Newman v Maiolo
[2001] WADC 163
•19 JULY 2001
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: NEWMAN -v- MAIOLO [2001] WADC 163
CORAM: DEANE DCJ
HEARD: 5 - 8 JUNE 2001
DELIVERED : 19 JULY 2001
FILE NO/S: CIV 1078 of 2000
BETWEEN: DEBBIE ANNE NEWMAN
Plaintiff
AND
DOMENIC MAIOLO
Defendant
Catchwords:
Damages - Assessment - Personal injury - 45 year old insurance broker - Injuries to cervical, thoracic and lumbar spine - Whether pre-existing pseudarthrosis cause of any condition found to be suffered by plaintiff - Damages for past and future loss of earning capacity - Section 3C Motor Vehicle (Third Party Insurance) Act 1943 - Award for non-pecuniary loss - Calculation of loss of past and future superannuation entitlements - Past and future gratuitous assistance - Special damages - Fox v Wood component
Legislation:
Nil
Result:
Damages assessed
Representation:
Counsel:
Plaintiff: Mr A S Stavrianou
Defendant: Mr J F O'Sullivan
Solicitors:
Plaintiff: Bradford & Co
Defendant: State Crown Solicitor
Case(s) referred to in judgment(s):
Fox v Wood (1981) 148 CLR 438
Graham v Baker (1961) 106 CLR 340
Jongen v CSR Ltd & Anor [1992] A Tort Rep 81-192
Kember v Thackrah [2000] WASCA 198
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Nolan v Hamersley Iron Pty Ltd [2000] WASCA 304
Paul v Rendell (1981) 34 ALR 569
Purkess v Crittenden (1965) 114 CLR 164
Southgate v Waterford (1990) 21 NSWLR 427
Case(s) also cited:
Ascic v Westel Co-operative Ltd (1992) A Tort Rep 81-159
Bowen v Tutte [1990] A Tort Rep 81-043
Thomas v O'Shea [1989] A Tort Rep 80-251
Veselinovic v Thorley [1988] 1 Qd R 191
Watts v Rake (1960) 108 CLR 158
Watts v Turpin [1999] WASCA 216
DEANE DCJ:
Introduction
In this action the plaintiff claims damages from the defendant for injuries suffered by her in a motor vehicle accident which occurred in Murray Street, West Perth, on 25 May 1998. The defendant admits liability for the accident insofar as it relates to the defendant's negligence, but denies that the plaintiff is entitled to the damages claimed or any damages. In the alternative the defendant asserts that if there is any loss, injury or damage to the plaintiff's lumbar spine then it is attributable solely to the pre‑existing pseudarthrosis in the spine and not to the accident.
The plaintiff also claims for loss of amenities, past and future loss of earning capacity, past and future loss of superannuation benefits, past and future gratuitous assistance, past and future medical and other expenses as well as past and future travelling expenses. In addition, it will be necessary to consider what is described as the Fox v Wood component. Finally, there is the issue of interest to be determined.
Circumstances of the accident
The plaintiff was born on 8 October 1955 and is now 45 years of age. At the time of the accident the plaintiff was 42 years of age and according to her evidence she was in good health. At the time she was taking an anti‑depressant medication but had not suffered any neck or back problems prior to the date of the accident. She would suffer an occasional headache but these were not of such a nature to cause the plaintiff any concern or to prompt her to have the problem further investigated.
On the day of the accident, in the course of her employment as a development marketing manager with Smith Coffey Insurance Brokers Pty Ltd ("Smith Coffey"), at about 4.00 pm the plaintiff was driving her 1996 model Honda Accord in a north easterly direction along Thomas Street in West Perth. Just prior to the collision the plaintiff turned her vehicle right into Murray Street. The plaintiff's evidence was that there was no need for her to bring her vehicle to a halt before performing this manoeuvre. At the same time the defendant was driving his vehicle, which the plaintiff recalled as being an early model Commodore, in the opposite direction to the plaintiff's line of travel. He then turned left into Murray Street. Murray Street is a one way street at the point where both the plaintiff and the defendant turned their vehicles but there was a traffic island which separated the two vehicles. The plaintiff's evidence was at this stage the defendant's vehicle was on her left but he then cut in front of her vehicle, apparently having decided to turn into a carpark near Princess Margaret Hospital. The plaintiff immediately applied her brakes but froze as she realised she could not avoid a collision. The front lefthand side of the plaintiff's vehicle then collided with the driver's side door and front fender of the defendant's vehicle, causing what the plaintiff described as a "big bang". The plaintiff who was shaken as a result of the collision, got out of her vehicle and followed the defendant into the nearby carpark area where he had gone. According to the plaintiff, the defendant was abusive towards her but she was able to obtain his details from a female person who was in his company.
As a result of the collision the plaintiff's vehicle sustained some $3,000 to $4,000 worth of damage and was in a drivable though not roadworthy condition. Consequently the plaintiff was able to drive her vehicle home to Hillarys where she arrived about 5.00 pm, having missed her planned appointment with an insurance underwriter.
In cross‑examination the plaintiff's recollection was that at the time of the collision she was travelling somewhere between 30 and 40km/h but she said she was not looking at the speedometer immediately prior to impact. She could not recall ever having estimated her speed at between 5 and 10km/h but agreed it was possible she told her general practitioner, Dr Lau, that she had been travelling somewhere between 20 and 30km/h, although she believed it was probably closer to 30km/h prior to impact. The plaintiff was wearing a seatbelt at the time of the collision and suffered no particular cuts, abrasions or injuries that she noticed immediately. Apart from being shaken and feeling that she had sustained substantial damage to herself because she had never been involved in a motor vehicle accident before, the plaintiff did not immediately note pain.
Having returned home that evening the plaintiff showered and had dinner before beginning to do some work connected with her employment. At this stage she noticed that she had both neck and back pain and was also suffering pain between her shoulder blades. Subsequently she developed a headache that evening and as a result she took some Panadol and went to bed. She did not sleep well that night due to a combination of being in pain and feeling somewhat distressed as a result of the accident.
In the statement of claim the plaintiff asserts that as a result of the accident she suffered musculoligamentous strain injury to her cervical spine, and the thoracic and lumbar spine. Although paragraph 4.4 of the statement of claim pleads that the plaintiff also suffered bilateral temporo‑mandibular joint injury, in her sworn testimony the plaintiff denied sustaining any injury to her jaw as a result of the accident and was at a loss to explain how such information could have found its way into any medical reports before the Court.
On the day following the accident the plaintiff consulted her general practitioner, Dr Lau, who prescribed Diazipam and some anti‑inflammatories. In addition the plaintiff subsequently also took Panadol medication for quite some time. The plaintiff was also advised to increase her dose of Aurorix, the anti‑depressant which she had been taking prior to the accident. After consulting her general practitioner the plaintiff went into work but found, among other things, with the passage of time that she was becoming a little hazy in carrying out her work due in part to her medication and furthermore she was unable to work the number of hours she had previously worked due to the fact that she was suffering headache, neck and back pain. During this time she was also sleeping poorly and found that she needed to take hot showers several times a day to deal with her movement problems. Movement was particularly restricted in the mornings.
Following Dr Lau's recommendations, the plaintiff underwent physiotherapy fairly regularly until a few months ago. Those sessions occurred two or three times a week and then tapered off to approximately once per month. The duration of the sessions was somewhere between 20 and 40 minutes.
I accept the plaintiff's evidence generally as to the speed of her vehicle immediately prior to the point of collision. In my view it is readily understandable that the plaintiff was not looking directly at her speedometer at this time and from her uncontradicted evidence it is clear that she was able to perform the manoeuvre of a righthand turn into Murray Street against oncoming traffic without the need to come to a complete stop. As a matter of logic it would seem that it would be necessary for the plaintiff to slow down in order to perform this manoeuvre, but not come to a standstill or reduce her speed to a very significant degree. In addition, whilst the plaintiff did not sustain any obvious cuts or abrasions or even immediate pain as a result of the accident, her vehicle suffered a not insignificant amount of damage in terms of cost of repairs. Whilst the plaintiff's vehicle did not come into head‑on contact with the defendant's vehicle nonetheless the plaintiff's vehicle struck the defendant's vehicle when it was side‑on to the plaintiff, thus the defendant's vehicle presented a solid barrier to the plaintiff's motor vehicle. I also note from the plaintiff's evidence that the impact was significant enough to cause her mobile phone which was clipped into place in a hands free mechanism in her vehicle to be dislodged. The impact of the collision I find was of moderate but not great force.
Plaintiff's personal circumstances and work history
The plaintiff has lived in Western Australia all her life and completed her education after Year 10 high school. She considered herself to be an average student. Thereafter the plaintiff undertook a secretarial course at business college for 12 months, studying subjects such as typing and bookkeeping. She obtained a job carrying out general office duties immediately upon finishing her course and after 12 months left that employment because she wished to find something that was more stimulating. As a result, the plaintiff obtained employment in the State Public Service when she was about 20 years of age in the mid‑1970's. Once again in her job at Lands & Surveys Department (now DOLA) the plaintiff carried out secretarial work and general office duties until about March 1979 when she had a few months leave due to the birth of her son. The plaintiff then returned to work as a shop assistant until about November 1979 when she obtained another secretarial job with Hopkins & Associates, a firm of insurance brokers.
In that employment the plaintiff's duties changed to a degree because although she was still carrying out secretarial work she was also working in general insurance broking relevant to household, motor vehicle and small business insurance. About two years later in 1981 the plaintiff, who was concerned with advancing her career, joined Allied Insurance Brokers with a view to not only working in the domestic insurance area but also moving into commercial or corporate insurance where she hoped to handle larger business accounts. The plaintiff's career at Allied Insurance Brokers was successful and in 1984 she was promoted to the position of account executive which carried considerably more responsibility. In that position the plaintiff had more extensive client contact where, with her own portfolio of clients, she was concerned with assessing the clients' insurance needs and obtaining the best possible coverage and quote for the client to cover those needs. In 1984 the plaintiff married her current husband.
As a result of this promotion the plaintiff's career began to move in a different direction. She was no longer doing secretarial work as such because there were a number of people under her who carried out that work relevant to the plaintiff's requirements. The plaintiff also recognised that if she was to advance further in her career it would be necessary for her to undertake additional study and so in 1985 she sat an exam set by the National Insurance Brokers Institute, having studied that course through correspondence. As a result the plaintiff qualified as a practising insurance broker. The plaintiff continues to undertake annual education programmes in this field to enhance her standing within the profession.
In 1987 the plaintiff was approached to join Western United Insurance Brokers and she did so, taking the business of some of her former clients with her. By this stage in her career the plaintiff was dealing with a considerable number of corporate clients and as the job was demanding she continued to work in the vicinity of 10 and sometimes 12 hours a day, taking only annual leave. Three years later, in approximately May 1990, the plaintiff was again approached by another person working in the insurance industry with a view to setting up in business with him and another person. That business, Windsor Bartholomew Insurance Brokers Pty Ltd, dealt in both general and life insurance with the plaintiff involved in the former category. The plaintiff's evidence was that as she was a working director in the company she had considerable administrative responsibilities as well as the responsibility for managing her client portfolio and ensuring that the accounts of the business were properly maintained. Eventually the plaintiff found the stress of working in the business, which often involved lengthy daily hours, seven days a week, in combination with some problems within the business, too difficult for her to deal with, and so she resigned from the company which was subsequently sold.
About two weeks after that in January 1995 the plaintiff accepted an offer of employment with Smith Coffey, the terms of which are set out in a letter of 25 January 1995, Exhibit P1. Initially her salary package was $55,000 inclusive of superannuation and a bonus of $5,000. As development marketing manager with Smith Coffey the plaintiff was in charge of servicing accounts as well as supervising staff and marketing the product for staff. In her new capacity at Smith Coffey the plaintiff also was required to maintain significant client contact and deal with various underwriters in the insurance business. The core hours of employment were 8.30 am to 5.00 pm but the plaintiff found, in order to do her job satisfactorily, it was necessary that she work longer hours, sometimes starting at 7.00 am as well as working at home in the evenings and on weekends occasionally. Nonetheless the plaintiff's evidence was that she enjoyed her work and was rewarded with the bonus promised when that incentive was available. Subsequently the plaintiff's salary package changed to exclude the bonus incentive but she was paid $59,000 per year inclusive of a $10,000 motor vehicle expense allowance. At this time the plaintiff considered herself to be in good health suffering only the occasional headache. This situation continued until the evening of her accident when she began to experience pain across her shoulder blades and a headache. When she returned to work the day following the accident she also noted that her back was a bit sore but the pain was alleviated for a time by the use of medication as well as hot packs and hot showers.
During this time the plaintiff continued to see her general practitioner, Dr Lau, but found after a month or so following the accident she could no longer cope with full working hours and so her hours were reduced to 24 hours a week in mid‑1998. This was on the recommendation of Dr Lau. Thereafter the plaintiff's working hours at Smith Coffey fluctuated to a degree increasing at one point to five and six hours per day and then decreasing again to four hours per day.
As well as consulting Dr Lau during this period the plaintiff was dealing with Ms Denny at Activ Injury Management and receiving physiotherapy treatment. In August of that year her employer altered the plaintiff's work station by providing her with a head set to make dealing with telephone calls easier and also repositioned her computer terminal in order to make it more accessible. Despite these changes, the plaintiff still felt frustrated by her inability to work the hours she had previously done and relevant to this she was consulting a Ms Bowyer, a psychologist. The plaintiff's employer also attempted to assist her by providing her with a temporary assistant in the afternoons. The plaintiff felt, however, that even with this consideration her work was not being done to its previous standard.
Once the plaintiff's work assistant left, her workload increased resulting in some problems at work. Despite this, in October 1998 the plaintiff increased her working hours to six hours a day prior to taking leave for about two weeks in November of that year. The plaintiff continued to experience problems on her return to work, with the result that her hours were reduced. At that time she felt she could cope with four hours at work a day, particularly as she was on an exercise programme at a gym. Her recollection was that her employer Smith Coffey was still anxious to know when the plaintiff would be fit to return to full‑time work, however, when she attempted to increase her hours to five hours a day in June 1999, she continued suffering back and neck pain as well as headaches. It was about this time that she said she developed lower back pain symptoms which included radiation of pain into her left leg. She had, however, complained of lower back pain to Dr Lau when she consulted her the day following the accident. This is a problem which the plaintiff claims remains current, although it is not the predominant cause of her pain. The plaintiff again took annual leave in November 1999 for two weeks and then returned to four to five hours employment per day.
She attempted to continue to service her clients during that period but in February of 2000 it was suggested by her employer that she alter her working hours which were then 8.00 am to 1.00 pm to 10.00 am to 3.00 pm. Although the plaintiff was prepared to do this she felt that she was more effective working in the morning as she was fresher. On medical advice the plaintiff did not commence by working the full amount of six hours per day. As a result of the co‑worker leaving about this time the plaintiff said she was required to take on additional work which necessitated her taking work home and this in turn exacerbated her physical problems. When she complained about this to her supervisor, Mr Lauren, the additional work was taken from her. In March of that year the plaintiff said her employer informed her there was not a part‑time position available for her. At that point she was working 10.00 am to 2.00 pm with a view to hopefully extending her hours to 3.00 pm of each day but this did not eventuate. On 7 April 2000 she received a letter from her employer, Exhibit P2, confirming the lack of a part‑time position but extending the offer of a full‑time position to the plaintiff should her medical and rehabilitation advisers recommend it. The plaintiff in effect said that not only was she suffering physical pain and problems at work at this time but in addition she found it hard to accept the situation where another person was, in her view, placed over the plaintiff in the work environment and she also lost her right to a permanent carparking bay at the employer's premises. Smith Coffey did provide her with a nearby alternative parking option but the plaintiff said that this was not always available and it was less convenient to her.
Shortly prior to this time, according to the plaintiff, Smith Coffey had suggested that she alter her job in the sense that she spend her time on the road servicing a range of clients as distinct from spending time in the office and dealing specifically with her own portfolio of clients. Although the plaintiff discussed this option with Dr Lau it was rejected as it was considered that the activity required would aggravate the plaintiff's neck and back problems. Smith Coffey suggested to the plaintiff in April 2000 that she take a period of six months off work on workers' compensation and then assess whether she was ready to return to full‑time employment. The plaintiff said she rejected this proposition as she preferred to work, even if it was at reduced hours.
Once it was made clear to the plaintiff that her employer did not have a full‑time position available for her she turned her mind to obtaining alternative employment. On 12 April 2000 she advised Smith Coffey that she intended to resign and obtain another job. She felt her physical condition was exacerbated by the stress of her work situation at that time and having given Smith Coffey a month's notice as required, she began work on 15 May with Westralian Insurance & Financial Services, working 20 hours a week for a salary of $20,800 per annum. The plaintiff continues in that employment currently and believes she is coping quite well working these hours. In all of the circumstances I do not find the plaintiff's decision to terminate her employment with Smith Coffey to be unreasonable. Equally I consider that in view of the situation that existed Smith Coffey acted fairly and endeavoured as best they could to accommodate the plaintiff's physical difficulties. The fact is, however, that they required a full‑time employee and the plaintiff was unable to meet this requirement. Her current employment differs from that with Smith Coffey in that it is with a much smaller organisation and she receives less general assistance within the office area which means she carries out some secretarial work as well as dealing with clients. The difference in her hourly rate between the two jobs is approximately $8 per hour and the plaintiff considers that her prospects of advancement in her current job are more limited than in her prior employment at Smith Coffey.
The plaintiff's current employer, Mr Chaplin, provided a proof of evidence Exhibit P10(1) and (2), which were tendered by consent. He was happy to employ the plaintiff as an insurance broker's assistant in April/May 2000 as he was searching for an experienced part‑time employee to work in the general insurance arm of his business. Mr Chaplin is aware of the plaintiff's physical problems and is willing to accommodate her by extending a flexible working arrangement to her for 20 hours per week. He is impressed with the plaintiff's knowledge and skill in the insurance industry and commented favourably on her work ethic but he is unable to offer the plaintiff additional working hours in the foreseeable future, even if it were the case that she was able to work longer hours.
Since the accident the plaintiff says her pain state fluctuates according to what she is doing and the situation that prevails at any given time. She finds that stress tends to exacerbate her pain state although she continues to suffer comparatively regular neck pain with accompanying headaches. This state has persisted since the date of the accident. Her pain is also exacerbated by repetitive activity such as vacuuming or repetitive arm movements. Going out in the family boat causes neck and back problems, whilst driving causes the plaintiff some pain in the arm and back. To a degree the pain state can be controlled or lessened if medication is taken in time to prevent it developing further. The cervical pain between the shoulder blades, the plaintiff says, has been present since the date of the accident and that too is exacerbated by repetitive physical activity of the nature previously described in her evidence. The plaintiff finds that standing still for any particular length of time exacerbates her low back pain which then radiates into her left leg. She copes with sitting for long periods of time by moving around and resting her weight on one buttock so as to take the pressure of her left side.
The plaintiff explained it was not part of her employment at Smith Coffey to take work home, but nonetheless the work had to be done. She agreed that although she did some work at home it was incorrect to say that, as appeared in one of her income tax returns, that she was required to spend 50 per cent of her time working at her home office. The plaintiff confirmed that between August 1998 and July 1999 whilst at Smith Coffey she worked between four and six hours daily but could do no more due to her pain state. Whilst there were management changes after that time, the plaintiff's working hours remained substantially the same and for a considerable period of time up until approximately six months before the plaintiff resigned from Smith Coffey, she agreed they had been quite accommodating of her needs. In this latter period, however, when the plaintiff felt she was being demoted by management, she took the view that her employer was lacking in support of her, particularly as they wished she change her mode and place of working and further when they informed her there was no part‑time position available for her.
The plaintiff said she never requested to be allowed to work from home exclusively or that her working hours be restructured to allow her to do this, as she understood that this simply was not a proposition acceptable to her employer. She considered that generally her demeanour at work was acceptable, although the plaintiff conceded that in times of stress she would not necessarily remain totally calm.
In the light of the evidence I have no difficulty in concluding that the plaintiff is a diligent and hardworking individual. Her work history has been almost continuous since she completed her education. She is an individual who is obviously ambitious and career orientated. Her movements within the insurance broking industry suggest that she is someone who has a commitment to improving her position and advancing her career. The plaintiff impressed me as being someone who sets high standards for herself both in the work and domestic environment and logically it would seem to me she has high expectations of those who work with and around her. The plaintiff's husband described the plaintiff in all the years that he has known her as being something of a "workaholic" who enjoys meeting challenges in her life and desires to be successful. Mr Newman confirmed that his wife at times did work of an evening and on the weekend. This work included periods of time when the plaintiff was studying relevant to advancing her career.
A number of witnesses from Smith Coffey were called on behalf of the defendant, each of them being persons who had had some dealings with the plaintiff when she worked with that organisation. None of them believed that the plaintiff had in any way been demoted after her motor vehicle accident, although in view of her physical problems after the accident certain arrangements were made in her working environment to assist the plaintiff to carry out her duties. Mr Lauren, who appeared to have had the most contact with the plaintiff within the organisation, recalled that after the accident the plaintiff's working hours were reduced to between four and six hours daily and he noted that she appeared to move in a more upright position and conveyed to him on occasion that she was in pain and taking medication. Essentially he believed that the plaintiff was a hardworking and career orientated individual and he did not have any qualms about her as an employee, albeit that he assessed her at times as being a little abrupt with other staff members.
Neither Mr Tancred nor Mr Holt could recall the plaintiff requesting either of them if she could do more of her work from home and whilst both of these witnesses recalled that the plaintiff working reduced hours from 8.00 a.m. to 1.00 pm they could not recall her working hours of 10.00 am to 2.00 pm or 3.00 pm.
As the evidence unfolded it became apparent that whilst she worked at Smith Coffey, even after the plaintiff worked reduced hours she kept a record described as a day book, which was retained by her employer. The purpose of the book was simply to record dates and times on which particular phone calls were taken and any action that followed relevant to the call or query. The plaintiff was recalled to give specific evidence about one such day book covering the period 9 December 1999 to 7 April 2000 (Exhibit P14). The plaintiff explained that during this period she was generally working the hours of 10.00 am to 2.00 pm so where calls are recorded before or after these times they were mobile calls not received by her at the office. Most notations occur after 10.00 am and before 2.00 pm though occasionally due to taking a break she would start a little earlier or finish a little later to make up for the time lost from core hours. I accept this evidence as to the hours worked by the plaintiff during this period.
It was Mr Tancred's recollection that the plaintiff said she could not work from 10.00 am to 3.00 pm and neither of them particularly noticed the plaintiff being unable to cope at work or being in pain but as against that neither he nor Mr Holt paid particular attention to her presentation. Mr Tancred considered the plaintiff an enthusiastic and good worker and his recollection was that he was the author of the letter, Exhibit P2, and confirmed the plaintiff was informed that Smith Coffey had no light duties available to her, although they were happy to offer her duties between 10.00 am and 3.00 pm daily.
In considering the evidence of the three witnesses from Smith Coffey I do not find that the plaintiff was demoted within that organisation after her motor vehicle accident and although a Ms Donadio shared part of the plaintiff's workload I do not accept that the plaintiff was demoted to work below Ms Donadio. Rather it appears that the plaintiff was moved sideways by her employers in an attempt to assist her to cope with her physical difficulties.
There is no question that the plaintiff possesses an entrenched work ethic as is clear from her own evidence and that of her husband and her former employers. Furthermore she impressed a number of witnesses such as a clinical psychologist, Ms Bowyer, and a rehabilitation officer, Ms Denny, as well as a number of medical practitioners whom she consulted as being motivated and attempting to work despite health problems such as neck pain and headaches.
The plaintiff's husband saw her on the evening of her motor vehicle accident and assessed her as being quite distressed and in shock. It was only that evening, or perhaps the next day according to his evidence that the plaintiff began complaining about soreness in her body which she had previously not experienced to her husband's knowledge.
Video surveillance evidence
During the course of the trial the defendant produced a video tape surveillance film of the plaintiff which apparently had been taken some time ago after the plaintiff's accident at the instigation of another insurance company. The plaintiff readily agreed that she was in the film which was taken on 29 April 2000 with some further short footage taken on 7 May 2000. The film runs approximately 43 minutes with some initial edited highlights. Essentially it shows on both occasions the plaintiff outside the front of her home speaking with other persons. In the first film the plaintiff picks up, carries and again puts down on a number of occasions her small pet dog which she said weighs in the vicinity of 5kg and would have weighed less at the time of the surveillance film being taken. It is difficult to assess a great deal about the plaintiff's condition on the basis of film, which does not show anything particularly dramatic in relation to the plaintiff's movements. Generally it would appear that the plaintiff moves with a relative degree of ease and relatively freely with some bending and turning or twisting of her body and neck. She is standing a good deal of the time and often moves from one foot to another and places her hands on her hips at times. Whilst the plaintiff did not spend very much time at all leaning against objects for support there are occasions when she appears to lean against objects briefly. The plaintiff explained that placing her hands on her hips and moving from one foot to another were manoeuvres that she performed to help alleviate back pain and also because at times her leg was sore.
I do not believe that the video surveillance film could, in the circumstances of this case, lead to a conclusion that the plaintiff suffers no pain or does not suffer the type of pain which she describes experiencing. On the other hand, this is not a case where the plaintiff is so restricted by pain or injury that she cannot bend or lift, although I accept that in doing so she may suffer some discomfort. The plaintiff also gave evidence that her pain state varies according to the physical activity she is undertaking at the time. The video surveillance film does not show the plaintiff being particularly active, which in turn may explain why she appears to move with relative ease on the film.
Medical evidence relating to the plaintiff's injuries and the extent of the plaintiff's incapacity
A considerable amount of medical evidence was either called or tendered by consent on behalf of both the plaintiff and the defendant. The plaintiff consulted her general practitioner, Dr Lau, the day after the motor vehicle accident when Dr Lau diagnosed a soft tissue type of injury to the neck and to the low back as the plaintiff was complaining of pain in both regions at that time. Dr Lau noted mild tenderness but no bruising and also that the plaintiff exhibited a full range of movement in both her neck and back. Dr Lau continued to see the plaintiff at regular intervals after 26 May 1998 and on 2 June a medical certificate noted neck, mid‑thoracic and low lumbar pain.
In July 1998 Dr Lau felt that the plaintiff could do no more than 24 hours a week and essentially, during the period July 1998 up until the plaintiff resigned from Smith Coffey on 12 April 2000, Dr Lau felt that the plaintiff was capable of doing somewhere between four and six hours per day, depending upon her condition. In her evidence Dr Lau was clearly of the view that the plaintiff is currently incapable of performing an 8 to 10 hour working day as she did prior to the accident.
The plaintiff's physical activities as demonstrated on the video surveillance film did not alter Dr Lau's opinion, although she did not feel that the plaintiff required regular physiotherapy for her problems. Physiotherapy was originally prescribed by Dr Lau for the cervical pain suffered by the plaintiff as well as thoracic and sacral area pain of which the plaintiff complained.
In cross‑examination Dr Lau agreed that although the plaintiff's presentation of symptoms were consistent with the history given, they were nonetheless subjective responses. She did not consider that the plaintiff in the course of her dealings with Dr Lau exaggerated her symptoms at all. Currently in Dr Lau's opinion the plaintiff is certainly capable of working a six hour day in her pre‑accident occupation, although clearly there is a need for breaks from time to time and a degree of flexibility in the work environment. As the plaintiff, in Dr Lau's view, suffered no significant pre‑accident pathology this in combination with the plaintiff's positive work ethic caused her to consider that the plaintiff had a good prognosis for recovery. Nonetheless Dr Lau did not indicate that any such recovery would be total or complete.
Mr Slinger, an orthopaedic surgeon, reviewed the plaintiff in October 2000 when she was complaining of neck pain with associated headaches and upper and lower back pain. In Mr Slinger's opinion there were some degenerative changes evident from the plaintiff's CT scans and x‑rays but he found no evidence of neurological compromise. He did not believe that the plaintiff was exaggerating her symptoms and in fact he was of the opinion that there was no evidence of abnormal illness behaviour. This latter opinion was in effect confirmed by a psychiatrist, Dr Finlay‑Jones, who reviewed the plaintiff in November 2000. Whilst he concluded that in the past the plaintiff may have suffered a level of depression and anxiety, psychiatrically he found no evidence of incapacity and did not believe that the plaintiff presented in a contrived manner.
As at the date of his report of 24 October 2000 Mr Slinger believed that the plaintiff was capable of working five to six hours a day, although he felt it was unlikely she would return to her pre‑accident working hours. When he reviewed the plaintiff in May 2001 she was still complaining of neck pain, aggravated by twisting and turning and this was accompanied by frequent headaches. This did not alter Mr Slinger's opinion of her capacity to work for six hours a day at that stage. After seeing the video surveillance film Mr Slinger did not change his opinion as to the plaintiff's work capacity nor did he believe that the degenerative changes which pre‑existed the plaintiff's accident, for example, pseudarthrosis which had previously been asymptomatic were rendered symptomatic by the trauma of the motor vehicle accident. He conceded, however, there was a possibility the accident may have caused the pseudarthrosis to become symptomatic. As I understood Mr Slinger's evidence the highest at which he would put such a proposition was as a mere possibility as distinct from a probability. Mr Slinger agreed that if Dr Baskaranathan found no evidence of lumbar pain in the plaintiff 11 months after the motor vehicle accident it could suggest that the plaintiff's lumbar pain was not related to the accident, but as against this it has to be noted that the day following the accident the plaintiff did complain to Dr Lau about lumbar pain.
Ultimately Mr Slinger came to the same diagnosis as Dr Lau, namely that the plaintiff had sustained a soft tissue injury. He reached this conclusion after taking into account the history provided by the plaintiff and the signs and symptoms she demonstrated on examination. He did not suggest that the plaintiff was particularly incapacitated in that he considered that she carried out a range of physical activities but in a careful and non‑repetitive manner so as to avoid aggravation of her symptoms.
Dr Baskaranathan, a rheumatologist who reviewed the plaintiff in about March of 1999, noted no inconsistencies between her stated symptoms and his findings on examination. She complained of neck pain at C6/7 at the base of the neck. This pain extended between her shoulder blades and out towards each of her shoulders. The neck pain was accompanied by occipital headaches and unfortunately physiotherapy only afforded the plaintiff temporary relief from her symptoms. He too diagnosed a soft tissue injury but felt at the time he reviewed the plaintiff that there was a significant psychological component to her condition in that she appeared to be suffering a degree of depression and anxiety. He considered that there was no evidence that her symptoms were a result of an aggravation of a pre‑existing injury and was moderately optimistic in his prognosis for the plaintiff's recovery. He did consider, however, that it would be prudent for the plaintiff to have a MRI investigation in conjunction with continuing psychological counselling.
In his report of March 1999 Dr Baskaranathan was of the view that the plaintiff could carry out five hours work per day and he did not in his sworn testimony, as I understood it, depart from this view. Unlike Mr Slinger, who does not find the brachial plexus tension test a useful diagnostic tool, Dr Baskaranathan did employ the test but with a negative result and pointed out that it is not a test which is used a great deal nowadays. He agreed that in all likelihood a soft tissue injury was a correct diagnosis of the plaintiff's condition following the accident, although Dr Baskaranathan would have expected such a condition to have settled within 10 months after the accident. He was firmly of the opinion that the pseudarthrosis suffered by the plaintiff was not relevant to her current condition nor therefore, as I understand his evidence, did it relate to her involvement in the motor vehicle accident.
Ms Bowyer, a clinical psychologist, has had extensive dealings with the plaintiff since her referral to Ms Bowyer in late 1999 or early 2000. A considerable number of detailed reports regarding Ms Bowyer's observation of the plaintiff and her responses during their various consultation sessions were tendered in evidence as Exhibit P9(1) - (4). The plaintiff complained to Ms Bowyer of pain on the left side of her neck and shoulder which extended across the top of her shoulder blades. She also complained of pain in her left hip extending down into her left leg area. According to the history Ms Bowyer took, the plaintiff's pain state was exacerbated by sustained sitting or standing, bending and reaching, as well as carrying out repetitive physical activity. She also noted that the plaintiff's concentration levels were poorer since her involvement in the accident. Overall Ms Bowyer felt that the plaintiff had made definite progress in reducing her anxiety levels, albeit the plaintiff was still frustrated that her pain levels caused her to be physically restricted and restricted in her work situation.
In February of 2000 the plaintiff reported concern regarding her work environment as she felt it presented difficulties in that she had to drive and was also required to engage in neck flexion, bending, lifting and carrying items in the course of her employment. The plaintiff also commented to Ms Bowyer that fatigue contributed to her pain state, which was why the plaintiff felt more capable of carrying out work related and domestic duties earlier rather than later in the day.
Ms Bowyer agreed with Mr Slinger and Dr Finlay‑Jones that the plaintiff did not present in a contrived manner and she considered that emotional overlay was not a relevant issue in the plaintiff's circumstances. To the contrary she considered the plaintiff to be a motivated individual with an entrenched work ethic, to the point that the plaintiff's career was central to her personality as it provided the plaintiff with a sense of worth. For that reason, although it was in the plaintiff's interest to continue employment as it aided her ongoing recovery, nonetheless the fact that her alternative employment paid less and was less challenging and stimulating and provided less job satisfaction was a matter for concern in Ms Bowyer's opinion.
Ms Denny, from ACTIV Injury Management, did not give sworn evidence but a number of her reports Exhibit P11(1) - (13) were tendered in evidence by consent. The contents of these reports essentially dealt with the complaints of pain and restricted social and work activities that the plaintiff made to Ms Denny. The reports also canvassed Ms Denny's efforts directed at attempting to assist the plaintiff's reintegration into the workforce. The plaintiff responded positively to the ergonomic assessment and subsequent changes to her work space, and this in combination with relaxation and stress management techniques afforded to the plaintiff, were in Ms Denny's opinion of assistance to the plaintiff in coping with continuing to work. In addition, in late December 1998 the plaintiff commenced a gym programme to assist her rehabilitation. She had had to reduce her working hours at that time to four hours per day. The programme ceased in February of 1999, although the physiotherapy programme continued. By mid‑June 1999 the plaintiff had increased her hours of work to five hours per day and was continuing to undergo physiotherapy.
In a report of 27 March 2000 Ms Denny queried whether the plaintiff could work the proposed hours of 10.00 am to 3.00 pm at Smith Coffey and concurred with the suggestion that the plaintiff begin by initially working 10.00 am to 2.00 pm, five days a week, with a view to increasing her work hours thereafter. At that time it seems that the plaintiff was working only four hours per day at Smith Coffey. As the plaintiff subsequently found alternative employment for four hours a day after she resigned from Smith Coffey and in view of the fact that the plaintiff appeared to be coping in her new job, her rehabilitation file was closed and Ms Denny's involvement came to an end.
Dr Quintner, a physician and rheumatologist, was the only specialist called who appeared to place reliance on the diagnostic utility of the brachial plexus tension test, although he agreed that it is subjective and relies heavily on the patient's stated response to pain. The emphasis of Dr Quintner's evidence was also at variance with some of the other medical witnesses, in that he considered that a musculoligamentous cervical or thoracic spinal injury was an unsound diagnosis. In his view the plaintiff had reached the stage where she was experiencing pain as a result of a central nervous system sensitisation which he considered was a difficult problem to treat and reverse. He considered that the plaintiff's pain was neuropathic in origin, although he did concede he had not entirely excluded a possible musculoskeletal cause for her pain. He agreed with a number of other medical practitioners, however, in that he considered that the pain and stiffness the plaintiff suffers as a result of degenerative changes was not related to the motor vehicle accident and he confirmed that there was no structural damage as such evident to the plaintiff's spine. For much of the period that Dr Quintner saw the plaintiff, she was working approximately five hours a day and he considered that the plaintiff was progressing in her ability to manage her pain state.
In April 2000 Dr Quintner formed the view that the plaintiff had mechanical alloydynia and as a result suggested she reduce her workload to four hours a day. The plaintiff did not wish to increase the strength of her pain medication and Dr Quintner did not press this issue with her nor did he believe, as from early 2000, that the plaintiff required ongoing physiotherapy as in his opinion there was no evidence that such treatment was producing a positive outcome. His prognosis for the plaintiff's future recovery, in the sense of the plaintiff returning to full‑time work, was somewhat guarded, although Dr Quintner could not categorically exclude the possibility of an improvement in the plaintiff's condition.
In a report of 30 April 2001, approximately a month before trial, the plaintiff was again reviewed by Dr Quintner. She was still complaining of bilateral neck pain which was predominant on the left side, radiating into her upper back and shoulder region. She also complained of accompanying occipital headaches. In his evidence Dr Quintner gave what he described was a physical explanation for the plaintiff's continued complaints of pain, but he also pointed out that one could not discount a consideration of both biological and psychosocial elements relevant to understanding the mechanism of the plaintiff's pain.
Mr Brash, an orthopaedic surgeon, was in a number of respects at variance with the opinions of Mr Slinger in particular. In his report of 6 April 2000 Mr Brash was unable to see any objective evidence of pathology on examining the plaintiff and considered that if she had suffered an acute soft tissue injury as a result of the motor vehicle accident, then one would expect to see pain produced almost immediately as distinct from later that same evening. He confirmed that the plaintiff complained to him of ongoing widespread pain, which had persisted from the time of the accident, but he could not explain this on the results of his examination or with reference to particular pathology. At that time, although the plaintiff complained to him of pain in the cervical and upper thoracic spine with accompanying headaches and restriction on lifestyle, he did not consider she required further treatment and believed that she could undertake a full range of domestic activities and work on a full‑time basis.
Mr Brash's views remained unaltered in his report of 1 March 2000. He did not consider that the plaintiff suffered any permanent residual disability nor in his view did she have a measurable anatomical disability. His prognosis was guarded, only in the sense that as the plaintiff had not appeared to respond to treatment to that time he therefore did not consider she was likely to respond to treatment in the future. Mr Brash agreed with a number of other medical practitioners, however, in that he considered that there was no evidence at all that the motor vehicle accident had caused the plaintiff's pre‑existing asymptomatic degenerative changes to become symptomatic and hence cause pain. He was also firmly of the opinion that there was no evidence that the pseudarthrosis diagnosed, was in any way causative of the symptoms about which the plaintiff complained.
I did not understand Mr Brash to give evidence that he considered the plaintiff's condition was contrived or that she was not genuine in that sense.
Dr Bowles, an occupational physician, in some respects had views similar to those held by Mr Brash. He first reviewed the plaintiff on 10 May 2000, approximately two years after her motor vehicle accident. At that time she complained of constant neck ache and stiffness as well as a constant ache in her low and mid back region. Prolonged standing led to more back pain. On informal examination Dr Bowles found no signs of restriction or physical impairment and considered that the plaintiff suffered non‑specific neck pain with significant psychosocial and environmental as well as work related factors influencing her presentation of disability and incapacity. He believed that the plaintiff at that time was capable of working full‑time carrying out her pre‑accident duties, although he conceded that she would require breaks and that her work station would require certain modifications. Nonetheless Dr Bowles considered that the plaintiff suffered a 5 per cent residual disability of her cervical spine. Both Mr Brash and Dr Bowles believed that in general terms when an individual in the plaintiff's position becomes involved in the medico‑legal system generally it has proven negative outcomes and for that reason Dr Bowles considered that the finalisation of the plaintiff's claim and the end of her involvement in the system could only have a positive result.
Although the plaintiff complained of a variety of pain to Dr Bowles, she stressed that the pain in her neck was her major problem and that pain in her thoracic region was also exacerbated by bending and repetitive physical activity. Dr Bowles found the plaintiff's lumbar sacral spine movement to be within normal limits and her straight leg raising was at 85 per cent. Although he conceded that there were no inconsistencies that he could find between the plaintiff's complaints and her symptoms, he nonetheless said that this was a subjective area and hence incapable of objective verification. He diagnosed the plaintiff as suffering from a non‑specific degenerative type of musculoskeletal condition with symptoms which affected her neck, back and lumbo sacral region. He did not believe that the plaintiff required any further treatment apart from undertaking muscle strengthening exercises and stretching activities. Dr Bowles considered, however, the psychosocial aspects of the plaintiff's situation and her pain attitude needed to be further addressed. He disagreed that the pre‑existing degenerative changes seen radiologically had been rendered symptomatic by the plaintiff's involvement in the motor vehicle accident in which he conceded she may have suffered a soft tissue injury, but without any significant incapacity resulting.
Dr Rosenthal, a physician in rehabilitation medicine, considered in his evidence that the basis of the plaintiff's neck pain was a cervical strain injury with associated cervicogenic headache and secondary muscular tenderness in the right upper quadrant tissue. The plaintiff was also found to be tender over the C2/3 facet joint and the left greater occipital nerve. Whilst Dr Rosenthal pointed out that a facet joint is in fact not a soft tissue, he did accept as a concept that soft tissue injury to the spine does exist. He noted degenerative changes in the plaintiff's cervical spine but he also considered these to be irrelevant to the condition about which the plaintiff complained. In his view there was no way of confirming if the plaintiff's motor vehicle accident activated any pre‑existing degenerative changes in the sense of causing those changes to become symptomatic. Whilst he accepted that soft tissue injury can result in an individual being incapacitated as a result of pain causing symptoms, he did not consider pain in itself to be a disability and he further believed that the plaintiff was physically capable of performing her job which he understood to be essentially clerical in nature, for eight hours per day. Whilst Dr Rosenthal accepted that the plaintiff suffers neck pain he was adamant that the neuropathic pain syndrome spoken of by Dr Quintner was in this case an entirely unsound diagnosis. He further explained why making such a diagnosis can have serious medical implications as far as a patient is concerned. Dr Rosenthal viewed the plaintiff's x‑rays and CT scan of her lumbar spine which confirmed, among other things, that she has a right‑sided pseudarthrosis which arguably can predispose an individual to pain, although he was not able to state categorically this was the cause of the plaintiff's pain in this particular case. He tended to agree with Dr Bowles that the plaintiff had a 5 per cent permanent loss of function of the cervical spine but on examination noted her rotation was only slightly reduced. This medical witness did not doubt that the plaintiff's soft tissue cervical strain and ongoing neck symptoms were linked with her involvement in the motor vehicle accident, although he also considered that some psychological or psychosocial factors may also be impinging upon the plaintiff's condition and presentation. He prescribed little in the way of treatment except exercise and, what he described as a normalisation of lifestyle.
As with majority, if not all of the other medical witnesses, Dr Rosenthal agreed that there were no inconsistencies between the plaintiff's complaints and her presentation on direct clinical examination but he stressed that this was a subjective area insofar as reliance was placed on the plaintiff reporting responses to various tests during examination.
In his report of 9 July 2000 Dr Rosenthal considered that the plaintiff's condition would improve albeit that there would be some residual symptomatology. At that time he increased his assessment of the residual disability in her cervical spine to 10 per cent, but after viewing the surveillance video he reverted to his former assessment of 5 per cent residual disability.
Findings on the medical evidence
Having heard and considered all of the relevant medical evidence I do not find that the plaintiff has exaggerated her injuries nor do I find that she has presented in a contrived manner.
I accept that it is for the plaintiff to establish on the balance of probabilities that there is a causal connection between her ongoing condition and the accident; Purkess v Crittenden (1965) 114 CLR 164 at 171. Despite Dr Quintner's view to the contrary and Mr Brash's opinion that there was a lack of objective physical pathology to explain the plaintiff's complaints, I accept the evidence of the medical practitioners who diagnosed a soft tissue injury to the plaintiff's neck and low back. I am satisfied on the whole of the evidence that the plaintiff has established a direct casual connection between the strain injuries to her cervical spine and her thoracic spine and the motor vehicle accident. I am also satisfied on the balance of probabilities that as a result of the motor vehicle accident in which she was involved the plaintiff suffered a musculo ligamentous strain injury to the lumbar spine. I find this to be the case notwithstanding that Dr Baskaranathan did not find evidence of this approximately 11 months after the accident. In my view it is telling that the day after the accident the plaintiff complained of pain in the lumbar region to her general practitioner, Dr Lau. The plaintiff continues to complain of this pain to date although it is less debilitating than the pain and restriction of movement she suffers in her cervical and thoracic spine. I also accept that the plaintiff suffers headaches, again as a result of her involvement in the accident. I do not find that the plaintiff's pain is neuropathogenic in origin.
Whilst the plaintiff may from time to time experience a mild degree of depression and anxiety relevant to her condition I do not consider the effects of this to be significant nor do I take the view that this particular condition prevents the plaintiff from working.
On the evidence before me I consider it is clear that neither pseudarthrosis nor any pre‑existing degenerative changes from which the plaintiff suffers are in any way causative of her current symptoms and condition. It therefore follows that I do not accept that the plaintiff's complaint of pain in the lumbar spine is a result of any pre‑existing condition including pseudarthrosis. Further there is no evidence which supports the contention that the motor vehicle accident caused any pre‑existing asymptomatic condition suffered by the plaintiff to become symptomatic.
Taking into account all of the evidence, including the medical evidence, it is clear that from a time shortly following the accident up until April 2000 when the plaintiff left the employ of Smith Coffey, her working hours fluctuated between four and six hours per day but were more commonly in the region of four to five hours per day. As at 10 April 2000 Dr Lau considered that the plaintiff was capable of working for four hours per day for the next foreseeable six months and she issued a certificate to that effect. In his report of 24 October 2000 Mr Slinger considered that the plaintiff was capable of working for six hours a day. On the material before me relevant to this issue I find that certainly as from the end of October 2000 the plaintiff was capable of working six hours as distinct from four hours per day and in my view that situation remains current. It may well be that in the future the plaintiff will be capable of working for more than six hours a day if her condition improves, but I consider that to be largely speculative at this point in time.
Loss of amenities and pain and suffering
The injuries suffered by the plaintiff have reduced the range of physical activities which she is now able to undertake and in which she is able to participate both in a social and work environment. I accept the plaintiff's evidence that she suffers pain and discomfort, although the degree and intensity of this varies according to what the plaintiff has been doing and the nature of physical activities in which she has been engaging. I also accept that there have been some changes in the plaintiff's life since she was involved in the motor vehicle accident.
None of the medical practitioners or professional persons whom the plaintiff has consulted and who have reviewed the plaintiff suggest that her condition and her presentation are contrived. Those witnesses vary both in the extent to which they consider the plaintiff is incapacitated and the extent to which they consider the plaintiff can undertake physical activity. The plaintiff continues to take Panamax, and Codalgin in order to control her pain when necessary. She also takes Endep at night and, as I understand it, she also continues to take an anti‑depressant medication.
I accept the plaintiff's evidence that she suffers some stiffness and restriction of movement in her neck, cervical and lumbar region, although the most significant pain she currently suffers is in between her shoulder blades, the upper back and her neck. I do not find, however, that this pain results in extremely severe restriction of the plaintiff's physical movements or her ability to carry out many tasks providing she exercises care. As a result of the pain suffered by the plaintiff, however, she is restricted to a degree in her ability to carry out certain domestic tasks. She is now unable to work in the garden to the same extent as she did prior to the accident, although her husband previously assisted her with the heavy work in the garden in any event. Prior to the accident the plaintiff's husband also assisted her with heavy lifting around the house, although they had a cleaning lady who did basic cleaning once a week. It seems that prior to the accident both the plaintiff and her husband shared a number of domestic tasks including washing and ironing. After the accident the plaintiff had her clothesline lowered so that she could hang out clothing herself. The plaintiff is still able to clean benches and hotplates in her kitchen area, but scrubbing aggravates the pain in her back and neck. The plaintiff does some vacuuming, although she does it in sections at a time and she and her husband share the cooking in the sense that she cooks on the weekends whilst her husband generally does the daily cooking.
I also accept that to a degree the plaintiff's social life has been affected in the sense that she and her husband do not entertain as frequently as they did prior to the accident. Furthermore, the plaintiff is no longer able to enjoy outings on the family boat which was an activity that she enjoyed on occasion prior to her accident. I also accept that the plaintiff's condition and the resulting frustration she feels has at times resulted in friction in her relationship with her husband. Whilst there has been some restriction on the plaintiff's social life as a result of the injuries sustained in the accident, I do not find that restriction to be extensive. Overall I take the view that the plaintiff suffers a degree of pain and discomfort as well as some physical and social restrictions upon her everyday life but the intrusive and restrictive nature of the pain state is variable.
The plaintiff's injuries arose out of a motor vehicle accident which occurred after 1 July 1993. The provisions of s 3C of the Motor Vehicle (Third Party Insurance) Act 1943 govern the amount of damages to be awarded to the plaintiff for non‑pecuniary loss.
Non‑pecuniary loss is defined in the Act to include pain and suffering, loss of amenities of life, loss of enjoyment of life, curtailment of expectation of life and bodily or mental harm. Subsection (2) of s 3C of the Act provides that:
"(2)The amount of damages to be awarded for non‑pecuniary loss is to be a proportion, determined according to the severity of the non‑pecuniary loss, of the maximum amount that may be awarded."
The maximum amount of damages that may be awarded under the Act for non‑pecuniary loss as from 1 July 2001 is set at a figure of $232,000, (Amount "A").
Subsection (3) of s 3C provides as follows:
"(3)The maximum amount of damages that may be awarded for non‑pecuniary loss is Amount A, but the maximum amount may be awarded only in a most extreme case."
Southgate v Waterford (1990) 21 NSWLR 427 is of some assistance in interpreting these provisions. Although the New South Wales legislation considered in that case was in somewhat different terms to s 3C of the Act as it stood at the time that legislation provided that damages for non‑economic loss were only to be awarded in cases where there had been significant impairment of an injured person's quality of life and required the Court to assess the amount of damages to be awarded for non‑economic loss as a proportion, determined according to the severity of the non‑economic loss, of the maximum amount which that legislation permitted to be awarded. In their joint judgment Gleeson CJ, Kirby P and Meagher JA said at 440:
"There are a number of ways by which trial judges could approach the task of apportionment required by s 79(2) and s 79(3). It is important in this case for this Court to mandate any particular way of arriving at the 'proportion' required by s 79(2). But clearly, because the task in hand is that of awarding damages for 'non‑economic loss', it is appropriate for the trial judge to consider and to make findings on those elements in the evidence which are relevant to such loss. This will require the judge to consider and make findings on the evidence relevant to those heads of damage formerly considered in the award of general damages. Then it is necessary for the judge to conceive 'a most extreme case'. Only for such a case may the maximum amount provided by s 79(3) be awarded. The use of the indefinite article 'a' has already been noted. Opinions of what constitute 'a most extreme case' will doubtless vary. But clearly quadriplegia would fall into that class. The amount to be awarded must then be apportioned somewhere between nil and $180,000, but in a ratio which the judge fixes keeping in mind the fact that the cap of a statutory maximum is retained for 'a most extreme case'.'
After canvassing the evidence relevant to the heads of damage which fall within an award of general damages it is then necessary to consider what might be a most extreme case in which the maximum amount of damages, currently standing at $232,000, may be awarded for non‑pecuniary loss, and then apportion damages by comparing the severity of this plaintiff's non‑pecuniary loss with that likely to be suffered in a most extreme case. When the plaintiff's injuries and associated symptoms are compared with the example of what might be regarded as a most extreme case, namely quadriplegia, I find that the plaintiff's initial injuries and symptoms, their progression and treatment, their current status and the effect that they have had on the plaintiff's enjoyment of life puts this situation at 16 per cent of a most extreme case.
As this amount of $37,120 is more than Amount C, namely $35,000, but less than the sum of $46,500 which is the sum of Amount B, being $11,500 and Amount C being $35,000, it is necessary pursuant to s 3C(6) that the amount of damages awarded for non‑pecuniary loss be the excess of the amount so assessed over Amount B minus (amount so assessed minus Amount C) this results in a sum of $27,740 being awarded for non‑pecuniary loss.
Past gratuitous assistance
I consider that the plaintiff has established loss for past gratuitous assistance. The plaintiff impressed me as an independent and strong minded individual and I accept that prior to the accident she and her husband had established a mutually acceptable routine whereby they shared both internal and external household tasks, aided to a small degree by a cleaning woman who carried out a few hours work inside the house each week. Once the plaintiff's husband accepted a redundancy package in approximately September 1999 it was decided between them that as they then only had one income and the plaintiff's husband had additional time available to him to carry out household chores, they would dispense with the services of the cleaning woman. The plaintiff's evidence was that as precisely as she could estimate it her husband probably did a couple of extra hours per week by way of assisting with chores after her accident. Prior to this her husband contributed a good deal to domestic chores such as cooking in any event. The evidence of the plaintiff's husband on this subject was to similar effect and he estimated that since the plaintiff's accident he was spending approximately two to three hours extra per week assisting with household chores. In my opinion two hours per week is a fair assessment of the additional input made by the plaintiff's husband relevant to assisting her in the running of the household.
The award for past gratuitous assistance is therefore:
158 weeks (date of accident to date of trial) x 2 hours x $12 per hour = $3,792.
Plus interest (at 3%) for three years = $341.
Total award for past gratuitous assistance is therefore $4,133.
Future gratuitous assistance
Whilst there is no precise evidence as to exactly how much gratuitous assistance the plaintiff will require over the next 37 years (which I accept is her life expectancy) current indications are that she will require some assistance. It may well be that she will experience some improvement in her physical condition and her pain state may lessen. It is unlikely that she will be able to garden for lengthy periods of time in the future or lift heavy objects. I do not consider it unreasonable in all of the circumstances to take the view that on average her husband will continue to contribute an additional two hours each week to household and gardening chores.
The award for future gratuitous assistance is therefore;
2 hours x $12 per hour x 791.8 (multiplier for 37 years) = $19,003.
Past economic loss
As was observed in Graham v Baker (1961) 106 CLR 340 at 347:
"An injured plaintiff recovers not merely because his earning capacity has been diminished but because the diminution of his earning capacity is or may be productive of financial loss and if, notwithstanding such impairment, both his contract of employment and his right to ordinary wages continue, how can it be said that his impairment has resulted in any loss so far as his earning capacity is concerned?"
On all the evidence before me, I am satisfied that following her accident on 25 May 1998 to the date of trial in June 2001, the plaintiff's injury has been productive of a degree of financial loss.
At the time of the motor vehicle accident the plaintiff's employment at Smith Coffey was for a total salary package of $59,000 per year. This sum, I am informed and I accept, is equivalent to $1,134.62 gross per week. When one takes into account the applicable tax rate between the date of the plaintiff's accident and 30 June 2000 ($373.25 per week) this results in a figure of net average earnings prior to the accident of $761.37 per week. As from 1 July 2000 the applicable tax rate has been $312. This then results in the plaintiff having a net earning capacity as from 1 July 2000 of $822.62 per week.
Dealing with those figures (rounded off) between 25 May 1998 and 30 June 2000 if the plaintiff had not been injured in the accident she would have earned:
$760 net per week x 107 weeks = $81,320.
Between 1 July 2000 and 8 June 2001 but for the accident the plaintiff would have earned the sum of:
$820 net per week x 49 weeks = $40,180.
Therefore but for the accident the plaintiff during the above periods would have earned the sum of $121,500 net.
It is then necessary to examine the plaintiff's actual earnings, exclusive of dividends, for the financial years since her accident:
(i)1999 financial year - $55,979 gross = $1,076.52 gross per week.
Applicable tax $345.15 per week.
Net weekly wage = $731.37.
Annual net earnings = $731.37 x 52 weeks = $38,031.20 net per year.
(ii)2000 financial year - $57,644 gross = $1,108.54 gross per week.
Applicable tax $360.65 per week.
Average net weekly earnings = $747.89 per week.
Average yearly earnings = $747.89 x 52 weeks = $38,890.20.
I accept that between 1 July 2000 and 5 October 2000 the plaintiff received:
(i)Compensation payments of $400.58 gross per week;
(ii)Wages of $400 gross per week;
(iii)Total earnings were therefore (rounded off) $800 gross per week;
Applicable tax on those earnings = $185 per week.
Therefore during this period the plaintiff's earnings were $615 net per week x 13 weeks = $7,995.
I also accept that in the following period, that is from 6 October 2000 to date of trial being 8 June 2001, the plaintiff has received:
$340 net per week and therefore her net earnings over this period equal $340 net per week x 36 weeks = $12,240.
Therefore the plaintiff's total net earnings (inclusive of workers' compensation payments) to 8 June 2001 = $97,156.40.
It follows that the plaintiff's past net loss of earnings (inclusive of workers' compensation payments) for the period from the time of her accident to the time of trial = $121,500 - $97,156.40 = $24,343.
Further the plaintiff has received the sum of $39,907.45 net in weekly workers' compensation payments.
This results in a total past loss of earnings of $64,251.05 net.
When one calculates interest on the sum of $24,343.60 ($64,251.05 - $39,907.45) at 3 per cent (per annum) this results in an amount of $2,190.87.
Accepting as I do that the above figures are correct the total award for past economic loss is therefore $66,442 (rounded up).
Future economic loss
As the plaintiff claims damages for loss of earning capacity, pursuant to Medlin v State Government Insurance Commission (1995) 182 CLR 1 she is obliged to satisfy the Court of two things:
"The first of those requirements is the predictable one that the plaintiff's earning capacity has in fact been diminished by reason of the negligence caused injuries. The second requirement is also predictable once it is appreciated that damages for loss of earning capacity constitute a head of damages for economic loss awarded in addition to general damages for pain, suffering and loss of enjoyment of life. It is that the 'diminution of … earning capacity is or may be productive of financial loss' (Graham v Baker (1961) CLR 340 at 347)."
As was noted by Lord Diplock in Paul v Rendell (1981) 34 ALR 569 at 471:
"… The assessment of economic loss involves the double exercise in the art of prophesying not only what the future holds for the injured plaintiff but also what the future would have held for him if he had not been injured."
Clearly there are inherent difficulties in this exercise as there can be no certainty as to either one of these assessments. In Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 Deane, Gaudron and McHugh JJ in a joint judgment observed at 642 - 643:
"When liability has been established and a common law court has to assess damages, its approach to events that allegedly would have occurred, that cannot now occur, or that allegedly might occur, is different from its approach to events which allegedly have occurred. A common law court determines on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred. Hence, in respect of events which have or have not occurred, damages are assessed on an all or nothing approach. But in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high - 99.9 per cent - or very low - 0.1 per cent. But unless the chance is so low as to be regarded as speculative - say less than 1 per cent - or so high as to be practically certain - say over 99 per cent - the court will take that chance into account in assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability."
In her evidence‑in‑chief the plaintiff was asked about her intention of remaining in the employment of Smith Coffey. She initially said that she would have stayed there for quite some time. When pressed as to when she considered she would retire the plaintiff indicated she had not given this question a great deal of thought but that would probably occur when she was 55 or 60 years of age. She found her employment with Smith Coffey both challenging and interesting and in that sense she gained considerable job satisfaction. On the basis of the comparatively clear evidence from the plaintiff herself at trial I am not prepared to find that the plaintiff would have worked until she was 65 years of age but I do accept that in all probability the plaintiff would have worked until 60 years of age, particularly if she continued to obtain job satisfaction.
It is evident from the previous findings on the evidence that I consider the plaintiff does retain an earning capacity. This has been demonstrated by the fact that even after her accident, despite physical difficulties, the plaintiff continued to work for Smith Coffey for periods varying between four and six hours per day. I accept that when the plaintiff left that employment, although she was hopeful of achieving a working day between 10.00 am and 3.00 pm, that did not eventuate as she was not considered medically fit to work those hours. Thereafter the plaintiff obtained employment in her current position where she has been working four hours per day, or 20 hours a week. The evidence of her current employer, which I accept, is that he is not in a position to offer her an increase in these hours in the foreseeable future. As against this, however, the plaintiff in my view is currently capable of working six hours per day. Relevant to this, however, I consider there is merit in the submission of the plaintiff's counsel that due to the particular nature of her work in the insurance industry (whilst at Smith Coffey) and the way in which her remuneration was structured, there are difficulties in dealing with the issue of future economic loss by simply taking an hourly rate and applying it to the number of hours per day that the plaintiff is physically capable of working.
The plaintiff is 45 years of age and given the finding as to her probable retirement age, there remains 15 years in which the plaintiff will be in the workforce. As a starting point I find the plaintiff's net loss per week is currently:
$820 - $340 = $480 net per week.
On this basis her economic loss to age 60 would be $480 x 521.8 (6% multiplier for 15 years) = $250,464.
That is not the end of the matter, however, as in the circumstances of this case I take the view that there ought to be a discount for contingencies. Currently and into the foreseeable future the plaintiff is physically capable of working for six hours per day in the insurance industry. Those hours are not available to the plaintiff in her current position. It is the case that there is no specific evidence before the Court that there is a job available in the insurance industry for the plaintiff at the current time whereby she could work for six hours per day. She left the employment of Smith Coffey some time ago and so far as I am able to ascertain there is no evidence that a position working for six hours a day in that organisation is currently available to the plaintiff. As against that, however, the plaintiff's working history indicates that she is an ambitious and work orientated individual who in the past has been prepared to move from one position to another within the insurance industry in order to advance her career and obtain job satisfaction. There is a distinct probability that in the future the plaintiff may well seek alternative employment in her chosen career whereby she can work for six hours a day whereby she can obtain greater remuneration in a more challenging position.
One must also take into account negative contingencies such as a possible downturn in the industry and subsequent unemployment or illness unrelated to the plaintiff's current incapacity.
To reflect these contingencies I consider that there ought to be a 15 per cent discount applied to the future economic loss of $250,464 as previously calculated. In all the circumstances I consider this to be an appropriate discount; Kember v Thackrah [2000] WASCA 198 (7 August 2000).
The award for future economic loss is therefore $250,464 - $37,569 = $212,895.
Past and future loss of superannuation benefits
Mr Balson, the principal of William M Mercer and a fellow of the Institute of Actuaries of Australia, was called on behalf of the plaintiff to give evidence as to past and future superannuation benefits. His report of 30 May 2001 was also tendered in evidence, Exhibit P13, and a supplementary report being Exhibit P13B was tendered in evidence. The latter report dealt with three different scenarios relevant to the plaintiff's superannuation entitlements at retirement age 55 years, 60 years and 65 years respectively. The basis of the calculations made by Mr Balson contained a number of assumptions which he elaborated upon in his evidence and a calculation was done from 15 May 2000 from which the period of loss (which Mr Balson understood to be $39,200 per annum) occurred. He confirmed that superannuation calculations are done on the gross taxable salary of an individual.
There was no challenge by the defendant to Mr Balson's evidence and indeed Mr Balson was not cross‑examined by counsel for the defendant. The defendant's position with respect to the plaintiff's claim for past and future loss of superannuation benefits was that the plaintiff had not established any such loss, but in the event that loss was found to have occurred the defendant took no issue with the method of calculating such loss, provided it was on the basis of a pre‑accident salary of $59,000 per annum. In view of the earlier findings I take the view that the loss should be calculated to age 60 years in accordance with the plaintiff's evidence.
During the course of his submissions counsel for the plaintiff referred to Nolan v Hamersley Iron Pty Ltd [2000] WASCA 304 (25 October 2000). In that case the Full Court distinguished Jongen v CSR Ltd & Anor [1992] A Tort Rep 81-192 from the case before them on appeal. In Nolan's case, as in this particular matter, actuarial evidence was before the Court. The report tendered in Nolan's case sought to establish the loss of superannuation benefits by reference to the fund established under the Superannuation Guaranty (Administration) Act 1992, which is also the case in this particular matter. In his reasons Ipp J pointed out that such a fund differed from the fund considered in Jongen's case particularly as the employer contribution rate changes from time to time and other calculations that are required are complex and sophisticated. In this regard his Honour also pointed out that the superannuation fund in Jongen was a private fund and that the calculations required to assess the loss of benefits under the two funds are vastly different because the funds are differently constituted and operate subject to different conditions. Having said this, his Honour noted at par 40 of his judgment that the basic policy enunciated in Jongen's case has generally been regarded as appropriate and was therefore not the subject of any criticism by his Honour. It was observed, however, that the application of that policy depends on the conditions governing the fund in question and for that reason no particular rule can be laid down as to the extent of evidence required to prove loss of superannuation benefits. Each case has to be determined by reference to the particular fund in question, bearing in mind the desirability of maintaining a simple approach and avoiding unnecessary expert testimony.
The contents of Mr Balson's report were detailed and obviously carefully considered. As previously stated neither Mr Balson's report nor his oral evidence were the subject of challenge or criticism on behalf of the defendant nor was it suggested that the contents of the report were incorrect or based on wrong principles. I accept that the report calculates the loss of the plaintiff's superannuation benefits in a comprehensive and accurate manner.
In the course of his judgment in Nolan's case Ipp J noted the overall loss of superannuation benefits represents the present value of that loss. His Honour said that no submissions had been made by either counsel as to whether the whole or part of that sum should be reduced by the same amount that was applied to the discount for contingencies in that case, being 15 per cent (reduced from 40 per cent on appeal). Although this aspect of the matter was touched upon only briefly with counsel for the plaintiff in the course of his submissions, it seems to me that in order to be consistent with the discount applied in relation to future economic loss there ought to be a discount of 15 per cent applied to the agreed amount of past and future loss of superannuation benefits to age 60 being $33,017.
Therefore the loss of past and future superannuation benefits should be assessed in the following manner;
$33,017 - $4,952 (15% discount) = $28,065.
The Fox v Woodcomponent
The defendant agrees that this component is $8,471.65 but argues that the plaintiff has not established an entitlement to this amount. On the basis of the findings in this judgment clearly such an entitlement has been established. Upon receipt of judgment a plaintiff must repay, or have deducted, the gross amount of payments of compensation received. The plaintiff will therefore be out of pocket to the extent that she has tax on the workers' compensation payments, and this tax is recoverable as an item of special damages in a common law damages award pursuant to Fox v Wood (1981) 148 CLR 438. The plaintiff accepts workers' compensation in mitigation of the plaintiff's loss and the tax liability is a necessary cost of accepting the payments.
Past medical expenses
A figure of $14,496.47 has been agreed by the parties relevant to the plaintiff's past medical expenses. Whilst the defendant agrees that the plaintiff has attended before the relevant medical practitioners it contends that the plaintiff is not entitled to any other past medical expenses including physiotherapy treatment. Given the findings in this judgment I do not accept this submission. As I understand it, the claim for past medical expenses is limited to this amount and so there will be an award for this component of the claim in the sum of $14,496.47.
Past rehabilitation expenses
Again the parties have agreed that the sum of $5,911.77 has been paid relevant to past rehabilitation expenses. Notwithstanding this the defendant does not agree that the plaintiff is entitled to any of that amount. Having found that the plaintiff's injuries and consequent incapacity resulted directly from the motor vehicle accident in which she was involved and being further of the view that the past rehabilitation expenses were incurred as a necessity by way of appropriate treatment of the plaintiff, there will be an award of $5,911.77 for past rehabilitation expenses.
Future medical expenses
The plaintiff gave evidence that when she was in great difficulty and pain in the past, she was undergoing physiotherapy on average once per month at the cost of $34 per treatment. In the end result physiotherapy did not seem to be of great assistance in easing the plaintiff's condition and by early 2000 she had ceased undergoing physiotherapy. Dr Quintner was of the view that physiotherapy is no longer required as there was no evidence as it would produce a positive outcome. Mr Brash considered that the plaintiff did not require physiotherapy in the future, although Dr Rosenthal believed that physiotherapy may be of some temporary benefit from time to time. Dr Baskaranathan considered that the plaintiff did not require ongoing physiotherapy or indeed chiropractic treatment as he did not believe it would assist the plaintiff.
In all the circumstances I am not prepared to accept that in the future the plaintiff will require physiotherapy on average once a month, but it may well be that from time to time, if she is experiencing particular difficulty or pain, a physiotherapy session may provide some temporary relief. It is simply not possible to calculate the cost of such treatment with any degree of acceptable precision. Taking this and associated contingencies into account, I consider that a global sum of $2,000 should be awarded for this aspect of the plaintiff's claim for future medical expenses.
Currently the plaintiff takes six Panamax tablets, two Codalgin tablets and one Endep tablet per day. Although a number of the medical practitioners indicated that the plaintiff would need to continue to take medication in the future, the evidence as to the exact quantity of medication that would be required and for how long it would need to be taken was somewhat imprecise. The plaintiff herself has been resistant to increasing her drug intake and no doubt, if at all possible, she would prefer to reduce that intake over time in the future. Again, due to the lack of precise and detailed evidence regarding this aspect of the claim I consider it more appropriate to make a global award to take into account the costs of the use of medication in the future. In my view a global award of $4,000 is again appropriate to cater for this aspect of the claim. The total award for future medical expenses is therefore $6,000.
Past and future travelling expenses
These are agreed by the parties in the sum of $750 and an award is made in that amount.
Summary of award
Pain and suffering and loss of amenities $ 27,740.00
Past gratuitous assistance $ 4,133.00
Future gratuitous assistance $ 19,003.00
Past economic loss $ 66,442.00
Future economic loss $212,895.00
Fox v Wood component $ 8,471.65
Past and future loss of superannuation benefits $ 28,065.00
Past medical expenses $ 14,496.47
Past rehabilitation expenses $ 5,911.77
Future medical expenses $ 6,000.00
Past and future travelling expenses $ 750.00
$393,908.00
(rounded up to nearest dollar).
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