McKinnon v Collinge - [2015] WADC 19

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: McKINNON -v- COLLINGE [2015] WADC 19

CORAM: MCCANN DCJ

HEARD: 18-22 & 25-26 AUGUST & 3 NOVEMBER 2014

DELIVERED : 27 FEBRUARY 2015

FILE NO/S: CIV 2007 of 2012

BETWEEN: KATHLEEN McKINNON
Plaintiff
AND
PAMELA GAYE COLLINGE
First defendant
SUSAN McKINNON
Second defendant

Catchwords:

Assessment of damages for personal injury - Motor vehicle accident - Turns on own facts

Legislation:

Motor Vehicle Insurance (Third Party) Act 1943 s 3C(6), s 3D (3), s 3D(5), s 3D(7)

Result:

Damages assessed in the sum of $275,522.89, plus special damages and travel expenses to be determined

Representation:

Counsel:

Plaintiff:     Mr B Nugawela & Mr K H M Wong
First defendant              :     Mr C C Rimmer
Second defendant          :     Mr C C Rimmer

Solicitors:

Plaintiff:     Friedman Lurie Singh & D'Angelo
First defendant              :     Jarman McKenna
Second defendant          :     Jarman McKenna

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

Beer v Duracraft Pty Ltd [2004] WASCA 192
Briginshaw v Briginshaw (1938) 60 CLR 336
Chamberlain v The Queen (No 2) (1984) 153 CLR 521
Den Hoedt v Barwick [2006] WASCA 196
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Jones v Dunkel (1959) 101 CLR 298
Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
Medlin v State Government Insurance Commission of South Australia (1995) 127 ALR 180
Montemaggiori v Wilson [2011] WASCA 177
Pollock v Wellington (1996) 15 WAR 1
Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370

MCCANN DCJ:

Introduction

In this matter the plaintiff claims damages for personal injuries suffered in a two-vehicle motor accident on 19 March 2005. She was born on 15 April 1994 and was thus almost 11 years of age at the time.
She was a front seat passenger in a sedan which was being driven by her mother (the second defendant) in Leeming. Mrs McKinnon was making a right hand turn with a green arrow from Karel Avenue into Farrington Road when a vehicle being driven by the first defendant in the opposite direction in Karel Avenue contravened a red traffic signal and collided with her vehicle.
Liability for negligence of both defendants has been admitted by the Insurance Commission of Western Australia.

The plaintiff's case

In her statement of claim the plaintiff pleads that she suffered multiple physical injuries including (most relevantly) a 'soft tissue injury to the back' and a 'spondylolisthesis at the lumbar‑sacral junction; or alternatively, aggravation and acceleration of pre‑existing asymptomatic spondylolisthesis'.
According to the uncontradicted expert evidence (which I accept), a spondylolisthesis occurs when one spinal vertebra becomes mis‑aligned relative to its neighbour, that is to say, there is a slippage of one vertebra. This should not be confused with a 'slipped disc', as some forms of intervertebral disc injury are colloquially known. Nevertheless, a spondylolisthesis can squeeze and distort the disc between the two involved vertebrae.
A spondylolisthesis can be caused traumatically (as alleged in this case) or by progression from a pre‑existing condition known as spondylosis.
Spondylosis is a fracture (also known as a pars defect) of the transverse process of the spine (technically known as the pars‑interarticularis). A pars defect can be caused in various ways, but it usually develops slowly in childhood and is asymptomatic. In order for a spondylolisthesis to occur the spondylosis (ie, the pars defect) must be bilateral, ie, both sides of the transverse process must be fractured (Dr Hsu, ts 306).
There was an issue between the experts as to whether spondylosis is congenital or developmental in nature. In my opinion Dr Murray put it well when he said that it is usually congenital in the sense that a child is born with a pre‑existing weakness, but it evolves by way of 'developmental long term' aetiology (ts 174).
There is no dispute that as at 29 April 2005 the plaintiff had bilateral pars defects at L5 and a spondylolisthesis at L5/S1. She contends that these did not exist and/or were asymptomatic before the accident and she was fit, healthy and very active. She says that her back has been symptomatic ever since the accident. She therefore contends that the accident caused her to suffer a traumatic spondylosis and or/spondylolisthesis or aggravated a pre-existing spondylosis and/or spondylolisthesis.
She also pleads that she developed psychiatric and/or psychological sequelae including post‑traumatic stress disorder (PTSD), an adjustment disorder and/or depression and anxiety.
In his opening address Mr Nugawela said (ts 7):
The psychological condition is variously described by our experts as either PTSD or anxiety or depression following the restrictions, physical restrictions, that she sustained and loss of activity at school. The fear of driving is an important feature. She still does not drive and required cognitive behavioural therapy to get a [learner's permit].
There's a continuity of those … psychological sequelae since 2005 up to and persisting in the present.
Mr Nugawela abandoned PTSD in closing submissions.
As to quantum, the plaintiff contends that her employment prospects have been substantially restricted. It is pleaded (particulars of damage, (par 3.2(d)) that by reason of:
the limited sitting, standing, walking and lifting tolerances, and the frequency of exacerbation of her symptoms, it is difficult to envisage [the plaintiff] engaging in stable employment earning a decent income. Her options in employment will be grossly restricted over her natural life.
It is contended (par 3.2(k)) that the best estimate of her loss represents the difference between the current average weekly earnings for a full‑time adult in the private and public sectors and the adult minimum wage.
The plaintiff also seeks damages for past and future treatment needs, care and gratuitous services, and for non-pecuniary loss.

The defendants' case

The defendants admit that the plaintiff suffered soft tissue injuries in the accident, namely a soft‑tissue muscular or ligamentous strain in her lumbar spine, minor bruising to her right arm and abdomen and a soft tissue injury to her upper thoracic spine.
They contend that the presence of the bilateral spondylosis (pars defects) and the spondylolisthesis are entirely coincidental and pre‑existed the accident, and are thus not causally connected to the accident and, further, that her symptoms can at least partly be attributed to those conditions.
They contend that the symptoms of the accident‑related injuries settled well with treatment and are manageable, provided that the plaintiff complies with her exercise regime and maintains a healthy weight. They contend that she has failed to mitigate her loss by not doing so.
Notwithstanding their pleadings, at trial the defendants accepted that the plaintiff also suffered from an acute adjustment disorder for about 6 months after the accident. They contend that the condition was partly caused by matters which are not compensable, such as the stress associated with her family and personal life before and after the accident, including chronic tonsillitis and gynaecological problems (from the age of 9) which were not successfully treated until 2008. They contend that these problems caused the plaintiff to miss significant periods of school before and after the accident.
The defendants contend that the plaintiff's symptoms are not chronic and are intermittent at worst, and that she has a relatively full retained earning capacity, provided she maintains a healthy weight and exercise regime.
So, they put the plaintiff to proof that any ongoing physical and psychological injuries are causally related to the accident.

The issues

The ultimate issues for me to determine before I assess damages overlap somewhat and are as follows.
First, whether the plaintiff's spondylosis and spondylolisthesis pre‑existed the accident.
Second, whether the accident caused those conditions or rendered them symptomatic and, if so to what extent.
Third, the nature of any soft tissue injuries caused by the accident (including the extent to which they are interrelated with the spondylosis/spondylolisthesis, and vice versa).
Fourth, the nature of the plaintiff's psychiatric or psychological injuries. (For ease of reference I shall refer to psychiatric and psychological matters jointly as 'psychological' unless the context requires otherwise.)
Having made findings about these matters, I must make findings in relation to the past history and prognosis of any compensable injuries, and as to the impact (if any) of the same on the plaintiff's enjoyment of life, earning capacity and treatment needs.

Evidentiary principles

I am required to make findings on the ultimate issues on the balance of probabilities based on a body of direct and circumstantial evidence.
In a circumstantial case an ultimate fact is taken to be proven if the court is satisfied (ie, can infer) based on the whole of the evidence that it is more probable than not that the fact occurred or exists (Chamberlain v The Queen (No 2) (1984) 153 CLR 521, 536, (Gibbs CJ and Mason J)). By 'more probable is meant no more than that upon a balance of probabilities … an inference might reasonably be considered to have some greater degree of likelihood' than others that are open (Jones v Dunkel (1959) 101 CLR 298, 310 (Menzies J)).
But, this is not an arithmetical exercise. I am required to be actually persuaded as to the probability of a fact being true (Briginshaw v Briginshaw (1938) 60 CLR 336). Nor should I confuse mere conjecture with reasoned conclusion (Jones v Dunkel, 305 (Dixon CJ), 309 – 310 (Menzies J)).
Inferences 'from actual facts that are proved are just as much part of the evidence as those facts themselves' (Jones v Dunkel (309) (Menzies J)).
The resolution of the circumstantial and ultimate issues in this case turns to a significant extent on the credibility and reliability of the direct evidence of the plaintiff.
The assessment of credibility is a multi-factorial task. The appearance and demeanour of witnesses are relevant factors, but there is a danger in too readily drawing conclusions about truthfulness and reliability solely or mainly from such considerations. Judges are encouraged to 'limit their reliance on the appearance of witnesses and reason to their conclusion, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events' (Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, [30] – [31] (Gleeson CJ, Gummow, Kirby JJ)).
It is also useful to take into account the cooperativeness and frankness of witnesses and their willingness to make concessions.
It is open to me, as I see fit, to accept all, part or none of the evidence of a particular witness (including an expert witness) and, in particular, to accept part of a witness' evidence and reject (or form no view) on other parts.
An expert is permitted to give evidence of an opinion (which would otherwise be hearsay) with respect to a factual issue which requires expert elucidation if he or she is qualified by training or experience to do so. Opinion evidence is admissible for the purpose of assisting the court to make findings of fact.
As with lay witnesses, the court is entitled to accept all of a particular expert's evidence, or none of it, or accept some and reject the rest, or simply to put it to one side. In this way findings can be drawn from evidence and opinions of more than one expert, irrespective of who adduced the evidence.
Opinion evidence must be based upon facts or stated assumptions that are proven (or bear sufficient correlation to facts which are proven) and must be explained in such a way that the court can comprehend it and make the necessary findings, or at least understand why it should be adopted or deferred to (Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370; Pollock v Wellington (1996) 15 WAR 1, 3 (Anderson J); Beer v Duracraft Pty Ltd [2004] WASCA 192 [78] – [80] (McLure J); and Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, [64] (Heydon JA)).
The assistance to be derived from expert evidence, ie, its weight, may also depend to some extent on the degree of specialisation involved in the relevant expert field, because some fields are more esoteric than others.

Preliminary findings of fact

I turn now to make a number of findings of a preliminary nature. I point out immediately that I have formed an adverse view of the plaintiff's credibility or reliability in relation to some areas of evidentiary dispute, the reasons for which are set out later. My preliminary findings have been informed accordingly.
The plaintiff had an unremarkable early childhood in a family comprising her mother, father and older brother Aaron.
She attended kindergarten and then Willandra Primary School in Armadale. She was a very active and sports‑orientated child and played many sports, including soccer. This is illustrated by photographs which pre-date the accident (exhibits 53 and 54).
She has hyper-mobile skeletal joints (ie, she is 'double-jointed').
She had two brief but unpleasant inter-peer experiences when she was young, once in kindergarten and once in Year 3. She felt that she was bullied on the latter occasion and has subsequently been sensitive to attention ('shy': ts 269).
She suffered very severe tonsillitis from a young age which resulted in lost school time. This problem was not resolved until she had a tonsillectomy in December 2008. She suffered from debilitating gynaecological problems from the age of 9 until 2008, at which time a diagnosis was made, and medication prescribed, which successfully treated the worst of the symptoms. These problems also caused her to have significant amounts of time off school.
By correlating her medical and school records, combined with her own evidence (where it is reliable) and that of Mrs McKinnon, I make the following findings in relation to the plaintiff's absences from school in 2002 to 2004.
In 2002 (year 3) she missed the equivalent of 28.5 full days, in 2003 (year 4) 20.5 days, in 2004 (year 5) 36 days. Between 31 January and 18 March 2005 (year 6) she missed eight days.
The accident itself was a very frightening experience. The first defendant's vehicle hit Mrs McKinnon's vehicle on the right-front side and rotated it 180 degrees, during which the plaintiff's right arm struck the gearshift. The airbags deployed. There was smoke which caused the plaintiff to believe (wrongly) that the vehicle was on fire. She began to scream.
After she alighted she noticed that her right arm was painful and her neck began to hurt. A passing paramedic placed her arm in a sling. Meanwhile, Mrs McKinnon began to have chest pain which further alarmed the plaintiff.
Judging by photographs taken at the time (exhibit 30), the damage to the first defendant's vehicle was modest. The damage to Mrs McKinnon's vehicle was extensive, but mostly confined to the right‑front side. The cost of repairing the vehicle exceeded its insured value ($21,000) and it became an insurance write-off. However, that says more about the cost of repairing the motor vehicle than the force of the collision. I find that the accident was of no more than moderate severity.
An ambulance took the plaintiff, her mother and brother (who was also in the vehicle) to Fremantle Hospital. The plaintiff was placed in a neck brace. All three were discharged after being examined and told to visit their GP for follow up. The plaintiff reported no significant back symptoms at the time.
It is common ground that she developed low back pain and suffered from psychological sequellae of the accident itself. She received significant treatment, mostly at the expense of the Insurance Commission of WA.
Psychological therapy was provided by Mr Christopher Semmens in mid-2005.
She had physiotherapy as follows:
(i)With Mr Gary Brockman on 62 occasions between 9 June 2005 and 3 August 2007. Numerous appointments were close together in June, July and August 2005, May 2006 (after the plaintiff took part in a cross‑country run at school, in contravention of Mrs McKinnon's express instructions to the school), early September 2006, and May to June 2007 (corresponding to a complaint of back pain after playing soccer in May 2007).
(ii)With Ms Linda Gooch on 33 occasions between 16 August 2007 and 23 December 2010. Ms Gooch provided the plaintiff with a structured exercise‑based treatment regime.
(iii)With Ms Prue Newnhan (of the same clinic as Ms Gooch) on 11 occasions between 25 January and 7 June 2011. The plaintiff changed to Ms Newnhan (a sports physiotherapist) because it was felt that she needed a more challenging and stronger exercise programme (Ms Gooch: ts 218).
(iv)With Ms Sharyn Wright and Ms Pam Feingold in Sydney on 12 occasions between 27 June 2011 and 6 June 2012.
(v)With Ms Clare Wells in Sydney on 16 occasions between 16 July and 19 November 2013. Ms Wells taught the plaintiff a personal exercise regime (exhibit 23).
(vi)On returning to Perth, on two occasions each with Ms Newman and Mr Brockman up to and including 11 March 2014.
The plaintiff testified that physiotherapy was beneficial because it helped her with her core strength. All of the experts agreed.
The plaintiff often had a massage before her physiotherapy sessions and on occasions in Sydney when she was not having physiotherapy. In all, she received 49 massages between 11 January 2009 and 12 May 2013. She testified that these helped to overcome stiffness and muscle guarding in her back. Ms Gooch supported this (ts 212).
Her multiple health problems continued to interfere with her ability to participate in school work and physical education. She found that she could not sit comfortably in chairs or on the floor, attend assemblies or properly carry a schoolbag. She felt different from the other students and emotionally stressed by the whole experience. Amongst other things, she feared being bullied because she appeared to be different. She therefore refused to use a wheeled school bag which would have improved her mobility.
Her school attendance record deteriorated. Based on a correlation between the medical and school records, her evidence (where I accept it) and that of her mother, I find that her overall absentee rate increased from 19% in 2004 to 34% in 2005. I find that the increase was caused by her accident-related injuries.
Her weight remained steady for some time after the accident. On 5 May 2005 it was 64.45 kg (ts 75, which was 'overweight' according to the Princess Margaret Hospital notes, exhibit 38). On 11 November it was 65 kg (exhibit 11). However, by 5 December 2006 it was 76 kg (exhibit 53).
In early 2007, she developed suicidal ideations. She was referred to a psychiatrist, Dr Rhys‑Maitland, and had psychotherapy with Ms Kate Orr. (She preferred a female therapist instead of Mr Semmens.)
She commenced high school in 2007 at Cecil Andrews Senior High School in Armadale.
At the school's suggestion, and with the concurrence of the Education Department, she began home‑schooling at the commencement of the second term of Year 9 (ie, 2008). This continued until 2011 when she completed Year 12. I was surprised to learn in evidence of the minimal input of the Education Department, who more or less left the plaintiff and Mrs McKinnon to their own devices, save for an annual home visit to establish a curriculum and assess progress. Nevertheless, with Mrs McKinnon's help, the plaintiff was organised, diligent and did well. She completed all of her basic schooling requirements to Year 12 level, including English and mathematics, for which she obtained the appropriate TAFE certificates (ts 17 – 18). She did not participate in the Tertiary Entrance Examinations.

During this period the plaintiff made good progress both physically and psychologically. On 6 April 2009 her weight was 71.2 kg (exhibit 48) and by 18 August 2009 it was 67 kg (ts 76) which was similar to her pre‑accident weight.
In March 2010 she commenced part‑time employment as a shop assistant at a Best 'N' Less store in Armadale. Her duties required her to work on the floor, tidy clothes and occasionally operate a cash register when the store was busy. Initially her hours were three or four hours per day, two or three days a week. She found that an eight hour day aggravated her back symptoms. She was completely off work for a period of two weeks due to one such episode in late 2010.
In June 2011 the plaintiff and her Mrs McKinnon moved to Sydney to help care for the latter's mother who was elderly and frail. They were accompanied by Mrs McKinnon's sister who had challenging health problems of her own and was residing with the McKinnon family.
The plaintiff did some unpaid work for a Raine and Horne agency and also did a little paid work doing letter-box leaflet drops with her mother.
She and her mother remained in Sydney until June 2012, when they returned to Perth for a holiday. Circumstances in Sydney changed so they did not return there until October 2012. According to the plaintiff, her grandmother and aunty 'had gotten a hell of a lot worse' when they returned (ts 33).
Her grandmother passed away at home in October 2013. Mrs McKinnon and the plaintiff were in close attendance at the time and the experience was stressful for the plaintiff. A month was spent finalising the grandmother's affairs, whereupon the plaintiff, her mother and aunty returned to Perth.
The plaintiff summed up her life in Sydney as follows (ts 33):
… being in Sydney was extremely difficult to cope because we left my dad and my brother behind. I had to quit my job and the physio – my equipment at Perth – I didn't have in Sydney so I wasn't able to do my normal physio but I would do the – the actual physio exercises that I was capable of doing, I did them in Sydney.
She exercised less, gained weight and psychologically decompensated, for which she had treatment. On 22 March 2013 her weight was 92 kg.
She continues to live with her parents and aunty. She is not employed and is not undergoing any training or education. On 22 August 2014 she weighed 88 kg (ts 536).
I turn now to the evidence in relation to more contentious factual matters.

The evidence in relation to the plaintiff's physical injuries

The plaintiff walked slowly to and from the witness box with a stooped gait which could be described as slightly antalgic. She was self‑effacingly attired and groomed, and appeared to be overweight for her height. Generally her affect (expression of emotional state) varied from either flat (or numb) to disgruntled. For the most part, particularly on 18 August, she gave an all pervasive impression of ennui. Her tone of voice had an entreating, even didactic tone, which bordered at times on whinging.
Occasionally she brightened up, especially towards the end of her evidence on 25 August. I made a comment to her about this, which she acknowledged. She said that she felt much calmer (ts 540).
She testified (ts 12) that on the night after the accident she found it difficult to sleep because of pain in her arm and neck. On waking the next morning she found she had 'so much pain' in her right arm, right shoulder, neck, right leg and lower back. She was obliged to sleep on the lounge‑room floor for two to three weeks and her brother had to help her to get up in the mornings.
When she resumed sleeping in a bed she 'would wake up extremely stiff and sore' and needed her mother to help her get up. Her mother needed to roll her onto her right-side, swing her legs around and lift her up. She would then 'sit for about a couple of minutes … exhausted and in so much pain … gritting [her] teeth' (ts 13).
On these occasions her lower back was so stiff that she could not move and her mother had to assist her to undress, help her into and out of the shower, dress her and then assist her back to bed or the lounge‑room, where she would have to sit because she would be 'absolutely exhausted'. She testified that she needed to stay under the shower for 30 to 40 minutes because the hot water helped to 'loosen up the muscles'.
She testified (ts 13) that she took 'about two weeks off' from school and after that missed half-days because the symptoms were 'really bad'. She described (ts 13 – 15) many difficulties she had with school‑based activities.
She gave a particularly dire description of the long‑term impact of her injury (ts 26 – 32). She said that for the 'first couple of years' she could not do anything around the house. She 'couldn't even bend down … mum would have to put my shoes on my feet for me'. Her mother 'pretty much had to do everything', including dress her. For 'the first couple of years' she was 'completely stiff every morning', but then it 'kinda weaned off a bit' and some days would be better than others. '. A couple of times a week to a couple of times a month' would now be regarded as bad. Until very recently (the beginning of 2014, I gathered) she was unable to do any significant housework such as sweeping and vacuuming, but she can now do her own room, her aunty's room, the hallway and her parent's bedroom before she has to stop. She can do laundry, but must hang the washing in small loads and is unable to hang out heavy items like jeans. The same applies to folding washing and she is unable to do any heavy chores or gardening.
She testified that she is 'always in constant pain from the second I wake up to the second that I go to sleep'. She said that she had taken anti‑inflammatories (mostly Naproxen) since 2007.
In cross-examination she was asked if she only required her mother's help to dress and undress 'in the very early stages' of her recovery. She testified (ts 273):
That happened for quite a number of years. It's just that the days lessened
… from 2005 probably till – even to – I had one day this year, back in June/July that my mum had to help me.
Her evidence about this was very generalized and a little difficult to follow but it was my impression that she was seeking (especially in her evidence‑in‑chief) to convey that she had been very severely disabled by low back pain (particularly in the mornings) for a lengthy period after the accident, extending into years rather than days.
She rated her pain as she sat in the witness box at 8/10, which she said was 'normal for me' and that Naproxen was helping (ts 29). She said that if it was 'a 10 I wouldn't even be able to support myself standing up [and] … would have to be hunched over completely'.
Mrs McKinnon testified. I found her to be a co‑operative, reflective witness who made concessions and accepted objective facts. She generally corroborated the plaintiff's evidence, but with important qualifications. She accepted that the plaintiff had attended Princess Margaret Hospital in April 2005 in respect of hip and leg problems rather than her back (ts 600 ‑ 601). Her evidence (ts 603 and following and 646 and following) about the level of assistance that she provided to the plaintiff with respect to activities of daily living (hair, dressing, undressing and so on) was not the same as the plaintiff. She accepted that the plaintiff's school absences after the accident were not all related to the accident injuries and she frequently did normal childhood and adolescent things subject to regular flare‑ups. She agreed that the plaintiff was able to cope when she was learning to drive, helped out with domestic tasks in Sydney, had been diligent with her studies when she was home‑schooled and was now usually in a pretty good mood, especially since returning from the Sydney (when things were not good).
On Dr Kevin Murray's advice, the plaintiff had injections in her back in May 2009. These provided interim partial relief of her symptoms. Dr Murray testified (ts 159 ‑ 160) that these injections were in the L5/S1 facet joints (which are behind the spondylolisthesis), but Dr Home firmly believed that they were in the pars defects (ts 527 - 529). I need not resolve this conflict, but Dr Murray should know because he was caring for the plaintiff at the time.
I turn now to the radiological evidence.
Scans taken on 29 April 2005 (Dr Leaver; exhibit 52) showed an L5/S1 spondylolisthesis measuring 7 mm, secondary to bilateral pars defects. A CT scan on 20 June 2005 confirmed the finding and found no other abnormality of note (Dr Young: exhibit 52).
A bone scan on 5 July 2007 focussed on the plaintiff's thoracolumbar spine and found nothing of note, save for 'mildly asymmetrical uptake in the sacro-iliac joints due to rotation of the pelvis' (Dr Hayes; exhibit 52). An MRI scan of the lower back on 15 August 2007 (Dr Fallon, exhibit 52) found no evidence 'for a previous vertebral body fracture', found a shallow thoracolumbar scoliosis, confirmed the bilateral L5 pars defects and a 'grade 1 spondylolisthesis'. No evidence of a 'significant degree of neural foraminal stenosis or nerve compression' was found. Similarly, no evidence was found 'for accelerated lumbar disc degeneration, a protrusion or nerve impingement'. Minor disc degeneration and annulus bulging was found in the mid-thoracic region.
An MRI of the lumbar spine carried out at Princess Margaret Hospital on 23 March 2009 (Dr Nguyen; exhibit 52) found an 'approximately 4 mm spondylolisthesis' of 'L5 on S1 due to bilateral chronic L5 pars defects'. The spinal alignment was normal, the vertebral body heights were maintained, as were the intervertebral disc spaces, save for some 'very mild posterior disc bulging at the L4/5 level'. Once again, no evidence was found of 'central canal or neural foraminal stenosis at any level' and 'no evidence of neural impingement'.
A bone scan carried out on 7 November 2013 (Dr McLaughlin; exhibit 13) noted a mild scoliosis convex to the left in the lumbar spine, there was a predominantly healed left pars fracture with a small amount of minor activity medially, moderate right sacroiliitis with a minor degenerative component and mild left sacroiliitis, and mild degenerative joint disease of the left side of L5/S1.
MRI scans of the plaintiff's lumbar spine and sacroiliac joints were carried out on 28 May 2014 (Dr Frazer, exhibit 2). It is helpful to set out the findings in full (emphasis added):
MRI LUMBAR SPINE
Findings
There is normal vertebral body height with no bony lesion demonstrated.
There is no abnormality of the thoracolumbar junction and the conus is normal.
No abnormality is identified at L1/2, L2/3, L3/4 or L4/5.
At L5/S1 there are bilateral L5 pars defects with mild forward slip of L5 on S1. There is posterior disc bulge which is a little more prominent on the left. There is no canal stenosis, however disc material abuts the left L5 nerve root within the foramen. The right L5 nerve root escapes without impingement.
There is no evidence of facet arthropathy.
MRI SACROILIAC JOINTS
Findings
The sacroiliac joints are normal with no evidence of sacroiliitis. There is no evidence of a sacro bony lesion and no abnormality in the adjacent soft tissues.
Comment: There are bilateral L5 pars defects with mild spondylolisthesis. A disc bulge is more prominent on the right side abutting the exiting L5 nerve root. No other significant abnormality is demonstrated and the sacroiliac joints are normal.
The emphasized passages evidence a new finding, namely, the presence of a disc bulge abutting the right L5 nerve root, but without impingement of the nerve.
I turn now to consider the orthopaedic evidence. References are to the contents of reports unless stated otherwise.
Dr Kevin Murray is a consultant paediatrician with a sub-speciality in juvenile rheumatology and musculoskeletal medicine. The plaintiff was referred to him for medico-legal purposes in mid-2007 and he provided a report on 28 August 2007 (exhibit 6). He subsequently saw the plaintiff on a clinical basis and prepared a number of further reports and referrals which were tendered in evidence.
Initially, Dr Murray was non-committal as to whether the plaintiff's symptoms were related to the accident. He made a diagnosis of pars defects/spondylolisthesis. He said that it was 'possible' that the accident had caused the defects, but they were usually congenital, and the accident 'may well' have exacerbated pre-existing asymptomatic defects. He was hopeful that with a good response to physiotherapy the plaintiff's symptoms would improve and she would 'be able to achieve the vast majority of normal achievements; although high impact activities would be contra-indicated'. In other words, there would be a 'good overall prognosis'.
He was of the same opinion on 6 February 2008. He was pleased with the plaintiff's progress and was 'hopeful that with good physical rehabilitation she will maintain good function of her spine'. This was still the position on 27 June 2008, although a physical examination elicited 'some widespread tenderness in her soft tissues' and some limitation particularly in forward bending. Dr Murray felt there may have been some self-limiting behaviour involved, in other words, pain avoidance rather than active pathology.
The plaintiff had deteriorated when she saw Dr Murray on 3 December 2008. She gave a history of 'very high levels of pain and exacerbations of pain with physical activities such as physiotherapy'. On examination he noted 'restricted forward flexion subjectively' which in evidence (ts 191) he again put down to protective behaviour. A review of x‑rays 'seemed to indicate some further forward slight slip with the L5/S1 vertebra' and diagnosed 'continued mechanical and secondary inflammatory issues … largely due to [the] L5/S1 facet joint region'. Dr Murray considered the plaintiff had a 'significant' L5/S1 spondylolisthesis (see his referral to Dr David Dillon dated 3 December 2008; exhibit 6). In his view the plaintiff's 'generalised ligamentous laxity' (ie, double-jointedness) was an 'associated mechanical factor'.
In evidence, Dr Murray said (ts 154) that the plaintiff's radiologically demonstrated spondylolisthesis was borderline (grade 0 ‑ 1) and that a radiologist and/or orthopaedic specialist would be more qualified than him to comment on its significance. He said that 'the different x-rays over time have suggested it's moving slightly' and 'not looking very prominent'. He felt it was certainly not grade 2 or grade 3 at that stage (ts 154). This evidence does not sit well with his 3 December 2008 assessment that it was 'significant'.
By 14 January 2009 Dr Murray was 'certainly' of the opinion that the plaintiff's L5/S1 pars defect 'would have been exacerbated by the motor vehicle accident if not caused by it'. In other words, his opinion in relation to the causal connection between the accident and the plaintiff's L5/S1 spondylosis and spondylolisthesis (and the symptoms of the same) had firmed up since 27 June 2008. He believed it was clear that the plaintiff had 'ongoing pain and inflammation in her lumbar spine related to' the pars defect and spondylolisthesis. I am unable to discern anything in the objective evidence which was available at the time (such as radiology) to justify the firming up of his opinion. In other words, Dr Murray relied upon the plaintiff's subjectively reported increase in her symptoms. As will be seen, reliance on that kind of evidence is fraught in this case and I am not attracted to it. To be fair to Dr Murray, he was mindful of this himself.
Dr Murray also believed that the plaintiff was overusing other spinal segments, which was causing muscle spasm and stiffness over a greater range, and he referred to the possibility of her having 'soft tissue rheumatism' in her lower limbs as a consequence. 'Soft tissue rheumatism' is a general descriptive term (ts 163) which signifies that soft tissues surrounding bone matter in the joints are inflamed and tender, as opposed to being pliable and soft.
He felt it was difficult to provide a prognosis and said that many 'teenagers gradually improve as they develop muscle strength as they get older and learn to manage the pain quite well'. He felt that it was likely that the spinal defect would be permanent and tend 'to produce intermittent episodes of low back pain' but, with 'good protective and preventative management', it need not lead to 'major spinal deterioration'. Meanwhile, in his opinion the plaintiff was 'moderately disabled by her pain', even allowing for the fact that she had 'a reasonably positive attitude' and was 'engaging in most normal activities and attending school fairly regularly'.
The plaintiff made slow but steady progress over the following year, assisted briefly by the injections and more consistently by medication (Naproxen). By January 2010 Dr Murray felt that the plaintiff was 'making excellent progress over time'. He noted that she had a good attitude towards managing her symptoms, looked significantly better (she had lost weight: see [63]) and had 'only minimal tenderness in the lower lumbar spine' (emphasis added). The prognosis was for 'intermittent problems [which would] … usually [be] very manageable'. He certified the plaintiff fit to commence part-time work on light duties.
Further improvement was noted on 16 July 2010 when the plaintiff reported 'being much better in terms of her musculoskeletal and spinal symptoms'. She had commenced part-time work and was experiencing 'some lower limb symptoms and spinal pain when she was on her feet all day'. She had started boxing, which Dr Murray approved of. She was 'getting good symptomatic relief' with Naproxen daily. The situation was unchanged on 3 December 2010.
The plaintiff saw Dr Murray on 12 January 2011 after her symptoms flared up at work. He changed her prescription to Piroxicam and recommended that she avoid prolonged standing at work.
He was pleased on 18 March 2011, when he said 'things are progressing fairly well', but noted the plaintiff had complained of sleep disturbances which he understood were caused by pain in the back and leg (ts 69). These had been helped by Amitriptylin which had been prescribed by a musculoskeletal physician, Dr Richard Yin.
Dr Murray saw the plaintiff on 10 June regarding a complaint of mid-thoracic and shoulder pain which he suspected was due to postural issues.
On 20 June 2012 he noted on examination that 'psychosocial issues were problematic for the plaintiff, that she had not been very physically active and had gained weight'. He noted that she was 'very, very hyper‑mobile and had no pain on motion'.
Dr Murray saw the plaintiff for medico-legal review on 29 March 2014. His report was dated 4 June 2014. He had reservations about his qualifications to express an opinion as to the plaintiff's adult prognosis, particularly in the longer term. However, he said that she was likely to need ongoing physiotherapy and pain management and regular review by a specialist with expertise in spinal mechanics, including supervised and independent exercise. In terms of the plaintiff's employment possibilities, he stressed that she would need to achieve ongoing weight loss and a marked improvement in fitness levels which would, in turn, significantly improve 'her capacity to sustain prolonged periods of standing and sitting as part of any employment'. In that regard he concurred with Dr Brian Hsu's opinion dated 5 November 2013 (exhibit 14). Overall, he felt that the long term implications were difficult to judge, but could range between significant degeneration with chronic lifelong back pain, or a more positive outcome provided that there was significant rehabilitation, weight loss and fitness.
In evidence Dr Murray said (ts 157) that the disc bulge demonstrated on 28 May 2014 was a significant radiological finding which indicated that there had been a change at L5/S1. It was 'the sort of thing we see with slow progression' of a spondylolisthesis which causes friction in the discs which 'start to degenerate slowly'. (See also ts 207.)

He agreed (ts 175 – 176) with Dr Sachdev's diagnosis of a chronic muscular strain imposed on a congenital grade 1 spondylolisthesis of L5/S1 caused by the accident, in other words, the accident aggravated soft tissue structures in and around that area, whilst not completely excluding the hypothesis that the accident also caused the pars defects themselves (ts 177). But, he stressed that he was not an expert in this respect.
Questioned by myself, Dr Murray agreed (ts 207) that the plaintiff was prone to symptomatic flare‑ups, but he was reasonably happy with her progress when he was treating her. However, when he saw her in March 2014 things had not been going as well as he had originally anticipated. He said:
The previous two years perhaps hadn't been quite as good, while she was in Sydney mainly, and just prior to that, I think she'd improved and lost some weight and was a bit happier with herself …
I found Dr Murray to be a helpful witness because he had a long clinical association with the plaintiff. However, it was my impression that he was inconsistent over time. Also he agreed (see his report of 4 June 2014) with Dr Hsu's opinions, but I am not satisfied that the latter are adequately supported by the evidence (see [167], [274]). He was also careful to qualify his opinion several times during his evidence on the ground that he was not a specialist in the relevant area. In short, having regard to my ultimate findings below, I think that Dr Murray would acknowledge that there is not a strong case for a diagnosis implicating the spondylosis or spondylolisthesis in this case. Overall, I have derived assistance from his evidence, but not to the exclusion of the other experts.
Pursuant to leave granted by consent under s 79C of the Evidence Act1905, the defendants adduced a report of orthopaedic surgeon Dr John Bell (exhibit 50). Dr Bell saw the plaintiff on 13 August 2009.
Dr Bell took a comprehensive history in which the plaintiff complained of continuing aches in her lower back following the accident, for which nothing helped. There had been no improvement in her symptoms. The ache was 'all over the lower back with no radiation below the buttocks or into the legs and no radiculopathy'. In other words, it was a generalised pain. The plaintiff complained of occasional spasms which lasted for up to seven minutes and were so debilitating that she could not breathe. These occurred up to three times per annum. She complained that her pain was generally sharp and stabbing, especially in the mornings or in cold weather. She reported that she 'cannot walk far … stand much … sit for long periods … carry her school bag [or] cycle'.
On physical examination Dr Bell considered the plaintiff to be 'very overweight at 67 kg with an abdominal girth of 96 cm', which he believed was 16 cm greater than the maximum recommended for a person of the plaintiff's height (158 cm). He noted that her weight was around 64 kg at the time of the accident.
On examination Dr Bell found full range of movement in all segments save in the lumbar spine, which was around 70% of normal with more discomfort on extension and bending to the left. He noted that the plaintiff's abdominal muscle tone was poor and she had a sway-back posture. There was tenderness on palpation mostly in the upper lumbar spine and thoracolumbar region and there was a 'slight tenderness over the L5 spinous process'. He noted 'moderate' double-jointedness.
Dr Bell diagnosed 'a low back injury in March 2005 with an underlying, asymptomatic pre‑existing spondylolisthesis'. Her low back problems had 'some degree of relationship' to the accident but, in his opinion, there was quite a significant relationship to her poor general condition and being significantly overweight. She appeared to have 'a degree of disease conviction'. He felt that she was too sedentary, which was not helping the healing process, and she should 'adopt a more active lifestyle'. He assessed her to be 'fit for most general activities including sedentary duties' and 'not at risk of developing degenerative changes earlier than expected as a result of the crash-related injuries'.
Overall, he regarded the plaintiff's prognosis to be guarded. He believed she needed to improve her muscle tone, posture, flexibility and circulation with a weight control programme and improved nutrition and develop a more optimistic outlook on her situation. He did not believe there was any degree of permanent disability.
The defendants called Dr Alan Home who is a consultant in occupational medicine and is well qualified to assess disability. He saw the plaintiff in Sydney on 22 March 2013 for medico-legal purposes. In his report dated 22 March 2013 (exhibit 27) Dr Home set out the history which he took from the plaintiff. Amongst other things, he recorded:
She confirms that she did experience symptom improvement during a period of concerted exercise over a four-year period leading up to 2012. Exercise had included swimming in her own backyard pool in Perth, use of a treadmill, an exercise bike and an elliptical cross-trainer.
She moved to Sydney with her mother eighteen months ago and since that time has reduced her overall exercise. She has gained weight and her back pain has increased in intensity.
She states that she does try to walk, use an elliptical cross-trainer and has the use of hand-held weights.
The plaintiff gave a history of constant low back ache. Her symptoms averaged in intensity between 6 to 8 out of 10 and were worse in cold weather. She denied any radiation of pain to the lower limbs and there were no complaints of lower limb paresthesia or numbness. She denied any exacerbation of back pain through coughing, sneezing or bowel or bladder dysfunction. She experienced intermittent mild upper back pain or aching in the interscapular region for a few hours each day.
The plaintiff estimated a sitting tolerance of one hour and being able to walk for between 45 and 60 minutes. She could lift light weights such as two light shopping bags, but avoided heavier lifting.
She was able to do very light tasks around the home, such as food preparation, dishwashing and loading a washing machine, but avoided heavier tasks such as vacuuming and mopping. By contrast, she reported that whilst living in Perth she did sweeping and general cleaning about the home.
Dr Home took an educational and vocational history. To direct inquiry the plaintiff stated that she 'lacks motivation to work'. She said that ideally she would 'like to undertake training to work as a medical receptionist or other receptionist work'.
Dr Home reviewed the radiological investigations and carried out a physical examination. The plaintiff suggested in evidence that this took only a few minutes. It matters not, given Dr Home's considerable experience. It is clear from his report that his physical examination was thorough. He found as follows.
The plaintiff had 'significant generalised obesity, weighing 92 kilograms' and 'generalised joint hyper-mobility'.
She had a full range of active pain-free motion in the cervical spine.
Examination of the thoraco-lumbar spine revealed normal spinal curvature. The plaintiff was able to actively flex her spine and hips to place her palms on the floor. Extension was also full, accompanied by reported end-range pain. Left and right lateral flexion were well maintained, such that the fingertips reached 7 cm below the knee creases on each side (ie, it was normal). Thoracic rotation was 'extremely well preserved to 60 degrees bilaterally'.
Dr Home elicited tenderness to palpation over the midline structures between T4 and T6 in the thoracic spine but there were no clinical features of thoracic radiculopathy.
He elicited poorly localised tenderness to palpation overlying the midline structures between T12 and S1.
Straight leg raising was demonstrated to 90 degrees bilaterally.
A slump test was negative (ie, it was normal). Neurological examination of the lower limbs was normal, deep tendon reflexes were preserved and the plaintiff was able to walk on her toes and heels without reported exacerbation of pain symptoms. She was able to sit throughout the examination without evident pain behaviour (consistent with the history she provided, as well as her interview with Dr Tay, and her evidence in the trial, see [249] and [255]).
In Dr Home's view there was no abnormality on clinical examination apart from the finding of tenderness to palpation (which was subjective), no evidence of muscle spasm or guarding during active spinal motion and no clinical features of spinal stenosis or radiculopathy. There were no objective clinical findings to support the severity of the plaintiff's subjectively reported symptoms.
He noted the radiologically demonstrated spondylolisthesis, which he regarded as developmental in aetiology, and pointed out that it was found in 7% of the population. In his opinion it was 'not a traumatic finding'.
He made a diagnosis of 'chronic back pain' relating to soft tissue injuries in the upper thoracic and lumbar spine. In his opinion, this was consistent with the circumstances of the accident.
Dr Home considered that anti-inflammatory medication had little part to play in the plaintiff's treatment and she would be better served by taking Panadol Osteo. He recommended that she undertake a regular exercise programme to strengthen her core‑stabilising muscles, similar to the regime she undertook in the period leading up to late 2011.
He felt that the plaintiff's symptoms are likely to be permanent having regard to their longevity, but assessed her to be currently fit to perform part-time work, 20 hours per week, in a sedentary or semi‑sedentary occupation. He continued:
With a recommitment to exercise and an improvement in core strength, it is probable that Ms McKinnon would be able to undertake work up to full‑time hours in a sedentary or semi-sedentary occupation.
Dr Home believed that three months of concerted exercise and suitable use of simple analgesia would be sufficient for the plaintiff to be fit for full-time employment.
Dr Home considered that the plaintiff was fit to undertake most domestic tasks, but it would be reasonable to exclude heavy domestic chores such as vacuuming and mopping. She was fit for recreational and gymnastic exercise of a moderate nature, but she must avoid jarring of the spine by running, jumping, horse riding and similar activities.
In a report dated 28 July 2014 (exhibit 27) Dr Home addressed the plaintiff's ergonomic requirements. He reiterated that the spondylolisthesis was of developmental and not traumatic aetiology. Further, in his opinion, the plaintiff's injuries would not accelerate any underlying degenerative changes and the spondylolisthesis would not do so either. In short, he said that it 'is not at all apparent or likely that her injuries will accelerate the extent of degenerative change'.
In evidence he said (ts 515; emphasis added):
… there's no evidence from the history that she has sustained a traumatic spondylolisthesis. She is not a gymnast. She is not a front rower in rugby and she is not a fast bowler. There is no evidence that she has undertaken activity involving very repetitive, highly forceful extension and rotation of the spine such as to cause stress fracture or some violent rotatory injury to cause say a unilateral pars defect. Her pars defects are bilateral. We see these in about seven percent of population in asymptomatic people and in symptomatic people … between five and seven. Some studies vary. Some studies say that in women it's about three percent and men seven percent. But … at the end of the day it's a small percentage of the population but enough that we see plenty of them.
… there's no evidence that the spondylolisthesis and the bilateral L5 pars were caused by trauma in this case. That's just not consistent with the history.
Overall, Dr Home clearly did not believe that the plaintiff presented with severe back pathology. He was quite emphatic about this and said (ts 516):
… I mean, there wasn't any – any of these findings which are – which are reasonably common finding in patients presenting with chronic low back pain. You'd normally expect to see some guarding of movement, some spasm and in some cases obviously with disc pathology, you would see increased evidence of increased tension [of the spinal dura: ts 509]. In patients who have nerve injuries you might see some neurological findings. There were none of the above in this particular case and … if it's a soft tissue injury we're talking about which involves mainly muscular ligamentous injury then we may not find a lot of objective findings. Some patients have pain without a lot to find.
… it's very unusual in my practice to see a patient complaining of six to eight out of 10 severity pain who hasn't got anything to find other than tenderness that's not particularly well localised. The vast majority of patients with chronic back pain have – have guarding, spasm, well localised and reproducible tenderness and I think this is probably reflected in this case in the variants in diagnosis that have been made over the past nine, 10 years when I read through the reports.
Dr Home stressed (ts 517) the importance of exercise and core muscle strength in connection with long term pain control.
Later he said (ts 518) that the plaintiff:
… isn't someone who presents with … evidence of very severe local spinal pathology such that she should be restricted from work up to full-time hours, provided she's able to get control over her pain and strengthen her back muscles.
He was not cross-examined in detail about the substantive aspects of his evidence. It was my impression that he spoke with complete authority, explained his opinions well by reference to his experience, the medical science and the specifics of the case and was completely consistent throughout. To illustrate, he drew a quite clear and (to a lay person) sound distinction between the typical presentation of traumatic spondylosis (unilateral) and developmental spondylosis (bilateral). In short, I found his evidence to be very persuasive and helpful.
The weight of Dr Home's evidence is enhanced by the fact that Dr Hsu (ts 296) would defer to his opinion in relation to the plaintiff's rehabilitative prospects.
The defendants called Dr Avtar Sachdev, who is an orthopaedic surgeon. He saw the plaintiff for medico-legal purposes on 23 April 2013. In his report (exhibit 31) he recounted a history, current symptoms and findings on examination which were similar to those of Dr Home.
He considered his clinical assessment to be more useful than the radiological evidence (ts 631). He diagnosed a 'chronic muscular‑ligamentous strain super-imposed on a congenital grade 1 spondylolisthesis at L5/S1 the result of the accident'. He explained this opinion in evidence (ts 633 ‑ 634), saying that the accident did not worsen the spondylolisthesis itself, but rather caused a soft tissue injury which in turn placed strain on the spondylolisthesis and, conversely, the pre‑existing spondylolisthesis created a susceptibility to the soft tissue strain in so far as the pars defects meant that the lumbar vertebra was not properly united and this in turn put a strain on the adjacent ligaments.
In his opinion the plaintiff's weight had aggravated her lower back symptoms. He felt that her condition was not likely to change without treatment and weight loss. Subject to that, she should be fit to work part‑time in any form of employment which did not require heavy lifting, excessive bending and subsequently move to full-time.
Dr Sachdev elaborated in a report dated 28 July 2014 (part of exhibit 31). In his opinion the plaintiff had completely recovered from the physical effects of her injury by April 2013 and her problems mostly related to the psychological effect of that injury. To illustrate, he said in evidence (ts 615) that on examination the plaintiff complained of pain on superficial pressure when such would only be expected to be elicited upon deep palpation.
Dr Sachdev believed that as a result of her injuries the plaintiff may develop degenerative changes in her lumbar spine at a later stage and may require conservative treatment, but in evidence (ts 636) he clarified that he was speaking of the distant future, possibly 30 years hence.
In his opinion (ts 638 – 641) the findings of the MRI scan carried out on 28 May 2014 (exhibit 2) had to be correlated with the clinical presentation, which disclosed no radiculopathy or disc pain. He specifically rejected the suggestion that the radiological finding of a disc‑bulge abutting the right L5 nerve root signified that a degenerative process was underway. He said (ts 640) that it was consistent with the presence of a spondylolisthesis and that degeneration usually starts with the facet joints. But these were clear according to the radiology and there was no evidence of irritation of the L5 nerve root itself.
Further, without access to an earlier MRI scan it would not be possible to determine if there had been any change.
I enquired whether the plaintiff's symptoms were worse because she had a pre-existing spondylolisthesis. He answered in the negative (ts 645) but confirmed (ts 646) that the spondylolisthesis increased her susceptibility to suffering the soft tissue injuries.
I am concerned that Dr Sachdev did not comment in his reports on the plaintiff's hyper‑mobility. He said in cross‑examination that he was aware that others had mentioned it, but said that he did not examine her for it other than the in lumbar spine, which he said was not hyper‑mobile (ts 360 – 361).
The plaintiff called Dr Brian Hsu, who is an experienced orthopaedic surgeon with a sub‑specialty in the treatment of spines, including paediatric cases. He commonly treats congenital spinal conditions and scoliosis.
Dr Hsu saw the plaintiff for medico-legal purposes in Sydney on 31 October 2013. He provided reports dated 5 November 2013 and 10 February (exhibit 14).
The plaintiff gave a history of intermittent pain in the lower lumbar and lower thoracic region since the accident. Her pain rated between 6 and 10 out of 10 in severity. She was currently 'significantly limited in terms of her daily activities' but had 'shown some improvement with her physiotherapy'.
On examination, Dr Hsu found no neurological deficits, but there was 'significant back pain with lumbar flexion and extension [which] … limited her range of motion significantly, particularly with lumbar extension'. There was also 'some mild spinal tenderness on examination'.
Dr Hsu diagnosed an intervertebral disc injury:
My opinion is that Miss McKinnon sustained back pain from the motor vehicle accident. The motor vehicle accident likely caused an injury to the intervertebral [disc; ts 279] and may also have either exacerbated the pars defect or caused the pars defect. We are unable to determine for certainty that the pars defect was not pre‑existing, however pars defects are generally not considered to be congenital and pars defects are usually asymptomatic. Ms McKinnon has not experienced …. any back pain in the past and therefore one can only conclude that the pars defect is most likely caused by the motor vehicle accident, but in terms of relevance I emphasise that most pars defects are generally asymptomatic, but for the exacerbation from an injury.
He gave a pessimistic prognosis. The accident had caused 'a significant disability' in respect of activities of daily living including sporting and recreational activities and domestic duties and gardening. He did not feel that the plaintiff was 'completely disabled in terms of employment', but pointed out that she would need to work with restrictions which avoided any repetitive bending or lifting work or prolonged sitting.
In his opinion the plaintiff would require ongoing physiotherapy and spinal rehabilitation exercises and may also require intermittent spinal injections. He also felt she would benefit from 'a dietician review to help with weight loss and general health and wellbeing advice', but he felt it was very unlikely that she would ever require any surgical intervention (such as a lumbar fusion).

In all the circumstances, including her age and difficult circumstances, I am satisfied that her reluctance to return to work or go to TAFE since returning to Perth is understandable and reasonable.
I assess her damages for past loss of earnings on the basis that that she has lost two years' part‑time employment (in Sydney and Perth).
The plaintiff submitted that the assessment should be determined on the basis that she had lost half of the minimum average weekly wage, or $271 net per week (50% of $542 net per week). Whilst I accept that the minimum average weekly wage is an appropriate starting point, I am not satisfied the evidence supports a finding that the plaintiff would have worked 50% of a full working week and studied at the same time if she had not been injured. Given the vicissitudes of youthful, part‑time employment, it is not appropriate to alight upon a precise calculation. I assess this head of damages in the sum of $18,700 based on approximately $180 per week. This assessment predicates that the plaintiff lost the opportunity to do casual, part-time work.
To this award should be added interest of $1,122 ($18,700 x 3% x 2 years) and past loss of superannuation benefits of $1,430.55 (9% x $18,700 x 85%), making a total for past economic loss of $21,252.55.

Future treatment needs including training and rehabilitation

It follows from my earlier findings that the plaintiff is entitled to an award of damages for various future treatment needs. She claims a global sum of $20,000 for 'the use of various medications, massage therapy, physiotherapy … an exercise program … [and] significant future psychological treatment'.
The defendants accept that the plaintiff will need limited treatment in the future, but contend that over the counter pain relief (such as Panadol Osteo, as recommended by Dr Home) rather than Naproxen is all that is required in that regard, plus 12 sessions of cognitive behavioural therapy recommended by Dr Tay. Otherwise, the defendants contend that the claim for further physiotherapy or any supervised exercise program is not supported by the experts. Based on the evidence of Dr Home and Dr Sachdev, in particular, they submit that self‑managed exercise will suffice.
I accept the plaintiff's submission in its entirety and allow a global sum of $20,000. My reasons are as follows.
Beginning with the plaintiff's physical needs, it is clear that she has benefited in the past from physiotherapy, particularly a carefully managed, personal Pilates program such as provided by Ms Wells. I accept that self‑managed exercise is essential as well, but the plaintiff must first overcome her unjustifiable concerns as identified by Ms Wells. I am confident that she will be able to do so, but professional supervision will be essential in view of my findings. Allowance should also be made for physiotherapy and reviews on an ongoing basis, having regard to the plaintiff's susceptibility to intermittent relapses.
So far as her psychological condition is concerned, I have no hesitation in accepting Dr Tay's recommendation that the plaintiff should have 12 specific sessions of cognitive behavioural therapy. This will be beneficial by enabling the plaintiff to overcome her adjustment issues and depression and gain independence and self‑reliance. Mr Semmens and Ms Addinall support this approach as well. However, I am satisfied that the plaintiff will have treatment needs beyond the immediate future given her susceptibility to relapses. The key to maximising her prospects of preventing or overcoming any relapse is to ensure that she is always well supported psychologically.
Overall, I feel that a global sum should be allowed for future treatment. This will facilitate flexibility and allow for follow‑up psychological care into the future.
The plaintiff will also need dietary advice.
For the same reasons, the plaintiff's award should include an additional sum of $2,000 which has been claimed for gymnasium equipment. It is clear from the evidence that her rehabilitation (including weight loss) is dependent on her diligently adhering to a home exercise program, which has been successful in the past. Her existing equipment will not last forever.
The plaintiff also claims the sum of $14,909 for vocational rehabilitation and $2,200 for the cost of obtaining a TAFE qualification (Certificate III in Business Administration). She is still young and I am not satisfied that she will require any vocational rehabilitation. Further, the cost of obtaining any tertiary qualifications (including from TAFE) would have been incurred by her anyway. Her injuries have simply delayed the process. These two items are therefore rejected.
The plaintiff has also claimed an allowance of $1,250 for driver assessment and training and driver desensitisation, which is said to be consequential on her anxiety. I am not satisfied that this is necessary and in any event the cost is covered by the allowance for psychological rehabilitation.
Overall, the award is $22,000.

Domestic aids, appliances and assistance

The plaintiff claims $8,785 for shopping home deliveries, $39,532.50 for external domestic gardening assistance and $56,663.25 for internal domestic assistance. The defendants accept that allowance should be made for one hour of domestic assistance per week to the age of 70 when the plaintiff would arguably have required some assistance with household duties irrespective of her accident-related injuries.
The plaintiff's claim predicates a level of incapacity which is simply not supported by the evidence or my findings. The evidence is that she has a reasonable capacity to carry out domestic chores. There is certainly no basis for claiming the cost of shopping deliveries which would anyway be offset by the cost of the plaintiff doing her own shopping if she was not injured. However, it is common ground that she should avoid heavy and vigorous activities and in my opinion a reasonable allowance should be made. This would be to the defendants' benefit, since it would mitigate the risk of the plaintiff suffering relapses. I find that an allowance of two hours per week to the age of 70 is supported by the evidence and thus would double the defendants' allowance, making an award of $35,500.
The plaintiff also claims for a comprehensive range of domestic and ergonomic aids relating to access and mobility, personal hygiene, self‑care and domestic assistance. The claim is supported by the evidence of Mr Kerry Jones who is a well-qualified and experienced occupational therapist. However, his opinion predicated that the plaintiff's physical injuries were significantly worse than I have found them to be. Amongst other things, Mr Jones assumed that the plaintiff is susceptible to future degeneration. I am not satisfied that that assumption is made out by the evidence.
Dr Home described Mr Jones' recommendations as 'a bit tortuous' (ts 520), but agreed in respect of some basic terms. In his opinion, the plaintiff requires no more equipment than any sedentary worker, which an employer would be expected to provide anyway. Based on my findings, and in particular my strong preference for Dr Home's evidence, I accept his opinion.
In my opinion the evidence supports provision for some ergonomic aids. I feel that the defendants' confidence that all or any employment environment in which the plaintiff finds herself will be adequately supplied with ergonomic equipment is overly optimistic. I am satisfied that it is reasonable to make allowance for the following items recommended by Mr Jones:
(i)      Sit-stand stool  $1,174.94
(ii)     Lumbar cushion  $   422.75
(iii)     Slope board  $   339.10
(iv)     Ergonomic chair  $1,025.18
(v)     Z Rest foot stool  $   260.00
(vi)     TOTAL  $3,221.94
Overall, the award is $38,721.94

Future loss of earning capacity

This head of damages turns on the plaintiff's prognosis which, in turn, depends on the provision of the various treatment and rehabilitative modalities already referred to.
I accept the plaintiff's evidence that she had occupational aspirations in the hospitality industry with a leaning towards a managerial and supervisory role, such as an event planner. Because of her young age, it is essential to take a flexible approach, but I am satisfied that she certainly has the aptitude and would have been motivated to a career in that field.
According to Professor Mulvey's uncontradicted evidence, typical earnings of an event co-ordinator are $1156 gross per week. In submissions Mr Nugawela contended that but for the accident she would have progressed further to become an average‑paid worker, earning the average wage ($1,345.20 gross per week).
The plaintiff submits that employment of that kind is now contra‑indicated, together with any form of 'stable employment earning a decent income', because of her limited sitting, standing, walking and lifting tolerances and the frequent exacerbation of her symptoms. It is submitted that her 'options in employment will be grossly restricted over her natural life' and that her retained earning capacity is confined to working 'full‑time in a light job which allows breaks, and allows alteration of posture' from sitting to standing and vice versa. Even this is said to be optimistic because 'there is a real risk that over the next 48 years (retirement age) over the plaintiff's working life, she will suffer from periods of unemployment due to disability that she has and she will have difficulty finding employment'.
The plaintiff submits that this contention is supported by the evidence of Professor Mulvey as to the competitive state of the labour market. It is submitted that his evidence supports a finding that the plaintiff's real prospects of employment are virtually zero.
In the result the plaintiff submits damages should represent the difference between the current average weekly earnings for a full‑time adult in the private and public sectors ($1,345.20 gross per week or $1,040.20 net) and the Australian adult minimum wage ($607.10 gross per week or $542 net).
The defendants submitted to the complete opposite. They submit that there is no evidence that the plaintiff is physically incapable of performing a wide range of administrative occupations, including an events planner, and they rely principally on the evidence of Dr Home. In his opinion the plaintiff is fit for 20 hours of work in a sedentary or semi-sedentary role plus 20 hours of training or vocational courses, but after a commitment to exercise she could work full-time (ts 517 – 518; exhibit 27).
The defendants submitted that the plaintiff is unlikely to 'encounter any material difficulty in finding, and retaining alternative employment' of a sedentary nature. They submit that I should allow a 'cushion' of $10,000.
I turn now to consider these submissions.
Findings need to be made as to the plaintiff's earning potential but for the accident and her potential earnings in the alternative employments now open to her. (See Medlin v State Government Insurance Commission and Montemaggiori v Wilson [2011] WASCA 177). Neither is capable of precise calculation because I am required to assess intangibles which would have been, or will be, susceptible to positive and negative contingencies over a very lengthy working life.
As for the pre‑accident earning capacity, there is no reason in the evidence to conclude that the plaintiff would not have been able to work as an event co‑ordinator or similar at least. I therefore find that she had an earning capacity around the middle of a range established by an event planner and an average worker ($1,156 - $1,345.20 gross per week).
In light of all the evidence and my findings, I am satisfied that she has reasonably good retained employment prospects. In other words, I find that her economic earning capacity has not been catastrophically damaged. My reasons are as follows.
As a starting point, I am satisfied that Dr Home's opinion should be accepted on the assumption that with access to physical and psychological treatment, and with a personal commitment to her rehabilitation (including exercise and weight loss), the plaintiff will enjoy reasonably good physical health. But, I find that there will be a need for physical restrictions and adverse contingencies must be allowed for to an extent which would not have applied if she had not been injured.
In terms of physical restrictions, I am satisfied that the plaintiff will need to limit herself to occupations which do not require any significant degree of physicality. As such, occupations such as an events planner, bar manager, catering manager or virtually anything in the hospitality or allied industries is contra‑indicated and should be avoided. It is a fact that such people need to be ready and willing to do physical tasks such as set up furniture and move goods about. Further, the plaintiff will be required to avoid occupations which require lengthy periods of sedentary activity (particularly sitting) or lengthy periods of standing (as proved to be the case when she was working for Best'n'Less).
Based on the evidence of Professor Mulvey, I am satisfied that there is a wide range of occupations readily available in the market place which would meet these requirements. The plaintiff's submission that Professor Mulvey rated her prosects as 'zero' takes his evidence out of context and I reject it. The occupations which Professor Mulvey had in mind tend to be in administrative or managerial roles such as personal assistant, receptionist, office administrator and the like. Such workers are usually required to alternate between sitting and standing positions, but are not required to do heavy physical work. Such occupations are usually amenable to ergonomic aids of the kind recommended by Mr Jones.
Further, I find that beyond the immediate future the plaintiff's psychological injuries will not preclude her from engaging in any employment of this kind.
Overall, I am satisfied that the plaintiff's horizons of employment have been tangibly reduced with consequences for her economic capacity. Professor Mulvey's evidence disclosed that receptionists, administrative assistants, or general clerks earn in the order $1,078.56 gross per week; ts 720 ‑ 721) which is less than event planners and average earners. In my opinion $1,078.56 reflects a reasonable starting point in terms of the plaintiff's current employment prospects. This is somewhat more than some of the base rates which Professor Mulvey referred to in his evidence, but I find that there should be an uplift in retained capacity in the same way as for pre-accident capacity. This falls up to approximately $170 gross per week below the pre‑accident amount ([342]).
I turn now to contingencies. Based on the history to date allowance should be made for the possibility that the plaintiff will have intermittent physical and psychological relapses which in turn could impact on her employability and competitiveness in the market place. This contingency is real and not speculative because Professor Mulvey's evidence shows that the market place is competitive. I find that the plaintiff will be at a minor competitive disadvantage in this respect for her working life. I find that this aspect counter‑balances the usual vicissitudes of life for which no discount should be made.
Weighing all of these matters up, I find that the plaintiff's loss of earning capacity should be assessed at $125 net per week.
I accept the plaintiff's submission that her loss of earning capacity should be calculated for a further 48 years, that is to an approximate age of 68 years. On that basis the calculation is as follows:
$125 x 840.9 = $105,112.50
The loss of future superannuation contributions is assessed on a gross weekly loss of $170 as follows:
$170 x 9% x 85% x 840.9 = $10,935.90
Overall, future pecuniary loss is assessed at $116,048.40.

Non-pecuniary loss

The plaintiff submits that damages for non-pecuniary loss should be assessed in the range of 25% to 30% of a most extreme case ($390,000) on the basis that her compensable injuries include soft tissue injuries to the cervical spine, shoulder and back, spondylolisthesis, bruising to the right upper arm, bruising to the right wrist, bruising to the abdomen and psychological injuries. She submits she has developed chronic pain and chronic severe psychological symptoms.
The defendant's submit that the plaintiff's injury should be assessed at 13% of a most extreme case.
The approach to the assessment is discussed in Den Hoedt v Barwick [2006] WASCA 196 [5] (Wheeler J) and [95] – [98] (Buss J).
The plaintiff's soft tissue injuries other than to the lower back were not severe and settled well and are likely to remain so.
The soft tissue injuries to her lower back have been chronic but intermittent in severity and such will likely be so in the future. Further, I am satisfied that with psychological treatment the plaintiff will learn to cope better than she has in the past. This is a case which sits at the lower end of the scale of which a most extreme case (such as catastrophic head injuries or quadriplegia) is the apex.
However, the plaintiff's psychological injuries have been more significant. Her adjustment disorder (with depression) is currently in remission, but there is a real prospect of relapses in the future. It has caused her subjective perception of her physical injuries to be more pronounced than would normally be the case, demoralized her rehabilitative efforts at times, and caused intermittent but severe bouts of depression, in addition to her acute anxiety in 2005.
It is important to bear in mind that she was very active and outgoing when she was a child and, in my opinion, would have continued to be so in adulthood, whereas she is now likely to be sedentary and reserved, as well as unwell when not in remission for depression.
But, an assessment in the order of up to 30% as sought by the plaintiff predicates a worse case than is justified by my findings.
I am satisfied that the plaintiff's injuries should be assessed at 20% of a worst case, ie $78,000. By applying the formula provided for in s 3C(6) of the Act, the award is $77,500, ie:
$78,000 – ($19,500 – [$78,000 ‑ $59,000])
= $78,000 - $500 = $77,500

Special damages

I will hear further from the parties about this head of damages.

Summary

In summary, I assess the plaintiff's damages (apart from special damages and past travel) as follows:
(i)Past gratuitous services  $ Nil
(ii)Past economic loss  $21,252.55
(iii)Future treatment  $22,000.00
(iv)Domestic aids and appliances  $38,721.94
(v)Lost future earning capacity  $116,048.40
(vi)Non-pecuniary loss  $77,500.00
Total$275,522.89