Matthews v Williams No. DCCIV-01-1546

MATTHEWS v WILLIAMS
[2004] SADC 58
Judge Lowrie
Civil

The plaintiff, a young lady now aged 26 years, was the driver of a motor vehicle, which was stationary on Payneham Road Stepney on 17 October 1998. Unfortunately, the defendant drove his truck into the rear of the plaintiff’s stationary vehicle.
The plaintiff seeks damages arising from the defendant’s negligent driving. I have been asked to determine the quantum of such damage.
The plaintiff, following the accident, was taken to the Royal Adelaide Hospital and shortly after was discharged. She attended her local general practitioner who diagnosed a soft tissue injury to her neck and back and prescribed anti-inflammatory medication and directed that she undergo physiotherapy. The plaintiff was also prescribed anti-depressant medication because of her complaints of constant pain and sleep disturbance. The plaintiff pleaded that this condition was ongoing, particularly in her lower back, which was aggravated by sitting. The plaintiff said this lower back pain restricted her ability to bend and sit for lengthy periods, nor was she able to drive her car for long distances.
The plaintiff was referred to a neurologist and an orthopaedic surgeon. A CAT scan showed a disc bulge at the L4-5 level. However, it was alleged that by late 1999, although there was improvement in the neck symptoms she continued to have pain in her lumbar spine and these matters affected her work ability and caused her to gain weight. It was further pleaded that as a result of these injuries the plaintiff has suffered a 15% disability of her lumbar spine and a 5% disability of her thoracic spine, and, these matters have affected her work capacity.
EVIDENCE
The plaintiff gave evidence and called her partner, David Vandemeer, and treating physician, Dr Leonello, and, as well tendered medical reports from her general practitioner, Dr Ng.
The defendant made available for cross-examination the orthopaedic surgeon, Mr Fry, who had examined the plaintiff during the course of her prior work related difficulties.
PLAINTIFF
The plaintiff outlined that in January 2001 she commenced working at a telephone call centre and is still so employed.
The plaintiff confirmed the nature of the accident and her admission to hospital for a few hours prior to being discharged.
The plaintiff outlined that she had completed year 12 and then attended a legal/commercial/secretarial college that led her to employment at the firm of Palios, Meegan & Nicholson. Her main duties at the legal firm were audio-typing duties. That employment commenced in 1997. However, during her employment she experienced problems with her hands and wrists and was away from work and eventually returned on light or alternate duties for a short time. This accident occurred during that period of employment. The plaintiff said she contacted her employers about the accident, but never returned to that employment and her services were terminated in January 1999.
The plaintiff obtained work in September 1999 in an accountancy firm, Total Business Solutions, and worked there as a receptionist and secretary. The plaintiff said she had difficulties operating a large compactus and some disclosure of privacy issues occurred of which she said she was in no way involved, but she eventually left that employment.
On 24 May 2000 the plaintiff obtained work on a casual basis with Link Telecommunications. This was again call centre work. This employment continued until 14 September 2000. The plaintiff said she resigned from this work because she had difficulties with constant sitting in the one position and not being able to move around.
The plaintiff then worked as a receptionist for Pizza Haven between 14 September 2000 and 25 November 2000. She was unemployed until 8 January 2001 when she commenced employment at the Stellar Call Centre. Again this is work involving answering the telephone and skills in that area and she has been so employed since that time.
The plaintiff said that this work does cause problems with her back and shoulders with associated pain. She believes that her base salary for this position is an annual salary of $32,000 with some bonus impute and said in this period she has had time off from work because of her back and shoulder pain.
The plaintiff confirmed that she and her partner will be marrying in May of this year.
The plaintiff attempted to undertake study of an Advanced Diploma in Accounting with the aim of becoming an assistant to an accountant. She started that study in the beginning of 1998 and undertook such study in 1998 and 1999. She said her studies were for the first half of 1999, however, she withdrew from these studies. She continued her studies in 2000 with some success. Again in 2001 she commenced her studies, but did not continue. She was asked why she did not continue and she said:
“I had a lot of trouble going to work and continuously sitting down being in pain then and then had to go home and do the same thing whilst studying, I just couldn’t concentrate.”
She said if she had been successful with this accounting course she believed that employment was available and she may have received a gross salary of between $40,000 and $50,000.
At this stage she proposed to continue her work at the call centre and would then like to start a family, but would in time like to return to work.
The plaintiff confirmed that her treating general practitioner is Dr Ng. She also said that she had seen the physician, Dr Leonello, and described the ongoing nature of her pain with continual sitting which brings on her back and shoulder pain. She takes anti-inflammatory medication for this pain.
The plaintiff agreed that she had made a claim for her work-related wrist injuries and her compensation benefits were finalised in April 2002.
The plaintiff said that she did not return to her employment at Palios Meegan & Nicholson as she was recovering from the effects of the motor vehicle accident. She said that in this period she was immobile and in pain and did not start looking for work until June 1999 when she undertook receptionist duties. She said she commenced employment in September 1999 and in her words “was trying to move on”, but agreed she had received worker’s compensation payments up to and including September 1999.
The plaintiff said she recalled seeing Mr Fry in March 2000, but could not remember the details of that examination. In cross-examination it was put to her of that attendance:
"QIn relation to that attendance, you told him about the problems that you were having with your wrist and hands, and also whether you were having any difficulties as a result of the motor vehicle accident, which, of course, had occurred some two years before that.
AThat’s correct.
QCan I suggest to you that, in relation to the motor vehicle accident injuries, as at March 2000, what you told Dr Fry was as follows: ‘The back and neck these days simply caused “very intermittent” symptoms’ and that you considered that you would be fit for the work at Palios Meegan & Nicholson if it weren’t for your ongoing wrist problem.
ANo, that’s not correct.
QFirstly, do you remember saying that the Dr Fry.
ANo, I don’t.
QSecondly, I suggest to you that it is, in fact, what you told Dr Fry: that, as at March 2000, having gone to see him for the purposes of your WorkCover claim, and having obviously been asked about the motor vehicle accident, what you told him was ‘These days’, as at March 2000, ‘the back and neck simply caused “very intermittent” symptoms’ and that you were fit for your work at Palios Meegan & Nicholson if it were not for your ongoing wrist problem. That is the truth of the matter, isn’t it.
AThat’s not correct.
QIt is the case, isn’t it, that certainly as at March 2000, the back and neck symptoms, if any, were ‘very intermittent’ and were not interfering with your work, for example, as a legal secretary.
AThat’s not correct.
QDo you say, in fact, that rather than being very intermittent, as at March 2000 and ongoing to date, your neck and back pain was, and always has been, quite significant and painful.
AYes, it has.
QThere is absolutely no way that we could confuse that expression ‘very intermittent’ to the way in which you’ve described your back and neck symptoms since the motor vehicle accident.
AI don’t understand the question.
QYou would agree with me that that description that I’ve read out to you, that ‘The back and neck these days simply cause “very intermittent” symptoms’ and that you were fit for work at Palios Meegan but for the wrist problem, is completely different to your evidence today.
AI’m saying that’s not correct.
QNot only is it not correct, but it is completely different from your evidence today, isn’t it.
AWell, it’s not correct.
QIn what way is it not correct.
AThe definition of what I say is intermittent and a definition of other people’s intermittent is not the same.
QWhat do you say ‘intermittent’ means.
AI’d say ‘intermittent’ is anywhere from maybe an hour to an hour and a half where I would not get pain, so intermittent over the day, not intermittent over the days.
QSo you say, firstly, that it could have been that you used the expression that your neck and back pain was intermittent.
AIt could have been.
QBut if you had used that expression, and you don’t now recall, but if you had used that expression, you meant intermittent throughout a day; that is, as I understand your last answer, perhaps there were periods of an hour or so where you might not be in as much pain as other periods.
AThat’s correct.
QIs that seriously what you’re suggesting is the explanation for -
ANo, I’m saying that that is what I understood what I said.
QDo you now have a recollection of seeing Dr Fry.
ANo, I don’t.
QThis is just how you’re thinking an explanation could be if Dr Fry had properly recorded a history from you that your pain as of March 2000 was ‘very intermittent’.
AIt’s a possibility.
QBy ‘very intermittent’, if you had used that expression, you suggest to this court that you meant there might have been an hour or so throughout a day when you were in less discomfort than other periods throughout the day.
AThat’s correct.
QIt is the case, isn’t it, that what you told Dr Fry, is that although you had some residual effects in the neck and back from the motor vehicle accident, those effects were now minimal and intermittent.
AI don’t understand the question.
QI am suggesting you that that is how you described your condition to Dr Fry in March 2000; although you had some residual effects in the neck and back from the motor vehicle accident, those effects were now minimal and intermittent.
AIt is possible that I said that.”
The plaintiff was asked questions about the letter which she had forwarded to her employer at Link Telecommunications in September 2001 when she mentioned that she was resigning as it was her intention to “work for her father”. She agreed that was not a truthful statement, but made such statement after talking to her parents with the intention of endeavouring to keep open that employment at a future time.
The plaintiff agreed that prior to the motor vehicle accident she did have some problems with her back. However, she viewed those problems as minor. It was apparent she attended her general practitioner in April 1997, January 1998 and June 1998 concerning some lower back difficulties, but described them as “extremely low”. The plaintiff also confirmed that she had in the middle of 1999 sprained an ankle and fractured her foot and it was put in a cast, which affected her mobility. She was then asked:
"QIf the general practitioner has recorded in his notes that you told him on 20 September 1999 that you’d been well and you, at that stage, now no symptoms of neck and back with daily activity, do you have any explanation.
ANo, I don’t.
QCan I suggest to you that the explanation is that that is exactly what you told him because that was exactly the truth of the matter.
AThat’s incorrect.
QDo you say that as at 20 September 1999, or thereabouts, you were still having the types of problems that you’ve described to this court in your neck, mid-back and your low back.
AYes, I am having the same problems.”
It appears that the plaintiff has had difficulties with her weight over the years, and, prior to the accident was endeavouring to lose weight for the sake of her general health and wellbeing. She had received similar advice following the accident and endeavoured to attend a gymnasium and keep-fit classes to assist that desire, but said she found it difficult because of her ongoing pain problems in attending regularly at the gymnasium.
The plaintiff maintained in cross-examination that prior to the accident she had no difficulties in performing her studies notwithstanding her ongoing wrist problems. There seems to be some confusion between the TAFE records that were tendered and the plaintiff’s evidence. On balance, I would probably prefer her explanations in relation to this material. However, what is very apparent is that the plaintiff was very successful in her initial studies and that continued into the year 2000. She explained the reason for this success was that she had prior knowledge of the course material by reason of her legal duties. However, the position must be that the plaintiff had little difficulty in undertaking and completing those studies and indeed following the incident without pain complaints. The plaintiff said she did have phone discussions with relevant course supervisors about her problems and withdrawing from the course.
MR DAVID VANDERMEER
Mr Vandermeer is now 34, a boilermaker by trade, and has had continual employment in that trade over the years. He confirmed that he was the partner of the plaintiff and they were proposing to marry in May of this year. He said he had known the plaintiff since January 1997. He was previously in a relationship and has a daughter of that relationship who is now 10 and lives with her mother. He has joint custody of this child.
He recalled the plaintiff’s accident in October 1998. He went to the accident scene. At that time they had been living together for about six months. It was his view that before this time the plaintiff did not have any health problems. He was aware of her work-related wrist injuries. However, at the day of the accident he viewed the plaintiff as being a healthy happy person.
He said after they returned home it was apparent that she was in pain, and was confined to the lounge where she “would just try and lay on it, sit on it, just not move around much”. Because of this he was obliged to do extra things around the house. He said it did require him to do slightly more in and around the household duties.
He said that he had observed her crying because of her pain following the accident. He was then asked:
"QDoes Corinna do work around the house now.
AYes, definitely.
QIs there anything that she did before the accident that you see that she doesn’t attempt now.
AIn the way of housework?
QYes.
AMaybe anything above - difficult to get to she wouldn’t attempt.
QYou’re talking about height there, are you.
AHeight or something that is low down in a corner or behind the couch, or something like that.
QHave you driven with Ms Matthews since the motor vehicle accident.
AYes.
QWhen you’ve been driving has anything occurred which is different.
AYes, she was definitely scared of going. Would not go down that stretch of road for years and also very scared of trucks, to the point that she would actually pull over and stop.”
In cross-examination Mr Vandermeer confirmed her wrist injury and that she always takes steps not to aggravate that problem.
He was then asked:
"QCertainly don’t mean to be rude but Ms Matthews is a large girl and obviously in terms of her current presentation probably has some issues in relation to her weight. Is that something you’ve discussed with her.
AYes.
QAnd am I right that her weight has been something that has always, even when you first started going out with her, been something that she needed to be quite conscious of.
AMaybe conscious of, but she didn’t have to worry about her weight at the time when we first met.”
DR LEONELLO
Dr Leonello is an experienced general physician. He has examined the plaintiff and reported on his observations of these examinations in April 2000 and August 2003. His letters of report outline the information he obtained from the plaintiff about her background and her employment and the pain suffered from this accident.
In his first report of 9 April 2000 he said:
“IN SUMMARY
I thought your client had suffered repetitive strain injuries to both forearms and wrists, mainly involving the extensor muscles, as a result of her long hours of repetitive typing. As a result of these injuries she has been left with chronic pain and tenderness over the extensor muscles and the lateral epicondyles and wrists in keeping with a chronic regional myofascial pain syndrome resulting from those injuries (at present she does not have signs of tendonitis as she had initially).
As a result of the motor vehicle accident she has suffered musculoligamentous injuries to her neck, the upper back and also in the lumbar spine and as a result of these injuries she has been left with ongoing pain, mainly in the lumbar region, which restricts her activity and which indirectly has caused her to gain further weight and this has further aggravated her low back problem. She was told that the x-rays at the Royal Adelaide Hospital suggested a disc bulge in the lumbar spine and this could be further clarified by other imaging modalities such as a CT scan of the lumbar spine.”
However, he believed that at that time her condition had largely stabilised and then said:
“5.Your client I think has been left with some permanent incapacity which I would estimate as follows: -
(a)About 10% loss of function in the left arm.
(b)About 5% loss of function in the right arm.
(c)About 5% loss of function of the dorsal spine.
(d)About 15% loss of function in the lumbar spine.
I did not obtain a history of vertigo and I cannot comment of any percentage loss of total bodily function in respect to vertigo.
6.Your client is not totally incapacitated for work due to her work injuries. I think she would be able to cope with light duties or duties not requiring the repetitive use or straining of her hand and forearm muscles and joints.
7.Your client is also partly incapacitated for work as a result of the motor vehicle accident injuries but not solely due to these injuries. I think she would be able to cope with work not requiring any repetitive bending or heavy lifting or working with her arms above shoulder level.
8.In early 1999 your client was still suffering from widespread body pains as a result of the motor vehicle accident injuries and also from persisting wrist and arm pains as a result of her work injuries. I think she would have been incapacitated for work including light duties mainly as a result of the motor vehicle accident injuries.
9.I think your client could perform light duties such as clerical work, answering the phone and typing for short periods of time at her own pace.”
In his further letter of 12 August 2003 Dr Leonello said:
“6.Your client’s condition has stabilised nearly five years after the motor vehicle accident. There has been some general improvement in the last three years since I last saw her and I would now estimate her residual disability as a result of the injuries she suffered in the motor vehicle accident as follows: -
(a)About 5% loss of function in the cervical spine.
(b)About 5% loss of function in the dorsal spine.
(c) About 10% loss of function in the lumbar spine.”

Dr Leonello said he was not surprised that the plaintiff had sought medical advice about her back prior to this motor vehicle accident. He felt this was because of her weight, which he thought was 150 kilograms at the time, and this would place considerable strain on her lumbar spine. He said he would not have been surprised that a person of this weight had experienced some problems with her lower back.
He was then asked:
"QIn this matter, for example, whether it is the case that the motor vehicle accident aggravated a pre-existing condition or brought forward a condition that was likely to become symptomatic at some stage in the future, much of that would depend on what she told you and how accurate her history was about her symptoms in the past; is that a fair comment.
AYes. I think, as doctors, we are guided by what patients tell us.
QThis isn’t a matter in which she’s had some episodes of low back pain four or five years prior to the motor vehicle accident. It would appear that, in the 18 months before the accident, there were three episodes of some low back pain. Do you agree with me that, from your point of view, when you are looking at the issue of causation and whether she may have had some problems anyway, that would be an important history, firstly, to get from her and, secondly, to investigate; is that a fair comment.
AYes.
QAssuming that what I’ve put to you is correct about these attendances - again, please don’t misunderstand I am trying to dress them up into anything significant, they are as I have described - it may be that they are an indication of the lady starting to develop or starting to have the onset of low back pain relating to her size.
AI think that’s a fair comment.
QThat is not to suggest, of course, that the motor vehicle accident did not play a role in her symptoms, but it may not be the case that the motor vehicle accident is the ongoing cause of those symptoms or the sole cause of those symptoms.
AYes. I think there is a predisposition to relatively more risk of problems of the lower back were she to have an accident as she did, yes.
....
QIt may be, for example, that the motor vehicle accident caused some soft tissue injuries to the low back that might have generally resolved within a period of six months to a year, and that thereafter the perpetuation of the symptoms related to her weight problem, or the stress upon her that related to her weight; do you accept that.
AYes, I accept that the excessive weight is a contributing factor to lower back pain.”
Dr Leonello agreed the plaintiff had informed him that she had put on weight following the accident.
Dr Leonello was directed to the report of Mr Fry when he had reported following his examination of the plaintiff in March 2000:
“The back and neck these days simply caused ‘very intermittent’ symptoms, and she considered that she was fit for work at Palios Meegan and Nicholson if it were not for her ongoing wrist problems.”
Dr Leonello said that he believed that she had informed him that her back pain was a way of life and she had grown accustomed to it, but from his history it was not clear whether it was more the back or the wrist that was her major problem -
“.... but from the history Mr Fry obtained, it seems to be mainly the wrist that stopped her from working”.
He was then asked:
"QPerhaps I will do it this way: if I put it to you simply as a proposition for you to comment on as to whether that was consistent or inconsistent or you were willing to accept a description of her condition in March 2000, which is about the same time you saw her, that the back and neck at about that time simply caused ‘very intermittent’ symptoms and that the plaintiff considered that she was fit to work at Palios Meegan if it wasn’t for her wrist problem.
AYes, I would agree with that, because working in a legal firm involves a lot of typing which probably affects her wrist more than the lower back.”
Dr Leonello agreed that in his report he had noted that she had a full range of movement in her cervical spine, but some tenderness and that was consistent with his findings. However, he explained the small percentages that he had finally arrived at based on his observations and examination of her. He had to agree that the recurrence of symptoms might well be associated with her size and weight. He said that the size was a stress in the lower back, but not so much the neck.
He was then asked:
"QCan I suggest, perhaps again bearing in mind in March 2000 when you examined her, she had no problems with the range of movement to her neck and she had no disability to her neck, she now an a disability to her neck. It is likely to be something that has subsequently developed, either through stress at work or the degenerative onset in relation to her problems with her weight and size. That is more likely then other problems, isn’t it.
AYes.”
DR JOHNSON NG
Plaintiff’s counsel tendered by consent a number of reports from the general practitioner, Dr Ng. These reports were dated 29 October 1998, 13 October 1998, 19 November 1998, 6 July 1999, 9 March 2000 and 14 July 2003. Clearly Dr Ng has treated the plaintiff over a long period together with other referring surgeons.
He confirmed that she had been seen by his surgery on 19 October 1998 and he subsequently attended her on 24 October 1998. By November 1998 he said that he viewed her as unlikely to be left with a permanent residual disability, but her condition had not stabilised.
Dr Ng had also been involved with the work-related injury at this time. In his letter of report to the solicitors of 6 July 1999 he pointed out that as her lower back pain had not settled he had referred her to an orthopaedic specialist and a CT scan was then done which reported no significant pathology apart from a small disc bulge at the L4-5 level and commented, “this is unlikely to have any major significance”. He then went on in that letter or report as follows:
“On reviewing her on 1/7/99, she reported that her symptom has been settling, with some lower back ache on and off only. Her neck and back movements were full range with good general mobility. Due to her incapacities from her MVA injury, she was unable to return to work till 30/6/99, but would have the capacity to restart her rehab. program from her work injury as from 1/7/99. Long term residue incapacity to her neck and back is unlikely at this point of time.”
In his letter of 9 March 2000 he reported that “her inability to return to work was a cumulative effect of partial incapacity from work related and MVA injuries and otherwise, she would have some form of capacity for work as a result of her MVA".
In the letter of report of 14 July 2003, Dr Ng commented:
“20.9.99
· said been well, no symptoms of neck and back with daily activities. No problems with wrists and arms as had not returned to work with typing. Examination showed good general mobility, neck and back full movement range painless. Could bend to reach ankle level. No positive findings on both forearms. Not on any specific treatment for motor vehicle accident or arm injuries.”
He then commented in the remainder of that letter:
“Reviewing her progress, it seems to me her symptoms of neck and back pain had been intermittent and generally related to repetitive bending and long sitting, depending on her employment status. She feels prolonged sitting and desk work was more obviously aggravating her symptoms. I am not aware of her current social and sporting lifestyle.
It is now about 5 years since her motor vehicle accident and generally soft tissue injuries should have settled. She had reported no symptoms back in September 1999 while not working and then her symptoms reappeared when she returned to work in late 1999.”
MR FRY
The defendant made Mr Fry available for cross-examination.
Mr Fry confirmed that he saw the plaintiff on 23 March 2000 and subsequently reported to CGU Workers’ Insurance on the results of that examination. Mr Fry in his letter of report dated 19 April 2000 set out in detail matters which had been advised to him of the plaintiff and then answered a number of questions, which had been posed to him by the insurer.
In that letter was his comment “the back and neck these days simply caused ‘very intermittent’ symptoms, and she considered that she was fit for work at Palios Meegan and Nicholson if it were not for her ongoing wrist problems”.
In answering the questions he said in that letter:
“3.I could see no evidence of factors other than the work related incident having contributed to the disability (on the history as it was given to me), and specifically nothing outside her work, again according to the history. The motor accident appears to have had no ill-effect whatsoever in that area. There are still some residual effects in the neck and back that have been caused by the motor accident, but according to her account these were now minimal, and intermittent also. There also did not appear to be any present contribution from the motor accident effects towards any incapacity for work.
4.Ms Matthews considers herself unfit for normal duties, by which I understood unrestricted typing. Given the general history of events to date and the amount of time that has now elapsed this seems unlikely to alter.
5.The basic condition causing the incapacity appears to be pain in both wrists, more so the left.”
Mr Fry at the request of plaintiff’s counsel produced a letter of instructions he had received. A number of questions had been posed and the insurer had given him certain information. Mr Fry said he really could not remember the details of his examination, but agreed that his letter of report was a paraphrase of his discussions with the plaintiff. He produced his notes that, indeed, confirmed the matters as set out in his formal letter of report.
Some factual matters were put to him, which had been placed before him in the letter of instruction, and he simply said:
“Well I probably did, but to be truthful I didn’t pay much attention to it because it was of little relevance actually.”
Mr Fry is an experienced orthopaedic surgeon and I accept he would rely on his own examination in coming to any conclusions expressed in his letter of report. Mr Fry was asked many questions about the nature of the factual material and replied always in a similar manner that that would not have affected his opinion and indeed reiterated that the matters as set out in his letter of report would have been a paraphrase of the plaintiff’s answers to his questions and her volunteered statements.
I have little doubt in accepting that that was the position.
FINDINGS
I have some reservations with some areas of the plaintiff’s evidence. I believe that since this accident she has been focussing on the nature of the accident related injuries and tending, and it may well be unconsciously, to attribute all of her back pain solely to the accident and exaggerating those problems. There was an issue made of her netball activities. After cross-examination it was apparent that these activities had stopped prior to the motor vehicle accident. Clearly the plaintiff had suffered her serious work-related wrist injury prior to this accident and ongoing after the road accident.
The plaintiff’s statements to Mr Fry in March 2000 I believe were accurate when she said that her back and neck pain were “very intermittent”. I accept that the plaintiff advised Mr Fry exactly in this manner. In this period of employment here wrist problems were present. However, I accept that by early 2000 she considered herself fit for work, but for her residual wrist problem.
In cross-examination Dr Leonello made a number of concessions and it must be seen as qualification of his letters of report (see page 83 and 85 of the transcript) and agreed that by March 2000 the plaintiff really had no problems with her range of movement in her neck and agreed with the suggestion that:
“It is likely to be something that has subsequently developed, either through stress at work or the degenerative onset in relation to her problems with her weight and size. That is more likely than other problems, isn’t it.”
And answered “yes”.
Unfortunately, the plaintiff has had weight difficulties which have affected her lower back and I believe reflect her attendances in 1997 and 1998 upon her general practitioner. It may well be that the accident aggravated those problems which to some extent will always be an issue related to her weight. However, in view of the medical evidence a finding has to be that by late in 2000 the plaintiff had recovered from the soft tissue injuries that arose from the motor vehicle accident and/or the effects so minimal so as not to cause her any difficulties at work or in her social life.
The evidence suggests that in the motor vehicle accident the plaintiff sustained a soft tissue injury to her neck and back and she had recovered from those injuries in the above-mentioned period. Certainly by early 2000 any residual effects were very intermittent and minimal.
ASSESSMENT OF DAMAGES
Non-economic loss
The plaintiff has admitted receiving non-economic loss benefits from her worker’s compensation wrist injury. One has to ensure that there is no double compensation (Manser v Spry (1994) 181 CLR 428).
At the time of this accident the plaintiff’s wrist problems were ongoing. However, I consider the effects of the soft tissue injury were present for several years and were to some extent aggravated by her employment in 1999 and 2000.
II all the circumstances, I propose to fix the numeral 5. The multiplier for accidents occurring in this time is 1,560, thus giving a total for non-economic loss of $7,800.
Past economic loss
The plaintiff admitted that she had received income maintenance payments by reason of her work injury up to the commencement of her employment at Total Business Solutions in September 1999 and worked for them until November 1999. She was unemployed from that month until May 2000 when she commenced her employment with Link Telecommunications. The plaintiff left this employment later in that year and worked at Pizza Haven from 14 September 2000 to 25 November 2000. She was then unemployed until January 2001 when she commenced work for her current employer, Stellar Call Centre.
If it were not for her wrist injury the plaintiff would have had a significant past economic loss claim. However, in that initial twelve-month period following the motor vehicle accident when no doubt her soft tissue injuries were ongoing and restricting her movement she was in receipt of income maintenance payments.
The soft tissue injuries were to some extent present in her initial period of employment at Total Business Solutions and ongoing for approximately a six-month period of unemployment from November 1999 to May 2000. Consequently this must be reflected in her pas economic loss award.
I would not view her entitlement past this period. In all the circumstances I propose to make a lump sum award of $6.000.
Future Economic Loss
My findings are that the plaintiff had essentially recovered from the effect of these soft tissue injuries by mid-2000. I believe such a finding by not only her successful studies, but also her work history. The plaintiff had some minimal back pain sufficient to seek medical advice shortly before the motor vehicle accident and it may well be because of her weight problems this may reoccur. However, these findings all mean that there is insufficient material before me to establish a future economic loss.
Interest on Past Economic Loss
I allow a lump sum figure of $1,200.
Special Damages
The amount of $119.60 is still outstanding.
Voluntary Services
Mr Vandermeer, the plaintiff’s defacto partner, was clearly involved in the care of the plaintiff immediately following the motor vehicle accident. The combination of her wrist and soft tissue back injury meant she was disabled in certainly the twelve-month period following the motor vehicle accident. However, he does not fall within the description of spouse, nor would be so qualify under the Family Relationships Act 1977 until 2003 as his cohabitation with the plaintiff commenced in April 1998.
Accordingly I cannot make any award under this head of damage.
The position of this award is as follows:

Non-economic loss - numeral 5 $7,800.00

Past economic loss 6,000.00

Interest on past economic loss 1,200.00

Special damages 119.60

Total

$15,119.60

There will be judgment for the plaintiff in the sum of $15,119.60.
I will hear the parties on the question of costs.

Non-economic loss - numeral 5	$7,800.00
Past economic loss	6,000.00
Interest on past economic loss	1,200.00
Special damages	119.60
Total	$15,119.60

[2004] SADC 58

7 April 2004