Lamb v Insurance Commission of Western Australia - [2002] WADC 131

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: LAMB -v- INSURANCE COMMISSION OF WESTERN AUSTRALIA & ANOR [2002] WADC 131

CORAM: BLAXELL DCJ

HEARD: 5-7 FEBRUARY 2002

DELIVERED : 27 JUNE 2002

FILE NO/S: CIV 2772 of 2000

BETWEEN: MELANIE RUTH LAMB
Plaintiff
AND
INSURANCE COMMISSION OF WESTERN AUSTRALIA
First Defendant
KELLIE TAYLOR
Second Defendant

Catchwords:

Negligence - Motor vehicle accident - Assessment of damages for personal injuries - Whiplash injuries sustained in two separate accidents - Turns on own facts

Legislation:

Nil

Result:

Damages assessed at $132,007.70 and $15,956 for the first and second accidents respectively

Representation:

Counsel:

Plaintiff:     Mr B L Nugawela
First Defendant             :     Mr B J H Goetze
Second Defendant         :     Mr B J H Goetze

Solicitors:

Plaintiff:     Marks & Sands
First Defendant             :     Minter Ellison
Second Defendant         :     Minter Ellison

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

Nil

Case(s) also cited:

Nil

BLAXELL DCJ: The plaintiff was born on 11 March 1968 and claims damages for personal injuries suffered in two separate motor vehicle accidents which occurred on 9 September 1996 and 20 October 1999 respectively. In each instance the plaintiff was the driver of a stationary car which was struck from behind by another vehicle, resulting in soft tissue injuries to her cervical and/or lumbar spines. Negligence is admitted on behalf of each of the defendants, and the matter has come before me for assessment of damages.
As the hearing could not be completed within the three days allocated, the matter was adjourned on the basis that it would be re‑listed to enable a final address by the plaintiff's counsel. However the parties have since agreed that I should proceed to make my decision after taking into account written submissions provided by the plaintiff's counsel.

The plaintiff's background circumstances

At the time of the first accident the plaintiff was 27 years of age and worked as an aerobics instructor. She had completed the appropriate training to acquire accreditation as an aerobics instructor, and enjoyed secure part‑time employment in that capacity. In addition the plaintiff had part‑time employment as a Nutrimetics consultant selling cosmetics.
The plaintiff had been married since the age of 19 years, and was the mother of three children (who are currently aged between 8 and 13 years). Her husband worked full‑time as a financial controller and also provided some limited assistance with the plaintiff's Nutrimetics activities. The couple had long term intentions of adding another child to their family and then developing a health club business.
Prior to the first motor vehicle accident the plaintiff was physically very fit and enjoyed exceptionally good health. Her exercise regime included jogging three times daily around Lake Monger (a distance of 12 – 15km) and regularly playing squash, tennis, netball, and indoor cricket. The evidence also establishes that the plaintiff at that time had (what has been described as) a vivacious and bubbly personality.
Unbeknown to the plaintiff she had a congenital bilateral pars defect at the L5S1 level of her lumbar spine which was asymptomatic at the date of the first accident but was liable to cause future problems even without trauma.

The plaintiff's evidence as to the effects of the first motor vehicle accident

According to the plaintiff during the course of the collision on 9 September 1996, her head hit the steering wheel of her car. She immediately felt "excruciating" pain down the left side of her neck into the left shoulder and "was in shock". Subsequently the plaintiff suffered daily migraine type headaches of severe intensity as well as continuing pain in the left side of the neck and left shoulder. The plaintiff also developed upper back pain, lower back pain (mainly on the left side) and pain in the left hip. Consequently she lost sleep at nights, and became irritable, emotional and depressed.
Commencing on the day of the accident the plaintiff regularly attended on her general practitioner, Dr Murphy, and subsequently on his partner in the same practice, Dr D Sosa. The treatment prescribed included multiple medications, cortisone injections, and physiotherapy. The plaintiff was also referred to a number of other therapists and specialists, and details of the treatment they provided are set out below.
The general thrust of the plaintiff's evidence is that as a result of the constant pain that she suffered following the first motor vehicle accident, there was a total devastation of her previous lifestyle. She was unable to continue working as an aerobics instructor (and ultimately also had to cease being a Nutrimetics consultant), suffered depression, rapidly put on weight (some 16kg), and was unable to carry out her normal family and household activities. According to the plaintiff there was also a huge strain "emotionally, sexually, and financially" on her marriage, as a result of which her husband ultimately left her (in about July 1999) and they became divorced.
A particular aspect of the plaintiff's symptoms which was the cause of considerable distress was the onset of urinary "stress incontinence". This problem necessitated a course of special physiotherapy (under the care of Mrs Sue Boxer) in an attempt to bring about greater control of the plaintiff's pelvic floor muscles.

The plaintiff's evidence as to the effects of the second motor vehicle accident

According to the plaintiff, immediately prior to the second motor vehicle accident on 20 October 1999 there had been some limited improvement in her condition. However, this improvement was set back by the effects of the second accident, and she developed a significant aggravation of her original symptoms. In this regard, the plaintiff's headaches became more intense, her neck and back "throbbed and ached" and she "lost all control" over her bladder. The plaintiff also experienced new right‑sided symptoms in her neck, upper back and lower back.
I understand the plaintiff to say that subsequent to the second accident her symptoms have continued largely unabated. However, a bilateral rhizotomy in the neck performed by the pain specialist, Dr M J Kent, in March 2000 reduced the intensity of the plaintiff's migraine headaches for a significant period. According to the plaintiff she also benefited from physiotherapy sessions which provided greater back mobility (albeit without any relief from pain) up until the time that that therapy ceased in June 2001. Physiotherapy ceased after June 2001 because the defendants' insurer declined to pay the continuing costs of the same.
Throughout the periods since the first and second accidents the plaintiff has been heavily reliant on family and friends for assistance with household chores.

The medical evidence

Immediately following the first accident the plaintiff attended upon her general practitioner, Dr Murphy, complaining of headache and severe stiffness in the neck. During that and four subsequent attendances up until 24 December 1996 Dr Murphy observed that the plaintiff had severe limitation in cervical spine movements in all directions as well as acute tenderness at the C7, L4/5 and L5/S1 levels of the spine. The treatment that he prescribed included anti‑inflammatories, analgesics, and physiotherapy.
Unfortunately Dr Murphy passed away in January 1997, and the plaintiff then came under the care of Dr D Sosa. As at April 1997 the plaintiff's symptoms comprised a constant ache in the left upper neck radiating into the left shoulder associated with a constant left occipital headache. There was also left lower back pain at L4‑5. The plaintiff was experiencing poor sleep, and her neck, shoulder pain and headaches were aggravated by normal household activities. Dr Sosa considered that the plaintiff was unfit for her former employment as a part‑time aerobics instructor. He noted however that the plaintiff was able to sell Nutrimetics 5‑10 hours per week to supplement her lost income. (Book of medical reports P.5‑"B.M.R.5".)
On 12 June 1997 Dr Sosa performed a left occipital nerve injection with steroids and local anaesthetic. This provided only transient and limited relief from the plaintiff's left‑sided neck and headache symptoms. Subsequently, Dr Sosa prescribed various changes to the plaintiff's regime of medications but these did not appear to result in any significant improvement. As at 11 November 1997 Dr Sosa reported that the plaintiff's cervical symptoms were continuing unabated and there had been an increase in the frequency and severity of headaches. Dr Sosa believed that most of the plaintiff's complaints were accident related but that there was also "an element of stress related to her home situation" (B.M.R.7)).
On 24 February 1998 Dr Sosa reported that the plaintiff's cervical symptoms were continuing and that her weight was increasing due to inability to exercise. She remained unfit for her pre‑accident work as an aerobics instructor but was fit for lighter duties including her then current part‑time work as a Nutrimetics promoter. In Dr Sosa's opinion the plaintiff's condition had stabilised but he nevertheless expected a gradual improvement with further treatment. For this reason he had referred her to an occupational therapist (Mr Phillip McWilliams) specialising in myofascial and trigger point therapy.
The treatment administered by Mr McWilliams included the use of a TENS machine, laser therapy, and interferential therapy. At Mr McWilliams' suggestion Dr Sosa also referred the plaintiff for hydrotherapy and aqua aerobics. However, none of these measures resulted in any lasting improvement in symptoms. As at 2 December 1998 the plaintiff was complaining of continuing headaches and left‑sided cervical symptoms, as well as left lower back pain associated with a sharp stabbing pain in the left posterior thigh. (Dr Sosa's reports had last mentioned lower back symptoms on 27 February 1997.)
Up until the end of 1998 Dr Sosa had not referred the plaintiff for specialist medical treatment because he believed that her symptoms would be alleviated by way of physical therapy. However, during early 1999 the defendants' insurer referred the plaintiff to an orthopaedic surgeon, Mr M J McCallum.
Mr McCallum examined the plaintiff in February 1999 at which time her symptoms included headaches, pain in the left shoulder, left sacro‑iliac joint and left thigh, stress incontinence, and gross disturbance of sleep pattern. (Mr McCallum's report of 3 February 1999 was the first to refer to incontinence symptoms.) In Mr McCallum's opinion the plaintiff had suffered soft tissue injuries to her cervical, lumbo‑sacral, and sacro‑iliac joint areas, particularly on the left side. However he considered that these injuries were not "significantly incapacitating", and apart from the need for some further specific physiotherapy to overcome the problems in the sacro‑iliac joint, the plaintiff was "already well on the way to recovery". Mr McCallum was also of the view that there was "some psychological input into her pain" as a result of a pre‑morbid and sensitive personality (Exhibit 2B).
During early 1999 the plaintiff was also referred (by Dr Sosa) to a clinical psychologist Dr Fruin. Following a consultation in April 1999 Dr Fruin concluded that the plaintiff was experiencing psychological symptoms which were "reasonable and consistent" with the accident injuries. Dr Fruin did not identify any pre‑existing factors relevant to the plaintiff's condition.
On 18 April 1999 Dr Sosa performed an injection of local anaesthetic and steroids into the plaintiff's left hip. On 19 May 1999 he also commenced a course of steroid treatments to the left side of the neck at the C3‑4 level. As at 14 June 1999 there had been an approximate 50 per cent improvement in left hip pain and a significant reduction of stiffness and tenderness in the left side of the neck.
During July 1999 the plaintiff was referred to Mrs Sue Boxer, a physiotherapist specialising in incontinence. Mrs Boxer's examination revealed the presence of moderate prolapses of the bowel, bladder and uterus. The pelvic floor muscles were very weak in strength and had poor endurance, which was consistent with the plaintiff's urinary complaints. Mrs Boxer commenced the plaintiff on a course of treatment including bladder training, inhibition strategies, and the use of vaginal uromuscular stimulation to assist in muscle strengthening (B.M.R.36).
The plaintiff was examined by Mr McCallum once again on 21 September 1999, and he confirmed that there had been some improvement in symptoms. Mr McCallum considered that the most troubling feature of the plaintiff's continuing presentation was the problem with her bladder and pelvic floor muscles.
On 20 October 1999 the plaintiff was involved in the second motor vehicle accident. She attended upon Dr Sosa on the following day, at which time she demonstrated a grossly restricted range of neck movements as well as deep tenderness to the left L4/5 level of the lumbar spine with gross restriction of forward flexion and extension. Dr Sosa attributed the presence of new right‑sided symptoms in the lumbar and cervical regions to the second accident, and concluded that there had also been an aggravation of the previous left‑sided symptoms. By the date of the next consultation on 8 November 1999 the plaintiff had developed further symptoms being left and right medial scapular pain.
Between 11 June and 12 November 1999 (a period which included the date of the second accident) the plaintiff received physiotherapy from Ms Jennifer McDonald. Ms McDonald's report (Exhibit 16C) confirms that there was an increase in symptoms, including new right sided symptoms, as a result of the second accident. However, by 12 November 1999:
"Her lower back pain has reduced following interferential therapy and she reports that she now has only a dull ache present on the left side. She is still suffering from right and left sided neck pain, with pain in the left shoulder area and her thoracic spine continues to be painful, but cervical movement is restored to its previous range although it remain stiff at end range rotations."
Thereafter, and up until 28 May 2001, regular physiotherapy was performed by Ms Sarah Kenagy of Anita Avery & Associates. As at June 2000 the plaintiff's mobility had improved and she "continued to state subjective improvement and…did seem to be making good progress." (Exhibit 16A).
The physiotherapy from Mrs Boxer in respect of the plaintiff's incontinence also continued. On 8 March 2000 Mrs Boxer reported that although there had been some increase in adverse symptoms subsequent to the second accident, by 18 February 2000 there had been a marked improvement in bladder symptoms as well as muscle strength.
During early 2000 Dr Sosa referred the plaintiff to the pain specialist, Dr M J Kent. In a report dated 18 February 2000 Dr Kent stated that the plaintiff's pain was predominantly sited over C2/3 and L5/S1. However there was "an essentially normal range of movement of the cervical and lumbar spines". (B.M.R.62). Dr Kent attributed the plaintiff's continuing symptoms to facet joint arthropathy and recommended diagnostic injections into these joints with a view to a possible radio frequency rhizotomy.
On 9 March 2000 Dr Kent performed left‑sided facet joint injections at the C2/3, L4/5 and L5/S1 levels. The injection to the C2/3 joint confirmed that it was the only source of pain in the neck, but the response to the lumbar injections was equivocal. A subsequent CT scan revealed a bilateral L5 pars defect with some degree of spondylolisthesis at L5/S1. As a result of these investigations Dr Kent's diagnosis in respect of the lumber spine was non‑specific soft tissue damage necessitating treatment with a TENS machine and active physiotherapy. In respect of the cervical spine he recommended radio frequency rhizotomy in the C2/3 facet joint.
The rhizotomy was duly performed and on 24 August 2000 Dr Kent reported that "as a result of this procedure the plaintiff's headaches had been almost completely abated". However, the plaintiff's remaining aches and pains were continuing.
As I understand the evidence, the plaintiff's treatment thereafter comprised a continuation of analgesics, hydrotherapy and a home exercise programme (supervised by Anita Avery & Associates – see Exhibit 16), as well as a pelvic floor exercise programme and bladder training techniques specified by Mrs Boxer (B.M.R.38). On 15 September 2000 Dr Sosa reported that the plaintiff was coping with all of her usual household duties but was suffering increased pain afterwards (B.M.R.22).
For reasons which are not clear on the evidence, the plaintiff ceased attending her regular physiotherapist, Miss Sarah Kenagy, after September 2000 (apart from a week in May 2001). Miss Kenagy later reported as follows:
"Over the time I treated Melanie she did have slight improvement in symptoms but they continued to be very easily aggravated with any physical activity. I am not convinced Melanie was as compliant with exercises as she could have been.
The last time I saw Melanie she continued to complain of headaches, neck and back pain, had poor posture, reduced cervical mobility (especially C1/2), reduced thoracic mobility (half normal rotation range of motion) and a left sided lumbo‑pelvic dysfunction" (Exhibit 16A.)
Subsequently, the solicitors for the parties referred the plaintiff to a number of medical experts for their medico‑legal opinions ahead of trial. Among these experts were the occupational physicians Dr J H Silver and Professor A Harper. Following his examination in December 2000, Dr Silver concluded:
"This woman demonstrates no objective evidence of musculoskeletal or neurological pathology that would produce the extent of pain and disability of which she complains, with her symptom complex being entirely subjective.
This woman has been through considerable emotional distress with her marriage break‑up and recent divorce, and it is little wonder that she has experienced significant difficulties over recent years, but, in the absence of demonstrable evidence of musculoskeletal and neurological pathology, she can really be assessed only as having a chronic pain syndrome that I believe is psychosocially rather than biomechanically based." (Exhibit 19).
Professor Harper examined the plaintiff in November 2001 and concluded that the plaintiff's symptoms had a physical basis. Despite the relatively minor nature of physical findings it was Professor Harper's opinion that the plaintiff had sustained strain injuries to the cervical spine, left shoulder and lumbo sacral spine which had left her with a moderately severe disability on a permanent basis. This disability precluded the plaintiff from competing for gainful employment in the open work force and rendered her totally incapacitated from her pre‑accident employment. The plaintiff's stress incontinence also imposed considerable limitation on where she was able to go.
In June 2001 the plaintiff was examined by the consultant neurologist, Professor D L Mastaglia. Professor Mastaglia did not detect any abnormal neurological signs. He concluded that the plaintiff had suffered a significant soft tissue injury to the cervical and to a lesser extent thoracolumbar areas of the spine with aggravation of her long standing spondylolisthesis which had not previously caused any significant disability. The headaches were probably secondary to the neck injury and continued to be one of the plaintiff's major problems despite the improvement which had occurred as a result of radio frequency rhizotomy. Professor Mastaglia considered that the plaintiff had sustained permanent disabilities of the order of 15 per cent in each of the neck and the back, and that it was highly unlikely that she would ever be able to return to her previous work as an aerobics instructor.

On 21 November 2001 the plaintiff was examined by the orthopaedic surgeon, Mr P Hardcastle at the request of the plaintiff's solicitors. At that time her symptoms were neck and upper torso pain with stiffness, frontal headaches, and low back and left groin pain. A clinical examination revealed tenderness in the upper cervical spine, in the left shoulder in the subacromial region, in the left trapezius down to the T4 level, in the left lumbar spine at the L5/S1 level, and in the left hip. Mr Hardcastle noted the spondylolisthesis at L5/S1 due to bilateral pars defects, and diagnosed a "posterior facet dysfunction syndrome" in that region. He also confirmed the presence of a soft tissue injury in the cervical spine, but was unable to say whether the left shoulder symptoms were due to referred pain from that injury or to a separate subacromial bursitis.
On 21 January 2002 Mr McCallum reviewed the plaintiff at the request of the defendant's solicitors. At that time the plaintiff's symptoms comprised fronto‑temporal and occipital headaches (which were now recurring having previously settled following the rhyzotomies performed by Dr Kent), pain in the left side of the neck and left shoulder, pain in the lumbo‑sacral area radiating around the left iliac crest into the region of the left ASIS, and occasional instability of the left leg. In addition the plaintiff had a "distinctly abnormal bladder function, going 12 to 15 times a day". Mr McCallum made very detailed clinical findings which are set out on p 3 of his report dated 21 January 2002 (Exhibit 2D). Amongst these were the significant findings of multifidus wasting on the left side adjacent to the L5/S1 joint as well as "bilaterally positive active straight leg raise tests, the left side worse than the right but both are improved with pelvic compression". In Mr McCallum's opinion the injuries suffered by the plaintiff as a result of the two accidents were as follows:
"This patient sustained a soft tissue injury to the neck, particularly involving the left CO/C2 area.
I believe that the problems relating to the left shoulder have a cervical origin.
There is evidence of a minor soft tissue injury to the lumbar spine.
She has a soft tissue injury amounting to instability of both sacro‑iliac joints, the left side more significant than the right. This involves bladder function."
Mr McCallum noted that the pelvic problems were largely to do with the bladder, and that these could be improved by further specific physiotherapy from Mrs Boxer. In his opinion the cervical spine had been managed well, particularly by means of the rhizotomies from Dr Kent. Overall, Mr McCallum considered that the plaintiff's prognosis was good, particularly as she was motivated to bring about an improvement in her condition.
During his evidence (de bene esse – on video), Mr McCallum has expressed the very firm opinion that the plaintiff's lumbar/pelvic symptoms are largely due to damage in the deep interosseous ligaments (which are immediately adjacent to and posterior to the sacro‑iliac joints ‑ Exhibit 3 is a diagram prepared by Mr McCallum depicting the affected areas). Mr McCallum accordingly differs from Mr Hardcastle who considers that the lumbar symptoms emanate from the facet joints at the L5/S1 level.
During evidence Mr McCallum also expressed high praise for the skills of the physiotherapist, Mrs Sue Boxer, and stated that he would defer to her opinions as to the cause and appropriate treatment of the plaintiff's urinary problems (T29). It is nevertheless Mr McCallum's view that these urinary problems are associated with the injuries to the deep interosseous ligaments.
In a report dated 24 January 2002 Mrs Boxer fully detailed the history and treatment of the plaintiff's urinary incontinence and related symptoms. Her report also attached extracts from relevant research papers which support the hypothesis that low back pain can cause inhibition of deep abdominal and pelvic floor muscles resulting in stress urinary incontinence and uterovaginal prolapse.
In Mrs Boxer's opinion the plaintiff's irritative bladder symptoms, stress urinary incontinence and prolapse problems developed as a direct consequence of the first accident, and were aggravated as a result of an increase in lower back pain caused by the second accident. Mrs Boxer's report concluded:
"Whilst Melanie's back pain is present, her underlying urinary symptoms are likely to recur with exacerbations. It is my opinion that at this stage she requires medical (urogynaecological) management of the uterovaginal prolapse as this had worsened in the 3 months before my last review and was at the stage where surgery is likely to be warranted. This should alleviate her voiding difficulties, dyspareunia and vaginal heaviness. Conservative management to date has resulted in symptomatic relief of her incontinence and urgency but as mentioned above, is very dependent on her levels of pain and health." (B.M.R.45).
The plaintiff underwent a final review by Dr M J Kent on 29 November 2001. At that time he found tenderness at C2/3 and at C3, 4 and 5, and low back pain seated at L4/5 and L5/S1. There were normal ranges of movement in the cervical and lumbar spines, and straight leg raising test results were normal. He continued to be of the opinion that the plaintiff's injuries were "essentially soft tissue in nature, involving the facet joints at C2/3 and L5/S1 plus/minus a myofascial component". (In evidence Dr Kent has confirmed his view that the sacro‑iliac joints are not the source of the plaintiff's lumbar/pelvic problems.)
In Dr Kent's opinion, the plaintiff (as at January 2002) could expect some degree of improvement over the following 2‑3 years, but it was quite conceivable that her current degree of disability could remain permanent. It was unlikely that she would return to work as an aerobics instructor but she was still capable of working as a cosmetics consultant/sales person.
With regard to the cervical symptoms, Dr Kent recommended that the plaintiff undergo continued rhizotomy procedures at a frequency of no more than every 12‑18 months (at the C2/3 level and possibly also at C3/4). This treatment would not provide a cure and would be a purely palliative procedure. (However it is relevant to note that not all of the doctors support an indefinite continuation of the rhizotomy procedures. Dr Sosa considers the injections to be "invasive" with a "lot of if's" involved. Professors Mastaglia and Harper have also cast doubts on the benefits of such treatment.)
The psychologist Dr Fruin provided a final report dated 21 January 2002. Based on her clinical interviews and treatment over approximately 3 years of regular contract it was her opinion that the plaintiff's symptoms amounted to a "pain disorder associated with both psychological factors and a general medical condition". It was also her opinion that "psychological factors play a large part in (the plaintiff's) experience and perception of pain. In the long term she would benefit from psychotherapy and medical supervision to reduce her use of pain medication" (B.M.R.35).
Finally, the plaintiff in December 2001 and January 2002 was examined by the psychiatrist, Dr P D McCarthy at the request of her solicitors. Like Dr Fruin, he considered that the plaintiff had "a pain disorder associated with both psychological factors and general medical condition" but his specific diagnosis was that there was an "adjustment disorder with depressed mood". Dr McCarthy also reported that:
"I am not in a position to provide a dogmatic, specific percentage separation of contributions to her pain from a psychological as opposed to a physical cause and I would be surprised if anybody else was in a position to be too dogmatic about such a distinction. She does still, however, suffer from a pain disorder which on the history available is primarily attributable to the first accident and with an exacerbation from the second accident. It would seem reasonable that there is a contribution to her current symptoms of some occasional sadness and poor self‑esteem and decreased hope for the future arising from her personal situation and when she is now divorced and looking after her three children on a Supporting Parents' benefit. It is probable that the considerable distress that she suffered in 1998 and 99 was attributable to the distress one would expect from the acrimonious separation from her husband. This situation was contributed to somewhat by her accident and its sequelae but on the history available was not actually caused by the accident, although perhaps aggravated by the accident.
. . .
From a psychiatric perspective this lady's prognosis is good although it is probable that she will continue to suffer from pain for some time. I am not convinced this will necessarily prevent her from returning to some form of paid employment or obtaining significant enjoyment from life but it is likely to restrict her opportunities and require her to adapt from what is described as a previously energetic, physical occupation and life interests to more sedentary pursuits. She may continue to have some fluctuating symptoms of depression although I no longer attribute these to her motor vehicle accidents but rather to the social situation she now finds herself in." (B.M.R.91).

Evidence as to loss in earning capacity

As already noted the plaintiff's evidence is that she and her husband were both qualified as aerobics instructors and prior to the first accident aimed to start a health club business once their family had settled down. Pending the realisation of that ambition it was the plaintiff's intention to continue working (when she could) as a part‑time aerobics instructor and part‑time Nutrimetics consultant.
There is conflicting evidence as to the hours worked and the earnings received by the plaintiff in each of these part‑time occupations at material times. With regard to her work as an aerobics instructor, the plaintiff's evidence in chief was that between 1993 and 1996 she was accustomed to working 12 to 15 hours per week at a wage of $22.50‑$28.50 per hour. However the relevant taxation returns (Exhibit 6) suggest that the plaintiff worked an average of only 3.6 to 5.25 hours per week during each of the years within that period. The taxation returns are consistent with her contract with her employer, the Town of Cambridge, (Exhibit 14A) which provided for casual employment of 5 hours per week. When cross‑examined about these contradictions the plaintiff was unable to offer any explanation, but nevertheless insisted that she had in fact worked as an aerobics instructor for an average of 10‑11 hours per week.
The plaintiff commenced to sell cosmetics as a Nutrimetics consultant in September 1995. This was essentially night time work attending gatherings or parties which she had organised at suburban homes in order to demonstrate cosmetics. It is relevant to note that when performing this work the plaintiff was obliged to carry with her sample bags each of which (as I understand the evidence) weighed between 7 and 10 kg. She also had to handle and arrange delivery of the boxes of products ordered by her customers.
The evidence establishes that the plaintiff was reasonably successful with her Nutrimetics work, and was promoted to "executive sales leader" in charge of a team of six sales consultants. The plaintiff also achieved a level of sales which entitled her to a new car which was supplied by the employer for the purposes of her employment. The evidence suggests that these milestones were achieved during the period after the first accident and before the plaintiff ceased working for Nutrimetics in about November 1998.
The basis on which the plaintiff was remunerated for cosmetic sales was very complicated and is the subject of not only her own evidence but also that of the current Nutrimetics executive sales manager, Mrs J A Eagen. It is unnecessary to go into the details of how the plaintiff was remunerated, but what is clear is that the income from this source as disclosed in her income tax returns (Exhibit 6) is inconsistent with the level of income that she must necessarily have received as an "executive sales leader" entitled to a car from her employer. The plaintiff was cross‑examined at length on this issue but could not explain the discrepancies, and simply stated a number of times that she had "never been any good with figures". The plaintiff's evidence was also to the clear effect that she was unable to vouch for the accuracy of in taxation returns.
With regard to the plaintiff's physical work capacity, there is a consensus amongst nearly all of the medical experts that the plaintiff was rendered incapable of working as an aerobics instructor as a result of the first accident. This is a continuing incapacity which most of the experts consider is likely to be permanent.
There are differing opinions as to the plaintiff's capacity to work as a Nutrimetics consultant. Dr Sosa considers that the plaintiff is currently unfit for this work but is unsure whether or not she will be permanently precluded from doing so. Dr Harper considers that it is improbable that the plaintiff will ever be able to return to her work as a cosmetics consultant, whereas Dr Kent is of the view that she is currently fit for this work. Dr Hardcastle expects that the plaintiff will be able to return to part‑time work as a Nutrimetics consultant, and Mr McCallum and Professor Mastaglia seem to share this expectation subject to certain limitations. According to Mr McCallum:
"With the limitations that your client could not sit or stand for long periods of time without moving and also the limitations of being near toilet facilities I think this lady could be employed full time." (Exhibit 2D.)
However, it is also Mr McCallum's evidence that the plaintiff should not lift 7‑10 kg repeatedly nor carry such weights for more than 15‑20 minutes (transcript 39).
Dr McCarthy considers that the plaintiff is not psychiatrically prevented from returning to any form of work. He believes that she is able to return to some form of sedentary or semi‑sedentary work including that as a Nutrimetics consultant, subject to the requirement that she should not carry heavy loads.

Evidence as to other aspects of the plaintiff's claims

It was the plaintiff's evidence that the breakdown in her marriage resulted from the injuries received in the first accident. In this regard her symptoms caused her to become moody, irritable and depressed, and her pelvic problems made sexual relations painful rather than enjoyable. According to the plaintiff her injuries placed a "huge strain emotionally, sexually and financially on the marriage" with the result that her husband left her.
Thereafter the plaintiff was responsible for the day to day care of her three young children, and this placed physical demands upon her which she was unable to meet. In this regard she was fortunate to live next door to her parents, and consequently has been able to rely upon them for assistance. The plaintiff's mother has assisted with shopping, washing, ironing and mopping. Her father has attended to handyman type tasks around the home. The plaintiff's parents have also assisted by caring for the children during periods of incapacity.
The plaintiff has also been assisted with household chores by one or more of her friends. She estimates that the total of the gratuitous services received from her parents and friends is at least 4 hours per week.
The plaintiff's parents (Mr and Mrs Guyatt) both testified, but their evidence suggests a higher level of assistance than estimated by the plaintiff. According to Mrs Guyatt, she regularly devotes 8‑10 hours per week and sometimes up to 14 hours per week in attending to the plaintiff's household chores and in looking after her grandchildren.

The plaintiff's credibility

Since the date of the first accident the plaintiff has presented to her doctors with a complicated and at times bewildering array of symptoms. There are some significant differences of opinion amongst the experts as to the causes of the symptoms, and in my view this state of affairs has partially come about as a result of variations in the histories obtained.
For example, when Mr McCallum first saw the plaintiff in February 1999, he was told that incontinence had been "present since the first accident" (Exhibit 2A, p 3). This was consistent with his opinion that the plaintiff had sustained an injury to the sacroiliac joint at that time. Yet in the many and sometimes detailed reports that Dr Sosa had issued prior to the plaintiff first seeing Mr McCallum, there had been no mention of stress incontinence. Furthermore, it was not until 29 July 1999 that Dr Sosa reported that he had referred the plaintiff to a uro‑gynaecologist for assessment because of her deep dyspareunia and incontinence.
There have been significant variations in other symptoms as reported from time to time. Examples are the headaches described to Dr Harper on 19 November 2001 (B.M.R.77), to Mr Hardcastle on 22 November 2001 (B.M.R.82) and to Dr Kent on 29 November 2001 (B.M.R.70). Likewise the lower back/pelvic symptoms reported by Dr Harper on 19 November 2001 (B.M.R.77) by Dr Kent on 29 November 2001 (B.M.R.70) and by Mr McCallum on 14 January 2002 (Exhibit 2C, p 2). While day to day variations in the plaintiff's condition may well have contributed to such differences in symptomatology, it is difficult to accept that this factor provides a total explanation.
The plaintiff was a confident witness when testifying and her evidence in chief impressed me as being very credible. However, that credibility was dented during cross‑examination, particularly when the plaintiff was questioned about the anomalies in her claimed earnings. The plaintiff refused to acknowledge that there were these obvious anomalies, and I found her evidence in this regard to be unsatisfactory.
All of these considerations lead me to the conclusion that I should not accept the plaintiff's evidence of her symptoms from time to time as being reliable. I consider that it is necessary to look to the medical evidence in order to make my findings in that respect.

Findings as to the plaintiff's symptoms

In broad terms, the medical evidence establishes the following sequence of relevant events.
Prior to the first accident the plaintiff was physically fit and active, and enjoyed good health. Nevertheless, it was likely that at some future time she would experience low back symptoms by reason of a spondylolisthesis at L5/S1 associated with bilateral pars defects. The evidence does not allow a determination as to when these future symptoms might have occurred.
Immediately following the first accident on 9 September 1996 the plaintiff had symptoms of headaches and a stiff neck. Over the following three months she developed severe limitation of cervical movements as well as tenderness at the C7 level of the cervical spine and the L4/5/L5/S1 levels of the lumbar spine. The lumbar symptoms were less significant than the cervical symptoms. In this regard there was only "persistent minor restriction and pain around L4 and 5" (Exhibit 9).
Throughout 1997/1998 treatment from Dr Sosa and the physiotherapists continued to focus on the cervical spine. In April 1997 the symptoms were described as left upper neck pain radiating into the left shoulder associated with constant headaches and occasional severe exacerbations (B.M.R.5). In November 1997 Dr Sosa considered that the symptoms were contributed to by an "element of stress in the home situation" (B.M.R.7). This was an obvious reference to the plaintiff's deteriorating matrimonial relationship.
By 2 December 1998 the plaintiff was experiencing the onset of significant lumbar symptoms for the first time. These comprised left lower back pain associated with a sharp stabbing pain in the left posterior thigh (B.M.R.11). It was at about this time that the plaintiff's doctors became aware of the congenital defect in the lumbar spine.

On 3 February 1999 Mr McCallum reported for the first time that the plaintiff was experiencing stress incontinence (Exhibit 2A). By July 1999 the plaintiff was also complaining of some sexual dysfunction (B.M.R.16). In August 1999 Mrs Boxer found that the plaintiff had vaginal and uterine prolapses as well as very weak pelvic floor muscles.
In April 1999 Dr Sosa carried out injections into the cervical spine and left hip which considerably reduced the symptoms in those areas. Thereafter, and up until the second accident, the plaintiff's condition continued to improve. As at 21 September 1999 Mr McCallum predicted further improvement although he was troubled about the plaintiff's bladder and pelvic floor (Exhibit 2B).
As a result of the second accident the progress in the plaintiff's condition was set back, and she also suffered an exacerbation of her previous symptoms. Furthermore, the plaintiff experienced new but less significant right sided symptoms in the lumbar and cervical spines.
Initially, there was a fairly rapid recovery from the effects of the second accident. By 12 November 1999 the physiotherapist reported that the pain in the lower back had reduced to a dull ache in the left side (Exhibit 16C). By February 2000 Mrs Boxer reported that there had been a marked improvement in bladder symptoms as well as pelvic muscle strength. Facet block injections and a radio frequency rhizotomy performed by Dr Kent during early 1999 greatly reduced the headaches and cervical symptoms. Accordingly, by mid 2000 there were optimistic reports from Mr McCallum (Exhibit 2D) and from Dr Kent (B.M.R.68) suggesting that there would be continued recovery.
It is clear that the physiotherapy undertaken by the plaintiff had been a major factor in her improved condition, but unfortunately the plaintiff did not persist with this treatment. According to her regular physiotherapist (Ms Kenagy) the plaintiff was not "as compliant with exercises as she could have been" (Exhibit 16A). The plaintiff ceased attending Ms Kenagy altogether between 25 September 2000 and 21 May 2001, she also missed seven scheduled appointments with the specialist physiotherapist Mrs Boxer (B.M.R.42).
During the period that has elapsed since the plaintiff ceased attending physiotherapy, there has been a marked deterioration in her condition. It was during this period that most of the medico/legal experts engaged for the purposes of trial examined the plaintiff for the first time.
As already noted there has been a significant variation in the symptoms and clinical signs as reported by the various experts in recent times. The variations in cervical symptoms could well be due to the gradual wearing off of the beneficial effects of the rhizotomy performed by Dr Kent in May 1999. However, the variations in lumbar symptoms are more perplexing.
This is best demonstrated by the differing results of straight leg raising tests which are designed to provide objective evidence of underlying pathology. (Mr McCallum's description of the test is to be found at transcript 13‑15). On 7 December 2000 Dr Silver found the plaintiff's straight leg raising to be "full and free" (Exhibit 19, p 4). On 7 June 2001 the straight leg raising had been reduced to 70º on the right but was normal on the left, which was an unusual result given the plaintiff's claimed symptoms (Dr Mastaglia – B.M.R.74). On 19 and 22 November 2001 straight leg raising was reduced to 70º bilaterally (Dr Harper – B.M.R.79, Mr Hardcastle – B.M.R.84). Dr Kent found straight leg raising to be normal on 29 November 2001 (B.M.R.70). On 14 January 2002 straight leg raising was bilaterally positive but more so on the left than the right (Mr McCallum – Exhibit 2C, p3). The only reasonable inference from these results is that the plaintiff's lumbar condition is very variable.
The variations in the plaintiff's symptoms are also consistent with Dr Fruin's opinion (which I accept) that psychological factors play a large part in the plaintiff's "experience and perception of pain" (B.M.R.35). These psychological factors are at least partially due to difficulties in the plaintiff's personal life.

Findings as to the plaintiff's injuries

There is clear evidence to establish that the first accident resulted in a soft tissue injury involving the left C1/C2 area of the plaintiff's cervical spine. This caused symptoms of headaches, restricted cervical movements, and pain in the neck and left shoulder.
The plaintiff also sustained a lumbar injury but there is conflicting evidence as to the nature and extent of the same. In the opinion of Drs Kent and Hardcastle, that injury was of a soft tissue nature involving the facet joints at L5/S1 where the plaintiff had the pre‑existing congenital defect. Mr McCallum holds a contrary opinion that lumbar/pelvic pain was primarily caused by a soft tissue injury to the interosseus ligament adjacent to the left sacroiliac joint. In other words Mr McCallum does not associate the onset of significant lumbar pain with the pre‑existing spondylolithesis.
I have already observed that Mr McCallum appears to have based his opinion upon a history that is unreliable. It is also my view that the onset of significant lumbar problems in late 1998 is more consistent with a developmental process than with an injury that had remained constant since the date of the first accident. I accordingly prefer the opinions of Dr Kent and Hardcastle, and find that the first accident resulted in a soft tissue injury involving the facet joints at L5/S1. This soft tissue injury caused the pre‑existing spondylolithesis to become symptomatic at a much earlier time that would otherwise have been the case.
The plaintiff also developed stress incontinence at about the time that the lumbar symptoms became significant. As I understand Mr McCallum's evidence, his hypothesis that the first accident caused the incontinence is based upon the assumption that she sustained a sacroiliac injury at that time. He nevertheless defers to Mrs Boxer's opinion as to the cause of the problem (T29).
Mrs Boxer obtained a history that the incontinence had developed "within a few months" after the first accident (B.M.R.36). In her report of 24 January 2002 Mrs Boxer relied upon the results of published research to conclude that the first accident had caused the plaintiff's incontinence. In this regard:
"…it is likely when low back pain is present, the pain inhibition of both the deep abdominal muscles and pelvic floor muscles could occur, resulting in stress, urinary incontinence and uterovaginal prolapse." (B.M.R.45)
Dr Kent considers that the plaintiff's stress incontinence was not caused by the motor vehicles accidents, but may have been exacerbated by the sequalae. None of the other specialists have expressed an opinion on the issue. However, it is Dr McCarthy's opinion that there is "no current psychiatric or psychological connection between the motor vehicle accidents and whatever urinary or stress incontinence she may continue to have from time to time". (B.M.R.93).
Like Dr Kent, Dr Sosa doubts that the plaintiff's pelvic symptoms have any connection with the accidents. In his report of 30 January 2002 he stated that the plaintiff's irritable bladder symptoms, stress incontinence and uterine descent "are usually related to child birth but could be exacerbated by weight increase and poor level of fitness that was a consequence of her accident related injuries." (B.M.R.25). In my view, Dr Sosa's opinion should be accorded great weight because he is perhaps the only expert who has been fully familiar with the plaintiff's symptoms from time to time.
Although there appears to have been a temporal relationship between the onset of the plaintiff's lumbar symptoms and her pelvic problems, I am not satisfied on the balance of probabilities that there was a causal relationship. I nevertheless find that the injuries that had been received in the first accident exacerbated the problems that later arose as a result of the plaintiff's prolapse and weak pelvic muscles.
As I have already noted, psychological factors have played a large part in the plaintiff's symptoms from time to time. The first indication that such factors were present came from a physiotherapist is report on 31 January 1997 (Exhibit 9). On 11 November 1997 Dr Sosa reported that "an element of stress related to her home situation" was contributing to symptoms (B.M.R.7). It is Dr Fruin's opinion that the plaintiff's marriage breakdown occurred partly because of "changed dynamics" with her husband following the development of pain (B.M.R.34). However, Dr McCarthy considers that the marriage breakdown was "contributed to somewhat by her accident and its sequalae but on the history available was not actually caused by the accident, although perhaps aggravated by the accident" (B.M.R.92).
The plaintiff bears the burden of satisfying me on the balance of probabilities that the injuries she sustained in the first accident caused the breakdown of her marriage. The evidence does not persuade me to that standard of satisfaction. I nevertheless find that the plaintiff's accident caused symptoms aggravated her poor relationship with her husband and probably accelerated the breakdown of her marriage.
The evidence establishes that by mid 1999 (the plaintiff's pelvic symptoms aside) there had been a considerable improvement in her condition. The cervical and lumbar symptoms had settled significantly and the plaintiff's doctors were offering optimistic prognoses. I find that as a result of the first accident the plaintiff had sustained a residual permanent disability in the cervical spine of mild to moderate severity. As a result of the first accident the plaintiff was also experiencing mild symptoms in the lumbar spine. However, by reason of the pre‑existing spondylolithesis, it is likely that the plaintiff would have experienced these symptoms at some future time in any event.
I find that the second accident reactivated the symptoms that had previously subsided. The plaintiff additionally experienced new right sided cervical and lumbar symptoms of mild severity. I also find that the injuries sustained in the second accident aggravated the plaintiff's incontinence and other pelvic symptoms.
The plaintiff made a relative rapid recovery from the physical effects of the second accident, aided in respect of the cervical spine by the rhizotomy performed by Dr Kent. I find that by mid 2000 the plaintiff was back to essentially the same physical state that had pre‑existed the second accident.
Subsequently there was a significant deterioration in the plaintiff's condition. In my view the evidence establishes that the major causes of that deterioration have been the plaintiff's failure to continue with physiotherapy, the wearing off of the effects of the rhizotomy, and psychological factors (which had been aggravated by the second accident). (As to the first of these causes it should be noted that the defence does not plead any failure by the plaintiff to mitigate her loss.)
To my mind the evidence also shows that the plaintiff is likely to be able to reverse that deterioration with appropriate treatment. The necessary treatment includes physiotherapy, psycho therapy, urogynaecological surgery and/or management, and a further rhizotomy. On the assumption that such treatment is successful, the long term effects of the accident caused injuries are likely to be restricted to mild to moderate cervical symptoms. However, there is a chance that these symptoms will increase in severity if future rhizotomies are unsuccessful.
In my view, these long term symptoms will be entirely attributable to the first accident whereas those that continue in the meantime will be attributable to both accidents. With regard to these latter symptoms, the evidence does not enable any precise differentiation as to which of them are due to either accident. The best I can do in these circumstances is to arrive at an appropriate apportionment. Consistent with the bulk of the medical opinions, I find that the plaintiff's continuing symptoms at the present time are 75 per cent due to the first accident and 25 per cent due to the second accident.

Application of the threshold legislation

The damages which can be awarded to the plaintiff are restricted by the provisions of sections 3A‑3E of the Motor Vehicle (Third Party Insurance) Act 1943 as amended ("the Act"). It has been submitted on behalf of the plaintiff that the thresholds provided by the Act should be applied only once in respect of the plaintiff's total claims. This is because, (at least to some extent) the two accidents have contributed to the same damage.
Pursuant to s 3A, the thresholds apply to "the awarding of damages in respect of bodily injury to a person directly caused by, or by the driving of, a motor vehicle". That provision does not in express terms restrict itself to an individual cause of action. Nevertheless, it is only possible to award damages following judgment in an individual cause of action.
In the present instance the plaintiff has two separate causes of action against separate defendants. For convenience and pursuant to the Rules, these causes of action have proceeded together. However, unless the defendants consent, there cannot be any single assessment of damages in respect of the two causes of action. It necessarily follows that there must be two separate awards.
It is also self‑evident that in these circumstances the threshold provisions in the legislation must be applied to each separate award.

Assessment of damages for the first accident

In respect of non‑pecuniary loss the plaintiff is to be compensated for the short term and long term symptoms of her cervical injury, a soft tissue injury to the lumbar spine which caused the early onset of symptoms associated with her pre‑existing spondylolithesis, the exacerbation of the pelvic problems caused by the lumbar symptoms, and the aggravation also caused to the psychological problems in the plaintiff's personal life. In my view a fair assessment of the severity of this non‑pecuniary loss is that it is equivalent to 20 per cent of the maximum amount that may be awarded in the most extreme case.
The maximum amount of damages that may be awarded for non‑pecuniary loss is $232,000 ("amount A" under the Act). 20 per cent of that sum is $46,400. Accordingly, and pursuant to s 3C(6) of the Act I calculate the plaintiff's non‑pecuniary loss to be $46,300.
The plaintiff also sustained a loss in earning capacity as a result of the first accident. Her injuries rendered her permanently unfit to pursue her preferred career in aerobics and/or the operation of a health club. I find that at the time of the first accident the plaintiff was receiving relatively minimal earnings as an aerobics instructor.
However, the plaintiff compensated for her loss of income from aerobics by increasing her Nutrimetics activity. As a result her earnings increased to more than what they had been previously. Accordingly, I am not satisfied that the plaintiff's loss in earning capacity was productive of any actual loss prior to her ceasing to work for Nutrimetics in late 1998.
The plaintiff ceased her employment with Nutrimetics because of the separation from her husband as well as the onset of lumbar pain, stress incontinence and other pelvic symptoms. I find that if the plaintiff had not suffered her accident caused symptoms it is likely she would have kept up her Nutrimetics activities to some degree. By the date of the second accident, the first accident symptoms had settled to the extent that (the question of incontinence aside) the plaintiff was almost fit to resume her Nutrimetics work. Thereafter the plaintiff's continuing loss in earning capacity has been 75 per cent attributable to the first accident.
The conflicting evidence as to the plaintiff's remuneration in her Nutrimetics work does not enable me to precisely calculate her actual past loss. The accident caused incapacity is likely to continue pending appropriate treatment for the plaintiff's injuries. Beyond that, the plaintiff is to be compensated for a reduction in the range of occupations that she will be able to pursue, those occupations being in her preferred field of aerobics and/or health club work.
In all of these circumstances I consider that it is appropriate to award the plaintiff a global sum in respect of all past and future loss in earning capacity including interest on past loss. In my view, an appropriate global assessment would be the sum of $50,000.
As a result of the injuries sustained in the first accident the plaintiff will also incur future medical and treatment expenses. Calculations of likely expenses have been set out in the plaintiff's written submissions and have not been seriously challenged by the defendants. Some of these expenses are attributable to the first accident and other expenses are attributable to the second. In my view the plaintiff is entitled to recover damages for the following expenses in respect of the first accident:
Medications  $630.70
Attendances on general practitioner     $3,399.00
Rhizotomies  $12,126.00
$16,155.70
The plaintiff also claims damages for past and future gratuitous services, and her written submissions suggest that the award should be based upon an allowance of 2 hours per week. In light of s 3D(2) of the Act I consider that an average of 2 hours per week in respect of past gratuitous services is a fair and reasonable assessment. Notwithstanding that the need for the services during some of that period was partially due to the second accident, the first accident was a significant contributing factor and was thus a "cause" of the need for all of the same. Based on the calculations in the plaintiff's submissions I award the sum of $9,552 in respect of past gratuitous services.
With regard to future gratuitous services, I find that as a result of the first accident there will be a definite need for the same to continue for at least 2 years. Beyond that, there is a chance that the same will be required, especially if rhizotomies are unsuccessful in providing continued relief from cervical symptoms. On the basis of these findings I award the sum of $10,000.
Accordingly the plaintiff is entitled to a total award of damages of $132,007.70 in respect of the first accident, made up as follows:
Non‑pecuniary loss  $46,300.00
Loss in earning capacity  $50,000.00
Future medical treatment  $16,155.70
Gratuitous services  $19,552.00
$132,007.70

Assessment of damages for the second accident

An assessment of the plaintiff's non‑pecuniary loss in respect to the second accident must take into account the reactivation and exacerbation of physical symptoms in her cervical and lumbar spines for a period of no more than a year. In addition, the second accident exacerbated the plaintiff's pelvic problems including her incontinence, and significantly exacerbated her psychological condition.
The evidence does not satisfy me that the aggravation of the plaintiff's pelvic problems continued for more than about a year. However, the psychological exacerbation continues and is only likely to be resolved once the plaintiff undergoes further psychotherapy.
In all of these circumstances I consider that a reasonable determination of the plaintiff's non‑pecuniary loss arising from the second accident is that it is equivalent in severity to 5 per cent of the most extreme case. Accordingly, and pursuant to the calculations that are required to be made under s 3C(5) of the Act, the plaintiff is entitled to an award of $100 in respect of non‑pecuniary loss.
My award for loss of earning capacity in respect of the first accident took into account all aspects of this loss which were contributed to by both accidents. Accordingly, the plaintiff is not entitled to a separate award in respect of the second accident.
With regard to future medical expenses I find that the second accident is a significant contributing factor and thus a "cause" of the plaintiff's need for further psychotherapy. Based upon the plaintiff's calculations (which I accept) I award the sum of $15,856 in respect of the costs of future psychotherapy.

I am not satisfied that the need for gynaecological review and further sessions with Mrs Boxer has resulted from the second accident. All other aspects of future medical expenses have been covered by the award in respect of the first accident.
Similarly, to the extent that the second accident has contributed to the need for gratuitous services, there has already been an award for the same in respect of the first accident.
It follows that in respect to the second accident the plaintiff is entitled to a total award of $21,756 made up as follows:
Non‑pecuniary loss $100.00
Future medical treatment $15,856.00
$15,956.00
I will hear further submissions as to whether or not (in light of the above findings) there should be any award of special damages in respect of either accident. Subject to this, there will be judgment for the plaintiff on her first cause of action in the sum of $132,007.70, and on her second cause of action in the sum of $15,956.