Jerkovic v BUROWS - [2003] WADC 135

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: JERKOVIC -v- BUROWS [2003] WADC 135

CORAM: HEALY DCJ

HEARD: 5-9 MAY 2003

DELIVERED : 11 JUNE 2003

FILE NO/S: CIV 23 of 2001

BETWEEN: ANITA JERKOVIC
Plaintiff
AND
CHRISTIAN JAROD BUROWS
Defendant

Catchwords:

Assessment of damages - 24 year old female - Injury to nerves in neck

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943, s 3C and s 3D

Result:

Plaintiff awarded damages in the sum of $36,500

Representation:

Counsel:

Plaintiff: Mr I L K Marshall
Defendant: Mr J R Brooksby

Solicitors:

Plaintiff: S C Nigam & Co
Defendant: Greenland Brooksby

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

Nil

Case(s) also cited:

Nil

HEALY DCJ: This matter comes before the court for assessment of the plaintiff’s damages for personal injury when the vehicle driven by the defendant collided with the rear of the vehicle she was driving and shunted her vehicle into the vehicle in front of her. Liability for the negligence of the defendant is admitted. The defendant pleaded in par 3 of the defence:
"Further, the defendant says that the collision which occurred was a low speed collision not likely to cause any or any significant injury to the plaintiff."
The defendant put the plaintiff to proof of injury, loss and damage. In a final paragraph it was pleaded that the plaintiff failed to attempt to settle her claim by negotiations before commencing legal proceedings. There was no pleading as to any alternative cause for any symptoms currently suffered by the plaintiff.

Background

The accident happened in somewhat bizarre circumstances. On 10 August 1999 Ms Jerkovic had been to lectures at the Edith Cowan University Campus at Churchlands. At about 9.45 pm, while she was stationary in a line of vehicles which were exiting the campus onto Pearson Street, the defendant drove into the back of her vehicle pushing it into the vehicle in front of her. As can be expected from the circumstances, it was not a high impact collision. Ms Jerkovic described it in examination in chief as a 'moderate impact'. After pulling her rear bumper off the wheels Ms Jerkovic was able to drive her vehicle home. Her car was insured and it was repaired. She was not certain of the cost of repairs, though she told various doctors that the damage cost $6000 to repair, (Dr Rosenthal), $5000, (Dr Ng). In cross-examination she agreed that the cost of repairs was $3450. The cost of repairs to Mr Burrow’s vehicle was $2873.99, Exhibit 22. He said that his speed on impact was 'roughly 10 kilometres per hour' and that the collision was in his opinion 'a fairly minor one' although he was no expert in such things.
A chronology was tendered as Exhibit 1. Ms Jerkovic was born in Split on 4 October 1977. With her parents and younger sister she came to Australia in 1984. Her mother injured her back in a motor vehicle accident in about 1997. She is restricted in the amount of household work she can do, although she is generally in good health. She can prepare the evening meal. Ms Jerkovic said her sister and father do most of the household chores and gardening.
Ms Jerkovic was involved in a motor vehicle accident in February 1997. She said that after initial discomfort there were no residual disabilities, see Exhibit 2. It is not alleged that her present symptoms are in any way related to this earlier accident.
Ms Jerkovic completed year 12 at Hamilton Hill High School. In December 1997 she completed a Diploma of Business Studies at Challenger TAFE. In 1999 she enrolled in a Bachelor of Business (Accounting) at Edith Cowan University Churchlands Campus. She successfully completed that degree and graduated in July 2002. Her passes were either credit or pass and she achieved distinctions in five subjects and a high distinction in one subject. She failed only one subject which she later passed with a distinction, see Exhibit 4.
While Ms Jerkovic was completing her degree she was also working as an assistant accountant. Between March and November 1999 she worked for Sondergaard and Co. She left there and commenced with Ernst and Young at a higher rate of pay. She remained there until September 2001. She joined KPMG on 2 October 2001. She still works there.
Ms Jerkovic described a punishing regime of work and study for her degree. When working at Sondergaard she said she started at 7.30am and finished at 6.00pm. At KPMG she now starts at about 7.30am and finishes about 6.00pm or 6.30pm. When she was attending University on she had lectures on three evenings a week. She would leave work at 4.30pm and spend at least three hours attending lectures. On these days she would not take a lunch break and was working, including lectures, about 11 or 12 hours a day. On the days she did not attended University she would study for one or two hours a night. On weekends she would study for about four hours on each of Saturday and Sunday. Mr Brooksby put the following question to her at p 50 as a summary of her evidence in this regard:
"So we're looking at working days running between 11 to 12 hours a day when you're not at university, at university you'd be looking at 14 or 15, and there'd be study commitments of say 6 hours a week during the week and 8 to 10 at weekends?---Correct."
She commenced to study for qualification as a Chartered Accountant and has to date passed one of the five modules required. She failed two modules and decided to take a break before re-enrolling, no doubt taking the opportunity to reculer pour mieux sauter. She has eight years to complete her qualification. In answer to a question from me Ms Jerkovic said that the five units are all of equal degree of difficulty. To her knowledge pass rates can range anywhere from 75 per cent to 90 per cent, p 69.
Ms Jerkovic said that it is her ambition to complete the exams to qualify as a Charted Accountant. Her ultimate goal is to complete a two years course run by the Institute of Charted Secretaries, which would allow her to work as a Company Secretary for a mining company.
Ms Jerkovic was a promising junior tennis player and achieved the highest ranking as a State Grade player, see letters Exhibit 3 and photos of trophies Exhibit 6. She ceased to play competitive tennis when she travelled overseas between June 1998 and February 1999. When she returned she became involved in her work and heavy part time study load and did not return to competitive tennis. Her evidence is supported by the letter from the Club, Exhibit 3, which states that she was a fully active playing member until 30 June 1998. That date is well before the accident.

Particulars of injures

The particular of injuries pleaded were
(a)soft tissue injury to neck
(b) soft tissue injury to the back
(c) nervous shock
No further and better particular of those injuries were sought.
As to (a) soft tissue injury to neck, I am satisfied on the balance of probabilities on the medical evidence that any injuries to the muscles and ligaments of the neck usually resolve well before the time that has elapsed in this case. I refer to the evidence of Mr Narula p 124, Dr Russell p 180, Mr Bath p 275, Dr Rosen p 290.
One must then look to other soft tissues in the neck, such as nerve roots or nerves as the source of Ms Jerkovic's problems so long after the date of the accident.
One matter which was strongly put on behalf of the defendant was that a low impact collision such as was involved in this case would be unlikely to cause any injury which would lead to the long lasting complaints of pain made by Ms Jerkovic. Reference was made to the high-speed collisions in which those in motor sports are involved, also, to the heavy collisions to which participants in body contact sports are subject. The medical evidence was that the speed of impact had little bearing on the severity of injury, particularly where the person injured did not anticipate the collision and was unguarded when the impact occurred, rather than tensing muscles or grasping the steering wheel more firmly when a collision was foreseen.
I am satisfied on the balance of probabilities on the medical evidence that the speed of collision is not a good indicator or the severity of symptoms suffered. I refer to the evidence of Dr Goodheart p 152, Dr Haynes p 209, Professor Harper p 217. I am mindful of the evidence of Mr Narula at p 127 where he agreed to a large degree that the lower the speed the less likely the injury is to be sustained. I disregard the evidence of the psychiatrist Dr Ng on this issue.
The actual cause of her persisting symptoms was the subject of much evidence and conflicting viewpoints expressed by the doctors called, about which more later.
As to (b) the soft tissue injury to the back, this largely resolved relatively soon after the accident and is not the subject of any major current complaints by Ms Jerkovic. After the collision she said that she experienced sharp pinching pain across her lower back transcript p 23. She said by the next day it was just an ache, p 24. Currently all she said that she now gets 'one or two niggles but nothing like the neck pain', p 27.
Dr Russell said that when he first examined Ms Jerkovic on 11 August he found limited and painful flexion and left rotation of the thoraco lumbar spine. When he reviewed her in February 2000 he said 'she continues to notice back and neck pain', Exhibit 15.1 p 2. When seen by Dr Hayes eight months after the accident he found 'She continues to experience pain in the low back. This is generally of mild severity and there is no lower limb pain radiation', Exhibit 16.1 p 1. In his subsequent reports there is no mention of complaints of low back pain. Dr Kent made no reference to low back pain in his reports. Dr Goodheart makes some reference to low back symptoms, but these were not the subject of evidence by Ms Jerkovic, apart from the reference to 'niggles', and I pay no regard to what he reported in Exhibit 13.1 and 2. On the balance of probabilities Ms Jerkovic is not suffering any major continuing symptoms in the lower back, other than the niggles she referred to.
As to (c) nervous shock, there was no evidence to support that plea. The evidence of Dr Ng was directed at problems, which arose from her continuing necks symptoms and not from any shock suffered in the accident.
Ms Jerkovic gave evidence that her current symptoms were daily headaches, and constant neck pain. Once or twice a month she has headaches of a more severe migrainous type. She did not suffer from any of these symptoms before the accident.
I heard evidence from Mrs Woods, who has been Ms Jerkovic's secretary since she joined the division in which Mrs Woods worked at KPMG. She has had the opportunity on a daily basis to see Ms Jerkovic at work. She said that she observed that Ms Jerkovic took 'an awful lot of medication' on a daily basis. On occasions Mrs Woods, who suffers from migraines, gives Ms Jerkovic strong pain killing tablets, which she keeps in her drawer. Mrs Woods said that Ms Jerkovic contacts her when she is not coming to work or will be late and Mrs Woods emails the message to others in the division. In cross-examination Mrs Woods said that Ms Jerkovic was off work with glandular fever last year and that when she returned she 'didn't look very well' for about a week.
The accident occurred on 11 August 1999, over 1340 days before the trial commenced. During that time Ms Jerkovic has been examined by various doctors. As to the doctors who gave evidence; She was seen by Dr Russell or others at his practice on nine occasions; by Dr Hayes on 11 occasions; by Dr Kent on 10 occasions; by Mr Narula on three occasions; by Dr Goodheart on two occasions; by Dr Harper on two occasions; by Dr Ng on three occasions. On behalf of the defendant she was seen by Drs Rosenthal and Rosen on one occasion each and by Mr Bath on two occasions. She was also seen by other doctors, such as Dr Ismail, to whom certain reports were directed and Dr Carr, who did not give evidence. In total therefore she was seen by various practitioners on at least 44 different occasions. In light of the evidence that she was on prescription medication, Ms Jerkovic must also have seen general practitioners from time to time to obtain prescriptions. As this doctor or these doctors were not called, there is no point in speculating how often she visited to obtain prescriptions. One would be entitled to conclude that the number of consultations referred to above would take account of Ms Jerkovic's good and bad days as far as pain was concerned.
As to Ms Jerkovic's credibility, she struck me as a straightforward witness. She did not exaggerate her problems. Since the accident she has got on with her life, study and work. She did not pretend that she did not exercise as she freely admitted that she does jog, she walks the dog, she does Pilates exercises and during summer, water aerobics. On one occasion she has hiked for some hours to take photographs, but later felt symptoms. In her professional life she has passed her university exams with credits and distinctions and has embarked on further studies to qualify as a Chartered Accountant, though those studies are currently on hold. In her work, she has been able to find employment, she has changed jobs and increased her salary, she is the subject of good performance reports by her current employer.
Ms Jerkovic had had a previous accident in 1996 but it was not pleaded that her current symptoms arose from that accident or that she had continuing symptoms which were exacerbated by the current accident. On the evidence I have before me the effects of that earlier accident passed off relatively quickly and Ms Jerkovic lead an active life, as evidenced by her tennis prowess.
There was some cross-examination as to inconsistent presentation of symptoms to various medical practitioners, and Mr Brooksby extracted those in the form of notes he handed up during his closing submissions. My assessment of her credibility was not adversely affected by those apparent antinomies.

Particulars of medical treatment

As I have said she was initially seen by Dr Russell on 11 August. He referred her for physiotherapy. He also referred her to his colleague Dr Yin who had expertise in manipulative physiotherapy. Dr Russell prescribed Panadeine Forte and an anti-inflammatory medication, Nurofen.
Dr Russell also referred to the rheumatologist Dr Hayes who first saw Ms Jerkovic in April 2000. She complained of neck pain on a daily basis of moderate to severe intensity. She also complained of headaches occurring on most days over the occipito-frontal region. On examination he found a near normal range of movement of lateral rotation of the cervical spine. She complained of left sided neck pain with left lateral rotation. Lateral flexion to both sides was of normal range but she complained of significant neck pain bilaterally. Forward flexion was full but produced pain the mid thoracic region. Extension was limited to 80 per cent and produced pain in the base of the neck. When he palpated the right C2/3 facet joint she complained of exquisite tenderness. This was also the case over the right Greater Occipital Nerve. 'Pressure on the nerve reproduced her headache over the right frontal region. Examination the lumbo-sacral spine revealed moderate restriction in movement and moderate tenderness over both L5/S1 facet joints. She was also tender to the left of L1', Exhibit 16.1.
Based on this examination his opinion was that 'this lady has sustained significant cervical and lumbar strain injuries as a result of the MVA, Exhibit 16.1. As he thought her main problem was an injury to the right cervical spine he referred her to Dr Kent for pain relieving injections at this site.
Dr Kent first saw Ms Jerkovic on 28 April 2000. He agreed with Dr Hayes that her cervical symptomatology was likely to be referable to the right C2/3 facet joint. He advised her that she should have diagnostic C2/3 facet joint injections +/-Greater Occipital Nerve block leading to rhizotomy should this be indicated', Exhibit 14.1.
Ms Jerkovic decided to have the injection and Dr Kent performed this procedure on in May 2000. The significant effect on her pain was only temporary and by when Dr Kent saw her on 18 May the pain showed signs of returning. He said he was convinced about the involvement of the right Greater Occipital Nerve and thought that this nerve should be injected. At that time she decided against having the injection. He also advised her on the basis of the relief she had with the injection in the C2/3 facet joint that she should have a rhizotomy. Although she was initially reluctant to undergo this procedure, she had it on 28 July 2000.
When she saw Dr Hayes in August after this procedure she was still complaining of experiencing significant neck pain and said she was taking up to eight Panadeine Forte a day.
On 25 October because of her continuing complaints of tenderness over C2/3 and C3/4 on the right side and over the Greater Occipital Nerve, Dr Kent injected the right side of the Greater Occipital Nerve. Initially she reported a 50 per cent reduction in her headaches, but that relief was only temporary and in December, as she reported 'with an increase in her workload' her symptoms had increased. Dr Kent said that an injection into the C2/3 facet joint in March 2001 did not significantly affect Ms Jerkovic's symptoms. He did not recommend any further procedures and 'recommendation for treatment thereafter was by conservative means', Exhibit 14.6 p 2.
Dr Hayes said that she had been taking Epilim for about eight months with no real change in her symptoms and he recommended that she cease taking that medication, Exhibit 16.7
Dr Hayes ceased treating Ms Jerkovic in October 2001 and Dr Kent in January of that year. They only saw her again for pre-trial reviews in April and May this year. Dr Hayes was of the opinion that her right sided neck pain was 'related to injury to the upper cervical spine on the right side of her neck. In particular this is localised to the right C2/3 facet joint', Exhibit 16.8 p 3. Dr Kent’s opinion was '… the underlying cause of your client's medical condition, namely right C2/3 facet joint dysfunction, persists but is of lesser severity. I do not believe there will be any requirement for further specialist review or physiotherapy. Treatment will be by way of intermittent anti-inflammatory drugs and exercise and can be supervised by her general practitioner', Exhibit 14.8.
Because of lack of confidence and the onset of panic attacks which came on when she was a passenger in a car Ms Jerkovic was referred by her then general practitioner to Dr Ng, a consulting psychiatrist. Dr Ng saw her on six occasions between February and June 2001 and on two further occasions in November 2002 and April of this year. His reports were tendered as Exhibit 11.1 and 2. Based upon the history she gave him and her interviews with him his initial opinion was that she was suffering from a 'chronic adjustment disorder with mixed anxiety and depressed symptoms', Exhibit 11.1 p 5. Her condition and his opinion had not changed following his seeing her in April, Exhibit 11.2 p 3.
Dr Ng's treatment was not medication based. Rather, it was based on psychotherapy, involving counselling and teaching her strategies to help her cope with her pain and how to get on with her life. After her last visit in June 2001 he could see no need for further therapy. When he reviewed her in November 2002 and more recently he said at p 101, 'I felt that the improvement that I had seen had been maintained but I felt that there was still residual psychiatric symptomatology'. In his report which followed a pre-trial review he stated that his opinion had not changed from that stated above, Exhibit 11.2 p 3.

Although Ms Jerkovic said that she still gets panic attacks when she is in a car driven by certain people, she uses the relaxation and breathing techniques Dr Ng taught her and she is able to cope.
On behalf of Ms Jerkovic I also had reports and heard evidence from Dr Goodheart, Mr Narula, and Professor Harper. She was referred to these practitioners by her solicitors. I did not hear from any doctor who is currently treating her. She said she is taking prescription medication, and no doubt she is seeing a general practitioner for this purpose. However, no evidence was called from any doctor she is currently seeing. This causes me some disquiet but I draw no inferences therefrom, as there were suggestions in evidence that she has been referred to and seen by too many doctors. I realise that the defendant has required her to be seen by other specialists, Mr Bath, Dr Rosen and Dr Rosenthal, but such referrals are understandable when the cause of her symptomatology was so hotly contested.
Dr Goodheart, a consultant neurologist, reviewed Ms Jerkovic at the request of her solicitors. His reports were tendered Exhibit 13 and he gave evidence. When he examined her on 6 May 2002 he found on examination that cranial nerve function was normal. She had a reasonable range of neck movement. He found that she reported tenderness over the mid-cervical region on the right side. He was unable to detect focal signs in the limbs. In his opinion the injury to her neck was predominantly of a soft tissue nature 'with associated muscle contraction headache'. He was of the opinion that her symptoms were 'likely to persist for the foreseeable future'. When he carried out a pre trial examination April 2003 he reported that her condition had not changed in the intervening 11 months.
He said in cross-examination that his assessment of a permanent disability was based on a four-year history of pain. He said agreed with other opinions that surgical intervention was not required and that the medication based treatment seemed appropriate.
Mr Narula, a neurosurgeon, first examined Ms Jerkovic on 30 May 2002. He saw her for a second time in April this year. His reports were tendered as Exhibit 12.1 and 2 and he also gave evidence. He reported that her general physical examination was unremarkable. On palpation she exhibited tenderness in the midline at C2/3 spinous processes and over the facet joints at that level. He did not find tenderness along the Greater Occipital Nerve. He had an isotope bone scan performed and that did not show any increased uptake in the facet joints of the cervical spine, Exhibit 12.3.
His opinion was expressed in his report Exhibit 12.1 as follows:
"Ms Jerkovic suffers from pain arising from the upper cervical segments predominantly C2/3. She is a relatively young lady of 24 years of age having suffered this injury at 21 years of age. She did not have any pre-existing neck pains and the current symptoms that she experiences are as a direct result soft injury sustained in the said accident."
His evidence was also to the same effect.
He thought her disability would be permanent for the foreseeable future and affect her in her work and away from work. He thought she should continue with her medication but should keep alternating to avoid long-term upper gastrointestinal system side effects.
In his report of 2 May 2003 Exhibit 12.1 and in his evidence, Mr Narula was of the view that Ms Jerkovic should be offered a three-stage treatment regime. First a Greater Occipital Nerve injection. If that relieved her symptoms, then he would proceed to the sectioning of the Greater Occipital Nerve. If that resulted in further improvement he would proceed to the third stage of performing a sectioning of the C2 ganglion. The first two procedures could be carried out under a local anaesthetic and were relatively inexpensive. The third procedure would require hospitalisation and a general anaesthetic while a two or three hours surgical procedure was performed.
In my opinion I do not accept Mr Narula's suggestion as to further treatment. He was the only doctor who suggested that such staged procedures should be carried out. Dr Kent, to whom Ms Jerkovic had been referred by her general practitioner Dr Russell, in his reports Exhibits 14.1, 14.2, 14.5 and in his evidence he referred to carrying out first a right C2/3 facet joint injection, followed by a right C2/3 rhizotomy and infiltration of the right Greater Occipital Nerve, followed by a further injection into the right Greater Occipital Nerve. Following this last injection he reported in Exhibit 14.5 to Dr Hayes that 'she has reported a 50 per cent reduction in her headaches'. That relief was only temporary, as he wrote to Dr Russell on 14 December 2000, Exhibit 14.6 that '… in the last week, with an increase in her workload she has had an increase in symptomatology. Hopefully with work ceasing in the next week her symptoms will reduce'. In his report of 11 January to Dr Hayes, Exhibit 14.7, Dr Kent reported. 'She is tender over the right C2/3 facet joint and I have today offered her a repeat facet joint injection to try and determine as best as we can if the initial response was real or placebo. Should a positive response be repeated then repeat rhizotomy might be appropriate'. In his report of 1 May 2003 to Ms Jerkovic's solicitors, Exhibit 14.8, he wrote '…The C2/3 facet joint injection was repeated on 9 March 2001 without significantly affecting her symptoms and recommendation for treatment thereafter was by conservative means.'
In his evidence Dr Kent said at p 163:
"So far as any future treatment such as injections to that area [C2/3 facet joint] to combat facet joint pain, are you able to say whether any further treatment from you is warranted?---I didn't think so on my findings on the last occasion when I examined Ms Jerkovic. I didn't think that any further injections would make a great deal of difference to her symptoms.
Yes?---Or if that would be warranted."
Dr Hayes, the rheumatologist, was of the same opinion, see Exhibit 16.8, 'Miss Jerkovic will require ongoing analgesic medication however I do not feel that she will require hospitalisation or surgery. Nor do I feel that physiotherapy or other forms of treatment are indicated in this lady. She has already had a series of pain relieving injections from Dr Michael Kent and further injections are not indicated'. That opinion was repeated in his evidence at p 201.
Ms Jerkovic's solicitors referred her to Dr Goodheart a consultant neurologist who saw her on 27 May 2002 and 15 April 2003. In his report of 15 April 2003, Exhibit 13.2, he wrote: 'Ms Jerkovic may benefit from further courses of analgesic medication. I could not see scope for specific surgical intervention'. In cross-examination at p 147 he said:
"You wouldn't be considering any form of surgical treatment?- --No, not on that first or the second occasion. Surgical treatment - in this situation I'm really looking at treatment to release a pinched nerve in the neck or in the lower back.
And there's no evidence for that?---I didn't feel that there was evidence that surgery would be of any assistance."
Professor Harper has been practising as an occupational physician since 1986. He examined Ms Jerkovic on 1 November 2002 and again in April this year at the request of her solicitors. His reports were tendered as Exhibit 17.1 and 2 and he also gave evidence. He took a history from her and reviewed other reports which had been forwarded to him. He said there was no significant clinical change in her condition in the five or so months between reviews. Ms Jerkovic told him that her symptoms had been relatively stable in the 12 months prior to the first consultation. In his first report dated 4 November 2002 p 4 point 7 he wrote 'I do not anticipate the need for further invasive measures'. In his evidence at p 222 he said that the need for specialist care in the future was minimal.
In his opinion Ms Jerkovic was suffering from the after effects of strain injuries to her cervical and lumbar spine. As to the neck he thought that the right facet joint at C2/3 was involved. His view was that she had a permanent residual disability. He recommended that to relieve her symptoms she reduce her work hours to 40 hours a week. That is a recommendation that Ms Jerkovic has not adopted. He was aware that she had put her studies for further qualifications on hold and he agreed with that course as he said it 'would give her a chance to recover'. It would reduce the amount of time she spends bending over a desk.
In cross-examination it was brought to Professor Harper's attention that in his first report he referred to 'moderate tenderness on the right side of her neck particularly at the sub occipital level'. Whereas in the subsequent report he referred to her being 'tender' in the sub occipital region. He said that the lack of a qualifying adjective in the latter report meant that the tenderness was mild, 'towards the lower limit of tenderness'. To me that seems to indicate some degree of amelioration of symptoms between the two visits, although Professor Harper was reluctant to accept that.
Dr Russell was the general practitioner who initially treated her and referred her to specialists. He also is of the opinion that no further surgery was warranted, see his report Exhibit 15.2 p 2 in answer to the third question and in his evidence at p 176.
Dr Rosenthal gave evidence. He is a physician specialising in rehabilitation medicine and pain management. His report was tendered as Exhibit 10.2. He saw Ms Jerkovic on behalf of the defendant on only one occasion in August 2002. When he examined her he found that she was entirely genuine in her responses and that she had a full range of cervical movement, apart from a minor restriction of in rotation. He found, among other things, some tenderness over the region of the right greater occipital nerve and over the right upper paracervical soft tissues well before any pressure was applied to the facet joints. After taking a history and the examination, his opinion was that in the accident she had sustained soft tissue cervical strain of moderate severity. There was an associated cevicogenic headache pattern suggestive of occipital neuralgia.
In his opinion he thought that the injury would progress through a gradual but satisfactory process of resolution. In cross-examination he said that because the complaints were chronic, it did not mean that they were necessarily permanent. He thought she was fit to work full-time in her profession. He did not see the need for any further medical intervention and thought that she should continue to take simple analgesics and ease back into an upper body exercise program. He thought her sleep pattern would be helped by a tri-cyclic anti-depressant medication.
Ms Jerkovic was reviewed at the request of the defendant by Mr Bath, an orthopaedic surgeon. His two reports were tendered as Exhibit 21.1 and 2 and he gave evidence. He first saw her on 12 December 2002 and again in March this year. When he examined her he found that she had a full range of flexion/extension in the cervical spine. Rotation both sides was restricted to about three quarters of the normal range. There was a full range of movement in the back, though some tenderness in the thoraces-lumbar area. In his opinion her symptoms were in keeping with a soft tissue flexion/extension type of injury. He was of the opinion that her symptoms would settle with time. In March this year he referred to have a radiological examination of her cervical spine. That examination revealed that she had a normal cervical spine, Exhibit 24. It is accepted that by their very nature soft tissue injuries leave no signs on an X-ray plate or isotope bone scan. However lack of any such signs confirmed to him that there was no underlying pathology in the facet joint, nor would he expect there to be any such signs, pp 270 and 276.
He was unimpressed with the suggestion in cross-examination that the relief of pain experienced when Dr Kent injected the C2/3 facet joint confirmed the diagnoses that nerves in that area were the source of her neck pain. He said that in his experience such injections had a 30 per cent placebo effect and the fact that the second injection had no effect did not indicate to him that there was any definite evidence that the C2/3 facet joint had been injured in the accident p 279. When I descended into the arena and asked Mr Bath what were the symptoms caused by. I interpreted his answer as saying that he accepted that she said she had symptoms but that there was no definable pathology which in his opinion would give rise to these symptoms. However, I must deal with Ms Jerkovic as a person who was on the evidence led before me symptom free before the accident and who has had a four-year history of neck pain and headaches since. When I say 'symptom free before', I am not overlooking the previous accident, but she had recovered from that well before this accident.
Dr Rosen is a neurologist. In January 2003 he reviewed Ms Jerkovic on behalf of the defendant. His report was tendered as Exhibit 10.1 and he gave evidence. He wrote that the neurological examination he performed was normal. There was tenderness over the Right Greater Occipital Nerve and also over the upper cervical spine parasagittally on the right. In his opinion in the accident she sustained a soft tissue flexion/extension injury of the neck and that as a result she suffers from chronic neck pain and cervicogenic headaches. She has also developed posttraumatic infrequent migraine. She is coping well with a mild adjustment disorder. She has developed coping mechanism and a combination of medication provide pain relief. This led him to conclude that she has no significant disability, although the pain has caused a significant reduction in the quality of her life. In cross-examination he said that if she extends herself she will experience pain, p 301. He could see no reason why she should not recover from the neck injury and headaches.
Dr Rosen gave evidence that his report Exhibit 10.1 was dictated in the presence of Ms Jerkovic. She agreed that it was. When asked why she agreed with what he wrote, namely that her disability was minimal she said in cross-examination at p 77 that she had had two hours sleep and had a lot of medication. It was not put to Dr Rosen that he said to her when she walked into the room 'You're eyes are glassy and you seem a bit out of it. Are you okay?' She said that when he was dictating the report she was only half listening. I simply do not accept her evidence as to that. If her condition were as she said, one would expect a practitioner as experienced as Dr Rosen to have noticed and to have commented on it in his report. In my opinion Mr Jerkovic's evidence was based on an afterthought in order to avoid the effect of the evidence of Dr Rosen as to her concurrence with the report. Having said that, my overall assessment of her credibility was not affected by this.
In his evidence he said that in his opinion there was no firm evidence for linking her problems to the C2/3 facet joint. This opinion was based on the fact that she had no long-lasting response to injection in that area or into the greater occipital nerve. In evidence he said that if he were asked to treat Ms Jerkovic he would try to wean her off the medication she is taking.
Dr Rosen in cross-examination agreed that where a nerve is injured, symptoms can last a lot longer than an injury to muscles and ligaments. He agreed that the finding by Mr Narula of hypoaesthesia in the C2/3 distribution was indicative of an increased sensitivity in that area and consistent with a nerve problem in that region.
I accept Dr Rosen's evidence in cross-examination at p 299 that the medication Ms Jerkovic is taking may be contributing to her pain and that she needs to review her intake of anti-inflammatory and analgesic drugs. I realise that there was no pleading to this effect, but he evidence was led in cross-examination.

Work history and performance

Evidence was led from Mr Billings who is a business manager with Hays Personnel Services, a firm which deals with the recruitment of accountants. He prepared a survey of average rates of pay for accountants of various qualifications and experience, Exhibit 9. The schedules most applicable to Ms Jerkovic's circumstances in Perth are those on the second half of p 43 and the two schedules on p 44.
In tabular form the figures applicable to her situation are as follows:

EXPERIENCE	RANGE ($)	AVERAGE REMUNERATION PACKAGE ($) (including superannuation)
Undergraduates 3 years +	30,000 – 43,000	37,000
Graduates 3 years +	34,000 – 43,000	39,000
(Typically CA/CPA Completed) Senior, Supervisor, Assistant managers 2 – 4 years	43,000 – 53,000	48,000
(Typically CA/CPA Completed) Senior, Supervisor, Assistant managers 4 – 6 years	47,000 – 67,000	56,000
(Typically CA/CPA Completed) Senior, Supervisor, Assistant managers 6 years +	54,000 – 73,000	63,000

From Exhibit 5 it can be seen that Ms Jerkovic's taxable income for 30 June 2000 was $23,038; for 30 June 2001 $25,142; 30 June 2002 while at Ernst and Young, $10,620; whilst at KPMG $23,339, a total of gross $39,959. The last figure falls within the range shown above for graduates with three years.
In his evidence Mr Billings said that the above figures are applicable only until the end of May. A new survey will be published in June. He said that as to three-year graduates plus the average will increase to $41,500; for the 2 – 4 years experience to $49,000; for the 6 year plus graduates to $64,000. I was not told what the new figures were for the 4 – 6 years range.
Mr Round was an accountant at Ernst & Young. Ms Jerkovic worked as an assistant accountant in his division. He gave evidence as to his assessment of her work capacity until she left the firm. He said he assesses her performance as 'consistently inconsistent'. He said that at times she produced quite solid work and at other times quite poor work, without any obvious explanation. Initially he did not know that she had been involved in the accident. He said that her hours coming in early and leaving late to make up for time lost attending doctor's appointments. He said that his report on Ms Jerkovic's performance for the purpose of salary review was not favourable and that her pay was generally below average.
In my opinion Mr Round's evidence was of historical value only. He was speaking of Ms Jerkovic's performance at a time when she was undergoing many medical reviews and when one could expect her symptoms to be at their worst. His assessment of her performance does not seem to have been substantiated by the evidence I heard from witness who work with her current employer.
Ms Harvey is in the Human Resources section of Ernst & Young. She gave evidence as to Ms Jerkovic's work there between 29 November 1999 and 20 September 2001 while she was studying part time for her degree. She produced a letters dated 11 October 2001, and 1 September 2000 marked as Exhibits 19 and 20.1 and 2 respectively. Those disclosed that Ms Jerkovic had taken 19 days sick leave during the period of almost two years she was employed as an assistant accountant whose duties were primarily those of a bookkeeper. Ms Jerkovic's gross annual salary at Ernst & Young increased from $30,000 to the salary she was paid when she left of $32,000. The letter includes an assessment of her work performance as 'minimally effective' at the June 2001 review. The issues of concern, with which Ms Jerkovic agreed during interviews, were identified as not meeting deadlines and lack of attention to detail.
As to Ms Jerkovic's time with KPMG, Ms Davidson, a Human Resources Officer, gave evidence on behalf of the defendant. She produced a letter dated 12 March 2002, Exhibit 18. Ms Jerkovic is currently working in the Middle Market Advisory Division of KPMG. Because she joined the firm before she completed her degree, she is positioned between two grades. The salary range at the lowest rates is between $32,000 and $40,000. Ms Jerkovic's current salary, including superannuation is $36,000.

Ms Davidson said there were several factors that had to be taken into account in determining an individual's salary. First, the performance of the firm as a whole. Secondly, the performance of the division in which an individual works. Thirdly, a person's performance within the division measured against the goals set by KPMG as to competency. Finally where KPMG wants to position itself within the marketplace in relation to the big four accountancy firms.
Between November 2001 and February 2002 she took some 15 days leave. In her performance review reported in July 2001 Ms Jerkovic's performance was rated as a 'strong performer'. In Exhibit 18 the Human Resources Manager writes "NOTE: a 'strong' performance rating indicates that an individual is consistently meeting the high expectations set by KPMG". Ms Jerkovic is in the same position as other employees of KPMG in relation to salary review. Ms Davidson said that it is likely that Ms Jerkovic will receive a similar assessment this year. In cross-examination she said that whether that assessment will result in a salary rise is dependent on the other factors mentioned above.
There was no evidence that the time off Ms Jerkovic has had for sick leave is out of the ordinary range for other employees at KPMG, or for that matter at Ernst & Young.
Ms Jerkovic agreed that she told Dr Rosen that there was nothing she could not do physically, p 75 and that her neck pain and headaches improve when she is on holiday, p 31.

Findings

On the basis of the medical evidence I have heard and accepting that Ms Jerkovic is genuine in her complaints I find on the balance of probabilities that she continues to suffer neck ache and headaches as a result of the injury to her cervical spine. This is despite the fact that the collision was of low impact and that musculo-skeletal injuries, on all the evidence, would have settled by now. This means that there is some nerve involvement in her current symptomatology and that involvement seems to be located in the area of the C2 facet joint. On the basis of the evidence I have heard and referred to above, I am unable to find on the balance of probabilities that there will be no future improvement in her symptoms. When Ms Jerkovic completes her qualifications and settles into a pattern of work there is no reason to find other than that she will continue to be successful in her chosen career.

Assessment of general damages

Under s 3C of the Motor Vehicle (Third Party Insurance) Act 1943 the court is required to assess the amount of damages as a proportion to be determined according to the severity of the non-pecuniary loss of the maximum amount that may be awarded in 'a most extreme case'. Quadriplegia would fall within the phrase 'a most extreme case'. The current maximum is Amount A, namely $240,000.
In fixing an award of general damages I take account of the following matters in relation to Ms Jerkovic:
·she has the use of all her physical faculties and is able to jog, walk the dog, do Pilates exercises, and in summer do water aerobics and has on one occasions hiked for some hours on a photographic expedition;
·her symptoms are alleviated by medication;
·there is nothing she cannot do physically, though she may suffer temporary discomfort after finishing an activity;
·when she is on holidays her symptoms improve;
·she was able to fulfil her study commitments to obtain her degree with credits and distinctions;
·her performance at work has been assessed as 'strong' meaning that she has consistently met the high expectations of her employer;
·she has only put on hold further study for additional qualifications.
The figure I assess for general damages is 12.5 per cent of a most extreme case, $30,000. As this figure is less than Amount C, $36,500, it must be reduced by Amount B, namely $12,000. Thus the amount I award by way of general damages is $18,000.

Assessment of past economic loss

Although a claim for past loss was pleaded on the basis that the completion of her degree was delayed by one year, in the light of the evidence it was quite properly conceded that there had been no such loss and that claim was abandoned. An amount of $1,804.11 was made on the basis of loss of wages, for which she has been compensated by payment of sick leave. No interest was claimed or awarded on that sum. The amount claimed does not take account of the fact that she might have had days off in any event and that she had some days off when she contracted glandular fever late in 2002. I allow the sum of $1,500.

Gratuitous services

A claim was made for past and future gratuitous services. A letter from Flying Domestics, Exhibit 26, was tendered as the basis on which the cost of such services could be calculated. In her evidence Ms Jerkovic said that her mother had been badly injured some years ago and that the housework fell to her, her sister and father, although her mother was able to prepare the evening meal. In her evidence, p 38, she said that she did not do the sweeping, mopping or vacuuming, although she could manage to hang out the clothes. The other jobs were done by her father or sister. I did not hear evidence from them as to what they did or whether or not they would have done what they did in any event.
Under s 3D(2) of the Motor Vehicle(Third Party Insurance) Act 1943 'No damages are to be awarded for the value of the services if the services would have been or would be provided to the person even if the person had not suffered the bodily injury'. If Ms Jerkovic is able to jog, walk the dog, do water aerobics and Pilates exercises she is physically capable of doing some housework. In my opinion Ms Jerkovic has not discharged the onus on the balance of probability of proving that the services would not have been provided but for the accident. In the light of Ms Jerkovic's evidence of her heavy study and workload, one could well understand that other family members might relieve her of household chores.

Medication

Ms Jerkovic gave evidence that currently she takes the following medication on a daily basis. When she gets up she takes a 1000mg tablet of Naprosyn, or if the neck pain is bad two tablets. Midmorning she takes one or two, depending on the severity of her headache, Panadol or Panamax tablets. Sometimes she takes another Naprosyn. Mid-afternoon she again takes another Panadol or Panamax, or Nurofen Plus. Prior to going to bed she said she takes a Panadeine Forte and that if she cannot sleep she takes two more of the same tablets 'to knock me out'. Panadeine Forte and Naprosyn are tablets that can only be obtained on prescription and she visits a general practitioner, Dr Carr, who was not called to give evidence, for this purpose. When her headaches persist she takes Imigran. In the last 12 months she has had to use that medication once every two or three months.
A schedule of the cost of future medical expenses dated 5 May 2003 was tendered, in opening. I accept the evidence of Dr Rosen referred to above that Ms Jerkovic should review the amount of medication she is taking. In the absence of any evidence from any current practitioner treating her and on the basis of other evidence that she does not need further specialist review, the schedule greatly overstates the cost of future medication. I accept that on the balance of probabilities she may on occasions need some anti inflammatory medication or painkillers, but not in the quantities she is presently taking.
I make no allowance in relation to the cost of future treatment as outlined by Mr Narula. I accept that his approach would be a staged one, not progressing from stage one to stage two or from stage two to stage three without positive results being achieved at both earlier stages. Despite Mr Narula being the only neurosurgeon called to give evidence, on the other medical evidence I have outlined above, none of the witness agreed with his proposals. I am unable to find on the balance of probabilities that such treatment is called for.
Ms Jerkovic only needs to be reviewed periodically by her general practitioner and it may be necessary on occasions to prescribe medication. It is impossible in the circumstances to make other than an educated guess as to the allowance, but based on the figures for attendance on a general practitioner and the cost of anti inflammatory and analgesic medication, I allow the sum of $1500 for the future cost of medical treatment and medication.

Future loss of earning capacity

In closing submissions a schedule of further loss of earning capacity was submitted. It was agreed that that schedule was formulated on an incorrect appreciation of what Ms Jerkovic's current salary was. I received from her solicitors a further schedule dated 16 May, further submissions on behalf of the defendant dated 15 and 19 May and further submissions on behalf of Ms Jerkovic dated 28 May. I have now considered all those submissions and reviewed the evidence in relation thereto.
I have made reference above to the work assessment made when she worked with KPMG as opposed to the assessment of Mr Round. I do not accept the submission made on Ms Jerkovic's behalf at par 3(a) of the submissions dated 28 May that Mr Round's assessment should be preferred to the assessment at KPMG. In doing so I refer to Ms Jerkovic's evidence in re-examination at p 83 that the work environment at KPMG was 'Fantastic. It's like a family. Everyone helps each other out with workloads and anything else'. In my opinion there is no weight in the submission that Mr Round's opinion should be accepted. Ms Jerkovic is obviously contented with her present work environment and there is no reason to suggest that will not be the case in the future. I can see no reason to assume that her prospects may be adversely affected by the sequelae of the accident. She has laboured under those disabilities while at KPMG and performed more than satisfactorily and there is no reason to find that the future will be different.
I note the defendant's submission that the closing submissions do not fall within the original pleading and that it was conceded, quite properly, that there was no delay in completing her degree. As to the delay in finishing her qualifications as a Chartered Accountant, I am prepared to accept that the circumstances of the stress of her forthcoming court case added to the heavy load of the exams she needed to study for made it reasonable for Ms Jerkovic to put her studies on hold for a period. There is no reason for me to find on the evidence I have heard that once the stress of the court case is completed, as it now is, she will not be able to return to her studies and be as successful as she has hitherto been.
Once she has completed her qualifications, on her performance to date there is no reason for me to find that she will not be able to compete in the job market as successfully as she has to date.
In my opinion the submissions submitted on behalf of Ms Jerkovic under this heading tend to give a degree of exactness to a calculation which is in this case essentially the assessment of the loss of a chance to complete her qualifications as a Chartered Accountant on time. It also seems to be formulated on the basis that she will be permanently at a disadvantage in the job market. On what I have heard from her and others about her determination to succeed despite adversity, I am unable to find on the balance of probabilities that she would be at a disadvantage in the job market for the rest of her working life.
Having found that, however, in my opinion she has had a short term set back for which she should be compensated, namely the delay in completing her qualifications as a Charted Accountant. In my opinion she should be compensated for that loss and I award for future loss of earning capacity a loss for two years, rounded off the $15,500. That figure is based on the difference between her current salary and that she would have earned as a Charted Accountant as calculated in par 4 of the submissions dated 16 May.
There is no issue as to special damages or interest thereon.

Summary

General damages  $18,000
Past economic loss  $ 1,500
Future medical   $ 1,500
Loss of earning capacity   $15,500
$36,500