McPherson v Vine - [2000] QDC 246

DISTRICT COURT OF QUEENSLAND

CITATION: McPherson v. Vine & Anor [2000] QDC 246

PARTIES: TRACY-LEE McPHERSON (Plaintiff)
v.
JOHN ALLAN VINE (First defendant)
And
AUSTRALIAN ASSOCIATED MOTOR INSURERS LIMITED (Second defendant)

FILE NO/S: 2097 of 1999

DIVISION:

PROCEEDING: Trial

ORIGINATING COURT: District Court Brisbane

DELIVERED ON: 18 August 2000

DELIVERED AT: Brisbane

HEARING DATE: 17, 18, 19, 20 and 21 July 2000

JUDGE: Samios DCJ

ORDER:

CATCHWORDS: NEGLIGENCE – personal injuries – motor vehicle accident – pre-existing condition in neck and back - quantum

COUNSEL: Mr. R. Lynch for the plaintiff
Mr. R. Aldridge for the defendants

SOLICITORS: McInnes Wilson Lawyers for the plaintiff
Mullins & Mullins for the defendant

In these proceedings the plaintiff claims damages for personal injuries and consequential loss the plaintiff alleges she sustained as a consequence of a motor vehicle accident that occurred on 13 October 1998 (the accident). The plaintiff claims her personal injuries and consequential loss were caused by the negligence of the first defendant who was the driver of a motor vehicle involved in the accident. The motor vehicle driven by the first defendant was insured pursuant to a CTP insurance policy within the meaning of that term as defined in the Motor Accident Insurance Act `1994 with the second defendant.

The plaintiff was born on 27 July 1965. The plaintiff married on 11 December 1999 and her surname is now Turner.

The defendants admit that at or about 3.10 p.m. on the date of the accident the plaintiff was driving a Holden which was then stationery on the eastern side of Manly Road, Tingalpa at or about the intersection of Manly Road and Belmont Road. At or about the same time the first defendant was driving a Ford utility to which was attached a trailer carrying a boat on Wynnum Road, Tingalpa in a generally north easterly direction, approaching the intersection with Manly Road, Tingalpa. The Ford then turned into Manly Road and the Ford attempted to manoeuvre around the stationery Holden. A collision occurred when the Ford and/or trailer and/or boat collided with the Holden (the collision).

In her evidence the plaintiff said the reason the Holden was stationary was because it had run out of petrol. After making a phone call to her fiancee there was “just a bang and a jolt and then – totally hysterical, and I quickly rang him again”. The Holden was jolted forward. The plaintiff had her seatbelt on. The plaintiff said this bang and jolt definitely came from the back. She saw the boat go past and thought that was what caused the jolt but she could not be sure. Her evidence was that the Ford and the trailer carrying the boat came around past the plaintiff and then pulled up in the same lane as the plaintiff about five or ten metres ahead of her. Before this bang and jolt, the plaintiff had applied the brakes on the Holden. She had her foot on the brake, the hand brake on, plus the vehicle was in park. The plaintiff said her vehicle was pushed forward when her vehicle was struck. Two employees from the Council came and gave her assistance by pushing the vehicle off the side of the road.

In her evidence the plaintiff said the occupants of the Ford were one male and two females. The male from the Ford came up to her and asked her if she was okay. She told him that she was not and that the children were panicking. The plaintiff said this male asked for a phone number and she went to write down hers but then she thought better of it because she was so soft and she gave this person her fiancee’s phone number. The plaintiff also said in evidence that this male from the Ford never went down the back of her vehicle to have a look. She told this male that her fiance was a tow truck driver and he was going to turn up and that she would like the police there. He said that he was going to go back and move his boat so it did not get hit or anything. However, he just drove away. Because of advice given to her from her fiance she thought she should write down the boat trailer’s number which she did. Subsequently the plaintiff made a report of the accident to the police.

The plaintiff said the Holden did not have any damage before the accident. Later when she got home and a storm had passed she observed a big dent in the tailgate towards the passenger side back of the vehicle and on the side of the vehicle.

The plaintiff said following the accident she felt a headache. The next morning she went to a doctor feeling stiff and she still had a headache. She felt stiffness in her neck and in her lower back. The plaintiff went to the closest doctor. This was Dr. Ng at the Belmont Road Medical Centre. Dr. Ng was not the plaintiff’s usual doctor.

A report of Dr. Ng is in evidence (Exhibit 1). Dr. Ng confirms that the plaintiff was seen by him the day following the accident when the plaintiff complained of a sore neck, a mild headache and a left sided lower back pain. He examined the plaintiff. His advice to her was that she had sustained some soft tissue injuries. X-rays where not performed at the time because the plaintiff may have been pregnant. His advice was for her to rest at home and just take Panadol when necessary and to be followed up by her usual local doctor. The plaintiff returned to see Dr. Ng on 22 October 1998. The plaintiff complained she was still experiencing pain in the neck and pain in the left sacro-illiac region. As the plaintiff was then thought not to be pregnant, he advised her to have x-rays taken of her neck as well as her L-S spines for a review. Dr. Ng did not see her again until 26 October 1998 when she came back with the x-rays. According to Dr. Ng, the x-rays of the neck showed disc narrowing with early spondolitis indicating that was not recent. X-rays of the lower back showed L5/S1 disc narrowing with early spondylitis indicating it was not recent either. No fracture dislocation was seen and the alignment was normal. However, in view of the plaintiff’s increasing pain and stiffness with her cervical spine on that occasion Dr. Ng advised that the plaintiff undergo physiotherapy. The plaintiff was given advice to take Voltarin but she declined because she was planning for a family again.

The plaintiff said after the accident her symptoms worsened and that she had constant headaches and her neck was always as if it was pinching a nerve all the time and really stiff. She went to Mr Campbell, a physiotherapist who treated her twice a week for almost six months.

Mr. Campbell’s evidence confirmed that the plaintiff was treated by him on a number of occasions between 13 November 1998 and 13 May 1999. That involved an initial consultation and 36 standard consultations for which the plaintiff owed Mr. Campbell $1,300 at the date of trial. Mr. Campbell’s report (Exhibit 11) states that the plaintiff reported to him having a previous injury to her neck and lower back from a fall off a horse when she was 17 years of age, and also that she was involved in another motor vehicle accident about three years ago. Further, that these incidents resulted in her experiencing intermittent pain in the neck and back, depending on what activity she was involved with at the time, however did not result in any restriction to her recreational activities, or her activities of daily living. However, the plaintiff reported to him suffering continuing symptoms in her neck and lower back since the accident.

The plaintiff said although she hoped the physiotherapy treatment would help her she found it made her worse. Mr. Campbell, in cross-examination, said that in the initial stages of his treatment the plaintiff seemed to respond reasonably favourably to the treatment. However, towards the end of the treatment, it seemed it was not providing permanent relief and Mr. Campbell and his colleague discussed with the plaintiff concepts of self-management via exercises and heat and different ways of approaching the management of her condition. It was hoped, he said, that over time her symptoms would continue to just gradually settle down with those ideas in mind. Although the symptoms improved at times, the treatment was not providing long term results. The plaintiff’s circumstances were relevant to Mr. Campbell’s treatment because he recalled an episode when the plaintiff was lifting her children and another episode when she tried to do some housework when her symptoms deteriorated.

In cross-examination, Mr. Campbell was asked about research or knowledge on his part of the minimum degree of impact which would be required to cause whiplash injury. He responded by saying that there does not have to be much impact at all. He referred to one study that suggested that in minor impact accidents the actual force often does not leave much damage to the car but the actual occupant can then absorb these forces, and certainly cause quite a bit of damage. It was suggested to him that if a person pushed another person from behind (I took the question to mean pushed physically) that it would be unlikely the person would suffer a neck injury. He agreed with that proposition. Another proposition was put to him as being at the other extreme, when a car slams into another car at 60 kilometres per hour, and that one would have no hesitation in suggesting it is likely somebody would suffer an injury. To this Mr. Campbell responded that it was “yes and no”. He referred to his clinical years that he has seen amazing things when someone will fall two steps off a ladder and fracture their vertebrae, and yet someone is able to fall two stories out of an apartment building and have some fractures to the heels and that is all. He added it was a very peculiar way force does work and regarding the example given, he agreed it would automatically make sense, and added that not everyone from a car accident will walk away with significant trauma. He agreed that technically the higher the force the more injuries would technically be involved.

When the plaintiff gave her evidence in chief, she was asked whether she had any previous accidents in relation to her back or her neck. She answered in the affirmative. The plaintiff referred to an occasion when she was 17 and working as a horse strapper on a thoroughbred stud in Maryborough in 1982. On that occasion she came off her horse and hurt her back, but she was back at work within a couple of weeks. Then in 1996 she was driving a motor vehicle and was not looking where she was going, doing about 15 kilometres an hour and hit the back of a truck. The plaintiff said she thought in 1991 she had a fall but she was not really sure, but she knew that through the times that she had a sore back, and to use her words, “I’ve really whinged about it”. She said that she went to see Dr. Nutting once or twice over the years thinking that she could probably get something done about it then, but it never lasted, so she never really followed through with anything. She also said it was Dr. Nutting’s advice that there was no point in doing anything because he did not think anything was that bad. The plaintiff stated that before the accident she always led a pretty active lifestyle despite her back condition. In support of her claim, the plaintiff tendered a work history and copies of assessment notices and tax returns to demonstrate how she had been engaged in work since 1980 to June 1994. The plaintiff had ceased work upon the birth of her child in 1993. Her other children have been born on 21 July 1995 and 16 August 1999.

As far as her education was concerned, the plaintiff said she did not complete Grade 10.

The plaintiff said she has incurred expenses for medication. Her description about medication was “I live on Panadol”. She stated that she uses about 24 a week at a cost of a couple of dollars. She also purchased a new vacuum cleaner which was easier to use than the vacuum cleaner she had at home. She also incurred expenses in driving to the physiotherapist, and required someone to mow her lawn on six occasions at a cost of $25 per occasion.

In her evidence the plaintiff said that the injuries have affected her in that she is always in pain with her neck. She said some days it is worse, and some days it feels quite good, but just a slight movement can put it out. That can occur when she wakes up in the morning and it can be put out and then she is stuck that way. She said she is always favouring her right side because it seems to play havoc on her shoulder as well. Although she does not do a lot of lifting, she is not a lazy person. She said she is not idle and she still tries and does things, even though she should not be doing them. Some days her neck can be quite good, and there is more movement, but if she makes a turn too quick or looks up or goes to pick up of the children up then she will be completely had it and in her words “in heaps of pain”. As far as her back was concerned, again with respect to that she can have good days and bad days. Some days she can feel on top of the world and can do quite a lot, and then that night she will suffer for trying to do so much and then the next day it will be in her words “horrible”. Though sometimes she might limp, on other days she is fine for a couple of days. She described herself as always being in pain, but it is not as severe.

The plaintiff also said that she requires assistance. Regarding one of her children who is a baby of 11 months, notwithstanding it would cause her pain, she nevertheless picks up the child. The accident has prevented her enjoyment of horse riding which was one of her enjoyments before the accident. Also the accident has interfered with her enjoyment of dancing which was also an enjoyment before the accident.

The plaintiff is now pregnant. It had been her desire to go back to work when her youngest child turned of school age, or at least was in kindergarten, when the plaintiff hoped to do something part time by then. However her pregnancy means that it would be about five years before returning to work. The plaintiff had obtained her learner’s permit for tow truck driving. However she said that when she gets into a truck now it is just too bouncy. The plaintiff had previous experience in car detailing. However, her condition is such that she could not go back to car detailing. Even with being a shop assistant or a waitress, for which she has had previous experience, she said that being up and about so much and having to be on the ball if you are in a busy shop, is not something she could contemplate. She would try to do these jobs because she is a determined person, but she did not think that she would be able to go for a constant eight hours. She has had previous experience as a meat packer. She described that as heavy work. She has also worked as a cleaner. Regarding that work, she described some of that as being heavy and having constant up and down requirements to clean different things. She even has a bit of trouble with that at home. She could not do that work in any event full time. I took her answer to mean that it might be something she could do part time. The plaintiff thought that she could probably look at being a factory hand, although it would depend on what was involved, and whether she could change her position from time to time during her work. Her evidence was that she required domestic assistance, and a schedule was tendered in evidence of her needs. The plaintiff was prepared to undergo rehabilitation if it would assist her in getting back into the workforce.

When the plaintiff was cross-examined, counsel for the defendants suggested that the jolt the plaintiff felt in the accident was no worse than the jolt the plaintiff felt when the motor vehicle she was driving collided with the rear of the truck in the incident the plaintiff said occurred in 1996. To this suggestion the plaintiff responded that the jolt from the accident would have been worse than the jolt in the 1996 incident, although the plaintiff added she did not know. It was also suggested to her that not only was the jolt in the accident not worse than the 1996 jolt, but that the jolt in the accident was barely sufficient to move her body. The plaintiff’s response to this suggestion was “I was there so I suppose I know. I know that I was panicked, so I mean, I was probably pretty stiff and I know I was really hysterical type thing being where we were and what had just happened.”

Later, it was suggested to the plaintiff with respect to the collision that the Ford with the trailer attached carrying the boat did not stop at any time in the motion of passing the Holden. In other words, it passed the Holden, there was a slight coming together and it kept going, pulling around in front of her and stopped. The plaintiff’s response to this suggestion was “When he hit me, yeah, there was a slight hesitation and then he kept – and then he’d go – he went round me and parked up ahead of me”. When asked to describe what the plaintiff meant by a “slight hesitation” she responded “Well, it was like – it went bang and it was like, just for a – you know, a second or two it just – it – there was nothing but then he just kept going.” Thereafter, counsel for the defendants suggested what occurred was a “glancing blow” and that it would be untrue to say that whatever struck the Holden “slammed into you”. The plaintiff’s response was “That’s what I’d call it, sir, that’s all, slammed into me. Jolted me forwards”. It was also suggested that the force of the collision was barely enough to move any part of the plaintiff’s body. The plaintiff’s response was that the collision did move her body, and she described the following “I just remember just getting jolted forward and then sitting back. Just jolted forward and then back”.

It was also suggested to the plaintiff during cross-examination that there was pre-existing damage to the rear of the Holden. It was suggested that one of the women from the Ford who was a passenger in the Ford walked around the rear of the Holden before it was pushed off the road by the two council men referred to by the plaintiff in her evidence. The plaintiff did not accept these suggestions.

With respect to the plaintiff’s complaints of symptoms following the collision, it was suggested to the plaintiff during cross-examination by counsel for the defendants that throughout these proceedings, and throughout the various visits the plaintiff has made to various medical practitioners, she has consciously exaggerated the level of her symptoms, and that she is not nearly as disabled as she makes out. Further, that she has exaggerated and that she is not nearly as restricted and does not have as much pain as she says, and that she does not have as much movement restriction as she says, and that in other words, she is much more healthier than she makes out to everybody. It was suggested to the plaintiff she was “bunging it on” in other words. The plaintiff’s response to these suggestions was to recognise that counsel for the defendants was calling her a liar to which counsel for the defendants answered in the affirmative. In support of these suggestions, counsel for the defendants suggested that at the plaintiff’s wedding reception which was held at the plaintiff’s home on 11 December 1999 the plaintiff did not appear to have any problems at all with her neck or back on that day, and that regularly throughout the reception she moved her head from side to side quickly with apparent ease and that she frequently bent over from the waist for extended periods of time talking to people. The plaintiff’s response to this suggestion was that although she could not remember or recall how she may have appeared on that day, as far as the plaintiff was concerned, she had her good days and she had her bad days. The plaintiff accepted even on her good days she is not pain free. However, she said she can do more on her good days. A video recording showing the plaintiff at her wedding reception and showing the plaintiff some days later was played. That video recording is Exhibit 25 in these proceedings. Although the plaintiff was asked a number of questions regarding what counsel for the defendants suggested the video showed, those suggestions were not accepted by the plaintiff. The plaintiff accepted that she suffers pain and suffers pain most of the time. However, she said that some days she feels better than other days. It transpired during cross-examination of the plaintiff that apparently there was another video recording of the plaintiff taken at another time closer to trial. The plaintiff was asked was she aware that she was being watched within the last couple of weeks prior to the trial. The plaintiff said she felt that she would have been watched. It was suggested to her that she put on a bit of a show for “them” and exaggerated her symptoms. The plaintiff said that she had nothing to hide. She also said “I mean, to me, as I said, I haven’t lied all the way through. To me, it’s – I have my good days, I have my bad, and I know that if I was going to get videoed it is going to get me on a good day and not a bad day, so it just doesn’t worry me, no”. That video evidence taken of the plaintiff in the last couple of weeks prior to the trial was not tendered as evidence before me by the defendants.

The plaintiff’s husband also gave evidence. He has known the plaintiff since mid-1996. Before the accident, he and the plaintiff used to spend a lot of time out dancing, motor bike riding and horse riding. Before the accident, the plaintiff had no problems going out and doing things. He was aware that when the plaintiff was young she had the horse riding accident and that she had been involved in a motor vehicle accident in 1996. What he recalled was that from the 1996 motor vehicle accident she had a sore neck but that did not last long at all. On the day of the accident he was working as a tow truck operator. He received one call from the plaintiff on his mobile phone. He then received another phone call from the plaintiff. He said he tried to calm the plaintiff down because she was pretty hysterical. He drove straight to where she was and found the Holden had been pushed to the left hand side of the road. The first thing he did was to check that his wife and children were okay. He then had a quick look at the rear of the Holden. He noticed there was a couple of dents in the back of the Holden and some damage around the indicator and brake lamps. The damage to the back of the Holden was towards the passenger side. He said there had been another dint in the back of the Holden, however that dint had been there before the accident. He said he had stopped work as a tow truck driver about eight to nine months ago. That was for a combination of reasons. One was that his wife needed help around the house, and the other one was that he had in any event accumulated a lot of points on his licence racing to accidents and for other traffic breaches, so he was losing his licence anyway. His observations of his wife since the accident is that she has deteriorated a great deal to the stage where he has been telling her not to do things. Because she is a person who likes to get out and do things, that has caused some friction between them. He confirmed there had been fighting and arguing over things between them. He said she is constantly in pain, although some days it gets worse and other days she is not too bad, but the pain is always there. He described the work that he does around the house. In cross-examination by counsel for the defendants, Mr. Turner said there were things that he would have normally done around the house, even if his wife had not been injured. However, it was usual for his wife to do the mowing while he was at work, and that his wife would usually do the vacuuming. Mr. Turner denied the suggestion made to him that he was the main instigator behind his wife pursuing these proceedings. Although he obtained three quotes for the cost of the repairs, he did not have the vehicle repaired. The insurer nominated one of the repairers for the repair work, however as far as Mr. Turner was concerned, this repairer did not have Mr. Turner’s confidence. He therefore reached an agreement with that repairer for the repairer to retain some of the money paid by the insurer and for the balance to be given to Mr. Turner so that he could have his vehicle repaired somewhere else. In the end, Mr. Turner did not have the vehicle repaired. Two of the quotes for the repairs were tendered in evidence. Both are dated 15 October 1998 and are Exhibit 26 in these proceedings. The quotes do not, of course, assist to prove whether the damage referred to in the quotes occurred in the accident. Regarding the damage to the Holden, Mr. Turner offered an opinion that whatever struck the Holden must have reversed a little because the indentment on the left hand side of the indicator lens was actually punched in and pushed back towards the indicator. Mr. Turner was also asked about the height this damage was from the ground. Mr. Turner agreed that the tail light was higher than the top of the wheel arch of the trailer. Counsel for the defendants sought to have Mr. Turner agree that with the height of the wheels of the trailer, and where the Holden was before the accident, the damage to the Holden was higher than what would appear to be the height of the top of the mudguard over the trailer wheels. Mr. Turner did not agree with that proposition. He also would not agree with the proposition that his wife could do far more than he described in evidence, and that he has exaggerated his evidence to try and maximise her claim. He also denied the suggestion that he does not do nearly as much around the house as he claimed in evidence. He also denied any suggestion that his wife could do quite a lot of things. Mr. Turner said his wife was actually in constant pain and that the severity alters but she is always in pain no matter what happens. He also added in evidence without having been asked in evidence in chief, and without the plaintiff having been asked in her evidence in chief, their sex life had been affected and they did not go out as much as they had in the past.

Mr. Turner was also asked during cross-examination whether he damaged the Holden in order to help create this claim. He denied the suggestion.

Ms. De Campo, a registered nurse, was also called to give evidence. Ms. De Campo carried out a home assessment on the plaintiff in December last year. That assessment was made to determine the amount of care and assistance that the plaintiff required in her home. Ms. De Campo’s report is dated 4 January 2000 and is Exhibit 10.

Ms. De Campo noticed when she was at the house that the young child went to the father for assistance rather than the mother which she did not feel was set up as suggested by counsel for the defendants. She also observed that the plaintiff did not participate in any lifting, bending down, picking up and so forth of the child. She observed that throughout the time she was there the plaintiff’s husband did everything. Ms. De Campo’s opinion was that the plaintiff required an average 2-3 hours per day assistance and a further extra six hours per day for assistance with child care. However, Ms De Campo agreed that if the plaintiff had three days out of seven days of the week as good days in terms of her symptoms, the two to three hours and the further six hours would be lower.

Dr. Todman, a neurologist, saw the plaintiff on 20 May 1999, 21 February 2000 and 13 June 2000. His reports are Exhibits 2, 3 and 4 in these proceedings.

When the plaintiff was first seen by Dr. Todman, the plaintiff told Dr. Todman that when she was 17 she fell from a horse and suffered an injury to her neck and lower back. She told him she had intermittent pain in these regions subsequent to that accident. That was mainly related to activities or strain in those regions. Nonetheless, she said that her activities were not restricted through her life and she was very active, including playing active sport. She also told Dr. Todman that approximately two years earlier she was involved in an motor vehicle accident. That occurred when the vehicle she was driving hit a truck. She told Dr. Todman that following that accident there was some neck pain, but that soon settled and she was not left with any residual incapacity. Dr. Todman reviewed x-rays of the cervical and lumbar spine performed on 22 October 1998. He states in his first report that the results showed mild narrowing of C5/6 and C6 disc spaces and mild narrowing of L5/S1 disc spaces. In his opinion, those changes were consistent with mild age degenerative change. His conclusion in his first report was that the mechanism of injury to the plaintiff had been a form of whiplash injury to the spine. He states structures damaged include the muscles and ligaments of the cervical and lumbar region. Additional damage to cervical and lumbar facet joints had occurred to account for ongoing symptoms. With respect to the headaches which the plaintiff complained of, Dr. Todman states these are descriptively of muscle tension type. He concludes they are consistent with a whiplash injury of this magnitude. With respect to the horse riding accident, and ongoing symptoms, Dr. Todman noted these were of an intermittent nature and did not preclude the plaintiff from any particular activities. He noted the plaintiff had been quite active in sport and recreation as well as household tasks prior to the accident. Also, the motor vehicle accident which occurred two years earlier appeared to be of a self-limited nature only in terms of any injury suffered. He estimated a 15% permanent disability of the whole person related to the cervical spine injury and a 10% whole person impairment related to the lumbar spine injury.

In Dr. Todman’s second report, he repeated his previous conclusion regarding his estimate of permanent disability. However, in this report in the history he records that when the Holden was struck from behind by the Ford, that apparently occurred at high speed. Dr. Todman was not asked when he gave evidence what, if anything, did the plaintiff say to explain why Dr. Todman recorded the collision “apparently occurred at high speed”.

Finally, in his third report Dr. Todman states there is no doubt the plaintiff has chronic neck and low back pain following the accident. He states these chronic symptoms have failed to respond to appropriate conservative treatment. There was some current exacerbation of symptoms relating to her pregnancy. The pain levels are likely to increase during an uncomplicated pregnancy associated with hormonal factors and the physical demands of carrying a child. He confirmed his previous assessment of permanent disability. Because of the magnitude of symptoms, he concludes the plaintiff is restricted in her future work capacity. He thought she was limited to light or sedentary categories and is restricted from engaging in heavy physical work including meat packer, tow truck driver, bar tending, factory hand and shop assistant. Further, the plaintiff is limited in her ability to bend or lift objects, but in addition prolonged standing or sitting will also pose problems with her chronic pain. He did not think there was a treatment program that would return the plaintiff to her previous level of functioning. He thought a “conditioning program” might assist with pain management and improve her endurance somewhat but is unlikely to have any major impact on her working capabilities. Nonetheless, he believed that a spinal rehabilitation program to include exercise and occupational therapy sessions would be appropriate for her. He did not think that she would benefit from any surgical intervention. He thought she did require extra care and assistance in domestic tasks. He thought five hours of domestic services per week in the future seemed reasonable, although for the first six months after the delivery of a new child, her needs would be temporarily increased, perhaps up to eight hours per week.

Dr. White, an orthopaedic surgeon, has provided three reports regarding the plaintiff. He saw the plaintiff on 26 October 1999 and on 26 June 2000.

The plaintiff told Dr. White about the horse riding accident when she was aged 17, resulting in lower back pain. She told him as far as she could remember she stayed at work and improved without specific treatment. She also told him about the accident when she drove into the back of the truck. She told him following that she was stiff and sore for a few days in the neck and lower back, but she said that she had no ongoing problems. He thought the plaintiff had suffered a flexion/oblique extension injury to the cervical spine, and a soft tissue injury to the lower back consistent with the history given. I have understood Dr. White’s opinion expressed in his report dated 27 October 1999 to be that the plaintiff has had significant symptoms six months post the accident, and that on the balance of probabilities, it was more likely than not that she suffered a degree of permanent impairment as a consequence of the accident. Further, that he assessed this to be a 5% to 10% permanent impairment of the whole person. In his second report dated 22 November 1999 regarding this whole person impairment, he states that after 10 to 15 years due to the condition of the plaintiff’s lumbar spine due to the progression of deterioration naturally occurring, the plaintiff would be left with a 10% to 15% permanent impairment of the lumbar spine. Of that range, it was in his opinion reasonable to attribute half to the accident.

In his final report, Dr. White was of the opinion that the condition of the plaintiff’s cervical spine was stable and stationery and he considered she displayed a 10% whole person impairment as a consequence. He would attribute two thirds to the accident. Regarding the lumbar spine, he thought that was stable and stationery and considered that she displayed a 10% whole person impairment as a consequence. Of that, he attributed one third to the accident.

Mr. Seibel, an occupational therapist, has provided two reports regarding the plaintiff. He assessed the plaintiff on 22 October 1999 and on 21 June 2000.

In his first report Mr. Seibel thought the plaintiff would benefit from rehabilitation, the total cost for this treatment being $900. In Mr. Seibel’s second report, in the physical demands categories identified by the United States Department of Labour, he states that the plaintiff’s current functional capacities equate to sedentary. He also states the plaintiff requires a vocational rehabilitation provider to assist her to return to commercial employment. The cost for this would be in the order of $2,000.

Mr. Seibel agreed during cross-examination that if the plaintiff’s fitness was improved, the plaintiff could possibly be classified capable of doing light work. With respect to many other occupations, Mr. Seibel agreed the plaintiff could perform those occupations subject to qualifications such as being able to vary her posture, and depending upon the amount of handling involved in the work. Mr. Seibel also agreed that it would be true that a person aged 40 to 45 years of age who had not been in the workforce for 10 or so years would find it difficult obtaining work in any event. Though Mr. Seibel observed that having some physical limitations makes it that much harder and more demanding for that type of person.

The video that was admitted in evidence was shown to Dr. Todman. Dr. Todman observed the plaintiff’s back was straight as she bent down, and that she was bending at the hips. Dr. Todman also thought when viewing the video that it was relevant to know whether the plaintiff took analgesics on her wedding day. He also, up to a point in the video, did not observe any sudden neck movements. He thought any neck movements were moderate in speed. He also made the observation that one would probably find most women on their wedding day run on a certain degree of adrenalin to enable them to cope with levels of pain that they could not at other times. It was suggested to Dr. Todman, his response was a “good day, bad day explanation”. In response to that suggestion, Dr. Todman said:

“No, it’s just what I said. That in certain circumstances when one has to perform in an activity, one can cope with it whereas one may not necessarily be able to do on a day to day basis.”

Another answer Dr. Todman gave with respect to the video was as follows:
“Well, I don’t think you can really draw any conclusions whatsoever from this video that you’ve shown me. The only thing that I’d say that seems reasonably a definitive statement is that when she bends over her back is so straight and presumably that relates to muscle spasm in the spine in that she is bending at the hips.”

Regarding neck movements of the plaintiff depicted in the video, Dr. Todman’s answer was:
“I don’t think they are conclusive about anything, is my statement. And I base it on the explanation that I gave to the court earlier about what constitutes pain with neck movements and usually it is the pain past the 45° angle and increases in intensity as you get to 90°. Most people with neck pain can do that movement whilst it still may cause pain and that pain may be influenced by the level of analgesia at the time”.

Generally speaking, Dr. Todman did not vary his opinions as expressed in his reports, despite being shown the video of the plaintiff that was admitted in evidence.

The video that was admitted in evidence was also shown to Dr. White. Dr. White made the same observation made by Dr. Todman. That is, that when the plaintiff was bending, she was bending from the hips. According to Dr. White, there was very little spinal movement in the way the plaintiff was bending. He also observed the neck itself was not moving a lot. Although there was a fair movement to the left, he said that was only about half the normal range. He thought a relatively young person and I inferred he was referring to the plaintiff, should be able to look over either shoulder. He conceded that the speed of the next movement the plaintiff demonstrated was quite quick though. When it was suggested that he observed the speed of the head turning and comment whether he saw that as significant, his answer was “That was the body and head – more body then. Quite a good turn of the neck there and there. Judging by the profile of the face, that is a turn of somewhere approaching a quarter to a third of normal. Similar, but with a good turn of the body. There is more body turn in those two gestures than there was neck.” Regarding movements, Dr. White also said “Well, that’s not moving the neck, then, that’s rotating in the spine, say, from the waist up.”

There were occasions shown on the video which Dr. White thought showed good movement of the neck. He also thought that with those good neck movements the plaintiff would not be feeling pain. I asked the doctor this question and he gave this answer:

“Doctor, even though somebody might be feeling pain, does mean they cannot make the movement?-- No, Your Honour. This very much depends on your motivation for doing what you are doing, your stoicism, whether you have had alcohol, whether you have had analgesics. All of these might -----
If you got people talking to you?-- Yes, the situation of interest as opposed to boredom or something of low stimulation.”

Dr. White, in further answers to questions regarding what could be seen in the video, identified that if someone was suffering pain they would restrict their movement. However, circumstances could change the situation one was in and depending upon those circumstances, the person suffering pain might “pay for it later”. He did recognise though good movement of the neck being shown in the video. However, he qualified that by saying it was not the extreme of motion or the extreme of normal motion but sustaining that position for any length could be expected to cause pain in somebody with pathology in the neck.

On 9 November 1998, the plaintiff completed a Motor Accident Personal Injury Notice of Claim form which was received by the Nominal Defendant on 16 November 1998 and by the second defendant on 25 November 1998. In this form in answer to question 38, the plaintiff identified the 1982 accident when she hurt her lower back (mainly) and her neck. She also identified Dr. Rudolph from Maryborough as the relevant doctor/hospital. In answer to question 39, the plaintiff identified that in 1992 she made a claim for workers' compensation. She identified the name and address of the person against whom the claim was made as Calverts Meats of Sumner Park.

The plaintiff closed her case before lunch on the second day of the trial. At that point in time the defendants were not in a position to rely upon documents in Dr. Nutting’s file regarding the plaintiff, and documents made available to the defendants from the Workers' Compensation Board relating to three applications by the plaintiff for workers' compensation. On the third day of the trial I ruled that I would grant the defendants any necessary adjournments to enable the defendants to make use of these documents as the matters contained in those documents had not been put to the plaintiff nor to her witnesses, nor had the documents been considered by witnesses called and to be called by the defendants.

By that stage, Dr. Ohlrich, a neurologist, had already given evidence. The further documents from Dr. Nutting’s file and from the Workers' Compensation Board claims had not been considered by Dr. Ohlrich at the time he gave evidence in the trial. In his report dated 19 October 1999, Dr. Ohlrich noted that the plaintiff, when she was 17, fell off the horse and injured her back. He states in his report the plaintiff was not clear as to whether she had significant low back pain after this but could not recall any definite episodes of low back pain, that the back pain from that injury had settled completely, and that three or four years earlier she had been involved in a motor vehicle accident when she was in a car that hit a truck. Further, that the plaintiff had a neck injury at the time, but was not sure, she stated she had neck symptoms or stiffness for a day after this incident, but was unable to remember if she had any neck symptoms after that time. Further, there was no other history of neck or back injuries and the plaintiff said there had been no other significant episodes of neck or back pain. Dr. Ohlrich saw the plaintiff on 19 October 1999. Dr. Ohlrich noted on testing that there was inconsistency that occurred when comparing the upright standing position and the plaintiff bending forward to when she was lying on the couch with her legs straight out, and having the plaintiff forward flex the thoraco-lumbar spine. Whereas the plaintiff was only able to get her fingertips to just below her knees when she bent forward, when on the couch bending forward she was able to bend well beyond 90° with no apparent discomfort. Apparently there was also inconsistency regarding shoulder movement. That is, the plaintiff showed full range of shoulder movement, but she indicated discomfort with elevation of both arms above 90°. Regarding the plaintiff’s headaches he thought they were probably not related to the accident. Further, he believed it was unlikely there was any significant permanent impairment suffered by the plaintiff in the accident. He did not think there was any disability which would significantly interfere with her ability to care for her children or return to her work in her previous employment.

During cross-examination Dr. Ohlrich confirmed that what he meant in his report was that the plaintiff in his opinion had no impairment from the accident.

The documents from Dr. Nutting’s file and the documents from the Workers' Compensation Board files confirm that the plaintiff fell from the horse and suffered an injury to her back in 1982. Then on 21 April 1986 as a consequence of lifting a crate of bread at work the plaintiff suffered an injury to her neck and spine. Despite the injury to the plaintiff’s back in 1982, in a statement signed by the plaintiff and dated 5 June 1986, with respect to the lifting of the crate of bread, the plaintiff stated she never suffered from a neck or back injury prior to that incident. When the plaintiff was cross-examined about these further documents and in particular this statement, she noted the statement was not in her writing and she could not recall the circumstances of the making of this statement in 1986. The plaintiff said in any event the 1986 incident did not cause her any permanent disability. The third workers' compensation claim related to the plaintiff putting on her overalls in the bathroom at her place of work when she slipped and fell on her behind. That occurred on 6 July 1992 at her employer’s bathroom, Calverts Meat at Sumner Park. On that occasion she apparently injured her lower back and neck. A letter from Dr. Armitage to the Workers' Compensation Board dated 4 December 1992 records that at that stage the plaintiff’s back was still painful and Dr. Armitage did not consider that the aggravation caused by the incident on 6 July 1992 had ceased, but the plaintiff was given a trial of work. Another letter from Dr. Armitage in the Workers' Compensation Board documents shows that the plaintiff presented to Dr. Armitage’s surgery on 6 July 1992 complaining of a sore back and neck which she had alleged occurred during a fall at work while she was putting on her overalls in the toilet. The plaintiff presented again on 13 July 1992. X-rays had been performed of the neck and chest which were reported as normal. A CT scan was performed in March of 1992 which showed a L5/S1 disc which occurred in a previous work injury. Dr. Armitage saw the plaintiff again on 14 August 1992 with continued lower back pain extending into both legs. Dr. Armitage states in the letter the plaintiff was to see Dr. Nutting, the orthopaedic surgeon. Dr. Armitage saw the plaintiff again on 24 September 1992 at which time Dr. Armitage states the plaintiff’s back was not mentioned. Dr. Armitage assumed from this that the plaintiff had made a good recovery from that injury. These details are contained in a letter from Dr. Armitage to the Board dated 10 November 1992. In another document relating to the 1992 accident when the plaintiff slipped over in the toilet, the following appears:

“Claimant a 27 year old meat packer who is seeking to R/O her claim for a neck and back injury from 14 August 1992. Claimant originally hurt her back in 1986 lifting a carton of bread. This was diagnosed as apopyseal joint dysfunction in the cervical spine and upper thoracic spine. She was then off work for one week but experienced increasing neck and lower back pain during the intervening years until the OAT determined in March this year, the claimant was suffering from neck strain and aggravation of pre-existing lumbo-sacral disc degeneration resulting in a temporary partial incapacity for work. It is this the claimant is attempting to R/O.”

Dr. Vadlamundi was the plaintiff’s local doctor. Dr. Vadlamundi’s notes are Exhibit 40 in these proceedings. These notes show that on 2 October 1991 the plaintiff complained to Dr. Vadlamundi of severe back pain. Reference was made to the original injury being a fall from a horse 9 years ago. Dr. Vadlamundi’s notes also show that on 22 October 1991 Dr. Vadlamundi referred the plaintiff to Dr. Nutting regarding low back pain. These entries in Dr. Vadlamundi’s notes show that the plaintiff had a need to see Dr. Vadlamundi regarding back pain before the plaintiff’s fall in the toilets in 1992.

This then brings me to Dr. Nutting’s notes. In these notes there is an entry on 6 June 1989 in which Dr. Nutting notes that at the age of 16 the plaintiff fell from a horse. He states: “Dates back pain since.” Further, “complains of widespread pain but central low back mostly usually to? R.” Dr. Nutting also records “Has had physio about six times in Newcastle.” On 29 October 1991 Dr. Nutting records that the plaintiff’s back was getting worse and that the plaintiff had problems standing and lying. He noted the plaintiff was a shop assistant at the time and that she was wearing a back brace. An entry on 15 June 1992 records the plaintiff packing in a meatworks and that her back was giving her “hell”. The plaintiff felt her back going to jelly. In Dr. Nutting’s entry on 28 August 1992 he notes that in early July the plaintiff had slipped on her overalls at work and that she had neck and back pain. He noted that the plaintiff’s neck was then giving her problems. An entry of 5 December 1995 notes the plaintiff woke with stiff neck but no hand symptoms. However that she could get left sided T1 numbness. The entry also suggests there was pain in the C5-6. In Dr. Nutting's records there is a letter from Dr. Forbes to Dr. Nutting dated 29 May 1989 noting that the plaintiff had helped her mother in a cleaning business, but that the plaintiff’s back was causing her enough pain to make her unable to do any cleaning. However, the letter notes the plaintiff had been working as a casual bar attendant. In this letter reference is made to the horse riding accident when the plaintiff hurt her back and then follows this statement:

“The pain has been there ever since, but at times it is severe enough to immobilise her”.

On the third day of the trial the plaintiff returned for further cross-examination. The plaintiff did not disagree that she saw Dr. Nutting on the occasions referred to in the documents and that what was recorded was correct. Basically though the plaintiff was unable to recall a number of matters recorded in these documents. The plaintiff had difficulty with the concept that her back was causing her enough pain to prevent her from doing cleaning because she thought she still worked for her mother even though she had her first child. The plaintiff did not agree though that she had had fairly constant back pain after the fall from the horse. She said that when she was lifting heavy things she would have had pain at times. The plaintiff said throughout the years referred to she had worked and some of that work had been heavy work. Some of the work was bartending and car detailing. Regarding the injuries suffered by the plaintiff when she was lifting the crate of bread, her reason, she said, for not telling any of the doctors about that incident was that she did not remember it. She had not remembered it until the third day of the trial. The plaintiff said a lot had happened in her life in the last few years, however seeing the documents had jolted her memory. The plaintiff also referred to having had a lot of jobs and tried a lot of different work situations. The plaintiff disagreed with the suggestion made in cross-examination that since 1982 when she had the horse accident she suffered regular frequent ongoing pain in her low back and neck.

Dr. Ohlrich was not recalled. However, the parties agreed to admit as part of his evidence in addition to the evidence he already gave that in relation to the medical history of the plaintiff and the additional accidents, Dr. Ohlrich would say that this confirms his opinion that the plaintiff suffers no disability attributable to the accident and served to explain the continuing symptoms suffered by her.

Another occupational therapist, Ms. Davis, assessed the plaintiff on 31 January and on 8 March 2000. The plaintiff told Ms. Davis about the fall from the horse when she was 17 years of age. Apparently the plaintiff stated that she did not undergo any treatment for the injuries suffered in that accident, and reported her symptoms settled. The plaintiff also told Ms. Davis about the 1996 motor vehicle accident. However, it appears from Ms. Davis’ report that the plaintiff told Ms. Davis that the plaintiff was hit from behind by a following vehicle. With respect to that incident, the plaintiff told Ms. Davis she felt very stiff in the neck and back, however reported no residual problems. In Ms. Davis’ report she summarises the plaintiff’s functional assessment. Ms. Davis states in her report her overall performance indicated the plaintiff’s suitability was for sedentary to light work. Ms. Davis also made some recommendations for the plaintiff with respect to future household assistance. Ms. Davis also agreed with Mr. Seibel and Dr. White that the plaintiff would benefit from a treatment and exercise program to increase her functional tolerances. Following that, Ms. Davis expected the plaintiff could increase her domestic activities and work tolerances. Ms. Davis makes a number of comments regarding the plaintiff’s employability. These are:

(a) The plaintiff was not working at the time of the accident. She planned to return to work in approximately 5 years once her younger son had commenced school;

(b) Results of the functional capacity assessment and the plaintiff’s self report revealed she is not suited to return to work as a meatpacker, waitress, courier driver and/or factory worker at present;

(c) However based on the injuries sustained, Ms. Davis believed with commitment to a conditioning program the plaintiff would be able to return to her pre-injury position. The cost of that conditioning program was approximately $1,800;

(d) Ms. Davis considered the plaintiff’s previous employment such as shop assistant at a roadhouse to be within her capacity if she was able to frequently adjust her position.

Ms. Davis was cross-examined by counsel for the plaintiff. Ms. Davis, by her answers, showed enthusiasm for the exercise program she suggested the plaintiff ought to undertake and was confident it would assist the plaintiff. However, Ms Davis agreed that even with such a program, while there may be some improvement, it was possible that the plaintiff may still be left with her residual problem. That problem was the aggravation to her condition through repetitive lifting of weights or bending and stretching. Ms. Davis suggested there might be a wide range of factors relevant to whether the program would be successful in the plaintiff’s case. She agreed that it was her hope the conditioning program would improve the plaintiff’s condition. In fact, Ms. Davis thought the plaintiff could improve enough to return to the plaintiff’s previous occupation as a meatpacker. Ms. Davis suggested that practices had changed in that industry now and the plaintiff would not be required to lift 60 kilogram weights as had been the case for the plaintiff in 1992. Nevertheless, Ms. Davis agreed that at the time of the assessment the plaintiff would not be able to work in that position of meatpacker, and the other occupations of waitress, courier driver or factory worker. She thought the plaintiff could work with a very sympathetic roadhouse owner as a shop assistant. Ms. Davis confirmed in re-examination that what was required for the plaintiff to improve would be motivation and commitment to the program.

The plaintiff was examined by Dr. Toft, an orthopaedic surgeon, on 19 October 1999. The plaintiff told Dr. Toft about the horse riding accident at the age of 17 and that the plaintiff had lower back pain from time to time following this incident. Also that the pain was aggravated by heavier physical activity. The plaintiff does not appear to have told Dr. Toft about the 1996 motor vehicle accident which the plaintiff mentioned to other medical practitioners and the occupational therapists. Dr. Toft also, when he provided his report following his examination on 19 October 1999 did not have the benefit of Dr. Nutting’s notes and the Workers' Compensation Board files. Dr. Toft’s opinion stated in his report was that the plaintiff appeared to have suffered some degree of aggravation to her already pre-existing symptomatic lumbar spine. At the time he thought the plaintiff had an impairment of 2½ % of the whole person in relation to the lumbar spine of which he would estimate that 25% resulted from the aggravation caused by the accident and the remainder would be due to the ongoing effects of the pre-existing condition. He also thought there would be further improvement and he believed that after a period of a further six months, any increasing impairment in relation to the lumbar spine would be due to the pre-existing condition alone. Regarding the intermittent neck symptoms which the plaintiff had, Dr. Toft was of the view that the plaintiff gets aggravation caused by certain types of physical activity. He thought her x-rays showed long standing mid cervical degenerative changes. He thought these changes had been made symptomatic by the accident but he would believe that any aggravation she has suffered would cease after a further six months or so, and that any ongoing impairment after that time would be due to the natural progression of the pre-existing condition. In his opinion, the plaintiff would have suffered neck symptoms of the type she currently has at any time, even if she had not had the accident. He did not believe any of the injuries the plaintiff suffered in the accident would prevent her from working in the future. He thought any restrictions to work would be due to the natural progression of any pre-existing conditions. As far as he could determine, there had been no aggravation of any consequence to the plaintiff’s symptoms by her pregnancy or delivery. She complained of some restriction currently to looking after her new born baby although it would appear that she could cope.

Dr. Toft was provided with the further documents before he gave evidence on the fifth day of the trial. Dr. Toft thought these further documents showed that the plaintiff had previous problems with her neck and if he had been aware of that, it may have influenced his final opinion, although it was difficult for him to say how it may have. Nevertheless, even with that further information, he said that would not affect his apportionment of the pre-existing part of the plaintiff’s current condition. That is, he still believes that there was probably a temporary symptomatic aggravation, or temporary production of symptoms in her neck and the affects then ceased. Again in relation to the lumbar spine, he did not think the further information would affect his apportionment to the pre-existing part of her current condition. He felt the plaintiff, having informed him that she had moderately severe intermittent symptoms, he felt there had probably been some degree of aggravation of that pre-existing condition.

When Dr. Toft was cross-examined, he agreed with counsel for the plaintiff that in determining the significance of pre-existing degeneration, it is important to consider the plaintiff’s recent history, that is her history over the last two to three years prior to the accident. Dr. Toft said he would take into account as a factor in his assessment of the plaintiff, if it were correct, that the plaintiff had for two to three years prior to the accident been more or less symptom free in both her cervical and lumbar spine. Dr. Toft was asked to consider that after the accident which was described by the plaintiff as a rear end collision she had suffered symptoms consistent with whiplash type injury. Further, that the following day she presented to a general practitioner complaining of headache and pain in her neck and also in her lumbar spine and thereafter she undertook six months of physiotherapy. Also, having seen the plaintiff almost 12 months to the day following the accident, she was still complaining of symptoms in both her cervical and lumbar spine. Dr. Toft was asked in those circumstances, the literature is quite clear that there is a likelihood of permanent injury. With that proposition, Dr. Toft agreed. It was then suggested to Dr. Toft that in respect of the plaintiff’s cervical and lumbar spine, if one accepted the history one could easily attribute at least 5% whole person impairment to both the cervical and lumbar spine. Dr. Toft’s response was to say that proposition is based purely on a person’s complaint of symptoms. Dr. Toft felt he had to make a decision whether he felt those symptoms were significant. He accepted that the plaintiff said she had those symptoms, although he said he is required to make a judgment on the significance of the complaint of symptoms. The proposition was put to Dr. Toft that he had formed a judgment with respect to the plaintiff’s credibility. Dr. Toft agreed he had. He based that mostly on the aspects of the history, and on the physical examination. To justify his view, Dr. Toft referred to what appeared to be the case to him. That is, that with particular reference to the lower back, the pregnancy did not seem to materially affect the symptoms. He said the plaintiff had told him that since she had the baby there had been no change in her back condition. He agreed though the plaintiff had told him she did have some problems picking up the baby and bending over changing nappies. He also supported his view by his observations of the plaintiff. He thought the plaintiff had quite normal head and neck movements and that when he attempted formal examination, there was virtually no movement obtainable and those two factors did not correlate. Dr. Toft agreed in terms of apportioning responsibility for the plaintiff’s pre-existing condition and the accident to her current condition, he was making an estimate because these are matters that are not based on science. He thought the plaintiff may have had overall an 18 month aggravation of her neck condition. He agreed the literature again says that if a person has continuing symptoms after a period of 12 to 18 months, then the indications are that the symptoms will be more or less permanent.

In re-examination, Dr. Toft was asked about the literature referred to, and he said it was a very difficult area because the outcome for a person injured is based purely on patient reporting of symptoms. Further, with respect to the history he had become aware of after his report, he believed that history made it less likely that the plaintiff was symptom free during the two to three year period prior to the accident. He understood the further information to indicate the plaintiff’s back problem was a recurring problem associated with various forms of heavy physical activities and it was an ongoing problem and had never ceased. He also thought that the speed of impact in a motor vehicle collision does play a part in the likelihood of injury occurring.

The further documents were shown to Dr. White. He was then recalled to give evidence. Dr. White said that from the documents it would appear to him that the plaintiff’s back and neck symptoms to the point of some disablement has occurred on considerably more occasions that he had believed and perhaps been a little bit more severe than considered, although as he had previously said, the question of how much time off work and what was done in between was not apparent. He said he still subscribed to the view justified by the American Medical Association guides, that aggravations to pre-existing pathology do produce a permanent deleteriousness of a sufficient case. Further, that although it is not a scientifically precise estimation, he would have to consider that the impairment the plaintiff presently displays as a consequence of the accident could perhaps be 1/3 of the 10% that he apportioned as her total impairment and that of the lumbar spine considerably less than half, perhaps a third. Dr White accepted that there was no question from these documents that the plaintiff has had lower back symptoms dating from 1982, and that from time to time there has been significant pain. However, he said the question that arises from his point of view is basically what was the plaintiff like between these times, and how functional the plaintiff was in terms of employment. He said he did not have details of that. Dr. White would not accept the description of the plaintiff’s condition as having been chronic, or that she had suffered chronic pain. To be chronic or suffering from chronic pain, as far as Dr. White was concerned, would be presenting to a doctor every two or three months for a regular prescription or something like that. Dr. White said the plaintiff had intermittent difficulties, and that can not be ignored. However, how disabled she was from various times was for others to supply. He thought there was a fair gap in the latter three years prior to the accident in question, and that that would be the period of time one would be asking the plaintiff about. However, Dr. White was sure that the plaintiff was not symptom free between 1995 and the accident. Even though Dr. White accepted that the plaintiff’s injury to her back in April 1986 when lifting the crate of bread may add to the plaintiff’s overall pathology, he thought one needed detailed information to assist in expressing an opinion. Dr. White said that the human condition is one of having intermittent back aches from time to time, for example after a game of squash or tennis, and that these are not necessarily aggravations or continuing ongoing problems, and the detail is missing. Dr. White thought even if the plaintiff had worked, that does not mean the plaintiff was not suffering low grade chronic pain in either the neck or back or both. However, he agreed it was a matter of degree and he referred to individual stoicism, a person’s need for socio-economic support, the job itself, and of course the problems with pain and how severe it is at any time. He accepted that it was possible that even if the plaintiff worked in the 1980’s and early 1990’s that was not inconsistent without more of her having chronic pain in both her low back and neck. He agreed that one would need to know how many hours the plaintiff worked, the type of work she was performing and indeed the number of days per week she was working in this context. He thought it was theoretically possible the plaintiff could perform work as a cleaner for two or three hours a day, two or three days a week, but not 8 hours a day, 5 days a week.

In re-examination, Dr. White said with reference to the American Medical Association Guides that these are arguably a bible. He said that guide stated that for an aggravation to be considered in assessing impairment, there must have been a 3% permanent deleterious change in the underlying pathology, and he would agree with that. He added that to his mind that gave the lie to the statement that all aggravations have only a temporary effect. He said there may well be a permanent ongoing progressive deterioration. He thought it appeared likely that was the case with the plaintiff.

In further cross-examination, Dr. White said he thought it was likely that the plaintiff’s back pathology such as it has been affected by the various accidents in the past will continue to deteriorate. He could not say over what time it would deteriorate.

When Dr. Todman was further cross-examined when he was recalled, with respect to the further documents, he said those documents say more about the nature of the plaintiff at intervals during the years in question. However, he said he thought in the overall context the years leading up to her accident in 1998 there has been a scarcity of any references to pain during that time which to him means that although she had difficulties intermittently in the past, that those difficulties had stabilised. For that reason he did not think the documents fundamentally affect the conclusions he had reached. He added they do have some bearing on her vulnerability to further incidents which was covered in earlier evidence he gave. He thought one would look at the more recent past as being relevant to current disability rather than historical pain patterns related to an earlier accident. For example, if one looked at the accident that occurred in 1998 and a level of disability, he would be most interested in what was the plaintiff’s level of pain in the preceding two or three years as it might relate to the previous incident, rather than historical pain going back more years. Therefore, as he did not believe that the plaintiff’s pain levels were substantial in the years leading up to the 1998 accident, he did not think that there was a great deal of current disability related to previous incidents. He agreed that the documents suggested that at least between 1982 and 1989 the plaintiff was suffering chronic pain of a variable nature in her lower back. Dr. Todman thought that historically it seemed that the plaintiff did improve based on her history, and he thought there was some corroboration from her work history as well. Reference again was made to what the literature provides with respect to soft tissue injury arising from a whiplash not clearing up after a couple of years, then it is likely that whatever the symptoms are after that period will be permanent. Although Dr. Todman agreed that was a general statement based on population studies and large groups of patients, in his opinion it could not be extrapolated into an individual patient and make a conclusion that one is never going to get better or that one is never going to experience any improvement. He thought it did not follow that one could say that a person would have no prospect at all of achieving some benefit or improvement over years. He agreed that at least up until 1992 there was ongoing significant pain suffered by the plaintiff which had been aggravated by a number of incidents. Although he said there were a few years in there in which there were gaps of information, generally he agreed with the proposition. However, he drew the inference from Dr. Nutting’s notes that the plaintiff had been reasonable between 1992 and 1995, certainly with respect to the neck. With respect to the back he thought that one could not draw much of a conclusion about what the plaintiff was like between 1992 and 1995, except that in 1995 there was a relapse. He did not accept that it necessarily followed that for the plaintiff to have complaints in 1995 that was just indicative of a continuation of pre-existing symptoms. He thought that often with an exacerbation of low back symptoms, there is an incident that may be relatively minor that could lead to an exacerbation of symptoms that have been there in the past. That is what he suspected occurred in 1995. He agreed on the history from 1982 until 1995 one could say the plaintiff was very vulnerable to further injury caused by relative minor trauma. However, he thought it was “fudging” to lump all the years in together without recognising that there are gaps in between in which the plaintiff may not have been particularly vulnerable to pain. In other words, he thought there was a risk of over-generalisation based on information over a period of years. He did not accept the proposition that an accumulation of injuries may lead to excessive degeneration changes. Whether a plaintiff could work he accepted depended upon the magnitude of pain and other factors. He agreed though one would need to know with respect to the plaintiff’s work history, what work she did do, and the hours per day she worked and the number of days per week the plaintiff worked to assess the magnitude of the plaintiff’s pain and disability over the years since 1982. Dr. Todman was not prepared to change his opinion that 10% of the plaintiff’s current disability was attributable to her pre-existing condition. He repeated the importance he placed in looking at the few years before the accident in question when determining what disability the plaintiff was presently suffering from due to previous injuries. He accepted that he relied upon what the plaintiff had told him about the impact as most important but that there was other data as well that was relevant to reaching his opinion.

The defendants called the first defendant who was the driver of the Ford and Ms. Pringle who was one of the passengers in the Ford.

The first defendant did not dispute that the admitted collision occurred in circumstances where the Holden had broken down at this intersection and that he drove the Ford in such a way to give his trailer more room to get around the Holden. The first defendant said he felt a little clunk and that he said to the passengers in the vehicle “what was that” and he looked in his rear vision mirrors and he could see the Holden still sitting there and he thought that could be the only thing that would have made that “little jolt”. Therefore, he pulled up in front of the Holden on the median strip. The first defendant said, contrary to what the plaintiff’s evidence, in his vehicle there was one female and two males. He said when he looked at his boat trailer and his boat there appeared to be no damage, so he walked to the back of the Holden and he could see a couple of people including one of his passengers pushing the vehicle over to the left hand side of the road. He said he crossed over to see the driver of the Holden. He asked the driver of the Holden if she was okay. He said in evidence he presumed she would have been because it was a minor incident and at the time there was a kid sort of jumping around in the front of the car. He said he asked the plaintiff for her name and licence and that the plaintiff started to read out to him a mobile number, and then she said “No, I’ll give you another number” and the plaintiff gave him another number. He said he asked her for her name and address and she refused to give it to him and he gave her his phone number. He said he went around the back of the Holden to have a look at the damage himself if there was any, and there appeared to be no damage at all to him, nor to his boat trailer. He went back to his vehicle and went on his way. The first defendant agreed there had been a confrontation at his home during which a male person with the plaintiff gave him a letter of demand for the damage to the Holden. He said when he felt the clunk or the noise the speed of the Ford was approximately 5 kilometres per hour. He said the boat weighed about 2 tonnes and the vehicle was a 4 wheel drive.

When the first defendant gave a version of the events that happened to his insurer, he said “My vehicle and trailer were almost clear of the stationary vehicle when I heard a thump”. It was suggested in cross-examination to the first defendant that the version he gave to his insurer was inconsistent with what he said in evidence in chief because it was claimed in cross-examination the first defendant omitted in the version to the insurer to include the fact that he stopped at the intersection. I am unable to accept that the evidence in chief of the first defendant was inconsistent with the version given to the insurer in that respect. However, I do note that instead of describing what happened as feeling “a little clunk” and what happened “made that little jolt” in the version the first defendant described hearing “a thump”. The first defendant said although he did not feel that he had possibly injured the plaintiff, he asked her if she was alright as a matter of courtesy. However, he said that what he thought had happened was that he had gone over a bump. His explanation for going over to the Holden and asking if the plaintiff was okay is that is what one would do if one had been involved in an accident. It was put to him that he knew very well that he had run up the back of the Holden and he answered “Well, that’s why I asked the passenger in my vehicle to have a look at the back of her vehicle”. He agreed he thought he had been involved in an accident and that is why he returned to the vehicle. The first defendant said that the other male passenger checked the rear of the Holden to see if there had been any damage. This person was Christopher Jeans. Mr. Jeans was not called to give evidence in the trial. The first defendant said there was no damage to the boat. He agreed that the plaintiff had asked him to wait a couple of minutes because her fiancee was a tow truck driver and was going to turn up. He denied the plaintiff asked for the police to be there. He agreed though that the plaintiff was giving him one telephone number and then stopped and gave him another telephone number. He also agreed there was a storm about which was imminent. The first defendant said not only was there no damage to his boat or trailer, there was no damage to the Holden. He described the plaintiff’s demeanour as being fine. The first defendant saw the children in the plaintiff’s vehicle in the Holden. He said the plaintiff did not seem to be worried and she was just normal. He described her as calm. He denied the suggestion in cross-examination that she was quite distressed. The children were not crying according to the first defendant. When shown his claim form to the insurer, and asked to look at the diagram of the trailer in the claim form where there had been crosses marked, it was suggested to him that the very spot where one would have expected there to be damage on the trailer. The first defendant replied that was not the inference to be drawn. The first defendant sought to explain that the dimensions and position of the guard of the trailer over the right hand wheel of the trailer was such that if there had been contact between the trailer and the Holden, and the guard was damaged, one would have expected the damage on the part of the guard that was at a 45° angle downwards from the flat piece on the top of the guard. When the first defendant was asked whether that was marked on that diagram in the claim form to the second defendant insurer, he said that was previous damage that was done to the trailer. He denied the suggestion that the very spot where one would have expected damage there was in fact damage which he claimed was previous damage. He said one would expect damage on the vertical part of the guard of the trailer whereas the damage that was attempted to be marked by the crosses on the diagram was in another position. He marked this other position in Exhibit 38 which was at a position below where the damage was marked in the diagram before the cross-examination commenced. It was suggested to him the spot that he had marked was only a matter of centimetres away from where what he claimed was previous damage was to be seen. He would not agree with the suggestion though he agreed that one was not talking about vastly different areas. The first defendant agreed he was not making a claim by this document. He claimed though that he was showing where there was previous damage to his insurer. However, at the top of the diagram the following appears: “Damage to your car” and “Please indicate point of impact (X) and damage to your car”.

The first defendant sought to explain this in re-examination by saying that if the boat was on the trailer and damage had occurred to the guard of the trailer, the circumstances producing that damage would have significantly damaged the boat. No photograph or other evidence was led by the defendants to show the previous damage to the trailer. Although photographs were tendered of the trailer and the boat, these photographs are not adequate for one to see this damage on the guard.

When Ms. Pringle gave evidence, she said that when the Ford was just past the Holden, she heard a muffled thump. She felt nothing. She said there were two males and one female in the Ford. She said that she went to check on the Holden as to where she thought the collision may have occurred had there been one, and it appeared to her that there was absolutely no damage. How she examined the Holden she described as “extremely carefully”.

At the commencement of Ms. Pringle’s cross-examination the following exchange took place:

“CROSS-EXAMINATION
MR LYNCH: Thank you, Your Honour.
Had you heard on the radio that there was a storm warning?-- I wasn’t paying that much attention to the radio because Mr Vine usually if he travels in the car and he’s in traffic, he has the radio turned down very low and I find that quite annoying sometimes.
I’ll ask you again: had you heard on the radio there was a storm warning?-- Not that I was paying particular attention to , no, sir.
Does that mean no?-- I’m saying that I wasn’t paying particular attention to any radio broadcast. I’m just recalling what I saw in the distance, Mr. Lynch.
It’s a fairly simple proposition, Ms. Pringle: did you or did you not hear on the radio a storm warning?-- No.”

A little later Ms Pringle was asked these questions and gave these answers:

“And you were specifically asked by my learned friend whether you felt anything and you said no?-- No, I didn’t.
Are you sure about that?-- Positive
You’re as positive about that as you are about checking the vehicle – that is, the other vehicle – and observing no damage?-- Mr. Lynch, I said it appeared there was no damage. I am not qualified to give an opinion as to whether there was no damage and, yes, I am as positive about that as what I am about not having felt anything.”

Ms. Pringle was then shown a statement Ms. Pringle gave on 27 November 1998. In that statement Ms. Pringle said:

“We’re almost fully in the lane to the left of the stopped car when I felt a bump”.

Ms. Pringle then agreed with counsel for the plaintiff said she felt a bump in that statement. She agreed she had said in evidence in chief and in cross-examination up to that point that she had not felt anything.

I was not impressed with the demeanour of the first defendant. The first defendant said to the investigating police officer after the accident he heard a thump. When he gave evidence before me he described what he felt as “a little clunk” and “that the Holden was the only thing that would have made that little jolt”. I consider by using the expression “little” to qualify what he felt and what caused it, the first defendant was attempting to minimise as much as he could the collision with the Holden. Further, although the first defendant sought to claim that what he had marked in his claim form to the second defendant was where previous damage had occurred I felt his evidence about that matter demonstrated I ought to be cautions about his evidence. That was because the diagram asked for damage to his car and to indicate the point of impact with a cross and damage to the car. The first defendant could have written on the form that this was previous damage from another accident. Further, in the trial it was argued that because the boat was on the trailer, there could not have been damage to the trailer unless there was damage to the boat. Further, that in any event the dimensions of the guard were such that what the plaintiff and her husband said about where the damage was on the Holden after the accident could not be accepted. As I have said, the photographs of the boat in evidence did not allow for a reasonable assessment of those arguments. Further, evidence from the witnesses about the dimensions of the guard and its height relative to the damage the plaintiff and her husband described was to be seen on the Holden after the accident does not persuade me to accept the first defendant’s evidence. I was not persuaded by the attempt by the defendants to construct a case of improbability that damage was not caused to the Holden.

When being cross-examined, I consider Ms. Pringle showed considerable animus toward counsel for the plaintiff. I was not impressed with her demeanour. She did not answer questions directly. She claimed to be positive that she felt nothing. However when her statement dated 27 November 1998 was shown to her where she had said that she felt a bump, she had to accept that she felt a bump. She said she was as positive about not feeling anything as she was that there appeared to be no damage to the Holden. She added she was not qualified to give an opinion as to whether there was damage or not, but said it appeared that from what she saw there was no damage and she was as positive about that as she was about not having felt anything.

Mr. Christopher Jeans whom both the first defendant and Ms. Pringle said was the other passenger was not called by the defendants to give evidence. I consider if he was in the Ford at the time of the collision and inspected the Holden as the first defendant and Ms. Pringle claimed, he was a witness I would expect the defendants would call to give evidence. His whereabouts were not explained to me.

For these reasons I do not accept the evidence of the first defendant or Ms. Pringle where their evidence conflicts with that of the plaintiff and her husband.

Notwithstanding the conflict between the evidence of the plaintiff and her husband and the evidence of the first defendant and Ms. Pringle which I resolve in favour of the plaintiff and her husband, the defendants submitted that the plaintiff should not be believed regarding what she said about her medical history before the accident and the symptoms she claimed to have suffered since the accident. It was submitted the further documents demonstrate unequivocally that the plaintiff was less than frank with the court when describing the severity of pre-existing symptomatology and was less than frank with all of the medical experts. Further, not only did the plaintiff understate the level of her pre-existing symptoms, she simply omitted to tell all of the doctors about the 1986 lifting incident, and down played the severity of her pre-existing symptoms.

It is correct to say that the plaintiff did not tell the doctors who examined her and the court every occasion it would appear from the further documents the plaintiff has suffered injury and other occasions the plaintiff sought the advice of medical practitioners since 1982. However, I do not accept that the plaintiff deliberately did so. I might have formed a different view about the plaintiff had she not disclosed the 1982 horse riding accident and the injury she suffered while working for Calverts Meats in 1992 in the Motor Accident Personal Injury Notice of Claim form and omitted to tell the medical practitioners about any occasion on which she suffered injury. Further, an examination of the documents do not suggest the plaintiff underwent surgery or was hospitalised that might cause one to remember an event. Further, the plaintiff’s tax returns that were tendered in evidence suggest that despite seeing doctors in 1989 and onwards, the plaintiff worked earning income from a number of employers in the years ended 1990, 1991 and 1992 to support her claim her condition was intermittent. I consider it is reasonable for the plaintiff to have forgotten about the 1986 lifting incident. That occurred 12 years before the accident and 14 years prior to the trial. Furthermore, it would appear from the documents that the event was not significant and arose from lifting a crate of bread. I consider the plaintiff in the documents and to medical practitioner has related her sore back and neck problems to the occasion in 1982 when she fell from the horse. I do consider that the plaintiff would not necessarily refer to the lifting incident in 1986 and the slipping in the toilet incident in 1992 if she relates her history back to the incident in 1982. That is, I do not consider the plaintiff lived her life by reference to incidents occurring in 1982 or 1986 or 1992 and so on, except that she fell off a horse and hurt her back and neck when she was 17 and has had from time to time trouble with her back and neck. I consider from time to time the plaintiff recalls some incidents and responds accordingly. As I have stated, the plaintiff disclosed in the Motor Vehicle Personal Injury Notice of Claim form the 1982 incident, identifying the lower back (mainly) and the neck and identifying Dr. Rudolph of Maryborough. Further she identified in this form the 1992 claim relevant to Calverts Meats, Sumner Park. The plaintiff was only educated to Grade 10. Her work history suggests she has not held responsible positions requiring a good capacity for recalling events or concentration on specific matters. My impression of the plaintiff was that her claim to have forgotten matters occurring some time ago was genuine. Further, her taxation records supports her claim to have, despite some episodes of intermittent pain, been able to work. Further, Dr. Vadlamudi was the plaintiff’s usual doctor and his notes to which the defendants have had access do not contain entries showing the plaintiff has had problems with her back and neck in the two to three years before the accident. I consider if the plaintiff were the person the defendants submitted I ought to find she is, namely a liar and an exaggerator, I do not consider the plaintiff would have provided the information she did provide.

Another argument is that the plaintiff only provided a small amount of information and hoped, if she were the type of person the defendants submitted I ought to find she is, in that way she could avoid a full appreciation of her previous medical history being revealed. Again, I do not accept that has been the plaintiff’s deliberate course in these proceedings for the reasons I have already given. Further, the claim by the plaintiff to have suffered injury at Calvert Meats which was disclosed in the form to the second defendant contains a number of documents including references to Dr. Nutting and in particular a previous claim number 850348403. I note in one of the documents in Exhibit 37 there is an itemised list of the plaintiff’s workers' compensation claims. I am unsure whether this list of claims was in the file for the Calverts Meats claim. It may have been generated for the purposes of the proceedings before me. Nevertheless, it was put before me as part of the Exhibit. I am not going to find this list was in the file. However, from this list I can see that that file number mentioned by the plaintiff in her statement dated 20 July 1992 corresponds with the incident that occurred on 21 April 1986. From her statement then the 21 April 1986 incident would have been disclosed. The plaintiff did not mention the Calverts Meats fall in the toilet to any of the doctors whereas she did refer to the Calverts Meats claim form to the second defendant. I consider this says more about how the plaintiff saw the 1982 accident and dating problems from that incident and her level of education and powers of recollection and capacity to concentrate on specific matters. Therefore, I do not accept the omissions by the plaintiff when expressing her past medical history were deliberate on her part. It is true the plaintiff told Dr. Toft only about the 1982 accident. She did though tell Dr. Ohlrich about the 1982 accident and the 1996 motor vehicle accident. She did not tell Dr. Ohlrich about the other incidents. Notwithstanding these omissions, for the reasons I have referred to above I do not accept her omissions have been deliberate.

It is correct to say that although the plaintiff had suffered a back injury in 1982, in the 1986 Workers' Compensation Board file following the injury after lifting the crate of bread at work whereby she felt pain down her neck and spine, she said she had never suffered from a neck or back injury prior to that incident. I am not prepared to find this was a deliberate lie at the time the plaintiff made that statement. It appears the statement was written for the plaintiff by another person. Admittedly, she signed the statement. One would assume she read it before she signed it. However, because it was so long ago, I consider the plaintiff may be at a disadvantage in being able to explain the circumstances why that statement was made in the 1986 statement. At the time she may have been encouraged to do so. She may have been given advice by someone in authority that she could do so. There may be an innocent explanation for the plaintiff making that statement. Of course, consciously knowing that a misrepresentation was being put forward under her signature ought to be treated as dishonesty. However, the use of that expression also appears in a 1982 statement in support of the claim for falling off the horse. That is “never hurt my back or neck before”. It appears to me to be some sort of standard expression appearing in these statements. Of course that statement must have been true in 1982. However, in the circumstances, I am not prepared to accept this statement affects the plaintiff’s credit regarding the issues I have to decide in these proceedings.

Doctors White, Ohlrich and Toft gave evidence that when examined the plaintiff showed some inconsistent signs. Dr. White nevertheless accepted the plaintiff’s complaints and considered the plaintiff had permanent disabilities from the injuries suffered by her in the accident. He said inconsistent signs are not necessarily conscious exaggeration. When Dr. Ohlrich and Dr. Toft were asked to elaborate on these inconsistencies, I am not persuaded by their answers the plaintiff was consciously exaggerating her symptoms. As Dr. White said, it is the extremes of movement and being kept under strain that causes the plaintiff’s pain. Observing the plaintiff across the desk in the doctor’s rooms, I do not consider is the same activity described by Dr. White he said caused the plaintiff pain and what she could not do. Although the plaintiff bears the onus of proof, I am not prepared to conclude that if the plaintiff showed inconsistency on examination it must have been conscious exaggeration.

It was also submitted the video evidence provides a basis for a finding that the plaintiff is either consciously or subconsciously significantly exaggerated her symptoms. It was submitted this exaggeration was accepted by Dr. White who was called on behalf of the plaintiff. However, as I have said, Dr. White said inconsistent signs are not necessarily conscious.

I do not find the video evidence assists me to resolve the issues I have to resolve in these proceedings. The video was not shown to Doctors Ohlrich and Toft. While Dr. Ohlrich was of the view without the benefit of the video that the plaintiff had suffered no impairment and Dr. Toft was of the view that the plaintiff may have suffered some aggravation of her pre-existing condition for a limited time only, their comments could have been useful to me. That is, Dr Todman and Dr White, when they looked at the video, referred me to how the plaintiff, when turning her head to the left or right was also turning her body. Further, when the plaintiff was bending she was bending from the hips. Further, the plaintiff I consider did not say and has not said to anyone that she could not move her head to the left or right or bend or carry on a conversation with anyone. In my opinion, the video does have a significant disadvantage in that it was taken on the plaintiff’s wedding day when I consider it is reasonable that the plaintiff may have been freely engaging in movements but with the protection from time to time described by Dr. Todman and Dr. White. I would also add that the plaintiff has not claimed that she is crippled. The plaintiff was not shown to be doing things that she said she could not do. I also do not have confidence in the video evidence because other video evidence of the plaintiff was not shown to me. While the plaintiff agreed that she suspected she was under surveillance approximately three weeks prior to the trial, I was still not given the benefit of seeing that video to make a comparison between how the plaintiff presented on the wedding day and how it was implied she may have “tried” to show how the injuries have affected her. Doctors Todman and White explained that it was the extremes of movement that they understood caused the plaintiff pain. When Doctor Toft referred to observations he made of the plaintiff freely moving her neck when she sat opposite him at his consulting table, as I have said I do not accept that was the same movement Dr. Todman and Dr. White spoke of. I accept the evidence of Drs. Todman and White that the video was not conclusive on the balance of probabilities against the plaintiff. Their view is the same view I have formed regarding the video evidence.

In my opinion, Doctors Ohlrich and Toft accepted that if the plaintiff’s complaints of symptoms were genuine and had progressed for this period of time, then it was reasonable to accept by way of opinion in their areas of speciality that the plaintiff had suffered injuries in the accident leaving her with permanent disability. However, Doctors Ohlrich and Toft were sceptical of the plaintiff’s credibility and relied on some inconsistencies that they noted in examination and in her history to provide the opinions about the plaintiff contained in their reports and given in their evidence.

I consider the plaintiff to be an honest and reliable witness. There were two periods during the trial when she gave evidence before me. I observed her. She favourably impressed me. Her response to being called a liar and that she was exaggerating I thought was a the response of an honest person and made with the demeanour of an honest person. She responded by telling counsel for the defendants it was his prerogative to make these accusations, and when challenged as to what she had to say to that, she said that she had nothing to say to that and it was still counsel’s prerogative. I consider that depending on the situation, even though one might consider appearing in a court and being called a liar may be a very stressful situation, the plaintiff did not react in a way that would lead me to lose confidence in her as a honest witness. I readily accept that in a different environment, for example having run out of petrol in a motor vehicle with children in the motor vehicle at a busy intersection with a storm about to break the plaintiff could well become hysterical and that if the children commenced to scream (which I accept could also happen) that the plaintiff could panic. I consider the plaintiff is by nature a dramatic person depending upon the circumstances, although an honest person. I have formed this impression of the plaintiff from the following evidence:

(a) The Holden stalled. The plaintiff put the Holden in neutral and kept it rolling and kept trying to start it and made it across to the other side of the road, just past the lights. The plaintiff’s description of the circumstances then confronting her was “I was pretty panicked because it was peak hour and there was traffic everywhere”;

(b) When the collision occurred which the plaintiff described as “there was just a bang and a jolt”, her reaction she described was “totally hysterical” and she quickly rang her fiancee again;

(c) The plaintiff described that the children started screaming and “it was just pure panic”.

I pause here to say that I do not consider the plaintiff’s reactions to necessarily be unreasonable nor unbelievable. On the contrary, despite the evidence of the first defendant (whose evidence I do not accept) I accept that was the plaintiff’s reaction.

(d) When describing the medication that the plaintiff has been taking, her description was “I live on Panadol”. That may be how the plaintiff sees herself. She said she uses about a packet a week. A packet contains 24 tablets. Dr. White did not think that is much to take;

(e) When describing pain that the plaintiff has felt through the times in the past when she has had a sore back, she said “I’ve really whinged about it”. When describing what might happen if she turned too quickly or looked up or went to pick up one of the children, her description was “It will be completely had it again and in heaps of pain”. When describing how she is since the accident the next day after doing something that she should not have done the previous day, she said “It will be horrible”;

(f) When cross-examined it would seem counsel for the defendants had instructions to suggest to the plaintiff that she had been a stressed person for many years. To that suggestion the plaintiff agreed that she had been on and off. She was asked in positive terms that she has had stress headaches for many years. She agreed she has had them occasionally. She was asked about seeing Dr. Vadlamudi for depressive conditions and that she had been taking Zoloft. She agreed with that. She took that for three months. The reason she took it was because her parents split up after 40 years of marriage. She said she found that very difficult to cope with with her own family situation. She said “There was a lot of dramas in the family”;

(g) When describing the collision to the investigating police officer, the plaintiff said “The boat slammed into the back of my car”. The plaintiff was asked about that expression in cross-examination and she said that was what she would call what happened and added “Jolted me forwards” and then in answer to another question said “Banged. It was more like a bang”.

However, this impression I formed about the plaintiff does not lead me to consider that the plaintiff is lying, nor that she is deliberately exaggerating, nor that she is not genuine about her previous medical history and how that has affected her and how this accident has affected her. I consider the plaintiff has forgotten many details and some details were not considered by her in terms of separate incidents Nevertheless, I consider the contents of the documents must be taken into account when considering the effect the accident has had upon the plaintiff. Further, her nature as a dramatic person must also be taken into account. However, I find the plaintiff has had in the past and now has physical causes for her complaints and symptoms she describes since the accident. What I have to determine is what has the accident caused the plaintiff by way of personal injuries and consequential loss.

Further, regarding the plaintiff’s credit, some aspects of the plaintiff’s evidence about what happened at the accident scene were supported by the first defendant and his evidence about the basic circumstances of the accident were consistent with the plaintiff’s evidence. He said, as the plaintiff said, the plaintiff commenced to give him one phone number and then stopped and then gave him another phone number and that people assisted her vehicle to be moved. The plaintiff said two council employees pushed the car to the side of the road. The first defendant agreed that the plaintiff and her husband came to his property some days later to make a demand upon him. That the plaintiff was adamant there were two woman and one male in the Ford does not persuade me, as Christopher Jeans was not called, to reject the plaintiff’s evidence.. In any event, I am not persuaded there was two men and one woman. Had Mr. Jeans given evidence, then that might have been something I could have taken into account when assessing the plaintiff’s credit.

The plaintiff’s evidence was also supported by her husband. In my opinion, his credit was not shaken. He impressed me as being honest. Further, the plaintiff’s evidence was also supported by Ms. De Campo about her observations of the plaintiff and her husband and that the children were going to the plaintiff’s husband for assistance. I accept the evidence of Ms. De Campo.

As I accept the plaintiff’s evidence, I am satisfied on the balance of probabilities that the admitted collision was caused by the negligence of the first defendant. The Holden was visible to the first defendant and he appreciated that to proceed further the first defendant had to drive the Ford and the trailer attached to it with the boat around the Holden. I am satisfied on the balance of probabilities for the admitted collision to have occurred the first defendant failed to keep a proper lookout, failed to keep the Ford and/or trailer under proper control, failed to exercise proper care and control in the driving and management of the Ford and/or trailer and/or boat, drove at a speed which was excessive in the circumstances, and failed to stop, slow down or steer clear of the Holden so as to avoid the admitted collision.

It was submitted the plaintiff was guilty of negligence or guilty of contributory negligence. I find the plaintiff was not guilty of any negligence. Although the Holden had run out of petrol because the petrol gauge was not working, I am not satisfied on the balance of probabilities the plaintiff was guilty of any negligence in being in the position she was in. It was not shown that the plaintiff knew that the gauge was faulty or when the plaintiff knew the gauge was faulty. Even if the plaintiff failed to exercise reasonable care driving the Holden to the point where it stopped, her vehicle was clearly visible to the first defendant and he appreciated he had to drive the Ford and the trailer around the Holden safely. In those circumstances any negligence on the part of the plaintiff I find was not a cause of the collision. The defendants do not satisfy me on the balance of probabilities that the plaintiff was guilty of any negligence that caused or contributed to the collision.

I find on the evidence that the collision caused the Holden to be pushed forward and the plaintiff was jolted forward. I do not accept the submission of the defendants that the impact was only slight. I am satisfied on the balance of probabilities that the plaintiff’s body was moved, such that she was moved forward and then back. I am satisfied on the balance of probabilities that this movement forward and back caused the plaintiff injury to her neck and back. I am satisfied on the balance of probabilities the injury to the plaintiff’s neck and back was caused by the negligence of the first defendant. I find as a consequence of the negligence of the first defendant the plaintiff suffered a flexion/extension injury to the cervical spine and a soft tissue injury to the lumbar spine. Further, that the plaintiff developed headaches and has continued to suffer from headaches as a consequence of the injury to her spine. Having taken into account these factors I have mentioned, namely the information in the documents and the plaintiff’s dramatic personality, I consider the plaintiff has suffered permanent consequences as a result of the injuries the plaintiff suffered in the accident. However, I would place those consequences in the middle of a range between minor to moderate consequences.

Although I accept the evidence of Dr. Todman that the plaintiff has suffered headaches as a consequence of the injury to her spine, I prefer the evidence of Doctor White to the evidence of Doctors Todman, Ohlrich and Toft regarding the other consequences of the plaintiff’s injury to the spine. My reason for preferring the evidence of Dr. White is that his evidence I consider made due allowance for a number of factors not allowed for by the other doctors. These factors are:

(a) An acceptance that the plaintiff’s complaints of symptoms since the accident are genuine and as the symptoms have persisted, it is more likely than not the plaintiff has permanent pain and loss of function;

(b) That it is relevant the plaintiff appears to have had periods in the past where she was not disabled and was working. Although Dr. White wanted more precise information about the extent of the work done, I have before me evidence the plaintiff earned in the year ended 30.6.1990 net $8,414.00, year ended 30.6.91 net $8,169.00, and year ended 30.6.92 net $11,394.00. Those years cover part of the years during which the plaintiff saw the doctors mentioned in the documents. I also have the plaintiff’s husband’s evidence that the plaintiff was active, dancing and engaging in sport after he met her in 1996. I also have Dr. Vadlamudi’s notes that support the plaintiffs claim to not have had significant problems to her spine in the two to three years before the accident;

(c) That there ought to be due allowance for the information in the documents when expressing an opinion about what effect the accident has had upon the plaintiff;

(d) That there should be some allowance for deterioration the plaintiff would have suffered naturally due to her previous condition, however one cannot say with certainty when the natural deterioration would have reached the level of the plaintiff’s current condition.

I accept the evidence of Dr. White and find the accident has caused the plaintiff a permanent whole person impairment of the injury to her cervical spine of 3.33% and a whole person impairment due to the injury to her lumbar spine of 3.33%. As I have said, I accept the evidence of Dr. Todman the plaintiff has suffered from headaches caused by the accident.

I assess the plaintiff’s damages for pain and suffering and loss of amenities of life in the sum of $17,500.

I allow the plaintiff interest on $10,000 at the rate of 2% per annum for 95 weeks. That is $365.00.

In the plaintiff’s circumstances there is no claim for past economic loss.

With respect to the plaintiff’s claim for future economic loss, I am satisfied on the balance of probabilities the plaintiff’s additional permanent impairment would prevent the plaintiff from engaging in heavy physical labour, prolonged standing, prolonged sitting, lifting, repetitive bending, or maintenance of the head and neck in fixed positions for extended periods of time. Further, the plaintiff had in the past despite her pre-existing conditions worked and earned income. In the financial years ended 1990, 1991 and 1992, the plaintiff earned an average income after tax of $231 per seek. The evidence shows that presently for heavy physical occupations the plaintiff could earn between $358 to $578 gross per week. I accept the plaintiff has a residual earning capacity for light to sedentary work, provided some expense is incurred to rehabilitate the plaintiff. I am satisfied on the balance of probabilities if the plaintiff found work there would be times she would be unable to continue with the work because of the permanent effects upon her caused by the accident and that the plaintiff would lose income she could otherwise earn. The plaintiff has experience in occupations requiring heavy physical labour. Because of the permanent effect upon her caused by the accident some of those occupations would be closed to her if she sought to engage in them on a full time basis. However, what must also be taken into account is that the plaintiff, even if the accident had not happened, would not have sought to engage in work until 5 years from now and then probably in part time work at first. Further, that the plaintiff would be vulnerable to injury because of her pre-existing condition and that over time, which Dr. White could not state with certainty, the natural progression of the plaintiff’s pre-existing condition would be such that the plaintiff would be in the same physical condition she is in now. The normal contingencies must also be taken into account. I consider because of all these considerations an arithmetic approach cannot be taken in an assessment of the plaintiff’s loss but rather a global approach is justified. Therefore, I allow the plaintiff $5,000 for interference with her future earning capacity.

I accept that in the past the plaintiff has required care that her husband has provided. I find the plaintiff is entitled to 3 hours per week for 87 weeks. I consider 3 hours per week is consistent with the plaintiff’s evidence that she has good days and bad days each week. The 87 week period allows for the 2 months the plaintiff was separated from her husband. I find a reasonable rate per hour is $13 per hour. Therefore, I allow the plaintiff for past Griffiths v. Kerkemeyer damages the sum of $3,393.00.

The plaintiff is entitled to interest on the past Griffiths v. Kerkemeyer damages at the rate of 2% per annum. This therefore is a sum of $123.00

Further, I am satisfied on the balance of probabilities that the plaintiff will require assistance in the future. On the evidence I accept the plaintiff will require 3 hours per week for which $39 per week is a reasonable cost. I consider that ought to be allowed for a period of 7.5 years which is a period that allows for the normal contingencies, the plaintiff’s pre-existing condition and the natural progression of that condition and the plaintiff’s vulnerability to injury. On the 3% tables that is a sum of $13,650.00.

I find the plaintiff is also entitled to recover her special damages being the following:-

Physiotherapy $ 1,300.00

HIC refund $ 217.40

Out of pocket expenses $ 1,104.75

Further, I allow the plaintiff interest on part of her special damages on the sum of $1,104.75 at 5% per annum which is a sum of $100.00

I am also find the plaintiff is entitled to damages for the cost of the treatment as envisaged by the occupational therapists. By making an allowance for this, the plaintiff’s residual earning capacity can be allowed for as a credit against the plaintiff’s loss of earning capacity. I allow the sum of $1,000.00. This sum is discounted because of the factors I have referred to relevant to the plaintiff’s claim for future economic loss. I am also satisfied that more likely than not the plaintiff will require medication in the future. Her current expenditure is $2.00 per week which I allow for 5 years on the 5% tables. That is a sum of $461.00.

The total damages then is $44,214.15.

I give judgment for the plaintiff against the second defendant for the sum of $44,214.15.

I will hear the parties on the questions of costs.

CITATION:	McPherson v. Vine & Anor [2000] QDC 246
PARTIES:	TRACY-LEE McPHERSON (Plaintiff) v. JOHN ALLAN VINE (First defendant) And AUSTRALIAN ASSOCIATED MOTOR INSURERS LIMITED (Second defendant)
FILE NO/S:	2097 of 1999
DIVISION:
PROCEEDING:	Trial
ORIGINATING COURT:	District Court Brisbane
DELIVERED ON:	18 August 2000
DELIVERED AT:	Brisbane
HEARING DATE:	17, 18, 19, 20 and 21 July 2000
JUDGE:	Samios DCJ
ORDER:
CATCHWORDS:	NEGLIGENCE – personal injuries – motor vehicle accident – pre-existing condition in neck and back - quantum
COUNSEL:	Mr. R. Lynch for the plaintiff Mr. R. Aldridge for the defendants
SOLICITORS:	McInnes Wilson Lawyers for the plaintiff Mullins & Mullins for the defendant