Hollier v Bettesworth - [2017] WADC 108

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: HOLLIER -v- BETTESWORTH [2017] WADC 108

CORAM: STAUDE DCJ

HEARD: 23-30 JUNE 2017

DELIVERED : 18 AUGUST 2017

FILE NO/S: CIV 262 of 2016

BETWEEN: TANIA MAREE HOLLIER
Plaintiff
AND
KELLY ANNE BETTESWORTH
First defendant
JAMES JOHN MOLLOY
Second defendant

Catchwords:

Torts - Motor vehicle crash - Assessment of damages for personal injuries - Turns on own facts

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943

Result:

Damages assessed at $374,060

Representation:

Counsel:

Plaintiff:     Mr E J Myers
First defendant              :     Mr G P Bourhill
Second defendant          :     Mr G P Bourhill

Solicitors:

Plaintiff:     Simon Walters
First defendant              :     O'Sullivan Partners
Second defendant          :     O'Sullivan Partners

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

Bowen v Tutte (1989) A Tort Rep 81-043
Griffiths v Kerkemeyer (1977) 139 CLR 161
Hodges v Frost (1984) 53 ALR 373
Montemaggiore v Wilson [2011] WASCA 177
Newman v Nugent (1992) 12 WAR 119
Pene v Murphy [2004] WASCA 3
Ramsey v Watson (1961) 108 CLR 652
Setton v Eves [2006] WASCA 3
Thomas v O'Shea (1989) A Tort Rep 80-251
Van Gervan v Fenton (1992) 175 CLR 327

STAUDE DCJ:

Introduction

The plaintiff claims damages for personal injuries suffered as a result of two motor vehicle accidents, the first on 7 December 2013 and the second on 21 November 2014. The defendants have admitted liability respectively.
The first accident occurred when the plaintiff was riding a Harley‑Davidson motorcycle on Abernethy Road in Byford, approaching South West Highway. The first defendant drove a motor vehicle onto the road on which the plaintiff was travelling without giving way. The plaintiff's motorcycle collided with the first defendant's vehicle causing the plaintiff to be thrown onto the road.
The plaintiff's injuries are pleaded as follows at par 4 of the amended statement of claim:
In the first accident the Plaintiff sustained a dislocated shoulder and soft tissue damage to her neck, nose, chin, and left elbow which produced:
(a)adjustment disorder with symptoms of depression, anxiety and panic (which are ongoing) and symptoms of post-traumatic stress disorder (which have largely resolved);
(b)pain, stiffness and tenderness of the neck, nose, chin, left elbow and left shoulder;
(c)limitation of movements of the neck, chin, left elbow and left shoulder;
(d)recurrent nosebleeds;
(e)mood changes; and
(f)headaches and discomfort together with sleep disturbance.
In par 12 the same matters are pleaded as disabilities. No objection was taken to the statement of claim by the defendant, notwithstanding its conspicuous deficiencies. At the commencement of the trial no psychiatric or psychological disorder had been pleaded. The amendment of the statement of claim during the trial to plead an adjustment disorder was prompted by the court. The statement of claim pleaded ongoing symptoms in the chin and nose of which no evidence was given by the plaintiff or by any expert, as well as injury and disability to the left shoulder when the plaintiff's evidence and the expert evidence was of injury to the right shoulder. The plaintiff was not cross‑examined on the inconsistencies between her evidence and her pleaded injuries and disabilities. As no point was taken with respect to the manner of pleading of the claim, I propose to deal with the issues as they were argued. Nevertheless, it reflects on those who have had the carriage of the action that the trial was conducted on the basis of a defective statement of claim.
The second accident is pleaded in the statement of claim to have occurred on the Kwinana Freeway when the plaintiff was driving a motor vehicle which collided with a vehicle driven by the second defendant. The plaintiff gave no evidence of this accident or the effects of it. Counsel conceded in opening that the second accident did not cause any significant injury and would not attract damages over the statutory threshold for non-pecuniary loss. As the claim arising from the second accident falls to be dismissed, it will be convenient to refer simply to the first accident as 'the accident' and the first defendant as 'the defendant'.
Although it is not disputed that the plaintiff was injured when she came off her motorcycle, it is the defendant's contention that she has overstated her symptoms and disabilities in her reports to various doctors and in evidence. Moreover, to the extent that anxiety symptoms have contributed to her perceived pain and level of disability, the defendant contends that these have been due, at least, in part to stress which will be alleviated by the resolution of this litigation. It is the defendant's position that it is reasonable to expect a diminution of her symptoms in the future sufficient to permit a return to full‑time gainful employment. The assessment of damages for future loss of earning capacity is the main issue in this case. Although the plaintiff has made no attempt to return to work in her pre-accident capacity or to attempt to find other work, the defendant has not pleaded a failure to mitigate her loss. It is the defendant's position, however, that the plaintiff has been fit for work for some time and is capable of returning to full-time work as an education assistant or in another capacity for which she is suited, though not in her pre-accident role as an education assistant (special needs).
Because of the number of witnesses and the volume of evidence overall, it will be necessary to give a brief overview of the evidence before dealing with the factual issues.

The plaintiff's evidence

The plaintiff was born on 23 August 1969. She was educated to Year 10 level before doing a year of secretarial training. She had various jobs, including as a receptionist, settlement clerk, truck driver and bar attendant, before ceasing work prior to the birth of her first child in November 1992. She worked again as a bar attendant and as a shop assistant up to the time of the birth of her second child in January 2001.
After he was born she did voluntary work at her older child's primary school before eventually being given a paid job as a liaison officer at Queens Park Primary School and then Cannington Community College. Later, in 2007, as appears from exhibit 3 (employment separation certificate), the plaintiff obtained employment as a special needs education assistant at Armadale High School. In this role she helped children with disabilities engage in mainstream education. She had a permanent full‑time position and worked generally from 7.45 am to 3.15 pm.
Her duties involved driving a school bus, sitting with students in class, managing behavioural problems, if necessary with restraint, carrying books, pushing wheelchairs, moving classroom furniture, setting up classrooms for experiments, and duties of a clerical nature, such as organising reports, meetings with teachers and photocopying. She would also assist children in wheelchairs to go to the toilet. Asked what use she made of her arms in the course of her duties, she said:
You used your arms all the time whether you'd be lifting, turning – you use all the time. You don't stop using your arms.
The plaintiff's evidence was that she loved her work and would still be doing it if she could. She said she said she would have continued to do it until she retired.
Whilst in this employment, she had about 10 weeks off work in 2010 for a low back injury that she sustained while dealing with a child. She had physiotherapy and chiropractic treatment. After returning to work she had no further time off as a result of that injury. There was another incident of injury where her right fingers were bruised when a child slammed a door on her hand.
At the time of the first accident, she had been for some years in a relationship with her current partner, Paul Mumford. They lived in Byford. Mr Mumford worked as a mechanic on a fly-in fly-out (FIFO) basis.
The first accident occurred when they were returning from a charity motorcycle ride. She said that she 'T-boned' the other vehicle. She recalled 'going up in the air, literally face planting the ground with my chin, rolling and coming up into sit up position'. Following the accident, the plaintiff said that she could not move her right arm. She had a cut to her right elbow. She said her chin felt like it had been 'busted' and her nose felt like it was broken. The plaintiff identified two photographs of herself depicting severe bruising to her chin and across her nose.
At the scene of the accident she was given some assistance by an off‑duty ambulance officer who improvised a sling for her right arm. She then went by ambulance to Armadale hospital from where she was discharged after a couple of hours.
The following Monday, that is, two days after the accident, she presented to the Byford Family Practice where she was seen by Dr Jason Simpson, her usual general practitioner, Dr Naga Ganjikunta, being away on holidays. She understood her injuries to include a dislocated right shoulder, injury to her neck and bruising of her arms and hands with grazing. She also had bruising across her face and nose, including slight black eyes. She said that the morning after the accident she could not move her neck.
As she was allergic to a number of medications, she took only paracetamol (Panadol) for pain relief. She said she suffered pain in her neck and shoulder. She also suffered migraines twice a week lasting up to four days. On these occasions she would retire to a dark room to sleep. The migraines commenced shortly after the accident. She said she had never experienced such pain in her life. She also said that she experienced pain in her arm going to her wrist and into her thumb, index and middle fingers.
She was referred to Dr Michael Kent, an anaesthetist, and to Mr Ben Kimberley, an orthopaedic surgeon. She underwent injections to her neck and shoulder. She underwent nerve conduction tests by Mr Silbert, a neurologist. She attended Kelmscott Physiotherapy for treatment. She was also referred for psychological counselling.
The plaintiff said she continued to suffer pain symptoms in her neck and right arm extending to her wrist and fingers, and migraine headaches. She also suffered anxiety when driving or being driven. Driving frightened her. She did not like driving on the freeway. She said she did 'not like anything from the left‑hand side of me'. She became more moody and less sociable. She said that she also experienced anxiety at home. She took no medication for that condition.
She did not return to work as an education assistant and has not worked in that capacity, or at all, since the first accident. She was offered a redundancy in 2015 which she accepted. Exhibit 3 indicates that she received a redundancy payment (tax free) of $33,387.32 (see also exhibit 7).
She believed that she was incapable of returning to work as an education assistant. She said:
I don't think I'd ever be able to go back and do that job ever. Not with, you know, if I had to restrain students, even participating in sports carnivals and swimming carnivals with them, I wouldn't even be able to do that.
All right. So you referred to previously some of the duties of an education assistant. What specific duties do you say you would not be able to perform? – I guess, yeah, look, sitting for too long, having to move desks and chairs or their video TV cabinets you'd have to take out. Having to get up on the step and step up to do filing, stretching above my head. Bending down too much. Yeah, you know, I mean we walk flights of stairs anywhere up to 10 times a day. Having to move computer trolleys and all sorts. Even if I had a student in a wheelchair, I would be struggling to push them in a wheelchair.
She said that she would be unable to drive a bus because she was unable to turn her neck. She had not renewed her F-class licence. In relation to driving, she said that she would be unable to travel in traffic due to anxiety and she would not be able to move her neck to look around while driving.
The plaintiff said that her main recreational activity prior to the accident was motorcycle riding. Since the accident she had sold her motorcycle. She did not ride at all. Her partner had also sold his motorcycle.
The plaintiff also said that she used to go to Jurien Bay from time to time where her father lived and would fish from the beach or jetty, but no longer did so. When she was asked to clarify her answers, she said that she still went to Jurien Bay, but did not fish.
Prior to the accident, she would mow the lawns and tend the garden, including the vegetable garden. Since the accident she had not done any lawn mowing.
The plaintiff said that her partner ceased working on a FIFO basis in order to look after her. He assisted her after the accident by helping her to shower and dress. He would cut her food for her. He would do the cleaning, cooking and washing and would take her younger son to or from school as required. She would not do any of these things because her right arm was in a sling for two weeks and she could not move her neck properly due to pain.
Her need for personal care diminished, but she continued to require assistance with cleaning, washing and cooking. For a period of time after her shoulder operation in February 2015 she employed a cleaner for two hours per week. Her cleaner would also take her shopping. When she ceased to employ the cleaner she said her partner helped her. She could do 'the basics'. She could sweep and 'do a general tidy-up'. She estimated the assistance provided by her partner was on average 12 – 14 hours per week. She kept no record of that time and gave no details of how that time was occupied.
The plaintiff verified a schedule setting out her history of earnings as an education assistant and her Centrelink income from 2008 to 2016. The schedule also indicates the gross salary the plaintiff would have earned in the last three financial years had she not been injured (exhibit 2). The plaintiff also identified her job description by reference to a Department of Education job description form (exhibit 4).
The plaintiff's out of pocket expenses are summarised in a schedule of special damages and attached invoices (exhibit 5). The schedule details physiotherapy expenses totalling $924.70 and paid domestic services totalling $4,020 incurred in the period 10 February 2015 to 26 July 2016.
In relation to other forms of employment, the plaintiff said that she would not be able to do any job that required the use of her right arm because of pain and limitation of movement, and could not sit in front of a computer for any length of time without pain in her neck and arm. She said she had tried to use a computer at home, but lasted 'all of 10 minutes' before her partner had to give her a neck rub.
She was questioned about her consumption of alcohol by reference to the psychiatric report of Dr Eileen Tay. She said that after the accident she switched from drinking beer to Jack Daniels. She would have a drink at the end of the day.
She denied that she had ever exaggerated her symptoms.
In cross-examination, the plaintiff confirmed that her pre-accident employment involved working with disabled children in a mainstream classroom, as opposed to an educational support unit. However, in 2014, although she was off work, she was redeployed to an educational support centre on the basis that there were more education assistants at Armadale High School than were required. The plaintiff said that she was redeployed to a position in the Armadale education support unit for 12 months, but subsequently accepted a redundancy. Her redundancy agreement precluded her from applying for any government job for a period of eight months until April 2016.
In January 2015 she underwent shoulder surgery by Mr Kimberley. She agreed that it took about 12 months to recover. In that time she had physiotherapy and subsequently undertook an exercise programme at a gym. The plaintiff denied that her shoulder movement improved as a result of the surgery. She said Mr Kimberley did not test her range of movement when she saw him last in 2016. She accepted, however, that he had tested her range of movement on other occasions.
The plaintiff agreed that she was capable of self-care and that she had help with housework, cooking and shopping. She acknowledged that she told Dr David Wright on 13 April 2015 that she had difficulty with housework and was helped by her partner with heavy work, but liked to keep as active as possible by doing light duties and that this statement was different from her statement to Dr Eileen Tay on 10 April 2015, that she was only able to sit at home and watch television.
When asked whether she told Dr Andrew Harper on 6 March 2015 that she did not feel depressed, the plaintiff said that she could not remember who Dr Harper was. She acknowledged, however, that she told Dr Nick de Felice on 4 May 2015 that she was depressed. The plaintiff said that she had been depressed the whole time and did not know why she would say otherwise. She had not taken any antidepressant medication.
It was put to the plaintiff that her description of her symptoms to various doctors from time to time varied considerably. She said that she could not remember.
The plaintiff acknowledged that in December 2015 she had been referred to a rehabilitation service by the defendant's insurer. She said she had agreed to the rehabilitation counsellor coming to an appointment with Mr Kimberley, but when the counsellor re-scheduled that appointment without consulting her she instructed her lawyers by letter to request another rehabilitation provider. She said nothing came of her letter. She had not sought any other rehabilitation assistance. (Although it was not suggested by the defendant that she acted unreasonably by not pursuing rehabilitation, the evidence of Dr Harper was it was difficult to predict her future capacity for that reason.)
The plaintiff said that she enjoyed crocheting. She used her right hand to crochet teddies, blankets and beanies. When asked about her bus licence, she said she did not renew it because her doctor refused to sign 'what I took to be a necessary medical certificate'. She was then asked questions to no effect about her partner's worker's compensation claim and current self-employment, her redeployment in the education department in June 2014 and her severance agreement in April 2015. She was also asked questions about her leave applications in 2013.
The plaintiff acknowledged that in the last six months she had told the various doctors who had seen her that her symptoms were worse than they had been before. She knew that the reports of those doctors would be used to assess her claim for damages and she appreciated that the higher her degree of disability, the greater her award would be.
The plaintiff acknowledged that she had suffered from anxiety, but rejected the suggestion that anxiety caused her migraines.
In re-examination, the plaintiff said that in 2013 her youngest son, who is autistic, entered high school. For a number of reasons she took time off work to look after him. She maintained that she had felt depressed since the first accident, but her depression had improved, as she told Dr de Felice.

Evidence of Paul James Mumford

Mr Mumford has been in a relationship with the plaintiff for 10 years. He did not recall her suffering any significant illness during that time, although he did recall her injuring her lower back and taking time off work. Prior to the accident, he and the plaintiff were involved in motorcycling and fundraising for charity. Since then, the plaintiff had done very little. She had been an outgoing person, but her temperament had changed. She appeared very withdrawn. She was very frightened in traffic. Long trips needed to be planned in detail.

Mr Mumford said that he had been working at the time of the accident as a drill fitter on a FIFO basis. After the accident he continued to work until it got to a point where he felt he needed to be at home to look after the plaintiff and her younger son. He was now working as a self-employed mobile mechanic from home.
He said that prior to the accident the plaintiff did all of the housework. He would do the lawn mowing (which is at odds with the plaintiff's evidence), but the plaintiff would do the gardening. Since the accident he helped with the housework. When she was recovering from the accident the plaintiff required personal assistance in showering and dressing. This was also the case after her shoulder operation. Mr Mumford thought he would have assisted the plaintiff on average since the accident for at least 10 hours per week. Asked what he did by way of assistance, he said shopping, driving, cleaning, cooking, yard work and 'just simply being there to assist her in case she gets stuck somewhere'.
In cross-examination, Mr Mumford said that he had been working for Ground Breaking Mining Solutions for 9 – 10 months prior to the accident. Previously he had worked for Atlas Copco. He had had a work injury and was off work for a significant amount of time. He had returned to work, however, prior to settlement of his claim for damages. He denied that the downturn in the mining industry was the reason for him taking up self-employment from home. He maintained that he did so in order to look after the plaintiff.

Ms Marica de Bono

Ms de Bono is a work colleague and friend of the plaintiff who has performed the same work as an education assistant (special needs).
Ms de Bono had worked at the Armadale Education Support Centre for seven years and assisted children with special needs related to autism, blindness and cerebral palsy. Her physical duties included moving desks and chairs and carrying books, as well as assisting a student in a wheelchair, occasionally to assist a child who was prone to seizures and, infrequently, to restrain a student. Ms de Bono had previously worked at Armadale High School assisting disabled children who were engaged in mainstream education.
Ms de Bono described the plaintiff prior to the accident as a very happy person. She had changed since the accident to become more sad and moody.
In cross-examination Ms de Bono admitted that she had met and conversed with the plaintiff outside the court. She agreed that she was not sad and moody when she spoke to her, but she said that she was still not the same person as before. She admitted that the plaintiff moved her head comfortably backwards and forwards and from side to side.

Ms Lisa Marie Irving, clinical psychologist

Ms Irving is a clinical psychologist to whom the plaintiff was referred by her general practitioner in January 2014. She saw the plaintiff on 26 occasions until 4 September 2015. The reports of Dr Irving are exhibit 9. Psychometric testing revealed symptoms of depression, anxiety and post-traumatic stress disorder.
Ms Irving said that in the initial sessions the plaintiff presented as particularly angry, frustrated and agitated. Her feelings were focused on the other driver whom she blamed for the accident. Secondary anger was directed towards her partner and children. Cognitive behavioural therapy and insight oriented therapy was provided. As early as March 2014 the plaintiff had reported that she was adjusting to her situation. She appeared calmer and more accepting.
In this regard, I note that although the plaintiff gave evidence that she had experienced symptoms of anxiety and depression since the accident, she gave no evidence of experiencing intrusive memories, flashbacks, hyperarousal or hypervigilance, as such. According to Ms Irving, however, the plaintiff gave a history of flashbacks. Following a brief eye movement desensitisation reprocessing session, the plaintiff reported a reduction in the intensity and frequency of the flashbacks. She was also assisted with relaxation methods. She described physiological anxiety whilst a passenger. Ms Irving introduced her to exposure therapy to address her driving anxiety.
In her report dated 13 August 2014 Ms Irving stated that in July 2014 the plaintiff reported increased anxiety due to three incidents that occurred whilst she was driving which caused her to be frightened. The plaintiff gave no evidence of any of these incidents. Ms Irving, in that report, also referred to the plaintiff travelling as a passenger on her partner's motorcycle as a form of exposure therapy. A session of imaginal desensitisation was also provided.
The main thrust of Ms Irving's psychological intervention appears to have been pain management and management of her anxiety. On 4 September 2015 Ms Irving reported to the defendant's insurer as follows:
Initial sessions focused on her recovery and convalescence following surgery in January this year. She described feelings of frustration in particular with regressing back to increased pain levels and diminished physical capabilities in the first weeks and months. Supportive counselling and cognitive behavioural therapy focused on encouraging a positive focus for self-empowerment, setting small achievable goals and realising successes.
The driving anxiety has continued to be a major focus, with her frequently describing hypervigilance with accompanying physiological anxiety. Her degree of anxiousness has fluctuated depending on stressors facing her both related directly to her accident (reminders trigger anxiety), facing medical treatments which she finds to be stressful, and recent personal events. Cognitive behavioural therapy and hypnosis have been provided to help her work on particular symptoms of hypervigilance and physiological anxiety with some subjective improvements reported.
Ms Hollier has attended on a 1-2 monthly basis and would benefit from ongoing psychological support and treatment, primarily focused on her driving anxiety/trauma related symptoms as well as to provide adjustment to injury counselling as appropriate.
The plaintiff was not referred for any psychiatric treatment by her general practitioner. She was reviewed by Dr Tay at the request of the defendant's insurer in April 2015 and by Dr Anthony Mander in February 2017. She underwent medico-legal examination by Dr Nick de Felice at the request of her own solicitors in April 2016 and May 2017.
It was Ms Irving's evidence that the plaintiff had a 'black and white' thinking style. She tended to express frustration and anger rather than helplessness or emotional distress. Ms Irving did not view the plaintiff as a person who would exaggerate her pain. This evidence was given in relation to the opinion of Dr Flahive, that the plaintiff appeared to exaggerate her symptoms.
From a psychological perspective, Ms Irving considered that the plaintiff would not be able to do work that involved driving to a significant degree. She considered that the plaintiff's moods reflected frustrations about physical limitations, pain, inability to return to work and such things. Psychologically, however, the plaintiff was fit for part‑time work.
Ms Irving's involvement came to an end when the defendant's insurer declined to fund further treatment, presumably on the basis of the opinion of Dr Tay that none was likely to be effective. There was no evidence that the plaintiff sought any further psychological therapy or counselling.
In cross-examination Ms Irving accepted that the plaintiff's mood varied according to how well she felt. She accepted that there was a relationship between anxiety and pain. She also accepted that the resolution of a compensation claim usually helped an injured person psychologically because it was stressful, but she did not consider that the plaintiff was focused on her claim, or that the financial impact of being unable to work was necessarily the most important stressor.
In re-examination, when asked about what was the most important stressor, Ms Irving said:
I don't think there was a most important [stressor]. I think there was a number of important ones, which was, firstly, the frustration of not being able to use your body in the way that you used to; the physical pain, which can be frustrating in itself; the diminished independence; no longer being able to drive a car without fear or be a passenger in a car without fear; not knowing, so having uncertainty with things like when you will return to work; the frustration of being stuck in the house. That was something that was commonly discussed.

Mr Benjamin Ellis Kimberley, orthopaedic surgeon

Mr Kimberley was the plaintiff's treating orthopaedic surgeon to whom she was referred by her general practitioner in February 2014. His reports are exhibit 10.
The plaintiff presented with a right shoulder injury following the first accident. An MRI indicated a dislocation of the shoulder with labral tearing and a Hill Sach's lesion as well as mild tendinopathy and subacromial bursitis. Mr Kimberley also diagnosed an injury to the left elbow which ultrasound showed as partial tearing and inflammation of the tendon. He also considered that the plaintiff had injured her neck (observing her to be suffering from migraines and neck stiffness), but he was mainly concerned with her shoulder injury. Mr Kimberley arranged cortisone injections into the glenohumeral joint and the subacromial space. He said the plaintiff had subacromial bursitis, an inflammation which caused impingement when the arm was lifted. He described this as a very common condition.
In September 2014 he considered that the plaintiff had symptoms of instability of her right shoulder and that the symptoms she had in her right arm were possibly related to her shoulder injury, rather than neck pathology. As the plaintiff failed to respond to injections and physiotherapy, he recommended surgery. At that time (22 October 2014) he thought her problem was not so much stiffness in her shoulder as pain. The plaintiff also had clunking and mechanical type symptoms consistent with instability and signs of impingement consistent with tendonitis. In his report dated 28 October 2014 he said that the plaintiff had no stiffness in her shoulder, but had clear signs of impingement which had not responded to non-operative treatment.
The plaintiff eventually came to surgery in February 2015. Mr Kimberley repaired a labral tear and performed an acromioplasty. He described this to her general practitioner on 17 February 2015 as 'a fair amount of surgery' and expected gradual improvement.
On 17 May 2016 Mr Kimberley found mild right shoulder stiffness and weakness with a loss of range of 5% of abduction and 10% of internal and external rotation. The plaintiff had pain in her cervical spine with reduced range of motion of 5% – 10%, particularly on lateral flexion and rotation. In her left elbow she was left with mild tenderness over the epicondylar region. He summarised her diagnosis as follows:
This lady sustained a right shoulder injury which included a subluxation or dislocation of the shoulder with tearing of the labrum and the findings of a Hill Sach's lesion. She also had persistent impingement within the shoulder with bursitis and narrowing of the subacromial space as a result of thickening of the bursa and supraspinatus tendon.
With regards to the left elbow, she had tendinopathy of the common extensor origin which was diagnosed on ultrasound and with regards to the cervical spine she sustained damage which includes a C4/5 disc prolapse which is impinging on the right C5 nerve root. This damage within the cervical spine is causing stiffness and pain as well as a radiculopathy radiating down into the right shoulder.
His opinion in relation to work capacity was expressed as follows:
I suspect given this lady's combination of cervical spine pain and restriction with regards to the right shoulder that she is not capable of physical work at this point in time. She would have difficulty with heavy lifting, with overhead activity, repetitive bending and lifting. Were she to be doing sedentary work she may have some difficulty in lasting through the day in view of the neck pain particularly working at a computer or in an office type situation. She is likely to find there is increasing difficulty with neck pain and possible headaches as well as soreness radiating to the right shoulder which would restrict her capacity from that point of view.
I would state at this point of time she would only be capable of a few hours a day of light office type work. At present I believe she has been unable to return to work since the accident but it's now at the stage where there is consideration being made as to possible return to work.
I am a little concerned that the cervical spine problem may preclude this but this is something yet to be determined.
At that time Mr Kimberley thought that she may require further treatment in the course of exercises to strengthen the shoulders and cervical spine, as well as possible pain relieving injections to the cervical spine and possible neurosurgical intervention. He thought she was unlikely to require further surgery to the right shoulder in the short term, but may do in the distant future. He recommended a neuro-surgical review.
Mr Kimberley's report of 11 May 2017 states that she had made steady progress with her right shoulder, but had been held back by pain from her cervical spine, including headaches. He acknowledged that she had been referred to a spinal surgeon, Mr Brad Sowman, for an opinion with respect to her cervical spine. She had continued with physiotherapy. She had declined an offer of further injections.
It is not apparent from the evidence that Mr Kimberley examined the plaintiff for the purposes of his two reports dated 11 May 2017. It was the plaintiff's evidence that he did not examine her shoulder at that time, but in those reports Mr Kimberley states that she still had mild shoulder soreness and stiffness and that her range of motion was 'now near full in most directions with a slight lack of internal rotation'. He said that she had 'pretty full' external rotation and elevation with some soreness at the end of the range. She had pain and tenderness around the acromial region radiating down the lateral shoulder and to the arm with tenderness and soreness around the right side of the neck and trapezius muscles.
Mr Kimberley stated in his report that her right arm symptoms were 'perhaps radiculopathy type symptoms relating to cervical spine impingement which I think has been a feature of her injury throughout'. He said her shoulder symptoms had improved as a result of surgery, but there was still a residual element of soreness present.
He did not consider that she was fit to return to work as an education assistant in special needs as there was still considerable weakness and pain present in her shoulder and neck. He did not foresee that she would gain any further work capacity in the future and suspected that the changes that had occurred as a result of the accident were likely to be permanent. He considered that she would have difficulty doing physical work because of her neck and shoulder and would also find clerical or lighter work a problem because of persisting soreness and postural issues regarding her neck and shoulder. He observed in his report that Mr Sowman had indicated that she was unlikely to benefit from cervical surgery, although it had not been ruled out entirely. He said that Mr Sowman was waiting on her response to test injections to see if that was an option. Mr Sowman was not called as a witness.
Mr Kimberley assessed a residual disability in the cervical spine of 10% and in the right shoulder a disability of 10% of active use of the right arm. He rated her disability as moderate, describing it as a combination of neck and shoulder problems which together made function and activity difficult. He made recommendations regarding future treatment in the form of medication, specialist review and possible cervical surgery.
In cross-examination Mr Kimberley accepted that he had advocated on behalf of the plaintiff with respect to treatment funding by the defendant's insurer. Specifically, in a report dated 15 September 2015 he recommended that the plaintiff be funded for further physiotherapy for a period of two to three months and, in his report of 8 May 2014, he suggested that the Insurance Commission was slow to approve treatment. Mr Kimberley said that he thought it was worth bringing to the attention of the general practitioner and the insurer that the plaintiff's treatment should be progressed.
With respect to the outcome of the surgery, Mr Kimberley accepted that there was a residual loss of movement in the right shoulder, but he described this as a small loss of range that could be expected following surgery of this kind. He thought that the plaintiff's pain and weakness in her right arm was probably from impingement in the cervical spine rather than the shoulder (contrary to the opinion he formed prior to surgery).
Mr Kimberley accepted that the MRI imaging showed nerve impingement at C4/5 but not at C5/6. He also acknowledged that Dr Silbert's studies did not indicate any radiculopathy. Nevertheless, it was his opinion that the plaintiff's arm symptoms came from her neck.
He said that his opinion with respect to the plaintiff's capacity for work was based on her arm symptoms being caused by her neck injury, as well as residual problems with her shoulder. In the shoulder he said there was slight stiffness and moderate weakness. These features could combine to cause pain with certain activities. He agreed that they could be accommodated by avoiding such activities.

Dr Michael Kent, pain management specialist

Dr Kent's reports were tendered by consent (exhibit 12). He saw the plaintiff at the request of her general practitioner. On 27 February 2014 he reported that the plaintiff complained of neck pain and right arm pain with pain in the thumb and first, second and occasionally third fingers, implying a C6/7 nerve root irritation. A CT scan showed right-sided disc and foraminal narrowing at C4/5. He said he was not convinced that that would account for her symptoms and arranged to have an MRI scan performed.
He subsequently reported on 3 April 2014 that the MRI showed only an abnormality at C4/5 with potential C5 nerve root involvement. He proposed a C5 nerve root sleeve injection and a transforaminal epidural.
On 24 July 2014 Dr Kent reported that the plaintiff had undergone a C7 root sleeve injection which had made no significant difference to her symptoms, some of which he said were compatible with C5 radiculopathy, although the pins and needles in her hand were not explained on the basis of the MRI or any peripheral nerve injury. For this reason, he referred the plaintiff to Dr Silbert.
Dr Kent's final report is dated 4 December 2014. He simply noted Dr Silbert's recommendation that the shoulder problem be addressed first. Dr Kent thought that if, following surgery, the plaintiff had continuing problems with her neck, he would recommend facet joint injections. In the meantime he noted that the plaintiff was using simple analgesics.

Dr Peter Silbert, neurologist

Dr Silbert's reports were tendered by consent (exhibit 11). He saw the plaintiff at the request of Dr Michael Kent for evaluation of her right arm symptoms. On 28 August 2014 he obtained a history that since the accident the plaintiff had suffered headaches, neck discomfort and aching pain radiating down her right arm. The cervical MRI showed a right C4/5 disc protrusion with potential compromise of the right C5 nerve root. A nerve root sleeve injection did not improve her symptoms.
Dr Silbert carried out nerve conduction tests. His EMG report, dated 1 September 2014, indicated a normal study with no electrophysiological evidence of a right cervical radiculopathy, a right brachial plexopathy or a right suprascapular neuropathy. In his report of that date to Dr Kent, Dr Silbert stated that the plaintiff clearly had an injury to her cervical spine, but he considered that her neck problems were 'more facetal and referred'. He went on to say that there was interplay between the cervical facetal problems and the right shoulder issues. He suggested that the plaintiff would need rehabilitation in order to return to work because of the risk of aggravating her shoulder. He also said, in relation to Mr Kimberley:
At least we can reassure him that there is no nerve root or neurological problem in the neck, and that [the] problem is more facetal and manifest as stiffness and discomfort without risk of causing any permanent change.

Dr Jason Simpson, general practitioner

Dr Simpson was a member of the Byford Family Practice when he saw the plaintiff on 9 December 2013, two days after the accident. He said in his report of 15 January 2014 (exhibit 13) that her main complaint was muscular neck pain. He reported his findings as follows:
On examination there was extensive bruising on her right arm (most of). Her chin also had marked bruising and there was an abrasion and bruising on the bridge of nose from glasses. There was also bruising over her left forearm and wrist and over her right thigh. She had whiplash type pain on the left side of her neck. There was no bony tenderness of her spine. There was also a 2 centimetre abrasion to her right elbow. On her hand there was bruising to her right thenar eminence and an abrasion to middle finger over her PIPJ and had to have a ring cut off. Neurological and respiratory examination was normal.
Following the initial consultation, the plaintiff continued to complain of neck and shoulder pain. She had a CT scan of the lumbar spine and repeat x‑rays of her shoulder and elbow, all of which were normal, as well as having ongoing severe right shoulder pain, for which she was referred to physiotherapy. The plaintiff also suffered anxiety and was referred for psychological counselling.
The plaintiff's patient health summary from the Byford Family Practice was tendered by consent also (exhibit 14). The plaintiff's main causes for complaint, based on the clinical notes, were neck and shoulder pain and anxiety. The first recorded complaint of migraines was made on 2 May 2014. It was noted on 30 May 2014 that the plaintiff continued to have migraines, but there is no subsequent mention of migraines in the notes. There is a note of 'mild headache' on 14 January 2016. The last recorded consultation was on 30 March 2016.

Kelmscott Physiotherapy

The reports of Philippa Baker and Ashlee Ryan of Kelmscott Physiotherapy were tendered by consent (exhibit 15).
The plaintiff presented initially on 17 December 2013 complaining of sharp pains down the right arm with muscle spasm and pins and needles down the arm to the fingers, as well as left elbow pain and headaches. The plaintiff had limited use of her right arm.
Post-surgery the plaintiff was observed to have 90 degrees of active shoulder flexion range of movement and 80 degrees of active shoulder abduction. She had severely reduced cervical spine movement in all directions due to pain and experienced pain and stiffness at the end of range elbow extension.
In a report dated 2 May 2016 Ms Baker stated that the range of right shoulder movement was 110 degrees in flexion and 85 degrees in abduction, both movements limited by pain. Her observations in terms of treatment and prognosis were as follows:
Treatment has continued to consist of intermittent manual therapy which includes cervical facet joint mobilisation techniques, soft tissue massage and trigger point release techniques. During our manual therapy sessions and gym based supervised sessions, I have incorporated education on self‑management and chronic pain.
Due to the psychosocial barriers that are present, we haven't had as much success with the programme as initially first thought. It has been difficult to progress her programme too much due to her acute on chronic flare ups and her overall decreased exercise tolerance. I encouraged Tania to continue with psychologist management as she previously found beneficial and it would help her with some of the psychosocial aspects to her injury and claim. I'll be looking for her to finalise her claim in the near future in order for her to continue with her rehabilitation as required without the psychosocial aspects attached to her injury and claim.
Ms Baker thought the plaintiff could continue her gym-based programme independently without supervision. Her recommendation was to continue with that programme and daily stretching and strengthening exercises.
According to exhibit 5, the last attendance for physiotherapy was on 19 August 2016. There is no evidence of any subsequent treatment.

Dr Andrew Harper, occupational physician

Dr Harper saw the plaintiff for medico-legal review on 8 January 2015, 8 March 2016 and 18 May 2017. His reports are exhibit 16. On the first occasion, prior to shoulder surgery, Dr Harper diagnosed injuries of moderate severity to the right shoulder and neck resulting in residual disabilities in those areas. He observed mild to moderate psychological impairment due to anxiety. Dr Harper considered that the plaintiff would regain a capacity for at least part‑time restricted work, avoiding prolonged sitting, physical work using the right arm, lifting, carrying and high reaching. He thought she would be compromised in her competitiveness in the open workforce, but that it was unlikely that her injuries would result in premature retirement.
On the second occasion Dr Harper noted that the plaintiff complained of migraine headaches which had increased in frequency and severity. Previously he had recorded that the plaintiff had headaches daily or every second day which persisted all day. Occasionally she needed to lie in bed. The headaches were associated with neck pain and nausea. On 8 March 2016 the plaintiff described headaches occurring at least twice a week and persisting for 12 hours with constant mild headache in between. She obtained relief from sleep and being in a dark place. The plaintiff continued to have neck and right shoulder pain and restriction of movement and she continued to feel anxious and stressed when in traffic, however, she denied feeling depressed, anxiety was felt at other times as well. She reported that her psychological symptoms had deteriorated since she ceased counselling.
On this occasion Dr Harper expressed the view that the plaintiff had a capacity for part-time restricted work as an education assistant, but not with special needs children. He anticipated that her work capacity would improve such that he could not rule out the possibility of her being able to resume full‑time restricted work in the future. He said she was left with mild to moderate residual disability of the neck and right shoulder and mild to moderate psychological impairment.
In his most recent report, Dr Harper noted that the plaintiff had not had any psychological counselling, physiotherapy, rehabilitation or exercise over the previous year, although she had continued to see her general practitioner. Her migraines had worsened in duration, lasting up to four days. There was no change to her neck and shoulder pain and stiffness. Psychologically, the plaintiff said that she was probably depressed and that her anxiety had been 'horrible'. She had intrusive thoughts of the accident. The plaintiff had ceased her recreational and social activities. She was confined to reading, watching television and crocheting. Her sleep was poor. She gave a detailed description of her domestic activities.
On examination Dr Harper found that the plaintiff's degree of neck tenderness and movement had been relatively consistent over two years. Her shoulder movements, however, were considerably reduced from previous examinations.
Dr Harper observed that there had been a deterioration in some of her symptoms and that she continued to have symptoms of pain and restriction of movement in her shoulder despite the surgery. Although Dr Silbert had found no nerve root or other neurological problem in her neck, the plaintiff described consistent radicular symptoms affecting the right arm consistent with a neck injury. Brachial stretch testing on the right reproduced symptoms in the distribution of C6. He also observed that she had significant psychological symptoms of anxiety and impaired adjustment associated with expressive and demonstrative pain-related behaviour. Dr Harper observed:
While she is a poor historian and her pain response is one of expressive behaviour, my assessment is that she had a significant injury and that she continues to experience symptoms of moderate severity sufficient to result in moderate disability.
He thought that the plaintiff's work capacity was difficult to assess as she had not had appropriate rehabilitation. He said the extent to which she would recover her work capacity remained to be seen. There was a possibility of improvement with appropriate rehabilitative care and treatment. He observed that over the previous year she had not had the benefit of physical or psychological rehabilitation and was thus at a disadvantage in terms of regaining her capacity for work. In the meantime, she was not able to compete for gainful employment in the open workforce. He suggested rehabilitation and pain management.
In his report of 18 May 2017 in which he commented on Dr Flahive's opinion, Dr Harper said that whilst there might be a general expectation for improvement, the plaintiff did not reflect the norm or average in terms of recovery. He said while he did not rule out the prospect of good improvement, he did not have evidence to indicate that this had occurred or was occurring. Although the plaintiff's presentation was expressive and demonstrative, this did not invalidate her injuries or disabilities. Her history and medical presentation was consistent with a clinically significant injury.
In cross‑examination Dr Harper agreed that her range of flexion in the right shoulder, which had improved slightly between 2015 and 2016, had decreased significantly on the last occasion he examined her. He said he could not provide a full explanation for the deterioration in shoulder movements, but he considered that clinically her neck was worse. He observed, however, that she had not had any specific treatment or done any exercise programme over the previous 12 months and in that time had experienced deterioration.
Dr Harper was cross-examined about his diagnosis of the plaintiff's right arm pain, in particular the validity of the brachial stretch test. He agreed that there was no objective evidence of neurological injury. He said that his clinical findings contradicted Dr Silbert's report. EMG testing was not 100% sensitive and could give false negatives.
When it was put to him that there was no clinical reason why the plaintiff's neck injury should have deteriorated, Dr Harper said that he could not explain it anatomically, but thought the clinical findings were all generally consistent. Her symptoms were in the C6 distribution, even though there was no abnormality on MRI.
Dr Harper agreed that the plaintiff's anxiety could influence her pain but he could not say to what degree. He said that any stress could be detrimental and that her court case could aggravate anxiety and depression. Anxiety could be a factor in the onset of migraine headaches.
When questioned about his opinion concerning the need for rehabilitation, Dr Harper commented that he felt that the plaintiff was disadvantaged by the compensation system in that she had not had appropriate supportive treatment over the previous 12 months.
The restrictions he noted on the occasion of his last examination involved the avoidance of repetitive work with the right arm including lifting, reaching, carrying and prolonged static postures and avoidance of demanding interpersonal situations.

Dr Claudio Nick de Felice

Dr de Felice is a psychiatrist who has seen the plaintiff twice for medico‑legal purposes. His reports are exhibit 17. He found that the plaintiff's symptoms met the diagnostic criteria for post-traumatic stress disorder (PTSD) according to DSM-V (Diagnostic and Statistical Manual of Mental Disorders, 5th ed). He also diagnosed an adjustment disorder with depressed mood and a panic disorder. His diagnosis of PTSD was based on the plaintiff's description of nightmares and flashbacks of the accident and physiological reactivity to reminders of the accident. She also described avoidance phenomena in terms of driving and being in traffic, and anxiety driving through the accident site. She also reported mood and sleep disturbance, concentration difficulties and panic attacks.
Dr de Felice explained that an adjustment disorder was one where a person had clinical significant psychiatric symptoms that did not necessarily fulfil the diagnostic criteria for another psychiatric disorder. In the plaintiff's case he interpreted the plaintiff's symptoms as meeting the diagnostic criteria for PTSD. As he explained in evidence:
The point is not the psychiatric label one applies, but the point is that the person has psychiatric symptoms which are impairing function and associated disability ... How one psychiatrist might label it versus another is partly the point but not entirely.
His conclusion upon his examination on 2 May 2017 was that the plaintiff's psychiatric symptoms were likely to continue to affect her work capacity, but that when she was no longer facing the stressors involved in the compensation process, she would have fewer symptoms. He anticipated that within six to 12 months she could start a graduated return to work programme, but she would be limited to working in her local area and may need assistance with transport to work. He thought that within a couple of years the plaintiff was likely to be able to work part-time from a psychiatric point of view. He also felt that she had a marked restriction in her competitiveness in the open workforce by reason of her psychiatric symptoms. He assessed a psychiatric impairment rating of 15 using the Commonwealth social security rating impairment. Her ongoing PTSD symptoms would remain. If pain persisted, this would perpetuate depressive symptoms. He said that anxiety would subside with the finalisation of the medico-legal process although significant anxiety would remain. He assessed the PTSD as moderate in severity, the adjustment disorder as moderate and the panic disorder as mild, if not moderate.
The plaintiff was reluctant to pursue pharmacological treatment. He thought her reasons were misguided and that with some psycho‑education she might be persuaded to at least try medication. He also thought that the plaintiff would benefit from psychological therapy to manage PTSD, depressive and anxiety symptoms and chronic pain.
In cross-examination Dr de Felice said that if the plaintiff had not had flashbacks or nightmares, but did have intense psychological or physiological responses to reminders of the accident, that would be sufficient to fulfil the criteria for PTSD. In the absence of those symptoms, in the plaintiff's case, the diagnosis would be adjustment disorder.
With regards to medication, Dr De Felice understood that the plaintiff was reluctant to take antidepressant medication on the basis that she was allergic to various drugs. He was not aware that the plaintiff was in fact allergic to antidepressant medication. In his opinion such medication was not addictive, even though discontinuation of the medication had to be managed to avoid withdrawal-type symptoms. When asked about the plaintiff's response to psychological therapy by Ms Irving, Dr de Felice commented that different psychologists worked in different ways, but he did not throw any light on why the plaintiff did not respond to Ms Irving's therapy. Dr de Felice said that he would expect the plaintiff to respond to treatment of her residual PTSD symptoms, but could not be sure that she would do so. He thought that as long as she had ongoing pain she would have depressive symptoms. Ordinarily, he thought one would expect 60% of people to respond to treatment for a generalised anxiety disorder, but with PTSD or depressive symptoms and ongoing pain his 'gut feeling' was a 20% – 30% chance of a response.

Dr Eileen Ling Ling Tay, psychiatrist

The defendant called Dr Tay who examined the plaintiff on 10 April 2015. Dr Tay provided only one report (exhibit 18). She is the first psychiatrist to have examined the plaintiff. Dr Tay described the plaintiff as 'a somewhat digressive and tangential historian'. Dr Tay said that during her assessment the plaintiff emphasised her levels of pain and disability and how much they affected her everyday life and the emotions that she experienced. Dr Tay said the plaintiff was anxious about her recovery and the possibility of complications post-surgery. She thought the plaintiff demonstrated partial insight into the physical nature of her injuries and the post-operative recovery process, but said it was also evident that there was significant emotional overlay regarding her level of disability post-operatively and the level of pain she was experiencing. She described the plaintiff's mood as dysphoric, and her affect as labile and aroused at times, but pleasant and cooperative otherwise.
Dr Tay stated in her summary that the plaintiff 'allegedly feigned significant pain and disability from her right shoulder symptoms both pre and post-operatively'. She was not able to find a reference in any of the reports to the plaintiff feigning any symptoms and effectively resiled from this statement. Dr Tay was cross-examined on the basis that this mistake in her report diminished the credibility of her conclusions but these were essentially favourable to the plaintiff. Although Dr Tay found that the plaintiff did not fulfil the criteria for a diagnosis of PTSD, she did fulfil the criteria for adjustment disorder with prominent anxiety symptoms. She summarised her diagnosis as follows:
The diagnosis pursuant to DSM-IV, Axis 1, is an adjustment disorder. There is prominent expressed anxiety and pain protective behaviours and ongoing anxiety regarding how well she could recover from the right shoulder so that she could ride a motorbike again. She has expressed generalised anxiety regarding traffic either on a motorbike or in a car, however, there is no evidence of post-traumatic stress disorder per se. She does not describe re-experiencing or reliving phenomena. There are no nightmares or flashbacks per se to the actual incident but a general disturbance in terms of general levels of anxiety regarding traffic. There is, however, expressed anger towards the female driver who pulled out in front of her, not knowing whether this other driver has been charged.
Dr Tay also commented on the plaintiff's history of alcohol consumption in the period between the accident and her shoulder operation in January 2015. The history recorded by Dr Tay was that the plaintiff had been drinking beer daily until the time of her right shoulder operation. Since then she had reduced her consumption to Scotch and water, three glasses, once a week. Dr Tay's observation was simply that the apparently high level of alcohol consumption in 2014 would also have contributed to high levels of anxiety, frustration and low mood.
Dr Tay also observed that the plaintiff had underlying personality and constitutional features which contributed to her expressed levels of heightened anxiety and a negative reaction to her symptoms. However, she did not identify any pre-existing or underlying psychiatric condition. She said that to a moderately large extent the plaintiff's psychiatric symptoms would be attributed to the accident.
In her view, the adjustment disorder would not itself prevent a return to work on a full-time or part-time basis or from undergoing rehabilitation or re‑training. She went on to say:
In my opinion she does have retained earning capacity purely on psychiatric grounds alone, however, as part of her underlying personality structure Ms Hollier would generate 'what if' scenarios if she returned to work in terms of re-injuring her shoulder and that would create ambivalence on her part to returning to work, as well on the part of the employer to accept her back into work as per Dr Peter Silbert, neurologist, report in September 2014.
She expressed a guarded to poor prognosis and described her motivation to return to her pre-accident work as ambivalent. In terms of ongoing treatment, she said that the plaintiff would have struggled to apply psychological techniques and strategies to deal with anxiety due to her alcohol consumption in 2014, but that if her alcohol consumption had reduced, then it was likely she would be able to benefit from psychological therapies. Dr Tay observed that most of the plaintiff's psychological therapy had merely been supportive. She thought that the plaintiff 'lacks the psychological‑mindedness to fully make use of ongoing psychological treatment'.

My calculations are as follows:
1.Loss of earning capacity for six months: $830 x 25.5 = $21,165, say, $21,200
2.Loss of earning capacity for further six months (part-time, mainstream only): $400 x 25.5 = $10,200
3.Loss of earning capacity for 19 years from August 2018: ($830 x 549) - 10% = $410,103, say, $410,000 ($780 x 549) – 30% = $299,754, say, $300,000. Difference: $110,000
Accordingly, I allow future loss of earning capacity at $131,400 in total.

Future loss of superannuation

The method of calculation is not in issue.
For the first period I allow $2,100: $1,017.90 x 9.5% x 85% x 25.5 = $2,095.98.
For the second period, based on a gross loss of income of $553.90, I allow $1,140: ($1,017.90 - $464) x 9.5% x 85% x 25.5 = $1,140.54.
For the final period, the differential gross income rate, after applying the discounts for contingencies is calculated as follows:
$1,017.90 – 10% = $916.11
$942.50 – 30% = $659.75
$916.11 - $659.75 = $256.36
For this period, the loss is, therefore: $256.36 x 9.5% x 85% x 549 = $11,365.88, say, $11,370.
Accordingly, total future superannuation loss is $14,610.

Past services (paid)

I would allow the plaintiff's claim for paid domestic cleaning expenses (exhibit 5). The period 10 February 2015 to 26 July 2016 corresponds with the period following the plaintiff's shoulder surgery. A lengthy convalescence was expected and the evidence of Mr Kimberley establishes the need for such domestic assistance. The cost for two hours of domestic assistance per week was initially $50, then $60. The total sum claimed is $4,200. I allow interest at 3% for, say, 18 months ($181) and 6% for 12 months ($241), total $422, say, $420.

Past gratuitous services

Damages for gratuitous services are claimed on the basis that the plaintiff needed personal care and assistance after the accident and again after the shoulder operation in February 2015, and domestic assistance at all times since the accident.
Section 3D of the Motor Vehicle (Third Party) Insurance Act 1943 applies to limit the amount that can be awarded where the services are provided by a member of the same household as the recipient. The threshold (non‑deductible) is $6,500. The applicable principles are found in Griffiths v Kerkemeyer (1977) 139 CLR 161; Van Gervan v Fenton (1992) 175 CLR 327; Hodges v Frost (1984) 53 ALR 373; and Newman v Nugent (1992) 12 WAR 119. There was no issue raised with their application in this case. The issues are essentially factual. Under this head of damage the plaintiff is to be compensated for the need for personal and domestic services created by her injuries, not for the loss of her family, or the loss of enjoyment of providing services to her family.
The claim for 14 hours per week from 13 December 2013 to the date of trial is made in addition to the claim for paid cleaning expenses, which I have allowed. The claim is made at the rate of $16 per hour. There was no proof of this rate, but the defendant conceded that the usual rate was about $32 per hour, being one-fortieth of the average weekly total earnings of all employees in Western Australia. That is the maximum rate where the services are provided for less than 40 hours per week: s 3D(3). Accordingly, while the reason for claiming such a low rate is not apparent, there is no dispute as to the reasonableness of the rate claimed by the plaintiff, only as to the extent of the plaintiff's actual need for services in a household shared with her partner and son. The defendant contends that the claim falls below the statutory threshold.
There is no expert evidence of any functional capacity evaluation having been carried out by which the plaintiff's need for personal and domestic assistance might be objectively assessed. The medical evidence does not specifically address the plaintiff's capacity for domestic work, although it may be inferred from the disabilities that have been documented by the doctors and their opinions as to her restricted ability to work in special needs that there have been and are things that she cannot do or would have intolerable difficulty doing that she must rely on others to do for her. The evidence of the plaintiff and Mr Mumford is vague as to what she required from him and what in fact he provided.
Relevantly, her residual disabilities would appear to preclude activities that would involve repetitive use of the right arm, elevation of the arm above shoulder level and lifting and carrying items above a certain weight. Some gardening and household tasks, I accept, are now so difficult that it would be reasonable for the plaintiff to engage help at cost were she not assisted gratuitously. It must be acknowledged, however, that Mr Mumford also has an interest in maintaining the garden and cleaning the house. His evidence was that before the accident he used to mow the lawn, but the plaintiff would do the rest. He also helped with the housework, but the plaintiff 'did most of the primary stuff'.
I propose to allow damages for domestic assistance for the period from the date of the accident to 10 February 2015 on the same basis as the paid services, because it is clear that the plaintiff was disabled to a significant extent by her shoulder and neck injuries. I allow two hours per week at $16 per hour (as claimed) for 62 weeks: $1,984, say, $2,000. Interest at 3% for 14 months and 6% for 3.5 years amounts to $500 in round terms.
From 26 July 2016, when the plaintiff ceased to pay a cleaner (say, 55 weeks), I would allow two hours per week at $16: $1,760. Interest for 13 months at 3% is $58, say, $60.
I accept that the plaintiff also required personal services of care for a period after the accident and for a period after her surgery in February 2015. There is no reliable evidence of her needs and how they were met, though it is clear that the plaintiff would have required help in showering and dressing among other things. Doing the best I can on the medical evidence and the evidence of the plaintiff and Mr Mumford, I would allow her two hours per day for personal care, such as help with showering, dressing, meal preparation, transportation and general attendant care for a period of three months (13 weeks) after each event: $316 x 2 x 91 days x 2= $6,370, say $6,400. I allow interest at 6% on half that amount for 3.5 years ($672), and the other half for 2.5 years ($480), total $1,152, say, $1,150.

Future services

For domestic services, the plaintiff claims two hours per week at $16 for her life expectancy of 40 years. The evidence does not allow for any precision. I must do the best I can with what I have, bearing in mind that the burden of proof is on the plaintiff. Having regard to the plaintiff's prospects of improvement, the likelihood that the plaintiff will be able to adapt to her residual disabilities to some extent, and the reduction of function that will come with increased age, I consider it would be reasonable to allow the plaintiff's claim on the basis of a need for two hours of assistance per fortnight. The claimed rate of $16 per hour is not disputed; nor is the life expectancy. I allow $16 per week for 40 years (808): $12,928, say, $13,000.

Future treatment expenses

The plaintiff's claim is for a global allowance of $10,000 based on the following needs:
1.Orthopaedic review: $100 - $150 every three months.
2.Pain specialist review: $300 per review.
3.General practitioner review: $60 - $100 every two to three months.
4.Psychological counselling: 12 sessions at $190.
It is also pleaded that the plaintiff will require paracetamol medication for an indefinite period. This claim is based on the evidence of Mr Kimberley. Mr Kimberley's rather generalised opinion was expressed in his report dated 11 May 2017 (exhibit 10). As well as making the recommendations on which the claim for future expenses is based, Mr Kimberley also averted to the possibility of further orthopaedic treatment for the right shoulder, including joint replacement. This is not reflected in the pleaded claim.
On the evidence, the plaintiff requires vocational counselling and rehabilitation, but this has not been specifically pleaded.
I consider that it would be reasonable to allow for some future orthopaedic and general practitioner reviews, but I am not satisfied of a need for pain management as the plaintiff has not been seen by a pain management specialist since she last saw Dr Kent in December 2014.
My assessment of future loss of earning capacity takes into account the likelihood of improvement with psychological counselling for the plaintiff's adjustment disorder and motor vehicle anxiety, that item should be allowed. I have come to the view that the global amount claimed, which represents a little over $12 per week for the balance of the plaintiff's life expectancy, it should be allowed. It takes into account positive and negative contingencies.

Special damages

The defendant has paid most of the plaintiff's treatment expenses, but there is an issue with respect to some physiotherapy expenses. The details are set out in exhibit 5. A physiotherapy attendance fee of $62.70 on 3 January 2014 is conceded. There is also a claim for $26 for a roller (5 February 2016). There is no evidence of the need for this item. The remaining items claimed are fees of $68 incurred on 13 occasions from 1 June 2016 to 19 August 2016, total $884.
The only evidence by the plaintiff bearing on this aspect of the claim was her statement in cross-examination (ts 44), that after her shoulder surgery she had 'hands-on' physiotherapy until November 2015. Thereafter, she did a gym programme with hydrotherapy until June or July 2016. I infer from her evidence that this treatment was funded by the defendant's insurer. There is no relevant evidence from the treating physiotherapist who presumably would have reported to the plaintiff's general practitioner. There is no evidence from the plaintiff's general practitioner. Mr Kimberley, in his report of 17 May 2016, states that the plaintiff may benefit from ongoing exercises to strengthen the shoulders and cervical spine through a gym programme, but it is not apparent that the claimed expenses are for a gym programme. Mr Kimberley made no mention of physiotherapy in his report to Dr Ganjikunta of 13 September 2016.
As the defendant has taken issue with this head of damage, the claim must fail for lack of proof. There is a claim for travelling expenses, which is also unproved.

Summary

In summary, my assessment is as follows:
Non-pecuniary loss: $81,300
Past loss of earning capacity: $92,000
Interest on past loss of earning capacity:    $5,900
Past loss of superannuation:    $8,800
Interest on past loss of superannuation:      $560
Future loss of earning capacity:                 $131,400
Future loss of superannuation: $14,610
Past services (paid):    $4,200
Interest on past services (paid):  $420
Past gratuitous services: $10,160
Interest on past gratuitous services:    $1,710
Future gratuitous services: $13,000
Future treatment expenses: $10,000
TOTAL:$374,060

Advances

I was informed by counsel that the defendant's insurer had advanced the sum of $35,965.86 by way of loss of earnings. Mr Bourhill told me that these advances were made prior to 13 March 2015. As the plaintiff's claim for past loss of earning capacity (which I have allowed) is from 1 July 2015, it would seem to me that no reduction from the proposed award is indicated. In any event, I will hear counsel with respect to the effect, if any, of the advances on the final award.

Result

I assess damages in respect of the first claim in the sum of $374,060. The second claim must be dismissed.