Jones v PUTLEY

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: JONES -v- PUTLEY [2004] WADC 49

CORAM: MAZZA DCJ

HEARD: 23-25 FEBRUARY 2004

DELIVERED : 17 MARCH 2004

FILE NO/S: CIV 274 of 2003

BETWEEN: MANDY-JANE JONES
Plaintiff
AND
PAUL WILLIAM PUTLEY
Defendant

Catchwords:

Personal injuries - quantum of damages - lower back and neck injuries - turns on own facts

Legislation:

National Health Act 1953, s 84, s 84CA, s 87, s 99G

Motor Vehicle (Third Party Insurance) Act 1943, s 3C(3), s 3C(5)

Supreme Court Act 1935, s 32

Result:

Judgment for the plaintiff in the sum of $271,395.33

Representation:

Counsel:

Plaintiff: Mr T Lampropolos
Defendant: Mr K N Allan

Solicitors:

Plaintiff: Simon Walters
Defendant: K N Allan

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

Ascic v Westel Co‑operative Ltd (1992) A Tort Rep 81‑159
Black v Motor Vehicle Insurance Trust [1986] WAR 32
Bowen v Tutte (1990) A Tort Rep 80‑251
Brasser v Graham [1985] WAR 180
George v Erikson (1999) 27 MVR 323
Jongen v CSR Ltd (1992) A Tort Rep 81‑192
Lawson v Flavel [2001] WASCA 272
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
Murphy v R (1989) 167 CLR 94
Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370
Ramsay v Watson (1961) 108 CLR 642
State Government Insurance Commission v Hitchcock, unreported FCt SCt of WA; Library No 970089; 11 March 1989
Thomas v O'Shea (1988) 7 MVR 559
Villasevil v Pickering (2001) 24 WAR 167

Case(s) also cited:

Andjelic v Marsland (1996) 186 CLR 20
Bresatz v Przibilla (1962) 108 CLR 541
Brodie v Singleton Shire Council (2001) 206 CLR 512
Brown v Rodrigues, unreported; FCt SCt of WA; Library No 970334A; 3 July 1997
Clark v Ryan (1960) 103 CLR 486
Crafter v Singh, unreported; SCt of WA; Library No 8202; date 12 April 1990
Fabo v Craig, unreported; DCt of WA; Library No 5023; 12 August 1996
Graham v Baker (1961) 106 CLR 340
HG v The Queen [1999] 197 CLR 414
Jones v Dunkell (1959) 101 CLR 298
Keen v McKay [1999] WASCA 193
Kember v Thackrah [2000]WASCA 198
Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Mullins Investments Pty Ltd v Richard Ellis (WA) Pty Ltd, unreported; SCt of WA; Library No 8608; 30 November 1990
Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370
R v Parker [1912] VLR 152
Ramsay v Watson (1961) 108 CLR 642
Redding v Lee (1983) 151 CLR 117
Southgate v Wateford (1990) 21 NSWLR 427
State Government Insurance Commission v Toomath, unreported; FCt SCt of WA; Library No 9602185; 24 April 1996
Tran v Clayden [2003] WASCA 318
Wylde v Aristondo 'Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997

MAZZA DCJ: The plaintiff claims damages from the defendant as a result of injuries that she allegedly sustained in a motor vehicle accident at Peppermint Grove on the evening of 8 August 2001. Liability has been admitted by the defendant and accordingly the only issue for me to determine is the quantum of damages.

Accident on 8 August 2001 and its immediate aftermath

At about 9.00 pm on 8 August 2001 the plaintiff was driving from her place of work along Stirling Highway to see her ex‑husband in order to get some papers signed. As she approached the vicinity of the suburb of Peppermint Grove the car immediately in front of her slowed down, apparently because a police random breath testing facility was on the road. As a result, the plaintiff's vehicle came to a stop. Unfortunately, the vehicle behind her, driven by the defendant, did not. The defendant's vehicle ran into the rear of the plaintiff's car. The impact of the collision was severe enough to cause the plaintiff's car to be subsequently written off.

The injuries sustained by the plaintiff

There is no dispute amongst all the medical practitioners who gave evidence at trial that the plaintiff suffered soft tissue injuries from the accident which affected, in particular, her neck and lower back. There was no evidence to suggest that the plaintiff had suffered any bony injury to her neck and lower back.

The injuries claimed by the plaintiff

In par 4 of the plaintiff's statement of claim she says that the injuries she suffered produced:
(a)pain, stiffness and tenderness of the neck, back, chest and both shoulders;
(b)limitation of movements of the neck, back, chest and both shoulders;
(c)pain radiating into the right arm and both legs;
(d)tingling in both hands;
(e)aching and numbness in the right leg;
(f)cold sensation in the right foot;
(g)muscle spasms in the neck;
(h)depression;
(i)headaches and discomfort together with sleep disturbance.
The plaintiff claims that she has sustained a partial disability of the cervical and lumbar spine and both shoulders which disabilities produce:
(a)pain, stiffness and tenderness of the back, back and both shoulders;
(b)limitation of movements of the neck, back and both shoulders;
(c)tingling in both hands;
(d)aching and numbness in the right leg;
(e)cold sensation in the right foot;
(f)depression;
(g)headaches and discomfort together with sleep disturbance.
The plaintiff claims that her partial disability is permanent and that she has not been capable of returning to work as a commercial cleaner since 10 October 2001 and that she will not be able to work in that occupation ever again.
The plaintiff claims that as a result of the injuries that she sustained in the accident she is entitled to damages for:
(a)her past medical expenses;
(b)her future medical and pharmaceutical expenses;
(c)past and future economic loss;
(d)past and future loss of superannuation benefits;
(e)pain, suffering and loss of enjoyment of life;
(f)gratuitous services provided to her by members of her family.
Speaking generally, the plaintiff says that she is entitled to a substantial payment of damages and, in particular, she is entitled to a significant award for future economic loss on the basis that she will not work again as a commercial cleaner and her residual earning capacity is very limited. She also says that she is entitled to be paid damages for past economic loss on the basis that she was incapable of doing any work from 10 October 2001 to the date of trial and she is entitled to substantial damages for pain, suffering and loss of enjoyment of life.

The defendant's case

The defendant says that whilst the plaintiff suffered a soft tissue injury to her neck and lower back as a result of the accident, the injuries would have resolved themselves naturally in fairly short time and that she had the capacity to return to work as a commercial cleaner relatively soon after the accident. The defendant's case is she has the capacity to work now and to her retirement as a commercial cleaner on a full time basis. The defendant alleges that the plaintiff has no demonstrable problem with her neck and lower back and that she has not done anything to get back to work in circumstances where she should have.
The defendant says that any damages awarded to the defendant for past economic loss, any future economic loss, and general damages should be modest. The defendant takes a similar position with respect to the claim for future medical and pharmaceutical expenses. As to gratuitous services, the defendant alleges that the plaintiff has no entitlement at all.

The main issues to be determined

The main issues to be determined by me are:
(a)has the plaintiff been unable to work as a commercial cleaner or in any capacity since 10 October 2001?
(b)will the plaintiff be able to work as a commercial cleaner again or is she permanently incapacitated for such work?
(c)if the plaintiff is permanently incapacitated what is her residual earning capacity, if any?
Both parties accept that my assessment of the credibility of the plaintiff is crucial in deciding the quantum of damages to be awarded to the plaintiff. The nature of soft tissue injuries is such that there is no objective test or procedure which can confirm a patient's claimed symptoms and disability. The plaintiff says that she has been suffering serious symptoms as a result of the injuries she sustained in the motor vehicle accident. These have continued for a period of over two years and remain to this day. She says that she is physically incapable of working as a commercial cleaner. The medical experts called in support of her case say that given the symptoms complained of by the complainant and given that those symptoms have not resolved in the more than two years since the motor vehicle accident, she is an individual whose soft tissue injuries have caused substantial ongoing symptoms and disability to the point where she will either never work again as a commercial cleaner or it is improbable that she will ever work again as a commercial cleaner.
The plaintiff's credibility is at the very foundation of her case and is a matter of fundamental importance to the just determination of her claim. Accordingly, the evidence of the witnesses called by the plaintiff and the defendant requires the closest scrutiny and analysis.

The plaintiff's witnesses

At trial, the plaintiff's counsel led evidence from:
(a)the plaintiff;
(b)the plaintiff's father, Mr Raymond Chidgie;
(c)a specialist physician in rheumatology, Dr Gino Louis Mastaglia;
(d)a consultant psychiatrist, Dr Claudio Nick De Felice;
(e)a clinical psychologist, Dr Jan Steel;
(f)a general practitioner who treated the plaintiff from December 2001 to date, Dr Louis Ann Smyth;
(g)a general practitioner who treated the plaintiff from the date of the accident until November 2001, Dr Fiona Sharon Coombes;
(h)the plaintiff's works supervisor, Ms Mary Cork;
(i)a payroll officer contracted to the plaintiff's former employer, Ms Mara Vinka Milos;
(j)a specialist occupational physician, adjunct Professor Andrew Craig Harper.
I summarise these witnesses' evidence as follows:

The plaintiff

The plaintiff was born on Christmas Day 1965. Her secondary education was at South Fremantle Senior High School. She finished her schooling at the end of year 9 or the start of year 10 when she became pregnant with her first child. Thereafter she has done no formal vocational training.
She gave birth to her eldest child, Cindy Smith in July 1981 and the following year or thereabouts she married Cindy's father.
In 1983 she obtained work as a cleaner at the Sunset Hospital in Nedlands. She remained there until approximately July 1985. At that time she was six months pregnant with her second child, Simon Smith, who was born in October 1985. She returned to the workforce in late 1985 or early 1986 in her old position at the Sunset Hospital.
In 1987 her son Simon suffered some ill health and was hospitalised. As a result she ceased work to look after him. In that same year she separated from her husband.
Between 1987 and 1991 she worked as a casual house‑cleaner cleaning a couple of houses per week.
In May 1991 her third child, a boy named Devin Jones, was born. In November 1991 she married her second husband, Michael Jones.
Just after Devin was born the plaintiff started working for Quirk Corporate ("Quirk"). She worked for Quirk on a part-time basis cleaning shopping centres for between 15 and 20 hours per week. At some point in time between 1991 and 1994 she worked on a part time basis at a delicatessen operated by her husband in Armadale in addition to her work for Quirk.
In 1994 she began cleaning for Quirk at the South Lakes Shopping Centre and the Phoenix Shopping Centre. She worked part-time cleaning those shopping centres until some time after her separation from Michael Jones which occurred in late 1999 or early 2000. Because of the extra financial burden caused by the separation, the plaintiff got full time work cleaning the South Lakes and Phoenix Shopping Centres for Quirk.
She described the job of commercial cleaning as requiring her to sweep and mop the floors, clean toilets and windows and operate a heavy buff and polish machine. She said that there was a lot of bending and lifting and that the pace of work was very fast. Winter, in particular, was a busy time because of the need to ensure that floor surfaces remained dry on wet days. She said that prior to the accident on 8 August 2001 she had no difficulties with her neck or back. She participated in recreational activities with her children such as playing in the park, rollerblading, horse riding and playing cricket and football.
The plaintiff testified as to the circumstances of the accident on 8 August 2001, which I outlined earlier. The following day she went to see her general practitioner, Dr Fiona Coombes. She said that she was very sore. She took 9 and 10 August 2001 off work but returned to work on Monday, 13 August 2001. By that time she was experiencing pain in her lower back, neck, right shoulder and right side and she suffered a constant headache. In order to work on 13 August 2001 she had to be medicated and heavily strapped. She said that she was in a daze as a result of the medication that she was on. Her work was slow and she was in a lot of pain and she was not coping.
She worked in this state until she went on a holiday to Thailand between 10 and 28 September 2001. The holiday was disappointing because of the effects of the injuries that she had suffered. When she returned she asked for another week off which was granted. She returned to work on 8 and 9 October 2001 but she was in such pain and the work was so difficult that she was unable to perform her duties. She ceased employment on 10 October 2001 and has not had paid employment since that time.
Between the date that the plaintiff ceased work and August 2002 the plaintiff's parents assisted her with work around the house such as sweeping, making the beds, washing, cooking, gardening, mowing the lawns and the like. However, in or about August 2002 the plaintiff and her parents had a falling out and as a result her son Simon and her daughter Cindy had to perform some of the services that the plaintiff's mother and father had performed although a lot of housework simply did not get done.
Prior to the accident the complainant said that she was in effect even tempered but after the accident she became very bad tempered. This manifested itself in the dispute that she had with her parents in August 2002.
In terms of her social life, she had tried to keep up with what she had done prior to the accident but she found that because of her depressed state of mind she was drinking too much. Eventually she stopped going out because the drinking was affecting her children. She was unable to participate in her children's recreational activities and she found this difficult to tolerate.
She said that she had attempted to do some retraining but Centrelink was not much help. She could not afford courses at TAFE because she was struggling to make ends meet on a supporting parent's benefit. She said that her income was not sufficient to meet her bills, in particular her mortgage. Eventually the financial pressure of the mortgage in particular forced her to sell her house. The house was sold on 17 December 2003 and she is now living in rented accommodation. She testified that she has no training or experience in secretarial or office work. She has no skills in typing or with computers. She indicated that in the future she realised that she would have to retrain. As she put it "I have to do something". She indicated that she would like to investigate the possibilities of working in natural medicine or herbology.
Currently she still experiences lower back pain and pain in her right shoulder as well as a lot of neck pain and headaches. She said that her right leg was now "all right". She said that her emotional state now was much better and had found counselling with clinical psychologist Jan Steel beneficial. The only medication that she is taking are painkillers, Panamax (a brand of paracetamol) and Tramal (a brand of tramadol).
Immediately before the accident she was working a full time fortnightly roster. The first week saw her work at the South Lakes Shopping Centre on Mondays, Tuesdays, Wednesdays and Friday from 6.00 pm to 8.30 pm, and on Saturdays from 6.30 am to 8.30 am and 6.30 pm to 8.00 pm. During this first week of the fortnightly cycle she worked at the Phoenix Shopping Centre on Mondays, Tuesdays and Wednesdays between 9.00 am and 5.00 pm and on Thursdays between 5.00 pm and 9.00 pm. In the second week of the fortnightly cycle she worked the same hours as in the first week at the South Lakes Shopping Centre and at the Phoenix Shopping Centre save that she did not work on Mondays at the Phoenix Shopping Centre.
In cross-examination the plaintiff was asked how it was, given her injuries, that she could work between 13 August and 7 September 2001. She said that she did so with great difficulty. She said that she was unable to do her normal duties and in particular was unable to bend, sweep or mop. Her employers were not happy about her ability to work but she had to support her children and pay the mortgage. She was only able to get by because of the heavy medication and strapping.
She vehemently denied propositions put to her by counsel for the defendant that she did not want to work. She said that if she could work she would work as a cleaner doing the hours that she had done prior to the accident. She said that her injuries now precluded her from working as a commercial cleaner.
She agreed that she had not sought work in any other fields of activity since her accident including work as a shop assistant. She said that she had not enrolled in a TAFE course and that she had not sought an advance from the Insurance Commission of Western Australia to enable her to enrol in a TAFE course.
The plaintiff testified that she did not think that she could get work as a cleaner. She said that some days were better than others but sometimes the pain is so bad that she feared that if she worked she may work one day and then be off for another two or three because of her injuries. She also said that because of her age and back injury she would find work hard to find especially as young, fit people are unable to find work.

Mr Chidgie

Mr Chidgie testified that before the accident he had a very good relationship with his daughter. He said that he and his wife had not had any trouble with her and that she was a good daughter. In terms of her pre‑accident personality, her father described her as "quite a fun girl" and "a very active person". Mr Chidgie described the plaintiff as coping very well with her life prior to the accident in terms of her ability to organise her household and her bills.
Prior to the accident Mr Chidgie helped his daughter by gardening, performing household repairs, weeding, lawn mowing and the like.
After the accident he described the plaintiff's personality in these terms:
"Well after the accident, after a short period, she started getting very moody, losing her temper a lot, crying a lot. Right up to ‑ we actually fell out with Mandy on – around August 02 through her mood swings. The wife used to go up and doing (sic) cleaning for her and, you know, making beds, things like that, and she was making the wife quite upset with her mood swings, the way she was – you know, different things she was saying, and then it was – as I said the beginning of August my wife just couldn't cope with it anymore. It used to be making her ill. Anyway, she decided to not go up anymore. My granddaughter decided to do it instead of her grandmother and after a short period of time Mandy used to call down to see us and she was – she owed us some money, actually, and this money was mentioned in the conversation and she got very uptight about it and lost her temper, started crying bounced out of the house. The following day she came up, bounced in the house, threw some money at her mother and bounced out and we never saw her again for over a year." (T 46)

Mr Chidgie said that he and his family had resumed contact with the plaintiff on Christmas Day 2003. Since then he and his wife have seen the plaintiff but not as often as they used to. He observed that:
"… she still loses her temper. She still gets upset over things. The slightest thing, she can still break down and cry, you know so we just see – we sort of keep quiet around her if you know what I mean." (T 47)
Mr Chidgie said that at the present time:
"She's coping terrible now, really, really bad." (T 48)

Dr Mastaglia

Dr Mastaglia has been a specialist in rheumatology for over 20 years. He saw the plaintiff on two occasions, on 15 November 2002 and 11 February 2004. He prepared two reports dated 15 November 2002 and 16 February 2004 (ex 2.32-2.37).
Dr Mastaglia first saw the plaintiff approximately 15 months after the accident. At that point in time his opinion was that:
"Her current work capacity is significantly limited to the point where she is unable to work in any capacity as a cleaner." (T 51)
He went on to say:
"She will be unable to work as a cleaner for the foreseeable future and in any capacity." (T 52)
Dr Mastaglia was of the view that she could perform "basically sedentary" tasks which did not involve any lifting or repetition. He thought that the plaintiff should especially avoid repetitive tasks involving the upper limbs and the like and that the plaintiff should avoid bending, lifting, squatting and working in confined places. He doubted that the plaintiff had a capacity to be a word processor operator or a data entry operator using a computer because of her "pain syndrome" and because in the time since the accident the plaintiff had become physically weak and had lost all her muscle tone. He believed that with a long term exercise program she would recover her muscle tone.
By the time that Dr Mastaglia had seen the plaintiff on 16 February 2004 it was more than two and a half years since the accident. In his report dated 16 February 2004 he said:
"The patient remains significantly physically impaired to carry out household duties, let alone work. Unfortunately, through lack of funding she is unable to retrain. However the level of pain is such that she would have struggled to find gainful employment anyway."
Dr Mastaglia reported that the plaintiff complained of "reasonably significant" levels of pain in her low back, neck and shoulder. In his opinion the plaintiff's "restricted work capacity in the future is indefinite". He said that the plaintiff would not be able to return to employment in any capacity and that "this significant restriction in her life is as a result of her accident injuries".
Dr Mastaglia's justification for his opinion as to her level of unfitness and its duration is as follows:
"We're talking about an accident which occurred 2½ years ago so we're looking at a patient who (1) is in chronic pain: (2) has lost a significant muscle tone. Her cardiovascular fitness is very poor, let alone her capacity to do any task. As I mentioned before, if you try and do normal activities in this type of situation the patient will panic because the pain will increase, so it's different to you and I. We do day‑to‑day activities, we do some exercise and we are relatively fit. This patient isn't. To get her back to baseline will take a significant effort. She's having a go through some of the exercise programs she's done, but I think she's very well short of where she needs to be." (T 55)
Dr Mastaglia was of the view that in the future she would need regular visits to her general practitioner and a continuation of the paracetamol and tramadol that she was taking as well as an exercise program.
Dr Mastaglia thought that the plaintiff had a 10 per cent physical disability of her lumbar spine, a 3 per cent disability of her cervical spine and a 3 per cent disability of her right shoulder. At an earlier point Dr Mastaglia thought that she had a 20 per cent disability of her cervical spine and a 20 per cent disability of her lumbar spine but he agreed with counsel for the defendant that there had been some improvement and he had become more conservative in his estimates over time.
He agreed with the defendant's counsel that the question of how incapacitated she was depended entirely upon whether the plaintiff was a truthful historian. Dr Mastaglia agreed that there was no objective test which could verify the extent to which the plaintiff says she is incapacitated.

Dr De Felice

Dr De Felice saw the plaintiff on 17 September 2003 and provided a report dated the same day (ex 2.16-2.23). Dr De Felice expressed his diagnosis as follows:
"Ms Jones' main psychiatric problem is that she has suffered from a major depressive episode. I make this diagnosis pursuant to the DSM IV as in my opinion, Ms Jones meets the criteria for major depression."
Dr De Felice said that the DSM‑IV is a standardised diagnostic system produced by the American Psychiatric Association.
According to Dr De Felice a major depressive disorder is one where a number of depressive symptoms are present: that is, dysphoric symptoms, people feel low in their mood, they lose enjoyment or pleasure in activities, they start to lose interest in things, they become more withdrawn, they may lose concentration and have memory troubles, they have sleep disturbances, they feel negative about themselves. The plaintiff described, it appears, at least some of these symptoms to him.
Further, Dr De Felice considered that the plaintiff was suffering from an adjustment disorder with anxious mood. This condition is different to depression. It has manifested itself in the plaintiff having nightmares and in terms of her driving she drives less than she used to and when she drives she sometimes feels anxious.
Dr De Felice noted that the financial consequences of not working including the loss of dignity in not being able to work was a contributor to her psychiatric and psychological problems especially in light of the fact that the plaintiff has the primary responsibility of raising her children.
Dr De Felice said that whilst the plaintiff's physical symptoms were the predominant limitation to her work capacity her depression added to that limitation but in itself her psychiatric condition would not have totally restricted her capacity to work.
He said that from the point of view of her psychiatric condition the plaintiff would be able to start a graduated return to work but, he stressed, that this opinion did not take into account her alleged physical symptoms.
Dr De Felice's opinion was that the plaintiff's psychological disability was in the order of 5 per cent.
Dr De Felice said that in the future the plaintiff would require "both medication and non‑medication treatments" involving anti‑depressants described by her general practitioner and further psychological treatment through someone like Ms Steel. Dr De Felice thought that the plaintiff may also be assisted by a pain management program which included some psychological strategies to manage pain.
In cross‑examination, Dr De Felice supported his diagnosis of a major depressive disorder by referring to a number of things that the plaintiff said to him. She described her mood to Dr De Felice in terms of "it felt like a big cloud was following me". The plaintiff apparently told Dr De Felice that she had experienced thoughts of suicide and that her enjoyment and pleasure in her activities was "nil". The plaintiff also informed Dr De Felice that her concentration was poor and her memory was difficult. She also reported that her speech had been affected since the accident because she was "stuttering more". The plaintiff said that if she did not have to go anywhere she was less inclined to attend to her grooming and further, that her energies levels had dropped and she had put on weight.
Dr De Felice agreed that the source of information which enabled him to make his diagnosis of a major depressive episode was from the plaintiff herself. Dr De Felice said in cross‑examination that the plaintiff's psychiatric symptoms in themselves might cause a delay in her return to the workforce and that her return to the workforce may need to be graduated.

Ms Steel

The plaintiff was referred to Ms Steel by the plaintiff's general practitioner. She saw the plaintiff for the first time on 22 May 2003 and then saw her on a number of occasions up to 25 November 2003. Ms Steel treated the plaintiff during this six month period using in the context of an overall counselling program, different forms of therapy.
At the request of the plaintiff's solicitor, Ms Steel prepared two reports dated 2 June and 9 October 2003 (exhibits 2.10-2.15). Other reports she prepared for the defendant's insurer were tendered into evidence (exhibit 3), although they were not referred to by either party.
In her report dated 2 June 2003 Ms Steel set out a number of things that she was told by the plaintiff at her initial consultation on 22 May 2003. According to Ms Steel:
"Ms Jones stated that she is angry and frustrated that she is unable to return to work as a commercial cleaner. As a sole supporting parent she feels this most keenly as she is the sole breadwinner. It means financial hardship for herself and her sons now and continued on‑going financial hardship … She is otherwise unskilled and feels hopeless and angry when told she will have to re‑train to get back into the work force."
The plaintiff went on to say to Ms Steel:
"She is very frustrated and upset that she is unable to do the activities and sports with her sons that she used to do. She was teary and upset as she used to go roller blading and horse riding … with her sons."
Ms Steel, on the basis of the initial consultation, diagnosed an adjustment disorder with depressed mood consistent with the criteria in DSM‑IV.
Ms Steel thought that the plaintiff would benefit from eight to 10 treatment consultations which would result in resolution of the adjustment disorder in her opinion. It appears that the plaintiff embarked upon such a program.
In her report dated 9 October 2003 Ms Steel observed some improvement and thought that her depressive symptoms were mild.
In cross‑examination, Ms Steel confirmed that she had not seen the plaintiff since 25 November 2003 and that at that point, the plaintiff had not finished her treatment in that she was still experiencing anxiety under some circumstances when she was driving. Ms Steel said that she had a further appointment to see the plaintiff but the plaintiff did not attend. Ms Steel thought that the plaintiff needed another three to four sessions taken on a weekly basis to reduce her anxiety even further.

Dr Louise Smyth

Dr Smyth treated the plaintiff as her general practitioner from December 2001 to January 2004. During that time she has seen the plaintiff on "12 or so occasions". During that time she prepared a total of six reports for the plaintiff's solicitor dated 10 December 2001, 4 April and 2 October 2002, 20 March, 12 May and 9 October 2003 (exhibits 2.1‑2.9).
On 4 April 2002 Dr Smyth reported that the plaintiff continued to suffer predominantly low back pain which was compatible with a soft tissue injury in that area.
In a report dated 20 March 2003 she said:
"Due to the nature of her injuries and the type of work for which she is qualified, she has not returned to work since [the accident]. In February, 2002 she was declared fit for 'light duties' but no such work is available in her cleaning job. She is educationally unqualified for alternative duties."
Dr Smyth said that in evidence when she spoke of "light duties" she meant, in the context of an industrial cleaner, doing things like dusting relieved by frequent rest periods. She did not expect the plaintiff to be able to lift or mop because of the forward flexion on her lumbar spine. Dr Smyth did not expect the plaintiff to be able to use an industrial vacuum cleaner because of the weight necessary to pull the machine.
In her report dated 12 May 2003 she stated that the plaintiff was, in her opinion, "no longer capable of returning to her previous type of employment" and she was unable to say how long it would remain so. She believed that the plaintiff was capable of sedentary employment such as "clerical or similar duties".
Dr Smyth reported on 9 October 2003 that apart from some improvement in her spinal movement there was no alteration to the opinion which she gave on 12 May 2003. She observed that at her last consultation with the plaintiff in January 2004 the plaintiff had an inability to fully flex the lumbar spine or to raise her legs to a similar degree to what she had observed on previous occasions.
Dr Smyth said that the plaintiff was taking paracetamol when she needed mild analgesic relief. The plaintiff was prescribed Tramal at night so that she could get a good night's sleep with the consequence that she would be better able to deal with her pain the following day.
In Dr Smyth's opinion the type of injuries sustained by the plaintiff would make her more susceptible to earlier acceleration of degenerative disease of her spine which would, in turn, lead to earlier retirement.
Dr Smyth was of the view that the plaintiff would continue to take Panamax and Tramal indefinitely.
Dr Smyth said that it would be desirable for her to see a general practitioner "probably about monthly" in order to monitor the plaintiff's use of medication, and in particular Tramal.
In cross‑examination Dr Smyth made it plain that her opinions relied upon the plaintiff being truthful when she told her of her history and symptoms. Dr Smyth thought that what the plaintiff had told her was supported, in some measure by observations that she made of the plaintiff in forward flexion tests that she had undertaken during the period that she had treated the plaintiff. To this extent, her opinion was that the plaintiff's physical examination was consistent with her being a truthful historian.
The defendant's counsel put to her that her opinion that the plaintiff was likely to have earlier acceleration of degenerative disease of the spine was "nonsense". Dr Smyth maintained her view notwithstanding that no other doctor was of that opinion.
Dr Smyth denied the suggestion put to her by the defendant's counsel that she was an advocate for the plaintiff.
In re‑examination, Dr Smyth said that the plaintiff had been consistent within an acceptable range in tests to measure the forward flexion of the lumbar spine which she had regularly carried out whilst treating the plaintiff.
In answer to questions put to her by me concerning the cost of future medical treatment, Dr Smyth said that her personal practice was not to charge a fee for a patient who came to her only for the purpose of renewing a prescription. However, the usual fee for a medical consultation was $35 and a follow‑up appointment, which I understood to be a short consultation, was about $22.

Dr Fiona Coombes

Dr Coombes practises as a general practitioner and was the plaintiff's general practitioner between 9 August and 19 November 2001. Dr Coombes produced three reports for the plaintiff's solicitor dated 18 October, 30 October and 7 December 2001 (exhibits 2.38‑2.42).
When the plaintiff saw Dr Coombes the day after the accident on 9 August 2001 she presented with pain in her neck, headaches and tingling in her hands. The plaintiff complained that the pain in her neck worsened over the next few weeks and began to include her lower back and shoulders. Dr Coombes made a diagnosis of soft tissue injury to the neck and lower back.
Dr Coombes noted that the plaintiff was totally incapacitated from work from 10 – 12 August, 8 – 14 October and 18 October to 3 November 2001. Dr Coombes noted that the plaintiff had three weeks holiday in September/October 2001 which had apparently been arranged before the accident.
In her report dated 18 October 2001 Dr Coombes expected the plaintiff to make a gradual and full recovery on the basis that generally, soft tissue injuries do not lead to permanent disability.
In her report dated 7 December 2001 Dr Coombes noted that the plaintiff was continuing to suffer from neck and low back pain. She still expected the plaintiff to make a good recovery and did not expect her to have a "compromised work capacity on a long‑term basis". She said that she expected the plaintiff was "likely to make a full recovery from her injuries".
In cross‑examination Dr Coombes said that her opinion that soft tissue injuries generally do not lead to permanent disability was a general medical view. She said:
"A lot of patients that we see what we term soft tissue injuries after motor vehicle accidents – generally most of them would make a good recovery in the long term, although the amount of time it may take them to achieve full recovery is very variable." (T 120)

Mary Cork

Ms Cork, as at 24 February 2004, was the senior area manager for a cleaning company called Mastercare Property Services. Prior to working with Mastercare she worked with a company called OCS for a period of five months immediately after it had acquired the plaintiff's former employer, Quirk. Prior to that takeover Ms Cork worked for Quirk for a period of 22 years. She testified that she had started off as a cleaner and then she had been promoted through the ranks and eventually, in 1996, she became the operations manager for Quirk.
Ms Cork was the person who initially employed the plaintiff. Ms Cork confirmed that the plaintiff worked at the Phoenix Shopping Centre and the South Lakes Shopping Centre as a cleaner for a period of approximately 10 or 11 years. When the plaintiff first started at Quirk she started on a part-time basis at the South Lakes Shopping Centre and later her hours increased when Ms Cork needed another cleaner at the Phoenix Shopping Centre. In the months immediately prior to trial the plaintiff was working approximately 40 hours a week by doing shifts at both the Phoenix and South Lakes Shopping Centres.
Ms Cork described the duties that the plaintiff was required to perform as a commercial cleaner in shopping centres as follows:
"Because of public liability, a cleaner has to be on the floor at all times so in the size of a shopping centre like Phoenix is, there must be two cleaners in the centre, split into two, so they must pass the same place every 15 minutes so they have to log a book that says they have done that. That is sweeping, fringe mopping, mopping, cleaning toilets. It's all done as part of their duties in their shift. They empty bins: they do everything that is entailed apart from scrubbing and buffing floors which is done by another cleaner at night, but they do everything, mop spillages, everything – all day. It's continuous apart from their lunchbreaks." (T 125)
When asked whether a commercial cleaner normally remains in the upright position, Ms Cork said:
"No, they have to bend. They have to be able to get under seats and mop. They sweep: they clean toilets. You have got to bend. You can't just do it standing up, no." (T125‑126)
When asked to compare the physical nature of commercial cleaning and home cleaning Ms Cork said:
"Well, home cleaning you can do at your own time but in the centre you don't have that luxury. You are on a schedule. You have to clean because if you don't someone could slip or fall and then the centre has a claim." (T126)
Ms Cork described the plaintiff as a good worker who was neat, tidy and reliable. If she asked the plaintiff to do something it would get done and if she wanted some extra work done the plaintiff would come and help her.
Immediately after the accident the plaintiff came back to work but although she tried to do her duties she could not do them without the assistance of other cleaners who had to cover for her. According to Ms Cork's observations the plaintiff "tried her hardest" but it was extremely difficult for the plaintiff and when she returned from holidays and worked two or three more days it was obvious to Ms Cork that "it wasn't working".

Ms Cork said that there was no light duties job available for the plaintiff in shopping centres. She went on to say that the plaintiff may have got work as a day cleaner in office buildings but she would not have got the hours because most buildings have only got a one day cleaner who either cleans in the morning or at night.
In cross‑examination it became apparent that Quirk's successor, OCS, had lost the contract to clean the Phoenix Shopping Centre although it retained the contract to clean the Southlands Shopping Centre. Ms Cork's evidence was to the effect that this occurred sometime in 2003, although no evidence was led as to when precisely OCS ceased cleaning at the Phoenix Shopping Centre.

Ms Milos

Ms Milos was a contract pay-roll officer who worked at Quirk in November 2001. She provided the plaintiff's solicitors with details of the hours worked by the plaintiff, and the wages that were paid to her by Quirk. These details were contained in documents tendered in evidence (ex 4). Although the plaintiff's hours varied, on the week of her accident the plaintiff worked 36.5 hours. The plaintiff's average gross earnings for the three months prior to the accident was $507.45 or $414.62 net.
It is apparent from documents tendered through this witness that shortly after the plaintiff resigned her employment she received her unpaid sick leave and holiday entitlements.

Professor Harper

Professor Harper has been a specialist occupational physician since 1986. He testified that an occupational physician is involved in assessing the health impacts of the workplace and on assessing and managing illness and injuries that affect people's ability to go to work.
Professor Harper saw the plaintiff on 7 April 2003 and 3 February 2004. He provided the plaintiff's solicitor with reports dated 7 April 2003 and 5 February 2004 (ex 2.24-2.31).
At his first meeting with the plaintiff, Professor Harper noted that the plaintiff complained of low back pain which was constant but worse in the morning and tended to improve during the day. She told him that her symptoms were aggravated by cleaning, sweeping, mopping, hanging washing, prolonged sitting, walking, lifting and twisting. She also complained of pain extending to the ankle and her right leg. She also complained of pain down both sides of her neck which occurred three times a week each time lasting several hours. She told Professor Harper that she suffered from regular headaches and described adverse psychological changes since the accident.
Professor Harper diagnosed "a strain injury to both the cervical and lumbar spine". In his opinion, the plaintiff was incapacitated from her work as a commercial cleaner but was capable of approximately 20 hours per week in a sedentary occupation provided that she avoided heavy lifting, repetitive bending and repetitive stretching. If she found such an occupation he did not expect her physical restrictions to preclude her working until retirement age but he thought that the injuries precluded her from returning to work as a cleaner or to a manual occupation. The restrictions which he described, in his opinion, "significantly compromise her competitiveness in the open workforce."
In examination‑in‑chief Professor Harper said that he had in mind when he spoke in his report of a sedentary occupation, work as a receptionist or some other office duties.
Professor Harper said that he would not recommend the plaintiff return to work as a cleaner:
"… because of the physical demand of that and the fact that the activities involved are those activities which aggravate her symptoms, namely bending, lifting and reaching. The sorts of things that stir her symptoms are the sorts of things that you need to do if you are an industrial or other cleaner." (T140)
Professor Harper's opinion based on his first consultation with the plaintiff was that she had a "mild residual disability of the cervical and lumbar spine" and that the initial injury was "mild". He recommended an increase in exercise for which a gym membership costing approximately $700 would be worthwhile and he also envisaged ongoing follow‑up by her general practitioner with an estimated cost of $800. He felt that she would benefit from a brief course of psychological counselling and he gave the plaintiff the name of Jan Steel.
Professor Harper's second report noted a slight improvement with regard to the severity of her lower back pain. Further, the pain which had radiated down her right leg was much less frequent. Professor Harper also noted improvement in the frequency of her headaches and an apparent improvement in her psychological state.
He noted that the plaintiff said that "symptoms continue to be aggravated by bending, doing housework, gardening, carrying and prolonged sitting at a desk."
In his opinion the plaintiff was not able to return to work as a commercial cleaner and he presently advised against her returning to work as a commercial cleaner in the future.
On this point, in examination‑in‑chief, he said:
"Well, firstly, if someone has back pain for 2½ years after an injury, the likelihood is that they're going to continue to have symptoms and my estimation in her case is that even if there is an improvement to the point that her symptoms fully resolve, I feel it is unlikely that she will be able to tolerate the bending and lifting and reaching activities without re‑aggravating that pain. In other words, I feel even though – if she were, for example, to have a resolution of her symptoms, I think with 2½ years of the pain it's improbable that she could then return to a physically active job, tolerate it, do it and be free of symptoms." (T141)
Professor Harper said in his report dated 7 April 2003 that he thought the plaintiff had a current work capacity for part-time sedentary work of approximately 20 hours a week restricted to positions that avoid lifting, bending and stretching. He believed that the plaintiff would be able to work as a secretary or receptionist or as a clerk with appropriate training. However, in order for her to be able to perform any of these duties the plaintiff would need to retrain. As to this, Professor Harper said in examination‑in‑chief:
"I think that this is a real issue for her because I think her employability is certainly very low for these very reasons: due to her previous educational level or her educational level, the fact that she has not had experience in the workplace in a clerical and office place position and her age and the fact that she has got to now go back to school to acquire these skills, it's a steep hill for her to climb and I think her employability is low and I think I addressed that in my first report, but in terms of a sort of work, which would accommodate her physically, I think that's an area but I do admit that there's a pretty high degree of difficulty to what I'm suggesting here." (T 142)
In cross‑examination Professor Harper agreed that his view of the plaintiff's work capacity was based on the complaints that the plaintiff made to him and his acceptance of those complaints. He further agreed that there was no real objective test that could be applied to verify the truth of what she had told him. Professor Harper said that he did not rely on what the plaintiff told him "as being the absolute truth". He said that he put the information given to him by the plaintiff together with information he obtained from a physical examination. In the present case, Professor Harper said that what the plaintiff had told him about the injury "was presented in a medically consistent coherent manner".
Professor Harper explained in re‑examination what he meant by the expression "medically consistent". He said:
"I begin firstly with the history of the injury and I get the person to tell me about different activities they do, and I know that some activities will both involve bending so I will see whether they say 'I can play tennis but I can't play squash', for example. That's inconsistent with the nature of the injury given the two sports are similar so I'm looking for biologically consistent attributes in terms of what people report and I ask about a lot of different things so I'm – as an occupational doctor, I'm looking at the impact of injury and illness on people's lives and so I'm comparing what they say with regard to doing this activity compared with that activity and if they're consistent because I understand something about these activities, I then say to you that they're medically consistent." (T 142)

The defendant's witnesses

The defendant called two witnesses, a specialist orthopaedic surgeon, Mr Nicholas Constantine Anastas, and a specialist rehabilitation physician, Dr John Graham Rosenthal.

Mr Anastas

Mr Anastas has been in practice for 34 years. He is presently an emeritus consultant at Royal Perth Hospital and is being considered for emeritus status at Princess Margaret Hospital. He has very considerable experience in medico‑legal work for both plaintiffs and defendants.
He provided the defendant's insurer with a report dated 12 August 2003 (ex 6.2) which was prepared immediately after he saw the plaintiff. At that consultation she complained that she suffered from neck pain most of the time which radiated to behind her right shoulder. She said that she suffered from approximately six headaches a week and that she suffered from persistent low back pain which radiated to her right leg. She told Mr Anastas that her symptoms were aggravated by things such as sweeping, mopping, dusting on an angle, twisting her trunk and gardening.
Mr Anastas said that she displayed "features consistent with a soft tissue musculo‑ligamentous type injury to her cervical spine and lumbo‑sacral spine". He did not believe that her present symptoms and restrictions were permanent. In examination‑in‑chief he said:
"My opinion was, on the basis of my examination, together in considering the history and the imaging, that she had sustained a soft tissue, musculoligamentous injury, to her cervical spine, lumbosacral spine, and with all soft tissues (sic) injuries the body does have a natural tendency to heal itself spontaneously from such injuries and accordingly that's the basis of my answer to question 5 in saying 'I do not believe that her permanent present symptoms and restrictions are permanent.' " (T153)
Mr Anastas believed that the plaintiff could graduate to commercial cleaning duties starting on a full time basis and then graduating over a period of about three months to full time work.
Mr Anastas described the plaintiff's complaints of pain as "totally subjective" and thought the likelihood of any degeneration occurring in the spine as a result of a soft tissue injury as being impossible.
In cross‑examination Mr Anastas said that the consultation he had with the plaintiff lasted 40 minutes and during that time he took a history and conducted a medical examination. Mr Anastas confirmed in cross‑examination that his opinion that the plaintiff's present symptoms and restrictions are not permanent is based on experience that normally soft tissue injuries get better. Mr Anastas agreed that he had seen many people who continued to complain of symptoms resulting from soft tissue injuries long after he expected them to have got better.
Mr Anastas explained in cross‑examination that his view that the plaintiff would need a graduated return to the workforce was not because he accepted that she had some physical disability but rather to take into account that she had not worked for such a long time that she would need conditioning to return to work.
Mr Anastas said that he accepted what the plaintiff told him as being genuine. He said that it was not possible to conduct a medical practice otherwise. He said that although in the course of an examination he does not go looking for inconsistencies if they are obvious he documents them. In the case of the plaintiff he could not find any inconsistencies.
In re‑examination the defendant's counsel returned to Mr Anastas' testimony that some patients continue to complain of symptoms from soft tissue injuries long after he would have expected those symptoms to have abated. Mr Anastas, when asked to draw any conclusions from that set of circumstances, stated that the continuing symptoms would not be due to the initial injury.

Dr Rosenthal

Dr Rosenthal has been in medical practice for 33 years and for the past 15 years he has specialised in the medico‑legal and rehabilitative aspects of personal injury. His experience in motor vehicle trauma extends to 15,000 cases. He is an external consultant in compensable staff injury at Royal Perth Hospital and he has a visiting appointment as a physician in legal and rehabilitation medicine at Sir Charles Gairdner Hospital.
Dr Rosenthal saw the plaintiff on 2 July 2003 and prepared a report on the same day (exhibit 10.2). In his opinion the plaintiff had sustained soft tissue or musculo‑ligamentous strain injuries to her neck and lower back. In his report to the defendant's insurer he said that: "Her ongoing symptoms are low grade and certainly compatible to a return to a normal productive lifestyle."
In examination‑in‑chief he explained why he had come to that conclusion as follows:
"Because the findings are not suggestive of her carrying a significant musculo disability. The findings are low grade. Her complaints appear low grade in the context of the history, the clinical findings, her requirements for medication. The radiological findings. There just isn't any identified major disability there." (T171)
He went on to say with regard to the prognosis for soft tissue injuries generally:
"… In these circumstances where there isn't a neurological injury, there isn't a disc injury, there hasn't been an anatomical disruption and the investigations are normal and the level of function on clinical examination is adequate, then its hard to infer long‑term permanent disability. My experience is that these people get better. Now, how do I know that? Because I see lots of people who have had second and third motor vehicle claims and many of these people have received economic loss compensation, but what happens is that when I take a subsequent history they say 'Look, after settlement it took me a few months, sometimes six, but I took control of the situation. I exercise, I got out of the hands of doctors. I started to feel good, took control of my life and went back to work.' Now I frequently hear that, and what also supports it is the epidemiology. You know, there is an enormity of community data in terms of rehabilitation outcomes and so on if you compare drivers who aren't – who were at fault in their injuries: if you compare the outcome of soft tissue sporting injuries: if you compare people who have more serious injuries and are back functioning. So it's based on an experiential sense, it's based on a clinical theme and it's based on epidemiological data which is available." (T172)
On physical examination, Dr Rosenthal noted some inconsistency between the distance that the plaintiff was able to bend forward when standing and the distance that she was able to reach when she was sitting on a couch with her legs extended 90 degrees and bending forward. Although the configuration in the two stances was geometrically identical one was painful for the plaintiff and the other was not. Having noted this inconsistency he readily stated that it could be attributable to anticipatory responses, anxiety or hypervigilant pain behaviour. He did not regard the matter as a litmus test of honesty.
Dr Rosenthal's opinion was that if the plaintiff was given the opportunity to improve her fitness, to build up and graduate her muscle strength she would be able to resume her pre‑accident occupation in the order of three or four months. In cross‑examination Dr Rosenthal said that the majority of whiplash soft tissue injuries get better but "not always".

Agreement as to the cost of medication

At the end of the evidence I was told that counsel for the parties had agreed that the maximum cost to the plaintiff for a prescription of 20 100mg Tramal tablets is $16.01 and the maximum cost to the plaintiff of a packet of 100 500mg paracetamol tablets is $8.60.

The plaintiff's credibility

I paid very careful attention to the plaintiff when she gave evidence before me. I paid particular attention to the answers that she gave in cross‑examination. I have also examined the plaintiff's evidence in light of the other evidence called at trial. I was very favourably impressed by the plaintiff as a witness.
In terms of the evidence the plaintiff gave at trial, I found her to be open and honest. Her evidence was internally consistent and her demeanour in the witness box indicated to me that she was a witness of the truth.
Her history in the workforce from the time she left school up to her resignation from Quirk showed that from apart from short periods for the birth of her two children, she had worked consistently. The evidence of Mary Cork, confirmed the impression that I had gained from the plaintiff in evidence which was that she was a good worker not prone to taking unnecessary time off work. In fact, the evidence showed that she had sought extra work from her employer when she and her second husband separated and she needed more income to better support her children.
I was impressed by the way that the plaintiff returned to work in the period after the accident. The defendant's counsel argued that this period of work showed that from the outset she had a capacity to work as commercial cleaner on a full time basis. With respect to the defendant's counsel, I disagree. The evidence of both the plaintiff and Mary Cork showed that she went to work in very considerable pain, strapped up by a physiotherapist and medicated to provide some pain relief. It was clear that she was unable to perform her normal duties and that she had to have the assistance of others to get through her working day. The impression I gained from her efforts to return to work was that she genuinely wanted to work but was physically unable to do so as a result of the injuries that she had sustained in the accident. Her desire to return to work is manifested by the fact that she was prepared to be strapped and to take medication. In the end the plaintiff found it all too much and it is for this reason that she stopped work from 10 October 2001. Ms Cork confirmed that her work between the date of the accident and her resignation was done with difficulty and with the help of others. Obviously, this was a situation that could not continue.
Plainly, since the accident, the plaintiff has seen a number of medical practitioners as well as a clinical psychologist. Save for the inconsistency mentioned by Dr Rosenthal which he agreed was of no great moment, none of the medical practitioners or the clinical psychologist found the complainant to be inconsistent in the description of her symptoms or in describing the activities that she could or could not perform. Further, in the period of time that has elapsed since the accident, the plaintiff readily reported to her doctors and clinical psychologist improvements to her well‑being. For example, the plaintiff told Professor Harper that she was improving physically and emotionally. She told him that the pain that she had experienced in her right leg and her headache had improved and that she was not as depressed. He also noted that she said that her lower back injury had slightly improved. The improvement in her psychological state was noted by Ms Jan Steel and Dr Mastaglia.
In terms of her physical symptoms I accept that the plaintiff has in the past experienced significant pain in her lower back which radiated down her right leg. I also accept that she has experienced significant pain in her cervical spine radiating to her right shoulder and chest. I accept that she has suffered from headache. I accept that these symptoms were of such a magnitude as to force her to cease her employment on 10 October 2001.

I must also give some weight to the possibility that the plaintiff may get better to the point where she could return to a physically active job. I am aware that Professor Harper thought this "improbable" but I do not believe that he meant by the use of that word that the chance of her returning to a physically active job was so low as to be regarded as speculative.
Taking into account all relevant matters pertaining to this case I deduct 25 per cent in order to allow for the plaintiff's residual working capacity.
In addition, I shall deduct 10 per cent to take into account adverse contingencies. I am aware that the discount for the usual adverse contingencies is between 2 and 6 per cent: Black v Motor Vehicle Insurance Trust [1986] WAR 32. However, in weighing up the adverse contingencies against the positive contingencies, I am of the view that the adverse contingencies outweigh the positive contingencies. In particular, the nature of commercial cleaning is that it is reliant upon the plaintiff's employer obtaining sufficient cleaning contracts to provide the plaintiff with work. The evidence of Ms Cork illustrates the competitive and somewhat unpredictable nature of commercial cleaning contracts. An employee, such as the plaintiff, is reliant upon his or her employer obtaining sufficient cleaning contracts to provide the plaintiff with work. Further, given that the plaintiff has worked part-time as a commercial cleaner for most of her working career it may well be that she would return to part time work at some point in the future, most likely as she was coming towards the end of her working career.
Accordingly, I award the plaintiff the sum of $200,477.67 by way of future economic loss being $308,427.17 discounted by 35 per cent to take into account retained earning capacity and adverse contingencies.

Superannuation benefits

Past loss of superannuation benefits

The plaintiff is entitled to an award of 9 per cent of the gross value of her past loss less 15 per cent tax. This sum is $2,764.84. ($202.98 x 507.45 x 126 weeks = $64,141.68 less deductions of $23,000 for the defendants insurer and $5,000 for effect of loss of the Phoenix Shopping Centre contract, that is $36,141.68 x 0.09 0.85).
To this sum interest calculated at 6 per cent from the date of the issue of the writ to the date of judgment (401 days) less 50 per cent must be added, that is, $82.95. The total award for past loss of superannuation benefits plus interest is $2,847.79.

Future loss of superannuation benefits

The appropriate method of assessment of loss of future superannuation benefits is set out in Jongen v CSR Ltd (1992) A Tort Rep 81‑192 per Anderson J and Villasevil v Pickering (2001) 24 WAR 167. The plaintiff is entitled to 9 per cent compulsory employer contributions on the gross value of the loss of future earning capacity $245,893.14 ($541.42 x 26 year multiplier 698.4 x 0.65) less 30 per cent to cover income tax, fund administration costs, risk of failure of funds and the fact that the plaintiff is not entitled to the benefit of the contributions until retirement making a total of $15,491.27.

Gratuitous Services

Although no claim for gratuitous services was made in the plaintiff's statement of claim, a claim was made by the plaintiff in her schedule of loss filed just before the commencement of the trial. The defendant's counsel took no objection to me considering the plaintiff's claim for gratuitous services.
The evidence produced by the plaintiff for gratuitous services was very scant indeed. Further, it became clear that gratuitous services supplied to the plaintiff by her father and other family members were provided to the plaintiff before the accident and would have been provided to the plaintiff even if she had not suffered her injuries. In the circumstances, the plaintiff has no valid entitlement for an award for gratuitous services.

General damages

I accept that the plaintiff has suffered considerable pain and discomfort as a result of the injuries she sustained to her neck and lower back. I do not doubt that these injuries have substantially curtailed her enjoyment of life, especially in the year or two after the accident. In particular, I note that the pain caused by the injuries has had an adverse effect upon her ability to sleep, socialise (both with her friends and her children) and perform normal household duties. I accept that she will suffer from back and neck pain and headaches in the future. Whilst I have found that there is insufficient evidence to justify a conclusion that the plaintiff has suffered a major depressive disorder and/or adjustment disorders I am satisfied that the plaintiff has suffered adverse emotional effects as a result of the injuries that she received in the accident. In particular, I accept that she has had long periods of unhappiness and frustration because of her inability to perform her pre‑accident work. I am further satisfied that her inability to earn an income since the accident has placed a very substantial financial stress upon her which in turn has adversely affected her mood.
I also accept that the plaintiff has undergone something of a personality change since the accident. The evidence indicates that she has become more moody and quick‑tempered to the point where there has been a falling out between the plaintiff and her parents, although the indicators now point to something of a restoration of that relationship. The plaintiff gave evidence that her counselling with Ms Steel has improved her emotional state and I believe, in the not too distant future, the plaintiff will be restored to her pre‑accident emotional state.
Section 3C(3) of the Motor Vehicle (Third Party Insurance) Act 1943 provides that damages for non‑pecuniary loss must be assessed as a proportion of the maximum amount that may be awarded according to the severity of the loss. The maximum amount that may be awarded for non‑pecuniary loss in the most extreme case is $249,000. Clearly, what I am required to do is compare the facts of the plaintiff's case to the most extreme case and arrive at an assessment: Villasevil v Pickering (supra) per Anderson J at 172 – 173.
In my opinion, the right proportion between the plaintiff's case and the most extreme case is 15 per cent of the most extreme case. As a percentage of $249,000 that percentage equates to an award of $37,350. By virtue of s 3C(5) of the Motor Vehicle (Third Party Insurance) Act 1943 this sum must be discounted by $12,500. Accordingly, general damages will be allowed in the sum of $24,850.

Summary

In summary damages will be allowed as follows:
Past medical expenses  $Nil
Future medical expenses  $2,500.00
Past economic loss and interest  $25,311.55
Future loss of earning capacity  $200,477.67
Past loss of superannuation benefits
and interest  $2,764.84
Future loss of superannuation benefits  $15,491.27
Gratuitous services  $Nil
General damages  $24,850.00
Total$271,395.33

[2004] WADC 49

17 March 2004