Mitchell v Rowe - [2003] WADC 154

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: MITCHELL -v- ROWE [2003] WADC 154

CORAM: MULLER DCJ

HEARD: 22 MAY 2003

DELIVERED : 16 JULY 2003

FILE NO/S: CIV 1063 of 2002

BETWEEN: HELEN MITCHELL
Plaintiff
AND
GREGORY JOHN ROWE
Defendant

Catchwords:

Damages - Assessment - Diffuse pain state following rear end collision - Whether injuries attributable to accident - Provisional assessment of damages

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943

Result:

Plaintiff's claim dismissed

Representation:

Counsel:

Plaintiff: Mr T N Cullity
Defendant: Mr P R Momber

Solicitors:

Plaintiff: Trewin Norman & Co
Defendant: Peter Momber

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

March v E & M H Stramare Pty Ltd & Anor (1991) 171 CLR 506

Case(s) also cited:

Nil

MULLER DCJ: The plaintiff, who was born on 12 May 1964 and is now aged 39, was allegedly injured in a motor vehicle accident in Armadale Road on 20 July 2000 when a prime mover and trailer driven by the defendant collided with the rear of the plaintiff's stationary vehicle and then bumped the rear of the vehicle another three times causing her to move forwards and backwards in the driver's seat. The defendant has admitted that the accident occurred as a result of his negligence and the only issues in the trial were the nature of the plaintiff's alleged injuries and whether such injuries had been caused by the accident.

Circumstances of accident

On 20 July 2000 the plaintiff was driving a Ford Laser in Armadale Road on her way to work. She stopped at a set of traffic lights with her foot on the vehicle's brake. While she was looking ahead she felt what she described as a really big jerk to the rear of her car. Her evidence on this point was as follows:
"Were you stationary at some traffic lights?‑‑‑Yes, that's right.
Could you tell us what happened from that point on?‑‑‑Basically, I was looking ahead because there was quite a traffic jam. There was road works; they were doing the freeway extension or something at that point there. All of a sudden I felt this really big jerk and looked in the rear-vision mirror and all I could see was this huge grille that took up the whole of the back of my car space.
Where were your feet at the time?‑‑‑I would have had one foot on the brake. I tend to do that most times.
Is your car automatic or manual?‑‑‑It's a manual.
Manual. Right?‑‑- Then I turned around and realised that he was right up against my car and then, all of a sudden, as I was turned he hit into the back of me a further three times, two times again forceful and the third time was a much lighter impact.
Are you able to describe the severity of the jolts by any means?
MULLER DCJ: Sorry, could you just speak up?‑‑‑Yes.
Sorry.
CULLITY, MR: Yes. Could you describe the severity of the jolts by reference to any sort of common example, common‑‑‑?‑‑‑I suppose the example of the drink, if I had a glass in my hand it most certainly would have spilt everywhere, probably the whole glass, because it was such a full on jolt three times. It was quite forceful.
When you indicated that you rocked backwards and forwards in your chair in the witness box?‑‑‑Yes.
Is that what happened?‑‑‑Yes, I most certainly moved.
How much time was there between each impact?‑‑‑Let me think. I remember when I moved, in the time when I looked in the rear-vision mirror and turned sideways, I was on my way looking back again and I saw the man watching me and that was when I had my second impact, so probably, I don't know, about a second or so.
A second between each one?‑‑‑Yes, one second or maybe slightly more; I'm not 100 per cent. I wasn't really thinking . I didn't expect any more bumps after the first one.
What did you do, having had these four jolts?‑‑‑Well, I waited until the traffic moved on because it was a stand-still for about 500 metres from the lights and then I turned off at a turning lane and stopped in the turning lane. I was expecting that the truck driver would follow immediately behind me because I had thought, well, surely he was aware that he was hitting me; he was right up against me. Then when I saw him drive on and go through with the traffic, I quickly panicked, thinking he didn't even notice that he had hit me, so I quickly wrote down the rear number plate."
Following this incident the plaintiff described how she moved her car to the side of the road and stopped. Much to her surprise the driver of the truck did not stop but drove off. She recorded the registration number on the back of the semi‑trailer and then went to examine her own car. She was unable to find any damage at all to the rear of the car.
Up to this point the plaintiff had not felt any pain or discomfort as a consequence of the series of impacts she described. She made her way to the school where she taught and commenced her duties. Approximately 1‑1½ hours after she began work she felt a pain in her neck accompanied by a headache and nausea. She sent a note to the Principal and later spoke to him. Both she and the Principal of the school examined her car but were unable to find any damage to it. By lunch her condition had deteriorated and she took two Panadol tablets.
On returning home she still felt significant pain and took another two Panadol tablets. She went to sleep and woke up feeling a significant degree of pain. The pain was acute enough to disturb her sleep. On the following day she did not go to school but went to see a general practitioner who examined her and prescribed anti‑inflammatory medication. She was also urged to undergo a course of physiotherapy.

Condition of plaintiff following accident

As a consequence of her pain the plaintiff, who was working part‑time, did not work on the day following her accident and in the following week did not attend work on the two days she was supposed to work. She underwent physiotherapy commencing on the day following the accident. She said she had about 12 sessions with the physiotherapist and only got temporary relief from the treatment.
In the months that followed she continued to see her general practitioner and undergo physiotherapy. By November 2000 she had lost 15 kg in weight and had increased her exercise programme. By the end of 2000 her symptoms had improved to the point where she considered she would be fit to work on a full time basis in 2001. She informed the Principal of the school of her decision.
The beginning of 2001 marked a substantial change in both the plaintiff's personal circumstances and in her health. On 1 January 2001 she left her husband and moved with her two small children to her mother's home for three weeks before finding a unit in which to live. She began working full time at her school and her mother and stepfather assisted by taking the children to school and collecting them after school, feeding them and putting them to bed. While the plaintiff's condition seemed to have returned to normal the commencement of full time teaching duties corresponded with the recurrence of her symptoms. She was required to teach year 1 children which she found physically arduous. She had to bend over to supervise their work and found that extra energy and effort were required to deal with them. As early as the end of the first week of recommencing her teaching duties she began to suffer pain in her neck and also in her upper, middle and lower back. She consulted an occupational therapist who recommended the use of a chair with lumbar support and other work place changes. These changes had little, if any, effect on her condition. She found that after completing a day's work she was absolutely exhausted and had to go home and sleep for several hours. She was prescribed a drug called Zoloft which helped her sleep but her level of pain was such that her sleep pattern continued to be disturbed. This, in turn, affected her ability to concentrate and stay awake at work.
Having separated from her husband at the beginning of the year the plaintiff began a relationship with another man, whom she has since married, in late January 2001. While she went through a period of intense emotional upheaval both before and immediately after her separation she claimed that after three weeks she had regained emotional stability.
Throughout 2001 the plaintiff continued to teach full time. At the end of the year her pain was so intense that she felt she could not continue. She told the Principal of the school that she could only manage to work two or three days a week in 2002. Her decision was supported by her general practitioner.
In 2002 the plaintiff returned to her teaching duties. She taught two days a week and was allocated the year 3 class which she found less demanding than the year 1 children she had taught previously. Having embarked on this pattern of part‑time work she found her symptoms improved quite substantially. When she was not at work she said she managed to cope quite well but found her symptoms flared up during the two days each week she had to teach. Apart from her pain she said she returned home from work feeling exceptionally tired.
In May 2002 she began receiving chiropractic treatment every two to three days and found this treatment definitely helped her condition.
By August 2002 her symptoms had not really improved. She found she was feeling more tired than ever and her pain persisted. She continued using the drug Zoloft to assist her to sleep. She said that she still feels pain across the upper and middle part of her back radiating out to her shoulders and upper arms and downwards to her thighs. She asserted that her level of pain had not improved but had remained the same as it had been at the time of the accident. She said she only felt a diminution in her level of pain when she underwent chiropractic treatment.

Medical evidence

On the day following the accident the plaintiff saw her general practitioner Dr Kay Majda. Dr Majda observed that the plaintiff was tearful and emotionally distressed. A clinical examination revealed that her cervical spine was tender on palpation of the C3/5 facet joints although her range of neck movement was normal. Dr Majda reached the preliminary view that what the plaintiff told her combined with the tenderness in her cervical spine was consistent with a cervical whiplash injury which, in her opinion, would settle within a period of 12 months.
In a report dated 28 May 2001 Dr Majda refers to the fact that the plaintiff was seen by a Dr Christine Marsack and was prescribed an antidepressant drug called Zoloft. When she was next seen by Dr Majda the plaintiff said her emotional condition had returned to normal. A clinical examination on 18 May revealed that she still had pain at the extreme of neck flexion and also restricted right lateral flexion. She was found to be tender along the whole length of the spine but particularly at facet joints C4‑6. A neurological examination of the upper and lower limbs was normal although her reflexes in her lower limbs were found to be elevated. Her symptoms, according to Dr Majda, were the same as those displayed at the initial consultations although, on this occasion, symptoms in her lower limbs were apparent for the first time. Arrangements were made with the plaintiff to see Dr Janet Roddy to explore the possibility of fibromyalgia.
A diagnosis of fibromyalgia was subsequently made by Dr Roddy whose reports were tendered by consent at the trial. This condition, which is apparently undetectable by clinical testing, consists of tenderness in the muscles at particular pressure points, such as various joints, and is diagnosed in reliance upon the symptoms described by the patient.
In a report dated 11 November 2002 Dr Majda referred to the benefits of the ongoing chiropractic treatment the plaintiff was receiving and expressed the view that she could increase the number of working days to three per week in 2003 and possibly four days per week in 2004. The plaintiff, however, was reluctant to increase her working week to three days a week for personal reasons.
Given the improvement in the plaintiff's emotional state, Dr Majda believed that she could gradually withdraw from the use of Zoloft, although there was always a possibility that she would have to resume using the drug. She also said the plaintiff would need regular consultations with her general practitioner once every three months.
What emerges from Dr Majda's evidence is that the diagnosis of a cervicothoracic whiplash injury and possibly fibromyalgia was to a very large extent dependent upon the symptoms described by the plaintiff and her tenderness on palpation. In cross‑examination Dr Majda conceded she was unable to find any objective signs of injury and agreed she had written to the Principal of the Jandakot School saying the plaintiff was no longer able to work full time after 2001 because the plaintiff had asked her to do so. She also agreed in cross‑examination that the plaintiff's personal trauma in 2000‑2001 could have contributed to her diffuse pain state. She agreed the plaintiff was very tearful and openly emotional at the earlier consultations although she qualified this by saying that, in her opinion, the plaintiff dealt with her marriage break‑up remarkably well.
The reports of two medical practitioners were admitted into evidence by consent. The first of these was from Dr John Ker, a consultant physician in rehabilitation medicine. He saw the plaintiff for the first time on 14 December 2001 and in his report dated 3 January 2002 explained how he had detected some modest discomfort at the cranio‑cervical junction to the right and left of the mid line and tenderness in the mid line in the lower half of the cervical spine. He also detected muscle tension in the extensor muscles of the neck at the cervico‑thoracic junction. He found she had unrestricted movements of the cervical spine and a full range of bilateral shoulder movements.
Dr Ker saw the plaintiff again on 18 November 2002 and 11 March 2003. On each of these occasions he did not find any substantial change in her condition. At his last consultation he reported that the plaintiff still experienced pain in the lower cervical spine, interscapular area and in the area of the lumbo‑sacral junction. Once again her cervical spine movements appeared to be unrestricted although she was found to be tender in the area over the lower cervical spine around the spinous processes of C5 and C6. She also displayed a satisfactory range of thoraco‑lumbar spinal movements. His conclusion seems to have been that the plaintiff sustained an acute strain injury to the muscle and ligament structures of the cervical spine and, in particular, the lower half of the cervical spine in the motor vehicle accident.
The other medical practitioner whose reports were introduced by consent was Dr Janet Roddy, a specialist physician in rheumatology. She diagnosed the plaintiff as suffering from fibromyalgia which, in her most recent report dated 9 August 2001, she said she would expect to abate over time although she conceded the symptoms might not completely disappear.
Mr Peter Watson, a specialist in neurosurgery, saw the plaintiff on two occasions, the first being the 8 March 2002 and the second 7 May 2003. As with the other medical practitioners he was unable to find any pathology suggestive of spinal injury but, as a consequence of the history she related and the tenderness she displayed upon examination, he concluded that the plaintiff had suffered an ongoing soft tissue and ligamentous injury of the cervical spine and to a lesser extent the lumbar spine as a result of the motor vehicle accident on 20 July 2000. It is significant that in his report dated 8 March 2002 he expressed surprise that her symptoms recurred to the extent that they did in 2001. In his evidence, however, he qualified this by saying that it was not unusual for whiplash injuries to last for periods ranging from several months to five or six years.
Apart from the motor vehicle accident Mr Watson also believed the plaintiff's condition of pain may have been contributed to by stress, anxiety or depression. He conceded these were significant factors in both the management and expression of pain in a person. He acknowledged that the plaintiff had told him she had been through a marriage break‑up which may have been a contributing factor. Mr Watson's attention was drawn to the pain diagrams which the plaintiff had prepared at the request of Mr Stewart Brash. He expressed the view that the pattern shown in the diagrams reflected the history of what he had been told and was consistent with other cases of soft tissue injury caused by motor vehicle accidents.
Mr Watson was cross‑examined as to the possible mechanics of the injury suffered by the plaintiff. He agreed that a state of pain is usually caused by trauma and that there must be some irritation of a nerve. In the plaintiff's case he said he believed that the flexion and extension of the plaintiff's spine as a consequence of the impact must have caused an injury. He agreed that the plaintiff appeared to have a normal spine with no inherent weaknesses. He also conceded that the spine is flexible and can accommodate movement within the limits of its anatomical structure. He surmised that, when the impact occurred, the plaintiff's spine extended when her vehicle was struck from behind while she was unprepared for what happened. This chain of events was, in his view, the most probable explanation for her ligamentous injury. When pressed on this point he agreed he had to postulate there had been some bracing of the spine to have exposed the plaintiff to ligamentous injury. When told of the plaintiff's account of the movements of her body upon impact he agreed that the impact did seem to be a light one and, if there was some injury to the cervical spine, the probabilities were that it would be a minor soft tissue injury.
The witness was really unable to offer any explanation as to why the plaintiff's thoracolumbar spine had been damaged. He said such damage might have occurred if she had been in a twisting position looking around at the time of impact. This, of course, was not the plaintiff's position when the first major impact occurred. At that point in time she was facing straight ahead with her foot on the brake.
I was not particularly convinced by Mr Watson's evidence that the diffuse pain described by the plaintiff and illustrated in the pain chart she prepared at the request of Mr Stewart Brash was caused by the accident. In my view the witness was distinctly uncomfortable when it was repeatedly suggested to him that an impact of such minimal force could not possibly have caused the diffuse pain state which the plaintiff described. He had to concede that the impact did seem very light and that, at the most, a minor soft tissue injury could have been expected to flow from it. In my view his evidence simply did not address the question as to how the limited motion of the plaintiff's body backwards and forwards, without any apparent contact between the back of her head and the seat, could have flexed the spine to such an extent as to have caused ligamentous injury. It was suggested to him that any such movement would be within the normal parameters of the plaintiff's spinal flexion and extension. In my view he was unable to refute that suggestion. I gained the distinct impression that he relied very heavily on the history related to him by the plaintiff coupled with his experience in other cases of soft tissue damage arising from motor vehicle accidents. While he was quite entitled to rely on both these factors, and was justified in drawing heavily on his considerable experience with injuries of this nature, I find that he was not able to give a satisfactory explanation as to how an impact of such minimal force could produce a pain syndrome as diffuse as that alleged by the plaintiff. His concession in cross‑examination that the impact did seem to be a light one and that, if any injury flowed from it, it was likely to be a minor soft tissue injury, was, in my judgment, inconsistent with the view that the plaintiff's wide ranging state of pain flowed from the rear end collision.

A psychiatrist, Dr Frederick Ng, described how he saw the plaintiff on one occasion on 10 April 2003 and, after recording her personal history, concluded she did not have any indication of a significant major depressive disorder. In his evidence he agreed that, given the medication she was taking at the time and the small dosage involved, she may not have been suffering from a depressive disorder at all or, even if she was, that it may have been mild and controlled by the medication.
The only medical witness who was able to find any overt pathology to explain the plaintiff's condition was the chiropractor, Dr Luke Tassel. He saw the plaintiff for the first time on 29 May 2002 when she complained of pain in the upper and lower cervical spine and along the upper shoulder together with headaches and pins and needles in both arms above the elbow. After hearing the history of her complaints he examined the cervical spine x‑rays that had been taken on 12 March 2002 and concluded that these revealed what he described as positional dyskinesia of the first cervical and fifth cervical vertebrae with both lateral flexion and rotational displacement. He explained this meant that two joints were not correctly aligned at the base of the neck at C1/C2 and at the top of the spine at C5 and C6. He said the degree of misalignment was in the range of 5‑10 per cent. His examination of the x‑rays also led him to conclude that the plaintiff had what he described as hypomobility of the lower cervical spine. He explained this by saying that the bones at the base of the neck were not moving freely. Having made this diagnosis he described the chiropractic treatment he administered over a period of time. Initially he treated the plaintiff three times a week but later, when her condition improved, only monthly treatment was required. As a consequence of his treatment he said her condition had improved and her spine has continued to heal to the point where the plaintiff is now able to manage her symptoms but does suffer aggravation of her pain by the end of each month when chiropractic treatment falls due.
Looked at in isolation the chiropractic evidence certainly offers a pathological explanation for the plaintiff's pain. But the evidence does not stand on its own. It has to be looked at in the context of the other medical evidence. When that is done only one stark conclusion is open. The chiropractic practitioner was the only medical witness able to offer a pathological explanation for the plaintiff's pain. Other medical witnesses, including medical specialists, who examined the same x‑rays and conducted their own clinical examinations of the plaintiff, were unable to find any aetiology for her pain. Standing as it does in complete isolation the evidence of the chiropractor must, I believe, be viewed with great caution.
The final medical witness, who was called by the defendant, was Mr Stewart Brash, an orthopaedic surgeon. He saw the plaintiff on two occasions in February 2003 and again in May 2003. His clinical examination, like those of the other medical practitioners, revealed no objective pathology to explain the diffuse pain she complained of. In his report dated 27 February 2003 Mr Brash concluded that the minor force involved in the accident, together with the absence of any damage to her vehicle, precluded any significant damage having been caused to the plaintiff's spine. He was unable to find any objective, anatomical pathology to explain her very severe and very widespread symptoms as outlined in the pain drawings which she prepared at his request. He concluded that her symptoms were psychosomatic in origin.

Whether the plaintiff's injuries related to accident

The questions of whether the plaintiff's injuries were caused by the rear end collision is to be determined by a value judgment involving standard notions of language and commonsense: March v E & M H Stramare Pty Ltd & Anor (1991) 171 CLR 506.
The critical issue is whether the plaintiff's diffuse pain state can be shown to be causally related to the accident. The answer to this question involves an examination of all the circumstantial factors that existed before, at the time of and following the accident. It also involves an assessment of the plaintiff as a witness. The plaintiff, in my view, gave her evidence well enough. She was softly spoken and quite articulate. I was unable to find any significant flaws in her demeanour. There were two areas in her evidence, however, where she displayed uncertainty: first, when cross‑examined on the circumstances of the accident and, in particular, the minor nature of the impact; and second, when questioned on her widespread and persisting symptoms of pain. I will turn to these areas of her evidence very shortly.
In assessing the credibility of the complainant I have taken into account a number of factors. In the first place she was involved in a rear end collision and complained of pain and discomfort to the principal of her school by at least lunch time on 20 July 2000. In the second place her symptomatology remained consistent throughout the almost three years she underwent medical treatment from various medical practitioners until the date of her trial. It was also submitted on her behalf that her return to full time employment in 2001 and her involvement in full time teaching throughout that year were factors that were inconsistent with any aggravation or falsification of her symptoms.
I agree these factors are in the plaintiff's favour. There are, however, a number of circumstantial factors which, in my view, militate strongly against the genuineness of her claim. First and foremost was the minimal impact involved in the collision. There was no damage at all to the rear of the plaintiff's 10 year old Ford Laser Sedan. This was not a case where the collision resulted in minor damage. Had there been some damage to the rear of her car it might have been possible to infer that the impact, or series of impacts, was of sufficient force to jolt her significantly. But there was not a mark on the back of her car. Bearing in mind that the other vehicle involved was a prime mover pulling a semi‑trailer and her car was a 10 year old small sedan the impact must indeed have been minimal. Given the absence of any damage at all, or even any sign of any impact, I believe it would be accurate to describe the impact, as counsel for the defendant suggested, as little more than a series of nudges. The plaintiff's evidence when cross-examined on this issue was, I believe, less than convincing:
"You must have been astonished, were you, when you found yourself as injured as you have become as a result of this tiny little tap?‑‑‑Well, it wasn't tiny.
It wasn't a tiny little tap?‑‑‑No, it was a very forceful‑‑‑
Very forceful tap?‑‑‑Mm.
A forceful tap so forceful as to not cause one single skerrick of damage to the rear of your motor vehicle. Is that right?‑‑‑That's correct.
Nothing, nil, not a scratch. Correct?‑‑‑It was a plastic bumper, so I suppose it's hard to scratch plastic.
Plastic is not hard to scratch. See that piece of plastic there? You could scratch it with your fingernail?‑‑‑It was a rough textured one.
It was a‑‑‑?‑‑‑Rough texture.
You are saying that a large truck coming behind which struck your vehicle four times, you say, four times it struck it. Is that right?‑‑‑Yes.
Did not cause any damage at all?‑‑‑As I said, I was astonished but then I realised if he's' up against the back of my car that he's obviously not hitting on to it. He's up against it.
He hit it once?‑‑‑First time, that 's true.
If your car and his come into contract, there is going to be, if there is any force between the two vehicles at all even if they are touching, a mark. There wasn't a mark, was there?‑‑‑No, but then I recalled when I bought the car that it was called an impact-absorbing bumper.
We are not talking about that. I'm talking about the surface area of your motor vehicle. Your motor vehicle was struck by a vehicle which was – perhaps you could describe for his Honour. What sort of vehicle was it?---It was a semi-trailer and it had a large steel grille all the way across the front of it.
Yes All right?‑‑‑It would've been hitting onto the bumper.
It would have been how tall this vehicle?‑‑‑Quite tall when I looked through the back of the car‑‑‑
If you looked through the back it was probably, what, 6 to 8, 10 feet tall?‑‑‑I don't know.
This vehicle, you say – you could look up at it, couldn't you? If you were standing‑‑‑?‑‑‑Not when it was right behind me.
If you were standing on the pavement, you would be looking up and couldn't see over the top of that vehicle, over the cab, could you?‑‑‑Probably not.
No. Yet you say this vehicle came into contact with your vehicle, jolted you and it four times yet did not make a mark on the plastic bumper and you say as a result of that you were injured?‑‑‑I believe I was.
You must have found that extraordinary. You must find that extraordinary now, do you?‑‑‑Well, it is incredible, but I'm sure there's some sort of evidence about my bumper.
Well, we know there – well, I'm not talking about the impact capacity of your bumper. I'm talking about the fact that it wasn't marked. There was nothing, was there? You even showed it to other people and they couldn't see anything. You showed it to the headmaster. He couldn't see anything either, could he?‑‑‑That's correct."
When analysing the series of impacts I believe the most significant must have been the first impact that occurred when the plaintiff was looking ahead with her foot on the brake and waiting for the traffic light to change in her favour. It was this initial impact that she described, to use her expression, as "a really big jerk". It was at that point she turned around to see what had made contact with the rear of her car. Having turned round she described how the vehicle behind bumped her car another three times. Those subsequent impacts must have been of minimal force because, as she conceded, the front of the prime mover was against the rear of her car when these occurred. The plaintiff said she was pushed forwards and backwards by the impact. I can only assume she was referring to the first impact which she described as a really big jerk. At that point in time she was facing ahead and had her foot on the brake. As the neurosurgeon, Peter Watson, conceded the fact that she was not anticipating an impact, and had not braced herself, was probably less likely to expose her to spinal injury.
If she was not injured as a consequence of the initial impact the next question is whether the succession or series of three jolts or bumps were the precipitating cause, either individually or collectively. This seems highly unlikely. I have already referred to Mr Watson's evidence as to how he had to assume there had been some bracing of the plaintiff's spine before impact to have caused a ligamentous injury. The probabilities are that her spine was certainly not braced at the moment of the initial impact. Even if, in turning round as she claimed she did, she was at risk of injury, the three successive bumps, when the front of the prime mover was already against the rear of her vehicle, must have been so slight that the likelihood of any significant extension or flexion of her spine would have been exceedingly remote. In any event, as I have already said, the plaintiff's evidence that she was pushed forwards and backwards appears to have been limited to the initial impact when she was still facing forwards with her foot on the brake. Any significant body movement after the first jolt would be inconsistent with her concession in cross‑examination that after the first impact the front of the prime mover was up against the back of his car and was "not hitting on to it".
I have already referred to the plaintiff's hesitation when cross‑examined on this aspect of her evidence. Her explanation of the force of the impact, and the subsequent movement of her body, was less than plausible. In the end she had to agree with the suggestion made by counsel for the defendant that the absence of any damage, or even mark, on the back of her car following such an impact or series of impacts was indeed incredible.
The widespread nature of the plaintiff's symptomatology, and the persistence of her level of pain without diminution over a period of almost three years, are also factors that I find to be improbable in the light of the almost minimal impact that took place. The pain diagrams completed by the plaintiff at the request of Mr Stewart Brash show areas of burning, stabbing, numbness and pins and needles at the top of the head, the base of the head, the neck, the shoulders, the upper arms, along the length of the spinal column and in the buttocks and the front of both upper legs. While Peter Watson, the neurosurgeon, believed these symptoms were consistent with a soft tissue injury, I prefer the evidence of Mr Stewart Brash that the symptoms were so widespread as to be inconsistent with the minor impact or series of impacts that occurred. What is more there has been no improvement at all in the plaintiff's condition. Almost three years have elapsed and her level of pain remains very much the same as it was following the accident. Most of the medical reports tendered in evidence at the trial refer to the prospects of the plaintiff's improvement over a period of 12 months or a little more. Against all these favourable prognostications no such improvement has occurred.
Then there is the complete absence of any anatomical pathology to explain the plaintiff's diffuse pain state. I am not suggesting that the absence of pathology must lead to the conclusion that there was no soft tissue injury. But it is the combination of the absence of any pathology and the very minor forces involved that make it improbable her condition is as she said it is or that it was caused by the collision. The situation becomes increasingly improbable when her pain is as diffuse as it is said to be and has endured, without any significant abatement, for almost three years. Apart from the direct evidence of the plaintiff, which I am not prepared to accept on its own, the remainder of the evidence is circumstantial and must raise a more probable inference in favour of what is alleged if the plaintiff's claim is to succeed. In my view it does not. On the contrary the more probable inference is that her alleged condition was not caused by the rear end collision at all.
I do not have to find any alternative cause for the plaintiff's alleged condition. There was, however, a significant body of evidence to suggest that her complaints are, to use Mr Stewart Brash's terminology, psychosomatic in origin. When the plaintiff was first seen by her general practitioner, Dr Majda, she was unusually tearful and emotionally distressed. The plaintiff admitted that at the end of 2000 she and her husband of 15 years were going through a difficult period culminating in their separation at the beginning of 2001. The circumstances of her separation were traumatic. She agreed she was in fear of her former husband and that she left the matrimonial home with her children and went to live with her mother. Later that same month she began a relationship with the person whom she is now married to. While she agreed she was under emotional stress during this period she asserted that she overcame this problem after a short period of 2‑3 weeks and was able to move forward emotionally.
The plaintiff's assertion that she recovered from her emotional trauma in such a short time is questionable. When she was examined by Dr Majda in May 2001 she was thought to have suffered a depressive illness which had been treated with the drug Zoloft. She had taken this drug for a substantial period and, while the dosage she took was small, it was sufficient, in the opinion of Dr Frederick Ng, to have masked what he described as a mild depressive disorder. It is equally possible, as the psychiatrist said, that she may not have had a depressive disorder at all.
There were other stresses in the plaintiff's life together with symptoms of sleeplessness, loss of self‑esteem and constant tiredness. She was also apprehensive about the impending court proceedings. Given the medical evidence, including that of the neurosurgeon, that stress, anxiety and depression are key factors in both the management and expression of pain in a person, it is possible that the plaintiff's condition was a product of her emotional or psychological state. Having made that observation, however, it is not necessary for me to make any specific finding in relation to the issue. All I need say is that it has not been proved that the plaintiff's injury was causally related to the accident.
Given this finding the plaintiff's claim must necessarily fail.

Provisional assessment of damages

(a)Past economic loss
If I had accepted that the plaintiff's injuries were caused by the accident I would have accepted her assertion that she was only able to teach part time and that since the commencement of the 2002 school year she has had to work on a part‑time basis. Had she been able to work full time her gross weekly income would have been $1,044.55 ($771.55 net per week). Her present gross weekly income working part‑time two days a week is $417.82 ($325.52 net per week). The differential between her potential full time wage and the actual salary she was paid for her part‑time work is $626.73 gross per week or $446.03 net per week.
There was a suggestion by the plaintiff's general practitioner, Dr Majda, that she would be able to work three days a week in 2003. Dr Majda encouraged the plaintiff to increase her part‑time work to this level but the plaintiff declined to do so for personal reasons. I am unable to find on this evidence that the plaintiff would necessarily have been able to work three days a week in 2003. While it is arguable that she ought to have made the effort to do so, and that she decided not to for reasons unconnected with her condition, I cannot be satisfied on the evidence before me that she would have managed to increase her level of work. As it was she said she was barely able to manage working two days a week and, at the end of her second day at work, returned home exhausted and in pain.
In assessing the plaintiff's past economic loss counsel for the plaintiff conceded that I should take into account the income she earned from her furniture distribution business. I need not go into any detail as to the nature of this business because it was agreed that the net weekly income she derived from this business was approximately $192. Taking this figure into account the plaintiff has sustained a net weekly loss of income of $254.03 ($446.03 ‑ $192).
Loss of income from 1 January 2002 to 22 May 2003 (date of trial = 67.85 weeks).
67.85 weeks x $254.03 = $17,235.93
Interest at 3% pa for 1.5 years on $17,235.93 = $775.61
(b)Past loss of superannuation entitlements
9% of $1,044.55 = $94. 9% of $417.82 = $37.60. Differential = $56.40.
56.40 x 67.85 weeks = $3,826.74.
Interest at 3% pa for 1.5 years on $3,826.74 = $172.20.
(c)Future loss of earning capacity.
Counsel for the plaintiff submitted that on the evidence it is probable the plaintiff would be able to return to work on a full time basis after a further period of three years. This submission was based upon the evidence of Dr John Ker and, in particular, Dr Majda. While it is impossible to be precise I believe that three years is a reasonable forecast. In her latest report dated 17 May 2003 Dr Majda does refer to the settlement of the plaintiff's condition within the next two years. Given her evidence that she hoped the plaintiff would be able to work four days a week in 2004, however, it seems more likely that a recovery sufficient to enable her to return to full time work might take as long as three years.

$254.03 x 143.6 = $36,478.70.
(d)Future loss of superannuation entitlements
$56.40 x 143.6 = $8,099.04.
(e)Damages for pain and suffering
If the plaintiff's injury had been caused by the accident and produced the level of pain she claims it did I accept that her condition has had a significant impact on her everyday life. Her pain and discomfort was obvious to her teaching colleague, Susan Oliver, and her current husband, Arnolous Vermeulen, described how both her emotional state and her level of pain had adversely affected her lifestyle. I have already outlined the plaintiff's evidence as to the areas of the body in which she feels pain and the extent of that pain. She has had to undergo extensive treatment, including a course of physiotherapy, and is currently receiving chiropractic treatment. She has also been on medication to relieve her pain from the time of the accident. Little evidence was led as to the effect her condition has had upon her enjoyment of life. Her current husband said that the plaintiff's pain and tiredness precludes her from going to parties or enjoying other pursuits such as dancing. Given the level and extent of the plaintiff's pain, the period for which it has endured and the treatment she has had to undergo I would have thought an allowance for pain, suffering and loss of amenities would have put the plaintiff at 10 per cent of the most extreme case. 10 per cent of $240,000, the amount referred in s 3C of the Motor Vehicle (Third Party Insurance) Act 1943, is $24,000. This is above the current threshold of $12,000. I would have awarded the plaintiff $12,000 under this heading.
(f)Gratuitous services
The plaintiff's mother and present husband gave evidence as to the domestic chores and other help they had to give the plaintiff during her period of partial incapacity. I do not propose to go into any detail as to the necessary household tasks each had to undertake to assist the plaintiff. If the plaintiff's injuries and level of pain were a consequence of the rear end collision I am satisfied that the plaintiff's mother had to spend about four hours a day assisting the plaintiff between September 2001 and December 2001 and again between February 2002 and March 2002. Since March 2002 the plaintiff's husband has spent about five hours a week assisting the plaintiff. I accept the figures provided by the plaintiff's counsel based upon the evidence of both the plaintiff's mother and husband that the plaintiff necessarily received approximately 750 hours of assistance during the period in question. Counsel have agreed that the appropriate rate at which such assistance is to be compensated is $12 per hour.
700 hours x $12 per hour = $9,000.

Summary of Provisional Award

Past economic loss  $17,235.93
Interest thereon   $775.00
Past loss of superannuation   $3,826.74
Interest thereon   $172.20
Future loss of earning capacity  $36,478.70
Gratuitous services   $9,000.00
General damages  $12,000.00
$79,488.57