Mcgeachie v Collier No. DCCIV-99-19

[2000] SADC 129

McGEACHIE V COLLIER
[2000] SADC 129

Judge Noblet
Civil

Claim and Defence

1. The plaintiff claims damages against the defendant for personal injuries arising from a motor vehicle accident.  The plaintiff was driving her motor vehicle along Alexander Kelly Drive at Noarlunga when the defendant, whose vehicle had been parked on the left hand side of that Drive, commenced a u-turn directly in her path and collided with her vehicle.  The matter came before me for assessment of damages only, the parties having agreed that the plaintiff should have 95% of her damages. 

2. The plaintiff claims to have suffered pain from a disability and restriction of movement, shock, nervousness, anxiety, irritability, depression and post traumatic stress disorder.  She further claims that, since the injuries were sustained, she has been unable to work as a para-medical nurse and, subsequently, as a registered nurse; she has incurred medical and other expenses; she has suffered a loss of earning capacity and a loss of superannuation benefits; and she has had to rely on the gratuitous services of members of her family to perform personal and domestic duties.

3. In his defence, the defendant does not admit that the plaintiff sustained injury, loss and damage and claims that:

   ·.. Any soft tissue injuries have resolved leaving the plaintiff with no disability or, in the alternative, a partial disability only;

   ·.. If the plaintiff has a right shoulder injury, then this was sustained in 1986 in her previous employment and any alleged right shoulder injury as a consequence of the subject accident is an aggravation of that pre-existing condition and the plaintiff has been restored to her pre-accident condition;

   ·.. Any operative treatment to the plaintiff’s right shoulder would have been required notwithstanding the subject accident;

   ·.. The plaintiff has not suffered from post traumatic stress disorder, but if she has suffered from any psychological injury, then this is a consequence of socio-economic factors unrelated to the subject accident including the following:

   ·.. Her husband’s ill health;

   ·.. Problems with her children, which generated stress, nervousness, anxiety, irritability and depression;

   ·.. Financial problems;

   ·.. A marital breakdown;

   ·.. Panic attacks prior to the subject accident, requiring medication and medical supervision for psychological complaints prior to the accident;

   ·.. Living in rented accommodation isolated from her children and divorced husband. 

4. The defendant also claims that:

   ·.. The plaintiff received Worker’s Compensation payments for previous work injuries in relation to her back and right shoulder, including amounts for future treatment;

   ·.. The plaintiff has received excessive medical treatment or, in the alternative, the medical treatment received has not been solely attributable to alleged injuries from the subject accident;

   ·.. The plaintiff is not entitled to interest as she received lost wage benefits through personal insurance policies for a two year period after the accident and then returned to work, and any entitlement to interest is restricted to the difference between her earnings (notwithstanding the subject accident) and benefits received. 

5. In her reply, the plaintiff admits that she had a previous work injury to her right lateral neck and subsequently to the lower back for which she received Worker’s Compensation payments with complete resolution of those injuries, but she otherwise denies the claims made by the defendant.

Relevant Chronology

1. The plaintiff was born on 9 January 1954 in Scotland.  She migrated to Australia with her husband and two children in May 1981.  She obtained employment in Adelaide with Rainsford Metal Products, wiring fluorescent lights for a few hours at night.  She continued with that job for about six months and then obtained full time employment as a quality control inspector for about eight months.  In 1982 she obtained employment with Sola Optical, working on the production line, and was later promoted to a quality control inspector.  She suffered a repetitive strain injury to the right side of her neck in the course of her employment with Sola Optical.  She was unable to continue the same work and no other work was available.  A settlement was reached, as a result of which her employment was terminated and she was paid some monetary compensation.  She was then out of work for about one and a half years.

2. She then obtained some part-time employment for a few months doing promotions work and then did some voluntary work at the Perry Park Nursing Home at Port Noarlunga. 

3. In August 1987 she commenced work as a paramedical aide with Southern Domiciliary Care on a casual basis.  In 1989, her work with Southern Domiciliary Care became permanent for 50 hours per fortnight.  This work continued for several years, apart from the previous six months when the plaintiff undertook full time studies to obtain a paramedical aide certificate.  In about 1992 or 1993, the plaintiff began working at Perry Park Nursing Home as well as working with Southern Domiciliary Care.  The object was to work under the supervision of a registered nurse so as to obtain qualifications as an enrolled nurse herself.  Then in 1994 she began studying for a nursing degree at Flinders University while still working 50 hours per fortnight with Southern Domiciliary Care.  The degree course was three years full time. 

4. The subject accident occurred on 31 January 1996.  The plaintiff was not able to continue with the third year of her nursing degree in 1996 because of the accident.  However, she was able to complete the degree in 1997.  In September 1997, she returned to work at Southern Domiciliary Care on a work hardening programme.  In January 1998, the plaintiff was registered as a registered nurse with restrictions that she practice only within the limits prescribed by her treating medical officer. 

5. In February 1998, the plaintiff was seconded from Southern Domiciliary Care to undertake a temporary full-time position as a service coordinator with “Health Plus”.  This work continued for two years. 

6. At the end of her time with “Health Plus”, the plaintiff took three weeks annual leave and then managed to obtain a temporary position with Southern Domiciliary Care as a self management contact person for seven weeks.  At the end of the seven weeks, Southern Domiciliary Care said that they had no other positions available for her.  She took the remainder of her accrued annual leave (four weeks) and five weeks of her long service leave.  On 26 June 2000, the plaintiff was offered temporary employment with Southern Domiciliary Care as a client liaison officer for four months.  After only one week in this job, and two days before the trial in these proceedings was due to commence, her employer found that “she does not have the capacity to perform the full-time duties of this temporary position” (exhibit P11). 

Soft Tissue Injuries (Spine)

1. Dr Youssef is a qualified rheumatologist and also has a PhD in Medicine.  Rheumatology concerns itself with all aspects of musculo-ligamentous skeletal disease.  His report and evidence were particularly important because he examined the plaintiff in November 1995, about two months before the accident, when she was complaining of low back pain.  The plaintiff told Dr Youssef that she had been experiencing low back pain for about 18 months and it occasionally woke her at night.  The pain was mainly in the thoraco-lumbar spine.  She had to be very careful with lifting and hoisting, although the pain did not stop her from working.  On examination, he found point tenderness over a number of the thoracic vertebrae and marked paraspinal tenderness, especially on the right, associated with spasm.  He also noted that the plaintiff told him she had had neck pain for many years.  In his report, he referred to this as “intermittent neck pain” that was associated with her thoraco-lumbar pain.

2. Dr North practices as a neurosurgeon.  He saw the plaintiff on 11 April 1996, just over two months after the accident.  The plaintiff told him that immediately after the accident she felt “okay” but later developed a stiff back, interscapular pain, neck pain and headaches.  On examination, Dr North found mild restriction of neck movement and some tenderness in the right trapezius.  Examination of the lumbar spine was normal.  X-rays taken on 18 March 1996 showed no abnormality.  Dr North’s diagnosis was that the plaintiff sustained soft tissue sprains of the cervico- scapular area and thoracic area, that her long term outlook was excellent and a full recovery was expected, but it was difficult to predict when the recovery would occur and that there should be no permanent residual disability in the long term.

3. Dr Bastian is a consultant in rehabilitation medicine.  He first saw the plaintiff on 9 September 1996.  He said that she presented to him with ongoing pains in the right shoulder girdle, thoraco-lumbar spine and left elbow as a result of her motor vehicle accident in January 1996.  She complained of ongoing aching pain in the central and right lower thoracic/upper lumbar region.  She told Dr Bastian that the thoraco-lumbar back pain was aggravated by sitting for more than five minutes, static standing for more than fifteen minutes, driving and walking.  Dr Bastian said that she was tender over majority of the thoracic spine even to light palpitation.  He said that touching the skin without really applying any pressure to the thoracic spine would not normally cause pain.  However, he said that on examining her in more detail he was able to find some areas of more marked tenderness from T1-T4 and around T10-L1.

4. Dr Champion is a consultant physician and rheumatologist.  He saw the plaintiff on 20 October 1996 while she was an inpatient at Ashford Hospital.  He subsequently saw her on 21, 22 and 23 October 1996.  His examination of the thoracic spine revealed that the plaintiff was quite tender in the mid thoracic region and also in the left side of the chest over the second and third costo-chondral junctions.  X-rays were noted to reveal a mild scoliosis, but no other abnormality.  A CT scan of the thoracic spine revealed posterior intracanalicular calcification.  Dr Champion obtained a neurosurgical opinion from Dr Cindy Molloy, whose opinion was that the calcification was not causing any symptoms and it would have been present long before January 1996.  In his report, Dr Champion said:

   “I am not of the opinion that the motor vehicle accident caused or materially contributed to the onset/development of the condition, as there was clear evidence that your client had symptoms in the thoracic spine predating the motor vehicle accident.  There may have been a worsening of her symptoms from the motor vehicle accident, but with the general nature of soft tissue damage or injury .... one would expect such a condition to settle in a matter of weeks.”

5. Dr Blight is a rehabilitation physician.  She saw the plaintiff in April, May and July of 1997, in January and June of 1998 and on 13 April 2000.  In her opinion, the problems that the plaintiff had with her back “may or may not have been there previously” but she believed that there had been some aggravation of her back pain as a result of the motor vehicle accident.  She said that an aggravation of a previous injury will settle down over time but it would make the plaintiff more susceptible to recurrence.  She noted that the radiological evidence supported a slight posterior subluxation of the cervical spine, indicating some instability.  She conceded that it was possible that there had been some subluxation or ligamentous damage to the cervical spine prior to the motor vehicle accident. 

6. Dr Osti is a specialist in orthopaedic and spinal surgery.  He examined the plaintiff on 2 July 1997, 21 August 1997 and 23 June 2000.   He said that the plaintiff presented to him with a history of right shoulder pain and mid thoracic discomfort.  Curiously, she does not seem to have complained about her neck pain and Dr Osti’s assessment was that the plaintiff’s musculo-skeletal conditions were in keeping with “mild impingement of the right shoulder compounded by apophyseal joint irritation stemming from the mid and lower cervical spine”.  He originally expressed the view that her disability was related to the effects of the injuries sustained in the motor vehicle accident in February 1996.  However, he changed his view when he became aware that there had been a pre-existing disability effecting the thoracic spine.  Having seen the other medical reports, particularly that of Dr Champion, Dr Osti expressed the view that “the accident would have aggravated her pre-existing thoracic disability, although that disability had been present prior to the accident”.  On the basis of the radiological reports, Dr Osti was not able to support a traumatic link between the calcification in the spine and the accident. 

7. Dr Jose was, at the relevant time, an orthopaedic surgeon.  He saw the plaintiff on 24 November 1997.  He had access to all the reports that had been prepared up to that time.  In his view it was very unlikely that the calcification in the plaintiff’s spine would have been caused by the accident.  He agreed with Dr Youssef and Dr Champion that the thoracic symptoms preceded the accident.  Dr Jose considered that the plaintiff would probably have some permanent residual disability relative to soft tissue neck straining as well as perhaps soft tissue straining in the thoracic area, but he believed there would be further improvement in time.  

8. Dr Drew is a medical practitioner who specialises in occupational medicine.  He first saw the plaintiff on 7 May 1998 and then on many other occasions during that year.  He last saw the plaintiff on 17 May 2000.  She complained then that her neck “clicks” continuously and is always tight and stiff, that she continued to have pain in her thoracic spine when either sitting or standing, and that she had some lumbar pain with prolonged standing.  Dr Drew did not consider that her condition would improve significantly in the future.  He considered that the plaintiff was only fit for light sedentary duties and would not be employable as a nurse in any clinical capacity.  He considered that she had a permanent disability of 20% in the cervical spine and 25% in the thoracic spine. 

9. Mr Annells is a manipulative physiotherapist.  He first saw the plaintiff on 12 January 1999, three years after the accident.  His initial attention was directed to the plaintiff’s shoulder joint.  Later it became obvious to him that he would have to work on her cervical and thoracic spine as well because these areas function inter-actively with the shoulder joint.  His prognosis was then that the plaintiff would have ongoing neck pain, upper back pain, headaches and limited right shoulder use and she would have to contend with chronic pain and disability affecting all facets of her life. 

Shoulder Injury

1. Dr North said that the plaintiff’s complaints to him included right shoulder pain and interscapular pain (pain between the shoulder blades in the middle of the back).  However, on examination he found that her shoulders were normal. 

2. Dr Bastian said that the plaintiff reported to him in September 1996 that the day after the motor vehicle accident she awoke with considerable pain around the right superior shoulder and scapula region.  However, she said that it improved 50 - 60% after some physical therapy intervention.  By September 1996, she described the shoulder pain as intermittent.  Examination revealed a slight loss of active abduction and extension on the right shoulder as compared to the left.  Right shoulder impingement signs were negative.  Dr Bastian saw the plaintiff again in October 1996 after she had undertaken some physiotherapy/hydrotherapy.  She said  she was feeling 30% better in relation to her right shoulder. 

3. When Dr Champion saw the plaintiff in October 1996, he took a history from her but he had no note of her complaining about pain in her right shoulder.  If she had complained of this, he would have asked her to elaborate on the history of her shoulder pain and would then have extended his examination to the shoulder to ascertain the pattern of the symptom of which she complained.  He said that if the plaintiff was experiencing impingement in the right shoulder in October 1996, he would have expected her to complain to him about it and he would have made a note of it.  He also said that he considered it highly unlikely that trauma to the shoulder in a motor vehicle accident would cause impingement.  He said that impingement is “not a condition of direct trauma.  It is a condition of aging, it is a condition of wear and tear on the tendons, it is a condition of overuse”.

4. When Dr Blight saw the plaintiff on 16 June 1998 she complained of continuing pain in her right shoulder.  It seems that Dr Blight did not pay much attention to this because she was told that the plaintiff’s local doctor had referred her to an orthopaedic surgeon for an opinion in relation to the shoulder.  When Dr Blight reviewed her in April 2000, the plaintiff said that she still had pain in her right shoulder and up into her neck, with associated headaches.  An MRI of the right shoulder on 22 May 2000 reported that there was “some irregularity of the undersurface of the anterior aspect of the supra spinatus tendon, raising the possibility of either a partial tendon tear or tendon degeneration”.

5. When Dr Osti saw the plaintiff in July and August 1997 he said that she presented with a history of right shoulder pain.  His assessment of this was “mild impingement of the right shoulder”.  He infiltrated the plaintiff’s right subacromial space with cortisone and local anaesthetic and advised her to perform self-mobilisation and muscle strengthening exercises.  Dr Osti saw the plaintiff again on 23 June 2000.  He noted the contents of the MRI scan arranged by Dr Blight.  He was asked when he gave evidence whether, if the shoulder impingement was caused by the motor vehicle accident, he would expect that condition to be revealed by an appropriate clinical examination a month or so after the accident.  In response, Dr Osti explained that impingement was a degenerative condition rather than one caused by trauma.  He said that if there had been months of delay between the accident and the onset of the symptoms, one would be justified in challenging the relationship between the condition and the accident.  He said that impingement is a condition that does not require an accident.  In fact, most people seeking medical advice for impingement of a shoulder cannot quote any specific single external trauma to the shoulder.  He went on to say that in the absence of any specific complaints about the shoulder for a month or more after the accident, there would be reason to cast some doubt regarding the relationship between the shoulder and the motor vehicle accident.  However, if the plaintiff had no pain in her shoulder before the accident and, after the accident, she developed pain in the shoulder she had never had before and complained about the pain in the shoulder relatively shortly afterwards, then whatever the anatomical basis for the pain may have been, it would be fair to say that the pain was triggered by the accident although it could either be a psychological thing or due to inflammation of the tendon because it was stretched or because the accident caused a tear or irregularity in the tendon that led to the onset of symptoms.  In the end, Dr Osti said that he believed, on the basis of his assessment and knowledge of the plaintiff’s presentation, her shoulder disability was related to the accident because he saw no other reason for her to have developed this shoulder disability apart from the accident.

6. In his report dated 24 November 1997, Dr Jose says that the plaintiff told him that her shoulder was painful and was aggravated by driving a motor vehicle, hanging clothes, vacuuming etc.  On examination of the right shoulder, Dr Jose found difficulty in achieving full flexion over the last 20 degrees or so and he noted that when coming down from that position there was a slight catch associated with an abnormal scapulo-humeral rhythm.  External and internal rotations were slightly painful at the extreme but not grossly restricted.  He thought there was no definite impingement at the time of his examination.  He seemed reluctant to indicate any likely prognosis in relation to the right shoulder and he expressed some surprise that the plaintiff had not been referred to an orthopaedic surgeon who specialised in shoulders.  During his evidence in court, Dr Jose expressed the view that there was no impingement in the area of the right shoulder but there were signs that she might have had a subdeltoid bursitis.  He was “extremely doubtful” that the bursitis was related to the motor vehicle accident in January 1996.  He considered that if the plaintiff had had a significant injury to her right shoulder, he would have expected it to be present on examination on the day of the accident or within 24 or 48 hours afterwards.  He considered that a shoulder injury in a motor vehicle accident was most likely to be due to the restraint of the seat belt and, when this is the case, the pain manifests itself soon afterwards and there is restriction of shoulder movement.  Dr Jose noted that when Dr North examined the patient on 11 April 1996, his examination of the shoulders was normal but there was some tenderness in the right trapezius.  Dr Jose said that this is an acute muscular strain which commonly occurs in a car accident when a seat belt is worn.  Dr Jose considered that, on his reading of the other medical reports, the plaintiff’s bursitis in the right shoulder area, which he said was usually the result of a repetitive strain injury, probably occurred in about mid 1997. 

1. In his report dated 30 September 1998, Dr Drew noted that the plaintiff had aching pain in her right shoulder extending into the upper arm and aggravated by abduction and flexion.  An x-ray of the shoulder was unremarkable, but ultrasound showed thickening of the sub-deltoid bursa and bunching up with abduction.  Range of movement was close to normal, although stiff and jerking with suggestion of intermittent impingement.  He suggested a permanent disability of 10% in the right shoulder.  In July 2000, Dr Drew noted that movement in the right shoulder was mildly restricted in all directions, but mainly at the end of the range.

2. Dr Mah saw the plaintiff on referral from Dr Drew in relation mainly to her right shoulder problems.  When he saw the plaintiff in June 1998, she complained of persistent pain in her right shoulder with any overhead activity, indicating shoulder impingement.  There was also pain in her right scapula musculature, radiating from the shoulder to her right elbow and occasionally the forearm.  Dr Mah gave her a second injection in her right shoulder and referred her to a physiotherapist.  In a further report dated 11 December 1998, Dr Mah said that a recent ultrasound of the right shoulder indicated some degree of shoulder impingement from the bursa onto the CA ligament.  He discussed at some length the possibility of surgery, which he said would help only part of her overall pain syndrome, and the plaintiff agreed to undergo the surgery.  The surgery was undertaken in January 1999.  When Dr Mah saw the plaintiff in December 1999, she reported no catching, impingement, or pain.   However she still experienced occasional pain with some overhead activities.  In March 2000, the plaintiff told Dr Mah that she was experiencing burning pain in her right shoulder.  He referred her for a repeat x-ray and ultrasound.  No bony or joint injury or abnormality was seen in the right shoulder or the right acromioclavicular joints.  There were no features to suggest right subdeltoid bursa or supraspinatus tendon impingement and the right acromioclavicular joint was stable.  Dr Mah referred her to a pain management specialist.  In his evidence, Dr Mah expressed a view that the most likely cause of the problems with the right shoulder was the motor vehicle accident.

3. Mr Annells saw the plaintiff on about 29 occasions for physiotherapy after the surgery performed by Dr Mah.  In May 2000, Mr Annells expressed the view that the plaintiff had made a slow and incomplete recovery from the surgery and that “then there seemed to be a re-aggravation of symptoms in February of this year”.  He then goes on to speak of the consequences of “this most recent event”, but he does not indicate what this event might have been.

Psychiatric Injury

1. Ms Goldsworthy is a psychologist and hypnotherapist.  She first saw the plaintiff in May 1997.  She said the plaintiff presented with symptoms consistent with a diagnosis of post traumatic stress disorder.  She said the symptoms became chronic and included:

   ·.. recurrent dreams of distressing events and situations, including the motor vehicle accident;

   ·.. intense psychological distress when driving a motor vehicle in perceived threatening situations;

   ·.. efforts to avoid driving during peak hours and not wanting to get into her car;

   ·.. markedly diminished interest and participation in significant activities (socialising);

   ·.. a sense of foreshortened future because she does not expect to be able to follow her chosen career path in nursing.

2. She said that the plaintiff also suffers from severe depression and generalised anxiety.  Ms Goldsworthy treated the plaintiff with supportive psychotherapy, cognitive behavioural therapy and hypnosis.  By July 1998, Ms Goldsworthy was of the view that the diagnosis of post traumatic stress disorder no longer applied because the plaintiff no longer experienced recurrent or distressing dreams of the event and was able to socialise appropriately.  The plaintiff was reviewed by Ms Goldsworthy in May 2000.  Her presentation was little different from 13 May 1998 except that the plaintiff was less hopeful about being employed within the nursing profession because of her medical restrictions.   She continued to be anxious and hyper-vigilant  when driving, mildly depressed, and she had some feelings of sadness, irritability, tiredness and difficulty with decision making and motivation.  Ms Goldsworthy’s opinion was that the depressive symptoms were sequelae to chronic neck and shoulder pain and feelings of discouragement relating to her uncertain professional future.  Her psychological prognosis remained guarded because Ms Goldsworthy considered that recovery was dependant upon medical recovery and also upon being meaningfully employed. 

3. Dr Cotton is a psychiatrist.  He saw the plaintiff on 21 November 1997 to undertake her psychiatric assessment and to formulate a report.  He had been given various reports, including one written by Dr Salonikis, the plaintiff’s treating psychiatrist, dated 29 August 1996.  I have not seen that report, and Dr Salonikis was not called to give evidence.  The plaintiff told Dr Cotton that she had asked her general practitioner to refer her to a psychiatrist.  She first saw Dr Salonikis in about July 1996 and continued to see him once per week throughout the rest of 1996 and through until about July 1997 for ongoing counselling, psychotherapy and general psychiatric treatment.  She also told Dr Cotton that she had been under treatment from her general practitioner for anxiety and depression for some eighteen months prior to the accident.  Dr Cotton said that when he saw the plaintiff she was not at all anxious, upset, distressed or depressed, and she showed no thought disorder, disorientation, confusion or perceptual abnormality.  He noted that there were several problems in the plaintiff’s family prior to the motor vehicle accident, particularly her husband’s serious illnesses, which led her to seek help for treatment of panic disorder and anxiety.  It was in this context that she had her motor vehicle accident, and then found two or three months later that her husband had to have major surgery for the removal of his bowel, and that her son was having problems with alcohol and marijuana.  As a combination of all these events, she was referred to Dr Salonikis for psychiatric treatment.  She coped reasonably well with the break-up of her marriage and, as far as her psychiatric problems were concerned, she was relatively asymptomatic by July 1997.  Dr Cotton summarised the position this way in his report dated 24 November 1997:

   “With regard to her emotional state, in my view, her symptoms of post-traumatic stress disorder, anxiety and depression associated with the accident per se have now largely abated, such that, in my view, she is now, from a psychiatric point of view, in much the same psychological state as she was prior to the accident, and she is being treated for symptoms of anxiety and depression reactive to her social and marital problems.

   It is thus my view that, although she had a transitory upsurge in the intensity of her symptoms of anxiety and depression as a result of the accident, this increase in symptomatology responded to the appropriate psychiatric treatment, she was able to be taken off her medication, and now no longer suffers from such an exacerbation.”

4. Dr Cotton said it was difficult to ascertain how long before his examination the plaintiff’s symptoms had finally abated, but he thought that this would have been by the end of 1996.  In making this estimate, he took into account that she had resumed driving her car by mid 1996, and that her nightmares and flashbacks had largely abated by about early 1997.

Excessive Medical Treatment

1. No evidence was called as to the reasonableness of the extent of the plaintiff’s medical treatment and neither counsel addressed on this at the conclusion of the trial.  I am not prepared to make any finding adverse to the plaintiff on this question.

Credibility

1. I believe there were some elements of exaggeration in the plaintiff’s presentation to the medical experts and in her evidence.  But not all of this was deliberate.  I think she wanted to believe that any symptoms of injury that she has experienced since 31 January 1996 must have been the result of the motor vehicle accident and she has convinced herself that this was so.  It is clear from the medical evidence that this is not necessarily the case. 

2. I note that she did not always tell the doctors about her previous physical and psychiatric injuries sustained before the motor vehicle accident.  For example, she completed a form for Dr Osti on which she was required to answer “yes” or “no” to a question “Did you have back pain before the accident”.  Her answer was “no”, which was clearly not true.  It is possible that she interpreted “before the accident” to mean “immediately before the accident”.  However, when she saw Dr Youssef on 2 November 1995, she had been having back pain for 18 months and it is unlikely that this pain would have suddenly ceased during the 90 days before the subject accident.

3. There were also some inconsistencies in the way she presented to the various medical witnesses.  She told Dr Champion that there was blood in her urine immediately following the accident.  None of the other medical witnesses mentioned this, nor is it mentioned in the hospital report.  When she saw Dr Champion in October 1996, she did not complain about shoulder pain, whereas she did so with most of the other doctors.  Her complaint to Dr Drew in May 1998 was much more detailed, and possibly more exaggerated, than her complaints to other doctors.  For example, none of the other doctors who had seen her before May 1998 recorded her telling them that her neck “clicks” continuously and is always tight and stiff. 

4. Despite those comments, I do not regard the evidence of the plaintiff as being completely lacking in credibility.  However, as I have said, there was certainly some exaggeration.  It may be that her psychiatric injury had some bearing on this.  I note that Dr Champion thought that her pain was most likely psychogenic in origin.  Dr Bastian considered that the plaintiff’s problems were compounded by underlying psycho-social factors.   Dr Jose considered that some of her symptoms may have been governed by anxiety.

Findings

1. I am unable to accept the evidence of Dr Drew and Mr Annells.  Their prognoses were far more pessimistic than those of the other doctors.  I am inclined to think that they may have been taken in by some of the exaggerated symptoms given to them by the plaintiff.  As far as the soft tissue injuries are concerned, I prefer the evidence of Doctors North, Champion, Blight, Osti and Jose, although not even these doctors were entirely consistent with each other.  I find that the calcification in the spine was not caused by the motor vehicle accident and was present at least to some extent well before the accident.  I find that the symptoms in the plaintiff’s back resulted from soft tissue strains that were present to some degree before the accident but were aggravated by the accident.  I find that, in the absence of any further trauma after the motor vehicle accident, the soft tissue injuries would have progressively settled down within three years.  I consider that to be a  generous estimate.  If the plaintiff now genuinely has pains in the neck and in the thoracic and lumbar spine, then I am not satisfied  that these were caused or aggravated by the motor vehicle accident.  It is possible, however, as Dr Blight said, that the aggravation in January 1996 of the plaintiff’s previous injury would make her more susceptible to further aggravation.  She is entitled to some compensation for that. 

2. As far as any shoulder injury is concerned, I accept the evidence of Dr North that in April 1996 his examination found that her shoulders were normal.  I accept the evidence of Dr Bastian that in September 1996 he found no signs of impingement in the right shoulder.  I accept the evidence of Dr Champion that an impingement in the shoulder is not something that arises from direct trauma.  I accept the evidence of Dr Jose that he found no definite impingement in November 1997 but that she may have had a subdeltoid bursitis, although he was “extremely doubtful” that this was related to the motor vehicle accident.  I accept the evidence of Dr Mah that in December 1998 there was some degree of shoulder impingement from the bursar onto the CA ligament. 

3. I find that the shoulder pain initially experienced by the plaintiff after the accident was not caused by impingement or by bursitis.  I find that this pain was caused by a muscular strain, probably in the right trapezius, and that the pain from this radiated to the area of the neck.  I find that by about mid 1997, the plaintiff was experiencing additional problems in her right shoulder due to bursitis, which was not caused by the motor vehicle accident.  In reaching these findings I found the evidence of Dr Jose extremely persuasive.  I find that by June 1998 the plaintiff was experiencing clear signs of shoulder impingement but that this did not result from the motor vehicle accident. 

4. I find that the shoulder pain that was attributable to the motor vehicle accident would have cleared up within no more than two years after the accident, and that any shoulder pain occurring or continuing beyond that time was not attributable to the accident.

5. As far as the psychiatric evidence generally is concerned, I prefer the evidence of Dr Cotton to that of Ms Goldsworthy.  In particular, I accept the evidence that the plaintiff had some psychiatric problems before the accident and that some of these were temporarily exacerbated by the accident.  

6. I find that the symptoms similar to those of a post traumatic stress disorder were directly related to the subject accident.  I find that the other symptoms, mainly anxiety and depression, were partly due to the various stressors in her life in 1996 and partly due to the subject accident (although I feel that the plaintiff may well have been able to cope with the stressors if it were not for the added trauma of the accident).  It is impossible to be precise about the period during which the plaintiff’s psychiatric problems may be attributed to the subject accident.  I find that this period was no more than one year. 

7. Of course, the plaintiff is entitled to be compensated for her pain and suffering and loss of amenities of life in the period during which I have found that her injuries were attributable to the accident.

8. Immediately after the accident she felt “uncomfortable all over” and the next day she was “really sore, really stiff and painful”.  For the next few weeks she remained in bed most of the time.  When she walked she felt muscular spasms.  She was unable to do any of the things she would normally do around the house.  The first time she went to have physiotherapy she found she couldn’t lay face down on the bed because it was too painful.  She felt worse after the physiotherapy than she had before.  These symptoms continued for about six months, after which there was some improvement. 

9. At about the same time as the improvement began, she felt the symptoms of depression coming on, including dreaming about car accidents, disturbed sleep patterns, bad temper and becoming easily upset. 

10. By the beginning of 1997 her depression symptoms had improved considerably and there was some further improvement in her other symptoms, although she still had some pain as well as really bad headaches that would sometimes last for three days.  By this time she was able to resume her nursing studies.  Then in 1998 she was able to undertake full-time work as a service coordinator with “Health Plus” for two years.  If there was not further continuing improvement during that time, then I believe there must have been some other intervening factor.  Apart from the shoulder impingement/bursitis, I am unable to identify what further trauma or aggravation may have occurred.  However, I remain convinced that the physical injuries attributable to the subject accident would have settled down by February 1999. 

Non-Economic Loss

1. This is a claim to which section 35a of the Wrongs Act applies.  I must therefore assign a numerical value between 0 and 60 to the plaintiff’s non-economic loss by comparing the plaintiff’s loss to the worst possible case.  The selected number must then be multiplied by the “prescribed amount”, which the parties agree to be $1520.  The amount determined by this progress includes both past and future loss and does not bear interest. 

2. I assess the plaintiff’s pain and suffering and loss of amenities of life on the basis of some soft tissue injuries in her neck and back, some pain in her shoulder and some psychiatric illness with symptoms similar to those of a post traumatic stress disorder.  The physical injuries, to the extent that they were caused by the motor vehicle accident, progressively abated over a period of time, as I have mentioned in my earlier findings.  The psychiatric illness had ceased to be of any significance after about one year, although the improvement may have been more sudden than the gradual and progressive improvement of her physical injuries.  I take into account that some of the plaintiff’s subsequent pain and suffering may have had some indirect connection with the motor vehicle accident because her injuries would have made her susceptible to further aggravation. 

3. I assign the number 8 to the plaintiff’s total non-economic loss which, when reduced to 95%, produces an award of $11,552. 

Economic Loss - Earning Capacity

1. The plaintiff is entitled to be compensated for any past loss of earnings, and for any future loss of earning capacity, to the extent that the loss is attributable to the subject accident.

2. As to her past loss, I accept that she should be compensated for the period between 31 January 1996 and February 1998 when she began her full time employment as a service coordinator with “Health Plus”.  She did do some work for Southern Domiciliary Care between September 1997 and February 1998 on a work hardening program but, as I understand it, she was not paid for this work; during this period she continued to be paid from her personal insurance policy. 

3. During the period from 2 February 1998 to 7 July 1999, when the plaintiff was working with “Health Plus”, she was paid the same salary as a registered nurse.  She therefore does not claim any compensation for that period.

4. On 10 January 1999, the plaintiff took some of her available annual leave to undergo surgery for the impingement in her shoulder.  As I have found that the impingement was not attributable to the subject accident, the plaintiff is not entitled to compensation for her inability to work because of the surgery.  Nor is she entitled to any compensation for any economic loss sustained after 31 January 1999, because I have found that any symptoms after that date were not attributable to the subject accident. 

5. For past economic loss I begin with the sum of $64,183.60, being the gross amount agreed that the plaintiff would have earned if she had been able to work between 31 January 1996 and 31 January 1998.  That amount will be repayable to her insurer.   The total award for past economic loss is therefore 95% of $64,183.60, which amounts to $60,974.42. 

6. Counsel for the defendant described the plaintiff as “a dedicated and determined individual, one of strong personality strengths notwithstanding that the labels anxiety and depression can be put on her.  She is articulate, intelligent and ..... has a very high degree of communication and people skills”.  He also said that she has outstanding communication skills.  I agree with those descriptions.  I have no doubt that the plaintiff will manage to find herself some employment in the future, although she may not be able to work as a nurse.  Unfortunately for her, as far as compensation is concerned, the findings I have made prevent me from awarding any compensation for her inability to work in future in her chosen profession, because I am not satisfied that such inability is attributable to the subject accident.

Economic Loss - Medical And Other Expenses

1. The parties have agreed that the defendant has paid special damages accounts totalling $27,410.90 and that the amount of outstanding special damages is $5,404.02.  Subject to adjustments, the plaintiff is entitled to 95 percent of this amount, which is $5,133.82.  The agreed adjustments are:

   ·.. 5 percent credit on the amount already paid by the defendant, which amounts to $1,370.55;

   ·.. a credit of $1,097.90 for amounts paid by the defendant that are agreed to be unrelated to the subject accident.

2. I therefore award, by consent, $2,665.37 for past medical and other expenses.

3. Because of the findings I have made, there can be no award for future medical and other expenses.

Gratuitous Services

1. In the period immediately after the subject accident, the plaintiff was seriously debilitated.  She needed help to get out of bed in the mornings, she could not drive her car and she was unable to do any of  the things that she would normally do around the house.  Her husband helped her as much as he could, but his Crohn’s disease became worse, and in April 1996 he underwent surgery to remove portion of his bowel.  This left the plaintiff and her husband with no-one to carry out the usual household chores and the plaintiff arranged for her mother to come out from Scotland to help out.  Her mother stayed and helped for about two months.

2. There is no doubt that if the plaintiff had not received assistance, initially from her husband and later from her mother, she would have had to pay for others to provide this assistance.  Indeed, as late as November and December 1996, she had to pay for someone to do the necessary work in her garden, because neither she nor her husband were able to do it.  I find, therefore, that this is an appropriate case to make an award of damages for gratuitous services in excess of the amount referred to in section 35a(1)(h) of the Wrongs Act.  I award to the plaintiff the amount of 95% of average weekly earnings ($760.70) for twenty weeks, a total of $14,453.30. 

3. Finally, there is a general adjustment agreed by the parties because of an interim payment of $5,000 made to the plaintiff on 8 January 1999.

4. I award to the plaintiff the sum of $84,645.09 calculated as set out in the following table:

PAST	FUTURE	TOTALS
NON-ECONOMIC LOSS  Wrongs Act s.35a	$11,552.00
ECONOMIC LOSS  Medical and other expenses  Loss of earning capacity	$2,665.37 $60,974.42	NIL NIL	$2,665.37 $60,974.42
GRATUITOUS SERVICES	$14,453.30	NIL	$14,453.30
$89,645.09
LESS ADJUSTMENT	5,000.00
$84,645.09

1. I shall hear counsel as to interest and costs.