Jackson v Flower No. DCCIV-97-1013 Judgment No. D27

JACKSON v FLOWER
[1999] SADC 27

Judge Herriman
Civil

The plaintiff’s claim is for damages for personal injury arising out of a motor vehicle accident at Glenelg South on 4 November 1994. The defendant has admitted liability and the matter comes before me for assessment of damages.

The Accident

On 4 November 1994, at 7.30 pm the plaintiff was the driver of a Ford sedan travelling in a northerly direction along Brighton Road and slowing to a halt at its intersection with Diagonal Road. Just prior to stopping, she heard the screeching of car tyres from behind. She had her three children in the car and her response to the noise was to turn her head to the left to look behind. As she was doing this, the defendant’s vehicle struck the rear of her car, forcing it into the rear of a vehicle stopped ahead of both of them.
Following the impact, the plaintiff alighted from her car and tried but could not open one rear passenger door. She was, however, able to release her children through the other one.
Although her car was ultimately adjudged a write-off, she was able to drive it home.

The Plaintiff’s Injuries and their immediate consequences

The plaintiff did not immediately notice any symptoms after the collision, but later that evening began to suffer headaches which radiated from the base of her skull down into her shoulder blades, her left shoulder in particular. Her general practitioner was then unavailable, so she saw a locum the next day and three days later, on 7 November 1994, saw Dr P Morris. He was the general practitioner whom she had consulted over four years, although it emerged from the evidence that she had also seen at least one other practitioner during that time.
In all events, Dr Morris observed she was tender over all cervical spinal processes. He recommended the application of heat, rest, the use of analgesics and that she undertake physiotherapy. He gave her a sickness certificate for work.

The plaintiff subsequently saw a physiotherapist, Mr van Loenan, but after a few months she felt that her visits had not brought her much relief, so she then consulted another physiotherapist, Annette Tonkin, whom she had previously seen for a neck problem. She was treated by Annette Tonkin and by her successor in that practice, Mr Peter Hibbert, for about six months but, again, found that that treatment did not provide her with much relief.
In the meantime, she had returned to Dr Morris on 7 February 1995. He recorded that she was having physiotherapy, but was still suffering from headaches and pain in her neck and left shoulder. He ordered x-rays, which suggested there was a level of minor degeneration of the cervical spine, and he recommended that she continue with physiotherapy and analgesics. He saw her several times subsequently about her injuries and about other matters. In June 1995 she reported to him that the physiotherapy had not worked and that she was still having difficulty with neck rotation to the left, muscular pain and headaches. On 31 October 1995, she told him of her referral by the defendant’s representatives to Dr Cornish. She was interested, then, in resuming physiotherapy. Apart from noting the plaintiff’s continuing complaints of pain, when he saw her about another matter on 9 February 1996, it would appear that Dr Morris did not treat her after then and, indeed, she apparently consulted another, more conveniently located, doctor.
Dr Morris was called by the plaintiff, spoke of these consultations and otherwise told the court that, prior to the accident, she had not complained to him of any neck symptoms.
At the time of the accident, the plaintiff had two jobs. Her principal employment was as an operations officer with Union Bulkships and it involved essentially clerical work. Otherwise, she was working on weekends as a waitress at Old Adelaide Inn at North Adelaide. As with much of her previous waitressing experience, this part time position principally involved function catering and it necessitated her setting up and clearing tables and carrying heavy trays of food and beverages during the course of every shift. She habitually carried them with her left arm, serving and retrieving with her right.
As a consequence of injuries suffered in the accident, she was absent from her clerical employment for only one or two days: she said she could take no more time off because of her workload. She did however miss two or three weekends’ work at Old Adelaide Inn and when she attempted to resume there experienced headaches and pain in her head and left shoulder. As that work involved continued use of her left arm and shoulder in particular, she felt she could not continue with it, so she resigned her position.
Following the defendant’s medico-legal referrals, her own solicitors referred her to Mr Gordon Morrison, orthopaedic surgeon. I will discuss his evidence later.
In 1997, the plaintiff sought assistance from a chiropractor, Dr B Setford. She saw him over about 18 months but, ultimately, that treatment was not providing long-term relief, so she abandoned it.
Presently, she experiences limitations with neck rotation to her right and, to a greater extent, to her left, with marked pain on the latter movement. She experiences a lesser pain with neck flexion and rotation to the right. The pain is felt by her in the vicinity of her collar bone, over her shoulder blade and extending down to her elbow and fingers on the left side. She has daily headaches, mostly situated at the base of the skull and extending down through the neck and the shoulder. She does not think her neck and headache problems have subsided since the accident.
She has continued in regular clerical employment since the accident, but has not returned to waitressing and feels she can no longer do it. She experiences some discomfort in her clerical duties, but tolerates it.
She has difficulty with housework, in particular lifting, hanging washing and any work above head-height.

Early History and Events Prior to and Since the Accident

The plaintiff was born in the United Kingdom in 1963 and emigrated to Australia with her parents when she was nine years old. She attended high school here, completing Year 12 very successfully, and soon afterwards obtained work in a receptionist/typist capacity. Subsequently, she worked as a secretary in an accounting firm and then for three years was a secretary with the Public Service Board.
She was married in 1981 at the age of 18 and had to leave her employment with the Public Service Board when her first child was born, in April 1984. Afterwards, she was unable to regain that position without undertaking qualifying tests, so she opted to commence work, as a kitchen hand, in a Chinese restaurant close to home. That was in October 1984. It was convenient work, as it was out-of-hours and allowed her to otherwise accommodate her child’s needs. She continued in it over the next three years or so and then transferred to similar work at St Francis Winery. Over that time, she gave birth to a second daughter and a son.
After working for some time as a kitchen hand at St Francis Winery, she trained as a waitress there and worked part-time for two years in that capacity. Her principal waitressing duties involved assisting with major functions conducted by her employer. That work proved to be seasonal, however, so she left that employer and commenced waitressing work at the Colonnades Tavern in early 1990.
By this time, her marriage was not in a happy state and, ultimately, she and her husband separated in April 1990. Her husband had worked at Mitsubishi until 1987, but had then left that employment and undertaken part‑time work as a truck driver.
As a result of her husband’s behaviour, the plaintiff decided to leave the children with him upon separation. She thereupon went to stay with her sister and in May 1990 obtained full-time secretarial work with the State Bank on a six-month contract. She later resumed some part-time waitressing employment with St Francis Winery in September or October 1990 but stayed there only a short while.
When the State Bank contract concluded in November 1990, she obtained a full-time position as a waitress at the Findon Hotel and remained in that job for some 18 months. It was her sole source of income between late 1990 and 1992, and she worked at it continuously, save for a short period when she cut her knee and was off for one week.
In about June 1992, she transferred her employment to the Ramada Grand Hotel at Glenelg, again as a waitress, principally serving at major functions. She stayed in that position for about 18 months. It was, at first, full-time, but, at the end of 1992, she obtained a full-time secretarial position with a shipping company TNT Seafast, so she first reduced her waitressing hours with Ramada Grand to part-time and ultimately ceased working there in January 1993.
In 1993, the plaintiff contracted Ross River Virus and was unwell for some time, absenting herself from work for one week.
At the end of 1993 or early in 1994, the plaintiff transferred her employment from TNT Seafast to Union Bulkships, again in a full-time position. She began there as an import clerk, but later became involved in the operational aspects of container shipping. She continued in that employment until late 1996.
She had last worked at the Ramada Grand in January 1993 but returned there over the Christmas period of 1993-94 to further supplement her income. In September 1994, she again sought supplementary income by accepting a position as a part‑time function waitress at the Old Adelaide Inn at North Adelaide.
Between September 1994 and the accident on 4 November 1994, she was working weekend shifts with Old Adelaide Inn, generally totalling about 12 to 15 hours. As with the work at the Ramada Grand and (to a lesser extent) St Francis Winery, her work was associated with functions and it involved carrying heavy trays and loads of food and beverages.
The accident then intervened on 4 November 1994, and I have already discussed its immediate impact on her work. Otherwise, she continued working with Union Bulkships until late 1996. At that time, she arranged to transfer to a position with Globe Star Shipping, albeit that it was not to commence until the New Year. She therefore resigned from Union Bulkships, but worked for six weeks for Mediterranean Shipping, before moving to Globe Star Shipping in early 1997. She remains there today.
She had been divorced from her husband in August of 1991 and in July of 1995, he left Adelaide, taking the children with him to live in Port Lincoln. He has not worked since going there. In consequence, the plaintiff has continued to maintain her children by wage expropriation (through the Child Support Agency) of 33 per cent of her income. In addition, she has been faced with the impost of flying to Port Lincoln for regular access to them or otherwise bringing them to Adelaide for that purpose. She has recently achieved some relief from this cost because of their ability, now, to fly unaccompanied and, further, because, close to the time of trial, the custody of her elder daughter was transferred to her.
Since August 1998 the plaintiff has lived in a defacto relationship with Peter Mander, at Grange. He is a part-time security officer, hospital employee and stevedore. They have known each other for several years. Mr Mander has, with him, two sons of his own from a previous marriage.
From about 1989, the plaintiff has been a keen body builder and, prior to the accident, attended various gymnasiums as often as five times a week. Indeed, it was at a gym that she met Mr Mander. She was continuing with that regime when the accident occurred. She said that, she attempted, six months afterwards, to resume her gym work and, indeed, has carried it on at various times and for various periods since that time, but, in the end, has had to give it up as it did not alleviate her pain and, in fact, troubled her.
She said that, apart from the knee injury mentioned above, she had had no other work injury or motor vehicle accident. She had been slightly asthmatic as a child, had had a tonsillectomy and appendicectomy and had had Ross River virus in 1993, as I have mentioned.
In cross-examination, she acknowledged that she had had physiotherapy and chiropractic treatment on two occasions prior to the accident, each time as a result of waking up with a stiff neck. She thought that the first time had been in about 1993 and the second in mid-1994 and said that on each occasion it had resolved within days of treatment. She, at first, denied having suffered from neck discomfort or a niggling feeling in her neck over a period of 10 years prior to the accident but, upon being pressed, weakened on this point, saying that, prior to the accident, her neck aches and niggles had not been constant, compared with her current state and that she really could not remember what they had been. She agreed she had probably told the physiotherapist, Tonkin, of a slow onset of neck pain over ten years, that had become constant by May 1994.
She agreed that, prior to the accident, she had suffered stress, headaches and migraine, and that these symptoms had been caused or contributed to by her personal family difficulties. She said she had left work early, on occasions, because of them, but said that was only a couple of times per year. She further acknowledged that she had had problems with her lumbar spine, which she related to child birth and which she did not think had worsened since the accident.
She conceded that she had also suffered from heart symptoms, resulting in work absences, and that they had likely been related to the stress arising from her family situation. She had received treatment for them and said that, at times when she was experiencing these symptoms, she likely would have refused extra waitressing work, had it otherwise been available to her.
There was then a period, after the accident, in mid-1996, when she was absent from work for a period of six weeks, due to glandular fever and she said that that condition had set her back for upwards of 12 months. She agreed that (had she otherwise been fit) she would not have been able to undertake waitressing work over that time anyway.
She was asked about the impact of her access obligations to her children on her ability to undertake waitressing work in the period since the accident. Her initial response was that she would have been able to accommodate access demands within the requirements of her part-time waitressing work. She then conceded, in answer to a “rolled-up” question, that the combined effect of her other health problems since the time of the accident, the arrangements involved in her taking regular access to her children and the demands of part time employment made it unlikely she would have worked as a waitress over the period between accident and trial, anyway. That answer was, prima facie, destructive of her entire claim for pre-trial economic loss, but I am disposed to give her the benefit of some doubt over her answer. Generally I found her to be an honest, unsophisticated person and somewhat suggestible. Obviously, prior to November 1994, the very same obstacles had been present and had not prevented her from carrying out some waitressing work and she certainly maintained elsewhere that her injuries from the accident had, since then, deprived her of that opportunity. Even the defence allowed in closing that there was at least a short period after the accident when such a loss was suffered.
As to the future, the plaintiff said that her new custody and access arrangements, the presence and support of Peter Mander and her belief that her other health problems have now been resolved, all meant that, but for the accident, she might have expected to be able to undertake regular part time waitressing work in the future.
Her employment with Globe Star is full-time and she receives a gross annual income of $30,100. She carries out the functions of a shipping officer in connection with bookings, exports and containers.
Mr Brian Thompson, the State manager of her current employer, gave evidence and spoke highly of her, describing her as his “right arm”. She fills in for other staff when they are on holidays and he said she was very conscientious. He is aware of her injury problems but is satisfied she performs her work and she will be retained so long as she continues to do so. He has supported her in undertaking courses and in that context the plaintiff gave evidence of the studies she is presently pursuing at Port Adelaide TAFE, where she is half-way towards completing a Diploma in Sales Marketing. She expects it will be completed in two years’ time.
When cross-examined on this particular matter, the plaintiff said she undertook the course as a means of replacing the income lost to her because of her inability to work as a waitress. On being further pressed, she agreed that her main aim in completing it was to further her career in the shipping area, in which she had progressed very well. It appeared she had been successful with her studies to date, she was clearly committed to such a career and she impressed me as a person likely to complete her undertakings.
It was suggested to her in cross-examination that she could work in lighter forms of waitressing not involving the heavy loads required for function waitressing. She agreed with that but thought she could not work for long periods, due to her shoulder and neck pain. I will discuss that issue in connection with the medical evidence.

The Plaintiff’s Separate Claims

It was not seriously disputed at trial that, in consequence of the accident, the plaintiff suffered an injury to her neck which resulted in a short absence from her principal employment, a brief, but longer inability to work as a waitress and some ongoing pain, suffering and loss of amenities.
The real disputes were as to the nature and extent of:
(1)... that injury;
(2)any incapacity for waitressing work resulting from it;
(3)... any contribution made to such incapacity by the degenerative condition of her neck.
In the context of those disputes, it is thus necessary to examine the plaintiff’s evidence, the corroborating lay evidence and the medical evidence led by her. I will do that and then discuss defence challenges to it.
I have already mentioned that the plaintiff’s employer, Brian Thompson, was called and he spoke highly of her work capacity, dedication, stoicism and future in the shipping industry. A friend and workmate, Rebecca Semple, spoke of the plaintiff’s participation, with her, in gym work prior to the accident, and of her observations of the plaintiff since then. She was not, herself, aware that the plaintiff had had any pre-existing neck problems or treatment.
Peter Mander was also called. He corroborated his and the plaintiff’s domestic arrangements and said how they had met through gym work and had known each other for about nine years. He was unaware of the plaintiff suffering from any neck, back or left arm problems prior to the accident, save for once when she had had a sore neck after sleeping. He disputed the suggestion that the plaintiff had suffered from the effects of glandular fever for up to six months. The plaintiff herself had said they had in fact lasted twelve months. In all this it should be borne in mind that, although they have known each other for eight years, he and the plaintiff had, at trial, been living together for only six months or so. Overall though, he corroborated the plaintiff’s evidence - as to her family arrangements, her work and her attempts to resume gym work.

Dr P Morris

The plaintiff’s general practitioner, Dr Peter Morris, spoke of seeing her between June 1990 and 1995. At one point in 1994, prior to the accident, she had been seen by a locum in his practice and it had been noted that she was on a prescribed medicine for her heart condition. His practice had no record of that condition and he concluded she must therefore have been seeing another practitioner. He was unable to say very much about that heart condition.

He confirmed her consultations with him after the accident, the taking of x-rays in February 1995, her physiotherapy through to some time before June 1995 and then its resumption late in that year. All in all, it appears from his notes that she consulted him, specifically with respect to the motor vehicle accident, on only four occasions. He thought that her complaints, on the first consultation and after it, were consistent with her having sustained a neck injury in the accident.
He confirmed that she had complained of migraines on consultations prior to the time of the accident, but he was not aware of her having suffered Ross River Fever in 1993 or 1994. There was no complaint of low back pain or references to painful menstrual periods at any time prior to the accident, nor was there any record of complaints of anxiety over family problems prior to that time.
He also confirmed that he had no record of her complaining about neck pain prior to the accident, nor of her obtaining chiropractic or physiotherapy treatment before then.
He referred to reports he had received from a physiotherapist suggesting that her neck injury was settling quickly and was minor.

Dr G Morrison

The plaintiff then called the orthopaedic surgeon Dr Gordon Morrison. He had seen her on two occasions, in May 1996 and August 1997 and reports were tendered in connection with those visits. In addition, he had reviewed the MRI scan undertaken in July 1998 and a further report of October 1998 was furnished in connection with this.
On his initial consultation, he recorded there was no significant medical history relating to the plaintiff’s neck. He thought her presentation straightforward, opined that she had sustained a musculo-ligamentous injury to her cervical spine in the motor vehicle accident and thought that it was unlikely there would be any significant improvement in her condition. He then estimated her loss of neck function at eight per cent and said she would have difficulty in resuming waitressing work, although he considered she could continue with her office work. He expanded upon that in his second report, saying that he did not think that continuing treatment would help her, that the type of waitressing work she had been doing would likely aggravate her symptoms and that he did not think she could return to it. She was otherwise capable of continuing with her office duties. He adhered to the same percentage disability.
In October 1998, after he had inspected the recent MRI scan of Dr Robert Hoile and considered further medical opinion, he noted the plaintiff’s “genetic pre-disposition to early degenerative disease” and her vulnerability to soft tissue trauma. He thought the accident had “rendered previously asymptomatic changes symptomatic”. Having seen that scan, he considered the level of degeneration quite severe and reassessed her ongoing residual disability as 15% loss of cervical spinal function.
In his oral evidence, Dr Morrison further commented that, given the evidence of the advanced degeneration of her cervical spine, there was a strong possibility her condition would worsen over time and that it might impact on her clerical employment, although he was not prepared to be firm on that. He thought the prospect of a cervical fusion could not be discounted, but that it was a remote one which he rated a five per cent chance. If undertaken, it would cost in the vicinity of $10,000 and would involve a three-month work absence. He did not think the plaintiff would benefit from any further treatment and, in his view and even allowing for degeneration, the plaintiff’s symptoms would not have been present to the same extent today, but for the motor vehicle accident. He agreed that headaches and referred shoulder pain were commonly associated with neck injury, but said that arm pain was less common. Nevertheless, he said that the latter complaint was, in this instance, probably a consequence of the plaintiff’s accident.
He also agreed that complaints of neck pain at the end of the day after performing secretarial duties were consistent with her neck condition and that waitressing work of the kind she had previously performed would aggravate her symptoms. Finally, he was asked if he could say, by reference to the MRI results, whether the accident had been responsible for the present neck and shoulder condition. He could not be definite he said, but taking the MRI scan and all the other diagnostic matters into account, he was of the opinion that, but for the accident, the plaintiff’s symptoms would not be present today “to the extent to which they are”.
Under cross-examination, he was challenged further on that topic and also as to the impact on his opinion, if it were allowed that the plaintiff had suffered neck symptoms prior to the time of the accident.
As to the first issue, he said that it was possible for the observed level of degeneration to remain present throughout a patient’s life without it becoming symptomatic, that degeneration may simply give rise to a vulnerability. Equally, he said, symptoms of degeneration can arise at some unpredictable time without intervening trauma. His opinion as to causation here, however, was based on the assumption that no neck symptoms had been present before the accident, that they had emerged after it. He said that if there had been a long history of symptoms pre-dating the accident, then the relevance of the accident would be whether and the extent to which it changed the level of those symptoms.
It was then put to him, and he answered: (p 127.30)
“Q...... If there was evidence that she was starting to have some neck pain before the accident, I ask you to disregard what you were told, then can I suggest that that is an indication that those symptoms are starting to develop and the motor vehicle accident is an added effect, but not the sole effect.
A.Yes, that’s correct.
Q.When we are talking about the type of presentation of symptoms, can I suggest that a good indication that those symptoms are now starting to present themselves before the accident, is if you are given a history that a patient had some niggling neck problems for some time, had some chiropractic treatment, had some short term relief from that, but gradually those symptoms of neck pain were becoming more constant to the point where there is an attendance perhaps requiring some physiotherapy, and perhaps requiring some neck and back strengthening exercises to try and slow down that progress of the pain increasing or becoming more constant. If that’s the history in this particular case or historically, can I suggest to you that there is a very clear sign that her degenerative changes are becoming symptomatic.
A...... Yes.”
Later, he agreed that he would advise against a person participating in any activity which would likely aggravate such symptoms and that that would include waitressing work which involved heavy lifting and carrying with the left arm. Certainly, he said he would advise against that work if the patient complained of pain associated with it.
He was then asked to assume the scenario quoted above (which I will, for ease of reference call “the defendant’s hypothesis”) and to comment upon the likely contribution of the accident to his 15 per cent disability assessment. He thought the level of contribution was probably about one half.
Otherwise, he said that, even in her present condition, the plaintiff would be able to undertake lighter waitressing work involving carrying lighter loads, such as two plates or two drinks, at a time with her left arm.
As to her office duties, he thought she could continue with them into the foreseeable future.
In re-examination, he was asked to assume the plaintiff’s pre-accident history was no more than that, on two occasions, she had woken with a stiff neck, had respectively seen a chiropractor (18 months before the accident) and a physiotherapist (six months before the accident) about it, that the chiropractor had provided short-term relief and that the physiotherapist had advised muscle strengthening. What then did he think of the contributing effects of degeneration? His response to that scenario was that neck pain was common in the community, that such a history was not unusual and it would not affect his original opinion that the motor vehicle accident had caused a 15 per cent disability.
It thus became of interest to further consider the evidence relating to the plaintiff’s pre-accident neck history and, indeed, that issue assumed more importance as the medical evidence progressed.

Dr B Setford

The plaintiff then called Dr Bernard Setford, a chiropractor of some 25 years’ experience. She had initially consulted him in February 1997, complaining of a stiff neck and headaches since the accident. He noted the major restriction was to the left side of her neck, and x-rays showed the presence of degeneration. He saw her on ten occasions up to July 1997 and on three occasions in the latter half of 1998. He thought his treatment had initially afforded her some relief from headaches and more freedom with neck movement, but noted that she continued to return as problems re-occurred. He, too, noted the “severe and longstanding degenerative changes” but did not have any record of being told that the plaintiff had suffered any symptoms prior to the accident. When asked to assume that some neck symptoms had been present beforehand, he agreed they were likely to be due to that degeneration and said that ordinarily such symptoms would become worse.
Like Dr Morrison, however, he agreed that two reports of neck pain six to 12 or 18 months before accident would not be uncommon for any person, even without the level of degeneration seen in this patient. He agreed that the extent to which the accident gave rise to her observed symptoms depended on the level of symptomatology experienced prior to its occurrence.

Dr G Clothier

The plaintiff then called Dr Gary Clothier, a consultant in rehabilitation medicine, who has been practising in that field since 1992. Dr Clothier thought it of significance that the plaintiff gave a history of looking to the left at the time of the accident because he considered that the forces then applied to the neck were atypical in terms of rear-end collisions. He spoke of some of the statistics relating to recovery from typical neck injury, but I did not find that evidence of particular assistance.
He observed, however, that the type of pain described by the plaintiff was consistent with the likelihood of a permanent injury. He had noted the plaintiff’s report of one episode of stiff neck, prior to the accident, which resolved after massage treatment, but he had no further information on that.
He went on to describe the movement restrictions he had measured with an inclinometer and the plaintiff’s pain response. He related the plaintiff’s waitressing difficulties to her neck symptoms and explained how the injury and resulting pain led to changes in her nervous system and to permanent pain response. He thought the plaintiff was not fit to resume her former waitressing duties because of the muscular attachment of the upper arm to the cervical and thoracic spine.
In his initial consultation of 29 April 1998, he had recommended MRI investigation, but had then estimated the level of impairment of her cervical spine at 12 per cent. Subsequently, when the MRI report became available, he observed that the median disc protrusion at the C3-4 level was consistent with her complaints of left upper cervical pain and her left-sided restrictions. He concluded that the motor vehicle accident was responsible for the C3-4 disc protrusion and that that protrusion was, in turn, responsible for the ongoing stiffness and limitation in her neck movement.
In a report of 4 August 1998, he expressed the assumption that the plaintiff had “pre-existing but asymptomatic degeneration of the cervical spine” and that the right-sided bulging at C5-6 and C6-7, observed in the MRI scan, was more likely to be related to degeneration.
He said that, even assuming there had been two reports of prior neck pain, one 18 months before the accident and the other six months beforehand, with the treatment I have previously described, that history would not change his opinion.
Under cross-examination, he agreed that the MRI findings, of themselves, did not disclose whether the observed defects were trauma- or degeneration‑related, but that he had reached his conclusion, about the complicity of the accident, based on his understanding of the circumstances of how it occurred, the location of the pain and other matters.
Whilst he thought the MRI scan was not necessarily suggestive of trauma or degeneration, he said that for there to be a disc protrusion, “there is usually an initiating event” (p 163). He agreed, however, that one could naturally occur. Ultimately, he acknowledged that his opinion was based upon the plaintiff’s evidence that she was asymptomatic before the accident and symptomatic after it.
The defendant’s hypothesis was then put to him but he was reluctant to comment on it without seeing the relevant physiotherapy or chiropractic notes. Whilst he remained reserved about that matter, he agreed that the symptoms described in that scenario were consistent with degenerative changes. He then responded in the following way (p 166):
“Q...... Earlier in your evidence where you say the history is important in knowing the onset of pain and the development of pain because that is when you subsequently form your opinion that the motor vehicle accident is causing the symptoms that are presented to you. My proposition is if that history is correct isn’t it at least equally likely that the symptoms that were presented to you at the time that you saw here were caused by the naturally occurring degenerative changes identified in the MRI.
A.Consistent with the picture you painted?
Q...... Yes, do you agree with that proposition.
A.Yes.”
When it was put to him that the plaintiff might be capable of returning to lighter waitressing involving carrying “one or two plates or one or two sets of drinks” (p 169), he thought she could do so if she took the drinks individually in one hand. To balance a tray of drinks would be beyond her.
Finally, he said that his disability assessment of 12 per cent was based on the AMA scale, but that if he were called upon to express it in general terms, he would have said it was closer to 15 per cent.
That completed the evidence of the plaintiff’s experts.
The defence called three experts, orthopaedic surgeon Dr Cornish, neurosurgeon Dr North and physiotherapist, Annette Tonkin.

Dr B L Cornish

Dr Cornish had seen the plaintiff in October 1995 and had reported in that month. She had told him that headaches, neck pain and an aching left shoulder were her main concerns. She had not related any history of previous neck problems and he had diagnosed soft tissue injury affecting a degenerative spine. He had thought there was a continuance of stiffness and discomfort in the left side of her neck and had recommended an exercise routine and manipulative assistance. He had thought it possible she might return to waitressing over a period of time and suggested a review in six months.
He had seen her again in July 1996 and noted her continuing complaint of neck pain and stiffness and the fact that she had carried on with physiotherapy until May 1996. She had also continued her clerical work but had not resumed waitressing. He had then considered her positive in outlook, he had noted mild limitation of movement in her neck and commented that the effects of the accident appeared to have lingered longer than he had expected. He had been thus ready to conclude that there was a small degree of residual loss of her neck function of about three per cent. He had not thought there was any significant potential for future deterioration.
Dr Cornish had provided a further report in February 1997 in which he commented on her responses, which he found “refreshingly positive”, and had concluded that he did not think she was absolutely excluded from waitressing.
Ultimately, he had reported again in August 1998, having had the advantage of reading the MRI scan. The importance in that report was his observation based on the scan that there were “well-established signal changes consistent with longstanding disc desiccation extending from C2 to C7 levels”. This was not a feature commented upon by the radiologist who performed the scan, as Dr Cornish expected would ordinarily have been the case. In his view, the plaintiff’s degeneration had been between moderate and severe and he had considered there was “quite a strong indication” (p 174) that those changes had taken place over a considerably longer time than two years. Contrary to Dr Clothier’s view, he had thought the occurrence of a disc protrusion was “part of the degenerative process” (p 174).
In giving evidence, he said that the plaintiff’s presentation to him was not inconsistent with the degenerative changes seen on the MRI, but that the determination of whether her symptoms were due to naturally progressing degenerative change or to the accident itself, would be assisted by considering her history.
He was then asked whether the extent of degenerative change disclosed by the MRI meant that, even if there had been no previous symptoms, they would ultimately appear. He commented (p 176):
“ ... the evidence (of the MR1) suggests that not only was the degenerative change occurring early in life, that it was well established and would almost certainly become symptomatic spontaneously.”
He was not prepared to estimate when those symptoms might have emerged, but for the accident, but he agreed that the type of waitressing work carried out by the plaintiff would quite possibly have aggravated them.
The defendant’s hypothesis about the plaintiff’s pre-accident neck history was then put to him and he agreed that, if that history were correct, then the symptoms disclosed in it were consistent with the presence of the degenerative changes that were subsequently identified. The following was then put to him (p 177):
“Q...... I appreciate this is in hindsight; are you able to give the court some idea, even if the accident had not occurred, what one might expect in terms of the progression of symptoms, if that history is correct; having regard to the degenerative changes you have identified.
A.In very general terms I believe it would become symptomatic. But pain as is well-known is an individual response, and also obviously the environmental aspects could impact on them.”

and further (p.178):

“Q...... I understand, in that if a person doesn’t know they have degenerative changes and is just aware of ongoing neck pain and isn’t sure why, but continues in their ordinary daily activities, using their arm to carry heavy weights, if they’re not aware of those changes they are going to do things to aggravate that condition.
A.Yes.
Q...... If they’re aware of those changes perhaps there are treatment modalities or medication which could, at the very least, slow down the process of the onset of more significant symptoms.
A.Yes.
Q...... Again, asking you to assume that that history is correct that she had a period of niggling neck problems becoming more constant, some chiropractic treatment provided short term relief only but it was still continuing. Having regard to the MRI results that you are aware of would you agree with me this lady would be likely to suffer ongoing symptoms in the neck region.
A.Yes.”

Dr Cornish then agreed that “activity involving heavy type work above her left arm” (p.178) would likely aggravate those symptoms. He considered that, even with them, there might be some waitressing functions which she could satisfactorily perform, although, not surprisingly, he was not prepared to be specific about those tasks. Irrespective of the accident, had she presented to him with a history equivalent to the defendant’s hypothesis and had he then had the benefit of the MRI results, he would have advised against her undertaking waitressing work of the kind she had been doing.

Under cross-examination, he agreed that, commonly, injuries of this kind resulted in neck and back pain stiffness and headache, and that some resolved quickly and others did not. He agreed that the plaintiff appeared to him to be genuine and that the complaints were due to organic causes. His three per cent assessment was in part guided by the AMA reference and he remained unable to put a time-scale on the progress of degeneration of her neck condition, even had the accident not occurred.

Dr J B North

The defendant called Dr J B North, neurosurgeon. He had examined the plaintiff on 21 August 1998. She told him she had been well until 1992, when she had developed stiffness in the neck and had consulted a physiotherapist. In 1993 she had seen another physiotherapist with a stiff neck. She then described the subject accident, her injuries and treatment and its impact on her waitressing work. Dr North concluded that the accident had aggravated pre‑existing degenerative changes in her neck and considered she had a disability level of about five per cent of function. He had had the advantage of having seen the MRI report before his first consultation. He noted it was suggestive of longstanding degenerative change and did not necessarily indicate a specific change attributable to the accident. He considered the plaintiff was fit to work as an administrative officer and as a waitress and thought she did not need further treatment, albeit that she would have episodic neck pain, stiffness and headaches.
In his evidence, Dr North commented that he would ordinarily have expected an accident of the kind suffered by the plaintiff to have “stirred things up for a couple of years but after that I would expect that the aggravation to have resolved (sic)” (p 207). By the time he saw the plaintiff, he thought most of her symptoms were attributable to degenerative change.
The defendant’s hypothesis was then put to him and he responded that it was consistent with the degenerative changes he had previously spoken of. He thought that, even without the accident, it was likely the plaintiff would have “run into trouble ... within a few years of her initial presentation in 1992” (p 207/208).
He was asked to consider whether the symptoms he observed in August 1998 were likely to be the result of the degeneration or the motor vehicle accident or both, and he commented that he thought they were more likely to be due to degeneration, but that he could not be dogmatic about it. He thought the plaintiff should avoid activities which were painful to her and that might have included carrying heavy loads above her shoulder. He thought that, by the time he saw her, she could have been carrying out waitressing work involving carrying one or two plates or drinks in either hand. But for the accident, he considered that the likely pattern for her would have been one of recurring episodes of neck pain, but he was not prepared to say her condition would worsen, unless she undertook aggravating activities.
The plaintiff’s counsel challenged him over the conclusion, expressed in the report, that the accident had aggravated pre-existing degenerative change and had resulted in “a small degree of permanent residual disability” (p 210). It was suggested that his evidence that the aggravation resulting from the accident would have lasted “a couple of years” only was inconsistent with that written opinion.
In response, he said he adhered to his written opinion. He said that he thought the plaintiff retained a five per cent permanent disability, that she would not have had it, but for the accident, but that most of her disability was due to degenerative change. Impliedly, I took that to mean that he thought her overall level of disability was greater than five per cent but he did not put a figure on that.
He said that, in fixing the five per cent figure, he used a scale published in the Medical Journal of Australia in 1992.
He agreed with the general proposition that it was notoriously difficult for doctors to predict the course of degenerative change, but said the presence of symptoms “gives added confidence” to any prediction (p 215).

Ms A Tonkin

100 The defendant then called Annette Tonkin, a physiotherapist of 20 years’ experience. She affirmed that she had been operating a practice at West Lakes in 1994 and that, in about 1996, she had sold it to a Mr Hibbert. The business had traded under the name of “Lakeside Manipulative Therapy” and she identified her process of keeping patient records.

101 Defendant’s counsel then produced to her, case notes and other materials, relating to the plaintiff and permission was sought for her to refer to those case notes for the purposes of refreshing her memory. At this point, plaintiff’s counsel exercised his right to cross-examine Ms Tonkin on that application. He effectively established that she had no independent recollection of seeing at any time the patient and that, even after reference to her notes, she was not assisted in recalling Mrs Jackson or any consultation with her. She said she had no independent memory of making the notes, albeit that the relevant ones were in her handwriting.

102 In consequence of that cross-examination, the defendant’s counsel did not pursue his application that Ms Tonkin give evidence by refreshing her memory from notes and, instead, sought to tender the particular note as a business record under section 45(a) of the Evidence Act. That application was strongly opposed by the plaintiff’s counsel but, ultimately, I allowed the tender of an agreed part of them (Exhibit D1) under that section and said I would give my reasons for doing so, which I now do.

Admissibility of Tonkin Notes

103 Put shortly, the defendant’s contention was that the patient record was an apparently genuine document purporting to be a business record and the person who prepared it had been called to give evidence on the matters contained in it, albeit that she had no independent recollection of seeing the patient or making it.

104 Plaintiff’s counsel’s objections to its tender were threefold:

(1)... that it did not constitute a business record, as a physiotherapy practice did not come within the relevant definition of section 45(a). That objection was faintly pursued and then, ultimately, conceded;

that the evidentiary weight of the document was slight and outweighed by its prejudice to the plaintiff;

that, in so far as the document contained expressions of opinion, it was inadmissible, anyway.

105 To enable me to properly consider the competing contentions, it became necessary that I receive evidence of the contents of the document de bene esse, and the parties agreed to that course. To aid my understanding of it, it was agreed Annette Tonkin should read it out, interpreting her abbreviations as she did. It is now appropriate that I recite the contents of that document as so interpreted and then deal with the objections of the plaintiff’s counsel as to what it said. For ease of later reference, I will assign a specific number to each line of the notes.

“Line 1:...... Aggravating factors    rotation increases neck pain    better in neutral
Line 2:Lateral flexion left at work is an aggravating factor
Line 3:..... Driving is OK    stiff with sustained flexion
Line 4:Migraine   query   cause   query   neck
Line 5:..... Night:- wakes two times per week
Line 6:Morning: can wake up with neck pain
Line 7:..... Previous treatment:- chiropractic 1 year ago    manipulation - short-term relief
Line 8:History: approximately 10 years query cause slow onset     now   more   constant
Line 9:..... Objective examination     poor posture    up straight    no pain
Line 10:Flexion full range    over pressure    pull along spine
Line 11:... Extension    30 degrees with mid-neck pain
Line 12:Rotation left 80 degrees gives right neck pain
Line 13:... Rotation right 90 degrees gives left neck pain
Line 14:Lateral flexion left gives left neck pain
Line 15:... Lateral flexion right gives left neck pain
Line 16:Palpation of the upper cervical spine on both sides was tender and tight
Line 17:... Treatment: I use my palpation techniques on the upper cervical spine grade 3 to P1 by 3 and the result was a decrease in neck pain with flexion and extension
Line 18:Hot pack for 10 minutes
Line 19:... Advice re strengthening back and neck muscles”

106 In dealing with his second objection, as to prejudicial effect and probative value, plaintiff’s counsel had no objection to a literal interpretation of the first three lines, but he argued that the fourth line was ambiguous, as it carried the implications that it was an opinion of the physiotherapist or a statement of the plaintiff or a mixture of both. However, having stated that challenge, he then conceded that it was more likely that the physiotherapist was recording the symptom of ‘migraine’ and questioning its cause and whether it was connected with the neck pain which had already been mentioned. I, too, find that to be a likely interpretation and that it has some probative value. It is consistent with the plaintiff’s own evidence that she consulted Ms Tonkin at about that time about her neck and that she had experienced stress headaches before the accident. I cannot see that there is anything prejudicial in that evidence, anyway.

107 As to line 5, the plaintiff’s counsel complained that the record that the plaintiff was waking on two nights a week was necessarily vague in that it did not express a period over which that had occurred. Whilst there was some force in that objection, the record had to be read in the context of the plaintiff’s own position in her evidence and as advanced by her counsel, namely, that she had consulted Tonkin as a result of waking up in the morning with a stiff neck. Whatever might be said as to the duration of that stiffness, the record amplified the plaintiff’s own evidence as to experiencing morning pain. The passage cannot be read in isolation, anyway, and, when read in conjunction with the sixth line, recording that the plaintiff can wake up in the morning with neck pain, the seventh line, referring to the chiropractic treatment, and the eighth line, inferring that there has been a ten-year history, I have little difficulty in finding that the fifth line has an evidentiary weight that is more than slight and certainly not outweighed by any prejudice to the plaintiff.

108 The same comments and reasoning apply to the sixth line, which was also criticised by the plaintiff’s counsel.

109 It was the eighth line to which defence counsel devoted the greater part of his objection. He queried whether the “History” of approximately ten years referred to the neck pain previously described, the migraines mentioned in line four, or the back pain, about which the plaintiff had spoken in her evidence. He suggested that the following words in that line were capable of referring to any of those topics. Whilst when read in isolation, that line was capable of referring to any of those matters, when read in the context of the whole record, its import was quite clear. The consultation, on the plaintiff’s evidence, and obviously from the notes related mainly to a complaint of neck pain, the recorded history mostly dealt with neck pain and so did the clinical observations and treatment. Conversely the notes made no mention of back pain and only one reference to migraine. I consider it more likely than not that, in referring to a history of 10 years, the author of the notes was referring to a history of neck pain.

110 The plaintiff’s counsel still challenged the deployment of question marks (substituted in the above text, for the word “query”) between the words “10 years” and the word “cause” and between the words “cause” and “neck”, and asked whether they were intended to qualify the words respectively preceding or following them. I did not find there was any uncertainty or ambiguity there, for these reasons:

(1)... the question mark was closer to the word “cause” and thus arguably was intended to qualify that word;

the author had already qualified the expression “10 years” by a symbol equivalent to the word “about” and it would be straining ordinary sense and the sequence of words and symbols to regard the question mark as imposing any further qualification on that estimate;

in her evidence, Tonkin explained that she used a question mark as an abbreviation for the word “query” and, indeed, it served that obvious function twice in the fourth line where its meaning was conceded by plaintiff’s counsel;
without the qualifying word “query” , the word “cause” does no work: it makes no sense to identify a “cause” as a “slow onset”.

111 Having determined that objection, I have little trouble in according proper sense to the rest of the eighth line, which I find in its natural meaning, records that over about ten years, for reasons which were unclear, the plaintiff had experienced a slow onset of neck pain and that it was now more constant.

112 The plaintiff’s counsel did not object to any of the balance of the record under this head.

113 I have thus far dealt with the probative value of each part of the record to which the plaintiff’s counsel objected and, on the basis of what I have said, I conclude that the evidentiary weight of each of those particular passages is more than slight, whether considered in individual lines or as a whole. Even though it may not be necessary for me to do so, I will then touch upon the claim that whatever evidentiary weight is attached to the document, it is outweighed by its prejudice.

114 That prejudice was squarely identified by the plaintiff’s counsel as arising out of the conflict between what the record may purport to say and the evidence the plaintiff had given about experiencing only two incidents of neck pain, resulting in one visit to a chiropractor and one visit to Tonkin. In that respect, defence counsel argued that the plaintiff had never been definite in her evidence about there being only two occasions when she had experienced neck pain or a stiff neck and, in consequence, the evidence in the notes did not directly conflict with anything she had said. It was not, therefore, prejudicial. I agree with that contention and a review of the transcript at pages 58 to 61 affirms that.

115 Finally, the plaintiff’s counsel argued that the notes contained opinion evidence and this should therefore be excluded (R v Perry (1981) 28 SASR 119). He said that the wording of line eight arguably contained opinion evidence and that if there was any doubt about it, the doubt should be resolved in his client’s favour.

116 Defence counsel said that a plain and ordinary interpretation of the words was to be followed and that did not suggest that they contained any opinion of the author. He said that, had the plaintiff wanted to pursue that line, an appropriate question could have been asked of Ms Tonkin, and it had not been.

117 I find against the plaintiff’s counsel on that contention as well. I find it more likely that the plain meaning of the words in line eight is, as I have set out and I do not consider that that reading of them constitutes any more than a record of what the plaintiff reported to Tonkin. It is not an expression of opinion.

118 For all those reasons, I therefore determined to allow into evidence, under section 45(a) of the Evidence Act, the notes of Annette Tonkin in the format agreed upon by the parties and recited onto the transcript.

The principal issues

119 That then summarises the evidence of the parties. In essence the plaintiff’s case was that in consequence of the accident she had suffered a neck injury which had led to continuing neck and shoulder pain with associated migraines and upper back pain, that that legacy was permanent and that she was left with a residual neck disability of about 15% with all its implications in terms of pain and suffering, loss of amenities, loss of enjoyment of life, the risk of future difficulties and in particular an inability to supplement her regular income up to trial and in thee future by carrying out part-time work as a waitress.

120 For his part, the defendant disputed these claims saying:

(1)... that the sole or substantial cause of any present neck disability and incapacity for waitressing work (which is not conceded anyway) is the plaintiff’s pre-existing cervical spinal degeneration which would have now been present to the same, or close to the same, extent, anyway, even without the accident.

even allowing that the accident has been responsible for symptoms inhibiting the plaintiff’s work capacity as a waitress in all or part of the period prior to trial, in reality the plaintiff would not have exploited any such capacity anyway due to her unrelated health and family problems.

even allowing the plaintiff has for some or all of the pre-trial period been inhibited in the exploitation of working capacity as a waitress, that inhibition has related to the heavier duties associated with function waitressing and not to ordinary waitressing duties.

that the plaintiff is fit to undertake all, or, at least, the lighter forms of waitressing duties in the future.

in all likelihood, and given the plaintiff’s intervening career progression, she will not (after a short delay) now suffer from any inability to exploit that same earning capacity.

121 Those are the issues upon which my decision must turn. In discussing them I will seek to avoid repeating the evidence I have already canvassed.

Competing Causes

122 On all the evidence, I am satisfied that the plaintiff had, for a period of about ten years prior to May 1994, experienced a gradual onset of neck pain which had, by the end of that time, become more constant. In making that finding I have had regard to the plaintiff’s acknowledgment of the two occasions she had to seek treatment for neck pain and her unwillingness to deny providing the history recorded, as I have found, in the notes of Annette Tonkin. As well I have taken into account the contents of Annette Tonkin’s notes, the evidence of the MRI Scan and the evidence of Drs Morrison, Clothier, Cornish and North as to the possible implications of that scan.

123 I find that notwithstanding that level of symptoms, the plaintiff had been over that period, and was, at the time of the accident, capable of exploiting her earning capacity as a function waitress and was indeed doing so in November 1994.

124 I am satisfied that in consequence of the accident, she suffered symptoms or an aggravation of symptoms of neck and shoulder pain and headaches which obliged her to abandon her part-time employment with Old Adelaide Inn. The plaintiff said this, I found her evidence to be credible and no medical evidence challenged it.

125 Allowing that, however, the vexed question is over what period until trial, did the consequences of that accident prevent the plaintiff from working in function waitressing or waitressing of any other kind.

126 Whilst Dr North considered the plaintiff was, as of the time he saw her in August 1988, fit for all forms of waitressing work, that was not a view shared by any of the other experts and I reject it. Their consensus and the plaintiff’s own evidence, all of which I accept, is that the plaintiff is and has been since the accident incapable of working as a function waitress.

127 Is she then capable of earning income as a waitress other than in function waitressing? Drs Cornish, Clothier and Morrison all thought she could carry out certain waitressing duties. Dr Morrison said it would be feasible for her to undertake waitressing duties at a restaurant or café where her work involved carrying only one or two plates or drinks at a time. Dr Cornish thought that there was a range of waitressing work she could perform, but, wisely I think, did not seek to accommodate it in any particular job description. Dr Clothier was less specific and optimistic than Dr Morrison.

128 I must say that I did not find myself greatly assisted by that evidence. None of those persons profess to be experts in the ergonomic demands, let alone the marketability of various combinations of waitressing skills and there was simply no other evidence enabling me to conclude that the range of tasks able to be performed by the plaintiff and the periods over which she might have been able to deploy them, qualified her for any ordinarily available waitressing work.

129 I am thus satisfied that for all practical purposes the plaintiff has been unable to earn income as a part-time waitress since the time of the accident and I find that it is unlikely she will be able to earn such income in the future.

130 That find still leaves open the question of causation - has that incapacity, which as I find, began as a result of the accident, continued to flow from it or has the progressive degeneration of the plaintiff’s cervical spine taken over as the inhibiting factor, or are both responsible and in what respective measures.

131 In considering that question I have had particular regard to the evidence of Drs Morrison and Cornish, both of whom I preferred on this topic, over the other experts. I found Dr North’s evidence on this matter unsatisfactory and Dr Clothier thought it an open question saying it was equally likely that each potential cause had been responsible. Drs Morrison and Cornish recognised the likelihood that the extent of degeneration coupled with the plaintiff’s pre-accident history of symptoms (as I have found them to be) rendered it likely that some part of the plaintiff’s symptomatology on examination was due to her degenerative state, independently of the accident trauma. Dr Morrison thought that level of contribution was about 50% but Dr Cornish was reluctant to comment upon when, over the period, and to what extent the purely degenerative factors played a part in incapacitating her for work. I preferred the evidence of Dr Morrison, generally, on this issue and I thus find that the accident and the degeneration have contributed in equal measure to the plaintiff’s present level of disability of 15%. It might be that, at an earlier stage, the contribution of the accident trauma was greater but for reasons I will discuss, it makes no practical difference. Even assuming the level of contribution to incapacity due to the accident has been at 50% since November 1994, I have accepted that the plaintiff has remained incapacitated for waitressing work since then and there was no evidence to the effect that a 7-8% loss of neck function would not, of itself, give rise to that incapacity.

132 I therefore find that in consequence of and since the accident the plaintiff has been incapacitated for part-time work as a waitress. Conversely and bearing in mind the evidentiary burden faced by the defendant on this [cf Purkess v Crittenden (1965) 114 CLR 164] I am not satisfied that any then present or emerging level of degeneration has, in the meantime, broken the chain of causation commencing with the accident.

Would the Plaintiff have exploited her work capacity pre-trial anyway?

133 The above findings do not imply the plaintiff is therefore entitled to be compensated for her lost earning capacity as a waitress over the entire period since the accident.

134 On that issue, the defendant contended that such capacity would not have been exploited, wholly or in part, because of:

(1)... her concession that she would not have sought to carry out that work anyway for a period of twelve months, around 1996-7 due to her bout of glandular fever - that concession was openly made by her and I will not therefore make any allowance for that period in the calculation of her lost earning capacity.

her acknowledgment that she had from time to time over the period suffered from unrelated heart, headache and stress problems and that she otherwise had access commitments on every eighth weekend and during school holidays, all of which would have combined to prevent her undertaking waitressing work.

135 I have already discussed this second matter and have expressed my reservations about the plaintiff’s concession. I am not prepared to find that in consequence of it, the plaintiff should not recover anything for her asserted past loss of earning capacity. In the nature of that work and having regard to her pre-accident performance of it, I find it was likely to have been spasmodic or seasonal anyway and I will make an award which reflects her lost opportunity to participate in it, in the pre-trial period. That award will recognise that she might not have carried on waitressing work for sustained periods and that there would have been times when it was absolutely denied to her.

Other waitressing work

136 I have already made my findings about this matter

Future waitressing work

137 For the reasons already expressed, I am not satisfied on all the evidence that she has the capacity to undertake any particular form of waitressing work in the future. Clearly she can perform certain tasks and for some periods but the evidence did not establish that that capacity level made her employable in any practical sense as a waitress, even on a part-time basis.

138 Further, again for the reasons already expressed, I find that the accident is presently the effective cause of that incapacity.

139 The more difficult question is whether, even without the accident, the plaintiff’s degenerative condition might, in any event, have curtailed her waitressing work at some time in the future. On this issue there was a fair consensus between Drs Morrison, Cornish and Clothier. All agreed that had the plaintiff continued to undertake aggravating activities, then deterioration might have been expected to progress, but otherwise there was no “natural progression of pain” (Dr Morrison, p 128) and a resulting disability could not be predicted. I did not regard that evidence as conveying that the risk of such a disability was so low as to be speculative [Malec v Hutton (1990) 169 CLR 638], but I did think those experts regarded it as a low risk.

140 I am thus not satisfied that the role of the accident in being the effective cause of the plaintiff’s ongoing disability would likely have been overtaken or curtailed by any inevitable process of degeneration, anyway. It follows from this, and I find, that the accident will permanently prevent the plaintiff from undertaking waitressing work in the future.

The extent of the plaintiff’s future loss of earning capacity

141 It was in this area that the defendant most successfully attacked the plaintiff’s case.

142 Whilst the plaintiff said that, but for the accident, she might have expected, as of now, to be earning regular part-time income as a waitress, she was then very frank in acknowledging that she has found a career in shipping, that she has a supportive employer (as the evidence of Thompson confirmed) and that she is half way through a Diploma in Sales and Marketing, a qualification which she and her employer see as furthering her career in the shipping industry. It was the loss of her waitressing income which first prompted her to undertake this course. She saw it as a means of replacing that income but now sees it more positively as her career path.

143 Although her evidence on this matter did not literally preclude her from asserting that, even with such a new career, she would still be seeking to supplement her income by waitressing work, she did not say that and indeed, as I have already noted, the tenor of her evidence was to the opposite effect, namely, that the extra income expected from her new career would replace her need for waitressing income and that her new career would necessarily be one largely committed to full-time work as a sales and marketing executive in shipping.

144 In calculating the plaintiff’s claim for future economic loss, I will therefore adopt the approach that she has lost the chance to exploit her capacity to work as a part-time waitress for a period of say three years from trial. Her evidence was that she anticipated completing her qualification in two years’ time, but I will allow a further year to cover her transition to that new career. I find that the need or desire for her to exercise that capacity to earn income as a waitress will, by then, have largely abated. I will nevertheless make some allowance for the fact of that loss and for the risks she will not attain that career or that she will still need to supplement her principal income for a longer period.

Generally

145 As to the balance of the plaintiff’s claim, there was little dispute. Clearly the assigning of numerical value to her non-economic loss involves a dissection of the contribution made to that loss and likely to be made to it, by the state of her spinal degeneration. I have already made a my finding about that and will assess that loss on the footing that 50% of what I find to be a permanent 15% neck disability, is attributable to the defendant’s neglect. The symptoms arising from that complaint were not seriously disputed.

146 The plaintiff lost only a few days work in her daily employment as a result of the accident and the weight of evidence favoured the view that her principal earning capacity as a bookings, operations officer in the shipping industry or indeed as a sales and marketing officer, is unlikely to be affected in the future. Nevertheless, I should make some small allowance for the risk that surgical intervention will be required and I will do that under the hearings of future economic loss and future medical expenses.

147 I assess damages as follows:

Non Economic Loss

148 For the damages properly attributable to the accident I assign a numerical value of 9. The relevant multiplier is 1430 hence the damages are $12,870.

Special Damages

149 It was agreed between the parties that the defendant has fully satisfied the plaintiff’s claims under this head.

Past Economic Loss

150 The period from accident to trial is 4.3 years. In calculating the loss I should first deduct one year for the episode of glandular fever. As to the balance I take account of the other work - inhibiting factors I have mentioned and, as well, one that I have not, namely, that the plaintiff’s history of supplementing her primary income with part-time employment, prior to the accident, was not a continuous one. In this latter respect I note that it comprised a period of one to two moths in late 1990, one month or so at the end of 1992 and then some few weeks prior to the accident. Such a record does not imply that, had the accident not occurred, the plaintiff’s supplementation of her principal income by part-time waitressing work would necessarily have been short lived or as spasmodic, indeed she said otherwise, but it is nonetheless a factor I should consider both in assessing her claims both for past and future loss of earning capacity.

151 Exhibits P4, D8 and D9 were tendered to assist in my assessment of this head of loss and a summary sheet and suggested calculation of that loss was submitted by the plaintiff’s counsel to assist my understanding of the evidence on this topic. The latter document calculated that the gross income likely to have been earned by the plaintiff, assuming she would have otherwise continuously supplemented her principal wage over the full pre-trial period by working as a waitress in the manner she was at the time of the accident, was an amount of $39,000 and that calculation accorded with the evidence. Plaintiff’s counsel then argued that the proper approach was to make a downward adjustment of that figure to take account of contingencies and income tax.

152 For his part the defendant urged an approach which allowed for a loss of this income earning capacity for an initial period after the accident, but then had regard to the discounting factors I have mentioned, the plaintiff’s own evidence on their likely impact and to his contention that, ultimately, the work inhibiting factor became the plaintiff’s natural spinal degeneration.

153 I have found against the defendant on this latter point and I will follow the general approach to this calculation suggested by the plaintiff, although not the detail of it.

154 I assess the plaintiff’s past loss on the basis she would likely have exploited this aspect of her earning capacity over periods aggregating some eighteen months in all between the date of the accident and the date of trial. Based on the gross sum of $39,000 this suggests a gross loss at $13,600. After allowing for income tax this becomes a net loss of $9,050.

155 I further fix a lump sum award of $3,500 in lieu of interest on this loss.

156 Future Economic Loss

157 On the basis of my above findings I assess the plaintiff’s loss under this head on the footing that, by the end of say three years, she will likely have established herself in a professional career as a Sales and Marketing person in the shipping industry and will not be looking to supplement her income from waitressing or similar work. Within that period and but for her injuries, however, I find she would likely have sought to augment her supplementary income through waitressing and, in the context of her altered family and living arrangements and her improved health, I find she would probably have been able to devote more time to that work than she had managed before trial.

158 I will allow for the usual favourable and unfavourable contingencies over that period and will assess her loss on the basis that she would likely have worked as a waitress for two of those three years. On the figures provided, her present nett weekly earning capacity is $137 and this yields a net loss for that period of $14,250 which I will write back to $13,000 for present payment.

159 In considering her loss of earning capacity beyond that three year period, I will make some allowance for the risk that her anticipated career will not materialise or otherwise prove as involving or rewarding financially as she anticipates, such that she might suffer, from time to time, from an incapacity to undertake that supplementary waitressing work. I will also make allowance for the usual contingencies.

160 In approaching this task I have considered the cases referred to by counsel including Walker v Briddon (unreported Full Court of Supreme Court of South Australia No 9412 - 1/9/86), Versace v Messer (1993) 172 LSJS 409, Gray v Motor Accident Commission 158 ALR 485 and Malec v Hutton (above).

161 I have derived most assistance from the latter and in assessing this aspect of the claim I take account of the following matters. There is:

(1)... a high probability the plaintiff will within three years qualify and establish herself in a career as a Sales and Marketing person;
(2)a high probability she will not thereafter seek to supplement her daily income from part-time work;
(3)... a low probability that, but for the accident, natural degeneration of her spine would have inhibited her capacity to work in some form of waitressing in the future;
(4)a low probability that the plaintiff will need to undertake a spinal fusion operation with its resulting work absence.

162 In this process I cannot on the evidence express the third ‘probability’ in percentage terms, nor can I arrive at an overall loss percentage, combining these and all the usual contingencies. In this quandary I derive some comfort from the remarks of their Honours Justices Brennan and Dawson in Malec v Hutton. Whilst their Honours agreed with the orders proposed in the majority judgment in that case they commented (at 640):

“Damages need not be assessed by first determining an award on the footing that the hypothetical situation would have occurred and then discounting the award by a selected percentage. Damages founded on hypothetical evaluations defy precise calculation.”

163 Doing the best I can, I allow a sum of $15,000 for this further loss. The total future economic loss assessment is thus $28,000.

Future Medicals

164 The plaintiff urged me to make a provision for the risk of the plaintiff requiring spinal fusion surgery and for future treatment, including physiotherapy, and analgesics. I do not regard surgery as so low a risk as to be merely speculative, but it is still a low risk. I will allow $2,500 under this head.

Summary

165 I thus award:

Non Economic Loss $12,870

Past Economic Loss 9,050

Future Economic Loss 28,000

Future Medical Expenses 2,500

In lieu of interest 3,500
_______

$55,920

166 There will be judgment for the plaintiff in the sum of $55,920 inclusive of an award in lieu of interest and I will hear the parties as to costs.

[1999] SADC 27

18 March 1999