Klahn v Audeh - [2000] WADC 134

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: KLAHN -v- AUDEH [2000] WADC 134

CORAM: WILLIAMS DCJ

HEARD: 28, 29, 30 MARCH 2000

DELIVERED : 30 MAY 2000

FILE NO/S: CIV 2368 of 1998

BETWEEN: RENEE KLAHN
Plaintiff
AND
EYAD MOHAMMED AUDEH
Defendant

Catchwords:

Damages - Assessment - Personal injury - Plaintiff suffering moderate whiplash injury to cervical spine.

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943, s3C

Result:

Plaintiff entitled to judgment in the sum of $47,344

Representation:

Counsel:

Plaintiff: Mr J R Criddle
Defendant: Mr T Mason

Solicitors:

Plaintiff: Biddulph & Associates
Defendant: Jackson McDonald

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

Nil

Case(s) also cited:

Nil

WILLIAMS DCJ:

Introduction

As a result of the admitted negligent driving of the defendant on 21 July 1996 the plaintiff alleges that she was injured in a motor vehicle accident and she now brings this action for damage. Liability is admitted and the matter proceeds before me by way of assessment and damages.

The plaintiff's evidence

The plaintiff was born on 27 January 1950 in Northern Ireland. She left school at aged 15 and worked as a junior clerk, a receptionist and telephonist. She was married at age 19 and a son was born in 1971.
In 1976 she and her husband came to Australia. She obtained a job as a telephonist with the Western Australian Police Force.
Approximately 18 months after moving to Australia her marriage came to an end. She remarried her present husband in 1980. He was a police officer.
In 1985 or 1986 she left her employment with the Western Australian Police Force. At that time she had developed repetitive strain injury and was on sick leave. In 1986 she commenced her own business as a wholesale baby wear retailer. In or about 1992 she was employed by Denis Murray and Andy and Susan Brown as a real estate sales person. I note that the first return produced by her of her income working as a real estate salesperson is for the year ended 30 June 1994. Since that time she has continued with the same employer.
The motor vehicle accident the subject of these proceedings is the third motor vehicle accident in which she has been involved. The first accident occurred approximately 18 years ago. On that occasion she suffered what she described as a whiplash injury to her neck. The pain was very severe but was confined to her neck. The injury settled down after about two years.
The second accident occurred on 5 March 1992. On that occasion she suffered pain in her back, neck and head. Her symptoms from that accident resolved after approximately 12 to 18 months.
She described the circumstances of the current accident as follows:
"47.On 21 July 1996 I was a front seat passenger in a Pajero four-wheel drive vehicle, which was being driven by my husband. We were in the inside lane of the Kwinana Freeway heading towards Perth. It was our intention to exit at the Mounts Bay Road turn off as were driving to Nedlands to attend a jewellery exhibition organised by a friend.
48.Cars were stopping ahead of us because of an accident in the right hand lane. The car being driven by the defendant collided into the back of the Pajero. I was wearing a seat belt. A headrest was fitted in the vehicle. The force of the impact jerked me forward. I remember going forward like it was in slow motion. I felt like I hit my head, although it is unlikely that I hit anything as I was jerked forward. I had a headache and ringing in my ears straightaway. I was panicking and crying. I immediately thought about the accident that I had 18 years ago and thought "I don't want to go through all of that again".
49.There was a policeman nearby, apparently attending the earlier accident. The policeman wanted to call an ambulance but I said I would be okay. After exchanging details with the other driver, my husband and I drove onto Nedlands. We explained to the host the circumstances of the accident and said that I was not feeling well and we returned home.
50.We came home and I had a spa. My husband gave me a massage and we went to bed. I recall it was on a Sunday."
Her husband was not injured.
Her first reported description of the accident was to Professor Taylor on 19 September 1996 when she told him that when her car stopped a Magna following at high speed crashed into the back of it. The Magna was a write off and had to be towed away.
According to the defendant he had stopped behind the plaintiff's Pajero and then had moved forward 10 metres not having reached a speed of more than 30 to 40 kilometres per hour and the front of his vehicle then hit the back of the Pajero. He described the impact as slight. However the towbar on the back of the Pajero penetrated the radiator of his vehicle so it was necessary for it to be towed away. There was no visible damage to the Pajero. His vehicle was subsequently repaired.
In cross-examination the plaintiff said that she did not argue with the proposition that the defendant's vehicle was not doing more than 30 to 40 kilometres per hour. Her explanation before me for describing the defendants vehicle as a "write off" was that she understood that was the description for a vehicle which was towed away. I find that a very unsatisfactory explanation.
I prefer the evidence of the defendant as to the circumstances in which the accident occurred. I find that the plaintiff has exaggerated in her description of the accident to Professor Taylor.
According to the plaintiff, the following day she attended upon Dr H Jee, a general practitioner who prescribed Panadeine. Dr Jee was the first medical practitioner to see the plaintiff after her accident but he was not called to give evidence. No explanation was offered as to why he was not called. In fact there is no medical evidence in relation to the plaintiff's condition between the date of the accident and seeing Professor Taylor on 19 September 1996. That is a period of almost two months immediately following the accident.
According to the plaintiff between the time of seeing Dr Jee and Professor Taylor she had severe headaches, ringing in her ears and a pain in her cheek and face. She was unable to go to work. She had to go to bed between 5 pm and 6 pm each evening and she was not able to sleep. She suffered from panic attacks.
Professor Taylor referred her to Mr Delcanho for treatment of what she described as an injury to the temporo-mandibular joint. At that time she was suffering from a toothache and from teeth grinding. Mr Delcanho prepared a mouth guard that she had to wear at night to stop her teeth from grinding together.
Professor Taylor also referred her to a clinical psychologist.
Following the accident she had blurred vision which she still gets when she has severe headaches.
About six or seven months after the accident she was seen by Professor Peter Hollingworth. At that time she began to feel more and more depressed. She could only work two or three days a week and sometimes could not work at all.
She was referred to Dr Finch who undertook a facet joint injection. She also saw a Mr Ponchard who undertook a programme of massage.
The tinnitus and headaches were particularly severe and affected her day to day living.
In late 1997 she was referred to Dr John Whiteside. He undertook a series of procraine injections to her face muscle. She continued to see Dr Whiteside until about June 1998.
In August 1998 she attended upon Mr Desmond Williams. He recommended that she undertake a swimming programme and have further physiotherapy. She attempted that but felt that it made her symptoms worse.
For the remainder of 1998 and throughout 1999 she continued to have treatment from Mr Williams, Dr Finch, Professor Taylor and Mr Lazarus. Mr Finch undertook a number of radio frequency treatments and these gave her temporary relief.
According to the plaintiff she had an improvement in her condition throughout 1999 but was still working at about 30 per cent of her capacity.
Her present condition is that the pain is more or less constant no matter what she does. She continues to suffer from tinnitus and suffers from intermittent vertigo. She continues to take medication.
The plaintiff was supported in her evidence by her husband Mr Eric Klahn. According to Mr Klahn the accident has dramatically affected their lifestyle. The plaintiff now goes to bed at least five nights a week by 6 pm and on occasions she will be in bed by 2 or 3 pm.

The medical evidence

Professor James Taylor graduated MBChB in Edinburgh in 1955. He served as a medical missionary for 10 years in Africa and then did a PHD in Edinburgh in 1974. In 1975 he came to a dual appointment in Western Australia as a clinical assistant in the spinal unit and as a full time academic in the anatomy department where he did spinal research. He has more recently been given an honorary fellowship of the Australian Faculty of Rehabilitation Medicine. For the last seven years he has practised in a pain clinic.
On 5 February 2000 Professor Taylor reported as follows:
"I first saw Renee Klahn, a 46 year old real estate agent, on 19 September 1996 on referral from Dr Hon Jee and I have reviewed her on numerous occasions since that time, referring her on for treatments to my colleagues Dr Finch, the Pain Management specialist, Mr R Elvey, manipulative Physiotherapist, Dr R Delcanho, the dentist, and to the clinical psychologist Alan Lazarus. I have provided regular reports to the general practitioner, Dr Jee but I could not find any record in the file of a previous medico-legal report. I shall highlight the principal findings and Mrs Klahn's progress over more than 3 years.
The accident:
On 21.7.96 at 4pm, Mrs Klahn was the front seat-belted passenger in a 4WD Pajero which was almost stationary in slowing traffic, when impacted in the rear by a Mitsubishi Magna travelling at high speed on the Kwinana Freeway.
Onset of pain and presentation:
There was an immediate onset of headache and tinnitus. An initially mild neck pain became progressively severe over the next 2 weeks. The headache included occipital pain and facial pain. The neck pain radiated to the shoulders and down both arms to the hands. There was also initial seat belt bruising with central chest pain but these gradually settled whereas the neck pain, headache and brachialgia had persisted till presentation, the occipital headaches and facial pain constituting the main problems. The pain was estimated (VAS) by the patient at 7 on a 10 point scale and it caused sever sleep disturbance.
Relevant previous history:
There had been a motor vehicle accident about 14 years before with neck and back pain lasting for 18 months. A 'minor bump' 5 years before had caused recurrence of symptoms which settled quickly.
There was also a history of 'RSI' probably related to keyboard work, between the two MVAs. But at presentation she had not used a keyboard for some years and there had been no RSI type symptoms in the 3 ½ years before the recent MVA.
Initial examination:
There was marked restriction of all neck movements with pain at end ranges. There was marked focal tenderness at C2-3 facet joints bilaterally and in the midline from C5 to C7.
There was limitation of jaw movement with right jaw pain.
The lumbar spine showed marked restriction of flexion with lesser restriction of other movements. There was mild tenderness in the lower lumbar spine.
Neurological examination in upper and lower limbs was normal.
A cervical spine x-ray of 10/9/96 reported degenerative changes at C5-6 and C6-7. I noted loss of disc height at these 2 levels.
Management & Progress:
She was initially taking high doses of Panadeine Forte for pain relief. A right C2-3 facet joint injection gave very good short term pain relief. Subsequent radiofrequency (RF) lesioning of the upper cervical dorsal rami (nerves of upper facet joints) was performed by Dr Finch on 30/10/96 (left) and 27/11/96 (right) with a report of 60% pain relief on the right and 40% pain relief on the left. Facial pain and tinnitus persisted. She was taking amitriptyline 75mg nocte. RF was repeated at C2-3 on the left on 23/1/97 but this only gave good relief for about a week. At this time she was seeing Mr Lazarus regularly for counselling regarding a 'potentially serious depression' and was taking regular antidepressant medication. Mr Lazarus reported persisting or worsening depression. It was decided to repeat the RF on the left as symptoms and signs of occipital neuralgia persisted. This was done by Dr Finch on 2.5.97, this time with good and more lasting effect.
By mid-1997 she expressed increasing difficulty in coping with her work. In June 1997 she complained of ongoing tinnitus and blurred vision and I referred her to Professor Constable, who wrote back on 17/7/97 reporting refractive errors but no other eye pathology. In August 1997 Mrs Klahn reported ongoing visual disturbances, tinnitus and intermittent neck pain. She remained depressed, though with some improvement around this time, but she had gained considerable weight, possibly as a side effect of anti depressant mediation (ADM). By September 1997 there was recurrence of increasing pain at C2-3 levels especially on the left side. Before recommending repeat RF lesioning, I suggested she consult Dr Finch whom she saw on 22/9/97. Dr Finch repeated the RF on the left at upper cervical facet nerves at lower temperatures than usual but the pain relief did not persist for much more than a week. A trial of TENS was unsuccessful. By the end of 1997 she had reduced her work hours to 20% of her pre-accident level.
Mrs Klahn was referred to Dr Whiteside by Dr Delcanho and she obtained pain relief from Dr Whiteside's myofascial techniques. She attended Dr Whiteside regularly for about 5 months but eventually his myofascial procedures had little significant pain relieving effect. In early 1998, Mrs Klahn had also visited Stuart Meredity, the physiotherapist for massage treatments which gave some relief.
Further review and investigation:
When I reviewed her on 5th May 1998 after an interval of more than 4 months, I suggested she be assessed by my colleague Mr R Elvey and I sent her for a bone scan. Mr Elvey reported on 16th May 1998 that she showed even more marked limitation of cervical movements than at my initial assessment and he remarked on limitation of left shoulder movement associated with stretching of the left brachial plexus. Mr Elvey and I both found her to be still symptomatic in the neck, principally at the C2-3 level, with tenderness also at lower levels. She continued to complain of headaches, facial pain, tinnitus, blurred vision and excessive sweating.
The bone scan was reported on 27th July 1998. This showed C2-3 facet joint arthropathies, most marked on the left side, as well as a right temporo-mandibular arthropathy.
At my request, on 10.9.98 Dr Finch then performed an intra-articular injection to the Left C2-3 facet joint with local anaesthetic and steroid. Following the injection there was a 50% reduction in pain lasting for 12 hours.
I did not see her again till 22/9/98 when she returned because of recurrence of very severe neck pain and headache with depression. After discussion it was agreed that the most effective treatment in the past had been RF lesioning so this was repeated on 2.10.98 to the nerves of the left C2-3 and C3-4 facet joints. On 22nd October Mrs Klahn seemed enthusiastic about the level of pain relief achieved, despite continuing tinnitus with some vertigo and nausea. She had been taking MS Contin (morphine) for pain control and was able to stop this. Left sided pain relief was persisting at review on 2.12.98 but there was marked pain and tenderness on the right side at C2-3. In March 1999 I suggested a trial of Physiotherapy rather than recourse to further RF lesioning for the right-sided pain but Mr Elvey reported on 29th April and on 24th May 1999 that this had not been successful in relieving her pain. A shoulder joint injection performed by a colleague had not been successful.
I sent Mrs Klahn for a cervical MRI to see if there was some other unrecognised cause for the neck pain. This was reported on 25th June 1999. It showed cervical spondylosis, most prominent at C5-6 (probable cause of lower cervical pain and shoulder arm referred pain) – at this level a right disc protrusion was abutting the anterior surface of the spinal cord. Arthropathies were confirmed at C2-3 and C3-4 on the left.
It was concluded from all the evidence, particularly from clinical examination and previous responses to treatment that there were multiple pain sources but the upper facet joints were principal pain sources, especially on the left side.
Repeat RF lesioning was done on the left side on 9/7/99 and on the right on 16/7/99. On 19th August she reported good relief from headaches despite persisting bilateral neck pain. She was still requiring regular ADM. On 12th October 1999 there was some exacerbation of her neck pain though headaches were not so bad as before the procedures.
Last Review:
My most recent review was on 23rd December 1999 when Mrs Klahn reported that the effect of the last RF lesioning had largely 'worn off' and a further procedure was required. I note that she saw Dr Finch for left sided upper cervical RF lesioning on 4.2.00. On the basis of past experience this is likely to give a good measure of pain relief, mainly from occipital headaches, for about 6 months. The ongoing depression remains a problem.
Summary:
In my view, Mrs Klahn suffered an injury in 1996 which caused C2-3 facet injuries and temporo-mandibular whiplash, more marked on the right. These new injuries were superimposed on previous healed soft tissue injuries from some years before, possibly involving C5-6. She has suffered a severe depressive illness as a consequence of her chronic pain syndrome.
Partial disability:
Since the injury in 1996, Mrs Klahn has had to severely curtail her hours of work because of the effects of her pain related disability. There is a persisting loss of about 40% of the normal use of the cervical spine, with lesser loss of the use of the jaw (see Dr Delcanho) and a relatively minor loss (10-20%) of the normal use of the thoraco-lumbar spine. Restriction of the left shoulder is probably secondary to the cervical spine changes. The effect of the secondary depression has also significantly added to her disability."
Professor Taylor considered that this report summarised his findings. He described her as having physical symptoms and a reactive depression. He considered that there was a close correlation between her pain and her depression. He considered that her prognosis was poor and she was likely to continue to have pain although in a lesser form than at present. He did not consider that she would be able to work six days a week. He saw her getting back to half time work over the next three years.
He was aware that the plaintiff had been seen by Professor Hollingworth and accepted that there were degenerative changes at the C5-6 and C6-7 level. However he considered that the principle symptoms were at C2-3.
He was aware she had seen Mr Desmond Williams, an Orthopaedic Surgeon. He did not consider that she should progress to more conservative management. Her pain was incapacitating. Physiotherapy had been tried but was not achieving the desired effect. Swimming exacerbated her pain. He considered that 10 per cent disability in the spine was a gross underestimate. He considered that 40 per cent was a more appropriate assessment. He recommended continued psychotherapy.
Professor Taylor confirmed that he was told by the plaintiff that when the vehicle in which she was a passenger, was stopped a Magna following at high speed crashed into the back of her vehicle. The Magna was a "write off" and had to be towed away. He thought that the severity of the injury indicated a speed of 60 kilometres per hour plus. He would find a speed of 30 to 40 kilometres per hour hard to accept. I have already stated that I am of the view that the defendant's vehicle was not travelling at more than 30 to 40 kilometres per hour. Professor Taylor also stated that she had seat belt bruising but acknowledged that he did not see that and obtained it from the history given by the plaintiff. There is no medical evidence of seat belt bruising.

Professor Taylor considered it important to get a history of the severity of the crash because that had a bearing. There was a reasonable correlation between the severity of the impact and the injury.
In my view Professor Taylor's evidence is based upon his view of the severity of the accident. It is my finding that the accident was not as severe as Professor Taylor understood it to be. In that respect I am not prepared to accept Professor Taylor's account as to her condition. I accept that she has had all of the treatment referred to by Professor Taylor but in my view that is part of the problem. I prefer the evidence of Professor Hollingworth and Mr Desmond Williams that she should have been treated conservatively.
He described the changes at C5-6 and C6-7 as longstanding. Her more severe symptoms were at C2-3.
Professor Taylor accepted that the plaintiff should keep her analgesics at a minimum in order to cope. He considered that the tinnitus was semi permanent. He considered that she was unlikely to be fit for full time work in the foreseeable future.
He did not agree with Mr Williams diagnosis that there were soft tissue injuries to the cervical and thoraco-lumbar spinal area with exacerbation of symptoms from underlying degenerative change present in the cervical area particularly involving the mid cervical segment. He considered that an exercise program needed to be individualised. So far as the plaintiff was concerned walking was a good exercise.
Mr Robert Delcanho is a Bachelor of Dental Science. He did not give evidence but his medical reports which were tendered in evidence would indicate that he specialises in pain management. Professor Taylor also stated that he practiced in a pain clinic for the last seven years.
Mr Delcanho first saw the plaintiff on 1 October 1996 on referral from Professor Taylor. At that time the plaintiff was complaining of bilateral fronto-temperol and facial pain. He diagnosed the problems as masticatory myalgia and psychological issues. Treatment recommendations included the provision of an occlusal splint as well as jaw muscle exercises designed to reduce tightness and restriction in that area.
In his report of 19 March 1997 Mr Delcanho stated that he remained convinced that much of her symptomatology is of a myofascial nature with her jaw region problems related to jaw parafunctional activity secondary to anxiety and emotional issues.
On 10 September 1997 Mr Delcanho reported that she was continuing to wear her occlusal splint at night. He suggested a weight loss programme would be beneficial.
Mr Delcanho's last report is dated 3 December 1997. In that report he stated that he did not believe that surgical intervention was warranted in the facial or jaw area.
There is no further follow up after that report. The current position in this respect is not known.
Dr Alan Lazarus is a clinical psychologist. The plaintiff was referred to Dr Lazarus by Professor Taylor. In a report dated 6 December 1996 Dr Lazarus stated that she appeared to be manifesting signs of a substantial depressive reaction with pronounced associated anxiety features. He considered that there was possibly a fairly substantial psychological overlay which could be aggravating the pain presentation.
Dr Lazarus has been seeing her on a regular basis since that time and counselling her in terms of managing her problems and attempting to work out strategies. He considered that she had made an incomplete recovery and that she required treatment for the foreseeable future. She had been averaging one session per month and the current cost of a session was $155. He considered that would need to extend at least until next year. Notwithstanding that she appeared to be manifesting signs of a substantial depressive illness she was not referred to a psychiatrist by Dr Lazuras or her treating practitioners. She first saw a psychiatrist on 24 August 1999 at the request of the defendant.
Dr Lazarus accepted that a psychiatrist could be covering the same ground as himself.
Dr Phillip Finch is a specialist anaesthetist practising entirely in pain medicine as it would appear do Professor Taylor and Mr Delcanho. He was asked by Professor Taylor to carry out some nerve blocks which he did on the first occasion on 17 October 1996 and then has performed them on a number of occasions over the years until the most recent of these was on 4 February 2000.
He considered that there were slight risks each time that he performed the radiofrequency blocks to the nerve supply and was reluctant to do more. He considered that his treatment had improved her quite a bit and had got her back to work.
Dr Finch's prognosis of the plaintiff was guarded. He considered that she would continue to experience problems until she retires. He assumed that that would be in 10 to 15 years time and that she would probably not be able to work beyond the part-time that she is at present.
Dr Finch considered that the plaintiff had an arthritic neck at the time of her accident which was wide spread and involving every level. The plaintiff told him that she had no neck pain before the accident. But if she had had previous accidents the most recent accident would stir it up again. The plaintiff had wide spread degenerative change. She still had symptoms one year after her accident and he considered that she had a long-term problem. He considered that exercise often made the situation worse and that the problem was not cured by repeated swimming.
Professor Peter Hollingworth is a Fellow of the Royal Australian College of Physicians and a Fellow of the Faculty of Occupational Medicine at the Royal Australian College of Physicians. He is an occupational physician who has been practising in the United Kingdom since 1962 and in Western Australia since 1978. He is Joint Associate Professor of Occupational Medicine at Curtin University and an honorary senior fellow in occupational health at Edith Cowan University.
The plaintiff was seen by Professor Hollingworth on 17 February 1997 at the request of the defendant. At that time she presented as a person who wanted an early solution to her problems. He considered that she had soft tissue injuries to the upper part of her neck. Initially they were at the C2 level, the top end of the neck. She had proceeded straight away to invasive treatments without really trying the more simple things first. There was radiological evidence of degeneration at the C5-6 and C6-7 levels. He considered that the headaches and tinnitus of which she complained were top end of neck symptoms.
He considered that the plaintiff's problems were largely of a psychological nature and that her reaction to the soft tissue injuries had been over reactions. He suggested to her that she avoid any further treatment other than an active gentle hydrotherapy or aqua-aerobics programme. He considered that she should try gentle freestyle swimming and continue the psychological support and try and be patient.
When he saw her on 25 March 1998 she had continued with the invasive treatment. At that time she showed a good range of movement but more tenderness than on the first examination. He considered that it was very unusual in a whiplash type injury to be developing new symptoms. He considered that she would have no permanent disability when her soft tissue injuries improved.
He did not think that she would be left with any permanent impairment or disability or restriction in choice of job opportunities.
When he saw her on 13 September 1999 he was of the view that she had much less movement than on previous occasions. The first two occasions that he had seen her she had no shoulder pains but she had since developed shoulder pain. He considered that that was a new symptom.
He considered that the plaintiff had quite extensive degeneration in the cervical spine and that her current treatment was for a degeneration rather than just the soft tissue injuries which occurred in the motor vehicle accident. The natural history of soft tissue injuries is that, with the passage of time, they improve, whereas the plaintiff was not improving. He was of the view that the plaintiff should avoid opiates.
Professor Hollingworth believed that she had a permanent disability but this was as a result of the degeneration. He was of the view that a soft tissue injury should settle down. He did not consider that any impairment was permanent. He did not expect her to have any disability or handicap.
Mr Desmond Williams is an orthopaedic surgeon.
He first saw the plaintiff on 3 September 1998. At that time he considered that she had mid cervical degenerative changes. He did not consider there was any pathology in the C-2 area. He considered it was an injury to the whole of the cervical spine but with exacerbation. He considered the appropriate course of treatment was an intensive swimming and exercise schedule, whereas in fact the plaintiff had undergone very invasive procedures and at that time was on morphia. He considered that she had significant problems. She was a distressed patient after two years of intensive treatment. He considered that it was time to go back to basics. He found the treatment that she had been undergoing all rather extraordinary. By this time she was tearful and distressed. He considered that it was much simpler to start on simple treatment. He considered that the present treatment had gone in with a heavy hammer, a sledgehammer. He saw a very distressed patient at the end of two years of heavy hammer treatment. He recommended swimming which is a gentle mobilising programme and a cheap form of physiotherapy. It had no weight stresses. The plaintiff should find a stroke that is comfortable.
Mr Williams was of the view that the plaintiff needed to be taken from her medication. She should enter into physical exercise and swimming and fitness programmes of weight reduction schedules centred around a community pool setting rather than requiring intervention treatment. He believed her management had focussed too much on invasive treatments with the myofascial treatment and ongoing radio frequency technology treatment. He considered that she should return to simple non-intervention treatments over the medium to longer term and that there should be a move away from continued major drug usage. In terms of physical permanent disability he considered her disability in the spine was in the order of 10 per cent expressed as a percentage disability of the whole functional spine. He considered that her ability to work in real estate would gradually increase over the next six to 12 months.
Dr S D Febbo is a consultant psychiatrist. He first saw the plaintiff on 24 August 1999. He considered that by the time of his interview there had been considerably improvement in the plaintiff's mental state although some residual depressive symptoms remained. He described them as of minor severity.
He reviewed the plaintiff on 7 February 2000. At that time she was reluctant to accept any treatment. Reviewing her mental state he considered that there should be a change of anti depressants. He was also of the view that as her physical condition improved so would her psychiatric state. He did not consider it was necessary to continue psychotherapy. He considered her physical condition was associated with depression.

Assessment of damages

Loss of amenities

The plaintiff claims damages for loss of amenities being pain and suffering and loss of enjoyment of life both past and future.
In my view the plaintiff has exaggerated the seriousness of the accident that occurred and her complaints to her medical practitioners and in her evidence before me. Examples of that are the exaggerated severity of the collision to Professor Taylor and her evidence to me that she is only able to work 25 per cent of the time that she was working pre-accident. I comment on both of these aspects elsewhere in my reasons for decision. I also find that she has exaggerated her symptoms to her medical practitioners. For example when Professor Hollingworth saw her on 25 March 1998 she had more tenderness than on the first examination. He considered it was very unusual in a whiplash type injury to be developing new symptoms. When he saw her on 13 September 1999 she had further new symptoms. I accept Professor Hollingworth's evidence in this respect. In my view the explanation is that the plaintiff is exaggerating her symptoms.
In the statement of claim the plaintiff alleges that she received the following injuries:
"4.1A whiplash injury to the cervical thoracic and lumbar spines involving soft tissue damage to the muscles and ligaments attached thereto;
4.2Bruising to the chest;
4.3A whiplash injury to the temporo-mandibular joint;
4.4Nervous shock."
In relation to para 4.1 the plaintiff's counsel accepted that there is no evidence of an injury to the thoracic and lumbar spines and that the only complaint is of a whiplash injury to the cervical spine.
Insofar as the cervical spine is concerned I accept that the plaintiff suffered a soft tissue injury to the cervical spine. That injury is said by Professor Taylor and Dr Finch to be at the C2-C3 level. The best view of the medical evidence is to describe it as a moderate injury to the cervical spine.
In my view the severity of the impact involved in the plaintiff's accident was not great. As described by the defendant it is unlikely that it involved high speed. The plaintiff's vehicle suffered no damage. The defendant's vehicle suffered some damage caused by the towbar through the radiator.
The problems at C5-6 and C6-7 of the cervical spine are degenerative and not caused by the accident.
In relation to para 4.2 there is no medical evidence of bruising to the chest. By the time the plaintiff went to see Professor Taylor there was no evidence of bruising to the chest.
The particular 4.3 claims a whiplash injury to the temporo-mandibular joint. Dr Delcanho was of the view that her symptomatology was of a myofascial nature secondary to anxiety and emotional issues. I accept that evidence.
In relation to para 4.4 there is evidence of the fact that the plaintiff was referred to a psychologist and that she has attended psychotherapy. According to Dr Febbo whose evidence I accept it is unnecessary to continue that psychotherapy. According to Dr Febbo there was evidence of residual depressive symptoms which he described as being of minor severity.
The plaintiff complains of suffering from numerous residual disabilities. However an analysis of her evidence indicates that her main complaints relate to neck pain, headaches, tinnitus and depression.
The medical evidence is that the depression goes along with her physical symptoms and has the same prognosis.
In respect to the prognosis for the future Professor Taylor and Dr Finch are pessimistic. Professor Hollingworth and Mr Williams say that these are expected to resolve.
The plaintiff in my view has had an extraordinary amount of treatment to the present time. Exhibit 1 indicates that the grand total of medical expenses to date is $53,599.55. According to her she does not seemed to be getting any better. I much prefer the evidence of Professor Hollingworth and Mr Williams to that of Professor Taylor and Dr Finch. It is quite clear that all of the treatment that the plaintiff has had to date has done her very little good. Mr Williams described that treatment as "extraordinary". Both he and Professor Hollingworth are of the view that the plaintiff should have been treated conservatively. I accept Mr William's evidence that the injury to the cervical spine is in the order of 10 per cent expressed as a percentage disability of the whole functional spine.
According to the plaintiff all of the treatment that she has had has done her very little good. As far as she is concerned she still has to get into bed by 5 or 6 o'clock each night. According to her she is only able to work at 25 per cent of her pre-accident capacity. I accept the evidence of both Professor Hollingworth and Mr Williams that the prognosis is good and that conservative treatment should be tried.
Pursuant to s 3C(a) of the Motor Vehicle (Third Party Insurance) Act 1943 I am required to assess non-pecuniary loss as 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 for non-pecuniary loss at the present time is $219,000. The maximum amount may be awarded only in a most extreme case (s 3C(3)).
I am of the view that the plaintiff's non-pecuniary loss should be assessed on the basis of 10 per cent of a most extreme case. Ten per cent of a most extreme case is $21,900.
From that amount I am required to deduct amount B (threshold-deductible) which presently stands at $10,500.
It follows that the plaintiff is entitled to the sum of $11,400 for loss of amenities, being pain and suffering and loss of enjoyment of life, both past and future.
It was the submission of counsel for the plaintiff that as the plaintiff had received past treatment in a sum exceeding $50,000 that the general damages must exceed that sum. I see no correlation between the two and I reject that submission.

Loss of earning capacity

The plaintiff claims past loss of earning capacity on the following basis:
"Assumptions
1.    But for the accident the plaintiff would have earned commission income at her 1994 rate in the year ended 30 June 1997 ie $65,000 per annum.
2.    The plaintiff's commission income would have increased to $75,000 in the year ended 30 June 1998.
3.    The plaintiff's commission income would have increased to $85,000 in the year ended 30 June 1999.
4.    The plaintiff's commission income would have increased to $95,000 in the year ended 30 June 2000.
Loss of year ended 30 June 1997
Projected earnings       $65,000
Actual earnings           $40,930
Loss for year               $24,070
Less 30% tax              $16,849
Loss of year ended 30 June 1998
Projected earnings       $75,000
Actual earnings           $45,896
Loss for year               $29,214
Less 30% tax              $20,449
Loss of year ended 30 June 1999
Projected earnings       $85,000
Actual earnings           $40,903
Loss for year               $44,097
Less 30% tax              $30,867.90
Loss to 1 April 2000
Based on projected earnings of $95,000 per annum $71,250
Less projected earnings to 1 April 2000 $40,287
Loss to 1 April 2000 $30,963
Less 30% tax $21,674.10
Pre-Trial Loss of Earnings
Year ended 30 June 1997                  $16,849
Year ended 30 June 1998                  $20,449
Year ended 30 June 1999                  $30,867.90
To 1 April 2000  $21,674.10
$89,840.00
Interest on Past Loss
$89,840 x 3.8 years x 3% $10,241.76
Total claim for Pre-Trial loss of earnings $100,081.76"
A projection of the claim contained in para 8.3 of the statement of claim up to the date of trial produces a figure of $23,302 plus interest. The schedule is inconsistent with that claim.
It is pertinent also to note that at the time the statement of claim was issued the plaintiff was claiming a 20 per cent loss of earning capacity. In evidence before me the plaintiff said that she was now putting in 25 per cent of the time compared to her pre-accident times. That is not the same thing as saying that her earnings are 25 per cent of what they were before the accident but it is a proposition that I do not accept. Her gross commissions for the various years were as follows:
"30 June 1993   $46,828
30 June 1994   $66,356
30 June 1995   $44,566
30 June 1996   $51,039
30 June 1997   $40,930
30 June 1998   $45,896
30 June 1999   $40,903."
These of course are gross commissions received by her and do not include her costs of earning that income or deductions for income tax.
The average gross commissions for the four years preceding the accident being years ended 30 June 1993, 94, 95 and 96 was $52,197 per annum.

The average gross commissions for years ending 30 June 1997, 1998 and 1999 was $42,576.
The difference between those figures is $9,621. This amounts to a reduction of 18.43 per cent.
I find it very difficult to accept that if the plaintiff was only putting in 25 per cent of the time that she was previously putting in that her average gross earnings post accident would only fall by 18.43 per cent. It is my finding that the plaintiff has mislead the Court and her medical advisers as to the amount of time she is putting in working. On those figures it could not be the position that she is only putting in 25 per cent of the time that she was pre-accident.
It was submitted that the plaintiff did not work for the full year in the years preceding the accident. However the plaintiff told me that she had a good lifestyle with lots of holidays. There is no reason to presume that would not have continued had it not been for the accident. In any event on a fair reading of the plaintiff's evidence she has continued to take holidays and to travel overseas. I have no evidence of her requiring medical treatment whilst overseas.
In my view the figures put forward by the plaintiff in the schedule of past loss of earning capacity are grossly exaggerated. The starting point of $65,000 for the year ending 30 June 1997 is a figure that has been reached on only one other year ie. 30 June 1994. The annual increments of $10,000 per annum do not bear any correlation to the pre-accident years. The plaintiff accepted in evidence that her expenses in earning that income ranged from 30 to 50 per cent.
I accept that the plaintiff has suffered some loss of income following the accident but not to the extent put forward in her schedule of past loss of earning capacity.
In my view if I allowed the plaintiff the sum of $10,000 by way of gross commissions for the 3.9 years post accident to the present time, less 30 per cent for expenses in earning that income and a further 30 per cent for taxation that the plaintiff would be amply rewarded in respect to past loss of earning capacity.
$10,000 x 3.9 x 70 per cent x 70 per cent = $19,110.
I allow the sum of $19,110 for past loss of earning capacity.
I allow interest on past loss of earnings at the rate of three per cent as follows:
$19110 x 3 per cent x 3.9 = $2,235.
I allow the sum of $2,235 on past loss of earning.

Past loss of superannuation

The parties are agreed that the total gross loss of commissions should be multiplied by six per cent and then by 70 per cent to arrive at the figure of past loss of superannuation.
The total gross loss of commissions based on the figures above amounts to $39,000. On that basis I allow the sum of $1,638 for past loss of superannuation.

Interest on past loss of superannuation

I allow interest on the sum of $1,638 at three per cent as follows:
$1638 x 3 per cent x 3.9 = $191
I allow interest on past loss of superannuation in the sum of $191.

Future economic loss

The plaintiff claims future economic loss as follows:
"Assumptions
1.    The plaintiff's loss of commission income as a result of the accident is $50,000 per annum.
2.    The plaintiff's lost commission earnings would have been taxed at a rate of 30 per cent resulting in a net continuing loss to the plaintiff of $35,000 per annum or $673 net per week.
3.    The plaintiff's symptoms will prevent her from returning to her pre-accident earning capacity for at least 10 years.
4.    The plaintiff's loss of income for five years at the current rate using a multiplier of 226.3 is $152,317.
5.    Assuming the plaintiff will recover to the extent that she is able to earn at the rate of 75 per cent of her pre-accident earning capacity during years 5 to ten post trial, the plaintiff's loss during those years is $336.54 net per week. Using a multiplier of 169.2 (multiplier for 10 years minus multiplier for five years), the loss for this period is $56,942.30.
Total claim for future economic loss $209,259.30."
In my view there is absolutely no basis for assuming a loss of commission income at the sum of $50,000 per annum.
Mr William's assessed her disability as 10 per cent of the whole of the function of the spine. He was of the view that that allowed her to do a whole range of activities. He described the injury as basically a soft tissue injury. Professor Hollingworth was of the view that she had no permanent disability when the soft tissue injuries improve. He was of the view that the soft tissue should settle down, her impairment was not permanent and he did not expect her to have a disability or a handicap.
The plaintiff has expended the sum of $53,599.55 to the present time having treatment for what counsel for the plaintiff accepted was a moderate whiplash injury to the cervical spine. Professor Hollingworth and Mr Williams are of the view that the plaintiff would be better off with more conservative treatment. On the totality of her evidence the treatment that she has been having to date has not done her any good.
Furthermore although she has been complaining of depression since the accident Professor Taylor has not seen fit to refer her to a psychiatrist. Her visits to a psychiatrist have been at the request of the defendant for the purposes of providing reports in these proceedings.
She has of course been attending on Mr Lazarus for psychotherapy since 1996. However Dr Febbo's evidence which I accept was that it was not necessary for her to continue psychotherapy.
In my view if I allowed the plaintiff future economic loss for a period of one year that will allow sufficient time for the plaintiff to fully return to work. She will by then have had nearly five years post accident for what has been described as a moderate whiplash injury to the cervical spine.
I do not accept the submission of counsel for the plaintiff that the plaintiff will be prevented from returning to her pre-accident earning capacity for a period of a further 10 years.
Based on the figures referred to earlier I allow future economic loss as follows:
$10,000 x 70 per cent x 70 per cent = $4,900
I allow future economic loss at $4,900.

Future superannuation loss

I allow future superannuation loss as follows:
$10,000 x 6 per cent x 70 per cent = $420.
I allow the sum of $420 by way of future superannuation loss.

Future medical expenses

The plaintiff claims future medical expenses on the basis of total weekly cost of medication of $65.49. That is said to be required for a further period of 10 years and using a multiplier of 395.5 a claim for $25,901.29 is made. The medications are said to include the following:
"1.     Celebrex 200 mg
2.     Efexor 375 mg per day
3.     Endone 12 tablets per week
4.     Panadeine Forte 24 tablets per week
5.     Coloxel 3 tablets per day"
The plaintiff has been taking a whole battery of medications for a period of four years. It would not appear that any of it is doing her any good at all. To suggest that she should continue for a further 10 years in my view defies belief. Professor Hollingworth and Mr William's are both of the view that the plaintiff should be avoiding these medications. It is their evidence that I accept. In my view if I allow the sum of $2,500 for future medication expenses that would be amply sufficient to enable the plaintiff to taper off the various medications that she is taking.
I allow the sum of $2,500 for future medication expenses.

Future treatment expenses

The plaintiff claims future treatment expenses as follows:
"1.The plaintiff will continue to require treatment in the form of regular attendances on her general practitioner, regular attendances on her psychologist, psychiatric attendances, attendances on physiotherapists during acute exacerbations of her condition and future radiotherapy treatment.
2.The plaintiff estimates the cost of future treatment at $30,000 over a 10 year period discounted to $20,000 for payment at the date of judgment.
Total future treatment expenses $20,000."
There is no evidence that the plaintiff regularly attends on a general practitioner. Regular attendances on her psychologist are for psychotherapy. Dr Febbo is of the view that they should be discontinued. There is no evidence in the four years that she has been attending for psychotherapy has made any improvement in her condition. So far as psychiatric attendances are concerned the only attendances have been on Dr Febbo at the request of the defendant. Apart from two attendances on Dr Febbo for the purposes of preparing reports for the defendant there is no evidence of any other psychiatric attendances.
I accept there have been attendances in the past on physiotherapists and maybe some attendances required in the future if the plaintiff is to undertake more conservative treatment recommended by Professor Hollingworth and Mr William's.
Insofar as the radiotherapy treatment is concerned Dr Finch noted that there are risks each time that procedure was performed and stated that he would be reluctant to do more. I accept Mr Williams evidence that the plaintiff does not need future radiofrequency, that there is no need for ongoing intervention treatment and that simple conservative measures are what is required.
It needs to be remembered that the plaintiff has had medical treatment and medications to a value of $53,599.55 to date. According to her, her condition has not improved. She told me that she was only able to work 25 per cent of the time she was working pre-accident. Bearing in mind that the allegation in the statement of claim which was filed on 26 June 1998 is that her earnings were some 20 per cent less than they would have been but for the accident I would have to conclude that so far as the plaintiff is concerned she sees her condition as getting worse.
Clearly in my view the treatment programme that she is having is not doing her any good. On the basis that the plaintiff should taper off her present treatment and undertake a conservative programme I would allow the sum of $2,500 by way of future medical treatment.

Travelling expenses

Past travelling expenses are agreed at $2,200 and I allow that sum.
The plaintiff claims future travelling expenses in the sum of $2,250. In view of my findings as to the future medical treatment I am of the view that the plaintiff would be adequately catered for if I allowed the sum of $250 by way of future travelling expenses. I therefore allow the sum of $2,450 by way of travelling expenses.

Conclusion

In my view there is no overlapping of the various heads of damages and I allow the plaintiff's claim as follows:
Loss of amenities  $11,400
Past loss of earning capacity  $19,110
Interest on past loss of earnings               $ 2,235
Past loss of superannuation  $ 1,638
Interest on past loss of superannuation     $     191
Future economic loss  $ 4,900
Future superannuation loss  $     420
Future medical expenses  $ 2,500
Future treatment expenses  $ 2,500
Travelling expenses  $ 2,450
Total  $47,344
The plaintiff is entitled to judgment against the defendant in the sum of $47,344.