Nyssen v Foy - [2000] WADC 210

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: NYSSEN -v- FOY [2000] WADC 210

CORAM: GROVES DCJ

HEARD: 14-16 FEBRUARY 2000

DELIVERED : 18 AUGUST 2000

FILE NO/S: CIV 1291 of 1998

BETWEEN: LYNDA ANNE NYSSEN
Plaintiff
AND
SIMON PATRICK FOY
Defendant

Catchwords:

Damages - Assessment - Personal injuries - Rear end collision - Minor residual symptoms to lumbar spine - Health Club membership - 40 year old receptionist not working at time of accident - No award for non-pecuniary loss

Legislation:

Motor Vehicle (Third Party Insurance) Amendment Act 1994, s 3C(3) and s 3C(4)

Result:

No damages for non-pecuniary loss. Special damages $107.15. Future medical expenses $439.02

Representation:

Counsel:

Plaintiff: Mr G Stubbs
Defendant: Mr J P T Olivier

Solicitors:

Plaintiff: Dwyer Durack
Defendant: Talbot & Olivier

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

Southgate v Waterford (1990) 21 NSWLR 427
Wylde v Aristondo 'Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997

Case(s) also cited:

Nil

GROVES DCJ: The plaintiff claims damages from the defendant for injuries suffered in a motor vehicle accident on 13 December 1996. Liability is admitted and the matter proceeded by way of an assessment of damages.

Pre‑accident history

The plaintiff was born on 28 November 1957. She was educated at Belmont Senior High School where she left at year 11. Thereafter she was employed for approximately 2 years with Home Building Society as a mailing clerk/typist. She was then employed for approximately 7 years up to October 1982 as a clerk/receptionist with the Builders Registration Board. She married on 14 February 1976. There are three children of the relationship the youngest being a daughter Taylor born on 30 April 1992. The plaintiff did not engage in any remunerative employment from October 1982 up to the date of her motor vehicle accident the subject of this claim. She did however assist her husband in running a karate training business to the extent that she did the paperwork and bookwork. It was her evidence however that she did intend to return to the work force part‑time when her youngest child was at school full time. The daughter Taylor was due to commence full time kindergarten in March of 1997. The plaintiff had always been in good health, she had no limitations insofar as household tasks were concerned, she exercised regularly by walking and working out in her home gymnasium twice per week, played social volleyball, enjoyed hobbies of sewing and arts and crafts and enjoyed an active personal relationship with her husband without limitation.

The accident

On Friday 13 December 1996 the plaintiff was driving her Toyota Corolla Sedan. Her daughter was a passenger with her. Whilst travelling on Marmion Avenue at Craigie a motor vehicle driven by the defendant collided into the rear of the plaintiff's vehicle. The force of the impact propelled the plaintiff's vehicle forward and into the rear of a vehicle in front of her. The plaintiff was thrown forward in her seat as a result of the force of the impact and then back into the back of her seat with such force that the back of the seat collapsed. The impact rear and front effectively concertinaed her vehicle with the result that none of the doors would open and she was trapped inside for approximately half an hour before being released. She was initially in a state of shock but stayed calm awaiting her release. She started to feel pain at the top right hand side of her forehead and in the centre of her chest. Approximately an hour after the impact whilst she was giving a statement to police she felt pain commence in her neck and shoulder region.

Post accident - plaintiff's evidence

Following the accident she saw Dr Kathryn Henry at the Edgewater Medical Centre. Over the weekend she experienced a stiffening up of and pain in the neck and back as well as headaches. She did as little as possible over that weekend and went back to the doctor on the Monday complaining that her symptoms had worsened. She was not able to undertake her usual household duties, her Christmas was spoiled as a consequence of the injuries and she found she was no longer able to lift and carry her young daughter. Her vehicle was a write‑off and there was the inconvenience of not having a vehicle over the summer school holiday period. She was referred to physiotherapy which assisted with temporary relief of the back pain and she also went to hydrotherapy after a couple of months. She took Panadol and anti‑inflammatories to relieve the pain. It was not for approximately 3 months that she was able to recommence her household duties. For that period her husband had been doing the housework and her father had assisted her with shopping.
It was her evidence that the initial head pain and chest pain which she experienced dissipated over the weekend after the accident. The headaches became less frequent over that period of time. She was not able to assist her husband in the garden. It was some time before she could drive again as she had some restriction in turning her neck fully to the left and long trips aggravated her lower back and shoulder area. Her husband's karate business took a break over the Christmas/January period. When it recommenced in February the plaintiff found that she needed to take a break after about 15 minutes sitting at the computer so as to relieve pain in her back and neck. She continued with hydrotherapy until May 1997 and with exercises to strengthen the muscles around her low back.
Between 4 March 1997 and 30 June 1997 the plaintiff made 22 job applications for part‑time clerical/receptionist positions. She felt at that time as she acknowledged in cross‑examination that she was fit enough to do the work involved in the types of jobs for which she was applying. She gained part‑time employment with Activ Foundation (Activ). She was employed with Activ from 23 June 1997 to 24 July 1997. She worked as a receptionist at Activ's front desk. In answers to interrogatories she described the nature of her duties as follows:
"As the receptionist I answered incoming calls and transferred them to the appropriate person, maintained the boardroom and car bookings register and receipted cash."
She worked part‑time 4¼ hours daily Monday through Friday. It was her evidence that she was expected to be seated there for the whole of her shift by the end of which time her back would be very painful. She said she was not able to stand up and move about from time to time so as to relieve the pain. In tendering her resignation to her employer she stated:
"My reasons for leaving are mainly because I only want a permanent part‑time position that gives me flexibility in moving around the office and not being restrained in one area for 4 hours with no relief which puts a strain on my back. Also this job requires me to relieve Joanne full time for sick and annual leave.
After discussing at great length with my doctor and husband I feel I cannot commit myself to this job fully and would be unable to do full time as this would put too much strain on my back and interfere in my family life."
It was her evidence that since resigning her position with Activ she had not sought employment save for two applications which she made in the month leading up to trial because she felt that the difficulty which she was having in the home environment demonstrated that she would not be able to do the work expected of her in any role similar to that which she held at Activ. She said that she left it for a period to allow her injuries to subside and that as her husband was working at a higher level in his employment and thereby earning higher wages she could afford not to go back to work until she got completely better. Since leaving Activ her condition has gradually improved and she is better in warmer weather than cold. She avoids doing anything which may aggravate her back, when she was doing work on the computer at home she was able to get up and move about when she felt pain and when she does have pain that can be relieved with massage by her husband using Voltaren gel or by taking Panadol. She complains of having put on weight since the accident because she has not maintained her pre‑accident exercise/fitness programme and her personal relationship with her husband has diminished because of the physical restraints brought about as a consequence of the accident. If she is sitting for any length of time she will experience pain symptoms in the neck and lower back. In January 1998 she was referred to Dr Watson who advised her to exercise and swim so as to build up the muscles in the back and neck. She had the facility to do this at home by utilising the home gymnasium and by swimming in the home swimming pool.
On 28 October 1998 she signed up for a 26 month membership of BC the Body Club at Joondalup for a membership fee of $1114. On the same date she also signed up for 30 sessions with a personal trainer at a cost of $1500. She attended with the personal trainer two times per week for 15 weeks and used the gymnasium approximately on two other occasions per week. The personal trainer she said got her into a routine of exercises. She did feel some improvement in her condition whilst she was undertaking the training regime. After a break of some months in 1999 she returned to the Body Club and continued with a weights programme and water aerobics which provided relief to her. Her accident related disabilities continued to improve with the passage of time. Her evidence was that her current problems involve the onset of pain in her neck and back if she is seated for any length of time either in a vehicle or at a computer. She avoids unnecessary bending or lifting of any heavy items. Since the accident she has not participated in volleyball and she does not now sit and sew to the extent that she was able to pre‑accident. To relieve the pain in her lower back she would press her fist into the back to put pressure on that spot which she finds relieves the pain.

Supporting evidence

The plaintiff's father, John Montague Taylor, gave evidence that following the accident he would travel to his daughter's place each second Thursday for the purpose of taking her to the supermarket for shopping. He pushed the trolley around the supermarket, picked up items from the lower shelves, checked the items through the checkout and loaded them up, took them to her home where he unloaded the shopping and put things away. This continued through until approximately April 1997.
The plaintiff's husband, William Adrian Nyssen gave evidence that for approximately 3 months after the accident he did a couple of hours housework each week to assist the plaintiff. The karate business which he conducted was an extra curricular activity outside his main employment and he confirmed that the plaintiff did the paperwork and maintained all his student records on computer. He also confirmed that their physical relationship had diminished since the accident, his wife had put on weight and her temperament had changed in that she was not as tolerant and stressed out more frequently than she had previously done. He closed down his martial arts business in mid 1999 apparently because of a lack of membership.

Medical evidence

The plaintiff attended on general practitioner Dr Kathryn Henry at Edgewater Medical Centre on the day of the accident. Dr Henry diagnosed a soft tissue whiplash injury to the neck and prescribed an anti‑inflammatory gel with local heat. The plaintiff was reviewed three days later when she complained that her symptoms of neck stiffness and headaches had worsened. An oral anti‑inflammatory was commenced and she was referred for physiotherapy. By the end of February 1997 progress with physiotherapy and with hydrotherapy which had eased the plaintiff's thoracic symptoms was regarded as good and Dr Henry anticipated that with further treatment over the ensuing one or two months that the plaintiff would make a full recovery. In May 1997 the plaintiff indicated to her that she had improved by 50 per cent since her initial injury. Treatment then was not providing the level of relief of symptoms as she had initially achieved. The relief of her symptoms had plateaued to the point where physiotherapy was discontinued. Dr Henry described the plaintiff's initial injury as a moderate/severe soft tissue neck and lumbar spine injury.
Dr Henry reviewed the plaintiff again on 14 July 1997. The plaintiff was working part‑time at Activ at that time. In her report to the State Government Insurance Commission of 18 September 1997 Dr Henry noted:
"Mrs Nyssen reported that prior to her visit of July 14th she had experienced an exacerbation of her symptoms of lumbar and neck pain with the onset of the colder weather and possibly whilst driving her manual car. She has not experienced any aggravating fall or other event which may have contributed to her symptoms. This had necessitated her recommencement of anti‑inflammatory medication on a regular basis…"
Significant in that report is that there was no mention of complaint by the plaintiff that prolonged sitting at her work at Activ had aggravated her symptoms. When she was subsequently reviewed by Dr Henry on 8 September 1997 the report notes that on that occasion the plaintiff reported aggravation of symptoms at work and that she had ceased employment.
It transpired in the course of cross‑examination of Dr Henry that on 14 July, which was two days before the plaintiff tendered her resignation to Activ, Dr Henry provided a letter to the plaintiff addressed "To Whom It May Concern". A carbon copy of the letter was produced by Dr Henry from her file. Discovery was not given by the plaintiff of that letter and as the defence were not aware of it until that stage of trial they had no opportunity to cross‑examine the plaintiff on it. That letter states:
"This lady was involved in a motor vehicle accident last year resulting in significant soft tissue pain in her neck and lumbar spine.
At this point in time if Mrs Nyssen were to be considered for increased working hours as a receptionist allowance should be made to provide frequent breaks every half hour or so in order that her back not stiffen up too considerably."
Again this letter is significant for what it does not say in that there is no mention that the plaintiff was debilitated by her symptoms from undertaking the part‑time work in which she was engaged at Activ. I will comment on this aspect later in these reasons.
Upon review on 17 November 1997 the plaintiff was still complaining of stiffness. On examination she had a full range of spinal movement but pain on full flexion and lateral flexion. Dr Henry did not consider that the plaintiff required regular treatment in the form of physiotherapy. Anti‑inflammatory medication would be sufficient for mild relief of any symptoms. The plaintiff was subsequently reviewed by Dr Henry on 12 January 1998, 7 August 1998 and 24 May 1999. In her report to the plaintiff's solicitors of 28 May 1999 she noted that the plaintiff reported substantial improvement after regularly attending a gymnasium and water aerobics. In general her neck and back caused negligible problem. Occasional stiffness following prolonged periods after shopping or driving were infrequent. Examination demonstrated only a minor tenderness across the left trapezius region and a slightly reduced cervical flexion. Otherwise all movements of neck and lumbar were full and pain free.
In cross‑examination Dr Henry made the point that membership of a commercial gymnasium might provide the motivation for a person to undertake a programme of exercises to strengthen muscles in the back and neck and reduce weight. However she did concede that a person taught the basic exercises and with the facilities at home could just as easily undertake an appropriate exercise regime without the necessity to join a commercial gymnasium let alone utilise the services of a personal trainer. In her opinion it would have been sufficient in the plaintiff's circumstances to have received basic instruction from the physiotherapist on whom the plaintiff had been attending for basic exercise instruction. Likewise water aerobic exercises could be undertaken in a home pool. She agreed that for the plaintiff membership of a commercial gym and to have a personal trainer was "over the top".
As to the letter dated 14 July 1997, Dr Henry in cross‑examination said that she had written it at the request of the plaintiff during the consultation of that date. What was written was said expressly upon the plaintiff's request. The context of the letter suggested to Dr Henry that the plaintiff at that time was considering increasing her working hours. She agreed that the letter would not have been written if the plaintiff were considering reducing her working hours or leaving her job altogether. It was her evidence that the plaintiff "…had felt that there was pressure on her to do more hours at that work she had been in but she felt that she wouldn't be able to handle it in the current state that she was in unless there was some provisos." It was apparently not the case that the plaintiff was complaining that she was having difficulty with the hours and conditions in which she was working. Rather she was concerned about working longer hours.
Dr Henry acknowledged that her assessment of tenderness and pain were based on information provided to her by the plaintiff. She did not consider that the plaintiff was inclined to exaggerate her symptoms. So far as physical or clinical signs of discomfort there was little to report on. The plaintiff was very supple in her lumbar spine and never had any restriction in movement of it. Restriction of movement in the neck was relatively modest and there was some tenderness in the neck and lumbar spine but of a diffuse nature. There was no evidence of muscle spasm or any other physical signs indicating the sort of discomfort which the plaintiff complained of. Her report of 29 May 1997 contemplated alternative treatments meaning medication with the provision possibly for an exercise programme, a constructed gym programme initially supervised by a physiotherapist and a little bit of swimming and hydrotherapy ‑ the sort of programme after initial instruction which she could undertake at home if she had the facilities of a gymnasium and swimming pool.
The plaintiff was referred by her solicitors to Prof Andrew Harper, an occupational physician. He reviewed the plaintiff on 16 June 1998. He took a history from the plaintiff and reviewed a radiologist's report (although he did not recall seeing the x‑ray) and undertook a physical examination. He reported that her lower back power, reflexes and sensation in her legs was normal, range of low back movement was within normal limits and range of shoulder and neck movement was normal. Examination of the arms revealed no abnormality and grip strength bilaterally was within normal limits. He also noted some tenderness over the upper sacrum and lumbar spinous processes L4 and 5 and some mild tenderness across the cervico thoracic junction and over the spinous processes of C5, 6 and 7. His diagnosis was that of mild whiplash injury to the neck and lower back. He did not consider that the plaintiff was totally incapacitated as a receptionist. In his opinion she was capable of part‑time work with restrictions. It was his assessment that she had a 5 per cent permanent disability of the thoraco lumbar spine. His advice regarding treatment was for her to increase her activity and exercising level to strengthen muscle groups in both shoulders and neck as well as in her lower back and abdomen. Weight loss would be of benefit. He did not consider her disability would compromise the duration of her working career.

Prof Harper reviewed the plaintiff again on 3 August 1999. On physical examination there was no change. He felt that the plaintiff was capable of up to 25 hours work per week with restrictions to avoid prolonged sitting and prolonged standing, repetitive bending and heavy lifting. His assessment on this occasion was of permanent disability of the thoraco lumbar spine of 5‑10 per cent loss of effective function with between 2½ and 5 per cent loss of effective function of the cervical spine. Prof Harper's explanation for the increased percentage disability was that as the plaintiff's symptoms had persisted in the 14 months between the two assessments the likelihood of ongoing disability was probably greater. He had reviewed the x‑ray findings and took heed of the mild degenerative changes in the neck affecting facet joints. As to the thoraco lumbar spine he gave further consideration to the radiographic finding of a possible pars defect and the impact of everyday activities and the likely permanent disability which would influence the plaintiff's tolerance of everyday activities.
He considered that the mainstay of long term treatment would be exercise, the most important being strengthening exercises for the abdomen and lower back for purposes of adding stability to the lower back. For people with some predisposition to back pain these exercises should be maintained in the long term. Generally the exercise should include aerobic exercise to help cardiopulmonary fitness, general muscle movement and coordination and also contributes to the person's quality of life. Prof Harper was of the view that the benefit of a commercial gymnasium was that one can get supervision and it is a more structured environment. Whilst he considered a personal trainer would be useful it would usually be his recommendation that a physiotherapist be involved and that should be a physiotherapist who has had involvement with people with injuries and understands the underlying pathology. A personal trainer may not have that level of understanding. He also considered that occasional attendances upon a family doctor and occasional use of medication, eg Voltaren gel and Panadol, may be called for.
Prof Harper was cross‑examined as to his assessment of the plaintiff's disability. He acknowledged that from the x‑ray report the only indication of abnormality in the lumbar spine was the possibility of a pars defect, however the report was not conclusive that there was in fact a pars defect. Even if there was it would be a matter of conjecture as to whether or not it may have been accident related. In light of that the basis for the increased assessment of disability is hardly credible.
Prof Harper agreed that upon his physical examination physical signs were minimal. A slight tenderness of the neck was all that he found. His first report did not indicate any disability in the neck. His explanation for that was that at that time he was not convinced that the plaintiff was going to have any ongoing disability of the neck. That report concludes that he did not anticipate the injury compromising the duration of her working career meaning that he was not anticipating deterioration in her condition. Prof Harper indicated that review of a patient would usually take 45 minutes to an hour. He acknowledged that over that duration he had not observed any impediment to the plaintiff's movement in either the neck or the low back. It is to be recalled that it was the plaintiff's evidence that her symptoms were gradually improving over time. That is, between 16 June 1998 and 3 August 1999, being the first and second examinations by Prof Harper, her condition had improved. In contradiction of that Prof Harper's assessment was that the disability had increased over that period of time. His explanation when pressed was to the effect that although her symptoms have made improvement she continues to have restrictions in terms of her activities in life and that is what he has endeavoured to address in his assessment. He was not willing to concede that as the symptoms ameliorate then so her disability reduces. Again, and with due respect to Prof Harper, I do not consider that proposition as being at all credible especially given the plaintiff's evidence as to the level of improvement over that period of time.
Prof Harper considered that with guidance from a competent physiotherapist the plaintiff could have been provided with a number of exercises, overseen by the physiotherapist for a short time to make sure that she does them properly and could then have continued doing them at her home. He considered it entirely appropriate that any person working in a sedentary occupation, either at a computer or as a receptionist, should make the opportunity to get up and walk around and stretch and move a bit, at least every 30 to 40 minutes. He said it would be an unusual situation where that was not possible in any work place.
In each report Prof Harper says that "on examination she was in no distress". The sort of distress he was there referring to is the patient complaining of pain, holding their back, standing up and walking around to get comfortable, etc. When he saw the plaintiff she was at ease, comfortable and did not demonstrate any of those sort of movements during the course of his examination.
The plaintiff was referred by Dr Henry to the Wanneroo Physiotherapy Centre where she first attended on 16 December 1996. She attended twice weekly for physiotherapy during December 1996 and January1997 and in February and March continued with hydrotherapy weekly. She attended on April 1 1997 for physiotherapy and in May on four occasions for hydrotherapy and once for physiotherapy. There was a break then until August and September 1997 when she attended weekly for physiotherapy. She did not then attend until August 1998 through to October 1998 when she attended for physiotherapy on seven occasions. The plaintiff has not attended for physiotherapy since October 1998.
Her physiotherapist Ms Kerry Feighan gave evidence that her treatment of the plaintiff comprised an integrated approach of local soft tissue treatments to the cervical thoracic and lumbar segments coupled with stability exercises to the lumbar spine and hydrotherapy exercises. It was Ms Feighan's evidence that any physiotherapy treatment in the future was partially dependent on life style and client self management. By "client self management" she was saying basically an appropriate exercise regime which in the plaintiff's case involved stability exercises focusing on the abdominal structuring and the back musculature. In cross‑examination she acknowledged that with direction from a physiotherapist a programme of exercises could be undertaken at home and that it was not necessary to attend a commercial gymnasium or have a personal trainer if compliance was not a problem. By that she was saying that if there was no motivation the patient was not likely to undertake an exercise programme in the home environment whereas an attendance at a gymnasium under supervision would ensure compliance. She said that there was no indication that the plaintiff would be unable to comply with an exercise programme at home. She agreed that if compliance was not a problem then the exercises could be undertaken at home and as much as might be needed was the occasional consultation with a physiotherapist at $45 per time every couple of months to ensure compliance and to upgrade the exercise programme.
Mr Peter Watson, a consultant neurosurgeon, was called on behalf of the defendant. The plaintiff had been referred to him by her general practitioner, Dr Henry. Mr Watson first saw the plaintiff on 16 January 1998 when he took a history from the plaintiff and made an examination. His report to Dr Henry dated 16 January 1998 notes that:
"She has undergone a conservative programme with physiotherapy and anti‑inflammatory medication. There has been some slow and gradual improvement although she still has significant ongoing symptoms in the paraspinal muscles."
On examination he noted some tenderness in the lower cervical spine at C6/7 but a normal and full range of cervical and lumbar spine movement. He concluded that the plaintiff's symptoms were largely soft tissue and ligamentous and that the appropriate treatment had been undertaken. He recommended that the plaintiff consider a swimming programme as she was putting in a pool at home. The purpose of the swimming programme was to exercise and mobilise the muscles of the cervical spine and the lumbar spine which he felt was sufficient exercise given the nature of her injuries at that time. He did not consider that a gymnasium programme instead of swimming was needed. He was of opinion that a commercial gymnasium with the services of a personal trainer was excessive. He considered that her physiotherapist could give her guidance on an exercise programme and that in combination with the swimming would have been sufficient.
The plaintiff was reviewed by Mr Watson again on 20 August 1999. On that occasion he discussed with her a self managed exercise programme and although he mentioned membership of a health club he acknowledged that such programme did not necessarily have to be in a gymnasium. He considered that an exercise programme at home which she could self‑manage together with swimming at a local pool would have been adequate treatment for the plaintiff. It was his opinion that for about 18 months after the accident the plaintiff would have been unable to work as a secretary but following that he would have reasonably expected her to have gradually increased working hours. By the time of his review on 20 August 1999 he considered she could work full time. He was of opinion that a likely permanent disability would be at most 5 per cent disability of her lumbar spine. He did not consider that there was any permanent disability of the cervical spine. As to future treatment he considered her own self‑managed exercise and strengthening programme would be appropriate. As to medical or pharmaceutical requirements he considered that the costs of future treatment would not be likely to exceed $500 on the basis that any such requirements would not extend beyond about 12 months.
In cross‑examination he emphatically disagreed that the permanent disability could be in the range of 5‑10 per cent. He believed that it was "at most 5 per cent". As to the cervical spine he considered it unlikely that she would have ongoing symptoms of a permanent nature. Hence he did not consider that there was any permanent disability to which a percentage could be attached. He did acknowledge that there were restrictions on her employability in that long periods of sitting would aggravate her lower back and she would thus require to get up and walk around about every half hour and further that repetitive bending and lifting of heavy items should be avoided. In his view anyone in a sedentary occupation should get up and walk around at regular intervals.
The defence also called Dr John Rosenthal, a rehabilitation physician. He reviewed the plaintiff on two occasions. On 19 May 1998 he took a general history and conducted a physical examination. There was slight tenderness over the left sacroiliac joint and she had full range of cervical and lumbar movement. His diagnosis was of soft tissue neck and lower back strain. He considered that she was fit to work full time as a receptionist and that further treatment was simply a structured exercise programme including swimming in a temperature controlled pool. He reviewed the plaintiff again on 8 October 1999. He noted that the plaintiff complained of low back ache which she says was aggravated by prolonged sitting with activities such as computing, sewing and driving for long distances. He acknowledged that there was some residual symptoms of the motor vehicle accident induced soft tissue strain which he regarded as mild as evidenced by the full range of movement on clinical examination and the plaintiff's non‑requirement for even mild analgesic medication on a regular basis. He recommended compliance with a regular fitness programme. He considered she was fit to work full time as a secretary/receptionist.
As to an exercise programme he considered that a few instructional sessions with a physiotherapist would be appropriate. He was not of opinion that it required attendance at a commercial gymnasium.
In cross‑examination Dr Rosenthal agreed with Dr Harper's conclusion as to diagnosis of a mild whiplash injury to the neck and lower back. He confirmed that she presented consistently, ie her response to clinical examination appeared genuine and honest and there were no inconsistencies between subjective complaints and the objective findings. He agreed also that there was some permanency of low grade subjective symptomatology. When pressed he agreed with an assessment of 5 per cent permanent disability of the thorocolumbar spine. As to the cervical spine he did not consider there was any ongoing low order discomfort, however if there were permanent low grade symptomatology, he would infer a disability of 2½ to 5 per cent. He agreed that the prescription of exercise was the most important part of the healing process for this sort of injury. Possibly three or four sessions with a physiotherapist would be necessary for early guidance. He agreed that the use of Voltaren gel would be an appropriate medication for flare‑ups and the use of Panadol for pain relief would also be appropriate. He did not consider that there need be any restriction on the plaintiff's employment as a receptionist/secretary on the basis that she would have the opportunity to take breaks and get up and move around and that would be sufficient to stretch her back. He conceded that she may experience some mild discomfort and stiffness which she could alleviate by getting up and moving around. He agreed that she should avoid repetitive bending and heavy lifting. Dr Rosenthal acknowledged that for the first 6 months post accident she would have had ongoing symptomatology/pain. Up to 18 months the symptoms would have been continually improving. When he saw her on the first occasion there was a clear pattern of improvement. As to mention in the x‑ray report of possible pars defect at L5 he was not of opinion that it was accident related. He described it as a developmental anomaly that usually develops in childhood.

General Damages

The plaintiff is entitled to general damages for the accident itself and for the consequent pain, inconvenience and other matters generally referred to as the loss of amenities.
The award of damages for loss of enjoyment of life and amenities requires a consideration of s3C of the Motor Vehicle (Third Party Insurance) Amendment Act 1994 ("the Act"). This section imposes limitations upon an award of damages for non-pecuniary loss and it applies to the present case. Section 3C(3) provides that the maximum amount of damages that may be awarded for non-pecuniary loss is, at the present time, $219,000 and that that amount may be awarded "only in a most extreme" case.
In Wylde v Aristondo 'Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997, the court adopted the same approach to the Act as the New South Wales Court of Appeal did to the Motor Accidents Act 1988 (NSW).
In Southgate v Waterford (1990) 21 NSWLR 427 at 440 the court said:
"There are a number of ways by which trial judges could approach the task of apportionment required by s79(2) and s79(3). It is inappropriate in this case for this Court to mandate any particular way of arriving at the 'proportion' required by s79(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 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 s79(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'."
It is necessary that I make findings of fact consistent with my assessment of the evidence which has been adduced. Accordingly I find that the plaintiff did suffer physical injury as a consequence of the motor vehicle accident in which she was involved on 13 December 1996. Dr Henry diagnosed a moderate/severe soft tissue neck and lumbar spine injury. Prof Harper's diagnosis was of a mild whiplash injury to the neck and lower back. Dr Rosenthal's diagnosis also was of a mild whiplash injury. The consensus of medical evidence therefore is that the plaintiff suffered a mild/moderate whiplash type injury. I accept that. I also accept that she initially felt neck and shoulder pain and over the next few days the symptoms in her neck, shoulder and back worsened to severe with restriction of movement and headaches. With medication initially and physiotherapy and hydrotherapy following the symptoms eased, however for at least three months she was restricted in undertaking the household domestic activities, in attending to shopping, driving, gardening and the like and the quality of her physical relationship with her husband was diminished. To sit for any length of time, to sew or to work at the computer caused pain and stiffness in her back and neck. By May 1997 the plaintiff indicated to Dr Henry that she considered that she was 50 per cent recovered. In March 1997 she had commenced applying for part‑time jobs. She felt then that she was sufficiently recovered to undertake the type of jobs for which she was then applying. She commenced employment part‑time with Activ in June 1997 but that only lasted for one month. The plaintiff says that she left mainly because of her back playing up and giving her pain. I will comment further on this in dealing with the claim for economic loss.
Since that time she says there has been gradual improvement. There have been occasional exacerbations or flare‑ups which required further physiotherapy or anti‑inflammatory medication for pain relief.
I accept that as a consequence of the accident related injuries her quality of life, insofar as her ability to engage in pre‑accident activities, was diminished and that her social, family and personal life was disrupted and that she was greatly inconvenienced thereby.
At trial she complained that she still has occasional discomfort in the lower back and neck. This is generally brought on if she sits for prolonged periods at the computer but can be alleviated by taking regular breaks, standing up and moving about. In the course of giving her evidence I observed her to be sitting straight backed without sitting back against the back of her chair. From time to time she put both hands behind her back and appeared to apply pressure to each side of her lower back as though to relieve some discomfort. She also stood from time to time. This conduct does not appear consistent with the observations made by Prof Harper where in each of his reports to which I have alluded earlier he noted that "on examination she was in no distress". I have earlier detailed his meaning of this expression. Having regard to that and to the medical assessments which follow I conclude that the plaintiff was given to some exaggeration of her symptoms, the progress of her recovery and the extent to which she claims to have been debilitated.

As to the extent of present disability there is substantial consensus between the medical experts. Prof Harper in his initial report assessed a 5 per cent permanent disability of the thoraco‑lumbar spine. For the reasons earlier expressed I reject his later assessment of a greater disability and also the loss of effective function of the cervical spine. Mr Watson assessed a likely permanent disability of the lumbar spine to be at most 5 per cent. He did not consider that there was any permanent disability of the cervical spine. Dr Rosenthal was pressed to agree on 5 per cent permanent disability of the thoraco‑lumbar spine. He was also pressed to infer a disability of 2½‑5 per cent of the cervical spine "if there were permanent low grade symptomatology". However he did not consider there was any ongoing low order discomfort. In total therefore I find that the plaintiff whilst having a full range of movement nevertheless has some residual symptoms which will be the cause of occasional mild discomfort and stiffness. Such discomfort will be relieved by medication of the type which she has been taking in the past. The extent of likely permanent disability of the thoraco‑lumbar spine is no more than 5 per cent.
The legislation requires me to assess general damages by relating the plaintiff's case to a most extreme case. To do this I have considered the plaintiff's physical injuries, the discomfort which she has endured and her prognosis. I cannot base my consideration of her physical injuries on the level of her complaints about them or her perception of them.
It has to be appreciated that a 5 per cent permanent disability of the thoraco‑lumbar spine cannot be understood to mean or necessarily equate to 5 per cent of a most extreme case. If a most extreme case was that of a young person who had been rendered a quadriplegic and was totally incapable of either doing anything for oneself or knowing what was going on around them then the plaintiff's complaints in this case are by comparison relatively insignificant. Quite clearly her level of disability is at the low end of soft tissue/whiplash type injury. At most (to adopt Mr Watson's expression) I would assess her general damages in the range $7,500‑$10,000. Putting her at the top of that range which I would consider to be the generous end I place her at a fraction over 4.5 per cent of a most extreme case. The provisions of s 3C(4) of the Act imposes a threshold of $10,500. As my assessment for general damages is less than the threshold there will be no award of damages for non‑pecuniary loss.

Special damages

The plaintiff claims three items by way of special damages. First she claims reimbursement to Health Insurance Commission in the sum of $30.90 as per a Notice of Past Benefits dated 14/09/1999. This amount is agreed and will be allowed. The second item is a claim for travel expenses associated with medical appointments for which she claims 305 kms at .25 cents per kilometre = $76.25. I am satisfied that travel was necessarily incurred for medical appointments and attendances for physiotherapy and hydrotherapy. Accordingly this sum will also be allowed.
The third item for which the plaintiff claims are expenses associated with joining BC The Body Club at Joondalup. She claims $507 for membership to December 1999 and $1,500 for the services of a personal trainer for 30 sessions. The necessity or otherwise of joining a fitness club and having a personal trainer was the subject of much evidence and cross‑examination of the medical witnesses and Ms Kerry Feighan, the physiotherapist. Here again there was consensus that for the sort of exercise regime which the plaintiff should have followed it was not necessary to go to the extent claimed. The only qualification to that was that if the plaintiff lacked motivation she would be more likely to undertake the exercise regime in the environment of a fitness club and at the direction of a personal trainer than she might if left to her own self‑management at home. There was no evidence from the plaintiff or her husband that she either lacked motivation or had any other need to attend at a fitness club to undertake a fitness regime. The medical evidence was that her physiotherapist was the appropriate person to indicate the type of exercise regime to be undertaken particularly having regard to her pathology and that occasional visits back to the physiotherapist to review her progress and to revise the exercise programme would be more than adequate. Exercise and swimming were the appropriate treatment to build up the musculature around the cervical and lumbar spine. All the time she had at her home a gymnasium set up with exercise equipment. When she saw Mr Watson on 16 January 1998 he reported that she was having a swimming pool put in at her home. He recommended that she consider a swimming programme. The overwhelming weight of evidence therefore is against the need for membership of a fitness club or the engagement of a personal trainer. It was to adopt the words of Dr Henry "over the top" and this item is not allowed.
Special damages will be allowed in the sum of $107.15.

Future medical expenses

There are two components of the future medical expenses claim. One component is for continuing membership of BC The Body Club. For the reasons outlined above this aspect of the claim is not allowed. The second aspect claims for one attendance per annum upon her general practitioner, two tubes of Voltaren gel per annum and two packets of Panadol per annum at as total cost of $101 per annum. It was Mr Watson's evidence that the costs of future treatment would not be likely to exceed $500. That was on the basis that any such requirements would not extend beyond about 12 months. I accept that the plaintiff may from time to time have flare‑ups and discomfort consequent upon the low back complaint. Allowing future medical expenses for 5 years using the 6 per cent multiplier of 226.3 x $1.94 per week ($101 per annum) = $439.02. I allow future medical expenses in the sum of $439.02.

Economic loss

The plaintiff claims for both past and future economic loss. As to past loss it is said that although the plaintiff was not working at the date of the accident she was available to work. The plaintiff had given up work in October 1982 to raise her family. It was her evidence that she intended to return to the work force part‑time when her youngest child was at school full time which would have been from March 1997, just three months after the accident. In fact the plaintiff commenced applying for jobs in that month and was successful in gaining part‑time employment with Activ from 23 June 1997. It was her contention that she was required to give up work because of her accident related injuries. I do not accept that as being the case. It was the plaintiff's evidence that she was required to sit at her employer's reception desk for the whole of the time that she was at work which was 4¼ hours per day Monday to Friday. The nature of the job, so she claimed, did not allow her the opportunity to get up and walk around to relieve any stiffness or pain which she might have felt in her back after sitting for a prolonged period. I have earlier in these reasons made reference to Dr Henry's report to the SGIC of 18 September 1997 and her memorandum addressed "To Whom it May Concern" dated 14 July 1997. There was no mention in the letter to SGIC of aggravation of her symptoms by reason of prolonged sitting at her work at Activ. Nor was there any mention or suggestion to that effect in the memorandum. Nor did the plaintiff give evidence to the effect that she had informed her employer that she was having back trouble as a consequence of her prolonged sitting at work. It is surprising that she would not have done so, even if only to be allowed to stand for short periods of time at the reception desk to relieve any discomfort which she may have had. Nor was there evidence that the plaintiff had worked longer hours than usual on any day and that by reason of those longer hours her back complaint was exacerbated.
Rather the thrust of the doctor's memorandum which presumably the plaintiff conveyed to her employers, was that if her working hours were increased she would require breaks in order that her back not stiffen up too considerably. It was apparent from her evidence that the plaintiff only wished to work part‑time and did not wish to work increased working hours. The letter would have served to allow her to avoid working increased hours. That is confirmed by her letter of resignation to her employer dated 16 July 1997 wherein she stated her reason for leaving as being "…mainly because I only want a permanent part‑time position…" That is in direct contradiction to her evidence when she said that she left mainly because of her back playing up and giving her pain. I prefer to rely upon what the letter of resignation says and what the letter and memorandum of Dr Henry do not say. On this issue I do not accept the plaintiff's evidence.
Having resigned from that position she did not seek employment elsewhere until she made an application in the month or so preceding trial. There were family circumstances during that period which militated against her seeking employment. It remains the fact that she did not in any event seek employment either part‑time or full time in any position for which she was suited and in which she would have had the opportunity to get up and move about to relieve any discomfort which she may have experienced if she were required to sit for prolonged periods. It is my finding therefore that by June 1997 (six months after the accident) the plaintiff was capable of engaging in the type of part‑time employment which she was seeking at that time and which in fact she had obtained. She chose not to seek other employment opportunities after she had resigned from Activ even though the symptoms of which she complained were on her own evidence improving all the while. On Mr Rosenthal's evidence she was fit for full time work as a receptionist from May 1998 (18 months post accident). Prof Harper was of opinion that she was fit for part‑time work from mid 1998 when he first saw her. Even so she did not seek employment at that time. Accordingly, I am not satisfied to the requisite standard that the plaintiff has made out a claim for any past economic loss.
As to future economic loss it is claimed that the plaintiff is partially unfit for work and can only work subject to restrictions. It was the consensus of medical opinion that for some time now the plaintiff has been fit to work full time as a receptionist/secretary. The only limitation, and it might be observed that such limitations apply sensibly to all persons, is that she should avoid repetitive bending and heavy lifting and have the opportunity to get up and walk about at regular intervals to avoid strain on her back. In this day and age of awareness for safety in the work place I do not consider that these restrictions limit or in any way reduce the plaintiff's employability. She has not actually sought employment. Accordingly I conclude also that the claim for future economic loss is not made out.

Summary

For the foregoing reasons I assess damages as follows:
Special damages $107.15
Future medical expenses $439.02
Total$546.17