PODONIC v Collinson
[2000] WADC 34
•11 FEBRUARY 2000
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: PODONIC -v- COLLINSON [2000] WADC 34
CORAM: HH JACKSON DCJ
HEARD: 6 AND 7 DECEMBER 1999
DELIVERED : 11 FEBRUARY 2000
FILE NO/S: CIV 3283 of 1998
BETWEEN: NATASHA PODONIC
Plaintiff
AND
MICHAEL COLLINSON
Defendant
Catchwords:
Motor Vehicle Accident - Assessment of Damages
Legislation:
Motor Vehicle (Third Party Insurance) Act 1943 ss3A-E
Result:
Damages assessed in the sum of $45,900
Representation:
Counsel:
Plaintiff: Mr G Droppert
Defendant: Mr B C Sierakowski
Solicitors:
Plaintiff: Messrs James McManus & Associates
Defendant: Mr Brian C Sierakowski
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
HH JACKSON DCJ:
Background
1The plaintiff was born on 10 April 1978. On 10 February 1997 she drove Gemini Holden motor vehicle 8NR 653 in Walter Road Morley facing south. Whilst stationary in a line of traffic the vehicle was struck from the rear by a vehicle driven by the defendant, Datsun sedan 6DO 503, as a result of which the plaintiff claims to have suffered injuries and been put to loss and expense. Liability for negligence is not in issue. The matter comes before me for assessment of damages.
2She claims to have sustained in the collision a significant hyper-extension strain injury to the cervical spine, a significant hyper-extension soft tissue injury to the lumbar-sacral spine and to suffer various permanent disabilities as a consequence.
3The plaintiff has lived at home with her parents throughout her life. She had had no paid employment prior to the collision. The plaintiff was at all material times a university student. She resides in Embleton and is currently studying at Edith Cowan University enrolled in a Bachelor of Business course majoring in finance and information systems. She commenced university study in 1996 at Murdoch University enrolled in a Bachelor of Commerce course which is a three year undergraduate degree. During 1996 she enrolled in eight subjects scoring two credits, four passes and two fails.
Collision and Subsequent History
4The collision occurred at about 12.00 noon.
5In the collision the motor vehicle was badly damaged and became a "write-off". However, the plaintiff went home and the following day saw a general practitioner, Dr Elsmann, with a very stiff neck and a headache. About a week later at the same medical clinic she saw her regular general practitioner, Dr S Cherian. She underwent physiotherapy for two or three months and took anti-inflammatory and Panadeine Forte medications. About a week after the collision she commenced having low back pain and had physiotherapy for that also. It was put to the plaintiff in cross-examination that she had not complained of back pain until some two or three months after the collision and that prior thereto she had complained of head, neck and shoulder pain and nausea. The plaintiff said she had complained to Dr Cherian after the back pain commenced, "a few weeks; about a month maybe" after the collision. It was a stabbing pain in the left low back into the buttock which she felt most when in bed. Rather than alleviating the symptoms the plaintiff suffered headaches following the physiotherapy on the back. She found that following physiotherapy massage however, she suffered headaches. Two or three months after the collision Dr Cherian agreed that physiotherapy should cease. Soon afterwards Dr Cherian ceased practise and the plaintiff consulted Dr Elsmann again. Dr Elsmann recommended hydrotherapy and light exercise, such as walking and light swimming.
6In February 1997 the plaintiff again enrolled at Murdoch University as a second year commerce student. To attend required her to travel on two buses, each way, taking one to one and a half hours. The course times were so structured as to involve a long day, sometimes with long breaks. This, with the time spent sitting at lectures, studying and completing assignments, much of it involving computers, caused shoulder, neck and back pain. Sometimes this caused her to miss lectures. In the first semester she failed two out of four subjects so in the second semester she enrolled only for three subjects instead of four. Of these, she passed only one.
7In 1997 the plaintiff passed three subjects and failed four, including one for a second time.
8She said she had decided to obtain part-time or casual employment during second year at university. This decision was not affected either by her first year results or by the collision in February 1997. She found employment in September 1997. She was living at home rent and board free, but needed money for other expenses. She said that but for the symptoms from injuries suffered in the collision she would have sought work earlier and been able to do more.
9The plaintiff was referred in June 1997 to Mr Peter Watson, neurosurgeon, whose reports are Exhibit 12A to D. He suggested swimming, which she says she has undertaken.
10Whilst working as a sales assistant part-time in September and October 1997, she found the need to stand for long hours caused her neck to be stiff and back pain. During 1998 she had other part-time work but for shorter hours, usually on Fridays and Saturdays, although even this caused her pain, stiffness and a feeling of tiredness.
11In 1998 she obtained one credit and one pass but failed three subjects and in first semester withdrew from another. She said she withdrew because of managing, given her back and neck pain.
12On 5 May 1998 the plaintiff consulted Dr P M Finch, a consultant pain specialist, who reviewed her ten days later. He recommended she see Judy Manfrin, physiotherapist, which she underwent weekly. This helped relieve low back pain. Ms Manfrin also treated the plaintiff's shoulders, neck and upper spine.
13In February 1999 the plaintiff underwent magnetic resonance imaging of her cervical and lumbar spines.
14Her evidence is that she wanted to transfer to Edith Cowan University, which is much closer to her home and that she did so in 1999. She enrolled in the three year Bachelor of Business degree. She was given exemption for certain subjects because of courses passed at Murdoch University. Travelling is less, the course days are not as long and she undertook no part-time employment. The plaintiff agreed she had not been doing well in her studies at Murdoch University.
15In semester one, she gained three distinctions and one high distinction. Three of the subjects studied at Edith Cowan University in 1999 were, the plaintiff said, effectively the same subjects she had studied in first year courses at Murdoch University.
16As at the date of trial, she had sat for the second semester examinations and was awaiting her results.
17During her time as a university student until the end of 1999 she has received Austudy benefits. They ceased because of a change in her family's circumstances.
18The plaintiff argues that her intention to finish a business degree course in three years has been thwarted. She says it will take her five years instead and that one of those two last years can be fairly attributed to the results of the collision.
19She is studying one course over the summer and needs then to study full time to finish her course in 2000, assuming she passes all these subjects.
20The plaintiff said she continues to have difficulty studying because of neck stiffness and shoulder and back pain. She undertakes exercises and takes Panadol and Nurafen supplied by her parents, perhaps up to four tablets per day, three or four times each week. She had regularly attended night clubs prior to the accident but now does so rarely. She avoids the beach, tennis and dancing for fear of resulting pain symptoms.
21She has foregone the opportunity to rejoin a folk dancing group. Nor does she now do vacuuming.
22During the first 12 months she suffered regular nightly headaches and had difficulty in sleeping. These problems are now reduced to once or twice per week.
23She acknowledged that the symptoms had improved over time but said she still suffers regular neck and back pain and some headaches. Stress leads to symptoms. Assignments, note-taking, reading and computing cause problems.
Medical Evidence
24In opening, the plaintiff's case was put as being that there had been in the view of Dr P Finch and the general practitioner, some cervical and lumbar disc damage evident on the MRI reports. The consequence was said to be the possibility that invasive and surgical treatments might be required in future.
25She has had conservative treatment by way of medications, physiotherapy and exercise programmes. A claim that Feldenkrais therapy was also accident related treatment was abandoned in closing since it seems that it relates to postural issues identified by Dr Finch.
26Oral evidence was given by Dr P Finch, Mr P Watson and Dr J Rosenthal. Other medical evidence was admitted by consent.
27The reports of Dr A Elsmann, general practitioner, dated 29 January 1997 and 10 September 1999 were admitted by consent as Exhibits 4A and 4B. Dr Elsmann saw the plaintiff at Morley Medical Practice on 10 February 1997 and reported:
"At the time of presenting Natasha was feeling nauseated and a little bit woozy as well as complaining of head, neck and shoulder pain. At the time of the accident Natasha was wearing a seat belt and the car was fitted with a head rest and she was looking straight ahead at the time of impact.
On examination she was tender all along the neck and shoulder area. Natasha has quite a long neck which makes her more susceptible to a whiplash type injury in this setting.
Her range of movement at this time was full. I anticipated that she would get some neck tenderness the following day and therefore advised her to commence an exercise regime for her neck and shoulders and instructed her as to how to perform these exercises. I also advised her that if the pain was worse than expected or lasted longer than a couple of days to return for further review and treatment. The neck pain did progress and she subsequently saw Dr Cherian in regard to this. … "
28The two reports of Dr Cherian, general practitioner, both dated 21 July 1997, were admitted by consent as Exhibit 7A and 7B. Dr Cherian saw the plaintiff on 24 February 1997 and thereafter until 27 June 1997. In July 1997 Dr Cherian reported that:
"On 24 February 1997 Natasha presented to me for follow-up of another medical problem. She also complained of a sore neck, stiffness, poor sleeping and difficulty driving or washing her hair. On examination Natasha had restricted extension of the neck and rotation and lateral flexion were also limited. There was notable tenderness along the shoulders and cervical spine. She had been taking an over-the-counter anti-inflammatory preparation Nurofen as needed. Natasha was referred for an initial physiotherapy assessment, made on 16 March 1997. At this time a short course of mobilisations, interferential voltage treatment, heat and stretching exercises was undertaken.
On 22 March 1997 Natasha had been to the physiotherapist on seven occasions but could not report an improvement. Her symptoms included waking at night with neck pain. A prescription anti-inflammatory naproxen 550 mg twice daily was recommended along with some exercises and advice.
On 19 April 1997 Natasha reported night-time back pain. She also complained of headaches after physiotherapy. The prescribed anti-inflammatory was giving partial but not total relief. It was changed to Surgam 200mg as needed with advice on use of postural muscles to relieve backache and tension. The backache seems to be a second problem resultant upon the injury higher up the spine and subsequent to Natasha's delayed presentation to treatment.
On 12 May 1997 Natasha reported ongoing back pain despite physiotherapy. While pressure of study time made Natasha reluctant to take on the recommended therapeutic activities such as pool walking and regular stretching she finally agreed to try these strategies due to her degree of impairment. Anti-inflammatories were ceased, with simple analgesia such as paracetamol recommended instead. Physiotherapy reported slow improvement given Natasha's sedentary studying commitments. While still having prominent symptoms there were overall less headaches, more neck flexibility; more back-pain-free days and an increase in range of back movement.
On 12 June 1997 Natasha reported neck pain and strain, headaches, constant backache on the left side. She was doing pool walking and home exercises. At this point a referral letter was written for an opinion from Spinal Specialist Dr Peter Watson, and an appointment made for 25 June 1997."
29The plaintiff underwent physiotherapy from March to May 1997. The report by Lifecare Physiotherapy Morley dated 29 September 1999 was admitted by consent as Exhibit 5:
"Natasha presented for physiotherapy treatment, upon referral from Dr McCarthy from the Morley Medical Centre, on the 16th March 1997. She presented complaining of a one-month history of cervical pain. Natasha reports onset of cervical pain following a motor vehicle accident in which she was the driver of a stationery (sic) vehicle, hit from behind.
Upon initial examination Natasha reported a one-month history of headache and a deep dull ache in the cervical spine. She also reported difficulty sleeping with occasional waking at night. She denied any previous cervical spine injuries. Initial objective examination of the cervical spine revealed restriction of a cervical extension to ¼ range, pain on end range flexion with lateral flexion restricted to 3/4 range left and right. Natasha demonstrated nil limitation of cervical rotation. Palpation of the cervical spine revealed marked tenderness with symptom reproduction over the C3 to T1 facet joints on the right. Headache could also be reproduced upon palpation of C1 and 2 unilaterally on the right.
Initial treatment involved cervical mobilizations of C1-2 to prevent headache and from C6 down to T2 in order to restore range of motion. Initially this mobilization was undertaken on the right facet joints only however, as Natasha's symptoms changed the left and central joints were also mobilized. Treatment also included head therapy, electrotherapy and an extensive home mobilizing program.
By her fourth treatment on the 2nd March 1997, Natasha was reporting occasional headache and neck pain only however, she did feel this pain was aggravated somewhat by studying. Following a ten day break in treatment Natasha presented again on the 2nd April 1997, complaining of an exacerbation of cervical pain as well as development of left sided lumbar pain.
Examination of the lumbar spine revealed marked muscle spasm on the left as well as tenderness upon palpation of the L2-5 facet joints on the left. Initial treatment for the lumbar spine involved left facet joint mobilization for the L1-L5 levels, heat therapy, electrotherapy and gentle lumbar mobilizing exercises. Cervical treatment occurred concurrently with lumbar treatment.
Natasha continued to make slow but steady progress with treatment with both the lumbar and cervical spines until treatment was ceased on the 14th May 1997. At this time Natasha was advised by Dr McCarthy/Cherian that she felt physiotherapy was not helping. At this final treatment Natashas (sic) objective signs were good with full range of motion demonstrated in the lumbar spine with the cervical spine limited to ½ range extension and pain at end of range lateral flexion. All other cervical spine movements were full and pain free. At this final treatment Natasha was reporting minimal headaches with about one headache per week. Natasha was requested on this visit to continue with her cervical and lumbar exercises.
Natasha did not attend the treatment after the 14th May 1997.
Throughout the period from the 16th March 1997 to the 14th May 1997, Natasha attended for a total of 23-physiotherapy session. (sic) "
30The plaintiff saw Mr Watson on 25 June 1997 and on 29 September 1999. His reports are Exhibits 12A and 12D.
31On 25 June 1997 he reported:
"She denies any previous lumbar or cervical spine injuries prior to the motor vehicle accident. On the first day following the accident she began to develop stiffness in the cervical spine which radiated out to the shoulders. Intermittently following this she had lower lumbar spinal ache which was definitely left sided in the paraspinal muscles and as far as the iliac crest which occasionally radiated into the left buttock. The cervical spine problem is the more concerning of the two to Natasha as it is certainly interfering with her studies. The intermittent lumbar spine ache she can help settle by simple massaging of the back. She has been treated with physiotherapy and hydrotherapy, has had rest, analgesic medication with Neurofen and Panadol.
On examination extension of the cervical spine causes pain. Flexion and lateral rotation of the cervical spine are normal. Neurological examination of her arms is entirely normal. Lumbar spine mobility is normal and neurological examination of her lower limbs is normal. Cervical and lumbar spine x-rays are unremarkable with a general spinal canal.
I see no evidence on examination of Natasha of a specific nerve or disc lesion. She displays the symptoms of a hyperextension injury of the cervical spine now with pain ongoing in extension principally. I think that she could now begin a more aggressive program with swimming exercises and I have recommended that she buy a goggle and snorkel and swim freestyle approximately 3-4 times per week.
I do not see any reason to consider any further imaging of the cervical or lumbar spine in the absence of any arm or leg symptoms. I see no reason that Natasha's symptoms should not settle down over the next six months. I have warned her that symptoms ongoing from 'whiplash' injury can last up to 18 months."
32On 29 September 199, more than two years later and shortly before trial, Mr Watson reported:
I confirm that I have reviewed Natasha Podinic today on 29 September 1999 at the request of her general practitioner Dr Angelika Elsmann.
Miss Podinic continues to complain of both cervical spine and lumbar spine symptoms. These appear to be of equal severity and would not appear to have significantly improved since Miss Podinic's consultation with me in June 1997. The cervical spine pain continues in the paraspinal muscles radiating out of the shoulders and associated with bi-occipital headache in the distribution of the greater occipital nerve. Lower lumbar spinal pain is again paraspinal - worst to the left side than the right and radiating to the buttocks.
Neurological examination today is normal. Miss Podinic's cervical spine range of movement remains fully intact. Neurological examination of the upper limbs is normal. On examination of her lumbar spine, she is able to flex to touch her toes and again neurological examination of the lower limbs is normal. She has had MRI scans of both the lumbar spine and the cervical spine and I enclose copies of those reports for your records.
On reviewing these MRI studies and Miss Podinic's physical examination, I would state that she has ongoing symptoms of soft tissue and ligamentous injuries to the cervical and lumbar spine, however, I am surprised that there has not been more improvement over the past two years with a conservative program.
I believe Miss Podinic has at most a 5% (FIVE PERCENT) disability in both the cervical spine and the lumbar spine as a result of the motor vehicle accident in February 1997.
Currently Miss Podinic is completing studies in finance at Edith Cowan University and is in her last year of studies with a further half year of catching up to do next year. In all she feels she has lost at least one year in the past four years of her studies.
Miss Podinic's occupation in the future would be that of a computer programmer looking at installing and programming computers in the finance area. I understand this would require her to sit extensively but at the same time should be a very sedentary occupation.
Miss Podinic is currently attending a physiotherapist treating her with Feldenkrais. I believe that with the correct advice regarding her posture and an ongoing program of exercising and strengthening, Miss Podinic will be able to work full time in an occupation which involves largely computer work.
I see no reason in the future that Miss Podinic's symptoms should not gradually continue to improve and as stated above, I am a little surprised that there has been so little improvement in the past two years."
33Giving oral evidence, Mr Watson agreed that a largely self-administered ongoing exercise and strengthening programme with some physiotherapy was appropriate for the future.
34Radiological reports were admitted by consent as Exhibit 2A and 2B. They are dated 13 February 1998 and 5 February 1999. Mr Watson noted the finding of mild degenerative change in C3-4, C4-5, C5-6 and in L2-3 and L3-4. These were slightly greater than age - normal. He expressed the view that no conclusion can be drawn that is secondary to the collision.
35In cross-examination Mr Watson agreed that the plaintiff's symptoms will resolve over time, and estimated that as up to two years from trial. He conceded that whilst recommending conservative treatment, use of facet block and rhizotomy pain management procedures may be an appropriate possibility or option, probably with only one repeat, if pain or pain restrictions so require.
36The plaintiff saw Dr Elsmann again on 27 June 1997 and thereafter. In May 1998 she was referred to Mr P M Finch. He saw her on 5 May and 15 June 1998. His reports are Exhibit 10A to C. On 15 June 1998 he reported:
"I examined plain x-rays of the cervicolumbar spine dated 24/6/08 which appeared normal. I also examined an MRI dated 13 February 1998, 1 year after her accident. It is significant in this examination that there is desiccation and altered signal in the lumbosacral disc. There is a mild global disc bulge without focal herniation. These changes are somewhat unusual in a 20 year old, and most probably have a traumatic origin and are related to her current pain. No MRI has been performed of the cervical spine.
On examination I found your client to be a slim young woman who appeared well. She had a mildly reduced range of cervical movement, with a MILDLY ALTERED POSTURE. The left shoulder was elevated. Her gait and stance were normal. I could define no neurological abnormalities in the cervical spine and dural tension signs were not present. There was tenderness over the cervical facets, especially at C2/3. In the lumbar spine your client could reach to the mid shins with her fingertips. The return upright was unimpeded. Extension plus rotation caused her typical pain. She was tender over the left lumbosacral facet joint. Neurologically I could not fault her in motor power, sensation or reflexes and dural tension signs were negative on the sciatic stretch test.
In conclusion, your client suffered a substantial rear end motor vehicle collision which may well have traumatised the lumbosacral disc. This has caused her chronic pain state and this disc may need subsequent attention. In the cervical spine your client may have injured the upper cervical facet joints, although a cervical segmental injury involving a disc cannot be ruled out.
I would strongly suggest that she undergo an MRI of the cervical spine, given the findings in the lumbar area. Once she has undergone such an MRI I would ask her to return, and I will issue a small supplementary report. It is difficult to predict the extent of your client's long term symptoms.
I would advise her to try and maintain her fitness with a gentle exercise programme. Given the changes in the lumbosacral disc, there may well be some long term chronic but mild symptoms in this area."
37On 15 March 1999 Mr Finch reported:
"I have now had the opportunity of reviewing your client with a new MRI of the cervical spine. This study is interesting in that it demonstrates mild disc changes at C3/4, C4/5 and C5/6. In a 20 year old this is somewhat unusual and I rather suspect that
she has suffered injuries to the cervical discs such as annular tears that are now associated with the degeneration which is detectable on MRI. Clinically, your client continues to be symptomatic mainly at the upper cervical levels at C2/3 and C3/4, and some of this pain may originate in posterior structures as well. I therefore would consider that the changes seen on MRI are most likely to have originated in rear end motor vehicle trauma. This finding is therefore similar to the finding in the lumbar spine where there is a degenerative lumbosacral disc, which is unusual given her age.
As your client's accident occurred approximately 2 years ago and her symptoms are persisting, I would expect them to continue. It is entirely possible that the degenerative changes will continue and may even in themselves cause further symptoms, although this is difficult to predict.
As your client has a postural abnormality I have arranged for her to see Judy Manfrin who specialises in the area of posture and movement correction. I would not advise any further invasive types of treatment."
38It seems that Ms Manfrin provided physiotherapy treatment to both the plaintiff's lumbar and cervical regions. Her report dated 12 July 1999 was admitted by consent as Exhibit 3. In part it is directed to unrelated postural issues and the consequential Feldenkrais treatment. Ms Manfrin expected a very good recovery given counselling regarding neck and back posture, muscle strengthening and a fitness programme over 10-12 months.
39On 15 July 1999 Mr Finch again reported:
"Firstly, your client still has ongoing symptoms over 2 years after her motor vehicle accident and therefore is most likely to continue experiencing symptoms indefinitely. Secondly, there are MRI changes which are most surprising given her age of 20 and are most likely to be traumatic in origin. It is well documented that splits can occur in intervertebral discs subjected to motor vehicle trauma. These can go on to cause associated degenerative change. It is the degenerative change that is visible on MRI and which is undoubtedly related to her symptoms. I have not suggested that we proceed to discography to prove the connection between her symptoms and the findings on MRI as there are inherent risks in this procedure, such as infection, in a 20 year old. Thirdly, your client was noted at initial examination to have an abnormal posture and this was confirmed by Ms Judy Manfrin, who is skilled in this area of examination.
There is a 50% chance that the cervical pain is related to a disturbance of the cervical facet joints. An approach to such joints could be considered using local anaesthetic as a diagnostic technique. This would possibly determine the painful segment so that radiofrequency techniques can be utilised. Such radiofrequency techniques provide substantial periods of improvement for such types of pain. I would not suggest any approach to the lumbar disc at this point in time. Specific techniques such as heating the inside portion of the disc might be a consideration in the future. The costs of a radiofrequency block would be approximately $600 (exclusive of hospital charges).
Lastly, your client has ongoing mechanical pain both in the cervical and lumbar region. I would argue that this does impact on her lifestyle and ability to function as a student, as it would in the future in the finance and information systems industry. Lumbar disc pain in particular is exacerbated by sitting for more than short periods and cervical pain of the type she describes is typically exacerbated by maintaining the cervical spine in flexion, such as when working with a computer for prolonged periods. I would therefore argue that her injuries will impact on her future and in a long term manner."
40Mr Finch was called by the plaintiff as was Mr Watson. Giving oral evidence, Mr Finch explained that he had concluded that the degenerative spinal changes noted in the MRI reports were of traumatic origin, notwithstanding that such changes can be seen in asymptomatic individuals, because of her youth. He explained his views as to the possibility of future treatment:
"Well, in whiplash injuries it has been found that about 50 per cent of these patients have pain originating in the posterior facet joints. This is determined by very careful nerve block paradigm and that 50 per cent, if you can identify the level of origin of the pain you can in fact block it out on a medium to longer term basis using radio frequency heat and you're aiming to knock out the little nerve supply to the joint. If you can successfully do this once the likelihood is that they will obtain sort of 9 months to a year of improvement and it can be repeated again once or twice. That then gives you a window of opportunity of rehabilitation and improvement so that they can rehabilitate basically."
41The cost each time is a little over $600. He agreed that in the plaintiff's case such treatment is only a possibility and that views may differ as to whether it is likely to be appropriate.
"H H JACKSON DCJ: Perhaps I can ask a supplementary question. As times goes by, does the chance of her needing invasive treatment increase or recede or does it just depend case by case on whether there's ongoing improvement or not? --- Well, I have written down - I consider that she has got mild to moderate chronic problems which are unlikely to change because it's something like 3 years down the track. If anything, she will get degenerative change, which we know from pathology studies happen after a while. These changes will cause secondary problems such as traumatic arthritis in joints, so the likelihood is in maybe a decade or so she will experience increased symptoms and unfortunately the argument put forward that these all get better is not - I've seen these patients 10 years, 20 years down the track and it's still symptomatic. Another factor, too, is she's young. She would hope to bear children. She may experience problems with her lower back especially with carriage of children."
42Mr Finch explained that he regarded the plaintiff's degenerative spinal condition as both abnormal for her age and consequential upon the motor vehicle collision trauma.
43The defendant called Dr J Rosenthal, a specialist in legal and rehabilitation medicine, who saw the plaintiff on 20 September 1999 at the defendant's request. His report is Exhibit 11. After summarising the plaintiff's background and the collision, Dr Rosenthal added:
"An MR scan of the lumbar spine dated 13 February 1998 shows mild early degenerative change involving the lower two lumbar discs. This subtle degree of change is neither post traumatic nor clinically relevant.
MR scanning of the cervical spine dated 5 February 1999, shows mild intravertebral disc dehydration at C3/4, C4/5 and C5/6. There is no evidence of any significant protrusion or post traumatic fissuring or tearing.
You will recall Mr Peter Watson did not see any clinical reason to consider further imaging of the cervical or lumbar spine in the absence of any upper or lower limb neurological symptoms and I fully concur with that position.
MR scanning of the cervical and lumbar spine in these clinical circumstances is outside the peer reviewed guidelines for the investigation of whiplash associated disorder. …
Her current complaints are occipital headaches though these have reduced in frequency and severity. They now occur once or twice per week, mostly at night. Her sleep pattern is sometimes disturbed by back pain, she does not have any jaw symptoms. There is no upper limb pain, weakness or paraesthesia. She complains of posterior neck pain with suprascapular referral. She said that the muscles around her shoulder blades cramp easily and she has lower back ache extending into the upper buttocks which occur particularly with prolonged sitting and standing.
On examination she is a tall, thin young woman with a mildly sway back. She has a long slender neck maintaining normal lordosis. She could squat, heel and toe walk. Her gait is normal, she could weight bear solely on either leg, there is no pelvic tilt. She is in fact quite hyper mobile being easily able to bend forward and touch her toes, she recovers with normal rhythm and tolerates full extension, lateral deviation and rotation. Slump testing is negative and her straight leg raise is only slightly restricted due to ham string tightness. Lower limb reflexes are symmetrical, no muscle spasm was apparent at any time during the examination.
On examining her cervical spine she has full movement with no dysfunction. There is no pain or weakness with resisted scapula movement. Her scalp and temperomandibular joints are non tender. Shoulder movement is full, there is no upper limb neurological signs.
…
I consider that she is fit to engage in full time University studies and to subsequently work in spheres of employment relevant to those qualifications.
…
I do not consider that there is any present incapacity in relation to her ability to engage in employment for which she is reasonably qualified.
Her prognosis should be excellent. Her injuries have been of a musculoligamentous type and I would expect continued improvement with ultimate complete amelioration of her symptoms. The most appropriate treatment would be a return to regular exercise.
There is no indication for any invasive procedures either for investigation or therapeutic reasons. I do not consider one can draw any conclusion regarding post traumatic change from the MR scan reports."
Giving oral evidence Dr Rosenthal was asked to comment on Mr Finch's concerns for the plaintiff's future:
"Well, I can't see any reason to be making gloomy predictions either from a clinical or the results of imaging investigations. To my assessment she is a healthy young woman with some soft tissue pain that I believe would be substantially ameliorated by active exercise. I find the clinical examination indicated a very good level of cervical and lower back function with no evidence of pain or movement or restriction of movement. That doesn't mean that she hasn't got subjective complaints, but I mean, from an objective point of view I would certainly find no basis to be making gloomy clinical predictions."
45He expected continued improvement. He saw no need for ongoing physiotherapy. Nor did Dr Rosenthal see anything significant or age-inappropriate in the MRI results. The results, he thought, suggested genetic predisposition and minor change. He saw no basis to infer traumatic origin. He recommended exercise to give the back greater stability. He did however, agree that the plaintiff suffered pain symptoms resulting from soft tissue injury or musculoligamentous strain suffered in the collision. He saw no evidence of disc injury and regarded this as consistent with the plaintiff's full range of neck movement. Logically there may have been some disc damage but there was no evidence of it. Based on reports his opinion was that the plaintiff had a history of improving symptoms.
General Damages
46The claim is subject to the provisions of s3A to 3E of the Motor Vehicle (Third Party Insurance) Act 1943. Mr Droppert and Mr Sierakowski differ as to what percentage of "a most extreme case" is appropriate.
47Mr Droppert argued that the plaintiff had suffered moderate levels of pain and restriction over two years to trial, the first four to six months being the worst with little real improvement thereafter, some facet joint damage as well as musculoligamentous damage and three years after the collision has a five per cent disability of the neck and five per cent of the low back. Her study and general lifestyle have been interrupted and her earning capacity, past and future, reduced although he agreed in closing that the plaintiff's evidence fell short of establishing a past claim for 15 hours per week over the whole period before trial.
48I prefer, however, the views of Mr Watson and Dr Rosenthal to those of Mr Finch as to the plaintiff's condition and prognosis.
49I asses general damages on the basis that 10 per cent "of a most extreme case" is a generous assessment. Applying that to the prescribed maximum of $219,000 results in a figure of $21,900 which is reduced by s3C to $11,400.
Past and Future Economic Loss
50A claim is made for past economic loss on the basis that the plaintiff had lost part-time or casual earnings as a student since the collision. Her claim is formulated on the basis that from February 1997 she intended to supplement her $55 per week income from Austudy by casual or part-time work, probably as a sales assistant for about 15 hours per week, earning $11 per hour gross. She claims a loss over three years after taking into account actual earnings, of $17,000.
51Past losses must take into account actual net earnings. Between 27 September 1997 and 25 October 1997 she was employed on a part-time casual basis as a sales assistant by Roads, a clothing store in Morley Galleria, earning a gross total of $736 at the rate of $11.40 per hour plus any penalty time rates (Exhibit 8). She also worked at Vivid Clothing from 2 January 1998 to 20 November 1998 working twice each week for three hour shifts or thereabouts, earning a net income of $3,141: Exhibit 9A and 9B. This work was, she said, at the rate of $11 per hour, also with some penalty rates.
52Mr Sierakowski argues that there is no evidence suggesting inability by the plaintiff to have earned since the collision more than she is fact has. However, I do not agree. I allow a figure of $7,500 on the basis that to some extent the plaintiff's capacity to earn part-time income has been limited. I am not satisfied however, that she has lost the full extent of her claim under this heading.
53Future losses are claimed on the basis that the plaintiff's full-time earning career as a graduate has been delayed by reason of interruption to her studies as a result of the collision. It is agreed that the appropriate gross weekly rate for any such claim is $607 per week, net $467 per week. A loss on that basis would amount to $25,000.
54She has no employment arranged after graduation and employment may not be available.
55Mr Sierakowski argues that no award should be made for future economic loss on the basis that given the plaintiff's academic record, especially in first year when subjects might be expected to be easier, it could not be said that her graduation date had been adversely affected. He conceded however, the possibility of loss of earning capacity for six months. I prefer the likelihood of the plaintiff losing one year's earnings as a result of the collision.
56I allow a full 12 months, $25,000.
Future Medical Expenses
57Until trial these were claimed in a global sum of $10,000, including the possibility of future intrusive or surgical treatment. The plaintiff's claim is now more modest, being for periodic medical reviews, some medications and some ongoing exercise programmes, with the possibility of some future facet block or rhizotomy procedures.
58I allow $2,000.
Special Damages -
59These were agreed not to form part of the judgment. They have been or will be paid by the defendant.
Conclusions
60For the foregoing reasons I assess damages as follows:
General Damages $11,400
Past economic loss including loss of
superannuation benefits and interest $7,500
Future economic loss including loss of
superannuation benefits $25,000
Future medications and medical consultations $2,000
Total $45,900
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