Jakovljevic v Jakovljevic
[2009] WADC 26
•25 FEBRUARY 2009
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: JAKOVLJEVIC -v- JAKOVLJEVIC [2009] WADC 26
CORAM: SLEIGHT DCJ
HEARD: 20-22 JANUARY 2009
DELIVERED : 25 FEBRUARY 2009
FILE NO/S: CIV 1754 of 2007
BETWEEN: BILJANA JAKOVLJEVIC
Plaintiff
AND
RATKO JAKOVLJEVIC
Defendant
Catchwords:
Assessment of damages - Whiplash injury - Neck pain and headaches interfering with ability to sit and concentrate - Assessment of loss of earning capacity - Global award for loss of earning capacity - Depends on its own facts
Legislation:
Motor Vehicle (Third Party Insurance) Act 1943
Result:
Damages awarded of $36,810.00
Representation:
Counsel:
Plaintiff: Mr K J Bradford
Defendant: Mr R Sands
Solicitors:
Plaintiff: Bradford & Co
Defendant: Talbot Olivier
Case(s) referred to in judgment(s):
A v D (1994) 11 WAR 481
Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649
De Blank v Stemberger [2000] WASCA 358
Hendrie v Rusli [2000] WASCA 249
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Trigwell v Trigwell (1997) 18 WAR 83
Villasevil v Pickering (2001) 24 WAR 167
SLEIGHT DCJ: On 5 September 1997 the plaintiff, Ms Jakovljevic was an 8‑year‑old passenger in a vehicle driven by her father that was involved in a collision. Ms Jakovljevic's date of birth is 9 February 1989.
Ms Jakovljevic makes a claim for damages for personal injuries suffered in the accident. Liability is admitted and accordingly the trial of this matter relates to the assessment of damages only.
Ms Jakovljevic contends that she suffered a musculo‑ligamentous strain injury to the cervical spine (whiplash type injury) and as a result has suffered and continues to suffer the following disabilities pleaded in par 6 of the statement of claim:
"6.1Chronic headaches aggravated by studying and examinations;
6.2Chronic neck pain and stiffness;
6.3Reduced sitting tolerance;
6.4Reduced capacity to study and/or concentrate for prolonged periods;
6.5Restricted ability to participate in sporting activities."
The plaintiff also pleads a loss of earning capacity (par 11 of the statement of claim) as follows:
"11.1By reason of the injuries and permanent disabilities, the plaintiff's ability to study and achieve her desired grades for tertiary entrance was compromised.
11.2The plaintiff continues to suffer from chronic headaches which affect her ability to study and her capacity to work on a full-time basis.
11.3The plaintiff is currently carrying out tertiary studies at Curtin University in the field of psychology and has difficulty in attending and concentrating through prolonged lectures.
11.4The plaintiff will be unable to work in a full-time capacity upon obtaining her psychological qualification and accordingly will sustain a loss of earning capacity as a result."
The defendant denies the plaintiff has suffered any injuries or disabilities as a result of the accident and denies that the plaintiff is entitled to any damages.
Central issues
The central issues in this trial are as follows:
(1)What injury, if any, did Ms Jakovljevic suffer in the accident?
(2)What is the nature (if any) of permanent disabilities suffered by Ms Jakovljevic?
(3)What, if any, damages for loss of earning capacity should be awarded to Ms Jakovljevic?
(4)What, if any, damages for future medical treatment should be awarded to Ms Jakovljevic?
(5)What, if any, damages for non-pecuniary loss should be awarded to Ms Jakovljevic?
What injury, if any, did Ms Jakovljevic suffer in the accident?
The starting point in considering what injuries Ms Jakovljevic suffered in the accident involves a consideration of the evidence concerning the circumstances of the accident. According to her evidence she was a front seat passenger wearing a seat belt in a vehicle driven by her father. They were driving to Ms Jakovljevic's grandparents' house in Spearwood, proceeding south along North Lake Road. It was raining. At one point her father braked but was unable to prevent a collision with a vehicle moving in the same direction ahead of them. Ms Jakovljevic estimated that the speed of their vehicle just prior to collision was 70 kilometres per hour. After her father exchanged details with the driver of the other vehicle, they continued with their journey to the grandparents' house. Ms Jakovljevic's mother attended the grandparents' house later and took them home. Ms Jakovljevic stated in her evidence‑in‑chief that the motor vehicle in which she was a passenger was a write‑off but in cross‑examination admitted that she was not aware of the nature of the damage to the vehicle. Her recollection was that after the accident the vehicle was not used again by her father. She was unable to explain why Mr John D H Bell (orthopaedic surgeon) in a medical report dated 29 June 2005 stated that "there was about $2,000 worth of damage to their vehicle and he fixed it himself". She agreed that when she attended to be examined by Mr Bell that her mother was also in attendance, which suggests this information possibly came from the mother. The evidence of Ms Jakovljevic is that her father did not suffer any injury at the accident but this is of little assistance in assessing the severity of the collision.
Given the age of Ms Jakovljevic and there being no independent reliable evidence as to the circumstances of the accident, I am unable to reach any conclusion as to the force of the impact.
Ms Jakovljevic's evidence was that after the accident her mother took her for treatment with a chiropractor. No evidence has been presented to me from the chiropractor confirming this chiropractic treatment or the nature of it.
According to the evidence of Dr Christopher Chin, general practitioner, Ms Jakovljevic first consulted a colleague, Dr Virginia G Longley of the Cockburn Medical and Dental Centre on 11 September 1997 (approximately two months after the accident) and was first seen by Dr Chin on 17 November 1997.
In a report dated 10 February 1998 Dr Chin stated as follows:
"On examination she was found to have tenderness in the bilateral sternomastoid muscles, cervical facet joints between C2 and C4, tenderness in the trapezius muscles and scalene muscles. A diagnosis of whiplash injury to the neck was made and the patient was given a course of laser acupuncture."
In 1999 Ms Jakovljevic was referred to Mr Michael Lee (neurosurgeon) who arranged for an MRI to be taken of Ms Jakovljevic's cervical spine and head. This excluded congenital anomalies and other causes of the neck pain and headache which Ms Jakovljevic complained. The MRI did reveal a slight broad base bulging of the C4/5 discs.
Ms Jakovljevic was referred to Dr Ross Goodheart for a medico‑legal assessment which took place on 15 January 2008. In a report dated 15 January 2008 Dr Goodheart stated as follows:
"In my opinion she has sustained a predominant soft tissue injury to her cervical spine. There are associated muscle contraction headaches.
Ms Jakovljevic's history, examination findings and the review of the medical reports suggests that these ongoing symptoms are directly related to the motor vehicle accident on 5 September 1997."
In the same report Dr Goodheart noted that Ms Jakovljevic complained that the headaches were predominantly occipital in location but radiated through to the frontal head region. In his evidence in court Dr Goodheart stated that the predominantly occipital nature of the headaches was consistent with a cervical soft tissue injury.
Ms Jakovljevic was referred to Mr Barrie Slinger, orthopaedic surgeon, for a medico‑legal assessment. Mr Slinger examined Ms Jakovljevic on 23 March 2007 and in a report dated 28 March 2007 he described his diagnosis in the following terms:
"The diagnosis of your client's ongoing symptoms is that of a soft tissue nature to the proximal spine."
Ms Jakovljevic was also referred by the defendant to Mr John D H Bell (orthopaedic surgeon) for a medico‑legal assessment. In a report dated 24 December 2008 he stated his diagnosis as:
"… soft tissue injury of cervical spine region. Musculotendinous and ligamentous in nature with no radiculopathy evidence. Mild grade."
Ms Jakovljevic was also referred by the defendant to Dr John Suthers, occupational physician, for a medico‑legal assessment. Dr Suthers examined Ms Jakovljevic on 13 June 2008. Dr Suthers in a report dated 13 June 2008 stated his diagnosis in the following terms:
"Ms Jakovljevic has a long history of chronic generalised intermittent headaches. They may or may not be associated with neck pain or spinal injury. Investigations have not revealed any pathology. With the passage of time her condition has settled and she is now coping quite well with her chosen studies in psychology."
Dr Suthers was called as a witness for the defendant and stated that in his opinion any soft tissue injury caused by the accident would have healed completely and any ongoing headache problem was in the nature of tension headaches and not related to the accident.
Ms Jakovljevic in her evidence described a history of neck pain and headaches back to the date of the accident. She stated that the headaches were rarely without neck pain.
I find that the plaintiff, Ms Jakovljevic, suffered a soft tissue injury to the cervical spine in the nature of a whiplash injury and continues to suffer ongoing disabilities. In reaching this conclusion I prefer the evidence of Mr Slinger, Dr Goodheart and Mr Bell to that of Dr Suthers. I accept the evidence of Ms Jakovljevic as to the history of her symptoms. This history provided, together with Dr Chin's original diagnosis and the history of almost continuous treatment back to the date of the accident [details of which are provided later in this decision], are supportive of the diagnosis that Ms Jakovljevic suffered a soft tissue injury to the cervical spine causing neck pain and related headaches.
What is the nature (if any) of the disabilities suffered by the plaintiff?
Ms Jakovljevic's evidence was that since the accident she has lived a very active and normal life subject to episodes of neck pain and headaches.
The history and extent of Ms Jakovljevic's disabilities can be conveniently considered under various headings.
2(a) Sporting activities
At the age of 7 or 8 Ms Jakovljevic commenced karate lessons and by the age of 15 to 16, when she stopped, she had attained a brown belt (the penultimate level of skill, the highest being a black belt). The karate lessons involved about one hour each Wednesday and Saturday. She also played netball which she commenced at the age of about 12 and played two to three times per week. From the age of 7 or 8 she also took up Serbian folk dancing which she continued until the age of about 15 or 16. She also participated in indoor beach volleyball on a Tuesday night. Her accident injuries did not prevent her from participating in and continuing with any of these sporting and recreational activities.
2(b) School performance
Ms Jakovljevic's school reports indicate that up until Year 11 she performed very well academically at school and had minimal time off. At the commencement of Year 11 she was requested to select her TEE subjects, which she did, hoping ultimately to pursue a career in journalism.
In Year 11 she obtained generally good results except in chemistry for which she received an E (classified as "inadequate"). In Year 12 she took up human biology as she concluded she may not get a sufficiently high TEE entrance mark to pursue a tertiary course in journalism and decided to pursue instead a career in child psychology. In Year 12 her semester two report indicates that she either received a B or C for the subjects studied by her. It was submitted that this was a decline in academic results compared with earlier years due to disabilities arising from her accident injuries. However, in Year 10 in semester two her results were either Bs or Cs in academic subjects and it was generally in the non-academic subjects she achieved higher results. Ms Jakovljevic's final TEE results were not tendered into evidence but she says her results were disappointing. However she was able to obtain entry into Curtin University in an undergraduate degree in child psychology.
No evidence was presented by the plaintiff Ms Jakovljevic from her school teachers indicating that in their opinion Ms Jakovljevic had underachieved in Years 11 and 12 at school. On the contrary, all of the comments in the school reports were very positive.
Ms Jakovljevic's evidence was that during Years 11 and 12 she experienced an exacerbation of her neck pain and headache problems which caused interruption to her studies, lead to time off school and resulted in her seeking medical treatment. Details of the time off school and medical treatment are detailed later in this decision.
2(c) Treatment
Immediately after the accident Ms Jakovljevic underwent chiropractic treatment. She first consulted a medical practitioner, Dr Virginia Longley, of the Cockburn Medical and Dental Centre on 11 September 1997. Subsequently she was seen by Dr Longley's colleague, Dr Christopher Chin on 28 November 1997 who commenced administering laser acupuncture treatment which he has continued to administer to Ms Jakovljevic intermittently since the accident.
In 2005 (Year 11 of Ms Jakovljevic's schooling) Ms Jakovljevic experienced an exacerbation of her neck and headache problems and was referred by Dr Chin to Mr Michael Lee (neurosurgeon). Mr Lee arranged an MRI which excluded any congenital cause of the headaches. Mr Lee then referred Ms Jakovljevic to Dr Lakshmi Nagarajan (a paediatric neurologist at Princess Margaret Hospital). Dr Nagarajan saw Ms Jakovljevic on two occasions in 2005 and two occasions in 2006. He was unable to find any specific cause of the headaches and referred Ms Jakovljevic to a clinical psychologist, Ms Meredith Jordan in June 2006 requesting that Ms Jakovljevic be provided with assistance in relation to relaxation techniques/stress management, if appropriate.
A year by year summary of medical treatment is as follows:
| 1997 (year of the accident) | 12 consultations with a chiropractor 1 consultation with Dr Longley 8 consultations with Dr Chin |
| 1998 | 5 consultations with a chiropractor 1 consultation with Dr Chin 1 consultation with Dr Longley |
| 1999 | 3 consultations with Dr Longley 2 consultations with Mr Lee |
| 2000 | 8 consultations with Dr Chin |
| 2001 | 4 consultations with Dr Chin |
| 2002 (commencement of high school) | 2 consultations with Dr Chin |
| 2003 | 1 consultation with Dr Chin's colleague |
| 2004 | Nil |
| 2005 (Year 11) | 2 consultations with Dr Chin 2 consultations with Dr Chin's colleague (Mr Lee) 2 consultations with Mr Michael Lee (neurosurgeon) 2 consultations with Dr Nagarajan |
| 2006 (Year 12) | 1 consultation with Dr Chin 2 consultations with Dr Nagarajan 3 consultations with Meredith Jordan |
| 2007 (first year at university) | 2 consultations with Dr Chin |
| 2008 | Nil |
It is clear from the summary that Ms Jakovljevic's need for medical treatment had tapered off to being negligible prior to the commencement of Year 11, but with the greater demands and stress of studying for her TEE she experienced problems and an increase in symptoms.
Ms Jakovljevic in her evidence stated that in Years 11 and 12 she experienced headaches almost every day but before this she said she generally experienced headaches a couple of times a week. She said her headaches affected her ability to concentrate. She could only study for one to two hours and then needed a break.
Also she said that due to neck pain and headaches she had time off school. This is confirmed in school reports which indicate as follows:
2005 (Year 11) (Semester 2) 8 days
2006 (Year 12) (Semester 1) 10 days
2006 (Year 12) (Semester 2) 7½ days
After leaving school her need for treatment has again tapered and has almost returned to non-existent.
2(d) Part-time work history
Ms Jakovljevic has from an early age engaged in part-time employment. In 2004 (when she was about 15 years of age) she commenced employment at Domino's Pizza (Domino's). She worked at Domino's for just under 12 months. It involved about 10 hours a week. Her next job was as an umpire at indoor beach volleyball which involved one night a week for a three‑hour shift. She then obtained work at Subway making sandwiches and cleaning. There was some contention as to when she started this position. In cross‑examination she had stated that she thought she started at Subway in Years 11 or 12 (T 45), however her evidence was that she held the position for about 10 months. Income taxation records indicate that she ceased employment on 3 October 2007 at Subway which suggests that she commenced employment in about January 2007 which is after she had finished school and before she started her university studies. On the balance of probabilities I accept that this is correct. The position involved working six hour shifts on days which were not set. The total number of hours she worked was about 25 hours per week. In June 2007 Ms Jakovljevic commenced work at the Metropolis nightclub in Fremantle. This was during her first year at university. She generally worked on a Saturday night at 9 o'clock and worked through till about 3 o'clock in the morning. Her duties were to stamp people's hands who were entering the nightclub. In December 2007 she commenced work at Proud's Jewellers working Monday, Wednesday and Thursday. She said this involved about 20 hours per week.
2(e) Current circumstances
Ms Jakovljevic has completed two years of her four‑year university course in child psychology. Her academic results are satisfactory, she has passed all units and received credit passes in eight of the 15 units completed by her to date.
Ms Jakovljevic continues to work at the Metropolis nightclub and also Proud's Jewellers. She has a boyfriend and undertakes normal social activities with him and her friends. She attends a gymnasium three times a week using mainly cardio machines, being bicycles and a treadmill. She stated in her evidence that she is limited by what she can do at the gymnasium by neck discomfort.
Ms Jakovljevic stated her neck pain and headaches do not interfere with her part‑time employment at Proud's Jewellers or Metropolis nightclub. However, looking down at jewellery displays in glass cabinets for lengthy shifts at Proud's Jewellers does give her a sore neck which can develop into a headache.
In terms of her university studies, Ms Jakovljevic says she is able to cope because of the flexibility that exists in the university programme. The longest lecture goes for two hours. She says that she avoids attending back to back lectures (that is, four hours in total). She is able to do this because all of the lectures are on the Internet and they can be downloaded and viewed at her own convenience. She also stated that she sits in the centre of the lecture theatre when attending lectures so that she does not have to look at the lecturer from an angle. She generally tries to study in blocks of about 45 minutes and then takes a 10 to 15 minute break before continuing studying.
Ms Jakovljevic stated that during university term she spends approximately 15 hours per week attending lectures and 25 hours per week studying. This amounts to a total of 40 hours per week. In addition to these lecture and study commitments she works at Proud's Jewellers for a nine hour shift on Monday, a four hour shift on Wednesday and a six to seven hour shift on Thursday. This is a total of almost 20 hours per week. Further, she works at the Metropolis nightclub for a six hour shift each Saturday.
Ms Jakovljevic could not recall the last time she attended medical treatment. She says that she takes Panadol and Nurofen about three or four times a week. She also uses heat packs, Voltaren gel and massage from her mother when she experiences pain.
2(f) Medical assessments of disabilities
Mr Lee in a letter to Dr Chin dated 18 May 2005 stated as follows:
"Examination revealed no abnormality in the sense that she had a full range of cervical movement without muscle spasm. She did experience some tenderness in the suboccipital region predominantly on the right-hand side. This pain is intermittent but obviously still troubles her. She does get some relief from your treatment. I'm not sure that there is anything more that can be offered to her in the way of treatment but I must say that I would have thought that by now, nearly 8 years after the accident, she would have recovered and I think for completeness sake it is appropriate to repeat the MRI of her cervical spine to confirm there has been no change over the last 6 years."
Mr Lee obtained a further MRI and reported in a report dated 8 June 2005 that the results were within normal limits. He did comment that there was a slight broad base bulging of C4 and 5. However, Mr Barrie Slinger, orthopaedic surgeon, in a report dated 28 March 2007, stated that the disc bulge may have been pre-existing and in any event a subsequent MRI showed no abnormality.
In a report dated 19 June 2006 Ms Meredith Jordan, psychologist, stated as follows:
"In my opinion Biljana does not present with any mental health issues at this time. According to (sic) Biljana, her pain is aggravated by the demands of school, work and study and by recent physiotherapy. Such a presentation occurs in the context of Biljana being a high achieving student in Year 12, which has increased her study hours, a medico-legal settlement due shortly and her mother's desire to assist her daughter.
Of note, Biljana has a number of strategies to cope with her pain which she uses effectively to minimise its impact on her functioning at home and school."
Mr Barrie Slinger in a report dated 28 March 2007 stated as follows:
"EXAMINATION
To examination she was a pleasant young lady of slim build, pleasant disposition and presented in an entirely appropriate fashion.
In the spine as a whole there was no asymmetry, no muscle guarding, tenderness was present over the area of the trapezius bilateral in the proximal spine, and over the mild and lower thoracic segments in the posterior midline.
In the cervical spine movements were full with slight discomfort at all extremes.
At the shoulders there was no wasting, no tenderness and movements were full and painless.
In the remainder of the spine, movements were full with slight discomfort on extension and lateral flexion."
Mr Slinger in the same report recommended that Ms Jakovljevic maintain a regular stretching and strengthening programme and avoid provocation. This included avoiding placing her head in one position for any length of time and maintaining regular stretching, and local measures such as heat, massage and mobilisation, along with acupuncture and chiropractic treatment. These treatments need not be maintained on a regular basis, but best reserved for times of symptomatic exacerbation. He also recommended counselling to assist with dealing with managing her situation in relation to pain.
His prognosis (p 5 of the report) was as follows:
"In respect to prognosis, unless some change can be effected by the abovementioned methods, it is most likely that your client's symptoms will continue."
Mr Slinger agreed that her symptoms may have compromised her ability to study and to have affected her performance in exams.
Mr Slinger further stated:
"I've indicated in the preceding your client's prognosis, her symptoms are likely to continue, however, I do believe that the major direction of her management, as detailed in the preceding, should include an ability to manage her situation to minimise the effect that her neck pain and headaches have upon her day to day activities, as with alternative pain management techniques."
Mr Slinger was a witness called by the plaintiff and he stated in his evidence that he had re‑examined Ms Jakovljevic on 19 January 2009. He found that Ms Jakovljevic no longer had any tenderness and that she had a painless range of movement in her cervical spine. This was an improvement on her condition as he had found her on his previous examination back in March 2007. However, he stated that this improvement did not affect his prognosis.
Mr Slinger stated that he had been told by Ms Jakovljevic that her headaches varied. Sometimes they occurred every day and sometimes she may be free of headaches for a week. Her neck pain was aggravated by certain activities. He believed that if she avoided these activities she would not experience any aggravation. He stated he would expect persons with a soft tissue injury to the cervical spine to aggravate their symptoms by having their head in one position – whether it was due to driving a car, or being flexed over a desk at a computer or writing.
Mr Slinger also stated that the progress of soft tissue injuries varies from individual to individual. He stated that invariably it does not get worse after the first month or so. It usually improves. Sometimes the improvement plateaus with the individual continuing to suffer symptoms. Sometimes it improves to the state where there are few, if any, symptoms. However, the outcome is variable.
Dr Goodheart saw Ms Jakovljevic in his rooms on 15 January 2008.
In his report dated 15 January 2008 he described her symptoms as follows:
"At the time of my review she was troubled by midline and right‑sided neck discomfort. Occasionally this discomfort would radiate towards the right shoulder but not into the arm. Neck pain was made worse by activities such as study or prolonged periods of static posture. Prior to her TEE she had been involved in some sporting activity, including karate. This would exacerbate her neck pain. She found that her neck pain would respond to laser acupuncture (in the last five to 10 years) and anti-inflammatory therapy. She was no longer taking regular anti‑inflammatory medication. She would take occasional Panadol therapy."
Dr Goodheart further reported that that on his examination on 15January 2008 he found "some restriction of neck movement, particularly with lateral flexion to both sides".
Dr Goodheart concluded that Ms Jakovljevic's symptoms would persist for the foreseeable future. He concluded she was "left with a permanent loss of the full efficient function of the cervical spine".
Dr Goodheart was called as a witness by the plaintiff and stated in his evidence that a part of his discipline was to ascertain the causes of headaches in people. He had been doing so regularly for 20 years. Dr Goodheart stated that the evidence suggested that Ms Jakovljevic sustained a neck injury and she was continuing to have intermittent muscle spasms in the neck. He said that this often could be associated with a muscle contraction headache. He stated a muscular contraction headache that originated predominantly in the occipital part of the head was consistent with a cervical trigger and would be consistent with a cervical soft tissue injury.
Mr Bell saw Ms Jakovljevic in February 2000 when Ms Jakovljevic was only 10 years of age. In the report he stated his findings on examination as follows:
"She has reasonable general posture and muscle tone. She has a full range of movement of all the joints of her upper and lower limbs. There are no positive neurological signs in the upper or lower limbs. Range of movement of her cervical spine is fairly full with more discomfort on extension and rotation to the right. She indicates tenderness diffusely in the mid and upper trapezius muscles on both sides. She has good general posture and can squat and walk well on her heels and toes."
In the same report he went on to state as follows:
"It is most unusual for a child to have ongoing symptoms of this nature. There may well be significant functional factors. It is difficult to totally rule out all presence of some mild possible underlying musculoskeletal injury."
Mr Bell was called as a witness for the defendant and in his evidence stated that the "functional factors" he was referring to were behavioural, psychological and social. He stated he made a note at the time of the initial consultation "nice lady but somewhat manipulative". In relation to further treatment, Mr Bell stated in his report dated 3 February 2000 as follows:
"In a young lady of this age I really believe she is best treated with attitudinal issues of trying to learn to be more optimistic about her symptoms and become as active as reasonably can. I don't believe that specific treatment is appropriate in her situation."
Mr Bell graded Ms Jakovljevic's injuries mild but stated that even with mild soft tissue injuries that such injuries could be extremely upsetting to the patient.
Mr Bell re-examined Ms Jakovljevic on 29 November 2007 and in a report dated 7 December 2007 he largely reiterated earlier conclusions. He noted that Ms Jakovljevic had poor abdominal muscle tone. In his report dated 7 December 2007 he stated as follows:
"The headaches and neck aches are not likely to have significantly compromised her ability to study and affect her TEE performance. I am happy to state my opinion on this matter and this opinion is derived from taking a careful history of these three occasions and considering the imaging reports and other practitioners' reports."
He also stated:
"It is now more than 10 years after the motor vehicle crash. I did note in the seventh page of my June 2005 medical report that she presents with a rather negative view of her situation.
However, it is custom to award any benefit of doubt to the patient, and I consider that there may be some element of her continuing neck discomfort problems which do relate to the September 1997 motor vehicle crash."
In his final report dated 24 December 2008 Mr Bell reiterated his comments concerning Ms Jakovljevic having a "negative view of her situation" and added a further comment that she had "developed a degree of disease conviction". He noted that Ms Jakovljevic's muscle tone had improved.
Under cross-examination he was not able to point to any specific feature of her presentation in 2000 which lead him to make a note that she was "manipulative". He said it was her general history, her physical signs, her demeanour and the demeanour of her accompanying parent. He stated that the main reason why he believed that her prognosis was guarded was that he believed that she retained a negative view of her situation. However he was unable to point to any specific item of negativity. He described it as a conclusion he had reached based upon his entire examination.
The defendant called Dr John Suthers as a witness. He had examined Ms Jakovljevic in his rooms on 13 June 2008. He stated in a report of the same date the following as to his findings on examination:
"On examination of the cervical spine she had a full range of movements of the neck and there was no evidence of tenderness in the cervical spine, thoracic spine or across the top of the shoulders. She had a full range of movements of the shoulders. There was no evidence of any neurological deficit in the upper or lower limbs. She had a full range of movements of the lumbar spine. She could walk on her heels and toes. She did not have any positive behavioural signs.
Her cranial nerves were normal. Memory testing was excellent for Babcock's sentence and reverse numbering."
He gave the following diagnosis:
"Ms Jakovljevic has a long history of chronic generalised intermittent headaches. They may or may not be associated with neck pain or spinal pain. Investigations have not revealed any pathology. With the passage of time her condition has settled and she is now coping quite well with chosen studies in psychology."
In his oral evidence Dr Suthers stated that on the balance of probabilities he thought the most likely cause of Ms Jakovljevic's headaches was tension and he was not convinced that it was caused by the motor vehicle accident injuries. He stated that soft tissue injuries in the vast majority of cases heal without major issue and he believes that Ms Jakovljevic has recovered from her accident injuries. He said the reason he reached this conclusion was because the normal history of pathology of that type of injury is that the tissue heals.
Under cross‑examination Dr Suthers agreed that in cases of whiplash it was not usual to find underlying pathology. He agreed that a contributing factor to his diagnosis was his assumption that the collision causing the injury to the plaintiff was a minor collision.
Dr Suthers did not agree that Ms Jakovljevic had a negative attitude.
2(g) Findings on disabilities
I find that during Years 11 and 12 Ms Jakovljevic did suffer an exacerbation of her accident injuries in the form of neck pain and headaches. This exacerbation occurred due to the physical strain of sitting for long periods with her head in a still position while studying. However, I also conclude that the tension and stress of sitting for TEE exams contributed to this condition. Although I find that she suffered an exacerbation of her symptoms in Years 11 and 12, I am not satisfied that they caused a deterioration in her academic results to the extent of affecting her career path. She had made a decision at the end of Year 11 to focus on getting into child psychology rather than journalism but there is insufficient evidence to persuade me that the decision was caused by Ms Jakovljevic's disabilities arising from the accident. Ultimately, although the exacerbation of her symptoms caused difficulties, she was still able to gain entry into the undergraduate degree in child psychology, which was then her chosen career path.
I reject the evidence of Mr Bell, orthopaedic surgeon, that Ms Jakovljevic had a "negative view of her situation" and that she had developed a degree of "disease conviction". The conclusion he reached was based upon vague and unconvincing grounds. No other doctor expressed a similar view and Dr Suthers in his evidence specifically rejected the notion. It is also contrary to the evidence that Ms Jakovljevic has despite her problems remained actively involved in sport, completed her TEE and two years of tertiary studies, has maintained a normal active social life and as from the age of about 14 or 15 engaged in part-time employment. Based upon this history it is difficult to see on what possible basis Mr Bell could have reached the conclusion that he reached. Further, his note in 2000 that Ms Jakovljevic was "a nice lady but manipulative" is a very odd way to describe a 10‑year‑old (as Ms Jakovljevic was at the time) and unconvincing.
I reject the evidence of Dr Suthers that Ms Jakovljevic has recovered from any soft tissue injuries suffered in the motor vehicle accident. I accept that Ms Jakovljevic is a truthful witness. The history of her symptoms has a sufficient continuity to be capable of being traced back to the motor vehicle accident. This is supported by the evidence of Dr Chin, Mr Slinger, Dr Goodheart and even Mr Bell notwithstanding his findings that there was a disease conviction.
I conclude that the present extent of the current disability is minor. The most recent examination of Ms Jakovljevic was by Mr Slinger. He found that there was no longer any restriction of movement in her neck and no more tenderness. This is an improvement from his earlier examination in 2007 where he found there was a restriction of movement and tenderness. I also find that Ms Jakovljevic has only a minor headache problem which she is able to manage by paracetamol medication three or four times per week in the form of Panadol and sensibly avoiding provocations to neck pain.
In accordance with her evidence, I conclude that she is capable of studying or concentrating for periods of about 45 minutes before requiring a break of 10 to 15 minutes before continuing with further study and concentration. This I conclude is not very far off normal as I believe it would not be unusual for a student to take a break after studying for a period of 45 minutes.
I find that the disabilities suffered by Ms Jakovljevic do not prevent her from engaging in a very full and active life. She is able to attend university as a full‑time student, work extensive hours in part-time employment and participate in social and recreational activities (including active sports) commensurate with her age.
What, if any, damages for loss of earning capacity should be awarded to Ms Jakovljevic?
On the question of whether Ms Jakovljevic has suffered any loss of earning capacity and , if so , the resultant assessment of damages I take into account the dicta in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638:
"If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high ‑‑ 99.9 per cent ‑‑ or very low ‑‑ 0.1 per cent. But unless the chance is so low as to be regarded as speculative ‑‑ say less than 1 per cent ‑‑ or so high as to be practically certain ‑‑ say over 99 per cent ‑‑ the court will take that chance into account in assessing the damage."
In assessing damages for loss of earning capacity Ms Jakovljevic must establish both a loss of earning capacity and that such loss will be productive of a loss of income (see Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 3, Dawson, Toohey and Gaudron JJ; Trigwell v Trigwell (1997) 18 WAR 83).
The plaintiff's case is that she has suffered a reduction in her earning capacity to pursue a career as a child psychologist. Ms Jakovljevic's evidence is that from information given to her at university she understands that a child psychologist is required to spend long periods of time sitting listening to patients, taking notes and writing reports and she is concerned that she will not be able to do this to a full capacity due to her neck pain and headaches.
There was a paucity of reliable evidence presented to me as to the nature of the duties of a child psychologist. Various medical witnesses gave their understanding of what was involved when they gave their conclusions concerning the earning capacity of the plaintiff. However, no person with appropriate experience in child psychology was called to give evidence. The plaintiff called Ms Lai Meg Yap, a clinical psychologist (but not a child psychologist) who is employed with the Fremantle Child and Adolescent Mental Health Service. Ms Yap also has a private practice as a clinical psychologist. She said that persons who practised as a child psychologist generally worked in the Department of Child Protection or schools. She stated she was not familiar with the exact nature of the work they perform. She said from her observations they have an office from which they do a lot of psychometric testing and interviewing. They also attend case conferences, meetings, observe children in class and conduct group activities with children. This evidence provided me with little assistance in assessing the extent a child psychologist might spend long periods in front of a computer or bent down writing notes and reports. However, the evidence of Ms Yap suggests a variety of tasks which will provide Ms Jakovljevic with some flexibility if she pursues a career as a child psychologist.
The evidence of Mr Bell and Dr Suthers called by the defendant was that in their opinion the plaintiff, Ms Jakovljevic has not suffered any loss of earning capacity.
Dr Suthers in his report of 13 February 2008 stated as follows:
"Looking at the busy life Ms Jakovljevic has led as a school student and more recently as a university student, in my opinion there is no reason to consider that her injuries should preclude from full‑time as a child psychologist. Taking account of her lifestyle, in my opinion, concerns about Ms Jakovljevic's ability to work full‑time as a child psychologist has been taken out of perspective. She is a fit young lady who has been playing intensive sport and working unsociable hours in addition to meeting her study commitments. Balance this against the rather minor nature of the crash, the lack of pathology and the lack of objective signs does not, in the balance of probabilities, support the conclusions she has a serious health issue."
Mr Slinger in his medical report did not address this issue of loss of earning capacity, but in cross-examination expressed the opinion that although there may be residual symptoms, Ms Jakovljevic is fit for full‑time employment in a sedentary occupation such as a psychologist.
Dr Goodheart in his report of 15 January 2008 stated as follows:
"Ms Jakovljevic remained partially incapacitated for study and work activity due to the ongoing symptoms described above. In particular, she was limited in her capacity to maintain prolonged periods of static posture (either standing or sitting). She was limited in her capacity to sit at a computer. She was limited in her capacity to attend lectures and tutorials. Periods in excess of 60 minutes were associated with increased neck pain and headache.
I noted that Ms Jakovljevic was continuing with her studies. She was hoping to work as a child psychologist. Given the continuation of symptoms (described above), it is my opinion that she would remain partially incapacitated for work activities. In particular, she would be limited in her capacity to work long hours. She would be limited to periods of patient contact for less than 60 minute periods with provision for posture breaks. She may be suited for part-time rather than full-time work.
At the time of my review it was my opinion that she would be fairly assessed as being able to cope with approximately 75 per cent of full-time work capacity when working in the future as a child psychologist."
Under cross-examination Dr Goodheart admitted that he made certain assumptions concerning the duties of a child psychologist. In his evidence he stated as follows (T 106):
"I would think that as a child psychologist she may be working for the education department. She may be sitting in an office in a school or in a – in charge of a number of schools and kids might be coming to see her with their parents and sitting there for an hour and she might be taking notes and discussing things and offering opinions. And then, on the hour, another patient might arrive and she may be booked for the morning or the afternoon. That is, I guess, what I was thinking might happen as a child psychologist. Now I am sure that there might be scope to do things differently."
I concluded from his evidence that he had no detailed appreciation as to the nature of the activities that might be required of a child psychologist and the extent to which a child psychologist could avoid extended periods of the neck being bent in a still position, which would in the case of Ms Jakovljevic prompt headaches.
I conclude that the plaintiff is capable of full‑time employment. I am not satisfied she has suffered any restriction to work in her chosen career as a child psychologist. In reaching these conclusions I am persuaded by the following factors:
(a)The most recent examination of the plaintiff by Mr Slinger indicated that Ms Jakovljevic has now recovered full mobility of the cervical spine and no longer experiences tenderness.
(b)The history of recent medical attendances indicates that Ms Jakovljevic is no longer seeking medical treatment. This is consistent with the tapering off in the need for medical treatment prior to Years 11 and 12 of her high school studies. I conclude that the symptoms that Ms Jakovljevic experienced in Years 11 and 12 were partly due to the extreme tension that is placed upon students undergoing such studies. Normally the expectations of both the student and parents are high and their future career paths are dictated by the outcome of the results. This creates an enormous amount of pressure on students and is a situation that is not similar to that of normal full‑time employment.
(c)Ms Jakovljevic is presently living an extremely active life. Weekly she is managing with 15 hours of lectures, 25 hours of study, 20 hours at Proud's Jewellers and four to six hours at the Metropolis nightclub. This is well beyond the normal hours of a full‑time worker. Although I have not been able to reach any conclusions as to the severity of the collision in the accident, I generally agree with Dr Suthers' comments quoted above that Ms Jakovljevic's busy lifestyle suggests she is capable of full‑time employment.
(d)I reject the opinion of Dr Goodheart that Ms Jakovljevic has approximately a 75 per cent capacity to work as a child psychologist. The opinion of Dr Goodheart was based upon assumptions as to the duties of a child psychologist which have not been established on the evidence. Further, since Dr Goodheart's examination of Ms Jakovljevic in January 2008, Ms Jakovljevic has been examined by Mr Slinger in January 2009 and, as stated above, this more recent examination indicated that Ms Jakovljevic had recovered full mobility of the spine, which is an improvement on her condition when examined by Dr Goodheart.
I conclude that it is likely that from time to time Ms Jakovljevic will suffer intermittent and odd days off work due to the exacerbation of her symptoms with neck pain and headaches. Further, I conclude that there might be some positions of employment she might reasonably seek to avoid if they require long periods of sitting at a computer or workstation without providing opportunities for Ms Jakovljevic to take regular posture breaks. I reach these conclusions based upon the history of episodic re‑occurrences and the need to avoid provocation of her symptoms (which may not always be possible).
In light of my conclusions as to the extent of the loss of earning capacity suffered by Ms Jakovljevic, I believe a global but modest sum should be awarded for loss of earning capacity. The amount of the global award is a matter of judgment although assistance can be gained from mathematical calculations (see A v D (1994) 11 WAR 481, Pidgeon J at 489; Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 Barwick CJ at [22]). The allowance should include an allowance for the probability that Ms Jakovljevic will suffer a loss of sick leave entitlements. This takes into account that the plaintiff may use up her sick leave with other illnesses and be compelled to take sick leave without pay due to episodic exacerbations of her accident symptoms (see Luntz, "Assessment of Damages Personal Injury and Death", 4th ed at [8.3.4]). I believe an allowance of $7,500.00 to be an appropriate allowance. This approximates a loss of three days per year over and above sick leave entitlements and based upon a net weekly salary of $750.00 per week (the plaintiff tendered into evidence an award "Health Services Union v WA Health State Industrial Agreement 2008" which sets a minimum commencement salary for a psychologist of $51,863.00 gross per annum). A loss of three days per year (assuming a five day working week) is equal to about $9.00 per week. If Ms Jakovljevic works until the age of 65 (she is presently 22) this leads to a multiplier for 43 years of 822.4. Applying this multiplier to the loss per week leads to a total loss of $7,401.60. I have not taken into account any reduction for contingencies as I believe the calculation is only a guide and, in any event I believe the positive and negative contingencies largely cancel one another out.
I believe a further global sum should be awarded for the relatively small probability that Ms Jakovljevic will suffer a loss of earnings by avoiding positions of employment which require the employee to be seated at a computer workstation for extended periods without taking regular posture breaks. I believe a suitable allowance is $15,000.000.
This leads to a total allowance for loss of earning capacity of $22,500.00.
What, if any, damages for future medical treatment should be awarded to Ms Jakovljevic?
The plaintiff, Ms Jakovljevic has claimed $3,500.00 as a reasonable global allowance for future medical expenses. This will include the costs of Panadol or Nurofen for headaches. I find that from time to time she may require such medication and also odd consultations with a medical practitioner. I believe an adequate allowance given the current level of her disabilities is $2,000.00.
What, if any, damages for non-pecuniary loss should be awarded to Ms Jakovljevic?
Non-pecuniary loss is awarded for pain and suffering, loss of amenities, loss of enjoyment of life, the curtailment of expectation of life and bodily or mental harm (see De Blank v Stemberger [2000] WASCA 358).
Under the provisions of the Motor Vehicle (Third Party Insurance) Act 1943 the assessment of non‑pecuniary loss is subject to the provisions of s 3C of the Act. Under the provisions of this legislation a trial Judge is required to undertake an assessment based upon the limitations contained in s 3C and assess a proportion of between a most extreme case and the case being tried (see Hendrie v Rusli [2000] WASCA 249; De Blank v Stemberger (supra); and Villasevil v Pickering (2001) 24 WAR 167).
In assessing non-pecuniary loss I take into account that the plaintiff since the accident has experienced neck pain and headaches of varying degrees over a lengthy period. This has required a course of medical treatment which has been particularised earlier in this decision. The symptoms reached a peak during the difficult years of her TEE studies (that is, Years 11 and 12 of high school). She continues to suffer intermittent headaches and she needs to be careful not to place her neck in a situation which is likely to trigger the symptoms of neck pain and headaches. However, she has been able to live a very full and active life since the accident participating not only in her schooling and university studies, but also in sporting and recreational activities and part‑time employment.
Taking all the factors into account I conclude that an appropriate allowance is 9 per cent of a most extreme case which under the formula provided in s 3C of the Act leads to an entitlement of $12,310.00.
Summary
Other than the heads of damages dealt with above, there is no other claim for damages. All special damages to date have been paid by the insurer of the defendant.
Accordingly I award the following amounts:
(a)Future loss of earning $22,500.00
(b)Future medical treatment $2,000.00
(c)Non-pecuniary loss $12,310.00
Total $36,810.00
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