Munro v Trutwein - [2001] WADC 177

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: MUNRO -v- TRUTWEIN [2001] WADC 177

CORAM: BLAXELL DCJ

HEARD: 17 - 19 JULY 2001

DELIVERED : 27 JULY 2001

FILE NO/S: CIV 1501 of 1998

BETWEEN: DAPHNE MAY MUNRO
Plaintiff
AND
FREDERICK WILLIAM TRUTWEIN
Defendant

Catchwords:

Damages - Motor vehicle accident - Multiple physical injuries - Post-traumatic stress disorder - Pre-existing physical incapacity - Turns on own facts

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943, s 3C

Result:

Award of $144,550.90 damages including $113,624.00 for loss in earning capacity

Representation:

Counsel:

Plaintiff: Mr R D Clyne
Defendant: Mr D R Sands

Solicitors:

Plaintiff: Simon Walters
Defendant: Marks Healy Sands

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

Medlin v State Government Insurance Commission (1995) 182 CLR 1
National Insurance v Espagne (1961) 105 CLR 569

Case(s) also cited:

Clay v Freda, unreported; FCt SCt of WA; BC No8802432; 1 July 1988
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506

BLAXELL DCJ: In this matter the plaintiff claims damages for personal injuries sustained in a motor vehicle accident on 5 February 1997 which occurred as a result of the defendant's negligence. The defendant admits liability for the accident but denies that any significant injuries were sustained. The defendant also contends that to the extent that the plaintiff has suffered any disabilities, then these are due to pre‑existing conditions including the effects of a fall during the course of her employment on 10 June 1996.

The plaintiff's background circumstances

The plaintiff was born in Tasmania on 2 August 1955, and after attending school in that State until Year 10 worked at a department store in Hobart. At the age of 17 years she married her first husband who died soon afterwards. There were two daughters of that union.
Over the following years the plaintiff engaged in bar work and employment in the hospitality industry, and by 1985 was the manager of the Members Bar in Parliament House at Hobart. By that time the plaintiff had met her second husband, who was in the Army, and was subject to a requirement to travel to various postings around Australia.
To accommodate this situation, the plaintiff was able to obtain a position as a catering assistant with the Department of Defence, and thus obtain employment wherever her husband was posted. It was in these circumstances that the plaintiff's employment was transferred from Townsville to Leeuwin Barracks in Fremantle during 1995. As I understand the evidence, the plaintiff had been working at Leeuwin Barracks for only a few months before she suffered her fall on 10 June 1996.

The plaintiff's pre‑existing condition

The defence pleads that apart from being injured in the fall on 10 June 1996, the plaintiff had sustained injuries in two motor vehicle accidents in July and August 1995. However the unchallenged evidence from the plaintiff is that each of these prior motor vehicle accidents was relatively minor in nature and did not result in any significant injuries.
The fall on 10 June 1996 occurred in the course of the plaintiff's employment with the Department of Defence as a catering assistant at Leeuwin Barracks. While carrying some plates and walking across a polished tile floor she slipped and fell heavily landing on her back and right shoulder. On the following day the plaintiff consulted her general practitioner, Dr Y W Tham, complaining of mid‑thoracic back ache and a painful right arm and right scapular region. Dr Tham arranged x‑rays which showed no recent bone injury but some evidence of past spondylitis. After diagnosing soft tissue injury to the parathoracic and right scapular muscles, Dr Tham prescribed analgesics, and certified that the plaintiff was temporarily unfit to work.
The plaintiff returned to work on 21 June 1996 but had problems in carrying out heavy lifting and other heavy manual work. On 5 July Dr Tham certified the plaintiff as being fit only for light duties, and when he last saw her on 13 August 1996 she was still complaining of symptoms in the right shoulder. The treatment prescribed by Dr Tham for these symptoms was anti‑inflammatory medications, physiotherapy and rest.
Thereafter, the plaintiff attended upon Dr Tham's associate, Dr G J Spurge. During his initial consultations Dr Spurge noted that the predominant shoulder pain was aggravated by sweeping, mopping, lifting and particularly lifting away from the body. There was also back pain which was mainly thoracic in nature but which was less debilitating. The plaintiff's return to work had been further complicated by the fact that she was being harassed by a chef who was allegedly making derogatory remarks about her pain state. On 31 October 1996 the plaintiff also presented with "an obvious right painful arc syndrome effecting the right shoulder" (Book of Medical Reports p 58).
Dr Spurge arranged further x‑rays and an ultrasound of the right shoulder but these were reported as normal with no evidence of degenerative changes or impingement disease. However, the ultrasound did suggest a possible small tear of the superior medial aspect of the right subscapularis muscle. On 4 November 1996 Dr Spurge referred the plaintiff to the surgeon, Mr Peter Hales.
When the plaintiff attended upon Mr Hales the latter arranged for an MRI scan which revealed "some anterior downslope with some A/C joint degenerative change with some degree of subdeltoid bursitis". As a result of these findings Mr Hales performed a cortisone injection into the subacromial bursa on 28 November 1996.
When Mr Hales reviewed the plaintiff on 28 January 1997 she stated that the injection to her shoulder had caused considerable pain without any significant benefit. She complained of continuing difficulty with lifting as well as a feeling of weakness in the right arm and a constant ache. Although the plaintiff did not have any significant degenerative changes in the A/C joint, Mr Hales considered the symptoms and signs to be indicative of an ongoing rotator cuff tendonitis and impingement syndrome. In his report of 28 January 1997 he stated:
"I feel she is also keen to undertake some work duties and it is a pity that Comcare cannot arrange a rehab programme for her. At the moment, in view of that, I have placed her off unfit and will review her progress again in three months."
As a result of this recommendation the plaintiff's employer referred her for rehabilitation counselling by Ms M Whitfield. It was while the plaintiff was travelling to an appointment with Ms Whitfield that she was injured in the motor vehicle accident the subject of the present claim.
It is relevant to note that when Mr Hales reviewed the plaintiff again on 29 April 1997 the condition of her shoulder was unchanged. He accordingly considered that the motor vehicle accident had had no effect on the shoulder.

The evidence of the accident and its aftermath

The accident on 5 February 1997 occurred when the defendant's vehicle pulled out of a driveway and into the path of the plaintiff's vehicle while the latter was travelling at approximately 65km/h. Although the plaintiff tried to brake, a collision was inevitable, and the force the impact caused her to strike the steering wheel in front of her. According to the plaintiff, she immediately felt a huge pain in her chest and could not breathe. She was also covered in blood because of a laceration to the chest caused by her seatbelt.
The plaintiff was taken by ambulance to St John of God Hospital Murdoch where she was attended by a specialist in emergency medicine, Dr R Graydon. Dr Graydon diagnosed a fractured sternum, an abrasion to the lower lip, and soft tissue injuries to the left posterior chest wall and neck.
X‑rays of the chest and sternum confirmed the fractured sternum but no other abnormality. The plaintiff was admitted as an inpatient for pain relief purposes only, and was discharged on 8 February 1997 on oral pain medication. Dr Graydon certified her as unfit to work for one week and referred her to her general practitioner for ongoing care. In his opinion the plaintiff was likely to make a full recovery from her injuries without any permanent disabilities.
As I understand the evidence, the plaintiff then consulted Dr Spurge but ceased attending upon him after 18 April 1997. During this period Dr Spurge considered that the plaintiff was unfit to return to work because of pain relating to the sternal fracture. He also noted that she had "an increasing phobia towards driving that had become increasingly manifest over a number of accidents that she had" which he considered to be consistent with a post‑traumatic stress disorder. On 18 April 1997 Dr Spurge prescribed medications for the post‑traumatic stress disorder and also referred the plaintiff for a specialist psychiatric opinion. He specifically counselled the plaintiff against seeking treatment from a psychologist. In his later report of 2 June 1997 Dr Spurge stated the following:
"(1)The injuries sustained were of
A.A possible exacerbation of right sub acromial bursitis but a subsequent opinion from Mr Peter Hales was that there was no further injury to the right shoulder. I am happy to accept that opinion.
B.Sternal Fracture …
C.Post Traumatic Stress Disorder. This was diagnosed on 18 April 1997 although in retrospect was apparent well before that date. It would appear that this disorder was present prior to the accident of 5 February 1997 but was exacerbated by that accident.
D.Thoracic back pain. Mrs Munro had Thoracic back pain as a direct result of the fall on 10 June 1996. The significance of the thoracic back pain had decreased enormously until the further injury on 5 February 1997. In view of the significant pain associated with the sternal fracture it was decided not to investigate the back pain by bone scanning to determine if a rib fracture was a possible cause for the exacerbation of her symptoms. The cause of the thoracic back pain initially was thought to be due to soft tissue injuries and the motor vehicle accident was thought to have caused a recurrence or exacerbation of same.
(2)Present Condition. The patient was last assessed on 18 April 1997 and her condition was assessed at that time
A.The subacromial bursitis persists and is a cause of significant symptoms but cannot be attributed to this accident.
B.The sternal fracture has healed and whilst causes some residual discomfort, is not a cause of any significant ongoing disability.
C.The Post Traumatic Stress Disorder was manifest on 18 April 1997 and made Mrs Munro unfit to work at that time.
D.The thoracic back pain was persisting at the time I saw Mrs Munro on 18 April 1997 but was resolved to the extent that it would not have precluded her returning to the workforce at that time.
(3)Total Incapacity. The period of total incapacity, as a direct result of the motor vehicle accident was from 5 February 1997 until 21 March 1997. Following that time the periods of incapacity are more related to the problems of thoracic back pain and 'Post Traumatic Stress Disorder' which can only be seen as having been exacerbated by this motor vehicle accident.
(4)Partial Incapacity. Mrs Munro was still symptomatic when I last saw her on 18 April 1997. It was my belief at that time that she would respond rapidly to treatment with Paroxetine and be able to return to work on 3 May 1997. I imagine Mrs Munro has ongoing symptoms from her thoracic spine, which in part can be related to the motor vehicle accident, and she may also have some ongoing phobia relating to her driving. As I stated above this can be only partly attributed to the accident of 5 February 1997.
(5)I do not think permanent disability is a likely event for any of the injuries Mrs Munro has sustained. …"
During the initial months following the motor vehicle accident, the plaintiff also attended upon the rehabilitation counsellor, Ms Whitfield. Ms Whitfield considered that the greatest barrier to a return to work was the plaintiff's driving phobia and she recommended that the rehabilitation programme be postponed until this problem was overcome (report 28 April 1997).
Although Dr Spurge had referred the plaintiff to a psychiatrist, she decided on her own initiative to obtain psychological counselling from Mr Graham Taylor. She attended on Mr Taylor on 12, 17 and 25 June 1997, and on the last of these occasions he treated her with "Eye Movement Desensitisation and Reprocessing (EMDR)". According to Mr Taylor, on 25 June this treatment achieved a "significant resolution", and by the end of the session "she was able to review the accident as if it was a past event" (report 30 June 1997).
It is the plaintiff's evidence that prior to seeing Mr Taylor she had become "agoraphobic". In this regard she stayed in bed all the time, was very depressed, and had taken an overdose of sleeping tablets by way of a suicide attempt. As a result of the EMDR treatment she "became a little bit better" and was able to drive. However, she was still subject to constant panic attacks while driving.
The plaintiff had further attendances upon Mr Taylor on 14 and 22 July, and on 8 September 1997. In a report dated 9 September 1997 Mr Taylor stated that "the resolution work that we did with EMDR in June has held up nicely". Following further attendances on 30 September, 7, 15 and 29 October 1997 Mr Taylor reported that:
"She is starting to drive further from home now, and says that it is getting better, although she still continues to experience mild to moderate levels of anxiety, particularly in heavy traffic." (Report 5 November 1997)
During this period the plaintiff was also consulting her new general practitioner, Dr L Henderson. Dr Henderson considered her to be unfit for work due to a combination of physical and psychological reasons. As at 31 October 1997 he reported the plaintiff's ongoing symptoms to include sternal pain (which was exacerbated by movement), poor sleep, anxiety, and agoraphobia.
In September 1997 Dr Henderson referred the plaintiff for assessment by the orthopaedic surgeon, Mr R McWilliam. Following his examination Mr McWilliam considered that the plaintiff had sustained "a high energy type injury to the sternum" for which no specific treatment was needed. He recommended hydrotherapy and gentle active exercise as the best means of resolving her symptoms. Mr McWilliam was also of the view that the plaintiff was unfit to return to her employment.
The plaintiff undertook a hydrotherapy programme as recommended by Mr McWilliam and also developed a rehabilitation plan with Ms Whitfield. This plan involved an initial part‑time return to work performing clerical or other light duties (Ms Whitfield's reports 21 November 1997 and 4 March 1998). Pursuant to the plan the plaintiff by April 1998 had successfully completed a computer course and was on a work training programme at the Leeuwin Barracks (Ms Whitfield's report 21 April 1998).
As I understand the evidence the plaintiff did not seek any significant medical intervention during the first half of 1998 but continued her counselling sessions with Mr Taylor. She and her husband were also making strenuous efforts to obtain his transfer to Tasmania, which they believed would be beneficial to her overall condition.
During April 1998 the defendant's solicitors arranged a psychiatric assessment of the plaintiff by Dr R Finlay‑Jones. After carefully noting all of the relevant symptoms, Dr Finlay‑Jones diagnosed the plaintiff as suffering from a severe post‑traumatic stress disorder, panic attacks, agoraphobia, and depression all of which were totally motor vehicle accident related. Dr Finlay‑Jones also considered that the psychological treatment from Mr Taylor had benefited the plaintiff and should be continued.
The defendant's solicitors also arranged for the plaintiff to be assessed by the orthopaedic surgeon, Dr J C B O'Connor. When seen by Dr O'Connor on 30 April 1998 the plaintiff was complaining of persistent sternal discomfort, restricted rotation in the cervical spine, and discomfort in the thoracic spine. Dr O'Connor considered that these symptoms were most probably related to the injuries sustained in the motor vehicle accident. He could not exclude the possibility of a small but significant permanent residual disability which he assessed at no more than 10 per cent loss of spinal function.
During August 1998 the plaintiff was assessed by the occupational physician, Professor A C Harper, at the request of her solicitors. Following his examination, Professor Harper considered the plaintiff was incapacitated from her pre‑accident work but was capable of limited clerical work on a part‑time basis (viz six hours per day and five days per week). He expected her work capacity to gradually increase to eight hours per day but that she would be permanently incapacitated from her pre‑accident work. Professor Harper also did not anticipate any major changes in the plaintiff's symptomatology over the coming year.
During this period the plaintiff had been continuing to work part‑time in clerical duties at Leeuwin Barracks, but these were increased to full‑time during September 1998. In December 1998 the plaintiff and her husband returned to Tasmania, he having obtained a "compassionate posting" to that State. It is the plaintiff's evidence that as a result of this move she was obliged to "take redundancy" there being no available clerical positions in Tasmania. (Nor for that matter any permanent such positions in Western Australia).
The plaintiff was nevertheless active in obtaining alternative employment in Tasmania. Prior to leaving Perth she completed a medical reception course at Edwards Business College. Once in Hobart she also completed a Microsoft access course and other training using an allowance of $2,500 provided by the Department of Defence.
In April 1999 the plaintiff obtained a position as a receptionist for Drake Personnel earning approximately $30,000 per annum. This involved face to face counselling with long time unemployed people, which she found to be very stressful. In this regard she was still suffering from depression which caused frequent absences from work.
Since 13 December 1999 the plaintiff has been employed with the Tasmanian Department of Police & Public Safety receiving calls from the public to the "Crime Stoppers" telephone number. She earns $31,000 per annum in this position and works seven hour shifts at varying times of the day. It is the plaintiff's evidence that she can "cope alright" with this work notwithstanding the occasional stressful day.
According to the plaintiff, her current symptoms are constant pain in the sternum, back and neck, which she is able to deal with at work because she does not have to sit for a long time. At home she has the assistance of her husband who does most of the housework, shopping and cooking. The plaintiff still has problems with her driving phobia, but is able to drive herself to and from work.
Since moving to Tasmania the plaintiff has been under the care of the general practitioner, Dr M D Bruce. Dr Bruce assesses the plaintiff's symptoms as being of mild to moderate severity. He has prescribed a significant regime of continuing medications, and I understand his evidence to be that the residual disabilities are likely to be permanent.
The plaintiff has also been referred to a number of other specialists to enable them to provide expert opinions at trial. For this reason Mr B S Slinger examined the plaintiff on 22 March 2001 at the request of the defendant's solicitors. In his opinion the plaintiff does not require any further rehabilitation, and should be able to continue her present full‑time employment until the age of anticipated retirement. He agrees with the present treatment direction as prescribed by Dr Bruce and also agrees that the present symptoms are likely to be permanent.

The occupational physician, Mr P Connaughton, examined the plaintiff on 23 March 2001 at the request of the defendant's solicitors. In his opinion the plaintiff has a permanent disability (of approximately 7 per cent each) in the thoracic and cervical spines as a result of the motor vehicle accident. She also has a psychiatric disability which he is unable to quantify (but which he describes as anxiety and depression associated with post‑traumatic stress disorder). As a result of the plaintiff's "spectrum of current symptoms" she is unable to return to her previous employment as a catering assistant. However, it is also possible that she may not have been able to return to that work as a direct result of the shoulder injury in June 1996.
Finally, there is a further psychiatric assessment from Dr P D McCarthy, which was carried out in March 2001 at the request of the defendant's solicitors. From the history taken, Dr McCarthy considers that the plaintiff developed a post‑traumatic stress disorder of moderate intensity as well as a major depressive disorder as a result of the motor vehicle accident. This psychiatric disability would only incapacitate her from any employment which involves driving, and this aside, the plaintiff is fit for any form of employment for which she is suited by training, experience or qualifications.
It is also Dr McCarthy's opinion from the history taken that the depression caused by the motor vehicle accident settled in 1998, and that her depressive problems since then have been related to separate issues. He does not consider that there is any need for continuing psychiatric or psychological treatment as a consequence of the motor vehicle accident.

Factual findings

As can be seen from the above, the great weight of medical opinion (including in particular those from medical experts who have examined the plaintiff at the request of the defendant's solicitors) tends to support the existence of the symptoms as claimed. I, myself, found the plaintiff to be a plausible and credible witness, and I accept her evidence as to her perceived symptomatology from time to time.
Furthermore, I am impressed by the plaintiff's efforts in overcoming her physical and psychological problems, especially since moving to Tasmania. These efforts have met with considerable success, and have greatly reduced the quantum of damages for economic loss which might otherwise have been recoverable.
I find that immediately prior to the motor vehicle accident on 5 February 1997 the plaintiff was still experiencing the effects of her fall on 10 June 1996. In particular, the plaintiff was suffering "an ongoing rotator cuff tendonitis and impingement syndrome" as diagnosed by Mr Hales on 28 January 1997. This caused the plaintiff to have difficulty with lifting as well as a feeling of weakness and a constant ache in her right arm. I accept the evidence from Mr Hales that the prognosis for recovery from this injury was good, but that it was likely to cause total incapacity from work for a period of at least three months from 18 January 1997.
As a result of the fall on 10 June 1996 the plaintiff had also sustained a soft tissue injury in the thoracic region of her back. The symptoms caused by this injury had greatly reduced by the date of the motor vehicle accident and were not of any continuing significance.
I am satisfied that as a result of the motor vehicle accident on 5 February 1997 the plaintiff sustained a fractured sternum, an exacerbation of the thoracic back pain, a soft tissue injury to the cervical area of the spine, and other more minor soft tissue injuries and abrasions. The plaintiff also developed the symptoms of a post traumatic stress disorder which was diagnosed by Dr Spurge for the first time on 18 April 1997.
The evidence generally satisfies me that as a result of the motor vehicle accident the plaintiff has continuing physical symptoms of mild to moderate severity in the sternum, neck and mid thoracic spine. The levels of the symptoms depend upon the extent of the plaintiff's physical activity and movement, and have also been significantly aggravated by her post traumatic stress disorder. I accept Mr Connaughton's evidence that the extent of the permanent physical disabilities caused by the motor vehicle accident to the plaintiff's cervical and thoracic spines can be assessed as approximately a 7 per cent impairment in each.
The evidence generally also establishes that the plaintiff's pre‑existing disability in her right shoulder is not the cause of any continuing symptoms. However, it needs to be borne in mind that the injuries resulting from the motor vehicle accident have prevented the plaintiff from carrying out physical activities which might otherwise have aggravated the prior injury in her right shoulder.
I find that a major factor in the plaintiff's post motor vehicle accident symptomatology has been her post traumatic stress disorder and related conditions. In this regard I accept Dr Finlay Jones' evidence that the motor vehicle accident resulted in a severe post traumatic stress disorder as well as panic attacks, agoraphobia, and a major depressive disorder. However, Mr Graham Taylor's psychological counselling was successful in partially resolving these problems, and in reducing their impact on the plaintiff's continuing symptoms.
With regard to loss in earning capacity, the evidence establishes that the plaintiff's pre‑existing shoulder condition would in any event have prevented her from working until at least May 1997. Thereafter the shoulder remained the same, but I draw the inference from Mr Hales' report of 29 April 1997 that recovery was being impeded by the motor vehicle accident caused injuries. Accordingly I find that the plaintiff's continuing economic loss from May 1997 was partly attributable to the motor vehicle accident, and as time passed became increasingly and entirely attributable to that accident.
As from May 1997 the plaintiff was totally incapacitated from working until returning to work on a light duties basis during April 1998. This return to work was pursuant to a rehabilitation programme administered by "Comcare", which body is entitled to recover the subsequent earnings from the Department of Defence (totalling $44,357.32) as "incapacity determinations" (see Exhibit 6).
I find that the need for the plaintiff to return to Tasmania would not have occurred but for the motor vehicle accident injuries. Given the absence of permanent clerical employment, the extent of the plaintiff's symptomatology, and her lack of family connections in Western Australia, it was entirely reasonable and appropriate for her to seek to ameliorate her condition by returning to her home State.
As has been amply demonstrated by subsequent events, the plaintiff's return to Tasmania considerably improved her mental state and enabled her to obtain employment commensurate with the full extent of her residual working capacity.
As a result of the motor vehicle accident the plaintiff continues to be partially incapacitated in that she has sustained a permanent reduction in the range of employment opportunities which would otherwise have been reasonably available to her.

Assessment of damages

Although the motor vehicle accident caused an immediate physical incapacity from working, that incapacity was not productive of loss until May 1997. Thereafter the motor vehicle accident injuries were a significant causal factor and ultimately became the only cause of the plaintiff's continuing loss. Pursuant to the decision of the High Court in Medlin v State Government Insurance Commission (1995) 182 CLR 1, 6, I find that the defendant is liable for the whole of the plaintiff's loss since then.
The plaintiff's earnings from the Department of Defence up until November 1998 cannot be regarded as the true measure of her residual working capacity during that period. As already noted, those payments were made pursuant to a rehabilitation programme provided by Comcare (by reason of her motor vehicle accident caused incapacity being compensable under the scheme administered by that body).
In respect of the period between 1 May and 30 June 1997 I find that but for the accident the plaintiff would have received earnings of $470.66 net per week (viz. A total of $4,236). I am also satisfied (in accordance with the calculations set out in the plaintiff's amended schedules of damage dated 19 April 2001) that in respect of the period 1 July 1997 until 30 June 1999 the plaintiff's net loss totalled $59,388. The plaintiff has not sustained any actual loss subsequent to 30 June 1999 and I accordingly find that her total past loss amounts to $63,624.
The plaintiff is additionally entitled to interest at the rate of 3 per cent per annum in respect of that portion of past loss not received by way of "earnings" (viz. $4,534 for 3.5 years). I accordingly award interest on past loss in the sum of $476.
I find that the redundancy payment of approximately $15,000 received by the plaintiff at the time of her transfer to Tasmania does not need to be offset against these calculations of past loss. I make this finding in accordance with the principles enunciated by Windeyer J in National Insurance v Espagne (1961) 105 CLR 569, 599-600.
In respect of future loss the plaintiff is to be compensated for a loss in the range of available occupations due to her permanent physical disabilities in the cervical and thoracic spines, her continuing driving phobia and the effects of her agoraphobia. The plaintiff has demonstrated considerable tenacity in overcoming these difficulties but there is nevertheless the risk that she might lose her present employment and have problems in finding a replacement job. In my view a fair assessment of this aspect of the plaintiff's loss is the sum of $50,000.
The plaintiff is additionally entitled to an award for future medical expenses (which I assess at $3,000), together with special damages. I assess special damages in the sum of $11,110.90 being the amount of Comcare's "claim invoices list" (Exhibit 6) less the item in respect of Dr Hales dated 29 April 1997.
Finally, the plaintiff is entitled to an award for non‑pecuniary loss which must be assessed in accordance with s 3C of the Motor Vehicle (Third Party Insurance) Act 1943 as amended. In my view the amount of the plaintiff's non‑pecuniary loss should be fairly assessed as being 12 per cent of the maximum amount of damages that may be awarded. Accordingly and pursuant to the statutory formula that has been prescribed I award the plaintiff $16,340.00 in respect of her non‑pecuniary loss.
Accordingly, there will be judgment to the plaintiff in the total sum of $188,210.90 comprising the following amounts:
Non‑pecuniary loss  $16,340.00
Past economic loss  $63,624.00
Interest on past economic loss                  $476.00
Future economic loss  $50,000.00
Future medical expenses  $3,000.00
Special damages  $11,110.90
$144,550.90