Kerr v Crisa - [1999] WADC 78

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: KERR -v- CRISA [1999] WADC 78

CORAM: DEANE DCJ

HEARD: 17, 18 FEBRUARY 1999

DELIVERED : 30 SEPTEMBER 1999

FILE NO/S: CIV 4226 of 1997

BETWEEN: SUSAN McGOLDRICK KERR
Plaintiff
AND
ANTONIO CRISA
Defendant

Catchwords:

Damages - Assessment - Personal injury - 36 year old secretary/administrative assistant - Injuries to wrist, neck and mid-thoracic area - Compression fractures to three vertebra in mid-thoracic area - Detection of pre-existing osteoporosis after motor vehicle accident - Damages for past and future loss of earning capacity - Section 3C Motor Vehicle (Third Party Insurance) Act 1943 - Award for non-pecuniary loss - Calculation of loss of past and future superannuation entitlements

Legislation:

Nil

Result:

Plaintiff awarded total damages in the sum of $88,332

Representation:

Counsel:

Plaintiff: Mr M Zilko
Defendant: Mr J Brooksby

Solicitors:

Plaintiff: Moss Bradley
Defendant: Greenland Brooksby

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

Black v MVIT [1986] WAR 32
Jongen v CSR Ltd & Anor (1992) A Tort Rep 81-192
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Paul v Rendell (1981) 34 ALR 569
Southgate v Waterford [1990] 21 NSWLR 27

Case(s) also cited:

Bresatz v Przibilla (1962) 108 CLR 541
Wylde v Aristondo'Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997

DEANE DCJ: In this action the plaintiff claims damages from the defendant for injuries suffered by the plaintiff in a motor vehicle accident in Hay Street, Subiaco, on 1 October 1996. The defendant admits that the accident was caused by negligence on his part but denies the sequelae of any injuries suffered by the plaintiff as a result of the accident, and further denies that the plaintiff is entitled to the relief sought.
Circumstances of the accident
The plaintiff was born on 11 April 1963 and is now 36 years of age. On the afternoon of 1 October 1996 the plaintiff was driving her 1978 Model Mercedes 230 sedan in a westerly direction along Hay Street in Subiaco. She brought her vehicle to a halt behind some other vehicles at a set of traffic lights. The traffic lights changed from red to green and just as the plaintiff began to move off in her vehicle, another vehicle, driven by the defendant, Mr Crisa, collided with the rear boot area of the plaintiff's vehicle. As a result the plaintiff's vehicle sustained approximately $3,000 to $4,000 worth of damage. In her evidence the plaintiff said that her recollection was the defendant's vehicle was travelling in the vicinity of 40-50km/h at the time of collision. In her accident report form dated 21 January 1996 (Exhibit D6) the plaintiff indicated that she did not know what speed the defendant was doing at the time of collision. She said that she estimated afterwards that the speed was in the vicinity of 40-50km/h as it was difficult to judge but she maintained that the defendant's vehicle was travelling at a fast speed immediately prior to the collision. It is important to note that six days after the collision on 7 October 1996 when the plaintiff was able to obtain an appointment to see her general practitioner, Dr Turner, she advised him that the defendant's vehicle had been travelling at about 40-50km/h and he recorded that information.
Mr Crisa, the defendant, also gave evidence about the collision and said that the impact to his recollection was not great. He said that the grill of his vehicle came into contact with a towbar on the rear of the plaintiff's vehicle. The plaintiff's recollection, however, was that she did not think she had a towbar on her vehicle at that time as it was not until the following Christmas that she was given a towbar as a present by her parents. Mr Crisa's motor vehicle was drivable after the collision but for reasons that are not entirely clear he decided to ring up a tow truck because the bumper of his vehicle was stuck into the suspension and he thought it wise to have the vehicle moved around the corner into a carpark so he could deal with the problem. He said that his vehicle cost $100 to repair and he carried out that work himself.
In relation to the question of his speed immediately prior to the accident, the defendant hazarded a guess that he was doing about 10km/h at the time of impact, but he agreed that this estimate was speculative on his part. Although the defendant received notification from either the plaintiff's insurer or solicitor regarding the fact that the cost of repairing the plaintiff's vehicle would be in the vicinity of $4,500 to $5,000, he disputed that this amount of damage was done and based this assessment on what he claimed to be his previous work experience as a panel beater and spray painter.
On cross-examination it became apparent that the defendant had never completed an apprenticeship as a panel beater and used to work on weekends and after school whilst he lived in Italy in a panel beating shop. His evidence was that he was aged between 6 and 9 years at that time and that when he came to Australia he did some further work in the panel beating industry when he was aged about 15.
I accept the plaintiff's evidence as to the speed of the defendant's vehicle at the time of the collision. Although she indicated in her accident report form that the speed of the defendant's vehicle was unknown, her explanation that it was hard to judge is readily understandable as is the fact that in filling out an official form the plaintiff may well have been reluctant to commit herself to making a concrete assessment of the speed of the defendant's vehicle. It is relevant that a short time after the accident the plaintiff told her general practitioner that the defendant's vehicle was travelling between 40 and 50km/h and she has not wavered from that assertion since that time. Finally, the cost of repairing the damage to the plaintiff's motor vehicle was considerable and suggests that more than a mere dent or bump needed to be repaired. If the defendant had been travelling at the very low speed of 10km/h as he guessed, it is obvious that any damage that would have been caused on impact would have cost considerably less to repair. I do not accept that Mr Crisa's extremely limited experience in the paint and panel beating industry, which apparently occurred quite some years ago, qualifies him in any way to form a reliable assessment of the amount or extent of the damage done to the plaintiff's motor vehicle.
Immediately after the accident the plaintiff experienced some pain in her wrists, neck and in mid‑back area. She attempted to obtain an appointment to see her general practitioner, Dr Turner, but was unable to do so until 7 October. Dr Turner, who had been the plaintiff's general practitioner for some five to six years, initially administered an alternative treatment called cranio‑sacro therapy which is a form of muscle therapy. She persisted with this therapy for two or three months, in combination with taking both Valium and Panadene Forte medication. During this period the plaintiff continued to suffer spasmodic bouts of pain which worsened when she felt under pressure. She could be pain free for up to 10 days at a time but when in pain she would try a variety of remedies including medication, heat packs and creams, none of which alleviated her pain.
Plaintiff's personal circumstances and work history
The plaintiff was born in Edinburgh, Scotland, and left school at 17 years of age. After this she worked initially as a clerk and then as a teller in a bank for a period of five years. She married in 1982 and continued to work on a full‑time basis until she left work to have her child who was born on 17 August 1985. In 1986 the plaintiff returned to work as a receptionist on a part‑time basis of 20 hours per week.
In November 1987 the plaintiff, with her husband and child, joined her parents in Karratha, Western Australia. Some time after this she separated from her husband and at that time was working for 27 hours per week in a bank in Karratha. She then followed her parents to Perth where she continued to work on a part‑time basis in the banking industry. As she was in need of money the plaintiff took up full‑time employment with Alpha Electronics where she worked for about 10 months demonstrating typewriters to various prospective customers. After being retrenched from that job the plaintiff carried out some temporary work before obtaining full‑time employment with Phillips Oil in 1990. She worked as a receptionist for 30 hours per week for a period of about five years before the firm closed and once again the plaintiff was without a job. She returned to temporary work, including work with the Western Australian Tourism Commission. She was then fortunate enough to obtain a job in a connected organisation, the Indian Ocean Tourist Organisation (IOTO) where she worked on a full‑time basis.
The only other employee of that organisation was Mr Hornel, who was a consultant to the group. In that capacity he travelled extensively leaving the plaintiff to complete a number of tasks during his absence. She carried a considerable amount of responsibility in that job and unfortunately her relationship with Mr Hornel was quite strained at times, as her evidence was that he was a very demanding and sometimes difficult individual and co‑worker. In her evidence the plaintiff gave a number of examples of difficulties that she and Mr Hornel experienced in working together. A Ms Chandler knew the plaintiff and worked in premises shared with IOTO. The plaintiff complained to Ms Chandler that she had suffered a back injury as a result of a motor vehicle accident. Ms Chandler had ample opportunity to observe the interaction between the plaintiff and Mr Hornel and confirmed the plaintiff's evidence that Mr Hornel was a very demanding employer, and on occasions, in her view, his behaviour towards the plaintiff was both unreasonable and unwarranted and this caused obvious distress to the plaintiff.
The plaintiff's evidence, which I accept, was that despite the pain and muscle spasm she experienced from time to time, she managed to cope in her employment during Mr Hornel's absence whilst he was travelling. When he was present, however, the situation deteriorated and this exacerbated her pain state and caused her further distress. In a letter of 13 December 1996 the plaintiff requested eight days leave from 16 December and then finally, in a letter dated 17 March 1997 (Exhibit D4) the plaintiff gave notice that she intended to resign effective from 28 March 1997, having given consideration to her future career and development.
In the interim the plaintiff had informed Mr Keith Bradford, a barrister and solicitor, who was a casual acquaintance whom she had met about a year before the motor vehicle accident, of her ongoing difficulties in working at IOTO. Mr Bradford suggested that the plaintiff might well have a lucrative future working in his firm, and although he was aware of her injury he was prepared to offer her employment. Mr Bradford's evidence was that the plaintiff had a career path within his firm if she so wished but if she found the job offered unsuitable the plaintiff could remain working for him whilst seeking alternative employment. The plaintiff was employed and paid on an hourly basis of $16 gross per hour. The plaintiff was not required to work any particular number of hours per day or per week and the hours worked were at her discretion, depending on her physical health at the time. Mr Bradford noted that the plaintiff appeared to be in pain from time to time and she complained to him about her back condition.
Mr Bradford also gave evidence that he could offer the plaintiff a full‑time job on the basis that she worked 37½ hours per week and further, if she was available to work full‑time as a law clerk the plaintiff might find herself in a position where she was offered a salary on an incentive basis whereby she could earn between $40,000 and $42,000 gross per year. This would place the plaintiff in a similar position to Ms Crane, who gave evidence that she had worked as a legal secretary and assistant for Mr Bradford for the past eight years. Her salary for the financial year ending 30 June 1998 was $41,700 gross on the basis that she was on an incentive scheme. Ms Crane, whom I considered to be a very reliable and forthright witness, said that Mr Bradford was a generous employer who had in fact paid her between $10,000 and $11,000 a year as bonuses on settlement of actions which she had carried out. It was also my impression that Ms Crane was a neutral witness, who did not take the view that the plaintiff was treated in a particularly favourable way by Mr Bradford and she also said, which I accept, that a vacancy was not especially created in the firm to enable the plaintiff to be employed. Ms Crane had given Panadene Forte tablets to the plaintiff on occasions when the plaintiff had complained of pain and at times Ms Crane had also noticed the plaintiff flinching in pain.
Ms Newcombe, another witness from Mr Bradford's firm, gave evidence and I consider that she demonstrated, despite her denials that she disliked the plaintiff, a fairly obvious antipathy towards the plaintiff. For that reason it is not difficult to understand why the plaintiff would make no complaints of pain and discomfort to Ms Newcombe, whom no doubt she considered somewhat unsympathetic to her plight.
Mr Barrett, who worked as an article clerk for Mr Bradford during 1997, noted that at least between April and September that year the plaintiff worked fairly regular hours and his general recall was that she informed Mr Barrett of her whereabouts from time to time. He did confirm that the plaintiff mentioned to him that it was difficult working on a full‑time basis whilst being a single parent.
Essentially the plaintiff's understanding of her working conditions reflected that of her employer, although the plaintiff believed that if she was to have a lucrative career as a law clerk within the firm she would have to work for between 40 and 50 hours per week. Her evidence was that pain from her accident related injuries prevented her working a full day or a full week on many occasions. She gave evidence that she had a strong incentive to work and often took medication to reduce her pain levels in order to work full hours because she was the sole supporter of her daughter and received maintenance for the child from her ex‑husband on a somewhat spasmodic basis. The evidence suggested that the plaintiff worked on an average of 29 hours per week, which she conceded included some work on weekends, but she said that she could not work a 40 hour week because longer hours led to pain and muscle spasm which in turn often led to a need for bedrest. The terms of the plaintiff's employment with Mr Bradford's firm were such that she received no sick pay nor did she receive holiday pay.
The defendant tendered a number of exhibits being timesheets relating to the time worked by the plaintiff after she was employed by Mr Bradford. Exhibit D7 related to the hours worked per week by the plaintiff between 7 April 1997, when she commenced work at the firm, until 13 January 1998. Exhibit D8 related to the hours worked by the plaintiff between 9 January 1998 and 21 December 1998. Finally, Exhibit D9 was a summary schedule of the timesheets Exhibits D7 and D8.
Relevant to those timesheets it was pointed out on behalf of the defendant that during the period in question the plaintiff had 19 days away from work and in addition there were a significant number of days when the plaintiff worked for a short period of time, eg between four and four and a half hours per day. It was not in issue that the plaintiff was not paid for any days which she did not work. The plaintiff also conceded that although the days she had off work were due to pain, with the rare exception when she requested a day off for social or personal reasons, she did not always indicate on her timesheet that the reason for absence was due to her illness. It was also common ground that the plaintiff was off work between 30 April 1998 and 8 June 1998. This was not as a result of pain suffered as a result of injuries she sustained in the motor vehicle accident, but rather because most unfortunately, when she underwent surgery for an unrelated medical problem she suffered complications and was unable to work for that reason. She was hospitalised for a period of six days within that time span and the remainder of the time was spent recuperating from the post‑operative complications.
It was submitted on behalf of the defendant that if one deducted the 19 days which the plaintiff had off work during the period 7 April 1997 to 13 January 1998, then the result would be that the plaintiff worked on average a 35 hour week. This is no doubt mathematically correct but it is flawed in the sense that such a deduction does not mean that the plaintiff was or is physically capable of working a 35 hour week. It was further suggested in relation to the period 9 January 1998 to 21 December 1998 that if a similar methodology was adopted the plaintiff worked on average 33½ hours per week. Again, this no doubt is mathematically correct but the exercise suffers the same flaw as pointed out in reference to the earlier timesheets.
I accept that it is not for the defendant to establish that on occasions, for example, Fridays, when the plaintiff worked often only four to four and a half hours per day, that the plaintiff was lunching or taking that time off for her personal purposes. The plaintiff bears the onus of establishing the reason for the absences on those occasions. In a considerable number of instances there are no medical certificates to support her absence from work but the plaintiff gave evidence, which I do not believe was undermined in any significant way, that on those occasions she was in pain and unable to work. I am of the view that even if she was in pain and unable to work that would not preclude her from, for example, occasionally collecting her daughter from school or dropping her daughter at after school appointments. On one or two occasions the plaintiff was attending medical appointments when she was not at work. I do not take the view that it is necessary for the plaintiff to establish that on every occasion when she was not at work she was attending a medical appointment or undergoing medical treatment for her injuries.
Medical evidence relating to the plaintiff's injuries and the extent of the plaintiff's incapacity
The plaintiff first consulted her general practitioner, Dr Turner, on 7 October 1996, some six days after her motor vehicle accident. At that time the plaintiff complained of an ache in her mid‑thoracic spine as well as pain in the right side of her neck and head. By that time her wrist pain had settled. In view of this Dr Turner initially prescribed Panadene Forte and on 22 October 1996 he also prescribed Valium and a course of physiotherapy. He did not suspect at that time that the plaintiff was suffering from osteoporosis, although he did refer the plaintiff to a number of other medical practitioners, including Mr Wright, Dr Whiteside and Dr Salmon. Dr Turner saw the plaintiff shortly prior to trial on 16 February 1999 and consistent with her behaviour over the previous two and a half years the plaintiff still complained of pain. Dr Turner's prognosis was that he did not think there was a great likelihood of improvement in the plaintiff's condition due to her osteoporosis, and for that reason he felt that the plaintiff could not extend her working hours beyond 30 hours per week.
On 10 April 1997 the plaintiff complained of lower spasms in her thoracic spine which occurred every two weeks or so and lasted for between one and three days. On examination Dr Turner noted a spasm pattern in the thoracic spine and he was of the opinion that the mid‑thoracic area was the main site of the plaintiff's pain difficulty and he did not feel that the plaintiff's symptoms were improving over time.

Mr Wright, an orthopaedic surgeon, reviewed the plaintiff on 14 October 1997 when again she was complaining of pain in her mid‑thoracic spine. X‑rays were taken and demonstrated compression fractures of three vertebrae in the mid‑thoracic area. Mr Wright's opinion was that on the history given to him those fractures were a result of the motor vehicle accident in which the plaintiff had been involved.
As at October 1997 Mr Wright believed that the plaintiff was not fit for full‑time work but could work 30 hours or so a week as she was then doing. In March 1998 Mr Wright concluded that the plaintiff's partial incapacity would extend for an indefinite period as she had not shown a great deal of improvement and with a soft tissue injury after the initial six months from the injury being sustained any improvement, in the absence of treatment, would be somewhat slow.
As an orthopaedic surgeon Mr Wright considered that the fact that the plaintiff suffered from osteoporosis disposed her to further fracturing of wedged vertebra in the future and that would possibly reduce her work capacity. In his opinion it was important to stabilise the plaintiff's condition to avoid it worsening. When he reviewed the plaintiff in early 1999 Mr Wright noted that she was still in pain and exhibiting stiffness on examination. He felt that she could work for about six hours per day although she may encounter some difficulty in doing so. In his view, if the plaintiff worked any longer hours she would very likely suffer an increase in her pain state. Therefore based on his examination of the plaintiff and the history given to him, Mr Wright's view was that the plaintiff was permanently unfit for full‑time work. He did, however, agree that intensive exercise may be an important ingredient in controlling the osteoporosis from which the plaintiff suffered and a work environment which permitted her to be physically flexible and move about might also increase her ability to work for longer hours, but he was not particularly optimistic in that regard.
It was not until after her motor vehicle accident in October 1996 when the plaintiff consulted a number of medical practitioners, that she became aware that she suffered from osteoporosis. Professor Prince, a physician and endochrinologist with a particular interest in osteoporosis, reviewed the plaintiff on 17 August 1998 and concluded that there was no question that she suffered from osteoporosis, a condition which predisposes one to skeletal fragility. He considered that the plaintiff was well below the normal range of bone density for her age and in fact less than 1 per cent of the population has bones as thin or brittle as those of the plaintiff, who is at eight times greater risk of persons of comparable age of sustaining a fracture.
Professor Prince believed that the anterior wedging of the plaintiff's 7th, 8th and 9th thoracic vertebrae were as a result of the impact she sustained in the motor vehicle accident. He believed that vertebral fractures predispose a person to further vertebral fractures in the future as well as predisposing one to osteoarthritic changes in both the posterior and facet joints. In this respect, as in some other areas, Professor Prince was at odds in his evidence with the evidence of Mr Williams, an orthopaedic surgeon called on behalf of the defendant. Professor Prince was not surprised, given the plaintiff's history and condition, that she was not able to work on a full‑time basis as a receptionist.
As to the plaintiff's prognosis, Professor Prince stressed that osteoporosis cannot be cured but it can be controlled by a combination of diet and exercise as well as certain medications. He felt that if the plaintiff had not been involved in the motor vehicle accident, but was receiving treatment for osteoporosis, she would have about a 25 per cent risk of sustaining a fracture within the next five years with the worst possible case scenario being that she would be at a 50 per cent risk of sustaining a fracture in the next ten years. Professor Prince hoped, however, that the plaintiff would respond to treatment thereby reducing her risk to something of the order of 25 per cent. He felt that the plaintiff's physical situation had stabilised at time of trial but there was a prospect of some deterioration in the future. In addition, smoking of cigarettes, which the plaintiff engaged in (although she was trying to stop smoking) was also a cause of osteoporosis. In the plaintiff's case, however, the severity of her osteoporotic condition was such that Professor Prince believed that there was a familial or inherited component responsible for her condition. He agreed with Mr Williams that the plaintiff suffered a 10 to 15 per cent disability in her spine as a result of the fractures sustained in the motor vehicle accident. Professor Prince did not believe that this would prevent the plaintiff from working but suggested that a physically flexible occupation would best suit the plaintiff's needs.
Mr Williams took a rather more robust view of the plaintiff's work capacity considering her thoracic spine disability. He felt that the incapacity should not interfere markedly with the plaintiff's work capacity particularly if she undertook a swimming exercise programme to strengthen her bones. In his view the plaintiff should have been fit for full‑time work between 12 to 18 months after the motor vehicle accident. Like Professor Prince, Mr Williams believed that even if the plaintiff had not been involved in a motor vehicle accident then given that she suffered from osteoporosis she would be very likely to sustain a wedge fracture of some sort within 5 to 10 years of the current time even though the plaintiff would not necessarily be aware of having sustained such a fracture. He believed that with appropriate exercise and medication the plaintiff could return to full‑time work as a receptionist within two years.
Mr Williams disagreed with Professor Prince in that he did not believe that because the plaintiff had sustained fractures in the motor vehicle accident she was now predisposed to suffering further fractures in the future. On the contrary, he considered that as the plaintiff had now been identified as suffering from osteoporosis, she could be treated in an attempt to avoid further fractures. He did say, however, that the plaintiff was at a high risk of further fractures not because she had a prior history of fracture but rather because she suffered from osteoporosis or low bone density and this also exposed her to early onset of arthritic changes in the areas where she had sustained fractures.
Findings on the medical evidence
Having heard and considered all of the relevant medical evidence I do not find that the plaintiff has exaggerated her injuries. It would seem, because of the nature of her condition, that it is the case, and not particularly unexpected or unusual, that there are days when the plaintiff is relatively pain free but other days when that is not the case. Mr Wright felt that the plaintiff's partial incapacity would extend for an indefinite period and this may be further compromised by predisposition to further fracturing in the future.
Although there was some disagreement as between Professor Prince and Mr Williams in their evidence, in the end result there was no question that the plaintiff had suffered fracturing of the relevant vertebra and that she suffered from osteoporosis. Although Professor Prince has a particular interest in osteoporosis and the study of that subject I cannot dismiss the fact that Mr Williams is a very experienced orthopaedic surgeon and has also had some exposure to the treatment of patients with osteoporosis. In the end result I take the view, reflected in the opinion expressed by Mr Williams, that because of her osteoporosis the plaintiff is at considerable risk in the future of further fractures. It is of some significance, however, that Professor Prince made the point that osteoporosis can be controlled to a significant degree. Neither Professor Prince nor Mr Williams were of the view that the plaintiff could work in full‑time duties as at the date of trial but Mr Williams was rather more optimistic in his assessment and considered that the plaintiff could return to full‑time work within two years of the accident. The physical condition of the plaintiff at the time of trial as evidenced by the majority of medical opinion, however, was that it was unlikely that the plaintiff would be fit to return to full‑time work within that timeframe or even longer.
In my view it is extremely significant that, however one views the plaintiff's situation, it would seem that at best within 10 years it is inevitable that even without sustaining any kind of accident the plaintiff will suffer a fracture or fractures to her bones because of the osteoporotic condition from which she suffers. Whilst in this situation it is difficult to speak in terms of "benefit" to the plaintiff, she at least now has been diagnosed as suffering from osteoporosis and armed with this knowledge it will be possible for her to continue treatment and hopefully reduce the risk of further fracturing in the future or at least extend the timeframe in which that might occur. The medical evidence clearly supports a conclusion that the plaintiff retains a significant earning capacity albeit that it is preferable that she work in a situation that allows her some physical flexibility and does not unduly restrict her physical movement.
Loss of amenities and pain and suffering
The injuries suffered by the plaintiff have reduced the range of physical activities in which she is now able to participate. I accept the plaintiff's evidence that she suffers some pain and discomfort, although the degree and intensity of this varies from time to time, depending to an extent on what the plaintiff has been doing and the nature of physical activities in which she has been engaging.
None of the medical practitioners whom the plaintiff has consulted or who have reviewed the plaintiff dispute that she suffers pain. The plaintiff continues to take Panadene Forte tablets to control her pain when necessary and she also takes Valium on occasion. She has endeavoured to reduce her Panadene Forte intake and at the time of trial was taking on average four Panadene Forte tablets per day, having reduced the intake from eight tablets per day. The plaintiff also was given a Pethidine injection for pain in November of 1998 and another such injection in January of 1999. The fact that she has been able to reduce her pain medication intake as well as the fact that she has only fortunately had to have two Pethidine injections over a number of months, suggests that although she is in pain it is at a level which is generally controllable. In the past the plaintiff has used a transcutaneous electronic nerve stimulator or TENS machine prescribed by Dr Salmon but that provided only temporary relief. It has been suggested that exercise, such as swimming, would be beneficial and improve the plaintiff's muscle strength and pain state, but on the evidence it would seem that the plaintiff has to be somewhat careful in the degree of exercise she undertakes as it can lead to muscle spasm.
I accept the plaintiff's evidence that she has some pain and stiffness as well as limitation of movement in her neck and cervical spine area, but I do not find that this results in extremely severe restriction of physical movement. As a result of the pain suffered by the plaintiff, however, she suffers some restriction in her ability to carry out certain domestic tasks. I accept her evidence that she is unable to vacuum and does experience some pain in hanging out washing and the making of beds. I also accept the plaintiff's evidence that she is no longer able to go to the gym or swim and ride a bicycle as frequently as she did in the past. There has also been some restriction on the plaintiff's social life as a result of the injuries sustained in the accident, but I do not find that restriction to be extensive. She is still able to go out to dinner and attend the theatre as well as films although not as frequently as she did prior to the accident, as sitting still for long periods can cause discomfort. Nonetheless it was evident that she still enjoys a social life and is still able to go to lunch or dinner with friends or meet acquaintances for a drink after work on occasion. The plaintiff is, however, still a young woman and no doubt the pain she suffers, as well as the physical limitations imposed upon her as a result of the accident, are a cause for some frustration and hence strain on the relationship between her and her teenage daughter. Overall I take the view that the plaintiff suffers a degree of pain and discomfort as well as physical and some social restrictions upon her everyday life but the intrusive and restrictive nature of that pain state is variable.
The plaintiff's injuries arose out of the motor vehicle accident which occurred after 1 July 1993. The provisions of s3C of the Motor Vehicle (Third Party Insurance) Act 1943 govern the amount of damages to be awarded to the plaintiff for non‑pecuniary loss.
Non‑pecuniary loss is defined in the Act to include pain and suffering, loss of amenities of life, loss of enjoyment of life, curtailment of expectation of life and bodily or mental harm. Subsection (2) of s3C of the Act provides that:
"(2)The amount of damages to be awarded for non‑pecuniary loss is to be a proportion, determined according to the severity of the non‑pecuniary loss, of the maximum amount that may be awarded."
The maximum amount of damages that may be awarded under the Act for non‑pecuniary loss as from 1 July 1999 is set at a figure of $219,000, (Amount "A").
Subsection (3) of s3C provides as follows:
"(3)The maximum amount of damages that may be awarded for non‑pecuniary loss is Amount A, but the maximum amount may be awarded only in a most extreme case."
Southgate v Waterford [1990] 21 NSWLR 27 is of some assistance in interpreting these provisions. Although the New South Wales legislation considered in that case was in somewhat different terms to s3C of the Act as it stood at the time that legislation provided that damages for non‑economic loss were only to be awarded in cases where there had been significant impairment of an injured person's quality of life and required the Court to assess the amount of damages to be awarded for non‑economic loss as a proportion, determined according to the severity of the non‑economic loss, of the maximum amount which that legislation permitted to be awarded. In their joint judgment Gleeson CJ, Kirby P and Meagher JA said at 440:
"There are a number of ways by which trial Judges could approach the task of apportionment required by s79(2) and s79(3). It is important in this case for this Court to mandate any particular way of arriving at the 'proportion' required by s79(2). But clearly, because the task in hand is that of awarding damages for 'non‑economic loss', it is appropriate for the trial Judge to consider and to make findings on those elements in the evidence which are relevant to such loss. This will require the Judge to consider and make findings on the evidence relevant to those heads of damage formally considered in the award of general damages. Then it is necessary for the Judge to conceive 'a most extreme case'. Only for such a case may the maximum amount provided by s79(3) be awarded. The use of the indefinite article 'a' has already been noted. Opinions of what constitute 'a most extreme case' will doubtless vary. But clearly quadriplegia would fall into that class. The amount to be awarded must then be apportioned somewhere between nil and $180,000, but in a ratio which the Judge fixes keeping in mind the fact that the cap of a statutory maximum is retained for 'a most extreme case'."
After canvassing the evidence relevant to the heads of damage which fall within an award of general damages it is then necessary to consider what might be a most extreme case in which the maximum amount of damages, currently standing at $219,000, may be awarded for non‑pecuniary loss, and then apportion damages by comparing the severity of this plaintiff's non‑pecuniary loss with that likely to be suffered in a most extreme case. When the plaintiff's injuries and associated symptoms are compared with the example of what might be regarded as a most extreme case, namely quadriplegia, I find that the plaintiff's initial injuries and symptoms, their progression and treatment, their current status and the effect that they have had on the plaintiff's enjoyment of life, puts this situation at 16 per cent of a most extreme case. Sixteen per cent of $219,000 is $35,040.
As this amount of $35,040 is more than Amount C, namely $33,000, but less than the sum of $43,500 which is the sum of Amount B, being $10,500 and Amount C being $33,000, it is necessary pursuant to s3C(6) that the amount of damages awarded for non‑pecuniary loss be the excess of the amount so assessed over Amount B minus (amount so assessed minus Amount C). This results in a sum of $26,580 being awarded for non‑pecuniary loss.
Past loss of earning capacity
It is to be noted that although the plaintiff sustained injuries in a motor vehicle accident on 1 October 1996 she continued working on a full‑time basis at IOTO until 31 March 1997 and there is no claim for past loss of earning capacity during that period of time.
It was submitted on behalf of the plaintiff that the situation of the witness, Tanya Crane, was very relevant to the plaintiff's circumstances in relation to the assessment of the plaintiff's past and future economic loss. It was said that as a law clerk Ms Crane could earn approximately between $40,000 and $42,000 a year and that the mid‑point for this was $41,700 gross per year. A large component of these earnings were by way of bonuses that Ms Crane received when she successfully negotiated a settlement of an action on behalf of her employer, Mr Bradford. It was said that if the plaintiff was fit and able to work between 45 and 50 hours per week there would be a career path for her as a law clerk in Mr Bradford's office.
Although, in theory, there is no reason why that should not be the case, I consider that there are significant practical difficulties in using Ms Crane's position as a basis for arguing that the plaintiff would or would be in a similarly position. Ms Crane had worked for Mr Bradford for a number of years and no doubt as a result had considerable knowledge and experience in the negotiating of settlements and such like. The plaintiff, although possessing a consistent work history in a number of fields, had never carried out the work of a law clerk before and there is no evidence before me which would allow me to conclude that the plaintiff would have carried out the same number of settlements and earned the same amount by way of bonuses as Ms Crane. In addition to that there was no suggestion that in the past the plaintiff had worked between 40 and 50 hours per week and considering that she has a teenage daughter to consider she might well be hampered in working those number of hours for that reason alone.
I therefore do not accept the submission made on behalf of the plaintiff that but for her accident caused injuries the plaintiff would have earned at the rate of $788 gross per week ($574 net per week) but by reason of her accident caused disabilities, her earnings have been restricted to $459 gross per week ($369 net per week) the net loss of earning capacity being $205 net per week. Since the plaintiff commenced her employment with Mr Bradford's law firm on 7 April 1997 I find that she has worked on average 29 hours per week at a rate of $16 gross per hour. On the basis that a full working week in that capacity in the firm would be 38 hours per week the plaintiff's weekly gross loss of income is:
9 hours x $16 = $144 gross per week.

If the plaintiff was in a position to work a 38 hour week at $16 gross per hour she would earn $603 gross per week ($462 net per week). In other words, her annual salary would be $31,356 approximately. On this basis I find the plaintiff's net weekly loss to be:
$462 net week - $369 net per week = $93 net per week.
Therefore in the period 7 April 1997 to 18 February 1999 (date of trial) the plaintiff has lost earnings at the rate of $93 net per week which equates to:
98 weeks at $93 net per week = $9,114.
From this amount there must be a deduction for the period of approximately five weeks between 30 April 1998 to 8 June 1998 when the plaintiff was unable to work for reasons unconnected with her accident related injury:
5 x $93 = $465.
The plaintiff's past loss of earnings is therefore:
$9,114 - $465 = $8,649.
Interest on this amount at 3 per cent per annum for the relevant period of approximately two years is $519. The award for past loss of earning capacity is therefore $9,168.
Past loss of employer based superannuation benefits
I find this loss to be:
$144 (gross) x 6% = $8.64
From 7 April 1997 to 18 February 1999 = 98 weeks
98 x $8.64 = $846.72 (rounded up to $847).
Future loss of earning capacity
As the plaintiff claims damages for loss of earning capacity, pursuant to Medlin v State Government Insurance Commission (1995) 182 CLR 1 she is obliged to satisfy the Court of two things:
"The first of those requirements is the predictable one that the plaintiff's earning capacity has in fact been diminished by reason of the negligence caused injuries. The second requirement is also predictable once it is appreciated that damages for loss of earning capacity constitute a head of damages for economic loss awarded in addition to general damages for pain, suffering and loss of enjoyment of life. It is that the 'diminution of … earning capacity is or may be productive of financial loss' (Graham v Baker (1961) 106 CLR 340 at 347)."
As was noted by Lord Diplock in Paul v Rendell (1981) 34 ALR 569 at 471:
"… the assessment of economic loss involves the double exercise in the art of prophesying not only what the future holds for the injured plaintiff but also what the future would have held for him if he had not been injured."
I have found on all of the evidence before the Court, including the medical evidence, that the plaintiff has a significant retained earning capacity. She does, however, suffer and will continue to suffer a degree of disability as a result of her pain state. Significantly at the very best in 10 years time the plaintiff can expect to suffer a further fracture or fractures because of her osteoporotic condition. Therefore in 10 years time at the very best, notwithstanding the injuries sustained in the motor vehicle accident on 1 October 1996, the plaintiff is extremely likely to suffer disability as a result of her osteoporosis. It may be that this unfortunate event will occur sooner rather than later but in the circumstances it is my view that the issue of future loss of earning capacity ought be viewed in a way that is most favourable to the plaintiff on the evidence before the Court.
By reason of her accident caused injuries the plaintiff has suffered diminution of earning capacity of $93 net per week. I consider that this will continue to be the case for the next 10 years at which time the plaintiff will be aged 46 years. The plaintiff's future loss of earning capacity is therefore;
$93 x 395.5 (multiplier applicable to 10 year period) = $36,782.
Account must be taken of the possibility that the plaintiff, because of the vagaries of the employment market and other vicissitudes of life such as illness, injury or death, may have been precluded from working for that period of time. Following the guidance given in authorities such as Black v MVIT [1986] WAR 32 I propose to discount the calculated loss by a further 6 per cent to reflect these contingencies;
$36,782 - $2,207 (6%) = $34,575.
In the circumstances of this case I believe that it is appropriate to add an amount to this figure to take account of the fact that the plaintiff is currently working in a somewhat flexible situation whereby she is, to a large degree, able to suit herself as to the hours which she works. This is an arrangement that is acceptable to her current employer, Mr Bradford, but he indicated in his evidence that his situation regarding the management of his firm is not entirely clear and it may be that in the future because of his personal working circumstances he may not be in a position to accommodate the plaintiff's situation by offering her such flexible terms of employment. I find that in those circumstances it may be difficult for the plaintiff to find an alternative employer who is prepared to offer her comparable flexible working arrangements. This contingency should be reflected by way of a further award of $12,000.
The total amount of the plaintiff's future loss of earning capacity when taking this factor into account is $46,575.
Future loss of employer based superannuation benefits
The plaintiff must be awarded an amount of damages which reflects a component for loss of future superannuation entitlements. I have found that as the plaintiff is currently employed, her loss in relation to superannuation should be calculated on the basis of the superannuation contribution relevant to the difference between her pre‑ and post‑accident gross weekly earnings which is $144 gross per week. For the purpose of this calculation I take the view that this loss will extend over the next 10 years.
Loss of superannuation is calculated based on the decision of the Full Court in Jongen v CSR Ltd & Anor (1992) A Tort Rep 81-192. Any future loss of employer based superannuation benefits needs to be discounted by approximately 30 per cent to cover contingencies such as the cost of scheme administration, discount for tax and risk of fund losses. I therefore find the plaintiff's future loss of superannuation benefits to be $144 x 6 per cent x 395.5 (multiplier applicable to 10 years period) x 70 per cent = $2,392.
Future medical expenses
The plaintiff did not produce a schedule of her likely expenses for future medical, pharmaceutical, hospital or surgical treatment, nor was there any specific detailed evidence on this topic from any of the medical practitioners who were called to give evidence.
I do not find that the plaintiff has exaggerated the amount of pain killers she is required to take from time to time but equally, given there are days when she is more pain free than others and given that the plaintiff understandably is attempting to cut down her intake of Panadene Forte, an award under this head of damages cannot be made with exact precision.
The plaintiff gave evidence that various doctors gave her bulk scripts for Panadene Forte and as a result she could obtain up to six lots of medication on the same script. She also gave evidence that she took Valium and an anti‑depressant called Prothiaden to help her sleep. In addition, she took Orudis but that was not a regular medication. As she also suffered from osteoporosis she was obliged to use a hormone cream at particular times. It was clear that during 1998 the plaintiff's solicitors claimed for three lots of Panadene Forte medication supplied over a period of nine months. I accept her evidence that she has not claimed for all Panadene Forte medication that she used in the past and part of the difficulty is that she is unable to locate some of the receipts relevant to the purchase of that medication. None of the medical witnesses who were called disputed the fact that the plaintiff's condition would be productive of a level of pain.
In the end result I accept the submission made by the plaintiff's counsel that in all the circumstances it would be appropriate to assess the plaintiff's expenditure on medication, Panadene Forte, as being $8.50 per week as her evidence was that a box of 50 Panadene Forte tablets which cost $17.50 per week would generally last her in the vicinity of two weeks.
I do not accept, however, that any calculation should be based on the plaintiff continuing to expend that amount of money on medication until she is 80 years of age. In view of my previous findings I am of the view that it is appropriate to allow the plaintiff an award for future cost of medication calculated on the basis that she will purchase such medication for the next 10 years. The plaintiff's future medical expenses, which are confined to a claim for future medication only, is therefore;
$8.50 x 395.5 (multiplier for 10 year period) = $3,362.
On the basis that it is very likely that the plaintiff will decrease her intake of this medication as time progresses, particularly as it is her stated intention to try to do so, I consider it appropriate to apply a discount to this sum. I accept the submission made by counsel on behalf of the plaintiff that whereas one might in these circumstances discount the amount by 50 per cent in the circumstances it is appropriate to apply a lesser discount of 25 per cent. This is because the plaintiff is also required to take other medication such as Valium and Prothiaden as well as Orudis intermittently and no specific allowance has been made for this in the above calculation. I therefore find general future medical expenses of the plaintiff to be;
$3,362 - $840 (25 per cent discount) = $2,522.
Special damages
Special damages have been agreed as between the parties at $200 and I therefore make an award in this amount. Interest on these damages at 8 per cent per annum since 1 October 1996 to judgment, a period of approximately three years is $48.

Summary of award

Loss of amenities and pain and suffering

Past loss of earning capacity

Past loss of superannuation benefits

Future loss of earning capacity

Future loss of superannuation benefits

Future medical expenses

Special damages

$26,580.00

$ 9,168.00

$     847.00

$46,575.00

$ 2,392.00

$ 2,522.00

          $     248.00

        $88,332.00