Moore v McDonald - [2002] WADC 51

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: MOORE -v- McDONALD [2002] WADC 51

CORAM: KENNEDY DCJ

HEARD: 15-17 OCTOBER 2001

DELIVERED : 18 MARCH 2002

FILE NO/S: CIV 2350 of 1999

BETWEEN: PATRICIA ELSPETH MOORE
Plaintiff
AND
DONALD ALEXANDER McDONALD
Defendant

Catchwords:

Negligence - Motor vehicle accident - Assessment of damage - Medical practitioner - Brain injury - Economic loss

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943

Result:

Damages $882,885

Representation:

Counsel:

Plaintiff: Mr T H Offer
Defendant: Mr J G Staude

Solicitors:

Plaintiff: Trewin Norman & Co
Defendant: John G Staude

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

Graham v Baker (1961) 106 CLR 340
Husher v Husher & Anor (1999) 165 ALR 384
National Insurance Co of NZ Ltd v Espagne (1960‑1961) 105 CLR 569

Case(s) also cited:

Nil

KENNEDY DCJ: The plaintiff, who was born on 11 February 1957 and is now aged 44, was injured in a motor vehicle accident on 10 March 1994. The defendant admits liability for the motor vehicle accident but the quantum of damages the plaintiff should receive is in issue.
The plaintiff completed her medical degree in New South Wales in the normal six year period without any difficulties and then worked in a number of hospitals and finally, in 1985, was accepted to train as a specialist physician at a hospital in Newcastle, New South Wales. During the course of this, in 1986, she worked as a locum general practitioner and discovered that she enjoyed it, so she resigned from the hospital and started work as a general practitioner. She worked in a group practice for 2‑1/2 years and then set up practice with another woman and, in 1991, they joined with an existing practice of a Dr Anand Kumar. The arrangement with Dr Kumar was that they shared reception staff but the patients and the billing were kept separate and the practice of the plaintiff and her partner paid a fixed rent and a variable percentage of costs to Dr Kumar. The percentage of variables was calculated on the basis of the number of patients seen.
In addition to this work, they did medico‑legal and insurance work.
In February 1992, the plaintiff's partner left but the plaintiff stayed with Dr Kumar. She and Dr Kumar looked for a third doctor but were unable to find one. Having three doctors works better because the costs are split three ways and there is also more flexibility with time off, holidays and if there is any illness. By 1993 the plaintiff was seeing 120 to 140 patients per week in about nine to 10 sessions. When her partner left, her partner had taken 50 per cent of the files and there was also a state of flux when patients were determining who they wanted to be with and this can be loyalty to a particular doctor or it can be convenience of the particular medical practice. During 1992, her own practice recovered from the move to Dr Kumar and the separation from her partner but there was still room for more work and from 1993 to 1994, the practice was continuing to build.
The plaintiff said she was happy to remain as a general practitioner but she would have liked to increase her studies in paediatrics, gynaecology and dermatology. Her hours were flexible but she was working full‑time and she was prepared to extend her hours.
Her plan was to practise as long as she could, at least to 60 or 65 full‑time and then perhaps to work part‑time. She was very happy with what she was doing and had no problems with memory, concentration or language. At school, she was in the debating team and did public speaking such as on Anzac Day.
She met her present husband, who in fact is the defendant, in 1991 but their relationship really commenced in 1993. At that time and until 2000, her husband worked as a metallurgist for BHP in Newcastle.
So far as her future plans were concerned, at that stage, she had no plans to have children because the risks of having a child with a disability increased substantially once a woman turns 36 and she did not believe she could cope with a handicap child but at the same time, she did not want to ever contemplate a termination.
She had a wide range of social activities - reading, attending movies, walking, swimming, playing hockey and doing pencil sketches for which she had a reasonable aptitude and she had done some courses. Her social life consisted of family and friends and she had no problem mixing or interacting.
In March 1994, the plaintiff and the defendant came to Western Australia for a holiday and the motor vehicle accident occurred while they were here. They were driving in the South‑West on an unpaved road and the car simply stopped. They got out of the car to try and see what was wrong and, eventually, the defendant said to her to get back in and he would try to steer the car to the side of the road. Instead, he lost control of it and it went down a hill and the next thing she knew, she woke up in Royal Perth Hospital three days later. She knew she was in hospital but she did not know why until she enquired of the nursing staff. She was tired, vague, had a headache and a dreaming sensation which lasted for four to five days. She had stitches in her head and she was sore and bruised, her neck was very sore and she had low back pain.
Her first realisation that she had major mental problems was when she rang "American Express" to make some enquiries about her credit card and discovered that she was incapable of explaining basic concepts to the person in the American Express office and she was devastated at this discovery.
She and the defendant remained in Western Australia for two weeks and then returned to New South Wales and, at this stage, she felt terrible. She was dizzy, had headaches and was very tired and she was not functioning very well at all. She could not do basic things like unpack the dishwasher without concentrating, she had double vision, could not concentrate on the television, could not drive and she simply pottered around at home and slept.
Eventually, the tiredness and headaches resolved and she slowly became more aware of her surroundings. The low back pain resolved in three to four months, the double vision and dizziness took about a month to resolve.
Finally, she went back to work on 11 April but had little insight into her problems at that time. She had gone back to work too early, in fact, because she and Dr Kumar had no contingency plans for such a situation and Dr Kumar and the patients were in dire straits. When she went back, she knew she was very forgetful and her speech was still a problem when she was tired in that she could not recall words, however, she did not realise then the impact this would have.
She went back for three days a week a few hours, and gradually built up the hours toward the end of the year so that she was doing five to six and finally seven to eight sessions of three to 3‑1/2 hours each. She noticed that she was no where near as efficient as she had been and, where she would see a patient in 15 minutes, it was now taking 30 minutes. She would lose her train of thought, struggle to get a concise history, forget to write scripts and it was all very tedious and frustrating. In addition, out of hours, she did medico‑legal work but could not get herself sufficiently organised to write a report.
Insight into the developing problems came gradually and, eventually, after about six months she consulted her partner, Dr Kumar, and told him she was not getting any better. He suggested that she return to see Dr Bookallil, a neurologist, which she did in October 1994. He suggested that she be tested by a neuropsychologist. It was then that she realised that she had a long term problem and she found this extremely distressing. In evidence she said:
"… I was very happy where I was with Dr Kumar and we were a really good team. I had a practice that was really blossoming and I had a lot of patients and I really enjoyed what I did, and it wasn't hard. I know there was a lot of responsibility and I had a lot to do and a lot to think about but I actually really enjoyed that challenge and I didn't feel that I was anyway putting anybody at risk and that I was competent, and I started to realised that maybe I wasn't." (T23)
She was concerned for her patients that they might suffer due to any incompetence on her part. She noted that her concentration was worse toward the end of the week and the end of the day when she was more tired.
The plaintiff said that one of her major problems was her inability to organise herself and this was of a different quality from someone who simply got into a muddle. She cannot organise a letter, organise a report, organise more detailed structures, it is not simply making sure she is organised enough to get out of the house. Even at home, they are constantly late and she is constantly unable to plan in advance to organise a structure which is what she would have done in the past. She has difficulty with short term memory and again it is of a different quality from people who have times of absentmindedness, with her it is a constant problem and she has to have constant prompts. If she has something written on a calendar, the moment she looked away from the calendar it can be gone out of her head.
So far as work is concerned it is extremely tiring to work at the same level as she did prior to the accident and working three or four consecutive days in a row is such that it is very difficult indeed. It takes her longer to achieve things and she is definitely more inefficient; she is disorganised, keeps people waiting and that makes her feel stressed. If she has to leave the surgery to get something, unless she concentrates, she will have forgotten before she gets back what exactly it was she needed and if she is distracted by discussions with staff she will forget what it was that she was looking for. She frequently has to make a couple of trips out of the surgery to get things whereas in the past she would have got them all at the one time.
She also makes the point that general practice is very unpredictable and that as she sits down at her desk planning to do something, if the telephone rings, by the time she has dealt with the telephone she will have forgotten what she was going to do when she sat down. Flexibility causes her problems because it distracts her from her purpose and she never had these problems in the past.
In the meantime, in her personal life, she fell pregnant in mid‑1994 by accident because she forgot to take the contraceptive pill but, despite the fact that she miscarriaged, she and the defendant decided that they would have children and she was not prepared to do that unless they married, so they did. Their first child was born on 3 July 1995 and the anticipation was that she would go back to full‑time work. Her husband was then working as a metallurgist but he was a shift worker and worked four days on and four days off and, with that and a nanny, it was decided that she would be able to work full‑time. With two incomes, they could afford a nanny.
In July 1995, she was doing seven to eight sessions a week, Monday to Saturday in the mornings for three hours and two afternoons of three hours. Even although she had three hours booked, she was not getting through the patients in that time. She would start at 8.30 and finish at 2.00 despite the fact that that was a morning session. She used her lunch hour to catch up and would then go home and sleep for a few hours. She never had to do that before the accident. From July 1995 she dropped her afternoon sessions because she could not cope with this work.
The workload was greater than it had been before the accident because she had to do extra work to compensate for her loss of short term memory, her loss of concentration and the inefficiencies caused by these problems. She could no longer do more than one medico‑legal report in an afternoon.
She said in evidence:
"I dropped the afternoons because I had been in discussion with Dr Kumar from late 1994 early 1995 that the pace that I was having to keep to meet my obligations was just too much and that I really wasn't coping with the seven and eight sessions that I was doing because I felt that I was getting increasingly tired and I was aware that my concentration was fairly poor at times and just the inefficiencies of forgetting things and the potential for me to make a mistake because I felt really quite stressed and pressured to perform and be more vigilant and be so time conscious because I was always running so late. I didn't really think that seven sessions was – I wasn't coping with it very well at all and we had discussed it and we felt that July, being the beginning of the financial year, was as good a time as any to reorganise my working hours and it also gave us several months to try and find a third person to join the practice and I think we decided that come July, whether there was someone there or not, then we would reconsider what my hours were because Dr Kumar was very aware of my shortcomings at that stage." (T26)
She continued to work with Dr Kumar until May 1996 but there was no improvement in her performance. The workload on Dr Kumar was increasing. She felt under pressure to perform to her pre‑accident level and, eventually, it was decided that she would shift to another practice. Prior to shifting there were a series of negotiations between her accountant and Dr Kumar's accountant but they were unable to work out an arrangement which suited them both. She said that a number of the options put to her by Dr Kumar were quite reasonable but they did not allow sufficient flexibility of working hours. Dr Kumar was having difficulties because he was not getting any younger and the practice had gone from a two person to a one‑and‑a‑half person practice and it meant Dr Kumar was carrying a lot of extra responsibility. In addition, because she was there less of the time, she wished to pay less in rent.
She agreed in cross‑examination that she was making more money even after the accident with Dr Kumar than she is now making but said that that was one of the reasons for wanting to change because she could not keep up the hours. Shifting to this different practice had nothing to do with her family situation - it was her own ability to cope with running a small business and running a practice and she went on to say:
"When I was [with Dr Kumar] I was obliged to work longer hours and more hours than I felt that I could adequately deal with on a competent level and there was no - there seemed to be no way to change that structure. Despite prolonged discussions over a long period of time - searching for a third person to help and numerous discussions with accountants or whatever to try and make life a little bit better for me, we just couldn't come up with any solution that was going to be viable for what appeared to be the long term given the difficulty of finding a third party. We decided that all round for me it was better if I chose to go to a group practice where I would have support of more doctors and I would have flexibility of hours and just more support, I guess, than I had with Dr Kumar." (T65)
On 1 July 1996, she shifted to work at what was referred to during the course of the hearing as the "Brunker Road General Practice". This is a group practice of 10 people. The hours were more flexible and there were more people to take the workload. At the new practice, she was working five mornings per week which was much better and the afternoons could be used as her time to catch up because she was so much slower. A morning session which should finish at 1.00 pm now finished at 2.00 pm and that by working through lunch. She said that it was not uncommon getting toward lunchtime that she would be running at least an hour late whereas, at the very most, the other doctors in the practice are 30 to 40 minutes late.
Their second child was born on 6 January 1997 and she had six to seven weeks off work and then came back two full days and two half days a week and she fitted in with her husband's hours of work.
Her general memory confusion continued and her confidence was undermined and even if the problem was not caused by her memory and concentration problems, she would tend to blame herself. She now works two full days and one half day a week and she discovered that she was fresher in the mornings and much less able to remember and organise as the day went on.
She uses a number of strategies to remind herself of various tasks and if she is asked to do anything, she tries to do it immediately so that she does not have to remember. Her regular patients now make lists and she notices that if they do not, unless she makes a list, then as they get further on in to their list of complaints, she forgets the initial complaints, and forgets to write scripts or referrals. If she has to leave the room for any purpose, she forgets why she has had to go out of the room unless she really concentrates and does not allow herself to be distracted even by conversations with another staff member.
The practice is shifting to computers. She does use the computer but cannot put her notes into it while the patients are in the surgery because she becomes confused. Then if she leaves it until they go, she forgets and, therefore, she must always do handwritten notes during the course of their consultation. She has difficulty with keeping up with new developments and this takes extra time and looking for recent drugs can add four or five minutes to a consultation.
Even though she has put in place strategies to assist with her memory and concentration problems, from time to time she forgets her strategies. She can feel herself getting agitated and keeps patients waiting because she is so much slower.
She is happy to continue working the 2‑1/2 days because she does not believe she can cope with five days and working the 2‑1/2 days allows her to keep up with the work. At the same time she said:
"I think if my patient load could cut back by 20% from what it is now, I will be a lot better off in how I actually perform at work and how I feel that I am providing for my patients. Some of patients come and see me from a long way, like they might drive an hour to come and see me and they make a special trip into Newcastle to come and see me and I feel really, really terrible when I have spent the time with them and then they leave and then they have got to come back or somehow we have got to get whatever it is I've forgotten to them and although they don't necessarily complain, I just feel that I am letting them down that they have got to come another hour into town on another day or get a relative or wait for the postman, that sort of thing, because something that should have been sorted out when they came, they left and it was incomplete." (T35)
Her income has increased because her percentage of the fees has been increased from 50 per cent to 54 per cent. From the 54 per cent, she pays her own superannuation, worker's compensation, medical insurance, registration and continuing medical education fees and also the lease of her computer. Two full‑time female doctors left and there are patients who want to see females. There are now more Medicare items such as aged care assessments and the general consultation price has increased. She uses the two days when she is not at the surgery to do routine house calls and write reports.
The plaintiff's tax returns are Exhibit 1. Exhibits A to F are financial documents and a series of very useful summaries or schedules provided by the defence. I will quote only from part of one of those documents being Exhibit C as follows:
"YEAR  GROSS FEES
1992  $181,472.00
1993  $190,663.00
1994  $174,149.00
1995  $161,106.00
1996  $140,860.00
1997  $38,220.00
1998  $31,396.00
1999  $40,580.00
2000  $56,646.00
2001  $61,588.00"

The plaintiff conceded that her income began to climb again after the accident but that was taking super human effort which left her exhausted and which she could not continue to do. So far as the gradual rise in fees since she has changed to the different practice is concerned, there have been increases in Medicare payments and she now receives 54 per cent of her fees whereas previously, she was getting 50 per cent only.
The figures also include some repayment under her income protection disability insurance. She made two claims against that - one in the 1994 and one in the 1995 tax year. On the first one, she received about $11,500 and on the second one about $4,000 or $5,000. (Plaintiff counsel appears to have reflected it as $16,000 in the final schedule.)
It is necessary for every general practitioner to do continuing medical education for which they have to score a number of points each year. This can be done by attending lectures and then filling in multiple choice questionnaires. She discovered that after about an hour she lost concentration and when it came to filling in those multiple choice questionnaires, she could not do that very well. The other way of doing it is by reading articles and sending the multiple choice questionnaires and she does that now but she has discovered that her memory of what she learns is not good at all.
She has been asked to chair some Saturday afternoon lecture sessions in this continuing medical education but while she was flattered by the offer, she felt she had to decline because she knew she could no longer speak off‑the‑cuff, be adaptable or organise herself.
Sixteen weeks of the year, she has a student sitting in with her, either a second year or a fourth year student. She is quite happy to have the second year students, but the fourth year students now create difficulties because they are more confident and they are more likely to ask the patients questions and when they do that, she loses her train of thought. It is also necessary to obtain the patient's consent to having a student sit in, that should be done the day before but frequently she forgets. She has decided that having a fourth year student sit in is too difficult and she no longer does that.
At home, she is very organised and she tries to make everyone else organised and has very set routines. If she does not follow the routine, she forgets things, misses things and leaves things behind, for example, her medical bag. She has post‑it notes all over the kitchen with reminders on them.
If she goes to the shopping centre, she has to be careful where she parks or she will forget where she has parked and she has discovered she cannot backtrack over her journey and discover where she has parked in that way, nor can she remember roadmap directions.
So far as her hobbies are concerned, she still reads but she cannot read biographies or complicated stories because if she puts the book down, it is too hard to remember where she got up to, so she confines herself to reading short stories. She finds drawing difficult because she cannot organise a picture in the way in which she used to and if she collects a video, she will often get a video that they have already watched because she has forgotten it. The plaintiff was reminded that she had told Dr Wendy Roberts, a neuropsychologist, in October 1995 that there had been no change in hobbies or interests or activities. The plaintiff said that she doubted that she had said that, however, certainly she would not query the truthfulness of Dr Roberts and the only thing she can say is that we are now seven years down the track and she has got a better idea of how her life has been affected by the accident than she had 12 months down the track when she initially saw Dr Roberts. She no longer feels comfortable in groups, her concentration is poor and she cannot concentrate on two things at once. She lacks the confidence in the information she has to make conversation and has a tendency to withdraw. The plaintiff said she had always been a person who prided herself on the fact that she could do more than one thing at a time.
Since July 2001 she has taken Cipramil, which is an anti‑depressant, of one tablet a night. This court case was originally listed to be heard in March and through no fault of anyone, it was adjourned and the plaintiff was already in Western Australia when it was adjourned. After that she felt the need for an anti‑depressant. It emerged in the evidence that the plaintiff has also seen a Dr Waring, who is a psychologist. She said that the reason she saw him was that she was finding that she was in a panic over situations and not able to distinguish or identify what was causing her the concern and she had never had this before in her life. She lacked confidence and it was describing this that reduced the plaintiff to tears in the witness box.
So far as her physical problems are concerned, she does have continuing problems with her neck. At least once a week, she has a tight ache on the left hand side of her neck and into her shoulder. Sometimes she gets headaches and, occasionally, the pain will go down her arm into her elbow and sometimes as far as her palm. That arm pain comes on a couple of times a month and lasts a few days. She takes a hot shower and has Neurofen. Normal living appears to cause extra pain.
Her basic medical skills remain the same but she is not keeping up with new areas and she may have to work out new strategies and if that is not practical, she may have to go into more counselling and diagnostic medicine.
Her husband was a metallurgist but was made redundant when BHP shut down in 2000. He is now a full‑time student at the University of Newcastle, completing a masters degree in geology and he will have completed that course by the beginning of 2002. He has no income and before he was made redundant, he was earning $70,000 to $80,000 a year. The result is that their income has substantially reduced and she would do more hours of work if she could.
The children are now aged 6 and 4‑1/2. The 6 year old is at school and she is delivered to before school care and then picked up from after school care on the days when the plaintiff works. The youngest child attends pre‑school at the same place where they attend before and after school care so both of the children are dropped there at the same time and picked up at the same time on the working days.
The plaintiff would not agree with cross‑examination that even if she had not had the accident she would not now be working full‑time because of the children. She said that she had wanted to be a doctor since she was a child, she formulated her life around a full‑time general practice and she would not have walked away from that.

Medical evidence

Immediately after the accident the plaintiff was reported by a general practitioner in Augusta to have sustained a deep laceration over the left forehead and profound concussion and he said that she had been taken by the Royal Flying Doctor Service to Royal Perth Hospital. There she was found to have sustained a severe head injury, she had laceration over the left frontal area and a CT scan showed some petechial haemorrhages beneath that. She had a retrograde amnesia of moments and a post‑traumatic amnesia of two days. She also complained of headache, neck ache, other muscular pain on the left side of her neck, she was dizzy and nauseous, had expressive aphasia which was episodic and blurred vision. She had no subsequent blackouts or lapses of consciousness and there was no neurological deficit.
The plaintiff returned to Newcastle where she consulted her then partner, Dr Kumar, and he referred her to Mr Bookallil, a neurosurgeon, who first saw her on 31 March 1994 and confirmed that she had sustained a severe head injury. At that stage, Mr Bookallil was hopeful but, as it transpired, prophetic because he said that while he expected a complete recovery:
"As I have indicated she may need to have psychological assessment if she has ongoing problems with memory, concentration and speech. Psychological assessment could well demonstrate intellectual deterioration as a result of the accident. I think the chances are that she will make a complete recovery. At this stage I do not think the claim is capable of finalisation as I do believe that everyone needs to be certain that she has not suffered any impairment of intellect as a result of the injury and I think from that point of view she probably does need to have a psychological assessment."
In July 1994, Dr Kumar reported that the complainant continued to complain of tiredness, poor memory and expressive aphasia but her main problem and worry was with her memory, for example, she was unable to remember that she had spoken to a patient and said that she would write out a prescription or a certificate for a particular person. This problem became so concerning that he referred her back to Mr Bookallil who said that she complained to him:
"She has to write lists for everything she does. She does some silly things such as put glasses away from the dishwasher into the fridge instead of into the cupboard. She has to think things through whereas previously she could do things almost on automatic pilot. She may forget what she has to do if she is interrupted. She may get words muddled up. She works three and a half days a week instead of the five and a half days a week which she did before the accident. She could not do much more work at the present time. She doesn't really take much longer to do her work but she gets very tired and has to have a full night's sleep."
He went on to say:
"There does seem to be continuing evidence of some impairment of intellect and memory as a result of this accident which the patient has had and I would strongly recommend that she have neuro‑psychological assessment."
The end result is that the plaintiff has been seen by three neuropsychologists and a fourth, Mr Hunt has commented on the other reports. Two, Mr Peter Rawlings and Dr Linda Hayward gave evidence for the plaintiff and two gave evidence for the defendant, Dr Wendy Roberts and Mr Hunt.
Neuropsychology is a discipline which seeks to measure objectively one aspect of brain dysfunction, cognitive impairment. There are a series of tests administered, but it is also necessary to take into account the history of the injury so that the neuropsychologist looks at the objective evidence that they have with the brain injury as a factor in interpreting the test results and there is also an education assessment. It is important to have a clear background of someone in order to help interpret findings of the testing and to look at what would have been expected of them before the accident so that an educational history is an important part of determining pre‑morbid function.
The first neuropsychologist who saw the plaintiff was Dr Wendy Roberts who assessed the plaintiff on 14 September 1995 and reported on 20 September 1995. The plaintiff was then seen by Mr Rawlings and Dr Hayward and then seen again by Dr Roberts on 23 January 2001 and she reported on 25 January 2001. There is a further report from Dr Roberts of 16 October 2001 in which she comments on the opinions of Dr Hayward and Dr McCarthy. These reports are Exhibits H1, H2 and H3. Dr Roberts also administered psychometric tests to the plaintiff on each occasion.
In her report of 20 September 1995, Dr Roberts describes the plaintiff's presenting problems as firstly getting tired noticeably more quickly than before and, secondly, she described short term memory problems as her most exasperating difficulty and said that she lived by lists:
"She writes out lists of shopping, telephone numbers, people to ring, prescriptions to write out, reports to do and said if she does not write down the information, she does not do it. She also said that she has to read material more than once to recall it and no longer has the sponge‑like memory which she used to have. She said that when she is seeing patients now, she needs to keep more specific notes than she did previously. She also told me that she became pregnant with Fiona because she had forgotten to take the pill, but that they had generally been planning for a child."
In addition, she complained of organisational difficulties, and her husband who was with her at the first interview told Dr Roberts that the plaintiff had difficulties with word sequencing and some loss of confidence.
Finally, in her summary and conclusions, Dr Roberts said:
"Current assessment indicates that she is functioning in the superior to very superior range with memory skills to match and no evidence of any specific or global deficit of intellect or memory attributable to the accident. She shows no impairment of reading ability, no difficulties with attention and tracking or planning and organising or conceptual flexibility and, indeed, the only possible deficit was an equivocal score on a task of verbal fluency, which given the problems with the test and influence of other factors, may be of no significance at all. There was no evidence of any emotional disturbance.
It seems that [the plaintiff] has made an excellent recovery from her head injury and as she now presents is, in my opinion, capable of resuming the load which she carried prior to the accident, in terms of my area of expertise.
With regard to your specific questions, it seems that [the plaintiff] has been incapacitated in her employment activities and duties, particularly initially with gradual improvement since and that this is likely to have been attributable to the accident, but these problems have largely resolved. Her employability is currently restricted by the fact that she has a 10 week old daughter to look after. It does not seem that social, recreational or leisure activities have been affected.
I do not believe that any treatment is needed, nor do I believe, within my area of expertise, that there is any permanent residual disabilities. On current evidence the complaints [within my area of expertise] which she made, particularly initially after the accident, seem related to it. I now can find no evidence of the cognitive difficulties of which she complains but her complaint of tiredness is a matter for medical opinion."
Dr Roberts' reference in the first paragraph of the quotation to "an equivocal score on a task of verbal fluency" is at the core of the disagreement between the neuropsychologists. The verbal fluency test is called the controlled oral word association test (COWAT) and it is basically a test where the person is given a letter of the alphabet and then asked to say as many words as they can beginning with that letter and for each letter, they get a period of a minute and they are given three letters in all. In this test, there are standardised triplet of letters that can be used which are set by the tests and not picked out of thin air and it is because they are standardised that it is possible to compare the person's performance on those letters with other people's performance on the same letters.
In evidence, Dr Roberts argued that there was an inherent unreliability in the COWAT scales, particularly because there is a variation in what is considered significant between the studies and she would not agree with Mr Rawlings that difficulties with this test is a good indicator of damage to the left frontal lobe. She did concede that the fact that there is damage in the left frontal lobe and a problem in an area which may be significant for left frontal lobe damage is something that needed to be considered and that she did allow for that but she did not consider it diagnostic of left frontal dysfunction.
She agreed that the plaintiff had fluctuation in scores across the trials and that usually what happens is that the person gets roughly the same score on each of the three trials, but the plaintiff reported going blank on the second letter, but she did reasonably well on the others.
Dr Roberts attributed these problems to the unreliability of the test and its susceptibility to things like fatigue and emotional factors and that because of those contaminating factors, it is not diagnostic of organic dysfunction.
Dr Roberts said that when she did a further assessment in January 2001, her results were similar and she said:
"The issue that emerged when you look at the pattern of scores over time is that there has been fluctuation, but at some time since the accident, she has been able to perform in an unimpaired fashion on the range of tests, cognitive tests, which she's been given. I concluded that with the benefit of all of those reports and the opportunity for another assessment, that it was likely that there were emotional factors related to issues such as confidence and her own self esteem and some anxiety that were impacting on the test results and accounting for the pattern of fluctuation over time." (T341)
Dr Roberts said that she was aware of the differences of her view on the one hand from Dr Hayward and Mr Rawlings on the other, but she had carried out detailed tests in relation to emotional factors and she considered that those factors explain the pattern of scores and that they were not what she would expect on the basis of organic factors. This makes a difference from the rehabilitation point of view because, of course, something can be done about it and she considered that six to eight sessions with a competent clinical psychologist would help.
During the course of cross‑examination, Dr Roberts said that the plaintiff gets anxious and worries and this is what causes the fluctuation in scores because the plaintiff is capable of doing well in those tests. It is not the case that the fact that she has difficulty with the test causes the anxiety and worries and finally, in cross‑examination, the following exchange took place in relation to this issue:
"Would you agree that it's at least an alternative theory or an alternative view point, the one that I just put to you?---I don't think it adequately explains the data. I can understand that some people might hold that view point, I don't think it accounts for the data." (T361)
Mr Michael Hunt is a neuropsychologist who was asked to review neuropsychological tests and assessments that had been carried out by Dr Roberts and Mr Peter Rawlings. He was asked to evaluate the respective reports and to provide an opinion with respect to: Was there indication of ongoing cognitive impairment associated with traumatic brain injury arising from the injury which [the plaintiff] sustained in March 1994.
To do this exercise, Mr Hunt said he would normally have seen the plaintiff but he thought to have undertaken another collection of tests at that point would be "a bit over the top". In cross‑examination, he agreed that the interview and what is discerned from the interview is a very important part of the assessment of the neuropsychologist.
In his report of 18 February 1999, Mr Hunt says:
"In summary, Dr Moore sustained a serious head injury although, in my opinion from the information supplied, appears to have made a very good cognitive recovery from the actual head injury as indicated by the results obtained by Dr Roberts in September 1995. Across all her results, there is indication of fluctuations in performance which are difficult to relate to organic brain impairment but rather suggests factors of a more psychological nature to be intruding into her performances. It is important to note that while she does not see herself as being clinically depressed, the comment in Mr Rawlings' report of December 1996 that Dr Moore felt that few people, least of all her husband, understood the strain she was under in getting through a working day, at which time she was reduced to tears suggests there to have been some appreciable and understandable ongoing and unresolved psychological factors, at least at that time. I would also point out that there does not appear to be any indication within her results to suggest her motivation to be in any way suspect and I have no doubt about the validity of the results presented by the two psychologists."

In his report to which I have previously referred, Mr Hunt endeavours to explain something that Dr Roberts had said in one of her reports which explanation I do not think is valid and he said:
"With respect to her performance upon the COWAT, it is possible that Dr Roberts in her comment that '... the test is unreliable and susceptible to the effects of fatigue and emotional factors and it is therefore not diagnostic of organic dysfunction', is not referring to the test as a whole but rather to the nature of Dr Moore's performance as well as other factors within the test situation at the time."
In evidence, Mr Hunt said the test is not unreliable and in re‑examination, he said about Dr Roberts' comments:
"Well I interpret that, that Dr Roberts wasn't saying that the test is unreliable in the general sense ..." (T387)
The plaintiff was seen by Mr Rawlings on 23 December 1996 and he reported on 7 January 1997. He saw her again on 25 September 1998 and reported on 28 September 1998. On each occasion, he performed a neurological assessment.
If I can begin where I left off with Dr Roberts and Mr Hunt, the comment of Dr Roberts about the COWAT test was also put to Mr Rawlings and he said:
"I couldn't possibly accept that statement. This test has been around for a long time. It's well‑normed, it's highly reliable and it's known to be strongly associated with damage to the left frontal lobe. I have no idea on what basis Dr Roberts makes that statement." (T312)
In his report of 7 January 1997, Mr Rawlings compared his results with Dr Roberts thus:
"  SEP 95        DEC 96
  (Roberts)     (Rawling)
VERBAL MEMORY INDEX            123              102
VISUAL MEMORY INDEX             131              117
GENERAL MEMORY INDEX         129              109
DELAYED RECALL INDEX           135              119
ATTENTION INDEX  120            112
There was a marked discrepancy in the results obtained at the two assessment. At the initial assessment by Dr Roberts, the Index Scores consistently fell in the superior to very superior range. At current assessment, none of the Index Scores fell within this range. She performed close to the estimated pre‑accident level on tests of visual memory and delayed recall but her performance on tests of verbal memory and attentional processes was well below expectation.
This discrepancy between the results produced by the two assessments was difficult to explain. There was certainly no evidence of a lack of genuine effort or the intrusion of emotional factors that would normally explain such a delayed deterioration in level of attainment. I can only say that my results, indicating a mild impairment in verbal memory and attentional processes, were consistent with clinical expectation based on the CT evidence of left frontal lobe trauma and the subjective complaints of the patient."
In an attempt to further assess memory functioning, Mr Rawlings did other tests and they were consistent with what he had found and that her attempts at completing the tests were entirely genuine.
Finally, in his summary and conclusions in that report, Mr Rawlings said:
"At current assessment, conducted 33 months post injury, basic intellectual skills, executive functions and visual memory skills were well maintained at a superior level. However, there was evidence of a mild to moderate impairment in verbal memory skills, a mildly impaired attention span and a reduced verbal fluency. The earlier assessment by Dr Roberts also identified an impairment in verbal fluency but scores reported for tests of attention and verbal memory were generally very much above those returned at later assessment. There was no indication at my assessment of any functional factors that might explain the discrepancy in the test scores. Dr Moore seemed very genuine in her approach to testing and precautionary screening for factitious errors proved negative. She was neither depressed nor anxious. To reiterate a point made earlier, I can only say that the pattern of deficit seen at my assessment was totally consistent with both her subjective complaints and the area of trauma seen on CT scanning.
Dr Moore has been able to resume medical practice but her general level of efficiency was diminished as a result of continuing problems with memory, concentration and occasional expressive language problems. She had been able to employ compensatory strategies to mitigate the effects of these cognitive deficits but the intense mental effort involved left her very susceptible to fatigue. She was no longer able to cope with the hours she had worked prior to the accident. She had sold her medical practice and was currently working as an associate in another practice. There was a 50% reduction in her working hours and she was generally seeing fewer patients per hour than she had done prior to the accident.
The level of cognitive disability may seem relatively minor. However, to understand the impact of this disability, it should be recalled that Dr Moore was working in a job that made very high level demands on her cognitive skills. This being the case, even a relatively minor reduction in her cognitive efficiency would be expected to have a significant effect on her job performance and place her under considerable strain. Her complaints regarding her job performance then make perfect "neuropsychological sense". She should be able to continue working part‑time but I would doubt that she would ever be able to resume full time medical practice. She is a strong and resourceful person but it is conceivable that she may require psychological counselling on an occasional basis in order to come to terms with the changes wrought by the accident."
In evidence, Mr Rawlings made the point that neither he nor Dr Hayward could replicate Dr Roberts' scores and that if fatigue affected the one test, why would it not affect the other tests and he said: "Why should fatigue pick out the controlled oral word association test and nothing else?" (T314)
Moving on to his second set of tests, there was a suggestion that there was variation in his scores on the second test. In evidence, Mr Rawlings denied that and further said that he was bewildered by that comment.
His second report of 28 September 1988 says in the conclusions:
"Consistent with the trauma to the left frontal lobe demonstrated on CT scanning, neuropsychological testing has demonstrated a specific weakness in verbally mediated intelligence. Her verbal responses lack the precision that would be expected of someone of her ability and assessments have consistently revealed a weakness on a test requiring the generation of words under pressure of time. A specific weakness was also apparent on tests of verbal memory. The failure here was also secondary to slowness in processing the information presented for recall.
In some respects, the deficit seen on testing may seem relatively mild. Her worst scores was still of an average standard. However, for someone of her pre‑morbid ability, these average scores reflect a significant loss. In addition, she was working in a field of professional endeavour that was placing high level demands on her ability. Thus, even a relatively small deterioration in cognitive functioning had the capacity to seriously disrupt her work performance and make the work very taxing for her. I would think it highly unlikely that she would be able to extend her working hours much beyond the current level."
The plaintiff was seen and assessed by Dr Linda Hayward on 23 March 1999 and 24 March 1999 and Dr Hayward reported on 1 April 1999. She was seen again by Dr Hayward on 23 May 2000 and 24 May 2000 and Dr Hayward reported on 6 June and then she was seen again on 3 September 2001 and 5 September 2001 for a psychological review and Dr Hayward reported on 26 September 2001. In that report, her summary was:
"The assessment was carried out using updated versions, parallel forms or new tests compared to those used in previous assessments. In spite of these differences, the results of the present assessments are generally consistent with those obtained by Mr Rawlings on his two previous assessments. Findings from intellectual assessment review difficulty with tests involving verbal expression and reasoning relative to those requiring more visuospatial skills. Additionally, the working memory index of the new WAIS - III was below expectation. Specific difficulties included problems with sequential organisation, erratic self‑monitoring, problems with mental tracking, verbal reasoning and concept formation.
Memory assessment using the WMS - III revealed significantly lower performances on memory indices that would be predicted by her level of intelligence, her memory scores being mostly in the average or high average range. Again, difficulty with mental tracking and sequential ordering were noted, more so for material presented via the auditory modality than for material presented via the visual modality, as well as the somewhat concrete interpretation of complex material. Also initial recall of auditory material (which was not contextually structured) was poor, revealing some initial slowness to orient to a new task and actively develop and apply strategies.
Dr Moore's performance on a test of word generation remain below expectation as it has done on all previous assessments. Qualitative and quantitative data from brief tests of specific language skills revealed mild difficulties with word finding and high level verbal reasoning. Qualitative data from a free drawing task also revealed mild difficulties in the planning and organisation of an unstructured task, with the resultant drawing being impoverished in detail, and having elements in the drawing poorly organised in relationship to each other. Taken together, this pattern of findings is suggestive of frontal dysfunction, with a more left hemisphere bias which is consistent with the CT scan findings and her self‑reported difficulties on a day to day basis. Whilst Dr Moore's cognitive disability may seem mild, in the sense that many of her scores are at least average or better, the impact of her disability in her position as a medical practitioner is great. Such work makes high demand on cognitive skills as well as carrying personal responsibility for the welfare of her patients, her need to use strategies for things which were automatic for her previously places her under great strain and her decision to work part‑time is a responsible one."
Dr Hayward finishes by saying that she thinks it is unlikely that the plaintiff could return to full‑time work.
Her report of 6 June 2000 is in similar terms.
Dr Hayward said that the plaintiff gave her the impression that she was genuine in the way in which she did the tests and that on the first two occasions, there was no problem with depression.
So far as the difference in Dr Roberts' tests are concerned, Dr Hayward said that she had no idea why that was so, but general discrepancies might be related to error and the following exchange took place:
"Well, are those areas capable of explaining, in your opinion, the differing results that have been obtained?---Quite frankly, I don't know what to make about that first assessment. The assessments by Mr Rawlings and myself afterwards have been incredibly consistent in terms of the findings. I know what to make of that because I've seen my data and I know what's happened during assessment. I don't know what to make of those scores." (T184)
While Dr Hayward did not find depression on the first two occasions that she saw the plaintiff, she agreed that she could have emotional reaction to experiencing difficulties and that that would cause her to be uptight and stressed and Dr Hayward said that that was not unusual:
"When people get used to the way they are and they know that this is the kind of thing they are going to have trouble with, they develop an anxious response and that's quite normal." (T187)
In her final report of 26 September 2001, Dr Hayward said:
"It seems most likely to me that Dr Moore's presentation is contributed to by a number of potential factor including emotional reaction to her cognitive problem. The fact that radiological evidence exists for injury to the left frontal lobe, that Dr Moore's difficulties did not exist prior to the accident, Dr Moore's self‑reported problems and other observations of the changes in her outlined in various reports, that test data in my opinion reveals difficulties consistent with her self‑reported problems all suggest to me that they are most probably a mixture of direct and secondary consequences of the accident. According to Lezak (1995): 'Few brain damage patients experience personality changes that are plainly either direct consequences of the brain injury or secondary reactions to impairment and loss. For most part, the personality changes, emotional distress and behaviour problems of brain damaged patients are the product of extremely complex interactions involving their neurological disabilities, present social demands, previously established behaviour patterns, and ongoing reactions to all of those.'
Further 'it is rare to find a case in which the behavioural manifestations of brain disease are uncomplicated by the patient's emotional reaction to the mental changes and consequent personal and social disruption'.
She goes on to say that it is rare for a person to 'present with clear cut symptoms of brain damage without some functional contribution to the picture'."
In that report, Dr Hayward reiterated that she felt that the work that the plaintiff was doing was the maximum that she could manage.
The evidence of Mr Rawlings and Dr Hayward is supported by Dr Peter McCarthy, who is not only a physician, but also a psychiatrist who saw the plaintiff on three occasions in 1999 and then again on one occasion in 2000. In his conclusions as to the future, Dr McCarthy is more pessimistic than the neuropsychologists and in his report of 28 June 1999, he said:
"Her ongoing problems had centred around poor memory, sequencing, word finding, difficulties she has had organising herself in her practice, and the problem she has had with many of the higher conceptual aspects of medical practice. The clinical history, investigations, and early reports generally, (with the exception of Dr Roberts) support the contention that this lady has suffered a significant head injury with continuing symptoms and deficits attributable to the head injury. It would appear that this lady was pre‑morbidly a very bright individual, so that the finding of superior IQ test results does not indicate that she has not deteriorated in her cognition, and may simply indicate that she began at a high level of intellect. The other test results, particularly those by Dr Rawlings support the contention that her continuing problems with her memory and organisation and the difficulties she has in attempting to work at the same standard she had pre‑morbidly all suggest that these difficulties are attributable to the organic effects of the head injury. I have found no evidence of any significant mood disorder, post‑traumatic stress disorder or anxiety disorder attributable to the head injury in question, although she does appear to have been somewhat anxious and depressed for some months after the accident. This is consistent with an adjustment disorder with mixed anxiety and depressed mood (DSM1V 309‑28) which she suffered in 1994 and 1995 as a result of her accident but which has now substantially settled. Her continuing problems are in my opinion likely to be due to the organic, that is physical results of the head injury. There is medical concept of 'minor head trauma', however, this lady does not qualify for that description, but rather represent someone who has suffered from a serious head injury, characterised by a loss of consciousness, significant post‑traumatic amnesia, demonstrated frontal lobe pathology, and this is supported by the opinion of various specialist whom she has seen, and the continuing problem she is complaining of."
I prefer and accept the evidence of Dr Hayward and Mr Rawlings including their test results. The weight of numbers support them for a start and they each now spend more of their time dealing with brain damaged people than does Dr Roberts. No doubt Mr Hunt spends as much time, but he did not do an assessment of the plaintiff, nor did he see the plaintiff. Furthermore, I was impressed with the plaintiff as a witness, the impression that I had was that she was a sensible person who was honestly reporting her position and that she was genuinely distressed by the losses that she had suffered in the motor vehicle accident. And that distress was made harder by the fact that these are not injuries that anyone else can see and to maintain her previous standards causes her enormous fatigue.
The defence concede that the plaintiff is entitled to damages but not at the level she seeks or for the reason she seeks those damages.
In her report of 25 January 2001, Dr Roberts said:
"... I am not implying that she suffers from clinical levels of emotional disturbance, but I do think that what has happened is that she has had an emotional reaction to perceived difficulties and gets uptight and stressed. She would be likely to benefit from some treatment for this from a competent clinical psychologist in her area who can apply cognitive behavioural techniques targeted at helping her to cope better."
During defence counsel's final address, the following exchange between he and I took place:
"KENNEDY DCJ: Tell me this: On what basis are you conceding future economic loss? You're saying she doesn't have brain damage, so on what basis are you conceding---
STAUDE, MR: To the extent that her non‑organic problems which followed the accident are not amenable to treatment then that would be her loss." (T424)
Mr Staude went on to say that the plaintiff's problems are treatable and she should have psychological therapy and cognitive behavioural programs to help her to adjust to the problems that she has.
Earlier in his submissions, he said:
"It's a situation that can be addressed and remedied and if a person believes that they have got a head injury and every time they forget where their car is or forget to get the vaccine from the fridge they think it's because they've got a head injury, then it does become a disabling and intrusive feature of their health." (T412)
Since the plaintiff is said to have no brain damage, I am not exactly sure what it is she is said to be reacting to since she has no injury. I do not accept that this particular plaintiff has convinced herself that she has brain damage even though she has not, and is acting accordingly. She acts the way she does because of the brain damage.
Apart from Dr Roberts' evidence, there is nothing in the evidence, the plaintiff's past history or her presentation in court to lead me to the finding that this confident, practical general practitioner has, for no good reason, convinced herself that she has brain damage and is acting accordingly. Unless she makes notes and lists and concentrates every moment, it is not that she may not remember, she will not remember: She lives every moment the way the rest of us live in times of intense concentration and, if she does not, she cannot maintain her life as it was. No one can maintain intense concentration every moment without becoming extremely fatigued. It is also the case that if she does not maintain the intense concentration, she cannot, as she says, "retrace her tracks". For the first years after the accident, the plaintiff did put in the same hours, even more on occasions in an endeavour to maintain her previous workload, but the physical strain was simply enormous and could not continue.
I accept that she will never again be able to work at the level she would have been able to work had she not had the accident and her damages will be assessed accordingly.

Damages

While I find that without the accident the plaintiff would probably have continued to work with Dr Kumar and increased her income, I am not prepared to accept what is no more than plaintiff's counsel or instructing solicitor's theory as to the way in which the progression of her income would have taken place.
At a minimum, the plaintiff sought over one million dollars in past and future economic loss and interest on the theory that starting from her best year prior to the accident, her income would have increased 5 per cent per annum compound. When assessment gets to this level, with the very greatest of respect, I require better evidence than a lawyer's theory as to the future. This is particularly the case when the person she was in partnership with, Dr Kumar, gave evidence and was not asked about the progress of his practice. For my part, I have no idea what general practitioners in Perth net, let alone what those in Newcastle, New South Wales do.
I am well aware that predicting the future is an inexact science and that there is frequently a mixture of evidence and theory in assessments of damage. Nevertheless, I would need more evidence before I would be prepared to act on a theory that nets the plaintiff over $1 million and before I could say that I was satisfied on the probabilities that that was a fair assessment between the plaintiff and the defendant.
Generally, though, I do accept the approach of the plaintiff's advisers and, since both counsel adopted a similar approach, although, of course, defence counsel did so for a much more limited time and at 2 per cent, I am prepared to adopt a similar approach but starting at a lower base and at 3 per cent per annum compound.
The submission put to me started with a base of $106,108 net per annum because that was the amount the plaintiff earned in the last full year prior to the accident, that is to say, the year 1993. I would have preferred that it be averaged over a period of three years rather than taking the best year and theorising that the income is going to increase by 5 per cent compound thereafter. I have started at $100,000 and added 3 per cent per annum to June 2001, giving a total of $47,333. From that, I have deducted the $261,235.87 the plaintiff actually earned, leaving $316,482 to June 2001. On that basis, there is a loss of approximately $844 per week. So from July 2001 to March 2002, there is a further loss of $30,384, giving a total past loss of $316,482. I have allowed interest at 2 per cent for a period of 7.9 years, giving $50,004.
For the future, there is a loss of $844 per week for approximately 15 years. On the first scenario put by plaintiff's counsel, it allowed for retirement or a reduction in hours to the present level at age 60. Using a multiplier of 521.8, it gives a future loss of $440,399.
I have not applied a discount to that. On the one hand, she may still be able to earn a little more in the future than she anticipates. While it is true that if she had not had the accident, she would not have gone to part‑time work with the birth of her children: No doubt many women do, but this woman had a husband and father readily available and willing to care for the children, and in 2000, he was made redundant, so it is vital that her career continue to prosper. However, she did have the accident and factoring in two small children no doubt brought to a head her problems because anything that adds to her load must have an outlet somewhere else and she is not in the position of others where she can adapt quickly to a changed situation or have additions to her load. It may be that when the children are older, she could work a little longer but I repeat my finding that she will never again be able to work at the level she would have been able to work at had she not had the accident. On the other hand, but for the accident, she may have earned more and taken on more specialty areas and there is no chance that a woman general practitioner would ever be out of work.
Toward the end of counsels' addresses, an issue arose as to liability insurance that the plaintiff had received. The evidence in relation to this is meagre and, as far as I can work out, there was $16,000 paid to the plaintiff, I presume that was gross. The plaintiff's final schedules of damage were calculated on the basis that that is not included in what they say should be deducted as actual earnings, but the defence say that that figure should be deducted. The defence relied upon Graham v Baker (1961) 106 CLR 340 and the plaintiff relies upon Husher v Husher & Anor (1999) 165 ALR 384. In the circumstances of this case, I am not prepared to take that sum into account and I refer to the National Insurance Co of NZ Ltd v Espagne (1960‑1961) 105 CLR 569. Further, in this case, I do not know enough about the nature of the benefit to make the finding sought by the defendant. I do not know the premiums that were paid, I do not know whether it is repayable and I know very little about the nature of the benefit.
As to the plaintiff's future medical expenses, there is a claim for $2,500 on the basis that she may need some medical attention in the future and that this is a nominal amount. I am not prepared to allow it at $2,500. The plaintiff has mainly been seen by medical practitioners who have not charged her. She said herself that her medication is generally free samples, but no doubt from time to time, she may have to pay for anti‑depressants and she may have to pay for courses of psychological counselling to assist her through particularly difficult times and, accordingly, I allow her $1,000.
Turning to the plaintiff's loss of amenities, the maximum against which it must be scaled has since July 2001 been the sum of $232,000.
The plaintiff's loss is quite considerable because she now has brain damage which means that she cannot perform either at work or socially in the way in which she did before and in the way in which she would have expected to for the future. Her hobbies have been affected in that she cannot read biographies or complicated stories, she previously liked to sketch but now she cannot organise a picture in the way in which she used to and the difficulties with her memory are enormous. She no longer feels comfortable in groups because her concentration is poor and she cannot concentrate on two things at once, she lacks confidence in the information she has to make conversation and has a tendency to withdraw. Her confidence in herself and as a working person generally has deteriorated to such an extent that by July 2001, she was taking an anti‑depressant and attending upon a psychologist. There is no possibility of the plaintiff's mental capacity improving and it is a devastating loss. In addition, she has some physical disabilities which have, no doubt, faded into insignificance given her major concerns with the effects of the brain damage. Nevertheless, she does have continuing problems with her neck and, on occasions, the pain goes down into her arm and elbow and sometimes as far as her palm. She gets headaches with this as well. In the circumstances, I assess her loss of amenities at $75,000.
It follows that the plaintiff is entitled to an award of damages as follows:
Past loss  $316,482
Interest on past loss  $ 50,004
Future economic loss                  $440,399
Medical expenses  $    1,000
Loss of amenities  $ 75,000
$882,885