Harris v Adams - [2005] WADC 58

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: HARRIS -v- ADAMS & ANOR [2005] WADC 58

CORAM: MACKNAY DCJ

HEARD: 23, 24 AUGUST 2004, 9 FEBRUARY 2005

DELIVERED : 1 APRIL 2005

FILE NO/S: CIV 1491 of 2002

BETWEEN: MERYL LESLIE HARRIS
Plaintiff
AND
DAVID BERNARD ADAMS
LENITA BEVERLEY ADAMS
Defendants

Catchwords:

Torts - Negligence - General matters - Passenger on coach - Duty of care - Whether failure to provide adequate warning of step down into toilet - Turns on own facts

Damages - Personal injury - Award of general damages for injuries to neck, shoulder, arm and back

Legislation:

Motor Vehicle Standards Act 1989 Cwth

Occupiers Liability Act 1985 WA

Result:

Plaintiff entitled to judgment against defendants for $46,176.10

Representation:

Counsel:

Plaintiff: Mr K S Pratt
Defendants: Mr I K Bellamy

Solicitors:

Plaintiff: Trewin Norman & Co
Defendants: Solomon Bros

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

Chappel v Hart (1998) 195 CLR 232
Westralian Caterers Pty Ltd v Eastment Ltd (1992) 8 WAR 139
Woods v Multi‑Sport Holdings Pty Ltd (2002) 208 CLR 460

Case(s) also cited:

Brodie v Singleton Shire Council (2001) 206 CLR 512
Dovuro Pty Ltd v Wilkins (2003) 201 ALR 139
Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49
Henwood v Municipal Tramways Trust (SA) (1938) 60 CLR 438
Inverell Municipal Council v Pennington (1993) A Tort Rep 81-234
Lake Macquarie City Council v Holt [2004] NSWCA 305
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Peters (WA) Ltd v Petersville Ltd (2001) 205 CLR 126
Public Trustee v Sutherland Shire Council (1992) A Tort Rep 81-149
Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431
Rosenberg v Percival (2001) 205 CLR 434
Sutherland Shire Council v Heyman (1985) 157 CLR 424
Tucker v McCann [1948] VLR 222
Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204
Wyong Shire Council v Shirt (1980) 146 CLR 40

MACKNAY DCJ:

Introduction

The plaintiff is a 61 year old single woman, born on 6 April 1944.
The defendants operate a coach line with services which include a service between Perth and Margaret River via Busselton.
In February 2001 the plaintiff was a passenger on a coach operated by the defendants when she was injured whilst entering an onboard toilet.
The plaintiff says her injuries were caused by the negligence of the defendants.
As a consequence the plaintiff claims damages against the defendants.
The defendants deny that they were negligent, say in the alternative that the plaintiff was guilty of contributory negligence, and deny the plaintiff is entitled to any award of damages.
The evidence at the trial was completed in August 2004, and following a request by counsel to that end, a direction was made for written submissions and the trial adjourned sine die.
A submission was not received from the plaintiff until February 2005, after the trial had been relisted.

Accident

On 1 February 2001 the plaintiff was travelling on the defendants' coach between Perth and Busselton, where she was to board another coach, before travelling on to Margaret River.
The coach was equipped with a toilet, located part of the way down a flight of steps to an emergency exit situated midway down the bus on the right side, the third step down being configured as a small landing with the toilet being entered through a door to the rear.
The steps were quite steep, and the edges of the coach floor and of each step were fitted with yellow strips, whilst there was an illuminated light fitting on each riser.
There was a further step down into the toilet, behind the door, of 150 mm in magnitude.
The edge of the third step or landing adjacent to the toilet also had a yellow strip, although that was not readily apparent until the toilet door was opened.
There was no other indication of the existence of a step down into the toilet for a passenger who came to the door.
It is common ground that the toilet cubicle was lit, that at the start of the journey the coach driver advised passengers of the existence and location of the same, and that the plaintiff had made the same journey with the defendants on three prior occasions, although she said she was unable to recall whether she had used the toilet on the coach on any of those occasions.
The plaintiff's evidence in any event was to the effect that on the day in question she did not have in mind any awareness of the step down into the toilet.
The toilet door was fitted with a gas operated return mechanism and opened out onto the landing, with hinges on the right.
A handrail was fitted to the right side of the bulkhead by the steps down to the emergency exit, with a grab handle on the left next to the toilet door.
The coach had departed from Perth as scheduled, at 8.45 am.
When the vehicle reached a point just south of Lake Clifton the plaintiff decided to go to the toilet, she said.
In consequence the plaintiff said she went to the emergency exit and descended the steps there to the toilet landing.
The plaintiff said she did observe the lights on the step risers, although the overall lighting on the landing was poor.
The plaintiff had a history of back problems, and with the coach in motion had proceeded cautiously down the steps, holding the handrails, she said.
She opened the toilet door and had to hold it open, the plaintiff said, the door being "on a strong spring", and stepped into the toilet, at the same time concentrating on not losing her balance.
The plaintiff initially said she was sure she would have looked down to see where she was stepping, later elevating that to an assertion that she did, but did not notice the yellow strip, and did not look for any step into the toilet, nor notice one was there.
She then fell forward into the toilet, the plaintiff said, as a result of the drop, and as she did tried to protect her back by turning, with her arm still extended to the toilet door.
The door then closed on her right arm, she said, injuring it and jarring her right shoulder.
The plaintiff said she sat down in the toilet for a little while to compose herself, her right arm being very painful.
After arrival at the defendants' Busselton premises the plaintiff initially said she spoke to the driver and told him there should be a sign over the door as she had hurt her arm really badly, showing off the injury, but later said that she went into the office and there spoke in those terms to a young female behind the desk, the driver standing next to that person at the time.
The defendants' employee identified as the driver was Mr Henry Adam.
He said that although he did not recall the particular day, included in what he described as a "formal address" on getting underway was advice of an onboard toilet and a warning to be "careful as the steps can be hazardous when the vehicle is in motion".
On arrival at the defendants' Busselton premises Mr Adam said there would have been an obligation to report in to the office and then immediately move the coach, so that he would have been in the office only briefly.
He had no knowledge of any conversation with the plaintiff there, Mr Adam said.
The firstnamed defendant, Mr David Adams, said that he and the secondnamed defendant, Mrs Lenita Adams, his wife, together operated "South‑west Coach Lines" and "Bunbury City Transit", and had a fleet of about 65 coaches and buses.
The coach involved in the accident was a Mercedes Benz fitted with coachwork by Austral Denning which had been purchased new in 1997, he said, but the defendants operated another 12 or so Mercedes coaches with identical interiors, the first of which had been introduced in 1989/1990.
About 300,000 passengers were carried by the defendants' buses each year, but no complaint of the kind made by the plaintiff had ever been conveyed to him, Mr Adams said.
Mr Adams said the coach had an Australian compliance plate, revealing compliance with the relevant Australian design rule.
The yellow strips on the edges of the steps down to the emergency exit and toilet had always been there, Mr Adams said, as had the step to the toilet, which was clearly marked and was obvious.
There was a window in the toilet, he said, that having a "double dark tint" in conformity with other bus windows, and the toilet light, which was switched on when the bus was in motion had a larger reflector and was brighter than the riser lights.
Mr Adams said that the toilet door was of composite material and very light, whilst the gas return mechanism produced little pressure until the door was almost closed, so that it could be opened with a little finger.
A complaints book was maintained in each of the defendants' offices, including that at Busselton, Mr Adams said, and there had at the time been in place a procedure known to all employees that any complaint be referred to one of the defendants, and if deemed serious be entered in the book.
No complaint was recorded in the Busselton book for the relevant day, he said, whilst enquiries made of the two female employees then on the office counter had failed to produce any positive response.
The defendants put forward Australian Design Rule 58/00 "Requirements for Omnibuses designed for hire and reward" (the design rule), which apparently related to the coach here.
The design rule provided standards for, inter alia, riser height and tread depth of access steps to a bus, as well as for interior lighting, the applicable rule relevantly reading:
"58.18.2 Step treads and risers shall be directly illuminated … ."
The plaintiff called an engineer, Mr Apgar, who called in aid various provisions of the Building Code of Australia as well as Australian Standard 1657‑1992 "Fixed Platforms, Walkways, Stairways and Ladders – Design, Construction and Installation".
Based on those references he criticised the steepness of the emergency exit steps, particularly on the basis of riser heights, and said that the overall angle of 45 degrees was identified by the Australian Standard as being "on the edge of the unsafe zone" for any type of access.
The third step landing on the coach was also criticised by Mr Apgar as being "small and awkwardly shaped", as was the absence of a riser light on the step inside the toilet, whilst he described the toilet light there as a "relatively dim, small light like a car interior light".
Mr Apgar was unaware of the design rule until it was drawn to his attention in cross‑examination, he said, and on examination of the same conceded the riser heights on the coach emergency exit steps were within the design rule, although he then expressed the opinion that Australian design rules were generally very incomplete and it was necessary to use engineering principles and other reference material in relation to a design the subject of the same.

Liability

The Occupiers Liability Act 1985 WA (the Act) s 2 defines "premises" as including any vehicle, whilst s 4 provides that the relevant provisions of the Act "shall have effect, in place of the rules of the common law, for the purpose of determining the care which an occupier of premises is required by reason of the occupation or control of the premises, to show towards a person entering on the premises in respect of dangers … to that person … which are due to the state of the premises or to anything done or omitted to be done on the premises and for which the occupier of the premises is by law responsible".
That care is, according to s 5, "such … as in all the circumstances of the case is reasonable …, " a set of criteria to which consideration should be given also being set out.
As stated, the plaintiff brings her claim in negligence, and alleges a general duty "to take such care as in all the circumstances was reasonable to ensure the Plaintiff was not injured on the coach".
The defendants formally deny that the amended statement of claim pleads "any actionable duty of care; or … any actionable breach of a pleaded duty of care".
However, counsel for the defendants stated that was not directed at the cause of action, but rather at the breadth of the duty alleged.
The plaintiff submitted in opening through counsel, that the Act did not "oust" negligence and there were concurrent duties on an occupier under both the Act and the common law, which were "for all intents and purposes the same".
In that regard reference was made to Woods v Multi‑Sport Holdings Pty Ltd (2002) 208 CLR 460.
However, in Woods, as Gleeson CJ (with whom Hayne J agreed) pointed out (464‑465), the trial judge found the occupier's responsibilities went beyond the state of the premises, such that there was a wider duty, and there was no challenge to that.
In Westralian Caterers Pty Ltd v Eastment Ltd (1992) 8 WAR 139 Malcolm CJ (with whom Franklyn and Murray JJ agreed) said (146):
"The purpose of the Occupiers Liability Act was to achieve by statute what was achieved by the development of the common law by the decisions of the High Court. The statutory provisions did not create a new cause of action for breach of the statutory duty. What they did was to replace the former common law rules regulating the standard of care owed by occupiers to persons entering the premises in given situations, by a single standard of care in terms of the general duty of care referred to in Donoghue v Stevenson.
In other words, the statute did no more than reform the content of the duty of care at common law in the case of occupiers for the purpose of the common law action for negligence. Thus, s 5(4) sets out a number of considerations relevant to 'determining whether an occupier of premises has discharged his duty of care'. That duty of care is the duty, the content of which has been defined by the statute, but only for the purposes of simplifying the law governing the cause of action in negligence against occupiers. There is nothing in the statute which would have the effect that the cause of action in negligence at common law against occupiers has been converted into a cause of action for breach of statutory duty."
The plaintiff's claim is one in negligence, but I would not agree with the other propositions put by counsel.
The defendants assert that given the existence of a design rule applicable to vehicles of the kind in question, and the issue for the coach of a compliance plate, the suitability of the bus for its intended purpose of carrying passengers is not in issue.
The source of such an argument, I note unpleaded, is necessarily the Motor Vehicle Standards Act 1989 Cwth (the MVS Act), the long title of which reads:
"An Act to provide for national motor vehicle standards, and for related purposes."
The MVS Act contains relevant provisions as follows:
"3 Objects of Act
The main objects of this Act are:
(a)to achieve uniform vehicle standards to apply to new vehicles when they begin to be used in transport in Australia; … .
…
5.(1)In this Act unless the contrary intention appears:
…
'standard vehicle' means a new vehicle that complies with the national standards, or which is taken to comply with the national standards by virtue of an approval given under subsection 10A(2) … .
…
'vehicle standard' means a standard for road vehicles … that is designed to:
(a)make road vehicles safe to use; … .
…
7.(1)The Minister may determine, in writing, vehicle standards for road vehicles or vehicle components.
…
10A (1) If new vehicles of a particular type … comply with the national standards, the Minister must give written approval for identification plates to be placed on vehicles … of that type.
…
14.(1)… a person must not supply to the market a new vehicle that … is nonstandard.
15(1)… a corporation that manufactured a new vehicle that:
(a)is nonstandard … must not use the vehicle in transport in Australia.
…
37.No action or other proceeding lies against the Commonwealth in respect of any loss incurred, or any damage suffered, because of reliance on:
(a)an identification plate … ; or
(b)any test carried out under this Act or the regulations or a determination under this Act; or
(c)any express statement, or any statement or action implying, that a road vehicle or a vehicle component complied with a national standard."
It can be seen that there is nothing in the statute which is indicative of any grant of protection to a vehicle operator from an action in negligence flowing from the issue of a compliance plate for a particular vehicle.
Nor would the law ordinarily grant such protection, in the absence of a clear provision to that effect.
There is, as appears, as a provision protective of the Commonwealth of that kind, in s 37.
Although the MVS Act, and the design rule, together with the issue of a compliance plate for the coach are plainly relevant matters in relation to the question whether the defendants were in breach of any duty of care owed to the plaintiff, they are not determinative of it.
Mr Apgar's criticisms of the emergency exit steps, initially made in ignorance of the standards set out in the design rule, and his attempt to maintain such after his oversight was drawn to his attention, did not impress me, and I would not rely on the views expressed in his evidence.
The steps were in conformity with the design rule, as he conceded, and having regard to the purpose and detail of the rule, and in the absence of evidence to the contrary, I would find that such were generally safe.
The question then becomes one whether the existence of a step down behind the toilet door was a danger such that the defendants' obligation to take reasonable care towards the plaintiff required the presence of a warning sign on the door.
An affirmative answer to that would of course involve an acknowledgment that the yellow strip on the edge was an insufficient response.
I consider there ought to have been a warning on the door, and that the failure to have the same was a breach of the defendants' duty to the plaintiff to take reasonable care.
Whether or not the drop or step down to the toilet was an access step within the meaning of the design rule it had one feature not to be found on the emergency exit steps and unlikely to be encountered elsewhere in the coach.
That was an opaque door mounted on its edge, so that the presence of the drop or step was not revealed until the door was opened.
A door with a drop immediately behind it is something which I think would ordinarily be the subject of a warning sign in commercial premises or on a vessel.
Such a need is heightened in a passenger coach, where persons seeking to access the toilet are likely to do so when the vehicle is travelling at some speed, and to be concerned about their balance and safety as a result, and to have less opportunity to observe what lies beneath and ahead.
In contrast, the access steps to the emergency exit would be utilised only when the vehicle was stationary.
The design rule 58.5.7 which provides that "(n)o access door shall be provided with an internal fitting designed to cover internal steps when such door is closed", is of some interest.
The danger was not an obvious one, as claimed on behalf of the defendants.
The absence of prior report of injury, although not without relevance, cannot dispose of the issue, and in any event it does not follow from such that no other passenger had failed to observe the drop down and stepped heavily or stumbled on entering the toilet.
The risk of the latter occurring was foreseeable, there was a likelihood of injury in the event that it did occur, the degree of likelihood of those things was not insignificant, and the means of remedy relatively simple and inexpensive.
The circumstances of entry are relevant under the Act, and here include the fact that the plaintiff was a lawful entrant who had paid a fee to the defendants for travel on the coach.

Had there been a warning sign on the door it is probable the plaintiff would have seen it, in my view, and the mishap would not have occurred, and I accept her evidence in that regard.
In any event, the accident being of a kind likely to occur on breach, an evidentiary onus shifted to the defendants to show that performance of the duty would not have averted the injury, and the defendants have failed in that respect: see Chappel v Hart (1998) 195 CLR 232.
The plaintiff was not in my view guilty of contributory negligence, given what I have said as to the circumstances.
I should add that the advice given to passengers by Mr Adam, the driver, to be careful as the steps could be hazardous when the bus was in motion gave no clue as to the danger here.

Injury

The plaintiff said she developed a low back problem in 1995 when she slipped whilst ten pin bowling, so that she saw her general practitioner and was sent to the orthopaedic surgeon, Mr P Hardcastle.
Ongoing symptoms included constant although varying pain, an inability to straighten her back properly, play sport or dance and tightness when driving, the plaintiff said.
Ongoing physiotherapy was also required, the plaintiff said, and to the date of the accident her back had continued to cause problems.
The plaintiff said that immediately after the accident of 1 February 2001 on the coach she experienced back symptoms, although due to her arm injury such were not as noticeable as they might have otherwise have been.
By the time she reached Margaret River she was in significant pain from her lower back and right arm, which she had struck from the hand to about the elbow on the inner side, the plaintiff said.
She then treated the arm injury herself with ice packs, the plaintiff said, as she "didn't want to fuss", but swelling increased during the day.
After returning to Perth on Saturday 3 February, and experiencing difficulty working the following day, by which time pain was coming up to her shoulder, the plaintiff saw her general practitioner, Dr La Valette, on 8 February, when her arm was still bruised and back sore, although the latter only marginally more so than prior to the accident, she said.
Over the following months symptoms other than the bruising persisted, the plaintiff said, and the shoulder and arm soreness turned to pain, whilst driving and manual work were difficult.
The plaintiff said she still experiences pain from hand to elbow in the right arm, and although the shoulder had settled for a time it was very bad at present, whilst her low back remained worse than prior to the accident and required more physiotherapy.
Help with some household tasks was normally required, the plaintiff said, and she took anti‑inflammatory medication for shoulder and back.
At work she had reduced her hours to 24 hours per week spread over four days, and had to avoid some tasks or seek help, the plaintiff said.
She had hoped to work to age 65 years, the plaintiff said, but given her age and limitations thought it would be difficult if she lost her present job to find work elsewhere.
The plaintiff said she previously enjoyed gardening, but was unable to do that now.
Shoulder surgery had been discussed with her orthopaedic surgeon, Mr Jeff Ecker, the plaintiff said, and she had been told it might not work while she would require six weeks away from her employment, during which time she would not be paid.
However, she would still like to go ahead with the surgery, the plaintiff said.
Mr McCausland is the proprietor of Comfort Products, and said he employed the plaintiff, who within a year of the accident showed "obvious signs of injury", although as she was a valuable employee her employment was not at risk.

Medical evidence

Dr La Valette is a general practitioner of some 30 years experience in this State, and has seen the plaintiff as a patient for more than 20 of those years.
He described the plaintiff as being "quite stoic" and a quite reticent patient.
When first seen in relation to the present matter on 8 February 2001 the plaintiff had complained of a bruised and tender right forearm along the ulnar surface, he said, whilst on her return on 27 February she complained also of lower back pain and said she had "wrenched" that when she fell.
Then, on 12 March the plaintiff had additionally complained of pain which radiated from the right lower arm to the upper arm as far as the shoulder, Dr La Valette said.
Initial treatment included x-ray, rest, and advice to take analgesics, he reported at that time, and it was then likely further treatment would be required including physiotherapy and analgesics.
In January 2002 Dr La Valette reported the plaintiff continued to complain of a very stiff and tender right shoulder with limited movement, with pain and stiffness in the right arm and wrist, and stiffness and tenderness in the lower back.
In March 2002 the doctor referred the plaintiff to Mr Jeff Ecker, in relation to her shoulder, and later reported that he had suggested in October 2002 that she return, due to the then severity of her symptoms.
In October 2003 Dr La Valette reported the plaintiff continued to attend him on a regular basis, and maintained right shoulder and arm symptoms, whilst she was also depressed and remained on Aropax for that.
The doctor said that the depression pre‑dated the accident but had been exacerbated by the plaintiff's injuries.
In his last report, of March 2004, Dr La Valette advised the plaintiff's attendances remained regular, with ongoing symptoms in the right shoulder and arm, and upper and lower back, an ongoing ability to work part‑time, and an uncertain prognosis.
Dr La Valette considered the plaintiff's right shoulder symptoms did relate to the accident, he said, and also observed that symptoms in a particular part of the body could be less noticeable for a time when there was greater pain elsewhere.
He thought it unlikely the plaintiff had carpal tunnel syndrome.
The plaintiff continued to benefit from physiotherapy, Dr La Valette said.
Mr Ecker saw the plaintiff on a number of occasions in 2002 and 2003 and in a report of June 2003 said the plaintiff had right shoulder pain, and expressed a diagnosis of:
"1.Symptomatic degenerative arthritis of the right acromio‑clavicular joint.
2.Referred pain from the cervical spine."
That was imposed, Mr Ecker stated, on an injury sustained by the plaintiff in the bus toilet.
In evidence Mr Ecker described changes to the AC joint as "advanced" and said the joint itself was "a mobile degenerative joint with secondary arthritis".
Mr Ecker also reported that the plaintiff had been told there was a high probability arthroscopic surgery to remove the end of the clavicle, with or without an associated acromio‑plasty would alleviate her symptoms.
In the absence of other pathology the probability of the plaintiff being left pain free by that procedure was 70 per cent, Mr Ecker said, with only a 10 per cent chance the problems would go on as before.
A delay of 3‑4 weeks after an accident in the development of symptoms would produce difficulty for him to make the necessary causal link, the doctor said.
The degenerative change in the plaintiff's shoulder meant there had been an increased probability the plaintiff would have developed problems there, he said, although some people with such change did remain asymptomatic.
The plaintiff did not have carpal tunnel syndrome, Mr Ecker said, when seen by him.
The estimated surgical fee for the recommended procedure was $1,795, and patients were ordinarily discharged the same or the following day, with a need for a few physiotherapy treatments, he said.
Mr Michael Alexeff has been an orthopaedic surgeon for 12 years, and said he saw the plaintiff on three occasions between December 2002 and August 2004 at the request of the defendants' solicitors, for medico‑legal review.
After the initial review the doctor reported a belief that the plaintiff had "right shoulder AC joint arthropathy and some dysfunction in respect of the cervical spine", whilst there was "some suggestion of bilateral carpal tunnel symptoms".
After a further review in April 2004 Mr Alexeff reported that the plaintiff said her right shoulder symptoms had improved, but her low back symptoms were worse, whilst there were signs consistent with right carpal tunnel syndrome, her left hand symptoms having resolved.
Following a final review in August 2004 the doctor stated the plaintiff was largely unchanged, albeit with more symptoms than previously, whilst there was increased thenar wasting "consistent with the previously made diagnosis of bilateral carpal tunnel syndrome", and "given that she complained of classic … symptoms with waking during the night" he was surprised nerve conduction studies had not been done, as he would expect those to confirm the condition.
In evidence Mr Alexeff said, however, the classic symptoms for the condition were pain and clumsiness, with the symptoms often being worse at night and a sufferer being woken with pins and needles, and the plaintiff had those symptoms, apart from the night feature.
The diagnosis was a differential one, he said, but the only alternative was one of severe arthritis in the right wrist.
The plaintiff's shoulder pathology was mild to moderate, Mr Alexeff said, and the literature cited a 90 per cent success rate for the shoulder operation contemplated.
Mr Alexeff said the plaintiff did have severe lumbar pathology.

Conclusion as to injury

I accept the plaintiff's evidence that in the course of the accident she jarred her right shoulder, that being a not unnatural consequence of the mechanism of such, and that the pain extended up to her shoulder within a few days.
That the plaintiff did not immediately complain of shoulder pain to Dr La Valette is explicable, I think, by the existence of other symptoms and that doctor's comment as to the significance of such.
Dr La Valette, who saw the plaintiff from the outset, was of the view that the right shoulder injury was due to the accident and I accept that evidence and hence agree with him.
Mr Ecker is an experienced orthopaedic surgeon in the particular area, and he saw the plaintiff on a number of occasions for the purpose of treatment and I accept his evidence as to the nature and extent of the plaintiff's right shoulder and associated cervical injury.
I also accept his evidence that the plaintiff does not have carpal tunnel syndrome.
In that regard none of the symptoms of carpal tunnel syndrome were observed by Mr Ecker.
Further, in relation to the symptoms or signs described by Mr Alexeff, Mr Ecker said that paraesthesia of the middle finger on tapping was quite common whilst the wasting described was not straightforward in its relevance, and I accept that evidence.
In regard to Mr Alexeff's evidence, there would seem confusion between his reports of April 2004 and August 2004 as to whether there had been bilateral carpal tunnel syndrome on the first occasion, and also an inconsistency between the latter report and his evidence as to whether the plaintiff woke at night with symptoms.
The doctor conceded that the diagnosis was only a differential one, and having seen and heard his evidence, and in the light of the above, the lack of other medical support, Dr La Valette's evidence, and the lack of support in the plaintiff's evidence, I would not rely on his opinion.
The plaintiff suffered an injury to her forearm.
The plaintiff had a pre‑existing back injury, and that was exacerbated by the accident.
The plaintiff's caution to date in going ahead with the shoulder surgery is in the circumstances reasonable, given her age and circumstances, and in any event there is no plea of any failure to mitigate her loss.
I accept Dr La Valette's evidence as to the plaintiff's accident related general medical condition, needs, and prognosis, and his and that of the plaintiff as to the effect of the accident on her.
No finding on the balance of probabilities is to be made as to whether the plaintiff will undergo shoulder surgery in the future, but I would find there is a fair degree of probability she will, and good prospects of relief of her shoulder symptoms in that event, although to achieve that she will have to experience the surgery and go through convalescence.

Damages

The plaintiff, through counsel in closing submissions stated that there was no claim for past loss of earnings or loss of future earning capacity, beyond a submission that any award for general damages ought encompass such.
The heads of damage under which an allowance is sought, and my findings, are then as follows:
·General damages
My findings as to the plaintiff's injuries, and the effect such have had on her, and the prognosis, appear above. The accident has had a significant effect on the plaintiff, a single woman now aged over 60 years, in terms of pain and suffering and loss of amenities.
The accident occurred over four years ago.
There has been a loss of economic capacity, which ought be reflected in the award under this head.
I allow $40,000.
·Medical and other out of pocket expenses
The plaintiff in evidence said that the attendances on various medical practitioners set out in her schedule were accident related, as with those on physiotherapists and a chiropractor, whilst various amounts paid for medication and gap payments for a similar relationship.
There was no evidence to the contrary.
I allow the sums claimed, to a total of $3,176.10.
·Future medical expenses
No precise calculation is possible here and I allow $3,000.
The plaintiff is entitled to judgment in the sum of $46,176.10.