Rahim v Crawther - [2000] WADC 63

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: RAHIM -v- CRAWTHER & ANOR [2000] WADC 63

CORAM: COMMISSIONER STAVRIANOU

HEARD: 8, 9 & 23 DECEMBER 1999 AND 24 FEBRUARY 2000 (WRITTEN SUBMISSIONS)

DELIVERED : 2 MARCH 2000

FILE NO/S: CIV 3817 of 1998

BETWEEN: FIONA ANNE RAHIM
Plaintiff
AND
DARYL MARK CRAWTHER
First Defendant
PETER KUNST
Second Defendant

Catchwords:

Damages - Assessment - Personal injury - Extent thereof and effect upon earning capacity - Extent of loss of earning capacity - Plaintiff 41 year old female swimming instructor at time of accident - Soft tissue injury to cervical spine - Turns on own facts.

Legislation:

Nil

Result:

Judgment for plaintiff for $52,650.

Representation:

Counsel:

Plaintiff:     Mr D R Clyne
First Defendant             :     Mr D M Bruns
Second Defendant         :     Mr D M Bruns

Solicitors:

Plaintiff:     Simon Walters
First Defendant             :     Willers & Co
Second Defendant         :     Willers & Co

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

Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Paul v Rendell (1981) ALR 469
Watts v Turpin [1999] WASCA 216

Case(s) also cited:

Nil

COMMISSIONER STAVRIANOU:

Introduction

The plaintiff claims damages for personal injuries which she suffered in a motor vehicle accident caused by the admitted negligent driving of the defendants. I am required only to assess her damages.
The defendants' case includes a denial of injury and incapacity. Further the defendants plead in the alternative that if injury, loss and damages were sustained then they were caused by or contributed to by:
"(a)psychological problems, sleep disturbance, injuries, loss and damages sustained by the plaintiff when in September 1997 she was assaulted whilst working as a Swimming Instructor;
(b)pre-existing degenerative changes to the plaintiff's cervical spine at C5/6."
The plaintiff is 41 years of age born on 28 May 1958 who is now employed as a sales assistant. She left John Forrest High School having completed her third year. She has two children, one born in 1979 and the other in 1981.

The accident

The accident happened on 28 April 1992 when the plaintiff was 33 years of age. She was a passenger in a coach being driven by the first defendant when it was involved in a collision with a motor vehicle driven by the second defendant. The plaintiff at the time was enjoying a tour to the Barossa Valley after having been to a swimming conference in Adelaide. She was seated in the front of the coach two rows behind the driver and had just put down her video camera when the accident occurred. The plaintiff's evidence was that she remembered being thrown forward to the seat in front of her and striking her chest on a bar on the seat in front.
The plaintiff told me that immediately after the accident she was in shock and started to feel pain in her neck. She identified the pain as being to the right of the midline and in a position approximately above the collar line. Another passenger placed a towel behind the plaintiff’s neck as a support and she was then driven to the local hospital where she was admitted. She was placed in a neck brace and then transferred by ambulance to the Adelaide Hospital. During the ambulance trip the plaintiff felt nervous and uptight at having had an accident. The location was strange to her. She was on her own and by the time she arrived at the hospital she felt nauseous.
The plaintiff was admitted to Adelaide Hospital where she remained for two nights. The plaintiff told me that during that time she was in a fair degree of pain. Following x-ray examination the neck brace was removed. Upon discharge from hospital she returned to Perth and felt depressed about the accident and in pain in the few weeks following it. She thereafter consulted her general practitioner.

The plaintiff’s evidence

The plaintiff’s first employment after leaving school was as a receptionist. She remained so employed for about three years until she married in 1978. Her only other employment prior to marriage was as a strapper and some sales work. When her children commenced school she began part-time work as a swimming coach which she continued until March 1999.
When she returned to Perth after the accident the plaintiff recommenced her swimming coaching. It was the off season and she was only required to work one to two hours each afternoon. She told me that she did not need to go into the pool to give instructions to her students. Because of pain with movement and headaches when the next full season of coaching began the plaintiff became more verbal in her method of instruction. The plaintiff told me that freestyle or backstroke movement brought on headaches.
She told me that after the accident she began applying for positions as a sales assistant and that she did so on about four or five occasions. She told me the reason she did this was because she wanted a change. In 1998 she was successful in obtaining her first sales assistant's job. This position was with Peter Sheppard Footwear.
The plaintiff told me that she was still employed by Peter Sheppard Footwear and worked every second Sunday for five hours. The plaintiff told me that she has since August or September 1999 been employed in the footwear department of Harris Scarfe performing essentially similar duties to those which she performs at Peter Sheppard's. She told me that she was unable to work full-time because of the pain in her neck and the headaches, which had arisen since the accident.
The plaintiff told me that prior to the accident she regularly swam up to a kilometre per day and enjoyed playing tennis, tenpin bowling, craft hobbies and the guitar. All of these activities have been impossible for her to perform since the accident. The plaintiff told me that since the accident she has been unable to assist her sister as a strapper because she was frightened of injuring herself if a horse pulled away. She is now afraid of being near horses.
The plaintiff has seen a number of medical practitioners in relation to her injuries and has received treatment including acupuncture, facet joint injections and the use of a Tens machine. She also had a course of physiotherapy which lasted for a few weeks.
In September 1997 the plaintiff was working at a swimming pool when a person attacked her with a knife. As a result of what was an extremely traumatic incident she required microsurgery to her left thumb. The incident and its effect upon her was described by the plaintiff in her evidence as follows (T16):
"Did you know that man?---No.
Did it affect your other injuries in any way?---I think that the attack was so strong that I don't - I find it difficult to try and associate the two together because it overtakes - the hands overtakes - and the trauma overtakes. I don't think the two have anything together.
Did that have any impact on your deciding to change jobs?---No, because I had tried previously before, and I probably didn't try that often because I felt there was no point because I would just fail anyway, but I did try a few times but this time meant that I couldn't handle to be at the pool any longer and that meant that I didn't mention my neck to get a job. Then I did that."
The plaintiff in cross-examination said (T22):
"Would you say that you’re generally a tense person?---Within the last 2 years I’m probably a little more tense that I had previously been.
Before that, would you have said that you are more tense than average?----Before the attack?
Before the 2 years, yes?---No."
The plaintiff told me that she could not remember when she started to experience headaches but that she now takes mersyndol to relieve the pain. The plaintiff testified that the injuries sustained in the accident have had an impact on her current employment. There are days when she is on her knees helping customers with footwear or is up a ladder putting boxes away and these types of activities aggravate her neck and make the incidence of headaches a lot more consistent. She told me that on occasions at Peter Sheppard's she had worked for 36 hours in a week but that thereafter she was very stressed, in a lot of pain and constantly on tablets. She told me that because of the pain in her neck and headaches she thought that full days every day of the week would be too much for her.
The plaintiff told me that she had not sustained any loss of income from swimming and that there was no loss of sick leave as had been pleaded in the statement of claim. The plaintiff told me that she now worked two jobs, one for 27 hours a week and the other for five hours. She had performed household chores and gardening since the accident and recently assisted her husband to establish a garden.
I was shown in evidence a surveillance videotape of the plaintiff taken on 11 November 1999. The duration of the video was 13 minutes 15 seconds. The videotape shows the plaintiff in her employment moving parcels, bending and serving customers and also shows her driving a motor vehicle.

Re-opening of plaintiff’s case

The plaintiff closed her case on 8 December 1999 "subject to the clarification of special damages." The defendant then called Mr J D H Bell. At the conclusion of his evidence the plaintiff’s counsel foreshadowed an application to re-open the case to recall either the plaintiff or Dr Mark Edelman. The application was not made until after the close of the defendant’s case and was opposed. I allowed the application and told the parties my reasons for so doing would be contained within this judgment.
I was told the evidence to be adduced from Dr Edelman was to be led to establish a referral of the plaintiff by him to a physiotherapist and of particular complaints made to him by the plaintiff. I was told that the plaintiff had only just located a document, which established the referral, and that the document dated 3 February1993 had not previously been made available to the plaintiff’s solicitors. It was submitted that without the evidence the hearing would proceed on incomplete material. The defendants' counsel submitted the application was made too late and that the case had proceeded on a particular basis.
A party must ordinarily adduce all evidence when presenting his or her case. However, there is discretion to allow re-opening in the interests of justice. In the course of the plaintiff’s case I had received Dr Edelman’s reports dated 3 August 1993 and 24 March 1994 as exhibits by consent. It is a question of fact whether the referral and complaints were made. Dr Edelman presumably would have clinical notes which the defendants could examine and utilise (if so advised). He would clearly be available for cross-examination, as would the plaintiff and her other witnesses if required. In this case the plaintiff’s credibility is in issue and the evidence to be adduced is relevant to that issue, to the course of treatment and presenting symptoms. Dr Edelman was the first medical practitioner who saw the plaintiff when she returned from South Australia after the accident and was her general practitioner. I accept the submission that without his evidence the material before the Court would be incomplete. In my view it was appropriate to allow the plaintiff to re-open to call Dr Edelman on terms that the defendants be permitted to further cross-examine any of the plaintiff’s witnesses.

Medical evidence

Andrew Craig Harper is an Occupational Physician who gave evidence on behalf of the plaintiff. He first saw the plaintiff on 30 July 1999 at the request of the plaintiff’s solicitors. He noted that upon examination the plaintiff had a full range of neck movement but that side flexion and rotation to the right both aggravated right sided neck pain. Otherwise he noted that the range of neck movement was unimpeded. He identified a point of focal tenderness just to the right of the cervical spine at the C4/5 level in the facet joint area. Examination of the arms revealed normal range of movement and normal sensation. His diagnosis was of a flexion extension injury to the neck of mild to moderate severity.
Mr Harper was asked about the different locations of the pain identified by the plaintiff to the medical practitioners she had consulted and in particular the variations between the C5/C6 and C6/C7 levels. In his view the important thing was that the plaintiff had tenderness on the lower right side of the neck and there was no clinical significance to the different locations of the pain identified by the plaintiff. He did agree that there was a difference between an identification of the C2 and C7 levels. In Mr Harper's view it was possible for the plaintiff to be tender at other locations distant from the primary pathology.
Radiological examination of the cervical spine carried out on 25 October 1993 revealed ossification in the anterior longitudinal ligament at the C4/5 and C5/6 levels. A later x-ray of 25 July 1996 revealed a small osteophyte on the anterior margin of the body of C/5 and at the C5/6 disc junction. There was focal ossification in the region of the anterior part of the C5/6 disk annulus that was interpreted as possibly being due to an old minor injury or idiopathic degeneration. In Mr Harper's view the radiographic findings localised the pain to the right-hand side of the neck.
In a report of 2 August 1999 he opined that:
"… Mrs Rahim's work capacity has been compromised as a result of the bus accident. She is capable of between 20 and 30 hours per week with restricted duties …"
He considered the work restrictions to be to avoid bending with her head down, carrying and lifting heavy objects and repetitive movements of the neck in any direction. She should avoid running and prolonged driving. In his view the plaintiff is capable of working as shop assistant but would advise against her current occupation in a shoe store due to the repetitive bending, stooping and reaching required.
In Mr Harper's view the limitations upon the plaintiff relate to her ability to endure repetitive activity of the neck and in particular twisting and bending forward, bowing of the head and reaching of the arms. He considered that the plaintiff was able to perform her employment duties but the effect was to generate symptoms of headache and neck pain which then had the effect of reducing her capacity to perform activities on the next day. In his view the plaintiff was less competitive in the open workforce. He noted that although her restrictions were not marked they did make her a less attractive employee than the average next person available.
Mr Harper was shown the video of the plaintiff. This did not affect his opinion, as the repetition of activity, which was the cause of the problem, was not depicted. He considered that the restrictions with regard to work capacity would continue in the long term.
Mr Harper made a number of recommendations as to future treatment including psychological counselling for depression involving instruction in stress management and some involvement of the family in a supportive role. He favoured a change in her employment duties to a position that did not require lifting, bending and reaching. He considered the plaintiff required an exercise program to promote cardiopulmonary fitness, facilitate weight loss and provide gentle exercising of the upper body. In addition he considered the plaintiff may benefit from non-manipulative chiropractic treatment. Mr Harper was unable to apportion the plaintiff’s emotional symptoms between the 1997 assault and the 1992 accident but he did feel that there was some indication that the bus accident had contributed to some degree to the plaintiff's emotional symptoms.
Geoffrey James Gee is a Specialist Anaesthetist and Consultant in Pain Management who saw the plaintiff on 18 May 1999 and 23 November 1999. He noted tenderness over the occipital nerves, more to the right than the left. Her cervical range appeared quite normal and there was no restriction of shoulder movement. X-rays did not show any significant abnormalities. In his view the plaintiff would have some restrictions placed on her in employment and considered that she should basically be aware of standard back care including routines in relation to posture, weight, distribution of activities and position of the head.
Mr Gee provided a report of 20 May 1999 in which he stated:
"4.It is my expectation that with appropriate exercise, guidance, and commitment on her behalf, that her future work capacity will not be comprised.
…
6.I believe that Mrs Rahim has the capacity to look at a variety of activities. I believe that her range of duties and tasks will improve with appropriate commitment to suitable long-term exercise.
7.I am not convinced there is any dramatic restriction to her competitiveness in the open work force.
8.I believe that it would be appropriate to finalise her claim.
9.I believe she has a residual disability affecting her cervical spine. The disability is of the order of 5 per cent.
10.I believe Mrs Rahim's injuries could be classified as mild to moderate."
Mr Gee in his report of 25 November 1999 stated he believed that the plaintiff would need to maintain sales duties or similar activities and avoid any substantial lifting. He did not consider that her future work capacity had been compromised. In his view she may have restriction in the open work force. In so far as future treatment was concerned in his view an appropriate exercise program needed to be maintained. An improvement in physical fitness would have an influence on her symptoms. Future treatment needs were minimal. The problem was muscular and the plaintiff’s perception of pain was affected by her emotional state.
Brian Lionel Golten-Fenzi is a Specialist Occupational Physician who first saw the plaintiff on 29 July 1996. The plaintiff presented on 29 July 1996 with right sided neck pain, associated headaches and occasional pain down her right arm. He considered the plaintiff's work capacity was reduced because of increase in neck pain. In his view she would be able to have a normal work capacity within the period of 12 to 18 months from the date of consultation.
Mr Golton-Fenzi next reviewed the plaintiff on 23 November 1999 when she presented with pain to the right side of the neck focused at the C4/5 paravertebral region that extended down into the shoulder blade region. He noted in a report of 23 November 1999 that:
"… I felt that some pain behaviour, tending to withdraw from me during my palpation of her neck region. She was observed to hold her head consistently to the left. She was noted to be right hand dominant.
She undressed without too much difficulty, but whilst sitting in the chair she kept on pressing her fingers on the right side of her cervical region and indicated that following my clinical assessment her symptoms were worse.
The cervical spine exhibited a limited range of movement with flexion moving to 80 per cent expected; extension of 80 per cent of expected.
Rotation to the left 80 per cent of expected; to the right 60 per cent of expected.
Lateral flexion was also 80 per cent of expected or causing right sided cervical C2/3 and C3/4 facet joint regional pain.
On palpation, she was extremely tender over the right cervical C2/3 facet joint …"
In Mr Golten-Fenzi's view the evidence suggested that the plaintiff had developed chronic pain which was neuropathic in nature and involved ongoing chronic inflammation of the right C2/3 facet joint, the right C5/6 facet joint and a right occipital neuralgia. He also noted mild depression. The plaintiff in his view did have a reduced working capacity and it was unlikely to change substantially in the future. Her work capacity was therefore compromised for some considerable time. In cross-examination he told me her capacity to do the full range of jobs was marginally reduced. He assessed the plaintiff's physical disability at 16.3 per cent of the cervical spine and considered the injuries to be of moderate severity. Future treatment in the form of medication and exercise would be necessary and reviews once every two months by a general practitioner would be required.

Mr Golten-Fenzi was shown the videotape of the plaintiff taken on 11 November 1999. In his view clinical examination was a better method of assessment than what could be derived from an observation of the video.
Peter John Connolly is a General Practitioner who has seen the plaintiff since about September 1998 and gave evidence on her behalf. His examination of the plaintiff revealed that she was tender at the right C3/4 and C4/5 facet joints. He believed that the plaintiff should avoid heavy lifting, lifting repetitively above shoulder height and excessive turning of the head. As a result he considered that the plaintiff would have some limitations in her employment. He assessed the plaintiff as having a permanent disability of her neck of approximately 5 per cent and classified her injuries as mild to moderate. Upon review on 19 November 1999 the plaintiff complained of persisting right neck pain radiating to the right shoulder and arm. There was tenderness to the right of C3 to C6 in her cervical region and right inter scapula area. She had a full range of movement although there was discomfort with right rotation.
John David Hamilton Bell is an Orthopaedic Surgeon who gave evidence on behalf of the defendant. He reviewed the plaintiff on 28 August 1997 and 9 November 1999.
Mr Bell reported on 28 August 1997 that the plaintiff presented with neck pain on the right side that had been an ongoing problem since the accident. He noted that headaches were a problem that occurred approximately once a week or more. Upon examination he noted the plaintiff had a full range of movement of all the joints of the upper and lower limb. There were no positive neurological signs in the upper or lower limbs. Range of movement of the cervical spine was fairly full with discomfort on extension and rotation to the right. There was tenderness mostly in the upper trapezius muscles on the right and in the para spinal muscles in the mid cervical spine region on the right. Mr Bell diagnosed a soft tissue injury to the cervical spine, mostly in the upper trapezius muscles with no radiculopathy evident. He did not consider there was any need for further investigation, and any treatment should be along conservative lines. He considered that although the plaintiff might remain with discomfort for some months he would not expect the April 1992 injury to leave her with any degree of permanent disability.
Upon presentation in 1999 Mr Bell noted a significant change in the plaintiff’s condition. She was now very anxious and emotionally labile particularly when asked about the September 1997 attack. She was still overweight. Range of movement of the cervical spine remained fairly full and the plaintiff had discomfort on extension and rotation to the left. Tenderness was diffuse in the mid and upper trapezius region mainly on the right side.
Mr Bell did not consider there was any change or progression demonstrated by the x-rays and considered that the increase in symptoms was not usual. In his report of 9 November 1999 he stated:
"There must be some doubt about the situation. It is now more than 7 years since the April 1991 injury. It does appear reasonable to award the patient the benefit of such doubt. It does therefore appear reasonable to assess that her ongoing neck discomfort problems do remain significantly related to the bus injury in April 1992."
When asked about the above paragraph he explained that what he was dealing with was the relationship between her presenting symptoms (condition) and the accident.
Mr Bell was asked about the effect of the 1997 attack and in his view stress and muscle tension could be produced by an incident of that type. There was no great evidence that her neck injuries were significantly worsened by the attack but her emotional state did appear very much affected. Headaches could arise as a result of the 1997 incident.
Mr Bell considered that it was important for the plaintiff to keep active and keep up extension activities. In his view if there was considerable pain in extension of her neck such as would occur in working as a shoe salesperson then the plaintiff should use her knees and in that way reduce the strain on her neck. In his view the April 1992 injury did not leave the plaintiff with any degree of permanent disability and that she was capable of working as a sales assistant in a shoe shop.
Stuart William Brash is an Orthopaedic Surgeon who saw the plaintiff on 20 July 1999 and 23 November 1999 and was called on behalf of the defendant. Dr Brash told me that true organic pathological anatomy pain is characterised by consistent and persistent localised tenderness. He considered that the variation in location between pain at the C2 and C7 levels required consideration of the possibility of whether there was non-anatomical or functional factors in the presentation. In the opinion of Mr Brash muscle tension was the most common cause of neck pain. In his view the plaintiff did not have any objective musculoskeletal cause for the pain and accordingly any treatment based upon the presumption that there is an anatomical basis for it was doomed to failure.
Mr Brash reviewed the plaintiff on 23 November 1999 and he described her presentation as being a very intense young lady.
Mr Brash disagreed with the assessment made by Mr Bell of the cause of the plaintiff’s problems being a soft tissue injury to the cervical and thoracic spine region. His view was that there was no evidence at all in the international literature that chronic soft tissue injury gives pain over such a period of time. In his report of 23 November 1999 Mr Brash opined as follows:
"Thus I am not able to see any objective evidence of pathology that I can relate to the accident now 7½ years ago. I believe it is possible that this patient suffered a soft tissue injury as a result of the incident 7½ years ago. However, it is beyond reason and logic and straight biology to consider that a soft tissue injury 7½ years ago can give such severe, constant symptoms. I believe that there are non-organic or functional factors present in the total pain picture make this statement because:
• my inability to reconcile the severe, constant symptoms which appear to be remaining the same or getting slightly worse with the lack of underlying pathology.
• the non-anatomical sensory change to superficial rolling the skin or light pinch. I am still of the opinion that a lot of her symptoms are due to tenseness and anxiety ..."
He considered that there was a myth even amongst doctors that there was an anatomical cause for chronic whiplash pain. In his view there was no anatomical basis for the symptoms. Mr Brash relied upon a recent publication by Mr Robert Ferrari entitled Whiplash Encyclopaedia. He stated that whilst the publication was new the work contained therein was not.
In Mr Brash's opinion the only treatment he would recommend would be for the plaintiff to be reassured that she suffered no real structural damage as a result of the accident in 1992 and that she should get back to full activities of her daily living. He considered there was no indication for surgery and that there was no permanent objective measurable residual disability. He considered the plaintiff was fit for the full activities of daily living including her work as a seasonal swimming instructor.
Peter Lynton Silbert is a Neurologist who reviewed the plaintiff on one occasion on 5 July 1999. Upon examination he found the plaintiff to be neurologically normal. He found focal tenderness over the right mid cervical spine region, probably encompassing the facet joints and overlying musculature. He gave evidence on behalf of the defendant. In evidence (T88) he explained the relationship between stress and muscular symptoms as follows:
"I think just to put things into perspective, the motor vehicle accident was in April 1992 and I saw the plaintiff 7 years later and really seeing her at that time there were issues that had arisen in the two years prior to my review which were a major cause of ongoing stress. Her symptoms related to the motor vehicle accident, which is largely on the basis of history because I was seeing her after 2 years of significant stress, were of muscle contraction, headaches, neck discomfort and some of that discomfort rotated down the right arm. If you have tension, stress, then you will have muscle tightness, you will have poor quality sleep and those factors all contribute to the ongoing muscle contraction headache to the ongoing cervical discomfort and stiffness and to the ongoing symptoms that go into the right arm therefore until you take away stress and tension, the other symptoms will persist …"
He considered that muscle tension can cause symptoms in isolation.
Mr Silbert's diagnosis was that the injury sustained was predominantly muscular, probably with a facetal component related to the right mid cervical spine facet joints. In Mr Silbert's view the assessment by Mr Bell of 28 August 1997 was probably the most reliable as it ante dated the attack in September 1997. Mr Silbert did not consider that further treatment would be required and in his view the whiplash injury at the time of the motor vehicle accident probably activated pre-existing degenerative changes at the C5/6 level. In his view the plaintiff was physically able to continue her employment as a swimming coach if it were not for the unrelated events of September 1997.
Mr Silbert's prognosis was that the plaintiff's symptoms were likely to continue while psychological factors related to the events of September 1997 persisted. Until there was an improvement in the quality of her sleep muscular symptoms would persist. He assessed the plaintiff as having a 5 per cent permanent residual disability related to her neck.
Mark Edelman first saw the plaintiff on 8 May 1992. In his report of 24 March 1994 he noted that upon presentation on that date the plaintiff stated that up until three weeks before she had been having minimal symptoms. She reported that she had onset of neck pain mainly at night, together with radiation of pain to the right shoulder. There were no associated headaches. Upon examination Mr Edelman noted tenderness to the C4/5 and C5/6 levels. He noted slight limitation in the ranges of movement of flexion, right lateral flexion and right rotation of the cervical spine. In his report he considered that she should have no permanent disability and no permanent detrimental consequences to her work capacity. Whilst observing that she could not do heavy lifting he considered that this was rarely required.
Mr Edelman’s view was that the plaintiff may suffer intermittent neck pain requiring mersyndol and possibly physiotherapy although no more than once a month at the most. In summary he considered her work capacity was for full duties and did not feel her injuries would predispose her to accelerated degenerative changes. He last saw the plaintiff on 13 September1995 when she presented with tenderness at the C6/C7 level and complained of headaches. Since that date the plaintiff had seen other medical practitioners in Dr Edelman’s rooms.
There were a number of medical reports tendered by consent without the practitioners concerned being called.
John Cox provided a report dated 5 November 1992. Mr Cox is a medical practitioner who saw the plaintiff following her admission to the Modbury Hospital on the day of the accident. It is noted in the report that upon arrival in the emergency section the plaintiff was complaining of discomfort in her neck, her upper back and her sternum. X-rays were taken of the chest that showed no significant abnormality and x-rays of her cervical spine showed no bony injury and normal alignment. He made a diagnosis of a sprain of the muscles and ligaments in the upper back together with some bruising.
Dr John Rosenthal saw the plaintiff on 25 October 1993 and reported on 26 October 1993. He noted that the plaintiff's pain was predominantly right sided over the mid and lower cervical segments with some extension into the right trapezius and upper arm. He noted specific tenderness of the right C5/6 and C6/7 facet joints. Cervical rotation to the right was mildly restricted with end range pain.
Dr Rosenthal considered the clinical findings indicated that her right C5/6 joint was the principal focus from which the ongoing pain emanated. In so far as future management was concerned he considered that the further resolution of the injury was just a matter of time and continued exercise. He concluded his report as follows:
"She remains fully fit for normal employment duties subject to the above restraints, I would not think her future earning capacity has been impaired in the long term nor do I expect her injury to predispose her accelerated degenerative change. She has stabilised sufficiently for the matter to proceed to settlement, her current level of disability is around 5 per cent and I would expect this to gradually ameliorate over the next twelve to eighteen months."
Nicholas Anastas is an Orthopaedic Surgeon who provided a report of 21 August 1995 relating to the plaintiff's attendance upon him on that date. Upon presentation the plaintiff complained that her neck still ached and the pain was there most of the time. She had headache, which was felt at the sides of the head and was throbbing in nature. He noted very slight limitation of the extremes of rotation of the cervical spine and the extremes of rotation lateral flexion and extension of her cervical spine caused discomfort. He noted no neurological deficit in her upper limbs and she did not have any tenderness over her thoracic spine. X-rays of the cervical spine did not reveal any bony injury and x-rays of the thoracic spine were said to show minor spondylitic changes.
The opinion of Mr Anastas was that the plaintiff was fit for work but she should try and avoid prolonged heavy lifting and be shown the proper way to lift. Overall he expressed his opinion that the plaintiff was left with permanent disability of mild severity in her cervical spine as a result of the motor vehicle accident which she sustained on 28 April 1992. Mr Anastas did not think that the neck injury sustained on that date would be a factor in predisposing her to the early settlement of degenerative changes in her cervical spine. He considered that settlement of her claim could be initiated.

Other witnesses

Adrianna Clesina McAuliffe is the plaintiff’s sister and gave evidence on her behalf. She is the holder of a race horse trainer's license and told me that prior to the accident the plaintiff would assist her to strap horses. This involved saddling and unsaddling, hosing down and generally caring for them. She told me that prior to the accident she did play sport occasionally with the plaintiff but that this ceased after the accident. In her view the plaintiff became more emotional and tense after the attack.

Conclusions and Assessment

Loss of amenities

I accept and find that in the motor vehicle accident that occurred on 28 April 1992 the plaintiff suffered an injury to the soft tissues of her right mid cervical spine. This was essentially the diagnosis of Mr Bell and Mr Silbert and I accept their evidence in this respect. The medical evidence which I accept was that in the normal course the symptoms associated with a soft tissue injury such as sustained by the plaintiff should gradually subside. The plaintiff’s history has been different. Her symptoms have not subsided.
I do not accept that the defendants have discharged the onus in establishing that the plaintiff’s problems were caused by or contributed to by pre-existing degenerative changes to the plaintiff’s cervical spine at the C5/6 level. In this respect the evidence of Mr Bell which I accept was that degeneration is not the cause of the pain. In his evidence Mr Silbert referred to the impact of degenerative changes. He however had only seen the plaintiff seven years after the accident and his evidence on the issue was not of sufficient detail for me to rely upon.
The plaintiff’s recollection concerning treatment and the effects of the accident was at times imperfect. She was unable to recall when she began to experience headaches. This is to be expected given the time elapsed since the accident. The plaintiff’s evidence was that it was mostly sport and family outings that she has ceased as a consequence of the accident.
She told me that she did not play mini golf with her family because she felt she could not join in. She did not work with horses because of fear of injuring herself. She considered she was unable to work full time because of the neck pain and headaches. The plaintiff massaged her neck frequently when the surveillance video was shown to her. The impression I formed on all the evidence was that she was overly concerned about her condition and I approach her evidence with some hesitation in relation to her description of the effects of the accident upon her. I consider she attaches a greater significance to her symptoms than is justified. However I am mindful that the plaintiff remains stressed and tense as a result of the attack.
The plaintiff on occasions identified differing locations for the pain. The locations identified ranged between the C2 and C7 levels. The identification of the C2 level was made to Mr Golton-Fenzi in 1999. Until that time the plaintiff had consistently identified the focal point of her neck pain as being in the general level of C5. I accept the opinion of Mr Bell that as there was no fracture and that as the injury was soft tissue the level identified was not important. Overall I am prepared to accept the plaintiff as an essentially truthful witness.
Prior to the accident the plaintiff had no difficulty with her neck and was active. She enjoyed a number of different recreational and sporting activities including swimming and tennis. Whilst the plaintiff has had treatment the majority of the practitioners who have reviewed the plaintiff in recent years have done so at the request of the solicitors for the parties. The plaintiff told me that she did not like to take up the time of doctors. Whilst she did have facet joint injections arranged by Dr Connolly in essence she has had very little treatment over recent years.
In my view by about August 1997 the plaintiff’s injuries had stabilised and any further treatment was likely to be along conservative lines. Whilst Mr Bell and Dr Edelman considered the plaintiff would be left with no residual disability, the evidence of Mr Anastas, Mr Rosenthal and Mr Golton-Fenzi was that there would be some disability. Both Drs Bell and Edelman accepted some incapacity for work when making their assessments. I consider it reasonable to accept that as at August 1997 the prognosis was the plaintiff would be left with some mild residual disability as a result of the injuries sustained in the accident.
Mr Bell considered the increase in the plaintiff’s symptoms was not usual. Radiological examination carried out showed no evidence of change since the accident. Recent physical examination has been essentially unremarkable. The evidence of Mr Silbert, which I accept, is that muscle tension can cause symptoms in isolation. In his view muscular symptoms can continue when there are other factors involved. As Mr Gee said the plaintiff’s emotional state effects her perception of pain. Mr Silbert said a similar thing when he told me that the symptoms were likely to continue while psychological factors related to the events of September 1997 persisted. Stress will be a perpetuating factor in terms of symptoms and I accept his evidence in this respect. Essentially both Mr Bell and Mr Brash support his opinion.
The attack in September 1997 was a devastating incident for the plaintiff. The plaintiff’s evidence was that before the attack she was no more tense than average. The attack has made her tense and she has been placed under considerable stress. She had to give up her job as a swimming instructor as a result. She became distressed when she gave evidence about the attack. In my view it is the effect of that incident which has resulted in the plaintiff’s symptoms failing to progress as had been contemplated by the medical practitioners who saw her before it happened. The effects of the attack provide the explanation for the persistence of symptoms.

The plaintiff sustained an injury of moderate severity in the accident, which in the normal course probably would have resolved itself by sometime in 1998. She has suffered some headaches and right sided neck pain as a result. She is now left with only a minor residual disability as a result of injuries sustained in the accident. Her condition will improve as she gets fitter and the effects of the attack diminish. She is able to work and been able to do the physical work of establishing a garden. In my view the plaintiff should be awarded $17,500 as general damages for past and future pain, suffering, inconvenience and all other matters usually referred to as loss of amenities.

Past loss of earning capacity

The plaintiff pleads in the statement of claim that:
"As a result of accident injuries sustained on the 28 April 1992 the plaintiff required sick leave and was absent from her pre accident occupation as a swimming instructor and she has suffered a loss of past earnings particulars whereof will be supplied prior to trial ..."
No particulars as promised were supplied. The plaintiff however delivered a schedule of loss that particularises past loss in the sum of $62,148.04. There are three parts to the claim:
1.A claim for $8,535.89 representing the difference between what the plaintiff earned on a part-time basis from 6 April 1998 to 31 August 1999 and what she could have earned if she had worked full-time. The rate claimed is $116.93 per week for a period of 73 weeks.
2.A global sum of $50,000 to compensate the plaintiff for an inability "to return to work sooner then April 1998".
3.Interest of $3,512.15 calculated at the rate of 6 per centum per annum on the sum of $ 58,535.89.
Counsel for the plaintiff submitted that the assessment of past and indeed future loss of economic capacity should proceed on a global basis. The submission was that the plaintiff's symptoms precluded her from working full-time and secondly limited the variety of occupations that she is able to cope with. In his closing submissions counsel for the plaintiff submitted that past loss should be assessed from 1996 when the plaintiff began looking for employment and was unsuccessful because of the disclosure by her of the problems with her neck.
Following the accident the plaintiff returned to her pre accident occupation as a swimming teacher. In her evidence she accepted that she did not lose any earnings from swimming coaching or sick leave entitlements after the accident. I therefore make no allowance in that respect.
The evidence of the plaintiff, which I accept, is that she attempted to obtain employment as a sales assistant and was unsuccessful. She attributed this to the disclosure of the problem with her neck. I accept the evidence of the plaintiff in this respect and find that she did have restrictions in the range of duties she could perform in a work situation after the accident. Mr Golton-Fenzi told me that in July 1996 he considered that the plaintiff would have restrictions over the next "two to three years" in her employment. Dr Bell considered in August 1997 that the plaintiff would be restricted for some months. By about April 1998 any restriction arising out of the accident would have been minimal.
Whilst the plaintiff did try to obtain alternate employment before the attack it was only thereafter that she secured employment as a sales assistant. When asked about the reason for leaving swimming coaching the plaintiff told me (T24):
"… I had tried previously to move away from the swimming area but it became a matter that I couldn't handle it any longer after the attack.
Well, so is it true that you sort out this work, the shop assistant work, because of the assault? Yes, it brought all to a head. I couldn't handle any more …"
In my view the plaintiff did have some restrictions following the accident which prevented her from obtaining employment as a sales assistant. That employment may well have been more remunerative than what would have been received from swimming instruction.

The plaintiff's income tax returns disclose the following:

Year Ended	Net Income From Swimming (A)	Net Income As Sales Assistant (B)	Total (A+B)
30 June 1993	$6,986	N/R	$6,986
30 June 1994	$3,844	N/R	$3,844
30 June 1995	$4,283	N/R	$4,283
30 June 1996	$4,647	N/R	$4,647
30 June 1997	$5,596	N/R	$5,596
30 June 1998	$5,775	$3,644	$9,319
30 June 1999	$4,932	$12,571	$17,503

The sales assistant work with Peter Sheppard Footwear commenced on 6 April 1998. Her earnings as a sales assistant for the financial year ended 30 June 1998 averaged $303.73 per week. In the year ended 30 June 1999 her net earnings as a sales assistant averaged $241per week. Both of these figures were greater than the plaintiff’s average weekly earnings as a swimming instructor.
Counsel for the plaintiff quite properly submitted that this was not a case in which a mathematical calculation of past loss is appropriate. Any assessment must necessarily be broad. I take account of the fact that from April 1998 the plaintiff’s restrictions as a result of the accident have been minimal. There has been a past loss of capacity that in my view was productive of financial loss. There was also a claim for past superannuation of $4,745.53. Whilst a precise figure was submitted in relation thereto the calculation must necessarily be broad. I make a global allowance in relation to past loss including superannuation of $20,000.
I allow interest on past loss at the rate of 3 per centum per annum for the 7.75 years since the accident which I calculate and allow in the sum of $4,650.

Loss of future earning capacity

The claim in relation to future loss of earning capacity is calculated on the basis of a net loss of $116.93 being the difference between what the plaintiff could earn on a full-time as opposed to a part-time basis. Applying a 6 per cent multiplier to that sum for 24 years the plaintiff arrives at the figure of $78,845.90. A global sum as compensation for an inability to compete is also claimed. The plaintiff's current employment involves her working 27 hours per week as a sales assistant with Harris Scarfe. She works once a fortnight for five hours on a Sunday at Peter Sheppard's but this employment was to cease in January 2000.
Pursuant to Medlin v State Government Insurance Commission (1995) 182 CLR 1 the Court in assessing loss of earning capacity must be satisfied as to two matters:
"The first of those requirements is the predictable one that the plaintiff's earning capacity has in fact been diminished by reason of the negligence caused injuries. The second requirement is also predictable once it is appreciated that damages for loss of earning capacity constitute a head of damages for economic loss awarded in addition to general damages for pain, suffering and loss of enjoyment of life. It is that the 'diminution of … earning capacity is or may be productive of financial loss' (Graham v Baker (1961) 106 CLR 340 at 347)."
Lord Diplock in Paul v Rendell (1981) ALR 469 at 471 expressed the matter of assessment as follows:
"… the assessment of economic loss involves the double exercise in the art of prophesying not only what the future holds for the injured plaintiff but also what the future would have held for him if he had not been injured."
In Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 the approach to the assessment of the likelihood of future or potential events occurring was dealt with by the High Court. Deane, Gaudron and McHugh JJ in their joint judgment said at 642-643:
"… When liability has been established and a common law court has to assess damages, its approach to events that allegedly would have occurred, but cannot now occur, or that allegedly might occur, is different from its approach to events which allegedly have occurred. A common law court determines on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred. Hence, in respect of events which have or have not occurred, damages are assessed on an all or nothing approach. But in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high - 99.9 per cent - or very low - 0.1 per cent. But unless the chance is so low as to be regarded as - say over 99 per cent - the court will take that chance into account in assessing the damages. Where proof is necessarily unobtainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded. See Mallett v McMonagle [1970] AC 166 at 174; Davies v Taylor [1974] AC 207 at 212, 219; McIntosh v Williams [1979] 2 NSWLR 543 at 550-551. The approach is the same whether it is alleged that the event would have occurred before or might occur after the assessment of damages takes place."
Brennan and Dawson JJ stated at 639, that the ascertainment of future earning capacity involves an evaluation of possibilities as distinct from establishing a fact as a matter of history. Their Honours said at 639- 640:
"Hypothetical situations of the past are analogous to future possibilities: in one case the court must form an estimate of the likelihood that the hypothetical situation would have occurred, in the other the court must form an estimate of the likelihood that the possibility will occur. Both are to be distinguished from events which are alleged to have actually occurred in the past."
I have found that the plaintiff is left with only minor residual disabilities in consequence of the injuries sustained in the accident. The plaintiff managed swimming coaching for nearly seven years after the accident and has managed all sales assistant work she has been offered. The plaintiff has been able to work in excess of 30 hours per week on occasions since the attack. Her net income has increased in each of the financial years ended 30 June 1998 and 30 June 1999. She regards her employment with Harris Scarfe as secure.
I do not accept that the plaintiff is only now fit for part-time work. There is no evidence of any attempt to work on a full time basis. She did tell me that when she worked long hours she had problems thereafter but I repeat my earlier reservations concerning the plaintiff’s evidence as to the effect of the accident on her. In relation to her pain the plaintiff’s evidence was that she was unsure as to whether it was caused by the increased workload. I am not satisfied that the plaintiff has any present incapacity for employment caused by injury sustained in the accident. I find the problems she experiences relate to the effects of tension and stress which have arisen since the attack and not caused by the accident.
She has worked for some time as a sales assistant. At the same time she has maintained a household and had the care of two children. She has helped to establish a garden. At the end of a hard day the plaintiff may feel tired but in my view this does not affect her capacity to engage in employment. She has a mild residual disability. This accords with the evidence of Mr Bell as to the plaintiff’s employment capacity. He saw the plaintiff before the attack. His view was that the plaintiff was fit for work as a sales assistant. Mr Harper saw the plaintiff in 1999, seven years after the accident for the purposes of a review. He considered the plaintiff had lost some competitiveness in the workforce. He described her restrictions as not marked. Essentially his opinion is based upon what the plaintiff told him were the effects of the accident. Dr Gee was not convinced the plaintiff would have any dramatic restriction to her competitiveness in the open market. Mr Golton-Fenzi considered the plaintiff’s capacity to do the full range of jobs was marginally reduced. As I have said I am hesitant in relation to the plaintiff’s evidence concerning the effects of the accident. I am not satisfied on the evidence that the mild disability the plaintiff is left with as a result of her accident injuries is or may be productive of a significant economic loss in the future. The plaintiff may have some disadvantage in the labour market and this is compensible. (Watts v Turpin [1999] WASCA 216). Only a very modest award is appropriate.
I have found that by 6 April 1998 the plaintiff would have been suffering only mild disability as a result of the accident injuries. In all the circumstances I consider that $10,000 would be appropriate.

Future treatment

I would make an allowance for future medication and treatment of $500. I make no allowance in relation to stress counselling as had been suggested by Mr Harper.

Special damages

There was no agreement in relation to this head of damage and I grant liberty to apply.

Summary

I consider the plaintiff entitled to judgment as follows:
Loss of Amenities  $17,500
Past loss of earning capacity  $20,000
Future loss of earning capacity  $10,000
Future treatment   $500
Interest on past loss of earning capacity              $ 4,650
Total:  $52,650