| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : PITT -v- PALFREY [2003] WADC 140 CORAM : GROVES DCJ HEARD : 20-21 MARCH 2003 DELIVERED : 18 JUNE 2003 FILE NO/S : CIV 544 of 2002 BETWEEN : JESSICA LAUREN PITT Plaintiff
AND
MARTIN PALFREY
Defendant
Catchwords: Damages - Assessment - Motor vehicle accident - Personal injuries - Cervical strain of mild to moderate severity and headaches - 20 year old university student - Turns on own facts
Legislation: Motor Vehicle (Third Party Insurance) Amendment Act 1994, s 3C
Result: Total damages $14,908.53
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Representation:
Counsel:
Plaintiff : Mr T N Cullity
Defendant : Mr J R Brooksby
Solicitors:
Plaintiff : Trewin Norman & Co
Defendant : Greenland Brooksby
Case(s) referred to in judgment(s):
Hendrie v Rusli [2000] WASCA 249
Southgate v Waterford (1990) 21 NSWLR 427
Wylde v 'Arriaza, unreported FCt SCt of WA; Library No 970359; 23 July 1997
Case(s) also cited:
Nil
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1 GROVES DCJ: On 30 December 2000 Jessica Lauren Pitt was the driver of a Daihatsu Charade motor vehicle and was stationary on North Beach Road waiting to turn right when she was hit from behind by another vehicle. The force of the impact was such that her vehicle was pushed across the intersection and came to rest in a driveway over the road. The extent of damage was such that the plaintiff's car was a write-off. The back of the driver's seat broke at impact and the plaintiff found herself in the back seat of her vehicle. Liability is admitted.
2 Miss Pitt was taken by ambulance to Joondalup Health Campus, arriving at approximately 1227 hours, where she was examined and observed. The hospital report (Exhibit 8 tendered by consent) states: "On review in the Emergency Department she described high mid line neck pain and nausea. Examination revealed mild upper cervical tenderness. An X-ray of the cervical spine was performed, which revealed no bony abnormality. Miss Pitt was administered intramuscular Maxolon for the nausea and observed. On review at 1545 hours she was feeling better and discharged home to take oral analgesia as prescribed. Follow-up with her GP was advised." 3 The following day she could barely move her neck or turn her head and she remained in bed for a couple of days. On 2 January 2001 she went to the practice of her usual general practitioner where she was seen by a Dr Strickland. He noted Miss Pitt's complaints as dizziness on movement of head, tenderness behind right ear and lower back pain bilaterally. On examination he found there was restricted rotation with pain on extension and good movement of the lumbar but with pain on extension. His records did not indicate any complaint of headaches. She was referred to physiotherapy. She undertook three or four half hour sessions per week for about four weeks. The physiotherapy was beneficial. She continued to take analgesics for pain relief. 4 The accident occurred while Miss Pitt was on holidays between the end of TEE and before commencing tertiary education at the University of Western Australia. She had enrolled for a Bachelor of Science degree majoring in human movement. Swimming was her passion and pastime. From the age of 10 years she had been coached in swimming, back stroke was her speciality, she was a member of a swimming club and had swum in State championships on five or six occasions. From age 12 to 17 she won many trophies and medals and was just outside State selection. In her final school year she gave up her demanding training programme to
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concentrate on her TEE. At the time of her accident she had been back in training for about six weeks to again try for State selection to go to the national championships. 5 She had also applied for a swimming vacation job over the summer. By reason of her accident she withdrew that application before appointments were made. In February, just over a month after the accident, she did undertake some teaching of young children which she described as teaching them "how to blow bubbles". She has not returned to training for competitive swimming. Swimming was recommended as treatment for her neck complaint and so she has undertaken recreational swimming of approximately two or three one hour sessions per week. 6 On 8 March 2001 she was reviewed by her general practitioner, Dr Andrew Chapman. It was his evidence that Miss Pitt made no complaint at that time of any difficulties being experienced. No mention was made of headaches. He saw no need to refer her for any specialist follow-up. His report (Exhibit 5a) states: "At review on 8.3.01, she was much better with a full range of movement of her neck and lower back. She was not having any great problems. I think her injuries should fully stabilise and settle. She may require intermittent treatment if her condition flares up. At this stage she should be able to continue her full time university studies and she would not be unduly restricted in this." 7 It was the plaintiff's evidence that at her attendance on Dr Chapman on 8 March 2001 she played down the symptoms which she was then experiencing. She said that she went to Dr Chapman because she was in pain but told him that she was fine which at trial she said was not the case and that she should have told him about the headaches and neck pain which she claimed she was experiencing. 8 At about this time Miss Pitt went with her mother to see a lawyer. Her mother in her evidence did not think she was present at the first meeting with the lawyer. Nevertheless her lawyer proposed that she should attend a specialist to assess her injuries.
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9 The first semester at university commenced early March 2001. Her discipline was to study for two or three hours per night throughout term time. She found however that studying caused her to experience pain in the cervical spine at the base of the skull which brought on headaches which moved around to the front of the skull. She found that after about one hour of study she would need to take a break and that when she returned to study she could only continue to do so for another 45 minutes or so. She felt that the consequence of the headaches was reflected in her first year university results in that she did not achieve the marks which she might have expected. Nevertheless she achieved two credits, three passes and a conditional pass.
10 Her mother's evidence as to Miss Pitt's study habits was to similar effect. She observed that her daughter was putting in less study time than she would have expected. She observed also that for the first six to twelve months her daughter was taking a lot of Panadol for relief of headaches of which she complained. 11 Miss Pitt had held a driving licence for only about three months prior to the accident. For about six months after the accident she did not drive. She developed an anxiety complex when she was travelling as a passenger in a vehicle. She was a nervous passenger and had occasional unwanted memories of her own accident. Her boyfriend of the past three years confirmed that post-accident she was a "stressed passenger" in the vehicle with him and he described her as being "paranoid". She would be constantly looking around to ensure nothing untoward was likely to happen. From mid 2001 Miss Pitt has been driving again although she is an anxious driver. She much prefers to drive rather than be a passenger in a vehicle. 12 Miss Pitt's university course requires her participation in a range of sporting activities. Such activities have included field athletics, volleyball, netball, tennis, swimming, dance and aerobics. Her participation in these sports has caused her some difficulty. This is particularly so when having to look upwards, as for example, in a game of volleyball. Whilst she says that it causes some pain she nevertheless perseveres because she has to participate as part of her degree course. She has not sought any exemption from participating nor has she complained to or spoken to her supervisors/course controllers of any discomfort or pain which she might have in participating. She is determined not to let anything prevent her from achieving her goal of completing the course. She has also participated in water polo but on her evidence only did so on three or four occasions. She found the movements required exacerbated
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her neck and caused pain with consequential headaches. Post accident she had a limitation of movement in swimming for about three months. She went back to recreational swimming in about March 2001. She found that breathing to the side in freestyle caused pain to her neck. She does not feel that she could return to competitive swimming because of her neck problem. 13 On 28 February 2002 Miss Pitt again attended on Dr Chapman. She complained of a flare-up of right sided neck pain. She also mentioned that she had been experiencing symptoms of upper neck pain and headaches which were aggravated by study. She had put up with it however. Further physiotherapy was recommended. 14 Through second year university in 2002 she continued to experience neck pain and headaches whilst studying and participating in sporting activities. She would have headaches up to four times per week for which she took Panadol. The neck pain would persist however. In mid 2002 she experienced pain from the shoulder radiating down her left arm. She found this was frustrating. It was intermittent and two or three times per week. The symptoms settled with intensive physiotherapy. Her second year results were better and included three distinctions, six credits and two passes. 15 Miss Pitt also experienced some low back pain following the accident but this quickly resolved. She still finds however that standing for lengthy periods of time does cause some back pain and she claims that this has to some small extent impacted on her social activities. 16 At the time of the hearing Miss Pitt had just recently commenced third year of her degree course. Her present complaints are of pain in the left arm, neck pain with headaches which she described as being not as painful now as they had been in the past. She experiences these headaches still about four times per week. On her assessment there was real improvement over the first six months post accident but she feels that her condition now is still about the same as it was at the end of those six months. That is it has not improved greatly since then. She expresses concern that her ongoing complaints may impact upon her career prospects. When she completes her degree she may undertake a post graduate degree which will take one or two years. Thereafter she sees her career in the field of clinical exercise rehabilitation working with people injured at sport and guiding them back to fitness. She is concerned that her own limitation being the neck pain and headaches may restrict her in
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demonstrating sport or rehabilitation activities and thereby make it more difficult for her to gain employment. 17 Miss Pitt was referred by her legal adviser to Mr Peter Watson, a specialist neurosurgeon. He saw Miss Pitt on 4 April 2001, 27 September 2002 and 6 February 2003 (reports Exhibits 6). On the first appointment her complaint was principally of headaches. This was the first record of complaint of headaches made to any medical practitioner. From the description given to him Mr Watson described the headaches as being "…typical of greater occipital neuralgia." Miss Pitt informed him that her initial lower back symptoms had settled. On examination Mr Watson found full range of the cervical spine in all movements. Neurological examination of the upper limbs was normal. He recommended conservative treatment and was optimistic that her condition would settle over a six to twelve month period with continuing exercise including swimming. 18 When reviewed on the second occasion (21 months post accident) Miss Pitt complained of ongoing cervical spine pains with occipital region headache. She also complained of "…pain that has radiated across both shoulders but down now intermittently in the left arm. She has pain that travels down the outer aspect of the arm into the forearm as far as the wrist and intermittent numbness in the ulna two fingers of the left hand." The symptoms had settled with intensive physiotherapy. Mr Watson said that since the symptoms had come on some 18 months after the accident he was "…undecided as to whether the arm pain was accident related." He noted that there appeared to be neither improvement nor deterioration in Miss Pitt's condition since he last reported. 19 At the final review pre-trial Mr Watson noted that there had been a very slight improvement of her cervical spine symptoms since the previous consultation. He noted that an MRI scan of the cervical spine had been done on 22 January 2003. Whilst there was some very mild flattening of the C4/5 disc there was nowhere any evidence of nerve root impingement or spinal cord impingement. Examination showed Miss Pitt to be capable of a full range of movement of the cervical spine. Again, he recommended that Miss Pitt continue treatment along conservative lines emphasising exercises, strengthening and swimming. He was not of opinion that her accident caused injuries would be of significance in reducing her employability or restricting her within her own profession.
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Any residual disability that she may have he considered would be very mild and he indicated that he was optimistic that she may recover fully. 20 Miss Pitt was again seen by Dr Chapman on 24 February 2003. She reported to him that her symptoms of headaches at the back of her neck and over her occiput remained fairly unchanged. She received no specific treatment from him and he expected that her condition would continue to improve slowly with time but may be aggravated at times. Heat and simple analgesics were appropriate treatment. Acute physiotherapy may be needed if a flare-up was significant. It was his opinion that Miss Pitt would be able to work in her chosen area of study but would be restricted by heavy lifting and repetitive neck work only. 21 Miss Pitt was referred by the defendant's solicitors to Dr John Rosenthal, a specialist in rehabilitation medicine, whom she saw on 14 and 18 October 2002 (report Exhibit 9) His findings on examination were consistent with the history given by Miss Pitt. He said that there was a pain state which he had been able to validate and he acknowledged that she had sustained an injury. He described the neck pain and symptoms as low grade. He did not accept that her symptoms might be multifactorial and expressed the opinion that her exercises and sporting activities have probably helped reduce the symptoms. He expressed the view that Miss Pitt could be left with some niggling symptom from time to time. Miss Pitt had also complained of pain down the left arm (left brachialgia). In Dr Rosenthal's opinion the delayed onset would suggest that symptom as being not accident related. In his opinion swimming long distances would more likely be the cause. 22 Dr Rosenthal's finding was that the injury had been a soft tissue cervical strain of mild to moderate severity. He found the pattern of injury resolution to be satisfactory although there was some residual symptomatology. He did not consider there was any requirement for further formal treatment. 23 Miss Pitt was also referred by the defendant's solicitors to Neurologist Dr Philip Tuch. He saw Miss Pitt on 23 December 2002 and for brief review on 3 February 2003 (reports Exhibit 4). He took a history which is consistent with the evidence given by the plaintiff. Cervical spine examination revealed tenderness in all positions in the occipital regions and very high cervical regions in the mid line. The only restriction to movement on this examination was left lateral rotation of about 45 degrees. The cervical sprain was accident related. However he could find no pathological basis for the headaches. He described the
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headaches as "muscle contraction type headaches" seen in 60 per cent of the population with neck complaints and these are often seen without trauma. He disagreed with Dr Watson's assessment that the headaches were "typical of greater occipital neuralgia on the basis that Miss Pitt was unable to describe the tempo of the headaches, ie what brought them on, their frequency, etc. I do not accept that necessarily means that the plaintiff does not get headaches or that the onset of the headaches was not precipitated by the accident caused neck injury. 24 As to the brachial plexus symptoms Dr Tuch noted that this did not manifest for some two years into the illness "and whatever the cause I do not believe that this relates to the primary trauma." He obtained EMG and nerve conduction studies which were found to be within normal limits. An MRI scan of the cervical spine was within normal limits. At review on 3 February 2003 Miss Pitt complained of intermittent headaches and neck pain. She had a full clinical range of movement. 25 Dr Tuch does not believe that she has a permanent disability which will restrict her activities in any way. He equated a permanent disability of five per cent of the cervical spine. He made that assessment only on the basis of Miss Pitt's stated subjective pain which he found difficult to explain on physiological grounds. The assessment was only a safeguard in respect of the possibility of intermittent neck pain leading to headache. 26 Valma Joy Kostic is a clinical psychologist to whom the plaintiff was referred by her solicitors. She saw the plaintiff on 9 October and 20 November 2001 and for review on 4 February 2003 (reports Exhibit 7A and B). At the initial interview the plaintiff presented with mild depressed mood and post trauma symptoms. The post trauma symptoms comprised occasional unwanted memories of the accident causing some mild stress and disruption of activities. As examples of such stress and disruption the plaintiff recounted not driving for some period of time, being a nervous or anxious passenger in vehicles and an occasion when she had seen crashed vehicles at a panel beater's shop she experienced nausea, dizziness and increased heart rate. She reported that these symptoms while distressing had been of only short duration. 27 Personality assessment indicated that Miss Pitt is a young woman with a high sense of social responsibility. The assessment also indicated that she presented with "over-controlled emotion" which Ms Kostic described as a characteristic whereby she would tend to understate her circumstances and minimise the effect that any pain being experienced was having on her. It was Ms Kostic's opinion that Miss Pitt's anxiety
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whilst travelling in a motor vehicle would continue to improve and she did not perceive that Miss Pitt would require any psychological treatment in the foreseeable future. 28 On review in February 2003 Ms Kostic reported that Miss Pitt was no longer presenting with post trauma symptoms. However, Miss Pitt reported frustration and concern regarding the continuing level of pain that she was experiencing. Ms Kostic expressed concern regarding the plaintiff's ability to maintain psychological equilibrium in the face of her ongoing pain levels. She considered that Miss Pitt remains vulnerable to the development of a psychological condition such as depressed mood or an anxiety condition. No formal treatment however was indicated.
Findings of fact 1. As a result of the accident the plaintiff sustained – 2. The neck injury has given resultant pain at the base of the skull which pain has been productive of frontal headaches. Although not the subject of complaint initially the plaintiff has since commencement of her tertiary studies consistently complained of these symptoms. 3. The head bent forward when studying and vigorous physical activity, eg volleyball, may precipitate neck pain. 4. The headaches are managed with simple analgesics. Their frequency has reduced with the passage of time. 5. There is no evidence of any bony abnormality in the cervical spine. An EMG and nerve conduction studies were within normal limits. An MRI scan of the cervical spine was within normal limits. She has a full range of the cervical spine. Neurological examination of the upper limbs was normal.
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6. Consistent with the prognosis of all medical witnesses I find that the plaintiff may continue to have some "niggling symptom" or occasional "flare-ups" in the cervical spine from time to time. 7. Again consistent with the medical evidence the prospect is that the plaintiff's condition will recover fully and at most any residual disability would be very mild. 8. The accident caused injuries will not reduce the plaintiff's employability or restrict her in her chosen career. 9. No specific treatment for the cervical strain is presently required. Analgesics and occasional physiotherapy is all that is indicated for the future. 10. The pain across both shoulders and intermittently down the left arm (the brachial plexus symptoms) are not a consequence of the accident caused injuries. The consensus of medical evidence is that the delayed onset of these symptoms suggest that they are not accident related and I accept that as being the case. In any event this complaint is not particularised as an accident caused injury in par 4 of the statement of claim. 11. The plaintiff suffered a mild depressed mood and post trauma symptoms of short duration. Being a relatively newly licensed driver at the time of the accident it is understandable that this event would have caused her some anxiety subsequently both as a driver and a passenger in a motor vehicle. 12. Although Miss Kostic expressed the opinion that the plaintiff "remains vulnerable to the development of a psychological condition" I am not satisfied that such will necessarily eventuate. Miss Pitt presented as an outgoing confident and well balanced young lady. I would expect that with this litigation concluded that she will put this event behind her and will not dwell on this unfortunate event from the past. 13. Given the personality assessment of an "over controlled emotion" I accept that when Miss Pitt presented to Dr Chapman on 8 March 2001 she played down the
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symptoms which she was then experiencing. It is also understandable in the context that as she was about to commence her tertiary education she would not wish at that time for anything to be put in her way so far as commencing university was concerned.
General damages for loss of amenities 29 The plaintiff is entitled to general damages for the accident itself and for the consequent pain and suffering, loss of amenities and loss of enjoyment of life. 30 The award of damages for loss of enjoyment of life and amenities generally requires a consideration of s 3C 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, $240,000 and that that amount may be awarded "only in a most extreme case". 31 In Wylde v '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 s 79(2) and s 79(3). It is inappropriate 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 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 formally 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 constituted '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
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and $180,000; but in a ratio which the Judge fixes keeping in mind that the cap of a statutory maximum is retained for a 'most extreme case'." 32 The task is to find the right proportion between a most extreme case and the present. As to what might constitute a most extreme case see also Murray J in Hendrie v Rusli [2000] WASCA 249. 33 It is necessary that I make findings consistent with my assessment of the evidence. 34 The accident was undoubtedly a traumatic experience for the plaintiff. She had conservative treatment and physiotherapy for approximately six months post accident. She has experienced ongoing pain in the cervical spine which leads to frontal headaches of varying intensity which has required the plaintiff to take analgesics for the relief of that pain. She was and claims to still be restricted to some extent in her engagement in sporting activities in which she participates both within her university course and outside. She also has experienced difficulty in her studies as a result of neck pain. On Dr Watson's evidence she will continue to experience niggling pain although this should continue to resolve with the passage of time. She also experienced anxiety for a period of time when travelling in a motor vehicle. She has also experienced frustration and post trauma symptoms of emotional distress and occasional unwanted memories of the accident causing mild stress and disruption of activities. 35 On the other hand the plaintiff has been able to participate in the full range of sporting activities required of her, she continues to participate in recreational swimming, swimming education and has part-time employment. She continues her studies in the third year of her university course. On the face of this evidence she has not been prevented from passing her examinations, participating in sport or social activities. I do not consider that her future career will in any way be jeopardised as a result of her accident related injuries. 36 Having regard to those matters and to the evidence generally I find that the plaintiff's initial injuries and symptoms, their progression and treatment, their current status and the effect that they have had and will have on the plaintiff's enjoyment of life puts the plaintiff's case at 10 per cent of a most extreme case. That percentage of the maximum amount that may be awarded of $240,000 equates to $24,000. By s 3C(5) of the Act if the amount of non-pecuniary loss is assessed to be more than
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$12,000 but not more than $36,500 then from the award made is to be deducted the sum of $12,000. Therefore 10% = $24,000 reduced by $12,000 = $12,000. Accordingly general damages will be allowed in the sum of $12,000.
Past economic loss 37 Prior to the accident the plaintiff had applied to teach swimming with the Education Department in January 2001. An appointment had not been made as at the date of the accident. As a consequence of the accident she felt she was not fit to undertake the employment and withdrew her application. 38 Given the level of the plaintiff's swimming achievements and experience she was well qualified to teach children swimming. It is reasonable therefore to expect that she would have gained employment. She was employed in the following summers of 2002 and 2003 by the Education Department as a swimming teacher. She claims $943.70 which is comparable to the net income which she received for the same period in 2002. Again, this is a reasonable basis upon which to present this claim for past economic loss. 39 Accordingly the sum of $943.70 will be allowed.
Interest on past economic loss 40 I calculate the sum of interest by using the following formula: 41 I award the plaintiff damages for interest on past economic loss in the sum of $70.78.
Loss of future earning capacity 42 The plaintiff claims that as a result of her accident sustained injuries she is unable to sit and type at a computer or study for prolonged periods
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of time and requires regular breaks and pain medication to complete the same. On completion of her bachelor of science degree at the University of Western Australia she claims that she will have to avoid work requiring long periods of sitting and typing and will continue to require regular breaks for the foreseeable future. 43 The consensus of medical evidence is that the plaintiff may have occasional niggling pain on flare-ups" in the future. However, that will not restrict her in her future activities. 44 Even if it is accepted that the plaintiff is unable to sit and type at a computer or study for prolonged periods of time that should not be productive of economic loss. As a matter of personal safety in any environment, including the working environment, it is a matter of common knowledge that it is appropriate that the individual take regular breaks from a particular activity both for comfort and to avoid the risk of any ergonomic related or repetitive strain disability being occasioned. Therefore it is appropriate that regular breaks be taken and hence the plaintiff will not be disadvantaged in that way. Furthermore, the medical evidence indicates that the symptoms will further resolve over time. 45 Furthermore, I do not accept that the plaintiff will be disadvantaged in the work place either in her applications for employment or her ongoing employment by reason of her accident sustained injuries. She has demonstrated that she has a high level of fitness in that she has engaged in a wide range of sporting activities in the course of undertaking her degree course. She will not be disabled in her indicated future employment, eg sports recuperation programmes from participating or demonstrating, etc. 46 In all the circumstances I do not accept that the plaintiff is at risk so far as her future earning capacity is concerned. No allowance will be made under this head.
Gratuitous services 47 In her statement of claim the plaintiff says that as a result of the injuries sustained in the accident she received domestic services which had been provided to her. No schedule supporting this head of claim was presented. There was some evidence that post accident her boyfriend had to drive her to various destinations and of her mother that she had necessarily done things for her daughter at home. It was not said that the boyfriend and mother would not in any event have undertaken those
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services regardless of the plaintiff's condition. Furthermore, no evidence was given as to the extent of the voluntary services said to have been rendered or what an appropriate rate would be for those services. 48 In the circumstances I am unable to make any allowance for voluntary services.
Past medical expenses 49 The plaintiff submitted a schedule of medical expenses incurred. The defendants' insurer and the Health Insurance Commission have attended to payment of those medical expenses. The schedule sets forth details of amounts to be reimbursed to the Health Insurance Commission for benefits paid in respect to treatment of her accident sustained injuries. The total of the amounts particularised is $894.05. This sum will be allowed.
Future medical expenses 50 The plaintiff claims that she will continue to require consultations with her general practitioner, physiotherapist, pain management specialist, radiologist, medication, EMG and nerve conduction studies, occipital nerve blocks and undertake an exercise strengthening and swimming programme on aggravation and/or exacerbation of her accident sustained injuries. 51 The plaintiff did have physiotherapy which was beneficial for a period of some six months following the accident. She also had physiotherapy for a "flare-up" of right sided neck pain in February 2002 and again in mid 2002 prior to sitting exams. Otherwise, the plaintiff has been treated conservatively. She uses over the counter analgesics to ease her headaches when she has them. There was no evidence that she will require ongoing specialist consultations, tests or studies or treatments and all of that is contra indicated by the evidence of the doctors. Nor was there any evidence as to how frequently she will require to attend on her general practitioner. Her general practitioner, Dr Chapman, indicates in his report of 14 March 2003 (Exhibit 5(b)) that "she uses heat and simple analgesics and would need acute physiotherapy if a flare-up was significant". The only evidence of such a flare-up was that it occurred some 12 months ago. As to her claim regarding an exercise strengthening and swimming programme I would have thought that by reason of her current education and career choice she is in the best position to know what activities will assist her towards this end. It is not necessary for any
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other professional advice to be taken to tell the plaintiff what she has to do in this respect. 52 Recognising that there is the possibility that the plaintiff will have to attend on her doctor occasionally and may require occasional physiotherapy, doing the best that I can and without any evidence as to the cost of such treatments a modest allowance is all that is appropriate. 53 Accordingly $1,000 will be allowed for future medical expenses.
Summary 54 In summary therefore damages will be allowed as follows:
General damages $12,000.00 Past economic loss $ 943.70 Interest on past economic loss $ 70.78 Past medical expenses $ 894.05 Future medical expenses $ 1,000.00 Total $14,908.53
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