Meyer v Beck

[1995] QSC 104

IN THE SUPREME COURT

OF QUEENSLAND

No. 101 of 1994
Townsville

Before:  Mr Justice Ambrose

[Meyer v. Beck & Anor]

BETWEEN:

KATHLEEN MARGARETHA CAROLINE MEYER
  Plaintiff
AND:

STEPHEN ARTHUR BECK
  Defendant

AND:
  SUNCORP INSURANCE AND FINANCE

Defendant by Election

REASONS FOR JUDGMENT - B W AMBROSE J.

Judgment Delivered: 08/06/1995

CATCHWORDS:                 QUANTUM - DAMAGES - Personal injury - plaintiff exaggerated symptoms - damage for loss of superannuation contributions by future employers.

Counsel:Mr J R Baulch for the plaintiff

Mr R D Pack for the defendant

Solicitors:Boulton, Cleary & Kern for the plaintiff

Suthers and Taylor for the defendant  

Hearing Date:              4 April 1995

IN THE SUPREME COURT

OF QUEENSLAND

No. 101 of 1994
Townsville

Before Mr Justice Ambrose

[Meyer v. Beck & Anor]

BETWEEN:

KATHLEEN MARGARETHA CAROLINE MEYER
  Plaintiff
AND:

STEPHEN ARTHUR BECK
  Defendant

AND:
  SUNCORP INSURANCE AND FINANCE

Defendant by Election

REASONS FOR JUDGMENT - B W AMBROSE J.

Judgment Delivered: 08/06/1995
           On 18 October 1991 the plaintiff was a passenger in a stationary motor vehicle when the defendant's motor vehicle came into collision with the rear of it.
           She was thrown forward and suffered an injury to the neck.
           On 11 June 1993 the plaintiff commenced proceedings in the District Court at Townsville claiming $100,000 general damages together with special damages.
           On 17 June 1994 the action was transferred to the Supreme Court.
           The trial has been contested on the issue of quantum only.
           At the close of the plaintiff's case a schedule was placed before me setting out damages claimed under various heads in the sum of $311,926.81.  Included in that claim is a claim for costs of domestic help and under Griffiths v. Kerkemeyer for something in excess of $47,000.  Past economic loss is claimed at $41,574 and future economic loss based upon the loss of $250 per week for 20 years from date of trial is fixed at $166,600. 
           At the outset I must say that the overall impression I gained of the plaintiff's case was that it was significantly exaggerated.  I have no doubt that the plaintiff suffered some injury to her neck in the collision, the subject of this action, but at the close of the case I was left with the general impression that both the extent of her disability and the extent of any pecuniary loss flowing from it had been greatly magnified.
           It is convenient to look firstly at the medical evidence and the evidence called by the plaintiff to support her claim that she was very significantly disabled as a result of her neck injury (and elbow injury).  It will then be convenient to turn to the nature and extent of economic loss that probably flowed and will flow from her injury.
           The first observation I make is that the content of the quantum statement tendered on her behalf (ex.1) in many respects overstates any capacity she had to earn as a school teacher which was diminished by injuries she suffered in the collision. 
           At the outset of her quantum statement she stated that she attended a high school in Belgium until age 18 and then undertook:

"a four year course being the equivalent of a university degree.  I passed the midden jury examination committee and was qualified as a teacher at both primary and secondary school levels in Belgium.  ... I taught for 5 years in Belgium before getting married and travelling first to England and then to Australia with my husband at that time.  Once in Australia however I had some difficulties in obtaining recognition, of my qualifications. ...  Whilst working in the video business and bookshop I studied first to improve my English, and then obtained additional certifications in areas such as neuro linguistics, accelerated learning, and 'train the trainer' courses to improve my prospects of obtaining work in my profession as a teacher."

In the course of cross-examination, however, the plaintiff admitted that she had only ever obtained part-time employment as a teacher in Belgium.  Indeed, when she applied for a position with the Education Department in Queensland in March 1993, she advised that all told she had had less than three years experience in teaching.  It further emerged that one of the certificates she received in Europe in 1982 was from the Midden jury which meant "that you study by yourself with your own tutor and you choose the schools where you want to do prac lessons, so I had completed that six months before hand".  She said that prior to completing that course she had taught music apparently at a number of primary schools on Wednesday afternoons, Friday evenings and Saturday mornings.
           When in Townsville she tutored children privately.  One of them she said "had difficulties in spelling and she had troubles with her time tables."  This child came for assistance once a fortnight.  Another lady who was her personal friend was doing first year French at the University and the plaintiff gave her some assistance with her pronunciation.  This is not surprising because the plaintiff's parents were French and spoke French.  She said also that she had taught her friend "some of the techniques that we learned in accelerated learning."  Some of this "teaching" was done "perhaps once a month or so.  We would discuss things over the telephone as well". 
           The defendant called the manager of personnel services etc with the Department of Education stationed at Townsville.  She said the plaintiff had been allotted a "suitability 2" (s2) rating.  A person with that rating will only be offered either full time or part time employment with the Education Department "all other things being equal" if there is not an applicant with a "suitability 1" (s1) rating.  She also said that the plaintiff had also been given a "proficiency rating" of "good" which indicated that she was "below very good and higher than satisfactory".  It emerged in the evidence that there was not at the material time any great demand for teachers of French in north Queensland.  In 1994 a position for a teacher of French became available at the Cranbrook Primary School.  That position was filled by somebody with an s1 rating.  There is no evidence as to what proficiency rating the appointee to the position at Cranbrook Primary School achieved.  It is notable however that Flemish was the language used by the plaintiff and her parents at home.  Although her parents did speak French and she learnt French at school, because it was one of the languages used in Belgium, she got a rating of "good" from the Education Department which was below the rating of "very good" although higher than the rating "satisfactory".
           There is nothing in the evidence to indicate by whom the "four year course" taken by the plaintiff would be regarded as "the equivalent of a university degree".  On my reading of the application for teacher employment lodged by the plaintiff in March 1993 (ex.11) "The Diploma of Music Educator Grade 1" given on 29 October 1982 is described as a "qualifying Diploma for teachers of music education in educational establishments of lower secondary level".  The Diploma reads that the applicant "satisfactorily passed the examination for music educators in the Dutch language". 
           The other "educational" training undergone by the plaintiff was a 12 hour course on "Accelerated Learning" at Townsville TAFE in October 1991, a three day "train the trainer" course at a commercial studies centre in Townsville in November 1990 and a one month course in "Practitioner of Neuro-linguistic Programming" conducted in Townsville by The Society of Neuro-linguistic Programming and McClendon & Associates.  She received a certificate from that body dated 3 June 1990.  With respect to each of her specified qualifications, she obtained passes.  The only academic qualifications of the plaintiff, as I would define that term, was the Diploma she obtained in October 1982 that she had passed an examination for music educators in the Dutch language qualifying her to teach music education in educational establishments of lower secondary level in Belgium.
           I infer that she speaks the Dutch language fluently.  There is no evidence to suggest any demand for teachers of music education in the Dutch language in Queensland educational establishments.
           I infer that she speaks the French language sufficiently well to be rated as having a "good" proficiency to teach French to primary school students.
           I can find nothing in the material tendered to establish the plaintiff's professional training and skills to suggest that the Diploma (which is part of ex.11) she obtained in October 1982 qualified her to teach "at both primary and secondary levels in Belgium", except to the extent that that assertion refers to a qualification to give musical education in the Dutch language at "educational establishments of lower secondary level" in that country.  It emerged in the plaintiff's evidence that in fact she undertook teaching for a few hours a week in a number of primary schools as part of her training directed I presume to obtaining the Diploma, which she did obtain in 1982.  There is no material from any educational establishment in Belgium as to the nature of, or places where, she gave unusual education after she received her diploma.
           As far as the evidence discloses, the plaintiff has undertaken no training in teaching other than that encompassed in her application for teacher employment, which is ex.11.
           It is clear, however, that the qualifications which the plaintiff does have are regarded as sufficient by the Education Department in Queensland to support her appointment to teach something in the Queensland State primary schools.  Upon the whole of the evidence I would infer that she would be regarded as being proficient to teach French in primary schools.  Whether she would be regarded as proficient to teach music or any other subjects is unclear.  Whether she would be able for reward lawfully to teach young children music privately is also unclear.  The evidence is simply silent on this point.  There is no suggestion that she has ever taught music privately or in schools since she has been in Queensland.  It emerges from the evidence of the plaintiff and her defacto husband that occasionally since her injury the plaintiff has done some tutoring or coaching of students at her home.  This apparently has been done principally with respect to children of her acquaintances and really seems to have been a fairly minor activity.
           It is the case really for the plaintiff that, if it were not for the disability she suffers as the result of her neck injury, she would be able to earn a great deal more income as a full time teacher.  What precisely she would teach is not clear.  Presumably she would be able to obtain a teaching position teaching full time the subject or a similar sort of subject to that which she is currently employed to teach part time at primary schools.
           It is convenient now to consider the medical evidence.
           The plaintiff suffered pain to her neck in the collision.  She went to a family medical centre where she was examined by Dr Shepherd, who gave her some medication, and advised that she undertake physiotherapy and wear a cervical collar.   He referred her then to Dr Todd, an orthopaedic surgeon. 
           Dr Todd examined the plaintiff in November 1991.  She then relied upon the use of her cervical collar for pain relief.  She had sustained some paraesthesia in the left arm during the first week after injury, although this had settled spontaneously.  Dr Todd expressed the view that this happened from time to time where there was cervical injury.  X rays of the cervical spine were normal.  He formed the view that she had suffered a musculo ligamentous injury and prescribed further physiotherapy and medication of an anti‑inflammatory kind.  She returned for review on 15 July 1992 (nine months subsequent to her injury).  She had then improved considerably and informed Dr Todd that she could be asymptomatic for up to two weeks at a time.  However, she suffered from intermittent pain and stiffness "of relatively low grade".  He formed the view that she was much better on this examination than on the previous one.  She told him that pain increased "with work, swimming, water aerobics, driving long distances or operating a computer".  She complained that she had trouble with work and with leisure activities "of reading, computer work, gardening and sport and photography".  Upon examination, Dr Todd found that she remained "slightly tender with spasm in the right para spinal region".  There was no anterior cervical tenderness.  She had full flexion and cervical extension was full with some pain at the extreme.  There was slight limitation of left lateral flexion.  Again with low grade pain.  There was no neurological deficit apparent.  Dr Todd in his report of 22 July 1992 observed:

"I think the patient is demonstrating a typical natural history of a musculo‑ligamentous injury to her cervical spine.  She is continuing to improve, and at nine months she has made quite a significant degree of recovery.

I would expect that she is likely to continue to undergo spontaneous resolution of her problem, and I would expect that she should be almost completely recovered by eighteen months.  Subsequent to this time she may have intermittent low grade episodes of pain, but she would not have any significant degree of disability."

On 1 December 1992 the plaintiff returned to see Dr Todd with a left ulnar neuritis.  There was no wasting of the muscles and no snapping of nerve at the elbow.  An elbow x‑ray was normal.  At this time the plaintiff "recorded no association with her previous injury and in fact reported no specific injury leading to her ulnar neuritis".  Dr Todd performed an ulnar nerve decompression on 8 December 1992 and that operation was successful.  The plaintiff failed to follow up for any post-operative review.   In his report of 12 March 1993 Dr Todd expressed the view that there was no sufficient evidence that the ulnar nerve problem was in any way related to any injury she received in the motor car collision.  Subsequent to that report the plaintiff and her defacto husband visited Dr Todd and requested that he alter the content of his report.  To use Dr Todd's words:

"The story of the relationship between the ulnar nerve problem and the accident was changed subsequently in a manner that I felt was perhaps more favourable to the patient's case and they asked me would I be prepared to alter my report in that regard".

Dr Todd made it clear that he had carefully examined the plaintiff when he had first seen her with a view to ascertaining whether there was any problem with her arm and he recorded what she had said.  I prefer his evidence to the evidence of the plaintiff in this respect. 
           According to physiotherapy reports of 29 April 1993 and 19 October 1994, the plaintiff's cervical spine movement on the examination preceding each report was significantly more restricted than those observed by Dr Todd when he examined her on 15 July 1992 - 9 months subsequent to the accident.
           Evidence was called from Dr Watson, a specialist in rehabilitation medicine in Townsville.  I prefer the opinions of Dr Todd and Dr Douglas to those of Dr Watson with respect to the relationship between the injury the plaintiff suffered in the collision and the development of ulnar nerve problems.
           Dr Gavin Douglas examined the plaintiff on 7 December 1993.  At that time she informed Dr Douglas that she was working 10 hours per week teaching.  She said that at the end of each of the five, two hour sessions, her neck ached to such an extent that she used to lie down for a period of time to relieve those symptoms.
           She told Dr Douglas that she noticed after the accident that the inner part of her left elbow was bruised.  She could not explain how this could have occurred as at the time of the accident she was restrained by a seat belt on the passenger side of the motor vehicle.  She told Dr Douglas that although the operation performed for the nerve route decompression by Dr Todd had given her relief of symptoms in her left hand, these symptoms had intermittently presented themselves again towards the end of 1993.  Upon medical examination Dr Douglas found that there was:

"slight restriction of all ranges of neck movement.  There was no tenderness of the cervical spine or adjacent muscles.  There was no tenderness over the brachial plexus.  There was full painless shoulder movement.  ... There was no wasting of the muscles of the forearm or hand."

Dr Douglas expressed the following view:

"This woman has symptoms in her neck consistent with her having suffered soft tissue injuries in an accident on 18 October 1991.  There is some early degeneration of her cervical spine which would be consistent with her age and I doubt that the cervical degeneration is accident related.  The neck symptoms are somewhat more severe than one usually sees following soft tissue injury but I have no reason to doubt the severity of her neck discomfort.  The type of activities that she described as bringing on her neck discomfort, such as lifting and overhead activity of her arms and bending her head forward, are consistent with the type of injury she has suffered.

In this type of injury there is always a certain emotional element with the perception of pain being more acute in some people than others.

It is now over two years since her injury so it is probable that her symptoms will continue.  She is currently engaged in part time teaching and she will be able to continue in such a part time occupation indefinitely.

I think eventually she will probably be able to engage in full time teaching but may have periods of incapacity from time to time due to neck pain.  She employs help in the house for four hours a week to do the heavier parts of the housework and I do not think this is unreasonable.

For the future, I think her neck symptoms will persist much as they are now.  There will be some increase in her symptoms from time to time related to physical or emotional stress but I do not think there will be any progressive deterioration.  She will never require surgical treatment for the neck condition."

Dr Douglas expressed the view that neither ulnar nerve problems nor lower back problems of which the plaintiff complained were connected in any way with the injury she received at the time of the collision.  Subsequently, Dr Douglas re-examined the plaintiff on 10 October 1994 and in his report of 11 October 1994 observed that there had been no change in the plaintiff's condition and:

"she finds that she is still only capable of part time teaching.  I have no reason to doubt the severity of the symptoms and I think that I would have to say now that she is probably working to the limit of her physical capacity. There are undoubtedly some psychological factors contributing to her present symptoms as she feels frustrated and depressed by her lack of progress but I think the psychological factors are secondary to the organic injuries she suffered.  As it is now 3 years since her injury, it is probable that her symptoms will persist indefinitely."

In the course of his evidence, Dr Douglas expressed the view that the plaintiff was suffering from degenerative changes in her cervical spine but he accepted that they had not produced symptoms prior to the collision.  He expressed the view that if that were the fact then it is unlikely that the symptoms emerging after the collision would in any event have emerged without any other precipitating factor prior to the end of what would have been her working life.  Dr Douglas said that accepting the reliability of the plaintiff's account of her symptoms it was unlikely that she would be physically capable of ever engaging in full time teaching.   However, he had to rely upon what the plaintiff told him - that is, that the symptoms were produced by various activities in which she engaged, including teaching.  Dr Douglas said that the plaintiff could get relief from her condition - accepting the reliability of her complaints of symptoms - by the use of analgesics, massage, rubbing, hot showers etc.  He said that as a preventative some form of exercise was preferable.  I accept the view expressed by Dr Douglas that there is no radiological or similar basis for inferring that the plaintiff has a soft tissue injury involving bruising or scarring of neck tissues.  Those matters are certainly not detectable upon x-rays or apparently by any other clinical examination.  Apparently those conditions may be detected upon post mortem so it is known that they do sometimes exist; it has been inferred from that that the existence of scarring and/or bruising as a result of a flexion injury to the cervical spine may produce pain.  Making all allowances for the subjectivity of persons experiencing pain, in essence it is a matter which must be determined upon either the acceptance or rejection of the complaints of activity-related pain by the plaintiff.

           As I have indicated I am of the view that the plaintiff has exaggerated her symptoms of pain.
           In spite of the evidence she called from her defacto husband and other of her acquaintances concerning the significant disability inflicted on her by her neck condition, it is clear that in each of the years 1992, 1993 and 1994, the plaintiff travelled overseas to Europe as a tourist.  On two occasions she travelled with her defacto husband and on the other by herself.  According to the plaintiff (and her defacto husband) she was only able to avoid the sort of neck pain that she suffered in Australia by lying about and engaging in little if any activity.  Although both she and her defacto husband gave evidence that the pain was not intermittent at any stage subsequent to the accident but indeed was constant, varying apparently only in its debilitating severity, this is quite contrary to the history given by the plaintiff to Dr Todd on 15 July 1992 when she said that she could be asymptomatic for up to two weeks at a time.
           I am satisfied on the balance of probabilities that the plaintiff did suffer a ligamentous or soft tissue injury in the region of her cervical spine at the time of the collision.
           I am not satisfied that she suffered any injury to her left elbow at that time which resulted in any ulnar nerve trouble. 
           Accepting the evidence of Dr Todd and Dr Gavin Douglas (particularly the evidence of Dr Gavin Douglas as to the prognosis) in preference to that of Dr Watson, I am of the view that the injury suffered by the plaintiff was disabling and significantly diminished her capacity to do housework or to teach or to engage in the sorts of activities in which she did engage prior to her injury up until mid July 1992.  I find that her condition gradually improved between November 1991 and July 1992 and that by December 1993 when she was examined by Dr Gavin Douglas her condition had stabilised.  At that time she had improved to some extent although not substantially from her condition in July 1992.  By March 1992 she was able to do some tutoring work and perform with some pain other activities, although to a lesser extent than would have been the case had it not been for the injury she suffered in the collision.  She did not apply for a teaching position with the Department of Education until March 1993.  In March 1993 she obtained a provisional Certificate of Registration of her qualification with effect to 31 December 1993 as to the holding of a Diploma of Musical Education.  By December 1993 she was able to perform part time school teaching and she will be able to do that indefinitely.
           A matter which I find difficult to determine is whether or not she will be able to perform full time teaching at some time in the future - on the assumption that she can obtain employment as a full time teacher in a subject that she is qualified to teach. 
           I am conscious of the opinion of Dr Gavin Douglas on this point.  He has based that opinion upon his acceptance of the reliability of the plaintiff's account of her inability to teach for longer than she was teaching at the time of her examination.  I must say I have reservations as to the reliability of this account.  However, I found nothing in the demeanour of the plaintiff to persuade me to reject her evidence entirely.  There are aspects of evidence called to support her claim as to great physical disability resulting from her neck injury which lead me to suspect that it also is exaggerated.  There is no real conflict between the evidence of Dr Douglas and the evidence of Dr Todd.  Both make it clear that if one accepts that the plaintiff is suffering from pain in the neck which started at about the time of her accident and has continued for more than three years, it is likely that pain will remain with her "for a substantial period of time if not for the rest of her life".
           I accept the evidence of both Dr Douglas and Dr Todd as to the prognosis for the plaintiff if her evidence as to constant and disabling neck pain be accepted.  However, in the light of what she told Dr Todd in July 1992 and in view of her assertions in the application she made for appointment as a permanent teacher in 1993 and in the light of her tendency to exaggerate matters to her own advantage in her quantum statement,  I am not persuaded that her evidence on this issue is reliable.  I find that by the end of December 1993 the plaintiff had recovered sufficiently from her neck injury to engage in part time teaching and at that time and at the present time it is likely that if so motivated she was, and will be, able to either increase the amount of part time teaching that she does or subject to the level of her professional skills be able to obtain a full time teaching position in a state primary school if one becomes available for her.  I think on the medical evidence there is a psychological/emotional element in whatever physical disability the plaintiff presently suffers.  I find that it is probable that she does from time to time suffer pain in the neck, but I am unpersuaded that she suffers it to the extent to which she swears or to the extent suggested by her defacto husband and other witnesses called to support her in this regard.
           I am persuaded that the disability which she presently has will have an adverse affect on her earning capacity.  The extent to which that earning capacity is reduced is not capable of a precise calculation on the evidence before me.  Doing the best I can I find that her earning capacity as a teacher (whatever that may have been) has probably been reduced by 30 per cent.  In adopting this broad brush approach I proceed on the basis that she could do more part time teaching at the present time if she was so minded and there is a good prospect that from time to time in the future she will be able to do full time teaching if such a position becomes available to her.  On the other hand there may be periods of time if she becomes a full time teacher when her neck condition will become so painful intermittently at least that it will diminish her capacity to retain that position. Indeed, that physical disability if it becomes known to the Department of Education may well have some effect on her obtaining more than a part time or relief teaching position.
           With respect to the special damages recoverable by the plaintiff, it is agreed that the sum of $4,069.12 accounts for all special damages with the exception of any additional sum awarded with respect to moneys spent for pre-trial home help.
           It was agreed that if her ulnar nerve trouble and lumbar spine trouble also resulted from the accident that sum should be increased by $109.90.  I find however that her ulnar nerve problem and lumbar spine problem were not attributable to the collision.
           It is difficult to assess with any real confidence on the evidence just what the plaintiff's earning capacity may have been prior to her injury.
           Up until three months prior to her injury she had conducted, with her former husband, a book shop in Townsville.  Her marriage broke up and the book shop was sold.
           The following is a statement of her net earnings prior and subsequent to her injury on 18 October 1991.
           Year ended 30 June 1989       -   book - video shop operator   -                  $10,553.55
           Year ended 30 June 1990        -   book - video shop operator   -                  $12,773.16

1 July 1990 - 30 November 1991 (a little over a month subsequent
  to her injury) -  $14,732.50

She sold her book - video shop business and applied for a position managing the "Government Bookshop" in Townsville.  She says that she did this seeking a "fill in" job while waiting to see if she could get a job as a teacher.  No effort was made to refer to any income she may have received had she obtained that position.  There was no evidence that she had any qualifications which may have been required of an appointee to that position.
           Between about March and the end of May 1992 the plaintiff tutored adult Aboriginal TAFE students for about seven hours per week of four days.  She says she suffered pain when doing this tutoring.
           In March 1993 she again obtained part time work with the Department of Employment, Education and Training as a tutor with the ATAS Scheme for about 3 hours per week.   She says that this work caused her neck pain and stiffness for which she received acupuncture, physiotherapy and engaged in exercising in a rehabilitation pool. 
           It was on 16 March 1993 that the plaintiff first applied for employment as a teacher.  She indicated that she preferred to do casual teaching and that her second preference was for permanent part time teaching.  She indicated that her preference was to teach in a primary school rather than a secondary school.
           On that application she stated that she did not have any physical disability, medical or nervous condition which might affect the performance of her duties as a teacher and that she was available to accept a position from 22 March 1993.
           Subsequently, on 24 June 1993 the plaintiff again applied for employment as a teacher, indicating that her preference for employment was as a permanent full time teacher.  Her second preference was for a permanent part time teacher and her third preference to work as a casual teacher.  She again stated that her preference was to teach in a primary school rather than a secondary school.
           At that time she had been employed as a casual teacher and she indicated this on her application form.  She said that she was available to accept a position of employment - keeping in mind her preference for permanent full time employed - from 1 July 1993.  She again stated that she did not have any physical disability, medical or nervous condition which might affect the performance of her duties as a teacher.
           The assertions in the applications for teacher employment made in March and June 1993 that she had no physical disability that might affect her performance as a teacher are quite inconsistent with the history Dr Watson records he obtained from her on 23 June 1993.  Indeed, the second application for employment was made only the day before she attended Dr Watson.  It is quite inconsistent with the complaints recorded in the report of Townsville Physiotherapy Centre dated 29 April 1993.
           Looking at the evidence from doctors and physiotherapists recording the complaints of the plaintiff up until June 1993, her assertions in March and April of that year upon her application for teacher employment are consistent with either, or perhaps both, a very significant exaggeration of the symptoms she gave to people treating her and/or a willingness to deliberately mislead the Education Department as to her physical condition in her attempt to obtain a position.
           Her application made on 24 June 1993 (ex.12) for employment with her first preference being to be employed as a permanent full time teacher suggests that she then thought that she was capable of being so employed and having regard to what she told Dr Todd on 15 July 1992, nearly 12 months earlier, and the opinion that he then formed upon examination that she should be almost completely recovered by the end of 1993, I incline to the view that at that stage she was not suffering from pain, disability and general incapacity anything like that recounted in evidence and contained in her quantum statement, the quantum statement of her defacto husband and the evidence of some of her friends called to support her.  Janet Warneke, who was a part time teacher and a friend of the plaintiff for a period of 7½ years gave evidence that as the result of the injury to the plaintiff "her life is ruined".  Mavis Cheung, who was also a friend of the plaintiff for 6 years, gave evidence that the plaintiff had ceased since her accident to be a very active person and:

"a lot of the time she expresses that she's feeling a lot of discomfort. ...  When she comes to visit she has to sit propped up with a lot of cushions and at times she has to lie down on the couch.  ...  and when she comes for dinner she has to sit in a chair with the back towards the wall so she can rest her head up against the wall."

Kathleen Reddish, who has known the plaintiff from a time prior to her accident, said that she used to walk regularly with the plaintiff, but that after the accident she was "just completely totally different.  I mean she just does nothing now.  She can't do anything".  Miss Reddish said that the plaintiff hadn't improved at all since the date of her accident.  She also said that when the plaintiff visits her at her home she "sits up against a wall to brace her neck or she sits in a special chair when I go over there so she can rest her neck.
           The plaintiff, when cross-examined as to the assertions in her two applications for employment as a teacher to the effect that she had no physical disability that would affect her capacity to teach, said that she was really relying upon what Dr Todd had indicated - presumably that she would "continue to undergo spontaneous resolution of a problem" and that he expected that she would recover in 18 months.  She said that she had that in mind when she filled in the application for employment forms.
           I formed the impression from the way the plaintiff gave evidence and from her demeanour generally that she was an intelligent woman, well aware of factors relevant to her recovery of a significant award of damages.  Her desire to put forward the very best case that could be made out is indicated by the visit which she and her defacto husband made to Dr Todd on 4 May 1993 with a view to having him change his report dated 12 March 1993 to support her claim that there was some connection between the collision and the development of the ulnar nerve trouble in her left arm for which he operated on her successfully on 8 December 1992. 
           Having said all that, however, I am satisfied that the plaintiff has probably been left with some pain in the cervical spine region which sometimes produces headaches and which does intermittently reduce her capacity to engage in physical activities of various sorts - including those necessary to teach primary school children.  I find that her capacity to perform duties as a teacher has been reduced to some extent, whether she be employed on a casual basis or a permanent full time basis or a permanent part time basis.
           What is not clear to me, however, on the material is just what the likelihood was or is of the plaintiff ever obtaining a permanent position as a teacher, either full time or part time, which would have been or will be acceptable to her and her defacto husband.  There was certainly a position available to her at the state school at Bowen.  However it is clear that whatever her physical capacity or incapacity may then have been she was not willing to go to Bowen to live to work at that position.
           It is far from clear on the material (from the quantum statement of the plaintiff, the contents of which I accept with some reservations) just what subjects she may teach children, even in a primary school.  She says that in October 1993, after passing a proficiency test, she obtained a position as a teacher of French at the Cranbrook Primary School, two full days per week (spread over three days).  Although a full time position as teacher of French became available after she had applied for a permanent teaching position in 1994, it is clear that with her rating of s2 she was not appointed.  The appointee in fact had a rating of s1.  It is equally clear that at least at date of trial there was not a shortage of teachers of French in the area.  There was a shortage of teachers of other languages, but this is not relevant in determining the demand available for the plaintiff's services.
           In the absence of any evidence to the contrary, I proceed on the basis that the plaintiff is qualified and sufficiently proficient to teach French to primary school students.  I am not persuaded on the evidence that she is better qualified or more proficient than other persons who might seek positions to teach French to primary school children in the Townsville area.  I am unpersuaded on the evidence that the plaintiff really has any formal training in the teaching of French to primary school students in Queensland.  However, she has been employed to do that for a couple of hours a week and, depending upon the availability of other teachers who can perhaps teach other things as well, she has a capacity to compete in the labour market for such teaching vacancies as may arise for people with her skill and experience.
           It appears from her evidence that she has also tutored.  It is stated in the plaintiff's quantum statement that she was employed for about seven weeks by the Department of Employment, Education and Training between 24 April 1993 and 11 June 1993 and earned the sum of $4,595.  She says that it was in April 1993 that she completed the requirements of the Department of Education and "received a certificate entitling her to teach in Queensland schools".
           She says that she obtained leave of absence from her permanent part time position at the Cranbrook Primary School in 1994 to take up a position as tutor of Aboriginal students with the Department of Employment, Education and Training.   She works 4½ hours per week on this training and is paid $139.50 gross per week.  It is not stated precisely in what subjects or disciplines she tutors these Aboriginal students.
           Exhibit 10 contains a schedule of the plaintiff's earnings from July 1994 to April 1995 amounting to $4,034.45.  Of that sum, $2,583 was paid by DEET.  The other income was derived from "supply teaching" during the same period.
           The plaintiff gave evidence that she had chosen to do the work for DEET because she preferred doing it to the other teaching work she had the opportunity of doing.
           Exhibit 17 is a list of "supply rates as at 19 August 1991".  I am unpersuaded that an application of those rates for any period of time relevant to the determination of the quantum of the plaintiff's past or future economic loss would lead to a proper assessment of  the income that the plaintiff may have earned had she been successful in obtaining a teaching position on a permanent basis - whether full time or part time.
           A letter from the Assistant Personnel Officer, Northern Region of the Department of Education dated 3 April 1995, states that the plaintiff has been employed by the Department "as a permanent part time teacher since 4 October 1993 at the rate of 0.4 (full time equivalent day) per fortnight."  It is stated that her gross fortnightly salary is $386.88 plus a locality allowance of $8.68.  It is stated that should she have been engaged on a full time basis (i.e. 50 hours per fortnight) she would have been remunerated at $967.20 per fortnight.
           It is also certified in this document that she has been on special leave from the Department since 27 January 1994.
           Doing the best I can I propose to assess the plaintiff's maximum earning capacity if engaged on a full time basis in the sum of $967.20 per fortnight plus a locality allowance of $8.68 which is $978.88 per fortnight or $25,450 per annum.  Income tax on that sum is $4,675.  The net weekly income is $399.50.
           In my view, on her own material the plaintiff has demonstrated a present capacity to work for the Education Department as a permanent part time teacher and receive about 40 per cent of the gross income she would receive were she employed as a full time teacher.  I am unpersuaded as I have already indicated that she is working to her capacity at the present time.  Doing the best I can, for the purpose of assessing economic loss, I find that she could earn not less than 70 per cent of the income capable of being earned if she were employed on a full time basis. I make this assessment taking into account her ability to work longer hours if available and perhaps on a full time basis with intermittent breaks.

           On the assumption that she has had that maximum capacity reduced by 30 per cent she should have currently a capacity to earn a gross sum of $685.65 per fortnight (inclusive of locality allowance) or $342.82 per week. Upon this sum she would pay tax of $2,485 per annum or $47.80 per week.  Her net earning capacity per week would be $295.
           Her loss of future earning capacity I assess at $104.50 net per week.
           The plaintiff is presently about 38 years of age.  It is uncertain just how long, apart from her injury she would have sought to work as a teacher.  Indeed it is on the cards I think that she would have sought to do something else - her first choice after selling her bookshop was to seek a position as a manager of a bookshop. However, making all allowances in favour of the plaintiff I think it quite unlikely that she would have worked beyond the age of 55 years, that is for a period in excess of 17 years from the present time.
           The plaintiff had a degenerative cervical condition, which some other trauma might have affected to produce a similar sort of disability to the one from which she presently suffers, and it is necessary to make due allowance for the vicissitudes of life.
           Using the 5 per cent tables, the present value of the loss of $104.50 per week for 17 years is $62,386.50.  I reduce that sum by 15 per cent for contingencies to $53,028.50.  I assess that sum to compensate the plaintiff for loss of future earning capacity.
           Compulsory superannuation legislation came into effect on 1 May 1993.  Based upon this legislation, it was contended for the plaintiff that her reduction in earning capacity resulted in the loss of a compulsory contribution by her employer to a superannuation fund from which she might take benefit upon her retirement.
           Exhibit 16 contains calculations by accountants retained for the plaintiff.  The report was admitted by consent. It assumes, inter alia, a deprivation of investment income upon annual investment of employer contributions in a superannuation fund.
           I accept that by virtue of the plaintiff's reduced earning capacity she will or may suffer some detriment by reason of the loss of the benefit of compulsory superannuation contributions by future employers.
           The use of present value tables for the calculation of future economic loss is based on the assumption that present loss may be assumed to continue indefinitely in the future and any possible depreciation or appreciation in the value of currency is to be ignored.   It is not permissible to award, in addition to the present value of future loss of income, an allowance for additional income that may be generated from the wise investment of future income received.  Accepting the approach required by authorities such as Todorovic and Anor v. Waller (1981) 150 CLR 402, one can only wonder whether, if employers will henceforth be required to provide up to an additional 9 per cent of gross salary payable to the employee by way of compulsory superannuation contribution for the benefit of that employee irrespective of any corresponding increase in community productivity, there will not inevitably result a diminution in either or both the value (purchasing power) of the gross salary payable to the employee and/or the value (purchasing power) of the employer's contribution to a superannuation fund on behalf of that employee. If in essence superannuation contributions are merely compulsory savings for the benefit of employees from wealth generated by community activity but taken from employers rather than made by employees, it is doubtful that the assumption is warranted that merely by stroke of the legislative pen all employees henceforth will enjoy a significant and lasting real increase in reward for work performed in the course of their employment. It may be arguable that the calculation of future loss of income and superannuation benefit by reference only to post and present income rates and the statutory superannuation contribution rates provided in 1993 by use of the traditional method during the transitional period of introduction of the compulsory superannuation scheme is too generous to the plaintiff. At the end of the day, if the value of the benefit of employment remains the same, the employee will be no worse off and no better off than he or she was before the introduction of the compulsory superannuation scheme. If that were the case then increasing the base figure of weekly benefit by the rate of superannuation contributions upon present gross salary would be hard to justify. These matters were not canvassed at all in the evidence and indeed few submissions were forthcoming as to matters of legal principle to be addressed on this aspect of the plaintiff's claim. Upon the facts of this case, applying the principles adopted by Anderson J in Jongen v. CSR Ltd and Anor, the component of damages involved is a modest one and I adopt in broad terms the approach that Anderson J adopted in that case in dealing with this part of the plaintiff's claim.
           On the assumption that she would have continued to work until age 55, a period of 18 years would elapse from mid 1993, when her condition stabilised, until the time of her retirement at age 55.
           The difference between the gross salary which she could have earned as a teacher without any neck disability and that which I find she can and will probably earn with her disability is $7,623 per annum.
           The average of the rate of contribution for 18 years from January 1994 is 8.4 per cent and for convenience I adopt that rate to indicate what percentage of gross salary per annum must be contributed by her employer over that period of time pursuant to the compulsory superannuation legislation.
           8.4 per cent of $7,623 per annum is $640.33 per annum.  For the reasons given by Anderson J. in Jongen v. CSR Ltd and Anor (1992) Australian Torts Reports, particularly at pp. 61713-61714, I discount that sum for tax, cost of scheme administration, risk of fund losses etc by 30 per cent. The discounted figure therefore is $448 per annum.  This gives a weekly value of $8.60.
           Using the 5 per cent tables, the present value of the loss of $8.60 per week for 18 years is $5,323.40.
           I discount this sum by 15 per cent for the "usual contingencies" which leaves the sum of $4,525.
           I assess that sum as the financial loss accruing to the plaintiff by reason of reduced superannuation contributions by future employers.
           With respect to economic loss from date of injury to date of trial, the evidence is unclear as to what the plaintiff may have earned between 18 October 1991 when she was injured and March 1993 when she first obtained a provisional certificate of registration of her qualification as the holder of Diploma of Musical Education.  I assume the plaintiff may have been able to obtain some sort of employment during this period of time.  This is a period of about 17 months or approximately 73 weeks. 
           For a period of 74 weeks after 1 July 1990 she earned a net income of $14,732.50.  However she says that during the last month of this period she did not in fact earn any income.  If that sum is then divided by 70 one should get the average weekly income for roughly 18 months prior to her injury.  On those figures that amounts to $210.46 per week.
           In my view it is most unlikely that she would have earned the same or a greater rate of income during that period of time having regard to her lack of qualification at that stage and to the fact that she had just sold her book-video business.
           Having regard to those figures I would assess her pre-trial loss of income at say $175 per week for a period of 73 weeks and that amounts to $12,775.
           With respect to the plaintiff's claim for domestic assistance and under Griffiths v. Kerkemeyer I take the view on the material that she did reasonably require household help to perform her ordinary household duties etc for about six months.  That period would take her from date of accident until mid April 1992.
           I find the evidence as to what the plaintiff actually paid for household assistance in this period of time very imprecise.  Mrs Reddish claimed she worked 5½ hours per week between November 1991 and October 1994 over a period of 73 weeks.  I have regard also to the letter written by L & J Ericson dated 31 March 1995 which is ex.15.
           I find that it was probably reasonably necessary for the plaintiff to obtain household assistance because of pain in her neck for six hours per week for a period of 26 weeks.  I assess a reasonable hourly cost of that assistance at $8.00 per hour which amounts to $1,248.  In arriving at that figure I take into account that between March and the end of May 1992 the plaintiff had a sufficient capacity to undertake tutoring of Aboriginal TAFE students for about seven hours per four day week.
           Between mid April 1992 and April 1993 I find that it was reasonable for the plaintiff to obtain household assistance for four hours per week, again at a cost of $8 per hour.  This amounts to $1,664.  It was in March 1993 that the plaintiff applied for a position as a teacher on a casual basis and indicated that she had no health constraint which would prevent her from accepting a position on 22 March 1993.  Three months later she stated that she was then seeking a position as a permanent full time teacher and that she had no health problems.          I am unpersuaded on the whole of the evidence that any physical disability from which she suffered as the result of her neck injury after April 1993 reasonably required further household assistance.  In coming to this conclusion I take into account the observation of Dr Gavin Douglas in his report of 8 December 1993 that he did not think at that time that it was "unreasonable" for the plaintiff to employ help in the house for four hours per week to do "the heavier parts of the housework".   I observe simply that that opinion appears to have been based upon the acceptance of complaints of pain made by the plaintiff to a degree which I do not accept.  It seems clear enough that the plaintiff and her defacto husband have at all material times maintained a stable domestic relationship.  I am unpersuaded that any domestic tasks not reasonably within the capacity of the plaintiff with her neck condition are not such as her defacto husband in the ordinary course of events would and should assist her to do.  I am unpersuaded on the evidence that however pleasing or helpful it was to the plaintiff to have domestic assistance in the house subsequent to April 1993, it could be said that it was reasonably necessary for her to have that assistance by reason of pain and disability in the neck.  I assess damages for the costs of obtaining household help from the time of her injury in October 1991 until April 1993 in the sum of $2,912.
           I assess general damages for pain suffering and loss of amenities of life in the sum of $30,000.  I apportion that sum as to $18,000 pre-trial and $12,000 post-trial.
           I assess interest on pre-trial loss of income in the sum of $12,775 for  3.6 years at the rate of 6 per cent to be $2,759.40.
           I assess interest on damages for loss of amenities etc pre-trial, that is on $18,000 for   3.6 years at 2 per cent at $1,296.
           I assess interest on pre-trial cost of services and assistance from October 1991 to April 1993 being a period 18 months on the sum of $2,912 at 6 per cent.  That sum is $262.  Between April 1993 and May 1995 no part of that sum was paid and in respect of that period I assess interest at the rate of 12 per cent per annum for two years on the sum of $2,912, which is $699.  I assess total interest on pre-trial cost of services in the sum of $961.
           Special damages (apart from household help) have been agreed in the sum of $4,069.12.  It is not entirely clear from the material just what part of those damages relates to moneys paid on behalf of the plaintiff which were refundable.  In a supplementary statement of loss and damage it is clear that some of the medical expenses specified there are probably refundable.  In other respects it would seem that they are not refundable.  It is not clear during what period those expenses were incurred.  Doing the best I can I will assume that $1,700 of the agreed special damages relate to moneys refundable to organisations that paid the damages on behalf of the plaintiff and therefore will not attract interest. Doing the best I can I assess interest on $2,300 of the agreed special damages at the rate of six per cent per annum for a period of four years which is $552.
           In summary I assess the plaintiff's damages as follows:

General damages for pain suffering and loss of amenities  $30,000.00

Interest on $18,000 of that sum at 2% for 3.6 years  $1,296.00

Agreed special damages   $4,069.12

Interest on $2,300 of that sum at 6% for  4 years  $552.00

Pre-trial loss of income  $12,775.00

Interest on that sum for 3.6 years at 6%  $2,759.40

Future economic loss  $53,028.50

Loss of benefit for past and future employer superannuation
  contributions  $4,525.00

Cost of household help  $2,912.00

Interest thereon  $961.00
  _________

TOTAL  $112,878.00
  _________

I give judgment for the plaintiff against the defendant in the sum of $112,878.