HEPPER v Pillinger - [2000] WADC 49

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: HEPPER -v- PILLINGER [2000] WADC 49

CORAM: VIOL DCJ

HEARD: 17, 18 AND 19 NOVEMBER 1999

DELIVERED : 25 FEBRUARY 2000

FILE NO/S: CIV 4401 of 1998

BETWEEN: JENNIFER HEPPER
Plaintiff
AND
JOHN WILLIAM PILLINGER
Defendant

Catchwords:

Motor vehicle - Disability and damages for personal injury - Intersection accident - Apportionment of negligence - Injury to cervical spine - General damages $21,350 - Other awards - Reduced by 50 per cent for contributory negligence - Turns on own facts.

Legislation:

Motor Vehicle (Third Party Insurance) Amendment Act 1994

Result:

Plaintiff awarded $46,290

Representation:

Counsel:

Plaintiff: Mr M Zilko
Defendant: Mr B C Sierakowski

Solicitors:

Plaintiff: James McManus & Associates
Defendant: Brian Sierakowski

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

Grubor v Adornetto, unreported; DCt of WA; Library No 5030; 19 August 1996

Case(s) also cited:

Dalton v Price (1991) 13 MVR 435
Reynolds v Orrell (1980), unreported; FCt SCt of WA; Library No 3028; 22 September 1980
Scaffidi v Kuchu (1985) 3 MVR 252
Wylde v Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997.

VIOL DCJ: The plaintiff, who was born on 26 January 1956, was, until the accident herein ("the accident"), employed at Curtin University.
On 3 July 1998 the plaintiff was driving a Holden Calibra sedan in a south-westerly direction on Warton Road Canning Vale and turned right into Nicholson Road. At the same time the defendant was driving a utility and towing a trailer in a north-easterly direction on Warton Road. As the defendant's vehicle drove through the intersection there was a collision between it and the plaintiff's vehicle.
The plaintiff has alleged that the accident was due to the negligence of the defendant. The particulars of negligence (as amended) are as follows:
"The defendant was negligent in that he:
(a)drove at an excessive speed in the circumstances
(b)drove a vehicle towing an overweight trailer in contravention of the provisions of the Traffic Act
(c)drove in such a manner as to contravene a red light, requiring the defendant to stop at the intersection of Warton and Nicholson Roads aforesaid
(d)failed to apply his brake or take such other evasive action so as to avoid colliding into the plaintiff's vehicle, which had right of way in the circumstances
(e)failed to keep a proper lookout."
In relation to the accident itself, the defendant admits that the plaintiff was driving in a south-westerly direction but denies that at any time the plaintiff was stationary before the collision. The defendant says that at the time of the collision the plaintiff's vehicle was in motion and in the process of effecting a right-hand turn into Nicholson Road. The defendant denies that he drove a trailer weighing six tonnes or that he drove his vehicle in contravention of a red traffic light. The defendant says therefore that any damage suffered by the plaintiff was not caused by any negligence on his part but was caused or contributed to by the negligence of the plaintiff. The particulars of the plaintiff's negligence are as follows:
"The plaintiff was negligent in that she:
a)failed to give way to the defendant's vehicle in contravention of Regulation 603(1) of the Road Traffic Code 1975;
b)failed to slow down or stop for such time as was necessary to allow the Defendant's vehicle to proceed safely in contravention of Regulation 601 of the Road Traffic Code 1975;
c)proceeded to turn right across the path of an oncoming vehicle when it was unsafe to do so;
d)failed to maintain and (sic) adequate or any lookout for oncoming traffic; and
e)failed to have regard for her own safety by proceeding through the intersection in the manner that she did."
There is therefore an issue as to liability in this matter particularly in relation to the circumstances in which the accident occurred and the cause of the accident.
As a result of the accident the plaintiff alleges that she suffered the following injuries (the relevant pleading having been amended during trial):
(a)     a severe hyperextension soft tissue injury to the cervical spine;
(b)     bruising and contusions to the chest, stomach and right foot;
(c)     soft tissue damage to the left tempero-mandibular joint with consequential pain and headaches.
The plaintiff alleged that she suffered continuing symptoms in the form of headaches and severe pain and restriction of movement of the cervical spine and after being referred to a neurosurgeon and undergoing CT scans was found to suffer from the following permanent disabilities:
"a)Severe debilitating headaches, necessitating rest and medication
b)Severe pain and restriction of movement in the cervical spine extending into the interscapular region of the left side
c)A significant posterior disc herniation of the C5/6 intervertebral disc
d)Posterior bulging of the C4/5 and C6/7 intervertebral discs
e)Periodic paraesthesia in the left upper limb and fingers of the left-hand
f)Inability to sit for extended periods of time without pain and discomfort in the cervical spine
g)Inability to adopt forward postural positions without significant pain and discomfort in the cervical spine
h)Inability to lift heavy weights without significant pain and discomfort in the cervical spine
i)Diminution of power in the left upper limb
j)Insomnia with associated anxiety, requiring the need for medication in the form of painkillers and analgesics."
It is alleged that the plaintiff has suffered past loss of earnings in that she has been unable to return to her pre-accident employment as a word processor clerk at Curtin University and that in the future she will suffer a significant future loss of earning capacity because she has been severely restricted from return to her pre-accident employment in word processing capacities and will be restricted to work of a light nature avoiding extensive sitting, bending, typing and word processing duties generally.
The plaintiff has also said to have suffered significant loss of enjoyment of life as particularised in her statement of claim. The plaintiff has also claimed a variety of continuing medical and associated treatment costs.
As to such sequelae from the collision, the defendant denies that the plaintiff sustained any compensible injury and damage and required the plaintiff to prove all the various particulars connected therewith. There has been a denial that the plaintiff suffered the alleged, or any, loss of earnings or loss of earning capacity.

Liability

The plaintiff said that she arrived at the intersection of Warton and Nicholson Roads intending to turn right into Nicholson Road. When she arrived she moved into the right-hand lane; there were vehicles coming through the intersection at the time. She was the first in the queue to get around the corner. When she arrived the lights were red. When they turned green she just edged herself "a wee bit forward to the centre and stopped" waiting to ensure that it was safe to turn right. She had her indicator on. She was travelling very slowly, no more than four kilometres an hour at the most. She stopped because of the oncoming traffic. The lights turned to amber. She said a car facing her on the other side of the intersection, stopped; she began to turn right when a car appeared "from absolutely nowhere" and hit her. She thought it must have been behind the other vehicle and could not stop. The other vehicle was travelling "really fast". Her car did a 360° turn and was pushed back to where she had started but facing in the opposite direction. Her car was a write off after the accident. Having seen the photographs which were put into evidence, Exhibits E1 and 2, the plaintiff confirmed that the vehicle which she said was stopped on the other side of the intersection was on the left-hand side as it faced her. That is, on the kerb side lane. She said she saw the defendant's car several hundred metres away for the first time and the next time she saw him he "just flew from nowhere".
In cross-examination the plaintiff said that she was shocked after the accident and that her memory of the accident was very hazy. She thought she stopped at the intersection for about a minute and after the lights turned green she went slightly forward to get into position to turn and then stopped again. She was there for several minutes to let oncoming traffic go through when the lights then turned to amber. The car in the kerb side lane opposite her was not turning. She was about a car length in front of the white line when she stopped the second time. She said that the defendant's car was "bolting down" towards her but she still commenced her turn right, apparently because "he appeared from nowhere". She was shown the photograph E2 and noted that she had placed a yellow sticker marker on the photograph and written on it, "This is the view when I was turning right. His ute was miles up the road. He ran the lights". Having seen that comment, the plaintiff said that that was not what she meant at all, that she had worded that completely wrongly. It appears that what she meant to say was that the defendant was miles up the road when she was sitting waiting to turn right. She confirmed her view that the defendant had driven through a red light. She confirmed that she did not really know the speed of the defendant's vehicle before the accident. She was cross-examined as to possible discussions she had with a witness to the accident, Mrs Henderson, and having observed the plaintiff give evidence and considered her evidence, I am satisfied that there was a discussion about the circumstances of the accident with Mrs Henderson. She agreed that she rang Mrs Henderson about a week before the hearing; her evidence was that she simply confirmed with Mrs Henderson that she was appearing in court the next week. It is difficult to accept that the conversation was as simple and straight forward as that. She denied that she drove straight forward through the intersection without stopping and turned into the path of the defendant's vehicle. She also denied that she was looking into the sun at the time she made her right-hand turn. She did not think the sun was out on the particular evening of the accident, however, it is clear that the sun would have been just setting at around 5.00 pm in July when the accident occurred. She persisted with her view that the defendant was behind the car on the kerb side lane and came out from behind that car. Having heard her evidence as to the traffic lights at the time of the accident I found it difficult to understand how it could be that, if the plaintiff was proceeding through an amber light when the accident occurred, the defendant did not also have at least an amber light in front of him at the time of the accident.
The plaintiff's memory of the accident was not good. Her evidence was inconsistent and unconvincing. I did not get the impression, however, that she was attempting to mislead me as to the circumstances of the accident.
Mrs Christine Henderson was a passenger in a vehicle being driven by her husband - they were in Nicholson Road waiting to turn right into Warton Road. The lights facing them were red. She remembered the plaintiff's vehicle coming out from her right. Mrs Henderson was unsure whether the plaintiff's vehicle stopped, but she felt that the vehicle was being "very cautious and turning right into Nicholson Road". She remembered another vehicle on her left-hand side stopped and facing the plaintiff's vehicle. She next saw the defendant's vehicle come into the intersection and collide with the plaintiff's vehicle. She confirmed that her memory was that the plaintiff's vehicle "drove very slowly, hesitated and then continued into its turn". She thought the defendant's vehicle was going very quickly. She did not know what colour the lights were facing her at the time of the impact. In cross-examination Mrs Henderson could not recall if she saw the plaintiff's vehicle stop at the intersection before it proceeded into it. She agreed that the plaintiff's vehicle was not stationary in the intersection for a minute. She could not disagree or agree with the proposition that the plaintiff proceeded forward and at no time stopped at the intersection. Contrary to the plaintiff's evidence, Mrs Henderson said that the car she saw stopped facing the plaintiff's car was next to the median strip. She said that the defendant's vehicle was on the left-hand side of the road as it came into the intersection - she did not see him veer to avoid the plaintiff's vehicle. She remembered that it was still daylight and the weather conditions were dry. Mrs Henderson gave some evidence as to contact with the plaintiff by phone and confirmed my view that there had been some discussion about the accident and their evidence.
Mr Ross Graham Henderson was the driver of the vehicle in which his wife was a passenger. He said the plaintiff's car moved into the intersection and was stationary for a matter of seconds. It then proceeded to make a right-hand turn. He then saw the defendant's vehicle appear in front of the plaintiff's vehicle. That was the first time he saw it. He could not estimate its speed but felt it was going more than 50 km/h. He felt that the defendant's vehicle made a veer to its left just before the collision. After the accident the defendant told him that he had flashed his lights at the plaintiff's vehicle. He recalled that the plaintiff's vehicle was just crawling across the intersection. As with his wife, he was sure that the vehicle opposite the plaintiff was next to the median strip. He agreed that on his evidence the plaintiff was facing down Nicholson Road when the accident occurred. He confirmed that the sun was setting in the west at the time of the accident and agreed there would have been "a bit of a problem with the sun", and agreed that as drivers turned right into Nicholson the sun could have been directly in their eyes. He agreed that at the time of the impact the lights were still red facing him.
Mr Ilario Pantellio was at the same intersection as the Hendersons and the second car in the line. He was stationary there for about 30 seconds. He saw the plaintiff's car come from his right-hand side and without stopping, that vehicle "just kept on going slowly as is (sic) there was nothing there". The plaintiff's vehicle ran into the side of the defendant's vehicle. At the time he was facing a red light. The light was still red at the time of impact. He did not see the defendant's vehicle until the impact. In cross-examination Mr Pantellio thought the weather conditions were good and it was about 4.30pm. He was driving a Land Cruiser and the car in front was a bit smaller and he could see over it. He said there were gaps in the traffic on Warton Road and it was possible for a driver wanting to turn from Warton Road into Nicholson Road to do so safely if the gap arose. The plaintiff's vehicle was moving very slowly. He could not recall any other car stopping on the opposite side of the road to the plaintiff in the intersection. Having been asked about the defendant's speed through the intersection he thought that "he was just doing the normal thing, just going through an intersection".
The defendant said that he was on his way home from work driving at about 5.00 pm north-east in Warton Road. This was a single lane going into a dual carriageway at the intersection of Nicholson and Warton Roads. The sun was shining at the time. Several hundred metres prior to the intersection he was travelling at approximately 70km/h. There were vehicles in front and behind him. He slowed down because a vehicle in front of him moved to the left lane and he continued to proceed straight and to cross and remain on Warton Road. The lights were green. He proceeded on and as he was about at the right lane the lights turned to amber. Because he had a trailer with bricks on he did not feel it was safe to stop at the lights with cars behind him. At the point that he entered the intersection over the white line he notice a vehicle turning right - it was not stationary, it was moving out onto the middle of the intersection. He hoped that the vehicle would stop. It did not stop, however; it kept on coming and hit him in the right-hand side door. He said that he had slowed down a little bit, he thought to about 60 km/h. He continued in a straight direction all the way until the last minute when he realised there was going to be an impact, at which stage he veered a little to the left. He could not really say whether he saw the plaintiff's vehicle when he was some distance from the intersection because he had his eyes on the vehicles in front of him. In cross-examination the defendant said that he recalled after the accident that he was travelling at approximately 70 km/h. He had some bricks in the trailer but it certainly was not a full load. He also had some tools of trade. He was driving a 1600cc utility. He said that he had his eyes indirectly fixed on the plaintiff's vehicle very early but did not anticipate her move to turn across the intersection. He said that he did not flash his lights at the intersection to warn off the plaintiff nor did he blow his horn. In re-examination he was referred to a statement he had made to the police on 4 July 1998, ie, the day after the accident. In that statement the defendant confirmed he noted that he entered the intersection at 60 km/h.
The defendant appeared to have a good memory of the accident. He was rather forceful in his evidence and did not seem keen to accept any fault on his part.
The intersection involved in this matter is wide with good vision for drivers approaching it, especially those travelling north and south. Both the plaintiff and the defendant, in normal circumstances and had they been keeping a proper lookout, would have had a good view ahead of them and across the intersection. The photographs and the evidence generally confirm this.
On the evidence I accept that, as the plaintiff said, there was a car stopped in the lane closest to the kerb and thus on the plaintiff's right hand side as she approached the intersection. I am not able to find, as suggested by the Hendersons, that the car was next to the median strip. It seems to be the case that that car (on the left-hand side) had been in front of the defendant's car as they approached the intersection from the south, and in the single lane road going up to the intersection. The car in front moved to the left to enable it to use the "new" left-hand lane and turn left (into Nicholson Road) and thence to travel south-east. From at least that point the defendant had a clear view ahead of him and should have seen the plaintiff's car before it began to turn right across the intersection. The photographs suggest, however, that the defendant would have had a good view of the intersection at all times during his approach to it.
On the other hand the plaintiff was, in effect, facing straight down the road towards the direction from which the defendant was coming. Had both the plaintiff and the defendant been keeping a proper lookout, the accident, in my view, would not have occurred.
The defendant was travelling at approximately 70 km/h in the one lane as he approached the intersection and, I find, slowed only to a speed between 60 to 70 km/h as he reached and went through the intersection.
Both the plaintiff and defendant faced green lights as they approached the intersection. As the plaintiff attempted to turn right the lights changed to amber. The evidence makes it clear that they changed in the course of the plaintiff's move across the intersection. At that point the defendant continued to enter and drive through the intersection - I accept that the defendant was of the view that as he had a trailer with a certain amount of equipment on it, it was not safe to attempt to stop before the lights changed to red. The defendant was thus committed to crossing the intersection at a speed between 60 to 70 km/h.

The plaintiff, having for some reason either not observed the defendant's car, or having seen it not appreciated the closing distance between it and her car, decided to turn right and continued to do so. She did so without stopping and at a very low speed. I am unable to accept the plaintiff's evidence that the defendant "appeared from behind another car on the left-hand side", ie, the kerb side.
The collision was inevitable. The plaintiff was committed to turning across the path of the defendant's car, and the defendant on the other hand, had committed himself to travel through the intersection at virtually an unchanged speed. The plaintiff's decision, based as it was on a failure to properly observe the road in front (and therefore the defendant's car), meant that the defendant was unable to act to avoid the collision by slowing down or veering sufficiently to the left. He attempted the latter but the plaintiff's car was continuing its right-hand turn and ultimately collided with the right-hand door of the defendant's car. After this the speed of the defendant's car, combined with the forces generated by the impact and the direction of the vehicles, caused the cars to spin and end up in the positions advised in evidence.
I consider the defendant's driving was, in the circumstances, negligent. His decision to continue and approach the intersection at a speed of approximately 60 to 70 km/h was in the circumstances and bearing in mind the traffic at 5.30pm, wrong. He placed himself in a position where, in the event of another driver using the intersection and making a mistake and/or driving negligently, he could not avoid a collision. He was in my view, failing to keep a proper lookout and travelled too fast in the circumstances.
The plaintiff was also negligent. She also failed to keep a proper lookout and commenced to turn and continued to turn when it was unsafe to do so. Her negligence contributed to the accident.
The real question in this case is the apportionment of blame. I have already said that both the plaintiff and the defendant, in light of the evidence, had a clear view up the road in front of each of them and across the intersection. Had they both been keeping a proper lookout they would have been in a position to avoid the collision; on the one hand the plaintiff would not have driven across the path of the defendant's vehicle, and on the other, the defendant would have been able to avoid colliding with the plaintiff's car as it went across the path of his. A significant feature of this case is the fact that the plaintiff's car drove into the side of the defendant's car. The particular point of impact suggests that the defendant was a reasonable distance through the intersection when the plaintiff's car collided with the side of it. This suggests to me that the plaintiff panicked in the circumstances and continued to drive when it was clear that if she did so she would collide with the defendant's car. On the other hand, the speed of the defendant's vehicle resulted in it being in a position where the plaintiff, having made her decision to turn, found the defendant's car in front of her at a time far earlier than she expected. In all the circumstances I consider that both parties were equally at fault. The plaintiff's damages will thus be reduced by 50 per cent.

Assessment of Damages

After the accident the plaintiff was taken by her husband to see her general practitioner, Dr Selba Rajah. She had a very bad pain in her neck and a sore foot and chest. She was required to wear a cervical collar for about a month and was given Panadeine Forte and some anti-inflammatory drugs. She had x-rays of her neck, and physiotherapy. She had a CAT scan and then saw Mr Michael Lee, neurosurgeon, on 22 July 1998. She said her neck was so sore it was hard to touch. Despite this, after obtaining Mr Lee's advice, she and her husband flew to Scotland for a holiday for two months. During that trip her neck was sore, however, the fact that she was able to take the trip in the plane and otherwise, suggests that to some extent she was able to manage her pain. She was continuing to take anti-inflammatories and use Voltaren gel. She began seeing Dr Pallot, who was closer to her house, as a GP and continued to have physiotherapy from Sonia Bevan. She saw Sonia Bevan approximately 60 times. She said that every time she went to work she would have to go to physiotherapy. She went back to work on 29 October 1998 for four hours. By then the pain had eased off a bit but it was still sore. The pain was mostly down her left-hand side from her left ear down to her shoulder. She had very bad headaches as well. As to the headaches, these began immediately after the accident and at the early stages were accompanied by dizziness.
After the four hours' work on 29 October 1998 she said that her neck was "very, very sore" - much worse than when she began work. She had an ergonomic table and was able to walk about doing some photocopying and dealing with minutes of meetings. The pain became worse as she continued her work over the first few days. Her neck began swelling up at the back about the central region at the back of her neck. In fact, she said that her neck was swollen when she was in court on 17 November 1999. She began to have tingling down her neck and shoulders. Once she stopped work her neck stopped swelling up. Her neck swells up when she does activities involving looking down, which appears to aggravate her neck. She stopped work on 18 March 1999 and has not worked since then. She had prepared a diary of the days and hours she had worked (Exhibit B). Because of her previous back injury and operation she is unable to do any work involving lifting or bending. Contrary to her description of her occupation in the Statement of Claim as a "word processing clerk", her work appears to have been of a general clerical nature. The plaintiff was of the view that because of the fact that she had no particular training of any kind and of the difficulties she had found in the work she did at Curtin University after her return to work, she did not see any other job that she could do.
She does her own housework but it takes her much longer than before. She does exercises to attempt to alleviate the difficulties with her neck but they cause her neck to swell. She said that her neck is swollen every day and "by four o'clock its huge". She said that she tries everything she used to do but has difficulties - her husband helps her with a number of these things. She was of the view that the physiotherapy helped her because it eased the pain and the physiotherapy helps with her headaches.
She saw Dr Rosenthal on 17 June 1999 at the request of the insurer for the defendant and he referred her to Dr Garry Ecker, a prosthodontist. She was referred by him to a physiotherapist, Nola Pericles, who specialises in neck posture. Dr Ecker recommended that she wear an occlusal splint but she has not been able to afford this. It was explained to her by Dr Rosenthal that the splint would help relieve her headaches because it would relieve pressure on her temperomandibular joint. She said she was doing everything she possibly could to get back to work because she wanted to work and that she had always worked before the accident.
In cross-examination the plaintiff said she would have continued to work for another 22 years. There was a necessity for her to work because of mortgage commitments and otherwise. In the future, had she had back problems, on medical advice she would have stopped work. She agreed that it is very difficult to see the swelling on the back of her neck, although she had previously said a physiotherapist could see it. She says it can be felt. She said that even though her job description was a word processing clerk and that was the occupation in her statement of claim, she was doing general clerical work - photocopying, some computer work, some typing and generally helping other people, answering the phone and reception work. Since she had her neck problem she had done hardly any typing. Almost everything she did after she went back to work aggravated it. She used to like sewing but hasn't done much since the accident. If she feels well enough she will go back to work. She felt that the physiotherapy had helped a lot with the mobility of her neck and with her headaches. The clicking in her jaw had become worse in recent times. Basically, after a while after each session of physiotherapy, the symptoms returned. She is anxious to be re-educated under the rehabilitation scheme with Curtin University, but there is a difficulty because the university is reticent about taking her back to work. She had said that she was under the IVF programme and agreed in re-examination that if ultimately a child was born she would take maternity leave - she and her husband planned to have only one child if possible.
The plaintiff was basically an honest witness, in my view. She was genuinely committed to returning to work and to resume her pre-accident activities. She did, however, have a tendency to exaggerate her symptoms - I felt, having seen and heard her, that the plaintiff had become to a degree, over-concerned about her physical state.
Ms Joanna Ellen Keenan is an employee relations consultant employed by Curtin University. She described the plaintiff's work as a clerical officer as "generic duties" similar to those described by the plaintiff. The University's view was that the plaintiff's position could not be held open on an indefinite basis. Just before the accident, apparently connected with the plaintiff's previous back injury, there was a meeting between the plaintiff, her union and the previous manager and a work performance programme was to be set up to lead to a "better pattern of work for" the plaintiff. Unfortunately, the plaintiff has not really been at work since then. Ms Keenan described the plaintiff's level of work as "average, not above average". She had been given various items of assistance, such as an ergonomic chair and ergonomic furniture, before the accident because of her back problem, and it was proposed before the motor vehicle accident that the plaintiff would go through the programme with the assistance of the Occupational Therapy Department. Mrs Keenen was unable to comment on the plaintiff's work since the accident because she had very rarely been at work. The plaintiff was formerly working 20 hours a week, ie, five days a week, four hours a day, 10.00 am until 2.00 pm. Since the accident to the date of trial, the plaintiff was absent from work for 215 days. Mrs Keenan agreed that if the plaintiff was in a position to return to work, industrially the University might be obliged to find a position for her. Certainly, the University would look at what options were available but they would not look at the current position. It was the position that if the plaintiff was not back at work by the start of year 2000 the position was unlikely to be available.
The plaintiff saw Mr Michael Lee (neurosurgeon) on 3 July 1998 when she made various complaints to him as evidenced in his report of 22 July 1998. He noted that the plaintiff had almost a complete range of neck movement, although the plaintiff was quite sore at extreme movement on flexion/extension. There was some muscle spasm. Her CAT scan had shown a disc protrusion at C5/6 but Mr Lee felt it was unlikely to have any effect on her spinal nerve roots. He recommended conservative treatment. An MRI of the plaintiff's brain was obtained to exclude a possible problem. The plaintiff was noted to be still experiencing neck and shoulder pain and some paraesthesia in the left thumb and index finger. It is the case that the plaintiff was referred to Mr Lee primarily to check the abnormality seen on the CAT scan of her brain.
After seeing the plaintiff on 16 December 1998 Mr Lee suggested continuing the conservative treatment and felt that it was a matter of time before the plaintiff would recover from her symptoms.
Mr Lee reported again on 4 August 1999 and felt that it was reasonable to conclude that the outlook for the plaintiff's return to her previous work was not looking too promising. Because there was no effective way of measuring the forces to which the plaintiff's neck was subjected to at the time of the accident it was difficult to predict a rate of recovery. He felt it was too early to conclude that the plaintiff would never get back to her previous work. As to the physiotherapy, Mr Lee felt that that was useful and it helped the plaintiff to cope with her difficulties. As to the 60 visits the plaintiff had in the 18 months, Mr Lee felt that it was an expression of the severity of the plaintiff's symptoms but one would have had to question whether in the long run it was making any difference.
In cross-examination Mr Lee felt that the plaintiff's underlying injury was more a factor in this case than any attitudinal aspect. Mr Lee was of the view that another six or 12 months may lead to there being a clearer picture of the plaintiff's future. As to the plaintiff's back injury and operation, Mr Lee was of the view that it was difficult to suggest that the plaintiff would not have a normal working life although there were risks of some re-injury. He hoped that at the plaintiff's age there would be further improvement such that in time the plaintiff would be able to return to work.
Dr Gary Alan Ecker is a practising prosthodontist who saw the plaintiff on 30 July 1999. He felt that the plaintiff had suffered some injury to her temperomandibular joint as a result of the accident and required some occlusal splint therapy and possible physiotherapy from Miss Nola Pericles. The splint programme will cost a total of $2,142. He felt that the fact that there was no complaint of jaw difficulties up to the time of the plaintiff seeing Dr Rosenthal on 17 June 1999 might make it less likely that the jaw problem was a direct result of the accident. He agreed that there was a variety of difficulties that could lead to a TMJ problem. One of the reasons which made him suggest that the plaintiff's TMJ problem and the accident were related was the fact that it was unilaterally on the left side of the plaintiff's face.
Dr Ecker continued in his view in cross-examination that the plaintiff's TMJ problems were related to the accident. He noted that there have been examples of general practitioners not picking up the connection between cervical strain and the TMJ problems.
Dr John Graham Rosenthal is a medical practitioner specialising in rehabilitation medicine. He said that there was a high incidence of TMJ dysfunction after neck injury and he ascertained such a condition on examination of the plaintiff on 17 June 1999 even though the plaintiff had not made any specific jaw complaint. Dr Rosenthal was of the view that the plaintiff had suffered a cervical strain injury of at least moderate severity superimposed on pre-existing degenerative change. He felt there was evidence of the plaintiff having injured her left TMJ. In June 1999 Mr Rosenthal felt the plaintiff could return to work at 20 hours per week, subject to satisfactory ergonomic standards. He felt the plaintiff's prognosis was for continued improvement although she would be left with some neck symptoms. The plaintiff had an ongoing requirement for simple analgesics and should have physiotherapy for any acute exacerbation. In his report of 15 September 1999, Exhibit 6B, Dr Rosenthal felt that the plaintiff's left jaw symptoms were a direct consequence of the collision and that it was important that she had appropriate treatment so that it may assist with the plaintiff's headache pattern and regional adverse muscle tension. He examined the plaintiff on 16 September 1999 and noted only mild restriction of neck movement. He felt that the plaintiff was still able to work 20 hours per week in a clerical capacity and that the stopping by the plaintiff after an initial set back did not justify "extended absenteeism". He did not consider the plaintiff's prognosis to be particularly bad and there was room for considerable improvement with a "pro-active approach to physical rehabilitation". He felt the plaintiff could well be left with some long term symptoms but certainly not of sufficient severity to be associated with prolonged incapacity.
In cross-examination Dr Rosenthal commented on the fact that the plaintiff had carried out some clerical duties, had been able to go to Scotland on an aeroplane, could drive a car, do some housework and therefore, in his view, he felt that she could work for 20 hours a week in a clerical capacity.
The reports of Dr Selba Rajah and Dr Pallot admitted by consent appeared to confirm the complaints by the plaintiff made from time to time to her medical practitioners. In his report of 10 October 1999 Dr Pallot was of the view that the plaintiff would require a graduated return to work to prevent an exacerbation of her symptoms with the hours increasing from weeks one to seven from one to five hours per day. Dr Pallot appears to be of the view that the plaintiff is able to return to work on a limited basis at Curtin University.
It is quite clear that the plaintiff was involved in an accident which involved considerable forces. Dr Rosenthal's view that the plaintiff had suffered a cervical strain injury of at least moderate intensity, superimposed on pre-existing degenerative changes, appears to be the most apt description of the injury to the plaintiff's neck. I am satisfied therefore that the plaintiff suffered the injury alleged, namely, a severe hyperextension soft tissue injury to the cervical spine. It is also clear from the evidence that the plaintiff suffered the injuries referred to as "bruising and contusions to the chest, stomach and right foot".
As to the injury alleged to the plaintiff's left TMJ with consequential pain and headaches, notwithstanding the apparent failure of the plaintiff to report such an injury to medical practitioners, Dr Rosenthal and Dr Ecker both were very firm in their view that the plaintiff had suffered an injury to her TMJ and that this was causing her pain and headaches. The causative link between the accident and this injury was well explained by both those medical practitioners and I am satisfied that the plaintiff suffered such injury.
The medical and general evidence provides a sufficient basis to conclude that the plaintiff suffered the symptoms alleged in paras (a) and (b), (e) - (i), of the Statement of Claim. As to the disability referred to in (j), ie, "insomnia with associated anxiety, requiring the need for medication in the form of pain killers and analgesics", the injuries were such that such a symptom could well be concluded to have resulted from the injuries. The accident was a considerable shock to the plaintiff's normal lifestyle and routine. It is also the case that there was a disc herniation of the C5/6 intervertebral disc and some bulging in the C4/5 and C6/7 levels. These apparently were not severe and were commented on, as already mentioned, by Mr Lee.
The plaintiff has suffered a diminution of her ability to enjoy life - although the evidence as to these matters was limited, the findings I have made suggest that the plaintiff's everyday activities would have been affected, if not curtailed, for some time. The injury to the plaintiff's TMJ with the associated headaches would have caused her considerable pain and discomfort. The medical evidence suggests that these symptoms will continue for several years but should diminish in that time and largely resolve themselves. In my view, the plaintiff will be relatively symptom free within a period of three years.
These various matters lead me to the view that the award of damages for loss of enjoyment of life and amenities should be based on a figure of 15 per cent of the "most extreme case" (see Motor Vehicle (Third Party Insurance) Amendment Act 1994 and Grubor v Adornetto, unreported; DCt of WA; Library No 5030; 19 August 1996 at 18-20). Fifteen per cent of $219,000 is $31,350. From this must be deducted the figure of $10,000 under s3C(5) of the Act.

The plaintiff is thus awarded $21,350 for non-pecuniary loss.
As to the plaintiff's claim for past and future economic loss, I am, on the basis of the evidence, able to accept that the plaintiff has been unable to carry out her essentially clerical duties at Curtin University or in any employment from the date of the accident to the date of the trial. Despite the evidence of Dr Rosenthal to the effect that as from the middle of 1999 the plaintiff would have been able to work some 20 hours per week, I am of the view that the continuing symptoms of the plaintiff would have prevented her to work even given the sympathetic employer which of course, Curtin University was. The period involved is a period of 69 weeks (allowing for a work trial of three weeks) and the amount claimed, namely $18,026.94, is awarded to the plaintiff in relation to past earnings lost.
Interest will be allowed on this figure at the rate of four per cent - a figure of $951.82.
As to the period from the date of trial to the date of judgment and beyond, one must commence with the evidence of Dr Rosenthal whose opinion has already been recorded. Although Dr Rosenthal's view was considered and genuine, it must, I consider, be looked at in the light of the other evidence, particularly that of Mr Lee. Counsel for the plaintiff relied on the evidence of Mr Lee to suggest that the plaintiff would most probably not work again, however, an examination of his evidence in my view suggests that Mr Lee was hopeful that the plaintiff would ultimately return to work and that he was not in a position to categorically suggest that the plaintiff was unemployable for the indefinite future. In my view, a proper reading of Mr Lee's evidence and reports suggests that the plaintiff will improve by way of her symptoms and thus her ability to cope with work in her general clerical capacity.
When looked at in the light of the evidence generally and the other medical evidence, I consider that the plaintiff will be able to return to work in several years, although a "graduated" return seems to be required. The plaintiff is well motivated and genuinely concerned to get back to some form of employment. Although the plaintiff has been working in a largely clerical capacity, her experience has been general and involves, at least to a limited degree, word processing skills. There should in my view, be a number of positions suitable for the plaintiff in the work force within the next few years.
Counsel for the defendant suggested an allowance possibly being made on the basis of the plaintiff being able to work within two years based on a yearly income of $13,586. I consider that a lump sum award based on an inability to work for three years from the date of the trial is more appropriate. Such a period takes into account the need for the plaintiff to find possibly part-time work in the initial stages and proceed then to full-time work. I am satisfied that at the end of that period of three years the plaintiff will be in a position to resume her normal working life. The sum thus awarded is $40,758.
The past superannuation is awarded in the sum of $1,056 and in relation to the future, the sum of $2,388. The total awarded in relation to superannuation is thus $3,444.
I turn finally to the claims of the plaintiff for special damages and the proposed cost of occlusal splint therapy, ie, $2,142. I consider that the plaintiff has established the basis of her claim for special damages. The various medical practitioners generally supported the necessity and value (albeit limited) of the physiotherapy which the plaintiff has had over the past few years. This treatment has been of some benefit to the plaintiff, at least in a psychological sense. The amount of special damages claimed in the sum of $5,906.70 is thus awarded in full.
As to the occlusal splint claim the evidence of Drs Rosenthal and Ecker establish clearly in my view that the occlusal therapy is necessary and essential to assist in the plaintiff's recovery from the TMJ problem. The amount of $2,142 will thus be awarded in full.
Although the Statement of Claim referred to "continuing medical and associated treatment from time to time" other than the claim for the occlusal splint therapy there was no evidence, and no submissions made,
in relation to future medical or other treatment and therefore no award will be made in relation to that head of claim.
The above awards are as follows:
General damages  $21,350
Loss of Past Earnings  18,027
Interest on past earnings lost  952
Future loss of earnings  40,758
Superannuation  3,444
Special damages  5,907
Splint therapy  2,142
Total  $92,580
This award must be reduced by 50 per cent, making a sum of $46,290 to which the plaintiff is entitled by way of damages.