Hinchliffe v Armstrong - [2004] WADC 134

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: HINCHLIFFE -v- ARMSTRONG [2004] WADC 134

CORAM: EATON DCJ

HEARD: 9-13, 16-17 FEBRUARY 2004

DELIVERED : 30 JUNE 2004

FILE NO/S: CIV 792 of 2000

BETWEEN: SHIELA DOREEN HINCHLIFFE
Plaintiff
AND
VICTORIA ARMSTRONG
Defendant

Catchwords:

Damages - Negligence - Motor vehicle accident - Personal injuries - Assessment - Causation - Application for relief under s 29A - Turns on own facts

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943

Result:

No award of damages

Representation:

Counsel:

Plaintiff: Mr I L K Marshall
Defendant: Mr B E Lawrence

Solicitors:

Plaintiff: S C Nigam & Co
Defendant: Lawrence & Howell

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

Hall v Motor Vehicle Insurance Trust [1984] WAR 111

Case(s) also cited:

Bennington Castings Ltd v Wardlaw [1956] AC 613
Blum v Motor Vehicle Insurance Trust [1966] WAR 121
Grajewski v Street, unreported; DCt of WA; Library No 4924; 24 May 1996
Hall v Motor Vehicle Insurance Trust [1984] WAR 111
Lazar v State Government Insurance Commission, unreported; DCt of WA; Library No D970385; 28 November 1997
March v E & MH Stramare Pty Ltd (1991) Aust Torts Reports 81-095
Morrissey v Nigoscik, unreported; FCt SCt of WA; Library No 970631; 21 November 1997
Stevens v Motor Vehicle Insurance Trust [1978] WAR 232

EATON DCJ: By a Writ of Summons issued on 28 March 2000 the plaintiff sued the defendant for damages arising out of a motor vehicle accident which occurred on 22 December 1995 said, in her statement of claim, to be caused solely by the negligence of the defendant. The defendant, by her amended defence, denied the allegation of negligence and said that if the plaintiff did indeed suffer injury, a proposition which was denied, such injury and the symptoms relating thereto were not the result of the motor vehicle accident which occurred on 22 December 1995 but resulted from an event which occurred on 22 April 1996 or a disease or condition which pre‑existed or occurred independently of any event which occurred on 22 December 1995.
Further, the defendant alleged that the plaintiff was not entitled to the damages claimed or at all as the defendant had been prejudiced by the plaintiff failing to give notification of her intention to make a claim as soon as was practicable after the occurrence giving rise to the claim against her as required by s 29 of the Motor Vehicle (Third Party Insurance) Act, 1943 as amended.
Section 29(1) of that Act provides that a person may not commence or maintain an action for damages arising out of the use of a motor vehicle unless the person proposing to claim the damages has given to the Insurance Commission of Western Australia, as soon as is practicable after the occurrence giving rise to the claim, notice in writing prescribed by the regulations of his or her intention to make the claim.
Section 29A of the Act provides that notwithstanding s 29(1) where the Court in which an action is brought to recover damages against an insured person resulting from a motor vehicle accident considers that the failure to give notice was occasioned by mistake, inadvertence or other reasonable cause or that the Commission is not materially prejudiced in its defence or otherwise by the failure or defect, the Court may where the action is commenced, at any stage of the proceedings, if it thinks fit, relieve the plaintiff of the effect of that failure or defect. At the outset, counsel for the defendant acknowledged that the plaintiff could be relieved of the effect of the failure or defect at any stage and that, for the purposes of the trial, the plaintiff could proceed on the basis that I should hear both the claim for damages and the plaintiff's application to be relieved of the effect of her failure to give notice as required by s 29(1) of the Act together.

The facts

The plaintiff, having been born on 31 August 1946 was aged 57 at the time of trial. Perusal of her amended chronology indicates that she was twice married, that she has two adult children, one from her first marriage and one from her second. She has had a varied work history commencing at the age of about 15 years as a shop assistant at a delicatessen in Northam and concluding with a job as a cleaner at Karratha Primary School in 1999. She has not applied for or had any paid employment since leaving that job apart from a couple of days working at Woolworths' stores in the Pilbara during stocktake. She has worked, from time to time, as a shop assistant, house maid, delivery driver, driving instructor, barmaid, cleaner and tea lady.
On about 28 August 1995 the plaintiff obtained work with a company called "Catering Concepts Australia" as a driver of vehicles commonly called "jiffy vans". Such vans are deployed throughout the metropolitan area and are, in effect, travelling lunch bars catering to workers on building sites and the like. There are, it seems, two types of jiffy van, a smaller vehicle with a van body and a slightly larger vehicle with a truck body. Both are constructed so that the driver is the vendor of both hot and cold foods with a stainless steel section capable of carrying ice or some form of refrigeration for the latter. Both types of vehicle have a hinged door on the driver's side to the rear of the driver's door which opens upwards giving access to the driver and her customers to the various foodstuffs being offered for sale. The door to that compartment is held open by two self‑activating struts on either side. Once the transactions at a particular site are complete the door can then be closed, sealing the cool or refrigerated goods from the outside.
The depot from which about 60 or 70 jiffy vans operated was and still is on the corner of Forge Street and Division Street in Welshpool. On 22 December 1995 the company was to have its annual Christmas party for its staff and drivers at those premises.
The plaintiff called Dianne Kathleen Kirby who was, in 1995, employed as a delivery driver with Catering Concepts Australia. She said that each driver was responsible for a particular van, had a particular route and regular customers. On 22 December 1995 she started work at about 5.45 am. Because it was the day of the Christmas party most of the vans returned to the yard early. Each driver had to clean his or her van before going to the party. That involves removal of the food stuffs then hosing out and wiping out the stainless steel compartment. To undertake that task the driver opens and lifts up the serving compartment door which, because of the strut mechanisms mentioned, remains open.
The Christmas party was due to commence at 1.30 or 2.00 o'clock in the afternoon. Each driver was keen to complete their round, get the vehicle back to the depot and complete the cleaning out process beforehand.
The plaintiff said that she arrived back at the depot at about 1.00 pm. It would have been crowded with other vehicles. There was considerable activity with other drivers cleaning out vehicles prior to the Christmas break. The plaintiff parked her vehicle and began unloading, placing food stuffs and drinks from the stainless steel compartment into a trolley to be stored elsewhere on the premises. The stainless steel compartment was then to be cleaned out and dried. She was in the throes of that task, leaning into the compartment when the compartment door, in the open position, was struck by another van driven by Victoria Armstrong, the defendant. The plaintiff's vehicle was the smaller of the two types of jiffy van. That being driven into the yard by Victoria Armstrong was the larger variety. The defendant drove her vehicle in through the gate to park at the place where she would normally park. It appears her van, struck the plaintiff's open serving compartment door breaking one hinge off completely and bending the other so that the door, upon impact, crashed down upon the plaintiff as she bent into the serving compartment, pushing her further inside. The door struck her on the left shoulder and hip. The plaintiff described how, as she was thrown forward, her left hand, with her left arm outstretched, was hyper‑extended. She said that she screamed and felt pain all over her body.
Dianne Kirby was cleaning her van some distance away. Lynette Anne Banks was also employed as a driver and was doing the same. The latter recalls hearing a bang and a lady screaming. Dianne Kirby heard the plaintiff cry out. Another employee said to her "Shiela's had an accident". Dianne Kirby went to see what had happened. There were several people helping the plaintiff, taking the door off her and helping her out of and away from the van. When she first arrived the door was pressing on the plaintiff. There was another jiffy van adjacent to and stationary next to the plaintiff's van. Dianne Kirby said it was of the bigger truck type with a "box" on the back. You could see, she said, that there was a hole in the top corner of the box which looked like fresh damage.
Notwithstanding her ordeal the plaintiff attended the Christmas party. She was joined there by her friend Rowland Donald Parton who arrived at about 2.00 pm. She met him on the footpath outside. The plaintiff, he said, was "a bit wobbly and a little bit distressed". They remained at the party until about 4.00 pm and left because the plaintiff was in some discomfort and had a bad headache. They had intended to go out that evening to a concert and dinner at the Burswood Theatre. They had already paid for their tickets. They went there by taxi but did not stay for the show, going home by taxi at about 9.00 pm. The plaintiff took some medication and went straight to bed, sleeping in on the following day, according to Mr Parton, until 2.00 pm.
On Christmas day they flew to Melbourne on a pre‑arranged visit to see a friend. Mr Parton said that the plaintiff, on the plane, was still in some discomfort. On the following day they travelled by car to Bendigo to stay with the friend. Mr Parton noted that, at Bendigo, although the plaintiff was continuing to take medication she appeared to be "okay". It seems that both flew back to Perth on about 2 January 1996. Thereafter, Mr Parton returned to his job in Karratha and the plaintiff remained in Perth. The medication being taken by the plaintiff was described by her as being Panadol Forte which she took for a bad headache. Her friend from Bendigo recommended Mersyndol. The plaintiff complained that, while in Bendigo, she not only suffered from headaches but that her left arm was aching from the shoulder down. She did not see a doctor while away or immediately upon her return from Melbourne. She resumed full‑time work, undertaking all the usual duties associated with driving her jiffy van on 6 January 1996. When asked by her counsel what, if anything, she experienced after her return to work in the way of pain she replied:
"Well, headaches and, I don't know, aches and pains, you know. I would go home and have a hot bath, Radox bath, you know. That would help fix me up. I'm not the type of person that goes to the doctor at a drop of a hat. I know I'm silly for not doing that. I should have done, but I didn't."
It appears that the plaintiff's resumption of work continued uninterrupted until an event which occurred on 22 April 1996. On that day she started work at 5.45 am as usual and was loading various food stuffs and drinks into a trolley preparatory to taking them to her van. At the van she was placing buckets of ice into the stainless steel compartment and loading milk. Without there being any particular activity which she identified as being causative she felt a very severe pain in her left hand. She reported immediately to Sharon at the office. Her hand and wrist was bandaged. The plaintiff then went back to the van, finished loading and left the depot at 8.00 am. Her hand began to ache again so she made radio contact with the depot being, as she said, unable to drive the vehicle. Shortly after she was joined by Sharon who drove the rest of the delivery route. They arrived back at the depot at about 1.45 pm. The plaintiff went straight from work to Care Point Industrial Services where she saw Dr Rob McDonald.
The two events described in the preceding paragraphs precede a deterioration of the plaintiff's health, a substantial amount of medical investigation, several surgical interventions in an attempt to alleviate the various problems and, of course, this action for damages. The action, as has been mentioned, is founded on the first of the two events. The relationship between those two events, if any, and the determination of that issue will dictate the outcome of the action.

Injuries – the left wrist

As mentioned, following the event at work on 22 April 1996 the plaintiff, after work, attended Dr Robert McDonald. He recorded in his notes: "lifting at work – sudden pain (L) wrist – ulnar aspect radiating up arm associated with tingling in fingers." He noted that there had been no trauma associated with the event, that there was no past history of wrist injury and no past medical history of note. On examination there was a decreased range of movement in all directions. The plaintiff could not fully pronate and was tender over the ulnar styloid process. His impression was that there had been a wrist strain. He prescribed Feldene gel, strapped the wrist and placed the plaintiff on light duties with a view to a review in a week.
As events transpired the plaintiff attended on him the following afternoon. He noted that she was "worse today" with increased swelling. He declared her unfit for work, prescribed Voltaren tablets and suggested a review in four days time.
The next attendance was on 29 April 1996 when Dr McDonald recorded that the left wrist was less swollen but still painful. On examination there was still tenderness over the ulnar styloid process. He requested an x‑ray. On 3 May 1996 he recorded that the plaintiff was much improved with a full range of movement and decreased tenderness.
According to Dr McDonald's notes no mention was made of the accident on 22 December 1995 until 29 May 1996 when he recorded that he had been provided with further information to the effect that in December the plaintiff had fallen heavily and knocked her left wrist. She was, as a result, off work for two weeks and was then okay.
In her evidence, both in examination in chief and in cross‑examination the plaintiff explained that when she first attended upon Dr McDonald following the event of 22 April 1996 and for several attendances thereafter she had forgotten about the accident of 22 December 1995.
On 23 April 1996 the plaintiff completed a workers' compensation claim form indicating that while loading her van at work she experienced sharp pains in her left wrist. In answer to question 3 on that form "Was the part of the body affected or injured by this occurrence healthy before the occurrence?" she replied "Yes" and in answer to question 4 "Is the present injury or disability totally attributable to this occurrence?" she replied "Yes".
On 2 May 1996 the plaintiff completed a statutory declaration in which she declared, inter alia:
"I would consider myself to have been perfectly fit and healthy prior to 22 April 1996 when I began to experience soreness in my left wrist. I had never experienced any type of soreness in my left wrist prior to that time. … In about November 1995 I strained my right thumb whilst employed by Catering Concepts Australia Pty Ltd. On that particular occasion the vehicle which I was driving hit the curb, causing the steering wheel to fly back and strain my thumb. I was reversing the vehicle at that time. I think I may have had one day off work and I was treated at Centre Point for that injury. … I have never made any other workers' compensation claims, nor have I been involved in any other accidents, whether domestic, industrial or motor vehicle. I have been involved in the occasional motor vehicle accident but I have never sustained any personal injuries resulted from those accidents. … The previous weekend (being 20 and 21 April 1996) was spent at my sister's house in Rockingham. Over that weekend I did nothing other than relax. I was thoroughly spoiled and even had breakfast in bed. I didn't do any type of activity whatsoever which is likely to have caused me to experience any type of injury or soreness to my wrist. At about 7.00 am on Monday 22 April 1996, I began to experience pain in my left wrist. The bone on the outer section of my left wrist was very sore. … I have no doubt that my left wrist injury is work related. I cannot think of any other activity which may have brought rise to my symptoms and I had certainly not experienced any similar symptoms prior to commencing work on Monday 22 April 1996."
Dr McDonald referred the plaintiff to Mr Jeff Ecker, orthopaedic surgeon, who ordered an MRI scan of the left wrist and of the cervical spine and x‑rays of the right wrist to compare with those of the left. On 17 July 1996 he reported to Dr McDonald, referring to the left wrist, that there was a widening between the scaphoid and the lunate bones which was "at the upper limit of normal". The MRI scan revealed a scapho‑lunate ganglion. He suggested a diagnostic wrist arthroscopy and excision of the ganglion. He anticipated that there might be a small bone graft required. In a report to Dr McDonald of 11 September 1996 Mr Ecker noted that on 1 September 1996 the plaintiff had fallen landing on her left wrist which had, as a result, become swollen and tender. Given persistent symptoms in the left wrist Mr Ecker recommended that the plaintiff have the ganglion openly excised and bone grafted. He thought that her ongoing symptoms could be attributed to the "original problem of an interosseous ganglion within the lunate." The excision took place on 24 September 1996. The bone graft was harvested from the left iliac crest and packed into the cavity from where the ganglion had been removed.
The workers' compensation insurer dealing with the claim arising out of the event on 22 April 1996 was AMP General Insurance Limited. By letter of 8 November 1996 Mr Ecker reported to that company, answering questions posed to him in a letter of 13 September 1996. Answering a question about the status of the plaintiff's injury he responded:
"Mrs Hinchliffe presented with a symptomatic interosseous ganglion of the lunate and widening between the scaphoid and the lunate. In my opinion, this was a pre‑existing asymptomatic condition which was aggravated by the nature of the job description which she was required to carry out. Ms Hinchliffe informs me that she had to load milk into a van which involved lifting heavy crates. Her symptoms developed while she was doing this activity."
In December of 1996 the plaintiff moved to Karratha. She began consulting Dr C M Buccilli, a general practitioner at the Karratha Medical Centre. Mr Ecker reported to Dr Buccilli on 18 April 1997 that the plaintiff continued to have persistent symptoms in her left wrist which were then such that she could tolerate and adapt to them. He also referred, for the first time, to left shoulder subacromial impingement syndrome noting that x‑rays had demonstrated a type 3/3 acromion. It seems that symptoms persisted in both the left wrist and the left shoulder. On 5 November 1997 Mr Ecker reported to Dr Buccilli that the plaintiff had elected to proceed to a radio‑carpal fusion which was scheduled for 20 November 1997. That took place as scheduled with a bone graft from the right iliac crest and internal fixing of a plate in the wrist with screws.
Mr Ecker reported to Dr McDonald on 30 January 1998 that the plaintiff was making good progress and could return to a full‑time altered job requiring that she not use her left hand other than to lightly assist and stabilise. On 14 July 1998 the plaintiff underwent further surgery for the removal of the plate and screws from the left wrist fusion and a left shoulder arthroscopic decompressive acromioplasty. The latter settled rapidly after removal of sutures and intravenous antibiotics. The plaintiff was, at the time, experiencing pain related to the right iliac crest being the donor site for the bone graft for the purposes of the left wrist fusion.

By letter of 24 June 1999 Mr Ecker reported to Dr Buccilli that the plaintiff was making good progress in terms of the left wrist fusion and her arthroscopic decompressive acromioplasty of the left shoulder. She had some residual altered sensibility of the ulnar side of the left hand but her main problems related to the left and right hip regions, being the sites of the two bone grafts.
For the first time in numerous reports written by Dr Ecker he mentioned, in a letter of 13 August 2002 to the defendant's solicitors the accident of 22 December 1995. Indeed, in his evidence, when referring to his clinical notes of his first attendance upon the plaintiff on 17 May 1996 Mr Ecker recorded:
"49 year old. Right‑hand dominant. Van sales person for jiffy van. Sells sandwiches. The day before Christmas break she was in the back of a van when another vehicle collided with the open door of the van. She was knocked about inside the van. She had a severe headache for several days. No wrist pain."
If I accept that the plaintiff had forgotten the accident of 22 December 1995 when she attended upon Dr McDonald on 22 April 1996, when she made her workers' compensation claim on the following day and when she made her statutory declaration on 2 May 1996 it is clear that she did make mention of it to Mr Ecker some two weeks later on 17 May 1996. The tenor of Mr Ecker's reports thereafter suggests that the precipitating event was that of 22 April 1996 when pre‑existing problems in the form of the interosseous ganglion and the widening between the lunate and the scaphoid bones became symptomatic. Although he had, at the outset, been told of the event of 22 December 1995 he appears to have effectively ignored it as a relevant event until a report to the plaintiff's solicitors of 18 July 2003. In that report, Mr Ecker stated:
"… it is possible that she sustained an injury to the left wrist at the time of impact of the motor vehicle accident, which subsequently became symptomatic when she was putting milk in the back of the van the following year. Based on the history, there is a definite temporal association between placing milk in the back of the van and the onset of symptoms. In my opinion it is impossible to state that the original injury when she was in the back of the motor vehicle struck by another vehicle did not play a role in the pathology in her wrist, and that this was relatively quiescent and obscured by her other symptoms until it became symptomatic when she was loading milk into the back of the van in 1996."
He also expressed the view that there was a high probability that the left shoulder symptoms could be directly related to the injury sustained on 22 December 1995. That view, he said, was based on the history of a direct impact to the back of her shoulder and to the subsequent development of shoulder symptoms immediately afterwards.
The passage quoted above concerning the plaintiff's left wrist was put to Mr Ecker in examination‑in‑chief by the plaintiff's counsel. He was asked whether the conclusion expressed by him about the relationship between the events of 22 December 1995 and 22 April 1996 was a conclusion to which he still adhered. He said that he did. He confirmed that the relationship was a possibility. Having said that he almost immediately said:
"My opinion is that based on the information that I have, and Mrs Hinchliffe's description of her injury, and the events that unfolded, that there's a high probability that the injury to her left wrist when she fell in the van can be linked to the ongoing problems that she had afterwards."
As mentioned, the two problems of the left wrist diagnosed by Mr Ecker were the interosseous ganglion and the widening between the scaphoid and lunade bones which he later referred to in terms of "mechanical disruption". He was asked as to its cause. He replied:
"In most cases its trauma. In fact, that's the way that it happens, and what happens is there are ligaments around the wrist, condensations of soft tissue that form definite bands that support the bones, and there are ligaments outside the wrist and there are ligaments inside the wrist. There is a ligament between the scaphoid and the lunate which can become stretched so that it moves more than what it should or it can tear. You need to have significant injury to the wrist, to the ligaments between the scaphoid and the lunate bones, but also to the ligaments around the entire wrist for it to fail in this way, and what happens is, when people fall, they put pressure on their wrist and they either break there wrist bone here or they break their scaphoid or they break through their radius and scaphoid along the bone or if they're really unlucky they just tear the ligaments. Now, often they break the bones, we can fix them and we can expect a reasonable result but when the ligaments tear it’s a much more complicated affair in terms of – the fact is, in my experience, if you get a significant tear … there's no way of making that wrist normal."
In cross‑examination Mr Ecker expressed the view that the ganglion was "part and parcel of the whole presentation of instability – that's my opinion – between the scaphoid and the lunate." He was not able to say which came first, the ganglion or the instability. He did say that a ganglion like that suffered by the plaintiff could remain asymptomatic in the wrist for years.
In cross‑examination Mr Ecker reverted back to his original position as expressed in his report of 18 July 2003 to the effect that there was a possibility of a relationship between the two events.
During a break in cross‑examination Mr Ecker was referred to and read the reports of Mr A P Skirving, orthopaedic surgeon. In cross‑examination, having read and considered those reports Mr Ecker agreed that the most common cause of impingement syndrome (relating to the plaintiff's left shoulder) was wear and tear.
With respect to the left wrist he agreed that interosseous ganglia are not caused by acute trauma.
In re‑examination Mr Ecker said:
"The point that I searched deeply for was could I say that the injuries she was involved in just before the Christmas break did not contribute to her wrist symptoms and my conclusion is that I couldn't say that it hadn't contributed. What Mr Lawrence said is true. She may have fallen over six months beforehand and not know. I don't know. I'm actually a doctor and I have spent most of my life actually believing patients because if we start suspecting that they are not telling us the truth, its really not a very pleasant way to practice medicine."
He was asked: "You had no history of mechanical instability prior to December of 1995?" and he replied "No, but that doesn't exclude it from happening again." He emphasised that in his belief the ganglion was a symptom of the true pathology which was the instability.
In summary Mr Ecker's evidence in relation to the left wrist symptoms was somewhat variable in that he, having been, at the outset, informed of the accident of 22 December 1995 appeared to attach no significance to it for a substantial period. When he did eventually focus on that accident the degree of significance that he attached to it varied in that he ranged from there being a high probability of a relationship between that accident and the symptoms of 22 April 1996 and the possibility of a relationship between the two. Having regard to his evidence it is difficult to arrive at any firm conclusion about the relationship between the ganglion and the widening of the space between the scaphoid and lunate bones. While Mr Ecker agreed that the ganglion was not likely to be associated with a traumatic event he took the view that the widening might well be so associated. In fact, he said that it would be associated with significant injury with some patients having an inordinate amount of pain and others having very little pain. I am drawn to the conclusion that there was no wrist pain associated with the accident of 22 December 1995. Curiously, the event of 22 April 1996 was attended by immediate and continuing pain and swelling tending to suggest a traumatic event at that time.
Dr McDonald also referred the plaintiff to Dr R S Goodheart, a consultant neurologist, for an electromyography report. That report dated 11 May 1996 is in evidence. It showed evidence of mild carpal tunnel syndrome with compression of the median nerve at the left wrist. Dr Goodheart explained that when he saw the plaintiff in May 1996 he took no history but rather performed the test requested of him. He actually took a history from the plaintiff at a consultation on 28 July 1998. In his report of 25 August 1998 to the plaintiff's solicitors he said:
"Mrs Hinchliffe dated the onset of symptoms to an injury at work on 23 (sic) December 1995. … Mrs Hinchliffe could recall suffering with immediate neck pain and headache. It seems that there was radiation of symptoms into the left arm. These symptoms persisted. Mrs Hinchliffe was able to return to work activity after a break of two weeks. She worked on full duties but without van driving until June of 1996. During this period of time she went on to develop more persistent pain in the left wrist. There were ongoing symptoms in more proximal parts of the arm."
In cross‑examination Dr Goodheart confirmed that the history presented to him was that there was a hyper‑extension injury to her left wrist on 23 (sic) December 1995. He conceded that his diagnosis was very much dependent upon the history presented to him.
The plaintiff completed an occurrence report in respect of the accident of 22 December 1995 on 14 December 1998 describing the injury as "gradual onset of symptoms of my left wrist and left shoulder". In her evidence the plaintiff, when asked to explain why it was that she failed to notify the Insurance Commission of Western Australia of the event of 22 December 1995 replied: "Because I though it was just workers' compensation." The plaintiff said that she first came to the conclusion that there might be a connection between the onset of symptoms in April 1996 and the accident in December 1995 after she had been to Dr Goodheart. Referring to his report of 25 August 1998 she said that when she got that report she could see that there was an association between the symptoms experienced in April 1996 and the accident of December 1995 and "that was when I told Mr Nigam that I should sue and get some compensation or payout for it." That explanation does not sit well with the content of Dr Goodheart's letter to Mr Nigam of 25 August 1998 which clearly states that the plaintiff herself dated the onset of symptoms to an injury at work on 23 (sic) December 1995. It was the history presented to him which formed the basis of his diagnosis. He expressed an opinion that the symptoms following 22 April 1996 were most likely an aggravation of the injury sustained in the first accident of 23 (sic) December 1995.
By letter of 18 May 1999 the plaintiff's solicitors wrote to the Insurance Commission of Western Australia describing the event of 22 December 1995 and stating that as a result of that accident the plaintiff had received injuries to her neck, shoulders, left wrist and arm. In fact, by letter of 26 March 1998 and by letter of 8 June 1998 the plaintiff's solicitors wrote to Dr Buccilli and Dr Goodheart, respectively, referring to both the accident of December 1995 and the event of 22 April 1996. In the latter the plaintiff's solicitors enquired as to whether the injuries sustained by their client in the second event were an aggravation of the injuries sustained in the first event. In his reply of 25 August 1998 following a consultation on 28 July 1998 Dr Goodheart noted that the plaintiff had not emphasised the second event of 22 April 1996. In fact, in reciting the history of her problems he made no mention of it.
The foregoing leads me to doubt the plaintiff's evidence that she first came to the conclusion that there might be a connection between the onset of symptoms in April 1996 and the accident in December 1995 after she had been to Dr Goodheart and read his report of 25 August 1998. In fact, in her evidence the plaintiff attempted to suggest that the realisation of the significance of the accident of 22 December 1995 occurred when she saw Dr Goodheart at the time of his neurophysiological studies in May 1996. She said, in cross‑examination:
"When I spoke to doctor – he asked me what had happened and I tried to remember everything when I had any aches, pains, falls, whatever, and when I told him about that that was when he said to me that it could have – that's what he put it down that's it – I assume, I think its one of his reports. I don't know; I can't remember."
The request for the study had come from Dr McDonald who had requested "EMG and nerve conduction studies". The information given to Dr Goodheart by Dr McDonald was:
"One month history of wrist pain, initially focused on the aspect radiating up the forearm. Now tingling, pins and needles to thumb and three fingers. Positive tinel's test."
Dr Goodheart made it clear that he had taken a history from the plaintiff in July 1998 whereas on 11 May 1996 he had not, rather undertaking the study requested of him and reporting in those terms.
Dr Buccilli wrote "To Whom It May Concern" on 23 June 1997 confirming that her patient had injured her wrist by lifting at work in April 1996. By letter of 18 August 1997 she wrote to AMP General Insurance Ltd referring again to a work injury to the plaintiff's left wrist in April 1996. When she first attended upon the plaintiff on 13 January 1997 she recorded "April 96 injured hand – left wrist pain and limitation of movement". Dr Buccilli agreed that the first reference made by her in her clinical notes to a claim arising out of a motor vehicle accident in circumstances where the other driver had returned to the United Kingdom was on 6 August 1999. She could not recall when she first heard about the accident of December 1995. She confirmed that all of the medical certificates issued by her had been in respect of the event of 22 April 1996.
Mr Soni Narula, neurosurgeon, reviewed the plaintiff on 22 March 2000 and reported to her solicitors by letter of that day. In reciting the history given to him in respect of the accident of December 1995 he said: "She was thrown forward into the van and struck her left hand against the steel ice compartment in a hyper‑extended position. She immediately noted severe pain in the left wrist, shoulder and neck area." The plaintiff saw Mr A C Harper, occupational physician, on 31 March 2000. He recited the history of the event of the accident of December 1995 as follows:
"She was leaning into the van cleaning when another van hit the door which then fell off and hit her on the head and left shoulder. Her left hand was injured against the inside of the van. She says she was knocked out but developed a severe headache and had symptoms related to the left shoulder, head and left hand. She was treated with analgesics but did not see a doctor until April, 1996. At that time she was complaining of inability to carry a carton of milk or drive a van due to left hand symptoms."
In cross‑examination Mr Harper was asked whether there was any doubt that the history he took in relation to the accident of December 1995 included pain in the left wrist. He replied: "No, no doubt at all, and she explained that her left hand was flicked back and hyper‑extended as it went into the corner of the back of the van as she had been thrust forward by the falling door of her van." He went on to say that he had the understanding that there had been a continuation of symptoms from the time of the incident in 1995 to April of 1996. In fact, he said, he understood that the plaintiff was off work during that period as a result of the accident of December 1995. All of the foregoing leaves me with considerable misgivings as to the plaintiff's evidence and her dealings with various medical practitioners in the period 1996 to 2000. By letter of 11 December 1996 Mr Ecker recommended to Dr Buccilli that there be a further review in six months time and that the plaintiff not consider finalising her workers' compensation claim for a further 12 months. By letter of 29 July 1998 he again wrote to Dr Buccilli suggesting that the plaintiff had been advised that she would need to wait a further six months before a final assessment could be made regarding her workers' compensation claim. On 14 December 1998 the plaintiff completed an occurrent report in respect of the motor vehicle accident of 22 December 1995 and by letter of 18 May 1999 her solicitors wrote to the Insurance Commission of Western Australia enclosing a copy of that report and giving notice of her intention to claim resultant upon the alleged negligent driving of Victoria Armstrong on 22 December 1995.
The plaintiff entered into a written agreement with her employer, Catering Concepts Australia Pty Ltd on 13 July 2000 whereby she agreed to accept a lump sum of $23,867.38 in respect of her injury of 22 April 1996. The nature of the disability was described as "left wrist strain" and at the time of the agreement was described as "left wrist strain and left shoulder and neck pain" incurred while loading a van. The plaintiff had redeemed her workers' compensation claim.
Prior to doing so, on 28 March 2000 the plaintiff had commenced action in this Court by a writ of summons accompanied by a statement of claim seeking to recover damages for injuries and residual disabilities suffered as a result of the defendant's negligent driving on 22 December 1995. The alleged injuries were particularised as soft tissue injury to the neck, soft tissue to both shoulders, soft tissue injury to the left arm, soft tissue injury to the left wrist, soft tissue to the back and nervous shock.
It is the case that medical practitioners, whether they be treating a patient or providing a report for diagnostic or medico/legal purposes or both, are invariably reliant upon the history provided to them by the patient. This is particularly so when medical experts, in the medico/legal context, are asked to report on the relationship, if any, between a particular event and a discrete injury or symptom. Variations in the reporting of a history by a patient to medical practitioners may impact upon diagnosis and opinion as to causal relationships between evens and injuries or symptoms. In this case there appears to have been a clear change in emphasis in the plaintiff's reporting to various medical practitioners as between the accident of December 1995 and the event of April 1996. That change appears to be coincidental generally with the move from the making, prosecution and settling of the plaintiff's workers' compensation claim arising out of the event of April 1996 to the making and prosecution of the plaintiff's damages claim arising out of the accident of December 1995. Not only does there appear to have been a change in emphasis but more importantly a change in the reporting of facts suggesting to some medical practitioners that there had been a continuity of symptoms in the left wrist following the accident of December 1995. For example, Professor Harper made it very clear in his evidence that his understanding was that there had been a continuation of symptoms from the time of the incident of 1995 to April 1996 to the point where his understanding was that the plaintiff, during that period, had been off work.
The plaintiff's own description, in her evidence in February 2004 was that on 22 December 1995 she had been struck a glancing blow on the head and shoulder by the collapsing compartment door. When asked where she felt the pain she replied: "All over my body was aching. You know, I didn't know which part of me ached worse." She then emphasised her head and left shoulder. Shortly after she went into the warehouse complaining to Sharon that she had a headache. She was given two tablets. Later that night at dinner she had a splitting headache and her arm hurt. A few days later she and her partner flew to Melbourne and then travelled to Bendigo. When asked by her counsel, apart from her head, were any other areas of the body causing problems she replied that her arm was aching. She resumed work on 6 January 1996 undertaking all normal duties and continued at work without difficulty until 22 April 1996. She described how, on that occasion, when loading milk she was struck by the sudden onset of pain in the left hand which she said was very severe. Her hand and wrist were bandaged. She could not continue doing her job. She never returned to full time normal duties with Concept Catering Australia Pty Ltd eventually leaving that employment in December 1996.

Roland Donald Parton, the plaintiff's partner from time to time, attended the work Christmas party on 22 December 1995. The plaintiff told him that her pain was across the back and her head. And that she felt "a little bit numb in her left wrist". He said that on the following day the plaintiff was stiff around the shoulders, back and arm. When they arrived in Bendigo the plaintiff appeared okay but was still taking medication. He said that he and the plaintiff returned from Melbourne on 2 or 3 January 1996. The plaintiff appeared to him to be making a good recovery. Her problems was mainly headaches. After returning to Karratha he visited Perth in March of 1996 to play in country week bowls. He saw the plaintiff at that time. She was at work and appeared to him to be normal having made a good recovery. He returned to Karratha. The plaintiff telephoned him in April 1996 to report that she'd had another accident at work and was in excruciating pain. He said: "This time it was her wrist." He agreed that since April 1996 the problem with the left wrist had been an "ongoing saga" and that it had dominated the plaintiff's life.
I accept that what the plaintiff and Mr Parton said in evidence about the events of and subsequent to 22 December 1995 was truthful. I do not, however, accept that the plaintiff has necessarily been consistent or accurate in her reporting of events and symptoms to medical practitioners.
The plaintiff was referred to a consultant orthopaedic surgeon, Mr A P Skirving, who saw her first on 29 April 1999 for the purpose of a clinical assessment in order to prepare a medical report. His report of 4 May 1999 following that consultation recites a history that is in accord with the plaintiff's evidence. In his report, dealing with the left wrist, he said:
"In relation to her left wrist it is difficult to explain her injury of December 1995 as being the cause of her problem when her symptoms were so brief and indeed settled completely until a very minor incident on 22 April 1996 when she did not so much injure her wrist as feel pain in her wrist when she was using it. This dilemma in terms of diagnosis, is made even more difficult when considering the nature of her problem. It would appear that she had an intra‑osseous ganglion of the lunate bone, with mild arthropathy. This is not traumatically induced and almost certainly would have preceded the injury of both December 1995 and April 1996."
In his evidence Mr Skirving confirmed Mr Ecker's finding of a widening between the scaphoid and lunate bones. He clearly stated that that was not commonly caused by an intra‑osseous ganglion commenting that he'd never read of any association between carpal instability and an intra‑osseous ganglion. With regard to the ganglion and some degenerative wear he said that it was impossible to know how long both had been present. As to the suggestion that the ganglion might have been caused by the widening between the scaphoid and lunate bones he again said that it was, in effect impossible to know.
When asked what he meant by carpal instability Mr Skirving replied that it was part of the condition suggested by a slight widening of a gap between the scaphoid and the lunate referring to it as carpal dissociation. He also used the phrase dynamic instability. When asked as to the common cause of such instability he said that it was the result of specific identifiable damage to critical ligamentous structures in the wrist not, he said, just the appearance of a gap between those two bones. Expanding on that he said that the cause was usually a major significant injury involving a disruption of the ligaments allowing the carpus to disorganise. When asked to explain what he meant by the phrase "significant injury" he said "major injury, a fall from a significant height." He went on to say that it would be an acutely painful, dysfunctional wrist that would go on for some time perhaps weeks or months and may not even settle down at all. Reflecting on the history given to him by the plaintiff he said:
"That wouldn't clearly suggest or even lightly suggest a significant injury to the ligamentous structures in the wrist to lead to carpal instability nor to the presence of a ganglion in the bones."
He said that, had the December 1995 accident played a significant role in the pathology of the left wrist he would have expected a period of more acute pain then a gradual resolution, perhaps completely, until the aggravation again in April 1996. He commented that there was no evidence in the material provided to him that clearly demonstrated exactly what structural damage had been done either in December 1995 or April 1996. He said:
"The only rationale I think is that the second accident stirred up a previously asymptomatic ganglion in the bone which subsequently led to some degenerative process. That's the only rationale that would lead to an arthrodesis of the wrist joint."
In the course of his cross‑examination Mr Skirving noted that the plaintiff had said to him when he first saw her: "at the time the wrist was not painful". That was a reference to 22 December 1995. He reiterated a little later that the plaintiff made it clear to him that there was no left wrist pain on the day of the injury and none for about four months. In further cross‑examination counsel for the plaintiff put to Mr Skirving that he was:
"…left in no doubt that both incidents in December 1995 and April 1996 occurred at work, and therefore it could be argued that they were the cause of an aggravation or precipitation of symptoms in an asymptomatic wrist which was the site of a pre‑existing but symptomatic intra‑osseous ganglion. That's your opinion?"
He replied: "Yes". When asked whether he adhered to that opinion he replied that he did. It was shortly thereafter put to Mr Skirving that there was no history of a traumatic event in April 1996 whereas there was a history of a traumatic event in December 1995 and that it was reasonable to implicate the latter as the incident which aggravated the pre‑existing asymptomatic ganglion. He replied:
"Not according to the that story I received. The story I received was that there was one incident. It didn't cause wrist pain. There was a second incident which did cause her wrist pain which was reported immediately because it was a significant problem. The symptoms then persisted and didn't settle down. It seems very clear that it was second which aggravated but it doesn't make any reference I think to the original injury. I mean, it just doesn't."
The evidence suggests that although there was no external traumatic event associated with the event of 22 April 1996 the medical findings immediately afterwards suggested that there had been some degree of trauma. These included the reported sudden pain and the onset of swelling with continuing tenderness and symptoms persisting leading to the radio‑carpal fusion on 20 November 1997. By contrast, while there is clearly evidence of external trauma in the form of the accident which occurred on 22 December 1995 the evidence of left wrist symptoms at the time is not at all compelling. To the extent that there was any pain it resolved quickly with the plaintiff returning to normal duties upon her return from the visit to Victoria. I am satisfied that there was a ganglion in the left wrist and that it became symptomatic following the event of 22 April 1996. I am not satisfied, on the balance of probabilities, that the accident of 22 December 1995 either caused the ganglion or aggravated a pre‑existing asymptomatic ganglion. I found Mr Skirving's evidence to be coherent and compelling. I found the evidence of Mr Ecker to be less so. As mentioned, the role of the plaintiff's reporting of her injuries has, to a significant degree, pervaded the medical reports.

Shoulder injury

The plaintiff said that on 22 December 1995 the open door of the servery compartment of her van glanced her head and left shoulder with considerable force. As mentioned, the plaintiff complained that she was hurting "all over".
When asked whether she had had any health problems prior to 22 December 1995 the plaintiff related that when she was working at "Foodland" she had suffered a shoulder injury. My understanding of her evidence in that regard is that she sustained an injury to her right shoulder while vacuuming and that she sustained an injury to her left shoulder, in a separate incident, when she slipped on water on stairs. On the latter occasion she injured her left shoulder as a result of falling down the stairs. Both events occurred in the 1990's.
Beyond her rather general description of "all over" pain the plaintiff did not specifically describe left shoulder pain either temporary or ongoing as a result of the accident of 22 December 1996. Her general practitioner, Dr McDonald, made no mention of left shoulder pain in his notes of the plaintiff's complaints to him on 22 April 1996 and in the weeks and months that followed.
Mr Jeff Ecker reported to Dr Catherine Buccilli on 18 April 1997 as follows:
"Mrs Hinchliffe states that initially after injury she had symptoms in her left shoulder which eventually resolved. Over the last six weeks they have recurred…x‑rays demonstrate a type 3/3 acromion. An ultrasound was interpreted as demonstrating subacromial subdeltoid bursal effusion with impingement on abduction."
The injury referred to in that passage is the event of 22 April 1996. By a letter of 5 November 1997 he again wrote to Dr Buccilli noting that the left shoulder subacromial impingement syndrome had been present for approximately four or five months and had been confirmed on an ultrasound study performed on 24 September 1997.
It seems that the left shoulder condition persisted to the point where surgery was required. An arthroscopic decompressive acromiaplasty was carried out on 14 July 1998. The plaintiff had undergone a similar operative procedure on her right shoulder in 1989 or 1990. Mr Ecker reported to the plaintiff's solicitors on 30 October 1998 to the effect that the right shoulder problem had been related to a workers' compensation injury the claim for which had been finalised.
In a letter of 18 July 2003 written to the plaintiff's solicitors, in answer to a question as to whether the left shoulder condition had been caused by the injuries sustained in the accident on 22 December 1995 Mr Ecker replied:
"In my opinion there is a high probability that the left shoulder symptoms can be directly related to the injuries she sustained on 22 December 1995. This is based on a history of a direct impact to the back of her shoulder and the subsequent development of shoulder symptoms immediately afterwards."
The evidence before me did not support the proposition that there was "subsequent development of shoulder symptoms immediately afterwards."
In evidence‑in‑chief counsel for the plaintiff asked Mr Ecker what he would say about the nature of the injury to the left shoulder. In the course of a very long answer he noted that the plaintiff had a predisposition to suffer foraminal impingement in the shoulder pointing out that in 1989/90 she had undergone the same procedure on the right shoulder. He noted that there was a very high incidence of patients who have the procedure in one shoulder having it in the other. He then said:
"When she was injured in the car she documents that she hurt her shoulder, her left shoulder. When she presented after this, she had a multiplicity of problems and it was mainly focusing on the left wrist, and she had several operations. She had abnormal movement in the shoulder and the upper extremity because of the operations, disuse, and what you can say is that all of these factors together predispose to her developing the symptoms in her shoulder, and its my opinion, after a considerable amount of reflection and thinking about this, that I can't say honestly, from the bottom of my heart, that the injury in the back of that van did not contribute in some way or another to her left shoulder symptoms, and I guess the best way of looking at it is you can get an injury in the shoulder a bit like the wrist and not know about it and because of lack of use and lack of coordinated normal movement in the shoulder, developing balances which can then precipitate this subacromial impingement syndrome. So that is the way that I looked at it. You can look at it the other way. You can say, 'heck, its 15 months. Get out of here.' You could do that. Again it would have been easier for me to say that, but I have really had to think, very hard on that and that's my opinion. There will be many opinions on it, but that's my opinion."
He agreed that it was a "hunch".
As mentioned the defendant called Mr A P Skiving, an orthopaedic surgeon of some 30 years experience with particular expertise in the elbow and shoulder. He agreed with Mr Ecker that the plaintiff was predisposed to the developmental abnormality known as type 3 acromion. That particular condition is most often found in persons who work regularly, repetitively and strenuously at or above shoulder height. Normally, he said, it's a slow process. His opinion was that a direct blow to the shoulder would not usually be regarded as a likely cause of impingement. He then went on, in cross‑examination, to say:
"What is far more likely is the patient is predisposed to impingement by having a spur, and by reaching a certain age, and by demonstrating that she has that predisposition on the opposite side and requires surgery on the opposite side as this lady has had. She's had an operation for exactly the same problem on the opposite side unrelated to this accident."
He went on to say:
"All I can say is it's not recognised or acknowledged among shoulder surgeons that a direct blow to the lateral aspect of the shoulder is a cause of impingement syndrome. That's all.
A portion of Mr Ecker's opinion quoted above was read to Mr Skirving by counsel for the plaintiff. In response Mr Skirving said:
"I can make one other comment and that is that its far more relevant to regard the shoulder problem as an indirect consequence of the wrist which is what Jeff refers to there. I don't think its really necessary for Jeff to go back and say that you can't exclude and the bottom of his heart stuff. I don't think its very relevant. I think the fact is that its unlikely that there would be a cause. What's much more likely to be a cause is an indirect, secondary consequence. The fact that if somebody has a hand injury and a hand problem and hand surgery and all the rest and they don't use their arm and keep their shoulder immobilised, the fact that they are not really careful of it, then that in itself is a much more likely cause of shoulder problems and a worsening of the impingement to which this lady is morphologically predisposed. But you didn't ask me that."
To the extent that the plaintiff's case concerning the left shoulder is founded upon Mr Ecker's "hunch" I take the view that the plaintiff has failed to discharge her burden of proof in that regard. Again, I find the evidence of Mr Skirving to be substantial, coherent and compelling. I am not satisfied on the balance of probabilities that the accident of 22 December 1995 was in any way causally related to the development of left shoulder symptoms in March or April of 1997.
In passing, I note that in the several reports written by the plaintiff's general practitioner in Karratha, Dr Catherine Buccilli, dating from 23 June 1997 to 15 September 1999, there is one reference to left shoulder pain found in a report of 1 April 1988 to the plaintiff's solicitors as follows:
"She also has left shoulder pain, consistent with a rotator cuff syndrome."
In his report of 25 August 1998 Dr R S Goodheart, consultant neurologist, having seen the plaintiff on 28 July 1998, mentioned that, at the time of consultation, the plaintiff was suffering from a number of symptoms. He said:
"She described her major problem as relating to the loss of flexion and extension at the wrist. She had pain in the wrist which could radiate proximally into the arm. There was weakness in the hand and most muscle groups in the left arm. Mrs Hinchliffe described diffuse numbness of the left hand particularly upon awakening. The numbness tended to settle after a period of minutes. There was weakness of left shoulder abduction and limitation of movement at the shoulder. She described pain in both hips in association with the donor sites. Mrs Hinchliffe did not disclose any other past medical history of note."
In that report Dr Goodheart noted that Mrs Hinchliffe did not emphasise the event of 22 April 1996. Referring to his notes of the conversation he said that he had made no note of an event on 22 April 1996. He said that he had no recollection of the plaintiff telling him anything about that event but conceded that she may have told him and that he may not have made a note of it. He did make the point that if he had been told and if he thought it was relevant he would have made a note. It seems that the event of 22 April 1996 may have been mentioned to him in a letter from the plaintiff's solicitors. In referring to his notes Dr Goodheart said that the history given to him by the plaintiff was that she had worked on full duties from January 1996 to July 1996 with no driving. He reiterated that there was no mention in his notes of the event of 22 April 1996. He also confirmed that the history he obtained from the plaintiff was to the effect that the shoulder problems occurred soon after the incident of December 1995 and that the symptoms thereafter remained continuous.
In cross‑examination counsel for the defendant put to Dr Goodheart that the plaintiff had a ganglion in her wrist which caused some problems leading to an arthrodesis. Dr Goodheart replied that he couldn't comment on that because it was an orthopaedic matter, outside his field of expertise.
It is clear to me that Dr Goodheart's conclusions were coloured by the history given to him by the plaintiff. His notes indicate that he was told that although the plaintiff returned to work some two weeks after the accident of 22 December 1995 she did not resume her driving duties. The plaintiff's own evidence‑in‑chief stands in stark contrast to that.
The plaintiff was reviewed by Mr Soni Narula, neurosurgeon, on 22 March 2000. She told him that at the time of the accident on 22 December 1995 she immediately noted severe pain in the left wrist, shoulder and neck area. Dr Ecker's notes of his attendance upon the plaintiff on 17 May 1996 indicate that he was told by the plaintiff, on that day, of an accident on the day before the Christmas break in the previous year. Specifically, he noted: "Knocked about. Severe headache several days. No wrist pain". Again, in my view, the unreliability of the plaintiff as a historian serves to undermine the probative worth of Mr Narula's report. In any event, it would appear that both Dr Goodheart and Mr Narula would defer to the opinion of an orthopaedic surgeon. I find no basis in the evidence of Dr Goodheart, Mr Narula or Professor Harper for departing from my conclusions as to the plaintiff's left wrist and shoulder injuries.

Other claimed injuries – soft tissue injury to the neck, right shoulder, left wrist and back

Following the accident of 22 December 1995 the plaintiff claimed that she was in pain all over her body. She didn't know which part of her ached worse. That night she and Mr Parton went to the Burswood Theatre but left early. She slept in on the following day waking with a bad headache. Following a hot shower she began packing her bags for Melbourne and took a couple of Panadol Forte, a relatively common analgesic. She did not visit a medical practitioner. At the suggestion of her friend in Bendigo she took Mersyndol, another analgesic. The plaintiff barely gave any evidence of her state between 6 January 1996 and 22 April 1996. It appears that, following that event, she attended Dr McDonald, the first medical practitioner seen by the plaintiff since the accident of 22 December 1995. He noted:
"No past history of wrist injury. No past medical history of note. Medications nil."

The plaintiff was referred by him to Mr Ecker who, as mentioned, noted on 17 May 1996 that the consequence of the event on 22 December 1995 had been "severe headaches several days. No wrist pain".
In Mr Ecker's letter of 14 June 1996 to a radiologist he reported that the plaintiff was complaining of neck discomfort. He wanted to exclude as a possible cause referred pain from her cervical spine and ordered an MRI scan for that purpose. On 17 July 1996 he reported back to Dr McDonald making no mention of neck discomfort. In a comprehensive report to AMP General Insurance Ltd of 8 November 1996 he described the plaintiff's problems as being related to the ganglion in the left wrist, mild left carpal tunnel compression syndrome and minor arthropathy of the left distal radio‑ulnar joint.
On 18 April 1997 Mr Ecker reported to Dr Buccilli that the plaintiff had a restricted range of neck movement with marked pain and discomfort on the right lateral rotation and active extension noting that x‑rays of the neck demonstrated "some very minor cervical spondylosis at C4/5 and C5/6." The next mention of spinal problems appears in Mr Ecker's report to Dr Buccilli of 10 March 1999. The plaintiff attended his office on that day complaining of bilateral low para‑lumbar pain radiating into her sacro‑iliac joint region. He advised that her problem was mechanical low back pain. Dr Buccilli, in her various reports and letters made no reference at all to neck pain or discomfort. To the contrary, the various reports and letters produced by Mr Ecker and Dr Buccilli during this period tend to deal with the problems of the left shoulder, the left wrist and pain from the bone graft donor sites on the hips. It appears that there later developed other related problems such as depression. I can find no basis in the evidence for a finding that by reason of the accident of 22 December 1995, the plaintiff suffered any ongoing soft tissue injury of the neck, right shoulder and back. To the extent that there is reported neck pain or discomfort and lower back pain or discomfort those reports appear to be somewhat isolated and not at all proximate to the accident of 22 December 1995. My finding is that it resulted in relatively minor and short‑lived soft tissue injury giving rise to treatment in the form of analgesia over a period of about two weeks during which time the injury resolved. There would appear to be no evidence supporting the claim for nervous shock beyond the obvious shock of the accident itself from which the plaintiff would have and clearly did recover without difficulty.

Section 29 and s 29A of the Motor Vehicle (Third Party Insurance) Act 1943

Section 29 of the Motor Vehicle (Third Party Insurance) Act 1943 provides that a person shall not commence or maintain an action for damages arising out of the negligent driving of a motor vehicle against an insured person unless that person has given to the Insurance Commission of Western Australia, as soon as practicable after the occurrence of the event giving rise to the claim, notice in writing prescribed by the regulations of his or her intention to make the claim. Section 29A of the Act provides that where the Court in which such an action is brought considers the failure to give notice was occasioned by mistake, inadvertence or other reasonable cause or that the Commission is not materially prejudiced in its defence or otherwise by the failure the Court may, where the action is commenced, at any stage of the proceedings, if it thinks fit, relieve the plaintiff of the effect of that failure or defect. I am asked by the plaintiff to relieve her of the effect of her failure to give notice of her claim for damages to the Commission as soon as practicable after the occurrence giving rise to the claim, namely the accident of 22 December 1995. By her pleading the defendant claims that she has been prejudiced by the failure of the plaintiff to give notification. Burt CJ held in Hall v Motor Vehicle Insurance Trust [1984] WAR 111 at 113 that there is an evidentiary onus upon the Commission to show some basis in fact for the allegation of prejudice. The defendant called Alison Magda Griffin, an acting supervisor of the Insurance Commission of Western Australia to give evidence concerning the claim of prejudice. She told me that the first notification was by way of a letter from the plaintiff's solicitors of 18 May 1999. By then the defendant had returned to her home in England. That fact and the fact that the notification was some three years and five months after the accident of 22 December 1995 would tend to suggest that the defendant had established an evidentiary foundation for the claim of prejudice. It was agreed by counsel that I should hear the evidence of the substantive claim and of the plaintiff's claim for relief under the provisions of s 29A of the Act together and give judgment on both together. Having heard all the evidence I have formed the view that the Commission, in the circumstances of this case, was not materially prejudiced in its defence by its inability to locate and speak with the defendant and has not been materially prejudiced in its ability to mount an effective defence by the giving of such late notice. It follows that I do grant the relief sought by the plaintiff.

Conclusion

The granting of relief to the plaintiff will be of cold comfort to her. The Motor Vehicle (Third Party Insurance) Act) 1943 provides that s 3C and s 3D apply to the awarding of damages in respect of bodily injury to a person directly caused by or by the driving of a motor vehicle. If those sections apply the Court is not to award damages to a person contrary to them. Section 3C of the Act requires that I award damages for non‑pecuniary loss determined according to the severity of that loss as a proportion of the maximum amount, presently $249,000. "Non‑pecuniary loss" means, in the context of this case, pain and suffering. Having regard to my findings in this case my assessment of the severity of the plaintiff's non‑pecuniary loss arising out of the motor vehicle accident of 22 December 1995 given that the maximum amount may only be awarded in the most extreme case is that an appropriate proportion of the maximum amount would be five per cent or $12,450. The section provides that if the amount of non‑pecuniary loss is assessed to be amount B or less, no damages are to be awarded for non‑pecuniary loss. Amount B, at the present time, is $12,500. Accordingly, I make no award of damages for non‑pecuniary loss.
Having regard to the evidence of the plaintiff and my findings generally there appears to be no basis for an award of past economic loss or special damage.