McLean v Bartholomew
[2005] WADC 261
•23 DECEMBER 2005
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: McLEAN -v- BARTHOLOMEW [2005] WADC 261
CORAM: SLEIGHT DCJ
HEARD: 23, 24 & 25 NOVEMBER 2005
DELIVERED : 23 DECEMBER 2005
FILE NO/S: CIV 1782 of 2004
BETWEEN: CATHERINE McLEAN
Plaintiff
AND
TYRONE JON BARTHOLOMEW
Defendant
Catchwords:
Personal injury claim - Liability admitted - Aggravation of pre-existing condition - Turns on its own facts - Award of damages
Legislation:
Nil
Result:
Awarded $34,257.16 damages
Representation:
Counsel:
Plaintiff: Mr T Lampropoulos
Defendant: Mr J R Brooksby
Solicitors:
Plaintiff: Simon Walters
Defendant: Greenland Brooksby
Case(s) referred to in judgment(s):
Graham v Baker (1961) 106 CLR 340
Jongen v CSR Ltd (1992) A Tort Rep 81 – 192
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Purkess v Crittenden (1965) 114 CLR 164
Villasevil v Pickering (2001) 24 WAR 167
Watts v Turpin (1999) 21 WAR 402
Western Australia v Watson [1990] WAR 248
Wilson v Peisley (1975) 50 ALJR 207
Case(s) also cited:
Wade v Allsop (1976) 10 ALR 353, 50 ALJR 643
SLEIGHT DCJ: The plaintiff ("Ms Mclean") was born on 5 March 1961 and is presently aged 44 years. She has made a claim for damages for personal injuries suffered in a motor vehicle accident on 9 July 2002.
The defendant has admitted liability and the trial concerned assessment of damages only.
The critical issues at the trial were the extent to which the plaintiff was disabled prior to the accident on 9 July 2002 and the extent to which the accident aggravated any pre‑existing condition.
As a result of the accident, the plaintiff pleaded that she suffered soft tissue injuries to the cervical, thoracic and lumbar spine as well as to both shoulders.
She pleaded that as a result of these injuries she sustained a partial disability of the cervico‑thoracic spine which produces:
(a)pain, stiffness and tenderness of the neck and back;
(b)limitation of movements of the neck and back;
(c)prominent posterior central disc protrusion at C6/7 with mild impingement on the anterior surface of the spinal cord;
(d)psychological symptoms including depression, loss of confidence while driving and anxiety;
(e)headaches and discomfort together with sleep disturbance.
The plaintiff also claimed that she suffered economic loss and a diminished parameter of employment.
General observations as to the evidence of the plaintiff
Ms McLean gave evidence at the trial in support of her claim. As a general observation, I conclude that Ms McLean was an honest but an unreliable witness (particularly when asked to give historic accounts). In giving her evidence, she was frequently unable to provide details.
This general observation is consistent with how various doctors observed Ms McLean.
Dr C Nick De Felice, psychiatrist, in a report dated 27 May 2004 and tendered into evidence by consent, stated as follows:
"Ms McLean was a very vague historian. I found it very difficult to get clear responses to questions. I had the impression that this was not contrived, nor due to evasiveness. Rather, her responses, at times seemed to be off the point, or she would find it difficult to express herself."
Dr John Rosenthal, a rehabilitation specialist, was called to give expert evidence on behalf of the defendant. In a report dated 27 September 2004, he described Ms McLean as "a rather vague, somewhat disarticulate historian with a poor memory". Later in his report (p 2) he stated:
"She could not be specific in relation to what periods she did or did not work. Throughout the consultation, it was consistently difficult to obtain direct answers to direct questions. There was a repeated tendency to digress."
Also, it was evident from Ms McLean's evidence that she felt aggrieved by the fact that she had been involved in several motor vehicle accidents, including the accident on 9 July 2002, which were not her fault. It is this attitude of seeing herself as a victim which further clouded her reliability when giving accounts of her symptoms.
The accident
The accident on 9 July 2002 took place at the intersection of Scarborough Beach Road and Selby Street, Innaloo.
The plaintiff was driving a Mitsubishi sedan in Scarborough Beach Road when she stopped at a set of traffic lights at the intersection with Selby Street. Her evidence was that her vehicle was struck from behind by a four wheel drive vehicle, forcing her vehicle across to the other side of the intersection.
She described that she immediately suffered shock from the impact.
She admitted under cross‑examination that the damage to her vehicle was minor, in the nature of damage to the rear bumper of the motor vehicle. The cost of getting the bumper repaired was quoted at about $800 to $900, but in fact Ms McLean did not ever arrange to have the vehicle repaired.
Although Ms Mclean maintained under cross‑examination that the force of the impact forced her vehicle through the intersection, she admitted that she then drove a short distance further before stopping and exchanging details with the defendant ("Mr Bartholomew").
Mr Bartholomew gave evidence that he was driving a four wheel drive vehicle in Scarborough Beach Road, Innaloo, on 7 July 2002 when he noticed the plaintiff's vehicle in front of him. He observed the lights at the intersection of Selby Street change to amber ahead of the two vehicles. He said that initially Ms McLean appeared to accelerate as if trying to get through the amber lights, but then braked suddenly. He had also accelerated to follow her vehicle through the lights and when she braked, he also braked suddenly. Despite braking, Mr Bartholomew ran into the rear of Ms McLean's vehicle. He estimated that at the point of impact his vehicle was travelling at about 10 ‑ 15 kilometres per hour. He stated that the impact was minor and that Ms McLean's vehicle was pushed slightly over the white line, but not sufficient to interfere with traffic in Selby Street. He stated that only minor damage was done to Ms McLean's vehicle and no damage to his vehicle. He stated that both he and Ms McLean alighted from their vehicles but, on his suggestion, they got back into their vehicles and drove through the intersection and pulled off into an emergency lane to exchange details.
It was submitted to me by counsel appearing for Ms McLean that the version of Mr Bartholomew was contrary to the admitted particulars of negligence contained in the statement of claim (in particular the pleading that Mr Bartholomew had been "driving at a speed which was excessive in all the circumstances").
In my view, the evidence of Mr Bartholomew is to be preferred to the evidence of Ms McLean as to the accident. I believe his evidence is more consistent with the extent of the damage caused to both vehicles. Further, as I have already commented, I believe that Ms McLean was generally an unreliable witness. On the other hand, Mr Bartholomew impressed me as having generally a good recollection as to where the vehicles finished up after the accident, which strongly supports his version of the extent of the impact.
I do not agree that Mr Bartholomew's evidence was inconsistent with the particulars of negligence pleaded by the plaintiff and admitted in the defence. In particular, the fact that a rear collision occurred inevitably leads to an admission that the defendant drove at a speed excessive in all the circumstances.
I am satisfied that the impact occurred at a speed which was about 15 to 20 kilometres per hour. The force of the impact was minor and led to Ms McLean's vehicle being forced just over the white line and causing to her vehicle minor bumper damage.
Although the collision was a minor collision, it does not mean it is inconsistent with Ms McLean's claim that she suffered an injury in the accident. The reason for this is that on the medical evidence, Ms McLean had a pre‑existing injury to her cervical spine with herniation at C6/7 which meant that she was vulnerable to further injury as a result of a relatively minor motor vehicle accident. Accordingly, this is not the sort of case where the extent of injury and disability is necessarily commensurate with the extent of the force of impact from the collision.
Pre‑existing condition
The defendant in this matter pleads in an amended defence that if the plaintiff suffers any disabilities ‑
"the same were not caused nor contributed to by the accident but are in consequence of an underlying degeneration and/or injuries sustained by the plaintiff in motor vehicle accidents in which the plaintiff was involved on or about:
1. 08.07.1983
2. 05.05.1984
3. 13.11.1988
4. 23.05.1995"
Counsel for Ms McLean submitted that once the plaintiff established a causal link between the plaintiff's current symptoms and the accident on 9 July 2002, the defendant carried the onus of disentangling the extent to which the plaintiff's disabilities might be attributable to the accident and to causes existing prior to the accident on 9 July 2002.
The nature of the onus was explained in Purkess v Crittenden (1965) 114 CLR 164. At p 168, Barwick CJ, Kitto and Taylor JJ stated that the nature of the defendant's onus was an evidentiary onus, which once fulfilled left the plaintiff with the onus of satisfying the court of the extent the injuries were caused by the defendant's negligence. Their Honours stated as follows:
"…where a plaintiff has, by direct or circumstantial evidence, made out a prima facie case that incapacity has resulted from the defendant's negligence, the onus of adducing evidence that his incapacity is wholly or partly the result of some pre‑existing condition or that incapacity, either total or partial, would, in any event, have resulted from a pre‑existing condition, rests upon the defendant. In other words, in the absence of such evidence the plaintiff, if his evidence be accepted, will be entitled to succeed on the issue of damages and no issue will arise as to the existence of any pre‑existing of any pre‑existing abnormality or its prospective results, or as to the relationship of any such abnormality to the disabilities of which he complains at the trial. It was, we think, with the character and quality of the evidence required to displace a plaintiff's prima facie case that Watts v Rake (1960) 108 CLR 158 was essentially concerned. It was, in effect, pointed out that it is not enough for the defendant merely to suggest the existence of a progressive pre‑existing condition in the plaintiff or a relationship between any such condition and the plaintiff's present incapacity. On the contrary it was stressed that both the pre‑existing condition and its future probable effects or its actual relationship to that incapacity must be the subject of evidence (ie either substantive evidence in the defendant's case or evidence extracted by cross‑examination in the plaintiff's case) which, if accepted, would establish with some reasonable measure of precision, what the pre‑existing condition was and what its future effects, both as to their nature and their future development and progress were likely to be. That being done, it is for the plaintiff upon the whole of the evidence to satisfy the tribunal of fact of the extent of the injury caused by the defendant's negligence."
It is therefore necessary to consider the evidence at trial as to what the nature of the plaintiff's pre‑existing condition was and its future effects.
Evidence of Ms McLean's pre‑existing condition
The evidence presented at trial showed that the plaintiff had a significant pre‑existing disability producing symptoms of the type claimed by Ms McLean to have been caused by the accident on 9 July 2002. Prior to the accident on 9 July 2002, she suffered in some form or other all of the symptoms she now attributes to the accident on 9 July 2002.
The evidence of Dr M K I Tan (general practitioner) was that he had been treating Ms McLean since 1980.
Dr Tan's notes indicated that he treated Ms McLean on 11 July 1983 concerning a motor vehicle accident on 8 July 1983. At that time, she complained of a painful left shoulder, neck pain, upper back pain and headaches. On examination, all her movements were restricted. She also experienced lower back pain. There was also tingling around the neck.
She further consulted Dr Tan in July 1985. At that time she was noted to still having problems "with her leg and her work as a hairdresser was severely exacerbating her symptoms" (the transcript records "with her leg" but I believe it is meant to be "with her neck".
On 22 November 1985, Dr Tan attended Ms McLean and noted that she had undertaken chiropractic treatment from a Mr Norman Kramer attending every 10 days over a period of a few months. The chiropractor treated her neck and lower back. It was noted that the treatment did not provide any long lasting relief and that she still suffered headaches and continuing pain in the middle of the neck to the left shoulder and lower back. It was also noted that the neck movements were stiff in all directions.
In February 1986, Dr Tan's notes recorded that Ms McLean's symptoms had not changed. She was still experiencing a lot of headaches, discomfort in the left side of the neck and left shoulder. She was also experiencing lower back pain especially during work. Dr Tan's notes in April 1986 record that Ms McLean was referred to Mr Desmond Williams, an orthopaedic surgeon, and for physiotherapy.
In 1987 and 1988 there were further consultations with Dr Tan when Ms McLean was found to be still experiencing problems with her neck. It was also recorded by Dr Tan that Ms McLean was involved in a further motor vehicle accident on 30 November 1988 and she was found to be suffering from pain in the left side, back of her neck, the left shoulder and arm and was experiencing headaches.
In January 1989, Ms McLean consulted Dr Tan and again Dr Tan noted that she suffered left shoulder pain, pain in her left arm and lower back. Also, her neck was tender and movements restricted.
She further consulted Dr Tan in May 1989 and again he found that her neck was still sore and tingling and was aggravated if she was busy. At that time, Dr Tan arranged for Ms McLean to be examined by Dr Peter Anderson, an orthopaedic surgeon.
Dr Tan also recorded in his notes that in August 1994 Ms McLean consulted him and reported that she had been involved in a further motor vehicle accident and that her neck had been further injured.
In April 1995 Mr Tan recorded in his notes that Ms McLean consulted him concerning lower back pain. She was sent for x‑rays which showed a narrowing of the L4‑5 disc space.
Ms McLean then consulted Dr Tan following a motor vehicle accident on 23 May 1995. At that time, she was complaining of a painful back from the thoracic to lumbar spine, especially throughout the midline. She was also experiencing headaches and her shoulders were aggravated by the accident.
In 1996, she was referred to Dr Jack Edelman and also had physiotherapy from Ms Maureen Lissiman. Ms McLean complained to Dr Tan that the physiotherapy aggravated her neck.
In a report dated 12 December 1996 to the State Government Insurance Commission, Dr Tan stated as follows:
"2.I last saw the patient on the 29.10.96: Her condition had not improved. Her neck as well as all of her back was still very painful. She reported that her left side was worse than her right side. At times the pain in her lumbar region was referred down the back of her left hip or even as far as the left knee.
3 & 4As far as I am aware, as a result of her accident, patient was totally unfit for any work, from 24.05.95 to 27.05.95. Since then, to the best of my knowledge, patient returned to her pre‑accident duties and occupation. However, her symptoms never abated and hence she really remained partially unfit because of the persistence of her pains. She will remain partially incapacitated for a long while yet."
Ms McLean continued to see Dr Tan in 1997 for neck and shoulder problems.
In a report dated 8 September 1997 to the State Government Insurance Commission, Dr Tan stated as follows:
"On this occasion, patient reported an improvement in her lower back. Her neck and left shoulder however were very much the same as on my last report to you.
Catherine still had significant pain, tenderness and restricted movements in her neck and left shoulder. Her duties as a hair dresser frequently aggravated these neck and shoulder symptoms."
Dr Tan did not have any practice notes between 1999 and 2002. He was unable to say the extent to which Ms McLean consulted him in this period. Ms McLean's evidence was that during this period she did not consult Dr Tan often because he had told her that there was not much he could do for her symptoms and she should simply take medication.
In May 2002, Ms McLean consulted Dr Tan and requested that he refer her for a CT scan on her neck. Dr Tan was not able to say why this was done except to confirm that it was at the request of Ms McLean.
Ms McLean gave evidence that she requested the scan as she had been very worried about the possibility of cancer from a lump in her neck. This fear arose out of her brother having a tumour. Although she was cross‑examined at some length as to the reason for seeking this scan, I accept the reason that she gave is correct.
A CT scan was conducted on 14 May 2002. A report from Dr Andrew Harper dated 29 March 2005 describe the results of the CT scan. It identified a small central disc herniation at C6/7 which was indenting the anterior aspect of the thecal sac, but not causing any significant spinal canal stenosis or cord compression.
Significantly, this CT scan was conducted a very short time before the accident on 9 July 2002 and clearly confirms that prior to the accident Ms McLean was suffering from disc herniation in the cervical spine.
Ms McLean in her evidence had difficulty remembering the number and details of the motor vehicle accidents in which she has been involved. However, she recalled accidents in 1983 and 1995.
She recalled that after the 1995 accident, she experienced headaches straight away. She recalled being on medication for headaches and stiffness and soreness which fluctuated. Under cross‑examination, she conceded that she had to turn the whole of the top half of her body in order to turn around when reversing a vehicle.
The extent of Ms McLean's disabilities prior to the accident on 9 July 2002 to some extent can be gauged by the extent to which she was disabled from working prior to the accident.
The report of Dr Tan dated 12 December 1996, to which I have already referred, confirms that at that stage she was partially unfit for work. However, Dr Rosenthal, in a report dated 15 January 1998 stated that the plaintiff was symptomatic but not incapacitated. In evidence Dr Rosenthal stated by this he meant she was not incapacitated for work or domestic duties (T117). In the same report of 15 January 1998, Dr Rosenthal described her symptoms as follows:
"On examination, cervical posture is normal. Her movements are hesitant but full, with the exception of rotation to the right, which is slightly restricted with end range discomfort. There is no occipital nerve tenderness or facetal irritability. She did not complain with axial cervical compression, there is no pain or weakness with resisted scapula movements. There is tenderness without spasm over the left trapezias and the left lavator scapula. She is very subtle in the thoraco‑lumbar spine exhibiting a full pain free range of movement."
Further, in 1998 when Dr Rosenthal gave his report, he believed that Ms McLean was suffering from soft tissue injuries only. No scans were taken at that time and it was only evident in the scan conducted in May 2002 that there was disc herniation at C6/7.
The plaintiff's work history from 1995 onwards indicates the following gross earnings from her occupation as a hairdresser.
1995/1996 $22,672
1996/1997$17,218
1997/1998$ 9,185
1998/1999$11,786
1999/2000$ 8,583
2000/2001$ 8,737
2001/2002NIL
Ms McLean's evidence was that in the financial year ending 30 June 2004 she earned $15.20 per hour at the Head N Hands salon (T26). Ms McLean was unable to recall what the hourly rate was prior to this year. However, by using an estimated average of $14 per hour the following calculations can be made to estimate the number of hours Ms McLean may have worked on the average during the seven years prior to the accident.
| Average Week Earnings from | No. of hours per week based upon $14/hour |
| 1995/96 $436/week | 31.0 hours |
| 1996/97 $331/week | 24.0 hours |
| 1997/98 $177/week | 12.6 hours |
| 1998/99 $227/week | 16.2 hours |
| 1999/00 $165/week | 11.8 hours |
| 2000/01 $168/week | 12.0 hours |
| 2001/02 NIL | NIL |
However, the matter is further complicated by the fact that Ms McLean often worked as a casual or part‑time and therefore the underlying assumption in the above table that she worked 52 weeks each year may not be correct.
However, her evidence was that in 1997 she was working between 24 to 32 hours per week (T18) which gives some credibility to the calculation as set out in the above table at that time.
It is clear that in the financial year ending 30 June 1997 up until the accident on 9 July 2002, Ms McLean's income substantially decreased.
Her evidence was that in 1998 she became depressed (T61) due to changing her address several times. Her evidence was that she was a single mother raising a son born on 29 September 1990 and therefore in 1998 he was about eight years old.
The fact that Dr Rosenthal had suggested that in 1998 Ms McLean was fit to work supports the conclusion that Ms McLean's psychological state and domestic issues made a significant contribution to the drop in income from 30 June 1997.
There is no contemporaneous medical evidence to suggest that between 1998 to 2002 Ms McLean's symptom's increased.
Although a CT scan in May 2002 revealed a disc herniation at C6/7, there is no evidence as to when this herniation occurred.
However, Dr Rosenthal expressed the view that Ms McLean has suffered a natural degeneration leading to her present state and this degeneration would have occurred regardless of the accident on 9 July 2002. Further, although there was no evidence of degeneration between the CT scans on 14 May 2002 and 16 October 2003, there was evidence in the CT scan in April 2005 of "slight increase in size" of the disc herniation which Dr Rosenthal suggests indicates that there has been further degeneration.
Ms McLean was unable to give clear evidence as to why she did not work in the financial year 2001/2002. Her explanation was very vague, but was along the lines that she was still depressed and wanted to spend more time with her son. Her evidence was the decision not to work was largely a lifestyle choice. However, in my view, considering the long standing symptomology, this over‑simplifies the situation and I believe the continual pain that she suffered was a contributing factor in the choice that she made.
Findings on pre‑existing condition
I make the following findings:
(a)Ms McLean has long standing neck, shoulder and lower back disabilities which had been aggravated by motor vehicle accidents on 9 July 1983, 30 November 1988, August 1994 and 23 May 1995.
(b)Immediately prior to the accident on 9 July 2002, Ms McLean suffered significant neck and shoulder disabilities. This included disc herniation at C6/7. The disabilities to her neck and shoulder included stiffness and pain and produced headaches. Also from time to time she had tingling sensations.
(c)Over a period of a number of years prior to the accident on 9 July 2002, she sought chiropractic, physiotherapy and consulted various medical practitioners attempting to address the level of pain and stiffness.
(d)The stiffness was significant in that prior to the accident on 9 July 2002, she could not look around behind whilst reversing a vehicle except by turning the whole of her upper body.
(e)Immediately prior to the accident on 9 July 2002 Ms McLean's disabilities impacted on her earning capacity. She is a hairdresser by occupation and hair dressing involves working with arms held at head height of clients for long periods.
(f)From 1998 onwards the plaintiff suffered a reduction in earnings due to a number of factors being:
(i)an increasing degeneration of the neck and shoulder which created physical restrictions and pain whilst working as a hairdresser;
(ii)depression and lifestyle choices which were influenced by her continuing disabilities in the neck and shoulder area and related symptoms.
I will deal with the issue of the extent of the pre‑existing loss of earning capacity later in this judgment after considering the evidence of the aggravation that has occurred as a result of the accident on 9 July 2002.
Evidence of extent of aggravation caused by the accident on 9 July 2002
Ms McLean in her evidence stated that immediately following the accident she felt like an "electric shock" type sensation through her shoulder blades and neck. She described as being in shock. The next couple of days she described her symptoms as including very strong headaches, extreme stiffness and soreness in the area of her shoulder and neck. She stated that she could hardly move her head.
She consulted a Dr J Kosterich, a general practitioner, who was not her usual doctor, on 10 July 2002 (the day after the accident).
In a report dated 1 July 2003, Dr Kosterich stated as follows:
"On examination there was tenderness in the neck and upper back muscles. It is recorded that flexion movements were reduced to 50 per cent of normal and that rotation was reduced to 75 per cent of normal. It is not recorded that there was any focal neurological deficit. She was assessed as having sustained a muscular or soft tissue injury to the neck region. She was prescribed Tramal as pain relief, Voltaren as an anti‑inflammatory tablet and advised to do neck exercises."
Ms McLean stated in her evidence that she was not satisfied with Dr Kosterich and she later consulted her former doctor, Dr MKI Tan, on 5 August 2002.
In a report dated 6 August 2002, Dr Tan stated as follows:
"On the 9 July 2002, Ms McLean told me that she was involved in a rear end collision, as she was stationary at traffic lights. She stopped at the lights as these turned 'amber' as she approached them.
As a direct result of this rear end collision, Ms McLean suffered an exacerbation of an injury to her neck and back resulting from a car accident on the 23 May 1995. Ever since this 1995 accident she had suffered from neck pain, pain across her shoulders and low back pain. Ever since the 1995 accident, her neck movements such as rotation, had been uncomfortable and limited in range. The accident of the 9 July 2002 made all her symptoms worse. Her headaches also became much more frequent and she noticed numbness down her left arm. The fingers of her left hand also swelled.
On examination, there was tenderness in her neck and across both her shoulders. The left shoulder was worse than the right. There was tenderness in between her shoulder blades. Movements involving these parts were painful and restricted. I was not able to find a cause for the numbness in her left arm.
X-rays: I did not order any x‑rays on her neck as these were done only in May 2002. Please see copy of the report. However, I will discuss with Ms McLean the possibility or need for a post accident x‑ray.
3.In my opinion, currently she is only fit for part time work. She is a hairdresser. In my opinion, she can only do up to 8 hours a week for the next 4 ‑ 6 weeks. Many of the duties as a hairdresser aggravate her pains.
4.To the best of my knowledge she had not been working for some time even prior to the 9 July 2002. She continues to be fit only for light duties and for not more than 20 hours per week. She must avoid repetitive movements of her neck as well as prolonged postures such as flexion (bending down) of her neck."
In a further report dated 18 November 2003, Dr MKI Tan stated as follows:
"Ms McLean continues to have significant and chronic neck pain as well as painful and limited movements of her neck. The movements which are particularly restricted and painful are looking up and down. Side to side movements or looking around are also very difficult and painful."
Under cross‑examination, Dr Tan stated that after the accident the movements of the neck seemed to be much worse (T91). He stated this conclusion was based on his memory that he could not recall her neck being so limited in flexion and extension prior to the accident. However, he conceded that the CT scan taken after the accident had shown no change to the herniation at C6/7.
It is helpful to consider the evidence of Dr Tan in relation to the extent of Ms McLean's loss of earning capacity after the accident to compare this with the loss prior to the accident.
In his report dated 6 August 2002, he stated that Ms McLean was fit for part‑time work only and that in his opinion she could only do up to eight hours per week for the next four to six weeks.
In a report dated 4 October 2002, he again stated Ms McLean could only do in his opinion eight hours per week.
In a further report dated 1 July 2003, he stated as follows:
"Currently, I regard her as fit to do part time hairdressing; maybe not more than 12 hours a week or so."
In a report dated 31 May 2004, he stated as follows:
"Ms McLean continues to be not fit to return full time to her pre‑accident occupation of hairdresser. She works about 12 hours a week as a part‑time hairdresser and there are quite a few tasks at work that she finds either impossible to perform or very difficult to do so. This is because these tasks greatly aggravate her pains. (eg brushing a client's hair, especially if the client has long hair).
In my opinion she cannot do more than about 12 hours of work a week.
In my opinion, she will continue to be only fit to do the above hours for an extended period of time. If I had to give you a time factor, then I would say that this would apply for at least the next five years. There is no certainty that after five years she will be able to increase her hours of work.
Basically this means avoiding, to the best of her ability, any type of movement or tasks which aggravate her painful symptoms. These are wide ranging at present, as just about anything she does can suddenly aggravate her pain.
I can only broadly answer this by stating that her capacity to compete in the open work force is severely impaired.
The way Ms McLean's condition is at present time, it is my considered opinion that she may well have to retire prematurely from the work force and be declared totally unfit for any gainful employment."
In a report dated 14 February 2005, Dr Tan stated as follows:
"She reported that her condition as related to the accident has virtually remained unchanged since her last review by me and since my last letter to you. She did however feel that her headaches were "maybe" not as severe and that she had been working up to 20 hours a week. Duties at work however continued to aggravate her accident related symptoms.
Shortly prior to seeing me she had lost her job.
Apart from maybe being able to work up to 20 hours a week, I have not changed my opinions requested in points 1 ‑ 13 of your letter dated the 27 May 2004."
This last report indicates that Ms McLean in February 2005 had a physical capacity of up to 20 hours per week.
Dr Andrew Harper, Occupational Physician, gave evidence on behalf of Ms McLean.
He explained that due to the pre‑existing C6/7 herniation, which would have developed scarring around the disc, Ms McLean was vulnerable to further trauma at the time of the accident on 9 July 2002. This view was also supported by Dr John Rosenthal in his evidence.
Dr Andrew Harper in a report dated 28 August 2003 concluded as follows:
"At the present time she is capable of half time work as a hairdresser with some restrictions. She would be capable of full time work if her time was divided between hairdressing and some alternative occupation such as counter‑hand or telemarketer."
In a further report dated 23 September 2004 (at p 2) he stated as follows:
"Current work capacity is compromised. She is capable of part time restricted work as a hairdresser, being able to work between 15 ‑ 20 hours per week. She is incapacitated for work as a cleaner or driver."
In a report dated 29 March 2005, Dr Andrew Harper stated as follows:
"In answer to your question of attribution I feel that current partial work incapacity is in part attributable to the motor vehicle accident. The principal pathology underlying her disability is pre‑existing and this has been aggravated by the motor vehicle accident. I feel current reduced work capacity is primarily attributable to her original and pre‑existing pathology and secondarily due to aggravation from the accident of the 9 July 2002."
Dr John Rosenthal gave evidence on behalf of the defendant. He stated in his evidence that Ms McLean, in his opinion, had sustained a soft tissue injury as a result of the accident on 9 July 2002:
"… but in looking at the total picture of her cervical disabilities, it is my view that she would be in the same position today irrespective of this accident that we're talking about." (T110 ‑ T111)
He stated under cross‑examination that there had been an aggravation of her symptoms for a period of time (T114).
Later in cross‑examination he conceded that the accident:
"May have some small degree of current clinical relevance" (T119).
Later he stated:
"I would be prepared to say that the pain is a subjective thing and that it's likely that the accident caused some increased pain." (T121)
One of the difficulties with Dr Rosenthal's evidence is that in 1998 he stated that the plaintiff was fit for work, whereas now he assessed the plaintiff as having a 50 per cent disability as a hairdresser. (T120) To explain this, he stated:
"What I am saying is this. This lady would be in the same position regarding capacity, in my view, irrespective of this motor vehicle accident because of her cervical degeneration and the associated symptoms. Or, put another way, this motor vehicle accident cannot, from a medical perspective, in my opinion be seen to be the sine qua non of 50 per cent loss of capacity as a hairdresser." (T120)
A further indicator of the extent of the aggravation of Ms McLean's pre‑existing condition is to examine her work history since the accident. It must be remembered that at the time of the accident, she was not working and had not worked for over 12 months.
On 24 September 2002, she commenced work with a company "Hair Link" but ceased on 25 October 2002. During the period she was employed with Hair Link she earned $1,671 gross. Ms McLean in her evidence stated that in this period she was being paid about $19 per hour (T25). She also estimated she was working about 20 hours per week. She stated that she stopped working because she was tired. She felt that she was not physically or mentally ready to return to work (T26). She also worked with Quartet Hair Design from 9 November 2002 to 10 December 2002.
She recommenced work on 20 September 2003 with a company "Head N Hands" and worked through to the 19 June 2004 (38 weeks). She earned gross wages of $8,477 in this period. This equates to approximately $223 per week. Ms McLean's evidence was that she earned about $15.20 per hour which equates to about 14.6 hours per week. Her evidence was that she was working approximately 15 hours per week. (T26)
She stated she left because she did not believe she could work to the level required. (T26). She said she was able to cope for the period of 38 weeks because at that time the salon was relatively quiet. (T26)
She returned to work on 29 August 2004 and finished on 6 November 2004. She stated that she was working between 15‑20 hours per week. However, she says that her employer wanted her to work longer hours which she says that she was unable to do due to her physical conditions and, therefore, she stopped work. (T28)
On 27 May 2004 Ms McLean was seen by Dr C Nick De Felice, psychiatrist, who in a report dated 27 May 2004 concluded that there was no psychiatric problems arising from the accident on 9 July 2002 which affected Ms McLean's earning capacity and nor were there any emotional/psychological residual disabilities arising from the accident.
I make the following findings:
1.Ms McLean aggravated her pre‑existing neck and shoulder injury in the motor vehicle accident on 9 July 2002. There was no aggravation of the lower back disability which existed before the accident. There was no psychological disability arising from the accident.
2.Initially, she experienced a significant increase in pain and stiffness in her neck and shoulder with headaches. However, these had abated enough for her to attempt to return to hairdressing in September 2002.
3.The accident did not cause any further deterioration of the disc herniation at C6/7 and the injuries suffered in the motor vehicle accident on 9 July 2002 were in the nature of soft tissue injuries.
4.There remains a worse level of pain in the area of the neck and shoulders due to the accident in 2002, but the primary cause of the existing disabilities relate to a pre‑existing disc herniation at C6/7 and a pre‑existing degenerative process.
Assessment of damages - past loss and future loss of earning capacity
Ms McLean's counsel has submitted to me that the proper method of assessment of the plaintiff's loss is to assess her entitlement on the basis of a loss of capacity of 20 hours per week from the time she was off work after the accident and into the future up to the age of 65 years.
He contended the extent that Ms McLean would have suffered a degeneration due to the pre‑existing injuries ought to be allowed for in any reduction for contingencies. In support of this submission, counsel referred me to the decision of Western Australia v Watson [1990] WAR 248 at p 313.
In the decision of Western Australia v Watson (supra) the court referred to the High Court decision of Wilson v Peisley (1975) 50 ALJR 207 which advocated a method of assessment consistent with the submission of counsel. Significantly, in Wilson v Peisley the plaintiff's claim related to a rare psychosomatic disorder triggered by the accident on a pre‑existing disposition. Accordingly, the pre‑accident condition only created a potential for future disorder. In such circumstances, the court ruled that the assessment of damages ought to be calculated on the basis that the accident caused the full disability but then to discount the amount to take into account the pre‑accident condition as a part of including an allowance for the vicissitudes of life.
In my opinion, in this case, Ms McLean's pre‑accident condition did not create simply a potential for loss of earning capacity. A loss of earning capacity already existed. The accident on 9 July 2002 increased by a small amount this disability. Accordingly, in my opinion the preferred method of assessment should be to focus on the extent of the increase in the disability and to assess damages accordingly.
The plaintiff must establish two distinct requirements:
(a)the extent to which the plaintiff's earning capacity has in fact been diminished by reason of the injuries suffered in the accident on 9 July 2002;
(b)the extent to which the loss of earning capacity is or may be productive of financial loss;
(See Medlin v State Government Insurance Commission (1995) 182 CLR 1 at p 3 per Dawson, Toohey and Gaudron JJ)
In cases where the plaintiff has not fully utilised his or her earning capacity at the time of the injury, for example because the plaintiff was unemployed or partially employed, the plaintiff is entitled to recover what the plaintiff would (not could have) have earned (see Graham v Baker (1961) 106 CLR 340 at p 347 per Dixon CJ, Kitto and Taylor JJ; Watts v Turpin (1999) 21 WAR 402 per Malcolm CJ at p 412).
Ms McLean's evidence was that she completed an apprenticeship as a hairdresser in about 1980. All her work history since was in the nature as an employed hairdresser.
Although she was not working at the time of the accident her evidence was that she intended to return to work as a hairdresser. This would be on a part‑time basis and according to her evidence, she anticipated to work 30 to 32 hours per week (T17).
Her intention to return to work is confirmed by her efforts to return to work after the accident. In particular, she returned to work in September 2002 and again in September 2003.
However, I find that she would not have returned to work 30 to 32 hours per week.
I make the following findings concerning the plaintiff's loss of earning capacity:
(a)Ms McLean's earning capacity immediately prior to the accident on 9 July 2002 had been significantly compromised as a result of her physical condition and her earning capacity at that time was approximately 20 hours per week as a hairdresser. I reach the conclusion that Ms McLean's earning capacity at the time of the accident on 9 July 2002 was approximately 20 hours as a hairdresser taking into account the following matters:
(i)the presence of the disc herniation at C6/7 prior to the accident;
(ii)her symptoms prior to the accident which were aggravated by her duties as a hairdresser;
(iii)the degenerative process that was occurring from 1998 onwards;
(iv)her work history from 30 June 1997;
(b)I find that Ms McLean's earning capacity was further reduced by the accident on 9 July 2002 as follows:
(i)for a period up to about 5 August 2002 the plaintiff was totally incapacitated;
(ii)for a period from August 2002 to July 2003 Ms McLean had a reduced working capacity to about eight hours per week. I reach this conclusion from the evidence of Dr Tan, who was regularly reviewing Ms McLean at the time. However, from 1 July 2003 in accordance with Dr Tan's report dated 1 July 2003, Ms McLean was fit to work about 12 hours a week.
(c)I conclude that from September 2004 Ms McLean was fit to work about 15 to 20 hours per week. This is consistent with the report of Dr Tan dated 14 February 2005, the report of Dr Harper dated 23 September 2004 and the 50 per cent loss of capacity indicated by Dr Rosenthal's evidence. I find that this was a marginal reduction in her earning capacity prior to the accident. I conclude that at various times in the future Ms McLean will be able to work near her capacity that existed prior to the accident but on other occasions due to the additional pain attributable to the accident on 9 July 2002 she will suffer a reduced capacity. I believe an allowance of a reduction of 2.5 hours per week adequately reflects the extent of the reduction of earning capacity attributable to the accident on 9 July 2002. I find this reduction is permanent.
Past loss of earnings
Although I find Ms McLean was totally incapacitated up to about 5 August 2002, I do not believe that her loss of capacity immediately after the accident would have been productive of any loss of income given that she had not worked for a considerable period prior to the accident.
When Ms McLean saw Dr MKI Tan on 5 August 2002, he assessed her as being only able to do "up to eight hours" work per week. Given that I have concluded that she was capable of about 20 hours per week before the accident, I assess her loss as being the equivalent to about 12 hours per week at that time. Ms McLean said in her evidence that she was employed with Hair Link in September 2002 and was earning just over $15.20 per hour. Accordingly, an appropriate amount for the loss at this time is about $15.20 per hour.
I accept that she returned to work in September 2002 and whilst working at Hair Link was working and earning above her physical capabilities. As a result of this, she ultimately resigned.
In a report dated 1 July 2003, Dr Tan assessed her capacity on 1 July 2003 at 12 hours per week. This I assess to be a reduction of eight hours from her pre‑accident capacity.
From 29 August 2004 to 6 November 2004 (10 weeks), Ms McLean was employed by Davidson & Co working about 15 to 20 hours per week. There was no evidence tendered as to Ms McLean's earnings during this period. However, according to a copy of the Hairdressers' Award tendered into evidence and effective from 7 July 2005, the hourly rate for a hairdresser was $17.48 and the casual rate was $20.98. I conclude it is appropriate to adopt an hourly rate of $19 per hour for this period (which is the rate suggested by counsel acting for the plaintiff). Based upon this rate I estimate Ms McLean's gross earnings in this period to be $2,850 calculated as follows:
15 hours x 10 weeks x $19 = $2,850
Consistent with my findings in par 107 I find that from 23 September 2004, Ms McLean's loss of earning capacity was 2.5 hours per week.
For the period after 23 September 2004 I will again use the rate of $19 per hour.
Based upon the above, I assess the loss of past earnings to be:
(a)From 5 August 2002 to 1 July 2003
(approximately 48 weeks)
47 weeks x 12 hours x $15.20 = $ 8,572.80
(b)From 1 July 2003 to 21 September 2004
(64 weeks)
64 weeks x 8 hours loss of capacity x $15.20 = $ 7,782.40
(c)From 22 September 2004 to 22 December 2005
(65 weeks)
65 weeks x 2.5 hours x $19 = $ 3,087.50
Total:= $19,442.70
To be deducted from this amount is the amount Ms McLean earned after the accident. The income records indicate that she earned the following gross amounts:
Hair Link (24/9/02 to 25/10/02) $ 1,671.00
Quartet Hair Design (9/11/02 to 10/12/02) $ 591.00
Head N Hands (20/09/03 to 19/06/04) $ 8,477.00
Davidson & Co (29/08/04 to 06/11/04) $ 2,850.00
Total Earnings: $13,589.00
After deducting these earnings, the gross loss amounts to $5,853.70. From taxation records lodged by the plaintiff, it appears that the income tax assessable on her income in recent times has been approximately 11 per cent and I will reduce the calculation of gross loss by 11 per cent which leaves a net loss of $5,209.79.
I would allow an amount for superannuation at 9 per cent on the gross loss of $5,853.70 which calculates to be $526.83 less 15 per cent for taxation payable on a entry to a superannuation fund, leaving a balance of $447.80 (see Jongen v CSR Ltd (1992) A Tort Rep 81 – 192 per Anderson J at p 61, 714).
Finally, I will allow interest on both the loss of income and loss of superannuation calculated as follows:
Loss of superannuation $ 447.80
Loss of income $5,209.79
Total loss$5,657.59
Plus interest at 3 per cent over 3.4 years $ 577.07
Future loss of earnings
I assess the future loss of earnings at the rate of 2.5 hours per week at $19 per hour less tax (say net $16.90 per hour).
Ms McLean was born on 5 March 1961 which makes her age 44 years nine months (say 45 years). In view of Ms McLean's pre‑accident condition and the possibility for further degeneration, I do not believe she would have worked to the age of 65. I believe a more realistic retirement age is 60. Assuming she would work through to age 60, the 6 per cent multiplier for 15 years is 521.8.
521.8 x $16.90 per hour x 2.5 hours = $22,046.05
To be added to this amount is an allowance for future loss of superannuation. An accepted formula for calculating this is 9 per cent of the present value of the loss of future earnings less 30 per cent (see Villasevil v Pickering (2001) 24 WAR 167 per Anderson J at p 180).
Using this formula I calculate the future loss of superannuation at $1,388.90. This leads to an aggregate loss for future earning capacity of $23,434.95.
In assessing the future loss, consideration must also be given to various future hypothetical events which might impact on Ms McLean's earnings. The extent of the probabilities of these events should be reflected in adjustments to the assessed loss of earning capacity (see Malec v JC Hutton Pty Ltd (1990) 169 CLR 638).
There are a number of factors which require consideration in this matter:
(a)Firstly, the possibility that Ms McLean may have chosen if she had not been injured in the motor vehicle accident to have periods off work. I conclude that with the level of the pre‑existing disability, the likelihood of further degeneration, and taking into account her employment history after 30 June 1998, that it is highly probably that she would have chosen not to work for some periods.
(b)Secondly, consideration needs to be given to the fact that due to her disability she suffers a loss of competitiveness in the work place so that she will have periods where she is unable to obtain work at all. However, I conclude that the loss of competitiveness in the work place substantially pre‑existed the accident of 9 July 2002, and would have progressed as further degeneration occurred. Accordingly, I conclude that the accident on 9 July 2002 has not substantially increased the loss of competitiveness that Ms McLean already suffered.
(c)Thirdly, consideration needs to be given to the fact that as Ms McLean's son became older she would possibly have increased her hours. However, I believe that her physical disabilities would not have enabled her to increase her hours beyond approximately 20 hours per week.
I believe each of these considerations can best be taken into account with an adjustment for contingencies. Normally an award is reduced by 5 per cent to 10 per cent for contingencies (see Villasevil v Pickering (supra) per Anderson J at p 176). In this case I believe, taking into account all of the above considerations an appropriate allowance for contingencies is a reduction of 8 per cent.
Taking into account the 8 per cent reduction for contingencies, I calculate the net future loss to be $21,560.15, say $21,560.
Future medical treatment
The need for future medical treatment must be considered in light of the existing symptoms prior to the accident and also the possibility of further degeneration.
I do not believe that a substantial additional need for treatment arises, the primary problem being the underlying degenerative condition.
I believe an appropriate allowance for future medical treatment is $1,000.
Special damages
These have been agreed between the parties at $202.50.
General Damages
I assess the plaintiff's disabilities arising from the accident on 9 July 2002 to be 7 per cent of a most extreme case which leads to an entitlement under the Motor Vehicle (Third Party Insurance) Act of $5,260.
In summary, I award the following amounts:
Past Loss of Income $ 5,209.79
Past Loss of Superannuation $ 447.80
Interest on past loss earnings and
past superannuation loss $ 577.07
Future Loss of Earning Capacity $ 21,560.00
Future Medical Expenses $ 1,000.00
Special Damages $ 202.50
General Damages $ 5,260.00
Total:$34,257.16
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