Phillips v JAYAWICKRAMA - [1999] WADC 137

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: PHILLIPS -v- JAYAWICKRAMA [1999] WADC 137

CORAM: FENBURY DCJ

HEARD: 27-28 OCTOBER 1999

DELIVERED : 26 NOVEMBER 1999

FILE NO/S: CIV 3487 of 1998

BETWEEN: FIONA PHILLIPS
Plaintiff
AND
RAJEEVA JAYAWICKRAMA
Defendant

Catchwords:

Assessment of damages - Motor vehicle accident - Whiplash injury - Turns on own facts.

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943 ss3C(2) and 3C(3).

Result:

Judgment for the Plaintiff in the sum of $38,358.20.

Representation:

Counsel:

Plaintiff: Mr T Cullity
Defendant: Mr P Momber

Solicitors:

Plaintiff: D'Angelo & Partners
Defendant: Peter Momber

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

Nil

Case(s) also cited:

Nil

FENBURY DCJ: This is an assessment of damages for personal injuries sustained by the plaintiff in a motor vehicle accident. The defendant has admitted negligence.
The plaintiff was born on 6 September 1956 and was thus 43 years of age at the time of trial.
On 28 November 1997 the plaintiff was the driver of a motor vehicle stationary at a set of traffic lights when she was involved in a "rear end: collision.
On impact the plaintiff was thrown forward and then backwards collapsing the back of her seat. The plaintiff told me that the cost of repairs to her vehicle was approximately $5000. As a result of the impact of the collision the plaintiff's vehicle, a Hyundai, was pushed into the middle of the intersection. Obviously this was a substantial rear end collision.
Immediately following the accident the plaintiff felt pain in her chest, back and shoulders and on both sides of her neck. However she did not seek medical attention immediately. She was taken by a friend to her place of employment and she advised her supervisor of what had happened and that she was "not right".
The plaintiff was taken to see her general practitioner, Dr O'Mahony later on that day. Dr O'Mahony gave evidence and produced six reports being exhibit D. Dr O'Mahony diagnosed a soft tissue injury to the plaintiff's neck, back, shoulder and chest. According to exhibit D1 Dr O'Mahony saw the plaintiff regularly following the accident. She was still unfit as at 18 December, however his opinion was that the plaintiff's injuries were not an aggravation of pre‑existing conditions. He referred the plaintiff for physiotherapy expressing the view that she would need twice weekly treatments for some time.
The plaintiff continued to have physiotherapy combined with bed rest and anti‑inflammatory medication into the beginning of 1998. She continued to suffer painful symptoms in her neck, back, shoulder and chest. A reading of Dr O'Mahony's reports suggests that the plaintiff's symptoms were resolving slowly. In July she suffered an exacerbation of her symptoms apparently caused by too early a return to heavy responsibilities at work. Dr O'Mahony thought she was improving but apparently she still complained of significant back pain and headaches.
In his report of 9 April 1999, which is some 18 months after the accident, Dr O'Mahony states that the plaintiff still complained of headaches and pain in the upper back interscapular region and chest wall. He felt that the plaintiff's pain had limited her ability to do household chores, enjoy sexual relations and drive a manually geared car. He thought her disabilities would continue and in fact, because they had lasted for such a long period already, he had a gloomy view about the future. He felt that the plaintiff would be left with some degree of pain and disability permanently.
In due course the plaintiff was referred to Dr Quintner.
Dr O'Mahony's reports support the plaintiff's assertions that since the date of the accident she has continued to suffer from pain in her neck and upper back and between the shoulder blades. She has taken a variety of medications over the last 2 years including Voltaren, Voltaren gel, Zoloft for her depression and also Serapax. She also takes Mersyndol.
The plaintiff has also had physiotherapy over the period some of which she has paid for herself.
In essence the plaintiff's evidence was that she attended regularly upon her general practitioner and had physiotherapy and took medication as required. However this did not provide her with long term relief. She stated that she has had pain to varying degrees ever since the accident. However she did concede that she has had some improvement. When the Insurance Commission of Western Australian stopped paying for physiotherapy the plaintiff's evidence was that she paid for her own treatment. She also had assistance from her husband who massaged her neck and back on occasion. She also underwent heat treatment at home.
The plaintiff said that she had time away from her employment and took all of her sick leave and then annual leave in order to rest and recuperate.
The defendant asserted that there was no pathological basis for the plaintiff's symptoms. There was nothing of significance on x‑ray and throughout the period the plaintiff had a full range of movement. Counsel pointed to the fact that the only evidence that the plaintiff suffered the symptoms that she says she did is her own and there was no corroboration.
Of course to some extent some corroboration can be found in the plaintiff's behaviour in cases of this kind. I note that she had a good work history prior to the accident. I note that she paid for physiotherapy treatment herself and I also note that she took all of her leave during a period when she was off work. It seems to me those factors are more consistent with a person giving truthful evidence than not. As to her pre‑accident employment, if the plaintiff is trying to mislead the Court, then it is noteworthy that she has greatly reduced her work since the accident. It might be said that she would be unlikely to do that given her good pre‑accident work history unless she had symptoms.
The plaintiff presented as a big woman, somewhat overweight, and of a pleasant nature. There was no moment during her evidence that I felt she was trying to mislead me deliberately. I accept on the balance of probabilities that the plaintiff has suffered pain and discomfort from the soft tissue injuries she sustained in the motor vehicle accident and that she has continued to have symptoms in varying degrees since. As to the extent of those symptoms it is difficult to judge because obviously people react in different ways to pain and some have a higher threshold than others. When she gave her evidence the plaintiff displayed no difficulty in movement. Of course there is no medical evidence that she has suffered a loss of function or restriction of her range of movements at all. She did not give any hints in a physical sense, whilst in the witness box, that she was uncomfortable.
However I am prepared to find that she has had considerable pain and discomfort.
The plaintiff is a married woman with three grown‑up children. Her youngest child now aged 19 has a baby and they both live in the plaintiff's household. The plaintiff told me that prior to the accident she used to go horse riding, swimming and do gym work. She also liked to go bowling and play golf. She has found that she is not able to do these activities without pain since the accident. The plaintiff also said that her symptoms have interfered with her relationship with her grandson which is "not so good" because of the effects it has had upon her activities. She does not go out as much as she used to before. She leads a "quieter life now."
However the plaintiff's evidence also was to the effect that she felt she was slowly improving. Her headaches had improved.
The plaintiff has been referred by her general practitioner to an orthopaedic surgeon, Mr Desmond Williams, who wrote four reports accepted as exhibit G1‑4. Mr Williams did not give oral evidence.
Mr Williams saw the plaintiff on 10 February 1999, some 15 months post accident. After examining the plaintiff he concluded that the plaintiff "has had soft tissue injury to her cervical and thoracic spinal areas and at this time she needs to continue with a graduated build‑up of her physical rehabilitation efforts."
Mr Williams saw the plaintiff again a month later, on 11 March 1999. He recorded that the plaintiff's symptoms "tend to go up and down." She complained to him of persistent discomfort in the form of headaches and pain in the interscapular area with a radiation of pain up into the neck.
In his report of 11 June 1999 following this review Mr Williams stated:
"I believe we will need to watch the psychological side here and pain coping strategies may be an option. I suggested she keep a daily record of her rehabilitation efforts, as I have noted the psychological side with her elements of anxiety and depression are significant here and need to be monitored."
In his next report dated 2 July 1999 Mr Williams felt that the case could be considered for settlement on the basis that the plaintiff be supported "with a 12 month programme as part of her settlement" in the form of gymnasium work.
In his final report dated 20 October 1999 Mr Williams states:
"Overall I do not believe there will be significant residual disability problems that will persist into the medium to long term and overall her problems will continue to resolve with attention to the matters I have outlined, weight reduction and swimming and exercise schedules. I do not believe there will be a need for ongoing medication. There is no indication for surgery in management. …overall…my view is that while she has functional limitations and some continuing problems overall these will resolve with the passage of time with attention to her physical rehabilitation as I have outlined."
The plaintiff was also reviewed by Dr John Quintner who saw her on 14 May 1999. Dr Quintner is a consultant physician with a special interest in musculo‑skeletal medicine and rheumatology. Dr Quintner flagged the possibility of diagnostic and anaesthetic blocks of the plaintiff's joints in the lower cervical spine should the plaintiff's symptoms continue for any great length of time. Otherwise Dr Quintner's opinion did not add much to the picture.
The plaintiff was also reviewed by a retired orthopaedic surgeon named Robin Jackson at the request of the defendant. Mr Jackson produced a report, dated 27 April 1998, which was exhibit 1. He saw the plaintiff on 22 April 1998 which was 6 months after the accident and some 18 months ago. Mr Jackson's report needs to be considered in the light of that chronology.
Mr Jackson's view is that the plaintiff has had sufficient physiotherapy and that further expenditure in that regard was no longer justified. He had this view because he felt that physiotherapy only provides short term relief and is not useful on a long term basis. Mr Jackson felt that the plaintiff's prognosis was excellent.
The plaintiff was also reviewed by Mr Colin Hooker, another orthopaedic surgeon, who saw her on 20 January 1999. Mr Hooker did not give evidence but his report dated 23 January 1999 was received pursuant to the provisions of s79C of the Evidence Act. On examination of the plaintiff he found that she suffered from no muscle spasm or deformity and she had a full range of movement in all areas. There was no neurological or joint abnormality on examination. He put it this way:
"In my opinion no objective clinical abnormality was revealed on examination of her neck, thoraco lumbar spine or upper limb. However she complained of tenderness and pain on various movements and I consider that her current range of symptoms are, to a large degree, functionally based."
Of course Mr Jackson and Mr Hooker only ever saw the plaintiff on one occasion. Mr Williams has seen her on several occasions and Dr O'Mahony has been her treating general practitioner throughout. Be all that as it may this case is one for assessment upon the basis that the plaintiff has some degree of pain and discomfort arising from the soft tissue injury she sustained in this motor vehicle accident and she has had symptoms for the last 2 years.
The plaintiff has undergone physiotherapy and has taken analgesic and anti‑inflammatory medication. She has tried swimming and the application of heat and cold packs. She has massage. However it is notable that she has not suffered such a degree of pain that any of the more intrusive and painful procedures have been contemplated. The plaintiff displayed no discomfort in the witness box but, as I have mentioned, I am inclined to accept her general evidence that she does have discomfort. The extent of that discomfort is very difficult to judge. I gain the impression that she has what might be called a low pain threshold. As I have mentioned she was a big woman with big bones and muscles and therefore, I think, not likely to be as severely injured in this sort of accident as a person of light or thin build. I make that observation purely as a matter of common‑sense and experience.

Non‑pecuniary loss

This accident occurred in 1997. Consequently it is necessary to carry out an assessment of the plaintiff's non‑pecuniary loss pursuant to the Motor Vehicle (Third Party Insurance) Act 1943. Pursuant to s3C(2) of the Act my duty is to ascertain in relation to damages for non‑pecuniary loss the appropriate "proportion, determined according to the severity of the non‑pecuniary loss, of the maximum amount that may be awarded. Section 3C(3) of the Act provides that the maximum award for non‑pecuniary loss is "Amount A" but that "may be awarded only in a most extreme case". At the present time Amount A is the sum of $219,000.
Having regard to the evidence of the plaintiff, the medical evidence and the fact that it is 2 years since the accident, I consider that the appropriate proportion would be 7.5 per cent of the maximum amount. The amount to be awarded is then $16,425 less $10,500 as required to be deducted pursuant to s3C(5). The allowance therefore is $5925 for non‑pecuniary loss.

Past economic loss

The plaintiff claims for economic loss in the past and counsel submitted a calculation in the form of a schedule, marked for identification E. At the time of the accident the plaintiff held down two positions namely that of a cleaning supervisor with Servo Systems and a warehouse stock picker with a company called Newspower.
The plaintiff's employment with Servo Systems was in a sense extra employment for the specific purpose of financing the purchase of a block of land. The plaintiff does not assert any economic loss and inability to engage in employment with that organisation. It is her position with Newspower that the plaintiff asserts has been adversely affected by the residual symptoms caused by the motor vehicle accident.
According to the schedule, and it appeared to be undisputed, the plaintiff was earning $13.23 per hour at Newspower. According to counsel she worked at the rate of approximately 7½ hours per day for an average of 4 days a week. This results in a gross weekly income from Newspower in an amount of $396.90 gross which is $328.85 net per week. This is consistent with exhibit B, and the plaintiff's income tax return for the year 1997/1998. Counsel then submitted that the plaintiff was unable to work for Newspower from 28 November to 15 December 1997, which is for a period of 2.4 weeks which results in a loss of $789.24. However during that period the plaintiff received an advance from the Insurance Commission in the amount of $624.83 which must be deducted which gives a net loss of $164.41.
It is then asserted that the plaintiff was incapacitated from the period 15 December 1997 to 15 January 1998 which is a period of 4.43 weeks x $328.85 which equals $1456.81.
Approximately 2 months after the accident, on 15 January 1998, the plaintiff returned to work at Newspower. She started off working 2 hours per day for one shift per week and then gradually increased her hours until she returned to her pre‑accident rate of some 60 hours per fortnight. This was by the end of May beginning of June 1998.
On 3 July 1998 the plaintiff ceased working at Newspower. She said in evidence that she was in an awful lot of pain on that day. She said:
"I started commencing my duties and it seemed everything that I sort of picked up was heavy, awkward. I would ask people to get the boxes down or to help me manipulate something onto my trolley. I got quite upset because I couldn't do it myself. I progressed into having more and more pain, even though I was taking the Mersyndol and then I broke down. I started to cry at work because I got frustrated and I couldn't do the work property. …"
The plaintiff said that she informed her employer "Look, I'm not right after this accident. I can't do this work at the present time. I'm in an awful lot of pain."
The nature of the plaintiff's work at Newspower required her to take a trolley, put a bin on the trolley and fill the bin by going up and down various aisles picking stock. She would then take the bin and trolley to manual rollers and process the collection. (Transcript pp7 and 8). Some of the items she had to pick were quite heavy being boxes of rheems of reflex copying paper but many of the other items were quite light. The boxes got heavy after a while but she was able to call upon assistance if required in shifting them. The plaintiff's work could not be described as heavy work. It did not require a lot of bending and lifting. The only time that the boxes became very heavy was during the diary season. (Transcript 28). Significantly the plaintiff was able to call upon other workers and indeed male workers if she ever required assistance.
The plaintiff has never returned to her work at Newspower since 3 July 1998. She seeks damages quantified by the income she would have earned between that day and the time of trial.
The plaintiff was seeing her general practitioner at the time she ceased work. In the first report following the plaintiff's cessation of work at Newspower, being the report of 14 August 1998 (exhibit D3) Dr O'Mahony states:
"Her symptoms were resolving to such a degree that she was able to resume work 4 days per week. Unfortunately, at the start of July she had an exacerbation of her symptoms. This may have been caused by increasing her work hours too quickly. She has needed time off work since then. Overall she is improving, but still has significant back pain and headaches.
Currently she is unable to work. I would expect, however, a gradual return to work over the next few weeks."
In the next report, exhibit D4 being a report of 9 April 1999, Dr O'Mahony states:
"Currently she is able to do supervising work but unable to do work that requires lifting or prolonged bending. Hence she is unable to work at packing stationery."
Dr O'Mahony repeats this opinion in his report of 11 June 1999 (exhibit D5). It is stated that the plaintiff "cannot do work that involves prolonged or repetitive being or twisting".
Having heard the plaintiff's description of the nature of the work at Newspower I do not think that it is work that requires prolonged or repetitive bending, twisting or lifting. When all is said and done she is pushing a trolley along aisles and picking items of various sizes and putting them in boxes on the trolley. Very few of the items are heavy and those that are she can get help to manage. She appears to have been able to carry out this work at reduced hours in the period up until the beginning of June 1998. Her problem seems to have been that she increased her hours by too much too quickly.
Given the description of the work at Newspower I cannot understand how the plaintiff is unable to do it at all. In my view she should have been able to do some hours per week after 3 July 1998 and yet she has done none at all. I am not satisfied that the plaintiff has been totally incapacitated from any work at Newspower since July 1998.

As to how much she could have done it is very difficult to say but doing the best that I can I think that she should have at least been able to do half of the hours she was doing at the time she gave up her work. She should have been able to do this for the entire period since the accident.
For the period from 3 July 1998 to the date of this judgment being 26 November 1999 equals $328.85 x 73 weeks equals $24,006 divided by 12 equals $12,003, say $12,000. I award the plaintiff that sum for past economic loss.

Superannuation

The plaintiff claims lost superannuation benefits as a part of her past loss of earning capacity as follows:
$12,000 x 6% x 2 years = $1440.
The plaintiff is entitled to interest on past economic loss which I award at the rate of 4 per cent per annum for 2 years equals $1,075.20. Therefore total past economic loss equals $14,515.20.

Future economic loss

The plaintiff formulates her claim for future loss of earning capacity upon the basis that she will not be able to earn income for a period of 5 years. She claims some $74,000. The plaintiff was born on 6 September 1956 and is presently 43 years of age.
In my view the plaintiff does have some work capacity now but she has simply chosen not to exercise it to date. Whether she could work full time now or not is debateable but I am prepared to find that she would be unlikely to be able to work at her pre‑accident rate at the moment. However she should be able to build up to it if she does so more slowly than she tried to do prior to July 1998. I think she has at least a present ability to earn half of the income she was previously earning from Newspower. I would anticipate that by no more than 2 years from now the plaintiff should have been able to return to her position at Newspower working the same hours she used to do. I would allow her half the income she would earn for the next year and a quarter for the year thereafter which calculates approximately as follows:
$328.85 per week x 52 = $17,100.
$17,100 ÷ 2 = $8,550.
$17,100 x .25 = $4275 = $12,825
Therefore I allow future economic loss at $12,825.

Future medical expenses and/or care

The plaintiff claims $16,786.89 for future pharmaceutical expenses and $11,799 for future consultations with her general practitioner, orthopaedic surgeon and physiotherapist.
I think that this claim is excessive and calculated inappropriately upon the basis that the plaintiff will have these expenses for the rest of her life.
At the time of trial the evidence was to the effect that the plaintiff was expending approximately $100 per month on various medications. The evidence of Dr O'Mahony was that the plaintiff would be likely to need this amount of medication "for a long time into the future". Mr Desmond Williams felt that if the plaintiff was supported with a 12 month programme of swimming, exercise and light gymnasium work that her rehabilitation would be enhanced. He felt that the plaintiff's problems will resolve and he did not believe there would be a need for ongoing medication. Dr Quintner had concerns about some of the medication the plaintiff was taking, especially Mersyndol, and felt that it was inappropriate that it be taken on a long term basis. I think it would be reasonable for the plaintiff to be supported by way of damages for future medication for something like the period she should take to get back to full time work and purely as a result of my estimate of what is fair and reasonable I would allow her $2400 for ongoing medication and consultations.

Special damages

Counsel informed me that some $1061 had been paid by or on behalf of the plaintiff by way of physiotherapy consultations. I do not think there is a need for any further physiotherapy but it would seem to me to be reasonable for the plaintiff's past expenses in that regard to be met. The amount outstanding is the sum of $461 which I think is not unreasonable. I award that sum by way of special damages.

Past gratuitous services

The plaintiff claims $8588 for past gratuitous services calculated at an agreed rate of $12 per hour for a period of 18 days post accident at 2 hours per day being 36 hours and then from the period 16 December 1997 to the date of trial 27 October 1999 at 7 hours per week for 97.1 weeks giving two figures of $432 and $8156.40 respectively totalling $8,588.40.
I have no doubt that the plaintiff has benefited from gratuitous services rendered to her by her husband, daughter and mother. There have been times when the plaintiff has required assistance with activities inside and outside the home those activities being ones that she performed prior to the accident. I think the claim is inflated however. For the first period of 18 days at 2 hours per day I think that is not unreasonable and would award $432.
For the following period of 97 weeks however I do not accept that the plaintiff has required gratuitous services for that entire period at 1 hour per day every day. Especially up until the period when she had resumed full time working hours at Newspower, it is difficult to see why she would have required any significant gratuitous services at home. It is not possible to be arithmetically accurate about this but I think that a reasonable allowance under this head for the period from about the middle of December 1997 until today would be to allow a total of 150 hours at $12 equals $1800 plus $432 equals $2232.

Future gratuitous services

I really find it difficult to see how the plaintiff continues to require significant assistance in the home. A global sum of $5000 for future gratuitous services is claimed. I am not persuaded that the plaintiff is entitled to any award under this head and decline to make such an award. The plaintiff also seeks future travelling expenses but having regard to the fact that I do not think she should need to attend for consultations and treatment I also decline to award a sum under this head.
My award is as follows:
Non‑pecuniary loss  $5,925.00
Past economic loss including superannuation
and interest  $14,515.20
Future economic loss  $12,825.00
Future medical expenses and/or care                  $2,400.00
Special damages  $461.00
Past gratuitous services  $2,232.00
Total  $38,358.20