| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : HODI -v- KELLY & ANOR [2003] WADC 38 CORAM : WISBEY DCJ HEARD : 18, 19 DECEMBER 2002 DELIVERED : 21 FEBRUARY 2003 FILE NO/S : CIV 659 of 2001 BETWEEN : ALEXANDER SANDOR HODI Plaintiff
AND
FRANCIS LEANNE KELLY
First Defendant
RICHARD HARRY LAWRENCE
Second Defendant
Catchwords: Damages - Measure of damages for personal injuries suffered in two road accidents - Pre-existing degenerative cervical condition - Claimed reduction in earning capacity - Turns on own facts
Legislation: Nil
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Result:
Claim against each defendant dismissed Representation:
Counsel:
Plaintiff : Mr K S Pratt
First Defendant : Mr J R Brooksby
Second Defendant : Mr J R Brooksby
Solicitors:
Plaintiff : Hoffmans
First Defendant : Greenland Brooksby
Second Defendant : Greenland Brooksby
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
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1 WISBEY DCJ: The plaintiff, a taxi driver by occupation, who was born on 17 March 1952, was involved in motor vehicle accidents on 4 July 1998 and 8 August 1999. The first accident occurred at the intersection of Milligan and Hay Streets, Perth, when the plaintiff's stationary taxi was struck from behind by a vehicle driven by the first defendant. The second accident occurred at the Hutton Street exit on the Mitchell Freeway when the second defendant failed to give way to the plaintiff's vehicle, striking it on the driver's side. In each case negligence is admitted, and the matter comes before the Court as an assessment of damages.
2 The plaintiff alleges in the statement of claim that in the first accident his injuries included neck pain, headaches, upper limb pain, paraesthesia in the left thigh, a swollen hand and wrist, and nose bleeds. It can be seen that he pleads symptoms rather than injuries, it apparently being considered sufficient to leave it to the evidence at trial to identify his injuries. 3 It is alleged that in the second accident the plaintiff sustained a neck injury, disc "dissication" (sic), and as in respect of the first accident numerous symptoms including pain in the shoulders and lower limbs, paraesthesia in the right and left forearms, and shaking of the body, are pleaded as injuries. 4 Unsatisfactory though it is, neither defendant had any problem with the pleading, simply denying that the plaintiff sustained any injuries, loss or damage in the accident; and it is on that unsatisfactory basis that I am required to address the issues.
The evidence
The plaintiff 5 The plaintiff was born and educated in Hungary, and came to Australia on 20 March 1982. He obtained work in the rubber industry, and then as a theatre assistant at Royal Perth Hospital where he worked for a period of 10 years. It appears that whilst working at the hospital he commenced part-time taxi driving, and began driving full-time in 1995. The plaintiff and his partner Erica Pupp also had a Jani-King commercial cleaning franchise at the date of the first accident. The plaintiff claimed that in the months immediately prior to the first accident he was taxi driving from 6.00 pm to 6.00 am six days per week, a total of 60 hours. In addition he was assisting his partner in the cleaning business, each of them making an approximately equal contribution.
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6 The plaintiff stated that he experienced immediate onset of headache following the first accident. After dealing with issues arising out of the collision he drove off in the taxi which received some rear end damage, and the front seat was mobile. The plaintiff stated that he drove to a police station to report the accident, and then went home to sleep. The following morning he was still suffering a headache and had "some kind of discomfort" in his neck.
7 The plaintiff stated that his initial symptoms did not worry him because he had been involved in previous accidents and always recovered. He did not think that he worked the day after the accident. He appeared to have some difficulty recalling his symptoms, and referred to a problem he experienced in opening his mouth, which symptom occurred shortly after the first accident. 8 The plaintiff's recollection was that he mentioned his symptoms to Dr Mei Lon Ng (Dr Mei), a medical practitioner in partnership with her father Dr Ng (the plaintiff's general practitioner), having gone to the surgery to consult Dr Ng concerning his blood pressure and headache. The plaintiff said that Dr Mei's main concern was his blood pressure, and she instructed him to get out into the sun because he needed to build up his vitamin D. He agreed that he did not mention the car accident to Dr Ng for some time, but claimed that because he had mentioned it to Dr Mei and thought that she would have recorded it, Dr Ng would have known about it. 9 During the period covering his visits to Dr Ng from the date of the first accident until 18 November 1998 (four visits) the plaintiff was suffering from headache, neck pain, and jaw pain, and claimed that his ear was bleeding, but there is no suggestion that he made any mention of those symptoms. Between August and November the plaintiff's condition was deteriorating and as a result he made the decision to dispose of the cleaning business, which was sold in November 1998. The principal reason given for selling the business was that because of headaches and neck and shoulder pain he was unable to handle the heavy work involved. Headaches, which he claimed were present 50 per cent of the time, were increasing in intensity. Because of increasing symptoms the plaintiff addressed the matter with Dr Ng and requested a specialist referral. 10 Apart from having to dispose of the cleaning business, the plaintiff stated that he reduced his taxi driving to 40 to 50 hours per week, and immediately before the second accident was only driving for between 8 to 16 hours spread over two nights a week .
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11 When asked to describe his symptoms immediately prior to the second accident the plaintiff said "I had usual headache, tightness in my shoulder, you know I find hard to turn my head. Also I note that lump on my neck which is still here, and well, I don't remember exactly when but the jaw pain has disappeared and since I haven't had it".
12 The plaintiff said that his taxi sustained a significant amount of damage in the second accident, and thereafter he experienced pain in both wrists. Also if he stood in the one position he experienced numbness in the lower limbs, but was unsure whether that problem appeared subsequent to the second accident. He did not think that the frequency or intensity of the headaches and neck pain altered following the second accident. 13 It appears that at about the time of the second accident the plaintiff increased his driving hours to 35/36 hours per week, spread over six days. He stated that he was unable to drive longer because there would be a corresponding increase in symptoms. He claimed that before the accidents he performed a substantial part of the household domestic duties, but as at trial those duties, including the gardening, were being undertaken by his partner. The limitations on the plaintiff's physical and work capacity made him very depressed. 14 The plaintiff produced two books of financial documentation (Exhibit P1). 15 As at trial it appeared that the plaintiff's medical treatment was limited to consultations for the prescription of analgesics, including Panadeine Forte, Panadol and Mersyndol. He claimed to be seeing his general practitioner bi-monthly. 16 In cross-examination the plaintiff stated that the cleaning business was on the market for several months before sale. Prior to sale the plaintiff's work commitment in respect to the business was between 15 and 20 hours a week. He stated that when he first saw Dr Mei the only symptom he mentioned to her was his severe headache, notwithstanding that he was also suffering neck and jaw pain. He claimed, however, to have mentioned those symptoms to Dr Ng. 17 The plaintiff agreed that he informed Mr Batalin on 17 December 1998 that two months prior thereto he began experiencing neck symptoms and periodic headaches. He agreed that he might have told Professor Hollingworth he was working between 55 to 60 hours a week as a taxi driver.
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18 It was pointed out to the plaintiff that his financial records indicated that in May 1998 he averaged about 44 hours per week taxi driving, about 35.3 hours per week in June, and about 36 hours per week in July. The records also demonstrated that he drove for eight hours between 6.00 pm on 2 July and 2.00 am on 3 July; 10 hours between 6.00 pm on 3 July and 4.00 am on 4 July; and eight hours between 6.00 pm on 4 July and 2.00 am on 5 July. He did not work on the Sunday night but worked again on the Monday night and continued working thereafter, although it would appear at slightly reduced hours.
19 The plaintiff stated that he reduced his driving to weekends in about May 1999, and appears to have returned to more regular driving in the financial year commencing 1 July 2000.
Dr Ho Lee Ng 20 The clinical notes of Dr Ng, the plaintiff's general practitioner, demonstrated that he saw the plaintiff following the first accident on 27 July 1998 when his complaints were limited to dizziness, particularly in the evenings, and pressure in the ears; symptoms which Dr Ng appears to have related to the plaintiff's ongoing elevated blood pressure. The plaintiff did not mention the motor vehicle accident, or any physical difficulties arising therefrom. 21 Dr Ng became aware of the first motor vehicle accident on 18 November 1998 when the plaintiff complained of experiencing neck pain over the previous couple of months. Examination at that time failed to reveal any tenderness, there was a full range of cervical movement, and Dr Ng prescribed anti-inflammatory medication and arranged a radiological examination. 22 Dr Ng's report dated 8 July 1999 (Exhibit P2.1) confirmed that at consultations subsequent to 18 November 1998 the plaintiff complained of headaches and neck pain, and on 7 July 1999 upper limb pain restricting his driving ability. 23 Dr Ng's report dated 20 May 1999 (Exhibit P2.2) recorded a deterioration in the plaintiff's condition, and that he had received physiotherapy which aggravated the pain. 24 Subsequent reports seemed to indicate that pain in the forearms became a prominent symptom.
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25 Dr Ng related the plaintiff's symptoms generally to both accidents, and was prepared to accept that they truncated his employment.
26 In cross-examination Dr Ng stated that the plaintiff first complained of pain in both hands on 7 April 1999 and because of the delay had some difficulty relating that symptom to the first accident. He had the same difficulty with the complaint of symptoms in the left thigh.
Dr Mei Lon Ng (herein referred to as Dr Mei) 27 Dr Mei practises with her father Dr Ng, and confirmed that she saw the plaintiff following the first accident on 10 July 1998. Her clinical notes revealed that she had seen the plaintiff on 2 July 1998, several days prior to the first accident, when he was complaining of dizziness particularly at night, related to a longstanding problem of elevated blood pressure. The plaintiff did not make any mention of the motor vehicle accident or symptoms consequent thereon at the consultation on 10 July 1998, and Dr Mei stated that had it been mentioned it would be recorded in her notes. 28 When Dr Mei saw the plaintiff again on 20 July 1998 he was still complaining of dizziness, lethargy and feeling run down. She advised exercise. 29 When she saw the plaintiff on 10 August 1998 his complaint was again of dizziness not referable to the motor vehicle accident.
Desmond Lionel Williams 30 The plaintiff's solicitors referred him to the orthopaedic surgeon, Mr Williams, who saw him on 16 January 2002 and issued a report dated 13 March 2002 (Exhibit P3). The plaintiff told Mr Williams that following the first accident he experienced an immediate headache, jaw tightness developing several days later, and neck stiffness with pain radiating to both ears. He claimed to have sought medical attention four or five days later. The plaintiff claimed that following the second accident, headaches and neck stiffness increased significantly. 31 Mr Williams reported that the plaintiff's presenting complaints were of headaches in the cervical and occipital area, aching and stiffness in the trapezius muscle area, and paraesthesia in both hands. He stated that clinical review demonstrated a significant reduction in the range of movement of the cervical spine, tightness in the paravertebral muscles,
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and tenderness in the thoracic spine. Radiological examination demonstrated significant pre-existing degenerative changes in the cervical spine. 32 Mr Williams concluded that the plaintiff sustained a soft tissue injury to the cervical spine with exacerbation of symptoms from the underlying degenerative changes. He concluded that there was need for physiotherapy intervention because of the significant persisting cervical stiffness. He accepted that the plaintiff could not cope with full-time employment as a taxi driver, stating that his incapacity would continue until he had appropriate management of the cervical stiffness, following which he might well return to full-time driving. He estimated that it would require a 6 to 12 month programme of committed physical therapy to achieve significant improvement. 33 In cross-examination Mr Williams agreed that the expectation was that pain and other symptoms would be manifest within a week of the initiating trauma, and that if symptoms did not present for two to three months they would be difficult to relate to the trauma.
James Kenneth Riordan 34 Mr Riordan was the owner of the taxi driven by the plaintiff. He stated that following the first accident there was limited rear end damage and structural damage to the driver's seat; and considerably more damage following the second accident.
George Tse Hwai Wong 35 The plaintiff's solicitors referred him to the neurosurgeon, Mr Wong, who reviewed him on 16 January 2001 and 10 July 2002. The plaintiff's history to Mr Wong was that following the first accident he experienced headaches and neck pain, attended his general practitioner, and received physiotherapy. The plaintiff indicated that the headaches and neck pain were exacerbated by the second accident, which also gave rise to upper and lower limb problems. 36 Mr Wong considered that there was some reduction of cervical spinal movement together with tenderness, but without neurological deficit. He concluded that the plaintiff had suffered a soft tissue injury to the cervical spine, and was hopeful there would be a gradual reduction of symptoms.
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37 The plaintiff told Mr Wong that he was only able to work for 30 to 35 hours per week. Mr Wong stated his experience was that with the type of injury the plaintiff claimed to have suffered, following the settlement of the claim the injured party eventually got back to work. Mr Wong made the obvious point that the validity of any diagnosis was dependent upon the accuracy of the history given. As with previous witnesses he was of the view that it would be difficult to relate symptoms to the trauma if there was a significant delay between the trauma and the onset of symptoms.
Erica Pupp 38 The plaintiff's partner, Ms Pupp, stated that she accompanied the plaintiff at a consultation with Dr Mei a shortly after the accident. She claimed that the plaintiff told Dr Mei that he had been involved in a car accident and had since experienced a constant headache, but that Dr Mei "was more concerned about his previous blood pressure problem". She stated that following the first accident the plaintiff had ceased to provide assistance with domestic chores, including gardening.
Barrie Stephen Slinger 39 Dr Ng referred the plaintiff to a spinal surgeon, Mr Slinger, who reviewed him on 12 February 1999, 20 December 1999, 26 September 2000 and 4 December 2001. 40 In a report of 11 May 1999 (Exhibit P5.1) Mr Slinger referred to the history given him that following the first accident the plaintiff experienced a headache and subsequently some neck discomfort, and although he was seeing his general practitioner refrained from complaining about his symptoms. The history that the plaintiff did not complain of symptoms for some time after the first accident, is consistent with the evidence given by the general practitioners, and inconsistent with the evidence of the plaintiff and his partner. Clinical examination by Mr Slinger at his first consultation revealed some tenderness of the cervical spine, with 25 per cent restriction of movement. Mr Slinger's diagnosis was of soft tissue injury, and his prognosis was for gradual improvement. He did not recommend treatment. 41 In his report of 17 January 2000 (Exhibit P5.3) Mr Slinger referred to the second accident, stating that the plaintiff claimed that the symptoms present prior to that accident were exacerbated by it. He referred also to symptoms in the upper limbs.
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42 In his report of 27 September 2000 (Exhibit P5.2) Mr Slinger referred to the plaintiff's complaint of continuing cervical discomfort, but noted that headaches had lessened. The plaintiff still claimed to be experiencing symptoms in the upper limbs. On the basis of an acceptance of the plaintiff's complaints, Mr Slinger considered it was reasonable that his working capacity was reduced.
Ross Stuart Goodheart 43 Dr Goodheart, a consultant neurologist, saw the plaintiff on a referral from Dr Ng on 30 August 1999, 14 October 1999 and 29 October 2001. In a report of 2 November 1999 (Exhibit P6.1) he recorded that the plaintiff informed him that over a period of weeks following the first accident he experienced an increase in neck pain with associated headache, radiation of pain into both shoulders, and the subsequent development of significant numbness in both hands; and as a result of the second accident an exacerbation of headaches and upper limb numbness. Clinical examination revealed some limitation of cervical movement. Electrophysiological studies performed on 14 October 1999 indicated borderline evidence of medial nerve compression at both wrists (carpal tunnel syndrome). On the basis of the history Dr Goodheart concluded that Mr Hodi was suffering predominantly soft tissue symptoms relating to the cervical spine, and mild carpal tunnel syndrome. He felt that the plaintiff was partially incapacitated. 44 In his report of 5 March 2002 (Exhibit P6.2) Dr Goodheart referred to his review on 29 October 2001 when the plaintiff's position was basically unchanged. He considered that the symptoms in the upper limbs were related to physiological compression of the medial nerve at both wrists, and was prepared to accept that those symptoms were related to the motor vehicle accident of 4 July 1998. He considered that the plaintiff had a 10 per cent permanent disability of cervical spine function, and 10 per cent impairment of sensory function in the hands. Like other medical practitioners, Dr Goodheart agreed that the proximity of symptoms to trauma, was of diagnostic consequence.
Peter Stuart Hollingworth 45 Professor Hollingworth practises in occupational medicine, and reviewed the plaintiff at the request of the defendants on 22 January 2002 and 11 June 2002.
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46 In his report of 24 January 2002 (Exhibit D1.1) he referred to the first accident, stating that the plaintiff informed him that when he consulted his general practitioner several days post-accident he was having jaw problems. The plaintiff told Professor Hollingworth that he had informed Dr Mei of his symptoms but that she apparently failed to record them or offer him any treatment. The plaintiff appears to have told Professor Hollingworth that his condition was exacerbated by the second accident.
47 Professor Hollingworth reported that examination of the head and neck revealed a reasonable range of movement, with some tenderness. Accepting that the plaintiff did in fact have symptoms immediately after the first accident, Professor Hollingworth was prepared to accept that he suffered a soft tissue injury subsequently exacerbated in the second accident, from which he would recover within a short period. 48 In his report dated 11 June 2002 (Exhibit D1.2) Professor Hollingworth stated that the plaintiff was no longer complaining of pain in the thigh, or of swelling in his hand and wrist. In any event Professor Hollingworth did not relate those problems to the motor vehicle accident. He commented that Mr Batalin's observation of inconsistency between the plaintiff's spontaneous cervical movement and his movements when formerly examined, matched his own clinical assessment. 49 Professor Hollingworth stated in evidence that if the plaintiff did not experience symptoms for two to three months post-accident there was no causal connection with the accident. He also stated that although the plaintiff might experience some discomfort, he could see no reason why the plaintiff could not perform normal taxi driving duties. He also expressed the view that any continuing impairment or disability in the cervical spine was due to the underlying degenerative condition, as the soft tissue injury received in the accident would have resolved. 50 Professor Hollingworth observed that the fact that the plaintiff had a full range of movement when examined by Dr Ng on 18 November 1998 suggested that any present limitation of movement was referable to cervical degeneration rather than a consequence of soft tissue injury. He stated that symptoms from a soft tissue injury would normally settle within a maximum period of three years.
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David Mark Rosen
51 Dr Rosen, a neurologist, reviewed the plaintiff at the request of the defendants, and issued a report dated 11 June 2002 (Exhibit D2). He reported that the plaintiff advised him that he had to sell the small cleaning franchise because of neck pain, and physical difficulties experienced with cleaning. In addition he had to reduce his hours of taxi driving. The plaintiff told Dr Rosen that following the first accident he had an immediate headache, and two or three days later consulted Dr Mei and mentioned the circumstances of the accident to her. He told Dr Rosen that he developed neck and jaw pain about one and a half to two months after the first motor vehicle accident, and the jaw pain settled spontaneously after a few months. He said that he sold the cleaning business in November 1998, having advertised it for sale for several months. 52 The plaintiff claimed that his neck symptoms and headaches were worse following the second accident, and he developed paraesthesia in the hands and an intermittent numb feeling in the thighs. 53 Clinical examination by Dr Rosen revealed the plaintiff to be pleasant, cooperative and restrained. There was a mild reduction of neck movement, and tenderness over the upper and mid-cervical facet joints. 54 Dr Rosen considered that the delay in complaining about symptoms following the first accident was of consequence, and his conclusion was that the plaintiff was experiencing cervicogenic headache secondary to chronic degenerative cervical spine disease, together with mild bilateral carpal tunnel syndrome. He considered that there was a minimal disability.
Nickolay James Batalin 55 Mr Batalin, a very senior and experienced orthopaedic surgeon, reviewed the plaintiff at the request of Dr Ng on 17 December 1998, 17 September 1999 and 3 October 2000. 56 In a report of 4 May 1999 (Exhibit D3.1) he recorded that the plaintiff told him he experienced a headache immediately following the first accident but continued taxi driving, and that several months prior to seeing Mr Batalin began experiencing the gradual onset of a tired feeling in his neck following prolonged taxi driving, an aching pain affecting both sides of the neck, and periodic headaches occurring two or three times a week.
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57 Examination on 17 December 1998 revealed that the plaintiff was in no particular distress and sat, moved and walked normally. There was some restriction of cervical movement. Radiological examination revealed longstanding degenerative changes at the C5/6 and C6/7 levels. Mr Batalin expressed the view that it was possible that as a result of the first motor vehicle accident the plaintiff may have sustained superimposed soft tissue strain injury to a degenerative cervical column, but considered it interesting that the symptoms did not coincide with the accident, observing that degenerative changes could independently produce symptoms.
58 Following review on 17 September 1999 Mr Batalin issued a report dated 17 September 1999 (Exhibit D3.2) in which he noted that the plaintiff claimed to have continuing headaches, pain and stiffness in the neck, and a tight feeling in the distal forearms and hands. Mr Batalin made reference to the second accident, stating that the plaintiff found his symptoms arising therefrom "hard to describe", although claiming that since the second accident he was worse. 59 Mr Batalin noted that the plaintiff claimed he had not been able to drive a taxi, and observed that on clinical examination there appeared to be inconsistency in the claimed cervical and thoracic spine movement. Mr Batalin reported that he was unable to find evidence of significant orthopaedic injury stating that "I found objective assessment of his disability difficult and noted significant discrepancy when using direct and indirect methods of assessment. This suggested other environmental factors may affect his symptom perception". 60 Mr Batalin considered it was possible that the plaintiff had sustained soft tissue strain neck injury following the motor vehicle accident on 4 July 1998 exacerbating the pre-existing degenerative changes and contributing to their becoming symptomatic. Similarly the second accident. He was unable to explain the diversifying presenting symptoms on the basis of the motor vehicle accidents alone. He was of a view that the plaintiff could manage taxi driving. 61 It appears that when Mr Batalin saw him on 3 October 2000 the plaintiff informed him that he was to return to live in Hungary. 62 In his report of 3 October 2000 (Exhibit D3.3) Mr Batalin stated: "It is possible that he may have sustained minor soft tissue strain injury as a result of the first motor vehicle accident and similar strain neck and low back injury following the second
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motor vehicle accident on 8 August 1999. However, this is superimposed on pre-existing degenerative changes which are commonly seen in a man of this age. … I noted difficulty in objective assessment of disability but indirect and more reliable methods of assessment showed only a minor residual problem although Mr Hodi indicated that his symptoms are worse." 63 In his report dated 23 May 2002 (Exhibit D3.5) Mr Batalin confirmed his earlier views, stating that there was little if any contribution to the plaintiff's symptoms following the second motor vehicle accident, and he suspected the plaintiff's general condition may well have been similar had he not had either accident. 64 Mr Batalin's evidence confirmed the contents of his various reports. He stated that based on considerable experience it was his view that for symptoms to arise from an injury caused by a traumatic event they had necessarily to occur within close proximity to that event, and that it was unusual to first experience symptoms months after the event. On that basis he was firmly of the view that any symptoms experienced by the plaintiff resulted from the degenerative condition. 65 He referred in his evidence to the very significant clinical differences when using direct and indirect methods of assessment, which suggested maximisation of symptoms.
Findings of fact 66 I accept the evidence of the general practitioners, Dr Ng and Dr Mei, that the plaintiff did not mention a motor vehicle accident or any cervical symptoms until 18 November 1998 when he complained of experiencing neck pain for two months. Accepting that to be the case, it places the onset of neck pain at mid-September 1998, some two months after the first accident. The plaintiff never mentioned to those practitioners the alleged jaw problem, or ear bleeding. As he was attending the practice for other reasons, and having regard to the claimed severity of the symptoms and their impact on his vocational life, it would be extraordinary for the plaintiff not to have addressed them. I reject the evidence of the plaintiff and his partner that he mentioned the first accident to Dr Mei within days of ITS happening. I note that the plaintiff told Mr Batalin that he did not begin to experience neck symptoms until several months prior to his first consultation with Mr Batalin. The necessary conclusion is that the plaintiff did not experience symptoms for several months at least after the accident.
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67 The burden of the medical evidence is that on the basis that the symptoms did not present for several months after the first accident it is unlikely that they were a consequence thereof.
68 I accept the evidence of Professor Hollingworth and Dr Rosen that the plaintiff's symptoms (such as they are) were most likely the product of chronic degenerative cervical spine disease. 69 The plaintiff has failed to establish that he sustained any injuries, loss or damage in the first accident. 70 The plaintiff's evidence essentially was that apart from experiencing bilateral wrist pain, his symptoms did not increase dramatically following the second accident. It is to be noted that he had complained to Dr Ng of pain in both hands on 7 April 1999, prior to the second accident. I found the plaintiff to be an unreliable historian, and consequently the state of the evidence is such that it is not possible to determine on the balance of probabilities the extent (if any) to which symptoms he was experiencing prior to the second accident were exacerbated by it. I have already recorded the plaintiff told Mr Batalin that symptoms arising from the second accident were hard to describe. I am prepared to accept that the plaintiff may have sustained some exacerbation of the symptoms arising from his long standing cervical degenerative condition, but accept the evidence of Professor Hollingworth that any exacerbation would have resolved within a relatively short space of time. I also accept the evidence of Mr Batalin that any contribution to the plaintiff's symptoms following the second accident was minor. 71 The injuries received in the second accident would not amount to more than 1 to 2 per cent of a most extreme case and as a result any general damages quantification would not exceed the threshold. The plaintiff has not established a loss of earning capacity, the need for gratuitous services, or a requirement for medical attention. |