was that her husband, now retired, had had to do more domestic chores such as vacuuming, hanging out washing, gardening and chopping
(Page 9)
- vegetables as a result of her accident. She said that she still did some dressmaking and embroidery but in short time periods to avoid symptoms. After work she rested and cooked a meal, but little else, whereas previously she sewed well into the night. She said she had intended to continue to work until aged 60, but was now "really struggling with it. I'd like to think I could but ... I don't think I can". She was still taking Panadeine Forte, Voltaren and sometimes anti-depressants, saw a general practitioner about monthly, attended hydrotherapy weekly during school terms and attended physiotherapy weekly.
22 The learned Judge noted that the respondent had been involved in a motor vehicle accident in 1987 after which she suffered low back, shoulder and neck symptoms. She said that after two years her symptoms were almost "finished" subject to an occasional and relatively minor flare-up which was resolved by Panadol, rest and exercise.
23 In 1993 she suffered some low back bruising and soreness following an accident with a trolley. She said that they had resolved save for minor recurrences on odd occasions. She had been treated for these injuries by Dr Webster who had prescribed Panadol for about two years.
24 The respondent was asked by counsel for the appellant at the trial to describe her range of neck movement. She demonstrated a range of only about 30º, which she said had been the position since, but not before, the collision. Prior to the collision, she said she had only occasional slight restriction to the left because of stiffness. At present the pain, soreness and restriction was worse to the right. Asked about bending, she said that she could touch her knees, perhaps further, but only with a lot of pain.
25 A videotape was played to the Court at the trial. The film was taken on 20, 23, 28 and 30 March 2000. It was put to the respondent that the film showed her twice exhibiting a full range of neck and head rotation to the right freely when driving a car after school on a workday. The respondent agreed but said she had to turn her head, that it hurt to do so and she turned her shoulder with it. She agreed she could do so sometimes when her neck was not very stiff, but not at trial or very often. She also said that she suffered upper back pain daily, but only occasionally lower back pain. She found that bending and stretching could cause low back pain, so she was careful.
26 The respondent was also asked about neck flexion. She said physiotherapy had helped this, but she said her neck was very sore at the time of trial and that she could not fully flex. She did not agree that the
(Page 10)
- videotape film showed her fully flexing her neck. She did not agree that she had exaggerated her symptoms. She said that they were better in the post-accident period but had been on a plateau for about two years, although there had been daily variations. Mr Banham said that he had started to do more domestic chores in the period after the accident. He had retired prior to the accident. On the day of the accident he said that the respondent came home complaining of a sore neck and back. She was off work for some three months and he took on more domestic duties. They had previously done a lot of walking but this had been reduced. He said that after work the respondent came home "drained" and rested before assisting with the evening meal. In cross-examination Mr Banham agreed that his wife sometimes did the shopping on the way home from work.
27 The respondent's evidence was also supported by that of Ms J A James, a pre-primary school teacher at Craigie Primary School. The respondent had been working with Ms James as her teacher's assistant for about five years, including a period prior to the accident. Suffice it to say that Ms James substantially corroborated the respondent's evidence in relation to her symptoms and difficulties.
Dr Claydon
28 Dr Claydon, a general practitioner, first saw the respondent on 13 October 1997, two days after the accident. He referred her to physiotherapy for pain management and mobility. She had benefited and, as at the time of trial, Dr Claydon thought that weekly visits were still justified. The physiotherapist had prescribed a soft collar and a TENS machine. He had also referred the respondent to rehabilitation providers for assessment and help in her return to work. In his initial report Dr Claydon stated that the injuries sustained were neck pain, headaches and dizzy spells and ringing in her ears, thoracic and lumbar pain and right ankle pain. In his medical report dated 20 November 1997 Dr Claydon reported that the respondent had sustained the following symptoms as a result of her injuries in the accident, namely, neck pain, headaches and dizzy spells and ringing in her ears, thoracic and lumbar back pain, and right ankle pain. In addition, Dr Claydon said:
"A diagnosis of soft tissue injuries was made. An x-ray of her cervical spine and CAT scan of her cervical spine were normal.
(Page 11)
- ... her current condition is fairly static. She still complains of pain and stiffness primarily in her neck, thoracic spine and right leg.
I have given Maureen a medical certificate until the start of the next school term, as it is clear she is not fit to return to work yet.
It is difficult to predict the anticipated period of partial incapacity, except to say it is likely to be very protracted, in view of Maureen having had previous neck, thoracic and lower back injuries.
It is highly possible Maureen may have permanent disabilities in view of her previous back problems and the length of time they took to settle.
... some if not all of the injuries are an exacerbation of a pre-existing injury. Approximately 10 years ago Maureen was involved in another motor vehicle accident. At the time she was treated by Dr Webster in Glengarry as well as other Specialists and Physiotherapists. Maureen says the claim was finalised after about 2 years."
29 In a report dated 11 March 1998 Dr Claydon said:
"She continues to make slow but steady progress with respect to pain and general movement.
On review today, Maureen was feeling a little worse from raking in the garden over the last weekend.
SYMPTOMATOLOGY.
Maureen still complains of stiffness and soreness in her neck and upper thoracic spine predominately [sic] with some lower back and right leg pain as well.
EXAMINATION.
i) Cervical Spine: Generally fair range of movement in all direction [sic], but with noticeable restrictions particularly in flexion and extension. Palpation all along the cervical spine was reported as tender.
(Page 12)
- ii) Thoracic Spine: Generally a good range of rotation present. Palpation of the upper thoracic level seemed to cause more discomfort than the lower levels.
iii) Lumbar Spine: Maureen could flex to where her hands reached her mid shins. Her range in extension and lateral flexion were good. Palpation of the mid to lower lumbar levels reported the most discomfort. Lower limb reflexes were normal. Straight leg raising only to 30 per cent in both legs.
MEDICATION:
Panadol on average 1-2 tablets 1-2 days of the week.
PHYSICAL TREATMENT:
Physiotherapy twice a week with Robin Horne at Seacrest Physiotherapy. Maureen does her own hydrotherapy at Kicks Fitness Centre once a week. Maureen also does her prescribed exercises and walks every second day.
REHABILITATION:
Work: CIH are currently no longer involved.
Maureen continues to work full time. She does find by Thursday her neck, shoulders and lower back feel 'very tight' and needing physiotherapy.
Home: Maureen is managing to do increasing amounts and has even started some gardening and sewing. However, she is still heavily reliant on her husband who does most of the household duties.
SUMMARY:
Maureen continues to make steady progress, however it is unlikely that she will be symptom free for a long time, bearing in mind Maureen has had a previous similar problem. She still continues to benefit from twice weekly physiotherapy and I think this should be continued for the next six months at least. I feel if she did not have physiotherapy then it would be unlikely that she would be able to do her full work duties."
(Page 13)
30 By 26 May 1998 Dr Claydon was reporting little change, although on 7 May 1998 she had re-exacerbated her symptoms after helping a child down from a cargo net. This required her to take five days off work. She continued with physiotherapy and hydrotherapy in her own time and was walking "until recently". The position was summarised as follows in that report:
"Maureen's symptoms are fairly stable now and she is managing to work full time at present. Her reliance on medication is low and she has good support at home. Physiotherapy and hydrotherapy continue to provide symptom improvement.
As stated in my last letter, it is likely that Maureen will continue to experience symptoms for a long time yet."
31 In a further report dated 30 September 1998 Dr Claydon essentially repeated these findings. He also reported that:
"Essentially Maureen's symptoms have changed very little over the last six months, however ... she is slowly improving. ... There is likely to be little change in the foreseeable future. ... The work she does may aggravate her symptoms but in the long term will have no adverse effects. I also believe continuing to work is good for Maureen's psychological wellbeing."
32 When he was giving evidence, Dr Claydon agreed that, although the respondent had at times "found it pretty hard going and we have even initiated anti-depressant medications at times", her condition remained fairly static with considerable discomfort. Dr Claydon described the respondent as a diligent patient who had "battled on fairly courageously". There was no doubt her symptoms were exacerbated at work and if she decided to retire he would support her decision.
33 In cross-examination Dr Claydon was asked whether, at the time of trial on 29 and 30 May 2000, he would agree that the position regarding the respondent's range of movement was significantly worse than February 1998. Dr Claydon's response was that it was about the same. He agreed that at times she had a fair range of movement in the cervical spine and a good range of movement in the thoracic spine.
34 In May 2000 Dr Claydon had found minimal neck extension and rotation and a global reduction of movement. He thought that the respondent's symptoms were static. Asked about variations in presentation, Dr Claydon said:
(Page 14)
- "I think with due respect to some of these reports, they are often associated with the last time that you have seen them and the patient so you are not always getting a true reflection of what is happening all the time in between. So – I would just – from my notes I feel fairly comfortable in saying that throughout the time [the respondent] has been very consistent. Her symptoms do fluctuate, but if I was to assess if they are getting better, is it getting worse, no. I would say it has literally stayed about the same."
35 Dr Claydon was shown portions of a videotape taken of the respondent and agreed that it possibly showed a greater range of neck movement than had been demonstrated to him by the respondent in the 12 months prior to trial. He was not surprised nor did he think it indicated that the respondent had misled him. As he put it:
"I knew [the respondent] can do all these range of movements because she's at work ... She's not someone who has had a great deal of time off work, so she has been fairly stoical ... and ... her range of movement does vary during the times when I've seen her ... it's within normal boundaries",
- although it had not been when he had seen her. He was unable to predict any time within which the symptoms would resolve.
Mr Ker
36 Mr John Ker, a consultant physician in rehabilitation medicine, reported in September 1999 noting the symptoms to which I have already referred and concluded that they had their origin in the motor vehicle accident. In pars (d) and (e) of his report dated 8 September 1999, Mr Ker said:
"(d) At the present time I would have thought that your client's range of treatments was satisfactory and I would continue to support the use of active treatment methods to maintain mobility and strength in the spinal musculature and such passive treatments as simple heat and the use of a transcutaneous nerve stimulator. ...
(e) I would be hopeful that your client's symptoms related to the motor vehicle accident would settle further over time. She has, however, had symptoms continuing over a period of some two years and whilst she has attempted to
(Page 15)
- maximise her function during that time this has clearly proved difficult for her and hard to sustain as evidenced by her deterioration [sic] work capacity in the last twelve months. I would be hopeful, however, that with the current continuing treatment strategies, her symptoms of spinal pain and headache would remain contained."
37 Mr Ker concluded that:
"There is no doubt that this lady, as a consequence of the presence of spinal pain, stiffness and intermittent headache, is no longer able to perform her work duties with the same degree of professionalism as she did prior to October 1997. This has clearly distressed her considerably and I believe that this significantly contributes to her current lack of capacity to effectively compete with other asymptomatic persons for work as a pre-primary teaching aide."
38 In May 2000 Mr Ker reported in similar terms in relation to both symptoms and treatment and concluded:
"It would appear that in general terms there has been little variation in the effects of [the respondent's] symptoms over time. I would have thought that in general terms her function has been maintained.
In that sense I would have thought that it is likely that your client's condition will remain largely unchanged into the foreseeable future, that is to say without clear evidence of improvement or deterioration."
- Mr Ker also said:
"At the present time it is my understanding that [the respondent] is undertaking work as a primary school teacher's aide on a part time basis, undertaking of the order of six hours of attendance at her work place each day.
I believe she has modified some of her work duties to avoid situations in which she is obliged to lift or restrain children.
It would appear to me that she is working at the present time to her maximal capacity."
(Page 16)
39 Mr Ker also noted that, because the respondent was unable to maintain normal hours of working, or complete all of the work tasks that she felt necessary for the orderly management of the class in which she was involved, it was an indication that the respondent lacked competitive ability with peers who would work full time and complete such tasks. At that time the respondent was aged 57. Mr Ker was hopeful that the respondent would be able to maintain her current level of work functioning for a further three years to 60 years of age. He said:
"I would have significant reservations as to her capacity to continue to work beyond that point."
40 The learned Judge noted that Mr Ker was shown a portion of the videotape film at the trial. He agreed that it showed a full range of movement to the right at variance with what he saw on examination. As he put it, "She certainly does appear to demonstrate satisfactory rotation to right and left". He agreed that the symptoms and therefore an acceptable range of movement might vary and that sometimes the situation demands a level of pain to be endured.
Mr Horne and Dr Watson
41 The evidence of a physiotherapist, Mr R M Horne, and Dr P Watson, a specialist neurosurgeon, was consistent with the medical reports to which I have referred. In particular, Dr Watson saw the respondent on 13 November 1998 and 3 February 2000. In the second of these two reports he concluded that:
"I do not see the need for [the respondent] to have any further investigations at this point in time although if a specific arm or leg pain became worse than [sic then] an MRI scan of that corresponding area of the spine could be used to see if there was any evidence of nerve root impingement. I do not believe [the respondent] will need to consider any surgical treatment in the future.
In summary, I feel [the respondent] has ongoing soft tissue and ligamentous injuries affecting the cervical, thoracic and lumbar spines. She has referred pain into the right upper and lower limbs but no signs of nerve root impingement. She has been slow to progress despite a conservative program however I feel that this is her correct management and I still remain optimistic that her symptoms will gradually settle over a period of 1-2
(Page 17)
- years from here. I believe [the respondent] is fit to continue on work as a Pre-Primary Teacher's Assistant."
Mr Slinger
42 Mr B S Slinger, orthopaedic surgeon, reviewed the respondent on behalf of the appellant in December 1997, October 1998 and November 1999. Having seen the video, he agreed that the range of movements in the cervical spine was greater than that which was exhibited at the time of the most recent consultation with him in November 1999. However, he did comment that, at the time of his examination, the respondent had stated that was the time of day in which her symptoms and, presumably, her stiffness was most pronounced. Consequently, he said:
"I have no reason to change my opinion in respect to the recommendations and prognosis which I detailed in that report of November 1999."
43 As he put it in his evidence Mr Slinger said:
"I don't really doubt she has had an injury but I do doubt the severity of that injury on the basis of ... the fact that she's continuing her employment in a particularly physically demanding job in terms of movements of the spine and the fact that the video does suggest that there may be a conscious attempt to mislead during my examination."
44 In this context the learned Judge said in pars [63] – [64]:
"Having viewed the videotape both at trial and subsequently, I confirm Mr Slinger's summary of its contents. The range of movements shown in the sequences filmed at the vehicle is considerably greater and freer than that demonstrated by the [respondent] at trial.
Essentially Mr Cullity argues that the [respondent] suffered real injuries in the collision causing her to be off work for some weeks and which persist, although she has returned to work and wishes to continue to work notwithstanding those persistent symptoms. The medical evidence and that of the [respondent], her husband and Ms James, suggests little in the way of ongoing symptoms from prior accidents. The symptoms vary over time but are not improving. The [respondent] may be forced to cease work. The importance of the videotape should not be
(Page 18)
- exaggerated. It is a fleeting, single instance when the [respondent] had to turn her head to drive safely."
45 It was against this background that the learned trial Judge made the findings to which I have referred.
Mr Banham and Ms James
46 The respondent's evidence was supported, not only by her husband but also by that of Ms James, who had been working with the respondent, who was her teacher's assistant, for about five years, including a period prior to the accident. Her evidence was that prior to the accident the respondent was able to do anything she asked of her and usually did more than required. Since the accident she found several duties difficult. Ms James had taken on more than her fair share of the load because there were certain things that the respondent could not do any more or, if she tried to do it, it was "not acceptable for her to be doing it". Her speed of work was less and sometimes she could not stay at a task for a long period of time. She had to change tasks and go back and finish what she started, but had to move around a lot more rather than finishing a task at one time. In the classroom she had to sit on an adult-sized chair rather than a children's chair or on the floor. So far as taking work home was concerned, prior to the accident this was usually completed and brought back on time, but this did not now always occur. Also, since the accident, the respondent did not physically participate in exercise programmes and dancing lessons although some days were "a really bad day" when she could not do certain things and would have to go home. She observed that she was restricted in certain movement activities, such as chasing the children and joining in activities such as dancing.
Ground 1: Award outside the range
47 Ground 1 of the grounds of appeal contended that the award by the learned Judge of $25,000 by way of general damages, approximately 11.1 per cent of the most extreme case, was outside the range of a sound discretionary judgment having regard to:
"(a) his Honour's finding that the [respondent] had exaggerated her disabilities;
(b) his Honour's finding that 'this is not a case in which a permanent or long term injury is involved';
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- (c) the minor nature of the impact at the time of the collision."
48 Notwithstanding the exaggeration, there was no doubt that it was open to the learned trial Judge to find the respondent suffered significant injuries. Her suffering continued over a substantial period prior to trial and there was a finding that she would be likely to continue to suffer them for a significant period after trial. The learned trial Judge accepted the evidence of the respondent's immediate superior, Ms James, regarding the very real problems which the respondent suffered with her work, such as pain, tiredness and frustration. In my opinion, once the findings of the learned trial Judge are shown to have been open to his Honour on the evidence, I am unable to conclude that an award of $25,000 damages is outside the scope of a reasonable exercise of the range of damages open on the evidence.
49 In my opinion, an award of such damages was within the range of a sound discretionary judgment. At the material time the cap on the maximum amount to be awarded for non-pecuniary loss under s 3A, s 3B and s 3C of the Motor Vehicle (Third Party Insurance) Act 1943 (WA) was $225,000. In my opinion, prior to the 1994 amendments to the Act, an award of damages for non-pecuniary loss of $25,000 for soft tissue injuries in three areas of the spine which significantly interfered with employment, the performance of domestic duties and social amenity would not have been regarded as in any way excessive or otherwise out of step with ideas of fairness and moderation.
50 In my view, the learned Judge reached his conclusion, notwithstanding that it was found to be "likely" that the respondent had exaggerated her symptoms. This conclusion was clearly open on the medical evidence.
51 While the learned trial Judge concluded that the injuries were not permanent or long term, it was recognised that they had adversely affected the respondent and would continue to do so in the short and medium term, although there was likely to be an improvement over 18 months to two years. At the same time, his Honour assessed the chances of her retirement prior to the age of 60, by reason of her disability, at 40 per cent. Furthermore, the learned trial Judge made no finding that the impact at the time of the collision was minor. The respondent was the person who directly felt the effect of the impact. Her evidence was that the boot of her car had been pushed in and there was a crease over the wheels of her vehicle and her vehicle had been pushed forward into traffic.
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52 The award also has to be seen in the context that there had been significant periods of time when, as a result of her injuries, the respondent had not been fit for work between the date of the accident and the trial. Initially she was unable to work from the date of the accident on 11 October 1997 to the commencement of the school year in 1998. During that time she used 11 weeks of sick leave credits which was all that was available to her. In May 1998 she exacerbated her symptoms by helping a child down from a cargo net and had a week off work. She also had a week off in May 1999 as a result of pain in the chest and arm. She took long service leave from July to September 1999 which, although not causally related to the accident, gave the respondent a chance to rest. The respondent also had one week off in early February 2000 because her husband had been ill and she had difficulty in both looking after him and working. Mr Ker, the rehabilitation specialist, hoped that the respondent would be able to continue to work until the age of 60, but recognised that there may well be circumstances in which she could not continue as a result of her symptoms. The respondent herself gave evidence that she was struggling at work and did not think she would be able to continue until the age of 60.
53 There was independent evidence given by Ms James in relation to the difficulties that the respondent had at work and that she would not be surprised if the respondent had to give up work. The learned trial Judge accepted that evidence and regarded Ms James as a reliable witness. In my view, the learned trial Judge was entitled to assess the chances that the respondent may not be able to continue working in her occupation until aged 60, even though he was not prepared to find as a fact that she would not so continue.
54 In my opinion, the learned trial Judge was fully justified in making the award for future medical treatment on the basis, not only of the respondent's own evidence but on the basis of the evidence of Dr Claydon, Dr Ker and Mr Horne.
55 The proper approach to the interpretation of the relevant statutory provisions is that determined with respect to s 72, s 79 and s 80 of the Motor Accidents Act 1988 (NSW) on the basis that it was intended that Western Australian courts should interpret phrases used in the provisions of s 3A to s 3D by reference to existing New South Wales case law. In Wylde v 'Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997 at 3 – 4 and 6 – 8, reference was made to Southgate v Waterford (1990) 21 NSWLR 427 at 437 and 440 – 441.
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56 So far as this case is concerned, the amount of the cap at the material time was $225,000. This was the amount to be awarded in "a most extreme case". As their Honours in the Court of Appeal of New South Wales said at 440:
"Only for such a case may the maximum amount provided by s 79(3) be awarded. The use of the indefinite article 'a' has already been noted. Opinions of what constitutes 'a most extreme case' will doubtless vary. But clearly quadriplegia would fall into that class. The amount to be awarded must then be apportioned somewhere between nil and $180,000; but in a ratio which the judge fixes keeping in mind that the cap of a statutory maximum is retained for a 'most extreme case'."
- Their Honours went on to say at 441:
"It is likely that, over time, experience will develop in assigning cases on the scale, just as earlier it did in the apportionment required for contributory negligence. But each case will necessarily depend on its own facts. At least in the first instance, the determination of the 'proportion' is committed by law to the trial judge. He or she has the outside parameters which are fixed by the legislation. The task of determining the 'proportion' which follows may not be scientific or normative; but it is not wholly at large. A wide measure of discretion has always existed in fixing damages for non-economic loss. All that this legislation does is to require that the damages under this head be fixed in harmony with the fact that Parliament has determined that a maximum will be laid down, varied from time to time and reserved for 'a most extreme case'."
"Given the statutory restrictions I would allow a figure being not much more than 10 per cent of a most extreme case, say $25,000. Those provisions [ie s 3A to s 3E of the Act] reduce that to $14,000."
58 In my opinion, the appellant failed to demonstrate that this allowance was not one fairly open on the evidence or otherwise beyond the range of
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- a sound discretionary judgment within the parameters fixed by the legislation.
Future economic loss
59 In support of the contention in ground 2 that the award of $15,000 for future economic loss was excessive, reliance was again placed on the fact that the respondent had exaggerated her symptoms and the finding by the learned Judge that she was unlikely to suffer any permanent or long term disability. His Honour accepted the medical evidence that there would be a "likely improvement" in her condition over 18 months or two years. Consequently, it was not a case in which a permanent or long term injury or disability was involved.
60 It was submitted that, based upon his Honour's findings, the respondent should have recovered by the end of 2001 or early 2002. I am unable to accept that submission. The finding of "likely improvement" was not a finding or prognosis of full recovery. Likewise, I am unable to accept the contention that there was no reason to suppose that there was any prospect that the respondent would need to retire early as a result of the effects of her injuries. As has already been seen, the learned Judge was not satisfied on the balance of probabilities that the respondent would cease employment before her retirement age of 60, but was satisfied that there was a greater chance that she would by reason of her injuries. On that basis, the respondent was awarded $15,000 in respect of the chance of early retirement which his Honour assessed at 40 per cent. This conclusion was reached after a careful assessment of the medical evidence and taking account of the exaggeration by the respondent of her symptoms.
61 In addition to the evidence of significant periods when the respondent was off work as a result of the accident, Mr Ker's evidence was that he hoped the respondent could continue to work until the age of 60, but recognised that there may well be circumstances in which she would be unable to continue. The respondent's own evidence was that she felt that she was struggling at work and did not think that she would be able to work until 60. Ms James gave evidence of the difficulties the respondent had encountered and said that she would not be surprised if the respondent had to give up work.
62 In my opinion, it has not been shown that the learned Judge was in error in his assessment of the chance that the respondent may have to stop
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- work before the age of 60, or in the quantification of the award of damages in that respect. For these reasons, ground 2 fails.
Future medical expenses
63 The respondent claimed an amount of damages for future medical expenses in respect of consultations with her general medical practitioner, hydrotherapy, physiotherapy and the cost of medication for a period of two years from the date of trial. The claim was for $5,670.65 which the learned Judge allowed in full.
64 It was contended in support of ground 3 that there was no evidence to support the continued intake of the drugs claimed, or the continued provision of physiotherapy treatment at the level claimed or at all. Ground 4 contended that the learned Judge should have made no award for future medical expenses. In support of this contention it was submitted that the respondent needed little, if any, treatment in the future.
65 The learned Judge dealt with this aspect of the case by setting out the claim and making his finding on it as follows:
" Per Week
Panadeine Forte
2 boxes per month (20 tablets per box at
$10.35 per box = $20.70 per month $5.17
Voltaren
1 box of 50 tablets per six weeks $15.90
per box $2.65
Consultations with General Practitioner
One visit per month at $35 per visit $8.75
Hydrotherapy
One visit per week at $3 per visit $3.00
Physiotherapy
One visit per week at $38 per visit $38.00
$57.57
$57.57 x 98.5 (multiplier on the 6% tables for 2 years ) =
$5,670.65.
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- The plaintiff in evidence confirmed this current level of use.
It is agreed that the reasonable cost of 20 Panadeine Forte tablets is $10.35 and 50 Voltaren 50 mg tablets is $15.90.
I allow the claim under this head, $5,670.65"
66 It was submitted that by awarding the amount in full, the learned Judge failed to take into account the respondent's exaggeration of her symptoms or "the fact that within 18 months and at most 2 years she will have recovered".
67 In my opinion, it was not demonstrated that the learned Judge failed to take into account the respondent's exaggeration of her symptoms. His Honour had the evidence of the respondent regarding her past and present symptoms, as well as her treatment and evidence of her prospects of recovery. In my view, the conclusion which his Honour reached was open to him on the evidence of the respondent, in the context of the medical evidence which predicated the possibility of recovery within 18 months to two years. In these circumstances it was clearly open to the learned Judge to conclude that it would be proper to allow future medical expenses, including medication, for a period of up to two years.
68 The respondent gave evidence that she was taking Panadeine Forte and Voltaren. She took on average two Panadeine Forte a day, one in the morning and one at night. This is 10 a week or approximately 40 per month. The claim was for two boxes of 20 tablets per month. In the light of the other evidence, the allowance of the expenditure on this basis for two years was, in my opinion, fully justified.
69 The respondent also gave evidence that she would take one or two Voltaren tablets per day or up to three "when things are bad". The Voltaren were taken every day. In my opinion, there was no serious challenge to that evidence in cross-examination and the learned Judge was entitled to accept it as something that was continuing and would continue for as long as two years.
70 The respondent also gave evidence that she had been seeing her general practitioner once a month and had hydrotherapy and physiotherapy once a week. The schedule of medical expenses was tendered by consent on the basis that counsel for the appellant would check the figures. In these circumstances, it was implicit that counsel was reserving the right to object to them. There is nothing in the materials
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- before this Court which suggested that any issue was subsequently raised about them.
71 The respondent was cross-examined about the medication, consultations with her general practitioner, hydrotherapy and physiotherapy. While it was put to her that she had told the Court and the doctors that her pains were worse than they really were, it was not suggested to her that the medication, visits to the general practitioner, physiotherapy and hydrotherapy were unnecessary. So far as physiotherapy was concerned, it was established that, while in England on long service leave in July 1999 for some six weeks, the respondent had not sought physiotherapy treatment. Her explanation was that she did not know how she could do that in England, although she conceded that physiotherapy services were available. The respondent said that, while in England, she rested when she needed to and took painkillers when she needed them.
72 Dr Claydon gave evidence that he referred the respondent to physiotherapy in November 1997 and that as at the date of trial on 29 May 2000 when he gave evidence, he still saw physiotherapy once a week as a viable and reasonable treatment which was of benefit.
73 Mr Ker gave evidence that the weekly physiotherapy treatments were of benefit in assisting the respondent's range of movement and helped her symptoms. He regarded the treatment as entirely appropriate because it helped her to stay at work and maintain work performance.
74 Mr Horne's evidence supported the use of both hydrotherapy and physiotherapy on a continuing basis. In particular, he noted a deterioration in the respondent's condition toward the end of the school week and as the school term progressed. This evidence was not challenged in cross-examination.
75 In my view, the evidence was such that it was entirely open to the learned Judge to reach the conclusion that he did.
76 For these reasons, grounds 3 and 4 both fail.
77 STEYTLER J: I have read, in draft, the reasons to be delivered by the Chief Justice. They express my own reasons for joining in the decision of the court.
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78 WHEELER J: I have had the advantage of reading in draft the reasons for judgment of the Hon the Chief Justice, with which I agree. I have nothing to add.
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