Ledgerton v Enston - [2003] WADC 214

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: LEDGERTON -v- ENSTON [2003] WADC 214

CORAM: COMMISSIONER GREAVES

HEARD: 13-15 AUGUST 2003

DELIVERED : 30 SEPTEMBER 2003

FILE NO/S: CIV 2180 of 2002

BETWEEN: MICHAELA VICTORIA LEDGERTON
Plaintiff
AND
DANIELLE ENSTON
Defendant

Catchwords:

Damages - Personal injuries - Assessment - Soft tissue injury to lower lumbar spine - 5 per cent of a most extreme case - Damage assessed for past and future loss of earning capacity and superannuation benefit

Legislation:

Nil

Result:

Judgment for plaintiff in the sum of $60,616.85

Representation:

Counsel:

Plaintiff: Mr K S Pratt
Defendant: Mr B C Sierakowski

Solicitors:

Plaintiff: Rando & Rando
Defendant: Brian C Sierakowski

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

Jongen v CSR Ltd & Anor, unreported; SCt of WA;Library No 920325; 18 June 1992

Case(s) also cited:

Nil

COMMISSIONER GREAVES: On 28 October 1999 the plaintiff was driving a small Daewoo station wagon on the Mitchell Freeway near the James Street off-ramp. The defendant admits she was driving her Hyundai Excel hatchback in the same direction as the plaintiff. The defendant admits that her vehicle collided with that of the plaintiff.
By par 3 of the statement of claim, the plaintiff alleges that as a result of the collision she sustained a soft tissue injury to the thoracic lumbar spine and a disc protrusion at L5/S1. By par 6 of the statement of claim, the plaintiff pleads the following residual disabilities:
"(a)Ongoing low back pain on a daily basis;
(b)Unable to stand or sit for prolonged periods without increase in pain;
(c)Disturbed sleep;
(d)Stiffness in the lower back in the mornings;
(e)Unable to lift;
(f)Depression;
(g)Need to take painkilling medication on an ongoing basis;
(h)Gross restriction on domestic activities;
(i)Gross restriction on social and recreational activities;
(j)Gross restriction on employment activities;
(k)Difficulty with picking up her young children;
(l)Unable to lift without increased pain and discomfort;
(m)Gross restriction on marital relations."
By her amended defence, the defendant admits negligence but alleges that the collision was "minor and not such as to be likely to cause injuries and disabilities" as alleged by the plaintiff.
It is perhaps helpful to observe that in this action this is a plea that the circumstances of the collision were not likely in fact to have caused the injuries and disabilities alleged by the plaintiff. It is not a plea that the injuries and disabilities alleged by the plaintiff were in law too remote to be compensable. That this is so is apparent from the admission of the negligence alleged and from par 3 of the amended defence by which the defendant pleads:
"3.The defendant denies that as a result of the collision the plaintiff sustained any compensable injury and damage and does not admit the allegations in paragraphs 3, 4, 5, 6, 7 and 8 of the Statement of Claim and puts the plaintiff to the proof of the particulars pleaded therein and denies that the plaintiff has suffered the alleged or any loss of earnings or loss of earning capacity."
It may also be helpful to observe that the injuries and disabilities alleged by the plaintiff are of a nature that they cannot be demonstrated clinically. The credibility of the plaintiff, therefore, in relation to the circumstances of the collision, and the nature and extent of her alleged injuries and disabilities must be paramount in this assessment of damages. The expert medical opinion for the plaintiff and the defendant must depend upon the basic facts proved by the plaintiff. The defendant puts the plaintiff to the proof of those facts on the balance of probabilities.
The credibility of the plaintiff's evidence in relation to the issues of fact to be determined in this action must of course be considered on the evidence as a whole in respect of the circumstances of the accident, the plaintiff's conduct and experience between the accident and trial, including her conversations with the medical practitioners involved. Counsel for the plaintiff summarised those issues as whether the plaintiff sustained the injuries as alleged in the accident, whether the plaintiff continues to suffer from the injuries and disabilities as alleged, whether the plaintiff has suffered a loss of earning capacity as a result of the alleged injuries and disabilities, and whether the plaintiff's current work capacity of 20 hours per week is the limit of her capacity.

The evidence about the collision

The plaintiff gave evidence she was driving towards Perth City on the Mitchell Freeway. Her mother‑in‑law was in the front passenger seat and her two children in the rear of the vehicle. She approached the James Street exit. She continued (T11):
"There was some roadworks on the exit at the time. There was an arrow bringing us all over to the left because the right‑hand lane was closed, so I slowed down as the traffic had come to a halt and I was moving over to the left‑hand lane. The next thing I knew there was a moderate impact from behind and my car was rotated slightly to the left."
In cross‑examination, the plaintiff explained that her vehicle became stationary before the impact (T25). She continued (T11) she could not estimate exactly how far forward her vehicle moved but it was not very far. She said there was damage to the left‑hand side of her vehicle at the rear bumper and the left‑hand rear panel but she could not estimate how much damage.
The plaintiff said she spoke to the defendant. She said the defendant stated that the defendant's car was brand new and her husband was going to kill her because it was not insured. She said there was no further discussion. She said she and the defendant exchanged phone numbers and addresses. She said she was shocked and was distressed for the kids. She said they were very upset and her son Joshua was complaining of a sore neck. She said they carried on to visit Perth Zoo. She said about an hour later she experienced pain in her right lower back, shoulders and neck. She said she remained at the zoo with her family for three or four hours after which they went home and she consulted her general practitioner.
In cross‑examination, counsel for the defendant suggested to the plaintiff that the cost of repairing her vehicle was approximately $1,500. She confirmed that was the cost. As a matter of record, the plaintiff did not give evidence to that effect, but as I have mentioned, said she could not recall how much damage her vehicle sustained. At T4 counsel for the plaintiff stated the plaintiff's evidence would be that about $1,500 damage was done to her vehicle.
Counsel for the defendant asked the plaintiff whether she had subsequently told certain medical practitioners that the cost of repairs to her vehicle was $3,000 and $3,500. She replied she did not recall saying that. She repeated she did not say that. She said it was not correct. She denied she gave those estimates to the doctors in order to exaggerate the forces involved in the collision (T24).
The plaintiff said there were four lanes of traffic at the location of the collision. She said she was in the lane third from the left. She said that lane and the lane fourth from the left were closed off. She said she had to move from the third lane into the second or first lane to get in line behind the other vehicles. She repeated that her vehicle became stationary. She said the first thing she knew was that there was an impact to the rear of her vehicle. She continued (T27):
"Just a moderate impact. It didn't – wasn't a big jolt. Just a moderate impact and we slightly rotated. It wasn't a big impact."
The plaintiff said it was not correct that the defendant clipped the rear left of the plaintiff's vehicle. The plaintiff accepted the defendant did not collide straight into the rear of her vehicle and accepted that the plaintiff's vehicle was not shunted forward. She denied she subsequently told her medical specialists that her vehicle was shunted forward. She said she told them it was moved towards the left. She said she did not tell them that her vehicle was slewed around to the side or was rotated anti‑clockwise. She said the front of the vehicle was to the left but she could not recall how much. When pressed, she said it wasn't very much (T28).
In re‑examination, the plaintiff said she had never described the damage to her motor vehicle to the doctors (T54).
The defendant gave evidence she was driving in the lane third from the left in which she found the traffic was banked up so she pulled to a stop. She said she was stationary for a couple of minutes. She continued (T193):
"So I had a look over my left shoulder and I saw that there were still cars travelling in the next two lanes and it didn't look like the two lanes I was in were going to move because we'd been there for a couple of minutes, so I had a look. I knew there was some spaces coming up, so I went into first gear, edged out, was watching – sorry – over my left shoulder to see what was coming, saw a gap, pulled out and misjudged slightly and clipped the car in front of me with the front right of my car, on the very edge left of her car … I was going probably a couple of K's, you know, if that. Soon as I felt it I put my foot on the brake, went into reverse, pulled back and turned the car off. Got out and it was a new car, so I was pretty upset."
The defendant said she spoke to the plaintiff who she said was "quite relaxed". The defendant said there may have been "a bit of damage on the bumper bar" of the plaintiff's vehicle. She said the glass of the front light of her vehicle was broken and there was a dent in the right of her bumper. She said she bought a new glass for her headlight and put it in herself.
Counsel asked the defendant whether the impact did anything to the plaintiff's vehicle and she replied (T195):
"No, it just wasn't – I was moving so slowly – you know, I hadn't even decided to pull up to, you know, actually move off into the traffic yet. I was still judging. You know, I was still trying to edge out to judge whether – you know, when I was going to get a big enough gap to do it, you know. So I was still just moving out. Still in first gear just edging out when it bumped and then I put the brakes straight on and moved back again. I mean, I didn't feel any – you know, I didn't get pulled from my seat belt."
In cross‑examination, the defendant said the plaintiff was relaxed and she the defendant was stressed. The defendant confirmed she expressed concern to the plaintiff about her husband's likely reaction. The defendant insisted she apologised to the plaintiff at the time. She said she was probably not far enough back from the plaintiff's vehicle when she began to move left. She repeated she was in first gear and moved half a metre to a metre before impact. She said she did not know the distance (T119). She denied she was doing more than a few kilometres an hour (T201).
Dr John Crockett saw the plaintiff on 29 June 2000 at the request of her solicitors. In his report of 30 June 2000 (Exhibit 4), Dr Crockett says:
"Mrs Ledgerton stated that on the 28th October, 1999, she was the driver of a motor vehicle which was stationery (sic) and was struck from behind by another motor vehicle. Her car was not so much pushed forward as rotated anti‑clockwise direction. Her seat remained anchored.
She noticed pain in her low back straight away. She was able to get of the car and in fact was able to continue driving and took her children to the Zoo, but during that period her low back became more sore and she reported to her general practitioner that evening."
Dr John Ker saw the plaintiff on 30 April 2001. In his report of 5 June 2001 (Exhibit 5) Dr Ker states:
"Because of road works, she followed a series of arrows into a lane and slowed down, only to be struck from behind by a following vehicle which slued (sic) her car to one side.
She was aware acutely of some low back pain at the accident scene but later continued with her family to the zoo …"
Dr Alan Home was also called on behalf of the plaintiff. In his report dated 2 October 2002 (Exhibit 7) he says at p 3 that the plaintiff's vehicle was struck on the left rear corner by a sedan vehicle, and that after the impact her vehicle was shunted and turned 90 degrees to face the left. He continues:
"Her vehicle was found to have suffered damage to the left rear corner including the left rear side panels, tail light and damage to the rear passenger door. Her seat was intact. There was no windscreen damage and no internal glass. The vehicle was subsequently repaired at a value of approximately $3000 although the precise amount is uncertain.
She did not lose consciousness and cannot recall collision with the internal surfaces of the vehicle. She was able to alight from the vehicle without assistance, and to check on her children in the rear seats, and exchanged details with the other driver before travelling on to her destination, Perth Zoo. After walking around the zoo for several hours she experienced the onset of right lower back pain. She cut short her visit and returned home."
The plaintiff called the orthopaedic surgeon, Dr Tony Robinson, to give evidence and his report of 5 September 2002 became Exhibit 12. He saw the plaintiff on 3 September 2002. He records in Exhibit 12 that the plaintiff was stationary on the Freeway when her vehicle was hit from behind. He says there was approximately $3,500 damage done to her car. In cross‑examination (T205), the witness confirmed that the plaintiff told him that her vehicle was damaged to the tune of $3,500. He confirmed that the plaintiff told him that she did notice some pain and initial stiffness in her neck after the accident.
The defendant called Dr John Rosenthal who saw the plaintiff on 16 January 2003. In his report of that day (Exhibit 6), the witness stated:
"The subject motor vehicle accident occurred on 28th October 1999, when she was the belted driver of a 1999 Daewoo Station wagon which was rear‑impacted whilst she was stationary on the Mitchell Freeway. The vehicle was not fitted with a tow‑hitch. The repair quotation $1,600.00, the vehicle had been driveable. Mrs Edgerton (sic) she had been looking straight ahead at the time and was not aware of the impending impact. The vehicle had head restraints.
This impact apparently shunted her vehicle forwards and to the left, however there was no secondary forward collision. This accident occurred whilst she was on the way to the zoo, taking her children for an outing. She was able to proceed with these plans but said her lower back started to ache after walking for about one hour. …"
It should be separately observed that both Dr Crockett and Dr Ker report in Exhibits 4 and 5 that the plaintiff stated she experienced low back pain at the accident scene, while the evidence of the plaintiff was that she became aware of pain in her right lower back, shoulders and neck while she was at the zoo about an hour after the accident. Likewise, their respective reports of the plaintiff's account to each of them differs from her evidence at T27 to which I have already referred.

The nature of the plaintiff's injuries and disability alleged

As I have said, the plaintiff gave evidence that she became aware of pain in her right lower back, shoulders and neck about one hour after the accident. She remained at the zoo for three to four hours at the end of which she said she felt "very sore" (T12). She said she took some Panadol and went to see her general practitioner. She said she continued to work full‑time as an intensive care nurse for two weeks and then she reduced her hours to 20 hours a week. She said she did that (T12):
"Because I found that on the full‑time hours I just couldn't cope with the pain in my back and I was taking too many pain‑killers in order to get through those shifts."
She said she was taking Panadeine Forte. She was asked to describe the pain she encountered during those two weeks and she replied (T13):
"It's a very burning ache, a burning ache and pain, and after the end of the shift it would start to spread up the inside of my back up in to my shoulders.
…
The ache starts off in my right lower hip there and it spreads around into my hip. It's like a burning pain, like a headache."
The plaintiff said on four or five occasions she increased her hours again. She said that when she did that (T13):
"Then I ended up in more pain, taking more pain‑killers and back at the physiotherapist's."
The plaintiff said she also visited a chiropractor. The plaintiff gave evidence that she continues to work as an intensive care nurse. She described the tasks of an intensive care nurse (T14):
"That involves monitoring the patients on the computer monitors and the ventilation, making sure their airways are always clear with suction, maintaining drugs in keeping to sleep or their blood pressure's stable, monitoring urine output, discussing things with relatives and making sure that they're constantly moved so they don't get pressure area sores."
The plaintiff was asked to describe the tasks which give her pain and she explained (T15):
"The biggest problem I'm finding is the constant bending over beds and I have problems sitting for long periods or standing for long periods. Everything on ICU is bed‑based so I can't move around an awful lot to loosen off my back in order to get rid of the pain. So it's the long periods of sitting or standing in one position and the bending over beds.
…Lifting. I have to do 2‑hourly turns on the patient. We do have lifting teams that help us do that but we still have to assist them. A person who's asleep, they're very heavy because it's a dead weight.
… When you are giving patients fluids through an IV line, intravenous line, you have to stretch up to the drip stands and I'm also quite short as well so I have to stretch that much higher."
The plaintiff was asked whether she could increase her hours beyond 20 hours per week. She replied (T18):
"I don't think I will be able to do that.
… Because it causes too much pain and that's not fair on my patients or my family."
The plaintiff said that since she has been back at work following the birth of her third child the pain in her back has increased (T19). She said she is taking Panadol during the day and Panadeine Forte at night. She said she no longer suffers from neck pain and only occasional shoulder pain. She said she is not able to go to the gym or play with her children.
In cross‑examination, the plaintiff accepted that in the course of carrying out her tasks as an intensive care nurse she has access to orderlies and patient care assistants to assist with lifting patients at any time. She agreed that management prefers nurses to use patient care assistants. She also agreed that hoists are available to lift patients. She agreed intensive care nursing is much lighter work than general ward nursing (T33).
The plaintiff agreed it is possible to lower the intravenous equipment to avoid reaching up to it (T39). She agreed patient care assistants are available to lift patients. She agreed the task of an ICU nurse is basically to monitor patients.
The plaintiff was asked whether she complained to her supervisor at Joondalup Hospital about any problems she was having fulfilling her duties during the first 12 months after the accident and she said she had complained to her immediate supervisor on duty at night. She agreed she had not complained to her direct line supervisor, Mr Brendan Burns. She was asked about her evidence that as an intensive care nurse she is required to bend over beds and said that sometimes she is required to bend over beds up to half an hour at a time for certain procedures (T48). She said she did not always have the opportunity of straightening up. She described the ventilation of a patient during which she must hold the tube so it does not become dislodged. She agreed she does not have to stand in one place for long periods of time.

The plaintiff said that since the accident her back injury has remained the same. She said that it was fair to say over the last couple of years she has learnt to understand what she can do or cannot do (T50). She said she cannot go to the gym because certain exercises cause her too much pain.
The solicitors for the defendant prepared schedules reflecting the contents of Exhibits 9 and 10, which it was agreed accurately reflect the hours worked by the plaintiff since 28 October 1999. Those schedules demonstrate that save for the two weeks following the accident, the plaintiff has undertaken nursing duties for no more than 20 hours a week, with several exceptions. The evidence of the plaintiff was that she has at all times preferred night shift duties when her husband is available to care for their children.
In this case, the evidence of the plaintiff herself very largely forms the foundation upon which the medical opinion depends. At p 3 of his report of 29 July 2003, Dr Crockett says:
"I would point out that this accident was not a direct shunt, but resulted in a rotatory force to her vehicle, and as such would be more likely to cause such irritation to the facetal joints in her lower lumbar spine."
In evidence, Dr Crockett said (T66):
"Anything which will damage those joints in some way will tend to cause pain, and by irritation I mean the result is pain.
… The mechanical design if you like of the lower back is that the facet joints are in such a direction that they don't allow rotation of one vertebra on the other. When you get to the cervical spine, the neck, the facet joints are in such a plane that they allow a lot of rotation but rotation basically doesn't occur very much in the lumbar spine."
Dr Crockett points out at p 2 of that report that the CT scan carried out on 31 July 2001 shows a shallow posterior disc bulge at L5/S1. He considered the existence of the disc bulge confirmed degenerative change but it was not otherwise significant in the plaintiff's diagnosis. In the context, Dr Crockett expressed the opinion there was a strong connection between the irritation of the facet joints at L5/S1 when the plaintiff says her symptoms occur in the lowest part of the back (T68).
It will be observed that Dr Crockett's opinion is dependent upon the existence of the rotatory force to which he refers and the extent of the pain about which the plaintiff complained. Dr Crockett acknowledged this (T73). He was cross‑examined about the rotatory force required to cause the irritation spoken about. He said he was talking about a rotation of the vehicle which then rotates the body (T74). He said he believed the car was not so much pushed forward as rotated and continued:
"I think even some feet of rotation of the back and the front of the car would be sufficient. If the damage is going to be done, it's going to be done instantaneously at the beginning of the rotatory force as the force is applied."
Dr Crockett agreed that he was of the view that there was an impact of some significance to the rear of the plaintiff's vehicle. In re‑examination, he said he believed that the plaintiff was struck from behind by another motor vehicle and her car was not so much pushed forward as rotated in an anti‑clockwise direction (T75). It will also be recalled that the plaintiff told both Dr Crockett and Dr Ker that she experienced immediate pain in the lower back at the time of the accident, whereas her evidence before me was that she experienced the pain approximately one hour after the accident.
I have referred to the report of Dr Ker dated 5 June 2001 (Exhibit 5) in which Dr Ker records that the plaintiff's vehicle was struck from behind by a following vehicle which slewed her car to one side. In his report of 5 June 2001 he expressed the opinion that the plaintiff had a consistent history of low back pain directly following the incident of the injury. He recommended a CT scan of the lumbar spine, which in these proceedings became Exhibit 14, and as Dr Crockett observed revealed at L5/S1 a shallow posterior disc bulge, distorting the theca but not compromising the nerve roots. No significant facet joint disease was shown.
In his report of 14 December 2001, Dr Ker expressed the opinion that the results of the CT scan showed a real structural abnormality but found no evidence to suggest that there was a true intervertebral disc herniation at the L5/S1 level. He considers in such circumstances, with this form of structural abnormality at the L5/S1 level the plaintiff will continue to have a degree of lumbosacral back pain. He thought the pain was unlikely to resolve spontaneously in the future.
At p 6 of the Exhibit 7, Dr Alan Home expresses the opinion:
"In my view Mrs Ledgerton's ongoing complaints reflect disc and facet dysfunction at the lumbosacral segment where there is CT scan evidence of minor disc bulging, likely to be degenerative in nature. That is, the accident has rendered symptomatic the degenerative L5/S1 segment."
Dr Home explained his diagnosis before the Court in this way (T120):
"You say your opinion is the accident has rendered symptomatic that segment. Perhaps you could briefly describe the mechanism and architecture of that?‑‑‑I was told by Mrs Ledgerton that she was in a rear‑end collision in which the car was shunted forward and twisted. That type of mechanism could well cause injury to the spine. Certainly, I was told that she was previously asymptomatic. It was felt that her symptoms occurring after the accident were consistent with her having an injury and so, as I say, making the assessment that the radiological changes were long‑standing or likely to be related to the degenerative change, then I determined that – and certainly from the clinical findings it seems that she is most tender at the lumbosacral segment that the accident has caused the development of symptoms arising from that injury.
The facet joint dysfunction at that level, perhaps you could explain what picture that has in your view in the presentation?‑‑‑She presented with predominantly right‑sided symptoms. On clinical examination, there was certainly a tenderness well localised to the right and reproducible and certainly the clinical findings including pain to lumbar extension, pain with the right quadrant manoeuvre, pain with right hip extension and as I say the local tenderness did cause me to consider that there was a likelihood that the facet joint dysfunction was contributing to the pain.
Perhaps if I can take you to page 38, page 6 of your report. You just mentioned pain on lumbar extension?‑‑‑Yes.
Pain on lumbar extension is an indicator of what?‑‑‑When trying to decide the likely patho‑anatomical source of pain in case of chronic back pain, certain clinical findings may point you to a particular diagnosis and lumbar extension is usually associated with facet joint pain as in increasing the stress on the posterior elements in the spine as opposed to flexion. Certainly, as I say, those provocation test, right hip extension and right quadrant manoeuvre, are also signs that would indicate there is a likelihood of facet joint pains arising, but lumbar extension is usually painful in patients with facet joint pain."
Dr Home was clearly of the opinion that the L5/S1 disc bulge is significant in the diagnosis. He acknowledged the likelihood that the facet joint dysfunction was contributing to the pain.
His opinion is founded upon his statement of the fact that after the impact the plaintiff's vehicle was shunted and turned 90 degrees to face the left. In cross‑examination, he said he understood that the plaintiff's vehicle was shunted forward and to the left. He said the plaintiff did not tell him precisely how far the vehicle was shunted forward but told him that it was effectively 90 degrees twisted to the left. He agreed that was a substantial turn. (T125)
In Exhibit 12, Dr Tom Robinson records the plaintiff noticed some initial slight low back pain and stiffness in her neck. He goes on to record that after the accident the plaintiff had two to three weeks off work. Dr Robinson diagnosed a soft tissue injury to the lumbar spine. Dr Robinson noted the results of the CT scan (Exhibit 14) and stated (T203):
"In my experience when I was a registrar and when I used to deal with backs more frequently, this disc bulge wasn't really significant. They can be found in people even with normal backs."
As I have already observed earlier, the defendant called Dr John Rosenthal who saw the plaintiff on 16 January 2003 and who reported to the defendant's solicitors that day. I have already referred to that report, Exhibit 6. Dr Rosenthal records the information available to him including the CT scan. He records at p 3 of Exhibit 6 that on examination the range of the plaintiff's lumbar extension was full with no muscle spasm. He records that initially she complained of end range pain while repetition of the manoeuvre demonstrated an inconsistent response. He goes on to express his opinion at the paragraph numbered 1 on p 3 of Exhibit 6 as follows:
"My clinical assessment is that injury has been a lower lumbar soft tissue strain injury which I would categorise as mild. There is no objective clinical evidence of her having any significant degree of mechanical lumbar dysfunction. I do not perceive that she is significantly disabled. She is enduring a pregnancy without even taking simple analgesics. She presents as a happy individual who frequently giggled after answering my questions and describing her subjective complaints.
I do not find a clinical basis to infer discogenic pain either at or above the L5/S1 level. Radio‑isotope scans are very sensitive in terms of detecting early degenerative change and the fact that her scan is pristine confirms the benign soft tissue nature of her complaints.
Much has been said about the L5/S1 disc being abnormal. I do not think the reported bulge has any clinical or post‑traumatic relevance. Disc bulges are readily demonstrated in asymptomatic individuals, particularly in younger patients when the disc has a normal fluid content, thereby functioning effectively as a hydraulic cushion. In these circumstances, diurnal variation with disc bulging is seen as a normal phenomenon. It has been further suggested that some narrowing of the L5/S1 disc space might further infer some degenerative disc disease, but again this is not supported by the isotope scan findings and moreover, narrowing at this level is commonly developmental."
Counsel for the defendant asked Dr Rosenthal to expand on his opinion that the plaintiff's disc bulge has not clinical or post‑traumatic relevance. He said (T89):
"The first question deals with causation and the mechanism of injury. Disc protrusions and bulges mostly occur in circumstances when the spine is forward‑flexed and there is an imposition of an axial force or some sudden increase in the contents of intraspinal pressure. Most commonly these things do not occur – sorry, these things do not usually occur in rear‑end motor vehicle shunts because the back is usually protected by a contoured seat. Rear‑end shunts mostly cause posterior segment soft tissue strain and if there's a rotatory component they will sometimes wrench the facet joints. In rear‑end shunts unless the forces are massive, they don't usually cause disc protrusions.
Is that any different if you are wearing or not wearing a seat‑belt?‑‑‑No, because the back is protected. The acceleration, de‑acceleration injury most commonly involves the neck. If the neck doesn't get injured in a rear‑end shunt it's difficult to see how the back can beyond just a little bit of jarring and that doesn't usually cause a disc protrusion. Now, that's my opinion on the issue of causation, but more importantly, we see disc bulges on x‑rays all the time.
The important thing in clinical medicine is to determine is that or is that not a pain generator. There has to be a close clinical correlation between clinical signs and radiological appearances. You must always assess and treat the person, not the picture. We see disc bulge frequently encountered in asymptomatic individuals. Even with state of the art imaging with MR scanning there's a 30 per cent error in discs reported to be pressing on things and that individual has never had back pain in their life, and that was a landmark prestigious study carried out in Boston and published in the New England General Medicine. Now, getting back to clinical issues, when a disc protrudes or bulges it's always posterior or posterior and lateral. That means backwards and to the side. If the disc bulge is to the front that's usually not a matter of any consequence. You can see on the model that there's not much room between the spinal cord, the lining of the spinal cord – this canal at the back of the disc is chock‑a‑block with all the structures: the ligamentum flava and the spinal cord, the nerve roots and the theca which is the collective term for the linings of the spinal cord. If the disc is bulging significantly and you bend the patient's back – if you get the patient to bend backwards, what we call extension, you are going to impinge that disc bulge and that protrusion and that will give quite severe pain and it ought to be a consistent sign. It wasn't present when I examined this lady by repeating the manoeuvres. I could not consistently get pain on lumbar extension."
Dr Rosenthal went on to repeat that he considered his findings more consistent with a muscular ligamentous basis for the plaintiff's back complaint which he would have expected to resolve at most within 12 to 18 months after the accident.
Dr Rosenthal was also asked to comment on the duties of an intensive care nurse and expressed the opinion there are always plenty of staff available in an intensive care unit to assist other staff. He said the equipment may generally be adjusted to suit the height of the individual operator.
In cross‑examination (T95), the witness acknowledged that the plaintiff's response to examination was fairly straightforward. He said he did not wish to emphasise the inconsistency demonstrated on extension. He was cross‑examined (T97) about his evidence in relation to the significance of the disc bulge. He offered the opinion (T98) that a pre‑existing degenerative state with or without disc bulging may clearly lower the injury threshold at that segment. He expressed the opinion the accident was not likely to have aggravated her pre‑existing degenerative state. He acknowledged the opinions of Dr Ker, Dr Crockett and Dr Robinson. He was asked whether experience shows that muscular ligamentous injuries may become intractable and replied (T100):
"It depends on whether it's a compensable matter or not to a large extent. The natural history of these types of injuries in a non‑compensable situation is entirely different."
Dr Rosenthal went on to state that he acknowledged that the plaintiff has "some back symptoms". He said he considered they were compatible with her working as an intensive care nurse.
The defendant also called Dr John Silver who saw the plaintiff on 7 December 2000 and whose report of that date became Exhibit 11. At p 2 of that report he records:
"She was involved in a motor vehicle crash on 28 October 1999 when the car that she was driving, with her mother‑in‑law and two children as passengers, was rear‑ended when it was stopped in a line of traffic on a freeway. There was $1500 worth of damage done to the car.
She said that one child had a sore neck for 24 hours but nobody else was injured.
She said that she was not aware of being hurt at the time, …
She said that she developed low back pain during the day as she walked around the zoo, and she consulted her family doctor, …"
At p 4 of his report, Dr Silver expresses the opinion that in the absence of objective evidence of skeletal pathology, the plaintiff's injury could be assessed as being a minor soft tissue injury. He accepted the plaintiff experiences some degree of discomfort but expressed the opinion that the plaintiff is not disabled from working as an intensive care nurse.
In cross‑examination (T171), Dr Silver expressed the opinion that he thought it was highly unlikely the plaintiff had a significant spinal injury. He said there was certainly no evidence of any structural or anatomical abnormality. He continued (T172):
"I've said in my report that it's possible but highly unlikely that she suffered a significant spinal injury. She told me that there was a minor rear‑end collision, that it caused minimal damage to her car and that there was – that she wasn't in pain afterwards and she said that she developed some low back pain some hours later. Now, that history is consistent with a soft tissue injury. But I would make the point that this was a minor rear‑end collision which is much more likely to cause that sort of an injury in the neck, rather than the back in any event and I had no reason not to believe the patient, so I accepted her history as was stated to me but didn't consider that she could have had a significant injury, particularly in the light of the x‑rays and the bone scans showing no abnormality."
Dr Silver had not seen the results of the CT scan. In his opinion the plaintiff's presentation was not consistent with an aggravation of that bulge as a result of the collision.
The final witness for the defendant was Dr Andrew Marsden who saw the plaintiff on 10 February 2003 and reported to the defendant's solicitors on that day, which report became Exhibit 16. The plaintiff told Dr Marsden that she gradually developed right lower backache during her visit to the Perth zoo. He found she had an extremely good range of movement with full forward flexion and full extension. She reported some discomfort in the right lower back at the extreme of extension only. He expressed the opinion the plaintiff suffered a back injury of a soft tissue nature as a result of the collision which he considered was "probably more facetal". He expressed the opinion the plaintiff is fit to undertake the normal duties of an intensive care nurse.
In cross‑examination (T215), Dr Marsden acknowledged that pain on extension is a sign consistent with facetal involvement. He did not think the bulge necessarily indicated degeneration. He knew the results of the CT scan in Exhibit 14. He did not consider the bulge had been rendered symptomatic in the collision. He continued (T216):
"I don't think it's relevant at all. I don't think it was involved, I don't think it would have been aggravated by this sort of accident."
Dr Marsden explained (T219) why he considered the plaintiff is able to undertake the duties of an intensive care nurse.

What happened on 28 October 1999?

As I have explained, the plaintiff said there was a moderate impact from behind and her car was rotated slightly to the left. She could not estimate exactly how far forward her vehicle moved but it was not very far. She said the front of the vehicle was to the left but she could not recall how much. When pressed, she said it wasn't very much. She said there was damage to the left‑hand side of her vehicle at the rear bumper and the left‑hand rear panel but she could not estimate how much damage. In cross‑examination she accepted the cost of repair to her vehicle was approximately $1,500.
In cross‑examination, the plaintiff did not recall telling certain medical practitioners that the cost of repairs to her vehicle was $3,000 and $3,500. The plaintiff said she had never described the damage to her motor vehicle to the doctors. She also denied she had subsequently said that her vehicle was shunted forward, or slewed around to the side, or rotated anti‑clockwise.
Dr Home recalled in Exhibit 7 that the plaintiff told him the vehicle was subsequently repaired for approximately $3,000. Dr Tony Robinson recorded in Exhibit 12 that the plaintiff told him that her vehicle was damaged to the tune of $3,500. Dr Rosenthal recorded in Exhibit 6 that the plaintiff told him the repair quotation was $1,600. The plaintiff denied she gave these estimates and denied she gave them in order to exaggerate the forces involved in the collision.

The doctors I have mentioned each confirmed their record of the plaintiff's statements about the circumstances of the collision and the cost of repairs. As I have explained, the evidence of the defendant was that she put her vehicle into first gear, pulled out and misjudged slightly and clipped the plaintiff's vehicle on the left with the front right of her car at approximately 2 kilometres an hour. She maintained this evidence in cross‑examination. The plaintiff said it was not correct that the defendant clipped the rear left of the plaintiff's vehicle.
I find the defendant's account of the circumstances of the collision more reliable than that of the plaintiff, because I find the plaintiff exaggerated the circumstances of the collision to Drs Crockett, Ker and Home. I also find the plaintiff estimated the cost of repairs to her vehicle to Dr Home and Dr Robinson, while she denied under oath she had given any such estimates. Given the plaintiff's acceptance in cross‑examination that the cost of repairs to her vehicle was approximately $1,500, I find the plaintiff exaggerated those costs to the doctors. I find, therefore, that the defendant clipped the left rear bumper of the plaintiff's vehicle and broke the right hand headlight glass of the defendant's vehicle. I find the defendant was in first gear and had moved no more than one metre at the time of the collision. I find the defendant was moving at no more than 3 kilometres an hour at the time of impact. I find the plaintiff's vehicle was not rotated by the impact.

Were such circumstances likely in fact to have caused the injuries and disabilities alleged by the plaintiff?

The circumstances of the collision as I have found them lead me to infer that the forces involved in the collision were slight and I so find. As I have explained, the plaintiff gave evidence that about an hour after the collision she experienced pain in her right lower back, shoulders and neck. I have already observed that both Dr Crockett and Dr Ker report in Exhibits 4 and 5 that the plaintiff stated she experienced low back pain at the accident scene. Their evidence depends materially upon the application of a rotatory force to the plaintiff's vehicle. I have found no such force was applied to the vehicle. The opinion of Dr Home was similarly dependent upon the existence of such rotatory force. I do not accept, therefore, the conclusion of Dr Crockett that such a force may have caused irritation to the facetal joints in the plaintiff's lower lumbar spine. He did not consider the shallow posterior disc bulge at L5/S1 to be significant in the diagnosis. As I have observed, Dr Home was clearly of the opinion the L5/S1 disc bulge is significant in the diagnosis. He and Dr Robinson both believed the collision rendered the disc bulge symptomatic and were of the opinion the plaintiff sustained a soft tissue injury to the lumbar spine. Dr Rosenthal considered the plaintiff sustained a mild lumbar soft tissue injury and no significant degree of mechanical lumbar disc function. As I have explained Dr Rosenthal considered his findings more consistent with a muscular ligamentous basis for the plaintiff's back complaint. He expressed the opinion the accident was not likely to have aggravated the plaintiff's pre‑existing degenerative state, while he acknowledged the opinions of Dr Ker, Dr Crockett and Dr Robinson.
Dr Silver diagnosed a minor soft tissue injury and thought it was highly unlikely the plaintiff had a significant spinal injury. It is material to observe the plaintiff told Dr Silver there was a minor rear end collision consistent with such a soft tissue injury with no evidence of structural or anatomical abnormality. Neither Dr Silver nor Dr Marsden considered the disc bulge had been rendered symptomatic in the collision.
Having determined that the force applied to the plaintiff's vehicle was slight, the only reasonable conclusion open on the medical evidence for the plaintiff and the defendant is that the plaintiff suffered a soft tissue injury to the lower lumbar spine. I think it is unlikely on the evidence in this case that the degenerative L5/S1 disc bulge was rendered symptomatic. The plaintiff has pleaded in par 3(a) of the statement of claim she suffered a soft tissue injury to the thoracic lumbar spine. I find on the balance of probabilities she suffered a soft tissue injury to the lower lumbar spine. I find the collision did not cause the disc protrusion at L5/S1 to become symptomatic as alleged in par 3(b) of the statement of claim.

The nature and extent of the plaintiff's soft tissue injury to the lower lumbar spine

I have already set out the particulars pleaded in par 6 of the statement of claim. The plaintiff said after the accident she continued to work full‑time as an intensive care nurse for two weeks and then reduced her hours to 20 hours a week for the reasons which she gave. She said she found she could not increase those hours without increased pain. She described the duties of an intensive care nurse. She said these duties included lifting patients. She said these duties required her to stretch up to the drip stands. In cross‑examination, the plaintiff accepted that an intensive care nurse has access to orderlies and patient care assistants. She accepted it is possible to lower the intravenous equipment to avoid reaching up to it. She agreed her duties were basically to monitor patients. She said her duties required her to bend over patients frequently and she did not always have the opportunity of straightening up.
I accept that the plaintiff has from time to time experienced discomfort in the lower lumbar spine, and in particular when required to bend over patients for prolonged periods. There is no explanation on the evidence why the plaintiff's symptoms from this injury have not settled earlier. On the conclusions I have reached, there is no evidence the plaintiff's symptoms have some other origin. As I have explained, the plaintiff has demonstrated a propensity to exaggerate and it seems to me reasonable to infer in the light of these findings that it is more likely than not the plaintiff has exaggerated the extent, including the frequency, of her symptoms.
The medical evidence about the nature of this soft tissue injury is such that it is likely the plaintiff will recover fully from the effects of the injury in the foreseeable future.

Has the plaintiff's soft tissue injury been productive of economic loss?

There is not doubt in this case about the plaintiff's pre‑accident capacity for employment as an intensive care nurse and the likely duration thereof prior to the injury. She claims she would have been likely to continue in full‑time employment until aged 60 which, so far as it may be material, I accept. The ultimate issue for determination in relation to past and future economic loss is the extent to which the soft tissue injury has truncated the plaintiff's earning capacity and will, or may be likely to truncate that capacity in the future.
I accept on the evidence the plaintiff has been unable to work on general hospital wards since 28 October 1999. That has little consequence in relation to the plaintiff's earning capacity, because she has not desired and does not desire to undertake general nursing duties. The plaintiff's claim for damages for past loss of earnings and loss of earning capacity is founded primarily upon her assertion that after 7 November 1999 she was not able to continue full time as an intensive care nurse and in effect reduced her hours from 80 hours per fortnight to 40 hours per fortnight. As I have explained, her evidence is that from time to time she has increased her hours but says she suffers increased symptoms and is not able to work 80 hours per fortnight, as she did previously. She believes she will not be able to work more than 40 hours per fortnight in the future. She says that but for the accident she would have likely worked four 10 hours shifts per week at Joondalup Hospital on a permanent basis, a total of 80 hours per fortnight.
In the light of the conclusions I have reached, on the plaintiff's evidence and the medical evidence about the nature of her soft tissue injury, that it is likely the plaintiff will recover fully from the effects of the injury in the foreseeable future, I do not accept the submission on behalf of the plaintiff that her past and future earning capacity has in effect been halved as a result of the soft tissue injury. In my opinion, it is reasonable to conclude that from 8 November 1999 to 13 August 2003 the plaintiff was capable of working at least 30 hours per week as an intensive care nurse.
But for the accident the plaintiff would have earned a net sum of $154,292.52 working four 10 hour shifts per week, except for a period of maternity leave. I therefore assess the plaintiff's past loss of earning capacity as one quarter of that sum (equal to one 10 hour shift per week) or $38,573.13.

Future loss of earning capacity

I have found that but for the accident the plaintiff would more than likely have worked four 10 hour shifts per week as an intensive care nurse on a permanent basis. She would have earned $836.84 net per week. The plaintiff is earning $693.60 per week for ACES and claims a future loss of $143.76 net per week until the age of 60. I find the plaintiff is capable of continuing to work at least 30 hours per week and that it is very likely she will be able to increase those hours further in the foreseeable future, so that the plaintiff will be able to exercise her pre‑accident earning capacity within the next two years. Adopting the 6 per cent multiplier for two years, I would assess her future loss of earning capacity as $143.76 x 98.5 = $14,160.36, less 4 per cent ($566.40) for vicissitudes of life and award the plaintiff $13,593.95 under this head.

Past and future loss of superannuation benefits

Prior to the accident the plaintiff was earning $1,296.30 per week gross and is therefore entitled to an award in respect of 25 per cent of this gross sum of $324.07 per week as follows:
(a)From 08.11.99 to 36.06.00 at 7 per cent
(33 weeks at $324.07) = $10,694.31 x 7 per cent            $748.60
(b)From 01.07.00 to 30.06.02 at 8 per cent
(104 weeks at $324.07) = $33,703.28 x 8 per cent         $2,696.26
(c)From 01.07.02 to 16.02.03
(33 weeks at $324.07) = $10,694.31 x 9 per cent            $962.48
(d)From 26.07.03 to 13.08.03
(2 weeks at $324.07) = $648.14 x 9 per cent  $58.33
Total$4,465.67
Less 30 per cent (Jongen v CSR Ltd & Anor,
unreported; SCt of WA; Library No 920325;
18 June 1992)
Total$3,125.97

Future superannuation benefits

The plaintiff is entitled to an award for two years in respect of one quarter of her gross salary or $324.07 as follows:
$324.07 x 99 x 9 per cent = $2,887.46
Less 30 per cent (Jongen v CSR Ltd) being an award of $2,021.22.
In view of the short period of time between the accident and trial I have not made any deduction for further contingency.

Interest on past loss

The plaintiff is entitled to interest on past loss of earnings and superannuation benefits at 4 per cent of $41,699.10 as follows:
$41,699.10 x ¹/₃ x 4 per cent x 3  $1,651.29
$41,699.10 x ¹/₃ x 4 per cent x 2  $1,100.86
$41,699.10 x ¹/₃ x 4 per cent x 1  $550.43
$3,302.58

Future treatment

In accordance with the conclusions I have expressed and the medical evidence to which I have referred, in my opinion the plaintiff has not established she will require future treatment for her soft tissue injury and I make no award under this head.

Loss of amenities and pain and suffering

The conclusions I have expressed in relation to the evidence of the plaintiff about the circumstances of the collision and the extent of her disabilities must impinge upon the assessment of damages for loss of amenities and pain and suffering. Many of the particulars pleaded are not made out on the evidence. I have found the plaintiff's soft tissue injury has resulted in some discomfort and is likely to continue to do so but will resolve in the foreseeable future. I would assess the plaintiff's entitled to damages under this head as 5 per cent of a most extreme case or $12,450. Since this sum is below the threshold of $12,500 the plaintiff is entitled to no award under this head.

Conclusion

I assume special damages have been agreed and paid and therefore need not be included in this award. The plaintiff is therefore entitled to an award of damages as follows:
Past loss of earnings  $38,573.13
Future loss of earning capacity  $13,593.95
Past loss of superannuation benefits  $3,125.97
Future loss of superannuation benefits  $2,021.22
Interest on past loss  $3,302.58
Total$60,616.85
I will enter judgment accordingly.