Royer v Blackman
[2014] WADC 87
•30 JUNE 2014
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: ROYER -v- BLACKMAN [2014] WADC 87
CORAM: WISBEY AUDCJ
HEARD: 27-29 MAY 2014
DELIVERED : 30 JUNE 2014
FILE NO/S: CIV 2092 of 2012
BETWEEN: ERIN MICHELLE ROYER
Plaintiff
AND
MARTIN BLACKMAN
Defendant
Catchwords:
Damages - Motor vehicle accident - Liability admitted - Assessment - Damages for non-pecuniary loss below statutory threshold
Legislation:
Motor Vehicle (Third Party Insurance) Act 1943
Result:
Judgment for plaintiff for $3,835.00
Representation:
Counsel:
Plaintiff: Mr M A McAuliffe
Defendant: Mr P E Jarman
Solicitors:
Plaintiff: McAuliffe Legal
Defendant: Jarman McKenna
Case(s) referred to in judgment(s):
Nil
WISBEY AUDCJ: The plaintiff a professional tenor saxophonist was involved an accident on 24 July 2009 when the Toyota Camry sedan she was driving on the Kwinana Freeway South Perth was struck from behind by a Toyota utility driven by the defendant. Liability is not in issue and the matter comes before the court for an assessment of damages.
The plaintiff instructed a solicitor on 13 February 2012 and commenced this action on 20 July 2012.
In the statement of claim it is alleged that the plaintiff sustained the following injuries:
(a)whiplash;
(b)soft tissue injury to the cervical, thoracic and lumbar spine;
(c)pain to the cervical, thoracic and lumbar spine;
(d)soft tissue injury to the shoulder;
(e)pain and stiffness to the shoulder;
(f)bruising; and
(g)forearm pain.
In reality the identified injuries appear in (b), (d) and (f) above; the matters particularised in (c), (e) and (g) being symptoms flowing from the injuries.
The plaintiff was born on 4 July 1990.
At the date of the accident the plaintiff was a student undertaking a degree of Bachelor of Music in Classical Performance at the Edith Cowan University, Mount Lawley (WAPPA), and it is the plaintiff's case that her musical vocation has been disadvantaged by the accident.
In the defence as originally drawn the defendant admitted 'that the plaintiff sustained some injuries'; denied that she suffered the loss and damage pleaded in the statement of claim; and put her to proof of the personal and vocational consequences of the injuries.
The defendant made an application at the start of the trial to amend the defence to plead that if the plaintiff suffered the alleged injuries loss or damage those matters were caused or alternatively contributed to by unrelated postural and muscular fatigue due to the vocation she was pursuing. The application was opposed on the basis that the plaintiff was prejudiced. Her counsel stated (inter alia):
Maylands Physiotherapy who has treated her before have not been called to give evidence. We don't have in evidence the details of the treatment we had and I can tell your Honour that my instructions are that it was a discreet shoulder injury that she was treated for, nothing to do with the neck or the back that is in issue in this matter, so witness should be here so that we have the clear evidence.
The amendment was allowed and as a consequence contact was made with Maylands Physiotherapy and Mr McDiven from that practice attended court.
The plaintiff
As at trial the plaintiff was residing in Manchester, England having shifted there in September 2013 to pursue a Masters of Performance degree at the Royal Northern College of Music with the intention of becoming an international performing artist and returning to Perth as a tutor at the West Australian Academy of Performing Arts (WAPPA).
The three‑year Bachelor of Music in Classical Performance course involved general music studies, aural training, harmony, playing the saxophone and ensemble performance. The plaintiff's particular instrument was the tenor saxophone and she stated that there were no other instruments that she was playing or required to learn. She stated however that she had the intention of learning to play the clarinet and flute. The course was full‑time, five days a week from about 8.00 am to 6.00 pm. It comprised 2 hours aural and harmony lessons each day; a 1 hour saxophone lesson each week; a two hour music history lesson once a week; and an expectation of 6 to 8 hours daily practice.
Apart from her academic course the plaintiff had part‑time employment. She was a table waitress and bar assistant at the Ellington Jazz Club where she did three to four evening shifts a week commencing at 6.00 pm; was tutoring between three and seven students privately 1 hour each a week ( although in several cases she was giving 2‑hour lessons); and operated a business called Just Sax being a saxophone quartet started in 2008 undertaking various engagements around Perth. The plaintiff was a member of the Metro Big Band, the Oz Big Band and the West Australian Youth Jazz Orchestra. She stated that she practised the saxophone for about 6 hours a day 6 days a week. Just Sax undertook paid engagements twice a week, and the plaintiff also performed regularly with the Oz Big Band and the Metro Big Band. These performances would last between 1 to 4 hours. There was a necessity for weekly rehearsals of up to 3 hours with the Big Band and three or four 2‑hour sessions with Just Sax.
When the plaintiff's attention was directed to the issue raised by the amendment to the defence she stated that she had received treatment before the accident from the Maylands Physiotherapy for some tiredness she experienced when playing the saxophone. She was experiencing a little bit of soreness in the lower back, and had some pain in her shoulder which she attributed to playing softball. Also she experienced stress related jaw symptoms.
Apart from the Maylands Physiotherapy clinic she attended Brett Furniss a Busselton physiotherapist in respect to her jaw pain and postural issues related to shoulder tension from carrying a heavy school bag. The plaintiff stated Mr Furniss treated her lower back, shoulders and jaw. She stated however that she only experienced a little bit of postural tiredness from playing the saxophone after a long practice session.
Prior to the accident the plaintiff was playing basketball, softball, hockey and water polo, although mostly softball in 2008 and 2009. She went to Maylands Physiotherapy after hurting her shoulder catching a ball and the problem resolved with treatment.
The motor vehicle accident occurred on the southern side of the Narrows Bridge as the plaintiff was travelling south. The vehicle in front braked, as did the plaintiff, and she was hit from behind and pushed into the front vehicle. She recalled that on impact her whole body went forward and she hit her head on the inner roof before recoiling. There was similar movement when her vehicle struck the vehicle in front. She was at the accident scene for approximately 3 hours and while sitting in the tow truck before leaving started to get a lot of pain to the muscles on either side of the front of her neck. She also experienced aching across the top of her right shoulder and in the muscles at the back of the shoulder. The symptoms progressed that night whilst she was being driven to Busselton by her boyfriend. Her back was aching between the shoulder‑blades and down to the lower back and getting to the point where she could not rotate her head to either side. She also had a headache. The next morning she consulted Dr Koukourou the locum for her general practitioner Dr Taylor. She was referred to and radiologically examined at the Busselton Hospital. Dr Koukourou referred her back to Maylands Physiotherapy and recommended Nurofen and Voltaren.
She stated that when she woke up on the Saturday morning in Busselton she required assistance to get out of bed as all her muscles were really weak and she lacked the energy to rise. She required assistance from her mother and boyfriend. The situation was the same on Sunday morning, and lateral movement of her head was totally restricted. Her symptoms were increasing in intensity.
The accident occurred on Friday evening and after returning to Perth on Sunday the plaintiff attended the Maylands Physiotherapy clinic where she received treatment to her neck and back two to three times a week. She was driven to the appointments. She also attended Brett Furniss on several occasions when visiting her parents in Busselton. The plaintiff's attendances upon Maylands Physiotherapy ceased when that clinic applied to the Insurance Commission of Western Australia (the Commission) for payment of gym membership, which was declined. The plaintiff indicated that she received a letter from the Commission advising that her claim was closed, and her recollection was that the letter was to the effect that in the Commission's opinion she was okay and it was closing her claim.
The plaintiff's father died on 27 October 2009 and between the date of the accident and his death the plaintiff had a performance exam which she had to defer for a few weeks or a month because her neck was too painful to enable her to play the saxophone.
The plaintiff stated that she did not work at the Ellington Jazz Club for about six weeks after the accident, and upon returning was allocated door duties which required her to sit at the door and collect the admission fee. She requested that task because she was experiencing too much pain to return to her usual duties which included taking orders, serving drinks, sometimes serving food, and taking glasses from the bar to the cleaning station. Although she attempted normal duties her shoulder and back were too sore for her to carry trays of glasses.
The plaintiff stated that she did not practise saxophone until she undertook a performance at the Ellington Jazz Club in October 2009 in memory of her father. About a week before that concert she resumed rehearsals. During the period referred to above the plaintiff limited her saxophone practice to playing with the mouth‑piece and gooseneck. There were a few occasions when she played the whole instrument. She then stated that she would have played 6 to 8 hours a day 6 days a week with the complete instrument during that period, but did not return to any commercial engagements. During the period referred to a substitute replaced her in the West Australia Youth Jazz Orchestra.
Upon the death of her father the plaintiff returned to Busselton to be with her family. She remained there for over a month with occasional visits to Perth. She had to defer exams for a couple of months until late November.
The plaintiff returned to Perth in or about January 2010, the first academic semester for that year commencing in February. She returned to waitressing at the Ellington Jazz Club although suggesting that she was doing reduced hours. She also resumed rehearsing with Just Sax and undertaking commercial engagements and also tutoring.
The plaintiff could not practice as long as she did pre‑accident. Pre‑accident she was practising 6 to 8 hours a day in 2 to 3 hour segments, but in 2010 the segments lasted no more than 1 hour and she was not doing more than three sessions a day because she was limited by back and neck pain aggravated by the manner in which the saxophone was held with a lanyard around the neck, or a back‑strap harness. The saxophone itself weighs 3.5 kg. If the lanyard is being used the weight of the instrument bears upon the neck, and with the back harness the weight is more to the shoulders.
The plaintiff produced a book of financial documents which included her income tax returns for the financial years 2008 to 2012 and payslips for the various types of work undertaken (exhibit 1). The payslips for the Ellington Jazz Club demonstrate that she commenced working there on 1 March 2009. The position from the payslips is as follows:
Date
Hours
Gross Pay
01.03.09 – 07.03.09
26.75 hours
$515.21
13.03.09 – 19.03.09
11 hours
$211.86
15.03.09 – 21.03.09
7.5 hours
$144.45
22.03.09 – 28.03.09
2 hours
$38.52
29.03.09 – 04.04.09
10 hours
$192.60
19.04.09 – 25.04.09
4.25 hours
$81.86
26.04.09 – 02.05.09
14.25 hours
$274.46
03.05.09 – 09.05.09
2.75 hours
$52.97
17.05.09 – 23.05.09
6.5 hours
$125.19
24.05.09 – 30.05.09
13.5 hours
$260.01
21.06.09 – 27.06.09
12.5 hours
$240.75
28.06.09 – 04.07.09
4 hours
$77.04
30/08/09 – 05/09/09
3.5 hours
$67.41
06.09.09 – 12.09.09
14 hours
$269.64
13.09.09 – 19.09.09
4.75 hours
$91.49
20.09.09 – 26.09.09
15.75 hours
$303.35
27.09.09 – 03.10.09
3.75 hours
$72.23
11.10.09 – 17.10.09
2.25 hours
$43.34
18.10.09 – 24.10.09
8 hours
$154.08
25.10.09 – 31.10.09
2.5 hours
$48.15
17.01.10 – 23.01.10
6.75 hours
$130.01
24.01.10 – 30.01.10
8 hours
$154.08
31.01.10 – 06.02.10
4 hours
$77.04
07.02.10 – 13.02.10
19 hours
$365.94
14.02.10 – 20.02.10
4.75 hours
$91.49
11.04.10 – 17.04.10
4.5 hours
$86.67
18.04.10 – 24.04.10
7.5 hours
$144.45
25.04.10 – 01.05.10
2.25 hours
$43.34
02.05.10 – 08.05.10
5.25 hours
$101.12
23.05.10 – 29.05.10
4.75 hours
$91.49
20.06.10 – 26.06.10
19 hours
$365.94
27.06.10 – 03.07.10
5 hours
$96.30
04.07.10 – 10.07.10
11.25 hours
$216.68
11.07.10 – 17.07.10
5.5 hours
$105.93
18.07.10 – 24.07.10
5.5 hours
$110.11
18.07.10 – 24.07.10
15.25 hours
$305.31
01.08.10 – 07.08.10
6.25 hours
$125.13
08.08.10 – 14.08.10
6 hours
$120.12
29.08.10 – 04.09.10
9 hours
$180.18
05.09.10 – 11.09.10
4.5 hours
$90.09
12.09.10 – 18.09.10
15.5 hours
$310.31
26.09.10 – 02.10.10
16.25 hours
$325.33
10.10.10 – 16.10.10
2.75 hours
$55.06
17.10.10 – 23.10.10
13.25 hours
$265.27
24.10.10 – 29.10.10
8.25 hours
$167.77
31.10.10 – 06.11.10
7 hours
$142.14
28.11.10 – 04.12.10
6 hours
$126.12
05.12.10 – 11.12.10
4 hours
$84.88
12.12.10 – 18.12.10
4.25 hours
$85.09
19.12.10 – 25.12.10
14.75 hours
$306.91
02.01.11 – 08.01.11
6.5 hours
$131.33
09.01.11 – 15.01.11
12.25 hours
$246.65
16.01.11 – 22.01.11
5.25 hours
$105.11
06.02.11 – 12.02.11
9.5 hours
$191.79
13.02.11 – 19.02.11
10.75 hours
$224.42
20.02.11 – 26.02.11
15.25 hours
$324.92
27.02.11 – 05.03.11
3.75 hours
$81.08
27.03.11 – 02.04.11
6.75 hours
$136.54
10.04.11 – 16.04.11
3 hours
$60.06
17.04.11 – 23.04.11
2 hours
$40.04
12.06.11 – 18.06.11
5 hours
$108.11
26.06.11 – 02.07.11
7.75 hours
$157.76
03.07.11 – 09.07.11
3.25 hours
$70.27
10.07.11 – 16.07.11
5.75 hours
$115.12
24.07.11 – 30.07.11
3.5 hours
$75.68
31.07.11 – 06.08.11
5 hours
$108.11
21.08.11 – 27.08.11
4.25 hours
$91.89
20.11.11 – 26.11.11
1 hour
$20.02
04.12.11 – 10.12.11
8.5 hours
$189.39
11.12.11 – 17.12.11
8.5 hours
$189.39
18.12.11 – 24.12.11
13.75 hours
$300.50
01.01.12 – 07.01.12
7.25 hours
$147.95
08.01.12 – 14.01.12
5 hours
$100.10
15.01.12 – 21.01.12
6.25 hours
$145.15
22.01.12 – 28.01.12
4.25 hours
$85.09
29.01.12 – 04.02.12
11.75 hours
$265.26
05.02.12 – 05.02.12
6 hours
$139.34
06.02.12 – 12.02.12
10.25 hours
$222.83
13.02.12 – 19.02.12
13.25 hours
$298.90
19.02.12 – 26.02.12
20 hours
$437.24
27.02.12 – 04.03.12
16.25 hours
$368.17
27.02.12 – 04.03.12
18 hours
$368.17
05.03.12 – 11.03.12
10.75 hours
$283.39
The plaintiff indicated that the irregular hours were the product of club attendances at any particular time, and consequently the required staff necessary to service those attending. The reason she did not work between 4 July and the accident was that she had gone to the World Saxophone Congress in Thailand and was away for 9 or 10 days. After the accident the variations reflected her availability dependent upon the level of symptoms she was suffering.
The document at Tab 7 in exhibit 1 records payments received for the pay periods 25 March 2012 to 30 June 2013 for tutoring at the University of Western Australia.
Documents at Tabs 8 to 10 identify payments received for saxophone lessons given by the plaintiff at Mercedes College, Good Shepherd Primary School and Lumen Christi College. They record that the plaintiff commenced teaching at Mercedes College in February 2013 and ceased in August 2013; taught at Good Shepherd Primary School in Term 2 2012 and continued through until Term 3 2013; and taught at Lumen Christi College from about June 2010 until the end of 2013.
It became apparent during her evidence‑in‑chief that the plaintiff did not have an appropriate understanding of the financial information in her taxation returns. That creates some difficulty since it is not possible to identify any breakup of the sources of income of the business Just Sax. The plaintiff stated that she would receive payment for engagements through Just Sax and the money would be equally divided between herself and the three other members of the group. Income from her teaching, tutoring and quartet performances were accounted for by Just Sax.
In respect to the commercial engagements of Just Sax there was a callout fee of $1,000 for the first hour which appears to be equally divided between the four members of the group, and $200 for every additional hour, again equally shared. An average engagement was between 1 and 3 hours. At the date of the accident the plaintiff was charging $50 an hour for tutoring which has since increased to $70.
In regard to sporting activities the plaintiff stated that following the accident it was not until mid‑2010 that she resumed normal playing. She stated that she was not engaging in any sporting activity in England but rode a pushbike to and from the tertiary facility.
In respect to special damages the plaintiff produced a book of receipts but again seemed to lack an appropriate appreciation of some of the accounts, and had included receipts that were not related to her alleged accident caused symptoms, or which she was unable to explain.
In respect to present symptoms the plaintiff claimed that after playing the saxophone for long periods her neck becomes sore, and she also experiences neck and back pain after waking up. She is not receiving any treatment, but ingesting Panadol occasionally.
After an hour's practice the plaintiff experiences a lot of fatigue in her neck and back and consequently has to space out the course required 6 to 8 hours practice a day to accommodate her symptoms. She experiences similar difficulties with rehearsals. She plays in a quartet in Manchester.
The plaintiff stated that she would have liked to have pursued doubling (also playing the clarinet and flute) and would have preferred to have done that as part of her undergraduate course as it would increase her employment opportunities. She claimed to have been unable to do so because of the accident, and the subsequent necessity to put more time into work with the saxophone. In her professional profile (exhibit 9) it is to be noted that she informs that she is a saxophone and clarinet tutor. The necessity to significantly segment practice sessions had also reduced her capacity to network - meet people who would be of advantage in furthering her career.
The plaintiff's counsel directed her attention to a statement in a report by Dr Flahive indicating that she told him she had no other significant medical problems or any prior neck injuries, and she responded that she had been asked something of that order but had not been asked whether she had any prior postural discomfort. Her attention was also directed to a statement in a report of the spinal surgeon Mr Kapoor that she denied any significant pain prior the accident. Her recollection was that she told him she had general tiredness after a long session of practice, but not to the extent that she experienced post‑accident (in fact Mr Kapoor reported 'she denies any history of back pain or similar injury in the past prior to the injury of 2009').
The plaintiff produced a diary (exhibit 4) detailing alleged symptoms which at the request of her lawyer she began recording in February 2012 (shortly prior to the institution of these proceedings). She appears to have ceased that exercise in March finding it difficult to perform because 'I am extremely busy at the moment working 7 days a week and most nights'.
In cross‑examination the plaintiff agreed that her vehicle was valued at about $2,000. She confirmed that her saxophone was damaged in the accident and that it was not until late September 2009 that she obtained a replacement saxophone from England. In the meantime she borrowed a saxophone from a friend, but ended up giving it back. She in fact used the borrowed saxophone for her examination which she thought was 'Octoberish'.
The plaintiff started tutoring in 2009 and the tutoring fees were brought to account by Just Sax. She stated that for the preparation of the tax returns she would just tell her accountant (her parent's firm) the number of lessons that she had given and the hours for which she was paid, because there were no invoices as she was paid in cash. There are no profit and loss statements in the tax returns which were prepared by her parents' accounting practice. She agreed that the Ellington wages records demonstrated that there were many weeks she did not work and she indicated that to some extent that was the consequence of her university commitments at the time, or visiting her family in Busselton. She agreed that she only worked for 4 hours in the week before the accident but stated that she had gone home for her birthday on 4 July. She agreed in cross‑examination that she was probably on lighter duties at Ellington for about a month after the accident and she stated that generally she did shorter shifts. When pressed on this issue she stated that she was not doing the same workload as other waitresses. When it was put to her that she told Mr Kapoor that she was unable to work for four months after the accident she indicated that she thought the question was directed specifically to her musical commitments. She then said that she thought she had mentioned to him doing lighter work at the Ellington Jazz Club as a waitress. She agreed that there was no documentary evidence confirming her level of tutoring as she had misplaced her diary.
When the plaintiff consulted the physiotherapist Brett Furniss in 2007 she was experiencing pain from carrying a heavy school bag. Postural issues were addressed. At that time she was practising the saxophone about 3 hours a day, and sometimes more. The consultations with Mr Furniss were in respect to back and neck pain. Some of the difficulty was related to posture, and some to sporting activity. In early 2009 she hurt her shoulder playing softball. She thought she consulted Mr Furniss on five or more occasions.
The plaintiff agreed that she did not have a medical referral to Maylands Physiotherapy, and her recollection was that she went there on about 28 occasions, initially because she had jaw problems. She was having a bit of back pain which she indicated was related to the fact that she had lower limb length discrepancy. She agreed that the physiotherapists were stressing to her the necessity for appropriate spinal posture exercises which she undertook daily. She reluctantly agreed that she was having postural pain and spinal issues in 2008, stating however that it was to a lesser extent than post‑accident.
The plaintiff was adamant that she received a letter from the Commission saying that it would not pay for any further physiotherapy treatment. She agreed that she received a letter from it dated 13 April 2010 (exhibit 6) advising her of the time period within which she could make a claim. The letter also advised that it was considered that any damages would not exceed the threshold and that if she did not agree she should take action. She did not seek legal advice at that time.
Attention was drawn to the plaintiff's Facebook covering the period April 2009 until May 2014 and it was put to her that it did not mention any neck or back problems. The plaintiff responded that she did not like to enter negative comments on Facebook and it is not particularly surprising that periodic ailments are not recorded. It recorded periods of international travel, playing with the Malaysian Philharmonic Orchestra, and other positive social events. It appears to record a positive and active social life. The plaintiff stated that since the accident she had visited quite a few countries (inter alia) to attend saxophone conferences, and travelled around Europe with a friend in 2012. There are Facebook photographs of her snow skiing whilst on the European holiday. It was in October 2012 that the plaintiff went to Malaysia to perform with the Malaysian Philharmonic Orchestra. In describing her travel itinerary the plaintiff said:
Initially I was in Manchester – England for the World Saxophone Congress, which was, sorry, held in Scotland, and we were there for a few weeks, then I was reciting in Manchester, learning how to repair saxophones and having lessons in saxophone performance, getting an idea about the RNCM and what was all about because I had a prior – like had a thought to possibly do some international study. And then at the very end of our tour, which I think was a month long, maybe a little bit less, we visited Berlin, Vienna, Switzerland, Rome. No, Amsterdam was with my boyfriend, sorry. And Paris was beforehand as well.
During her travels the plaintiff and her friend (who was also a saxophonist) practised together for 3 to 4 hours at a time.
During 2012 the plaintiff was doing a fair bit of tutoring and at page 51 of her Facebook she recorded:
Hey, Helen, would love to come over but I'm actually working all weekend, day and night. You would think the kids would not want lessons on the holidays but it is the complete opposite. Damn, why am I such a good teacher? The kids can't get enough.
The plaintiff graduated from WAAPA with a Bachelor of Music in Classical Performance in 2010. In 2011 after a year of post graduate studies she achieved First Class Honours having completed and submitted a 12,000 word essay which she had written over the course of the year. She estimated that she spent about an hour a day on it.
In 2009 the plaintiff received a scholarship from the West Australian Youth Jazz Orchestra. In 2009 and 2011 the saxophone quartet Just Sax was accorded the most outstanding performance for the North of Perth Music Eisteddfod. In 2010 and 2011 the plaintiff was awarded the highest performance recital mark amongst the Woodwind and Brass Departments at WAAPA. In 2011 she won the Barbara McLeod Scholarship awarded to the top performing student at WAAPA. In 2011 she was invited to be a member of the International Golden Key Society being an international student in the top 5% of her field of study.
In 2011 the plaintiff achieved the top classical Woodwind performer at WAAPA and in 2012 was selected as co‑head of the Saxophone Department at the University of Western Australia which involves limited tutoring. She was chosen to represent Australia at the 16th World Saxophone Congress held in Scotland in July 2012. She also runs a saxophone repair business 'Just Sax Repairs'. Among her many achievements she did a series of concerts in the Netherlands including a televised performance. (The plaintiff's extraordinarily impressive CV was tendered (exhibit 8).)
She is presently undertaking a one year Masters of Performance Degree at the Royal Northern College of Music Manchester.
The plaintiff stated that her only recreational activity in the United Kingdom apart from music was riding a pushbike. She agreed that she had not told Mr Kapoor about the physiotherapy she was having before the accident, her recollection being that he asked if she had experienced any prior problems and she indicated that she had only experienced postural issues and a bit of tiredness.
Upon the death of her father in October 2009 the plaintiff returned to Busselton and was not engaged in vocational pursuits for the rest of that year.
In cross-examination the plaintiff agreed that her hours of work at the Ellington Jazz Club post‑accident were very similar to her pre‑accident hours but stated that the duties performed were different and that she was on light duties for probably four or five shifts. She agreed that the income from Just Sax increased significantly after the accident, but that was because it was a developing business. She was performing under duress. She believed that the accident impeded her professional development and required her to put in more hours in professional development that would otherwise have been the case. She stated that although she had an energetic and busy lifestyle she would wake up every morning with a sore neck. Her recollection was that Mr Kapoor asked if she had any pre‑accident symptoms and she indicated that she had experienced tiredness. Dr Flahive did not ask her any questions that were relevant to pre‑existing difficulties.
Although she had seen physiotherapists and a chiropractor, she had only seen her general practitioner on one occasion post-accident, and the orthopaedic surgeon Mr Kapoor for the purpose of pre‑trial assessment.
She agreed that her symptoms had decreased since the accident but she still experienced a lot of neck pain, and a lot of back pain when playing the saxophone. She claimed that in 2012 when she was travelling in Europe she was experiencing significant symptoms similar to those immediate post‑accident. She assessed the level of pain as at 9 or 10. Before the accident she did not experience pain whilst playing the saxophone, but has experienced pain thereafter.
In re‑examination the plaintiff stated that before the accident she had postural pain which she described as a tiredness down the side and back of her neck and the upper part of her back, and a little bit of aching, but not to the extent that she experienced post‑accident. She stated that her present position was that there were occasions when she would have to stop playing the saxophone because of neck pain, and would wake up in the morning experiencing a lot of discomfort including neck and back pain. The neck symptoms were like a sharp piercing pain lasting for a few hours in the morning, and recurring after extended periods of saxophone use.
The plaintiff was recalled and confirmed that she had recorded in her Facebook shortly after the accident that she was suffering from neck, back and shoulder symptoms.
Andrew Timothy Marshall Taylor
Dr Taylor is a general practitioner and in 2012 was practising in Busselton. The plaintiff consulted him on 7 June 2012 complaining of neck and lower back pain which was worse in the morning after waking. She also experienced pain when playing the saxophone. Dr Taylor considered that the range of lateral neck movement was good but that pain was experienced on extremes of flexion and extension. There was also lower back pain, worse on the right, with maximal tenderness at L4/5. He concluded that there had been an injury to the soft tissues of the neck. He considered that the postural demands of playing a saxophone would exacerbate any neck problem.
Dr Taylor's report dated 15 June 2012 (exhibit 10) was tendered in evidence. He reported that the plaintiff attended upon his colleague Dr Koukourou the day following the accident and had experienced neck pain which had become worse that morning. The notes indicated that she had pain over her left shoulder; was tender from C4 to T5; and was tender at L2. She had a restricted range of neck movement and pain on forward flexion. Radiological examination did not demonstrate any abnormality.
In cross‑examination Dr Taylor confirmed that Dr Koukourou had noted a complaint of pain over the left shoulder, although there was no paraesthesia. There was no mention in the notes of pain, tenderness or bruising of the right shoulder. Dr Taylor observed that the radiological examination was to the cervical and upper thoracic spine, and he produced the diagnostic imaging report (exhibit 11). He stated that the plaintiff had attended his medical practice on 13 occasions between 16 July 2002 and the date of the accident, but not in relation to spinal problems.
Aaron Ross McDiven
Mr McDiven is a physiotherapist practising at Maylands Physiotherapy. He stated that practice notes demonstrated the plaintiff first attended on 17 April 2008 with a complaint of localised pain to the upper part of the neck on the right, and it was noted that she played the saxophone and had a postural issue. The notes indicated that she had what he described as a typical seated poor posture slouching forward and that it was due to postural tension playing the saxophone. There were further attendances on 18, 23 and 30 April, 7, 13 and 21 May, 4 June, 1, 21 and 27 August, 3, 9, 24 and 26 September, 4, 22 and 29 October, 5, 10, 14, 19 and 25 November and 1 December. The first attendance in 2009 was on 2 April with further attendances on 6, 20, 23 and 30 April being the last attendance before the accident. The note for the consultation on 25 November was minimal pain – if anything right low thoracic. This was subsequent to a second manipulation. The attendance on 1 December 2008 was for treatment for hamstring problems. The attendance on 2 April 2009 was in respect to a fractured left scapular resulting from an incident at softball. The plaintiff was treated on most occasions by another physiotherapist.
Following the accident the plaintiff attended on 4 August 2009 and gave a history that she was struck from behind on the freeway at 80 km per hour. The photographs in the plaintiff's Facebook of the involved vehicles would suggest that was a significant over‑statement. The plaintiff presented with cervical and lumbar pain.
When Mr McDiven saw the plaintiff on 11 September 2009 he noted low cervical pain greater on the right side than the left. He stated that the plaintiff was very tender to touch and as a consequence it was only appropriate to use low grade mobilisation. He considered she had sustained a moderate to severe whiplash involving the whole spine, resulting in soft tissue damage. Following the consultation on 11 September the plaintiff attended on 16, 21, 23 and 30 September and 2, 7, 9 and finally 16 October. The notes for 16 October indicated that the plaintiff was improving although Mr McDiven did not consider that there had been a big change.
The notes from Maylands Physiotherapy were received in evidence (exhibit 13). It appears from the notes that at the plaintiff's first attendance on 17 April 2008 a spinal assessment form was completed which recorded cervical issues as a presenting complaint. Several days prior to presentation she was experiencing pain in the cervical area upon right side flexion. The notes recorded that the plaintiff experienced a lot of pain which shot up to the right sub‑occipital area. Also that the plaintiff held the saxophone on the right with a lead around her neck and a harness around the upper thoracic area. The cervical pain was recorded as at a level of 6 out of 10, and there was an observation of poor posture. There was restriction of flexion and extension. The plaintiff noted pain on left rotation although the degree of movement was basically normal. Rotation to the right however was markedly restricted. She received firm mobilisation to the right side of the neck.
When the plaintiff attended on 18 April 2008 poor posture was noted but her symptoms had improved. The planned treatment included cervical manipulation of C2/3 to release pressure from the above segments.
On 23 April 2008 the plaintiff attended Mr McDiven for review and cervical manipulation.
When seen on 30 April it was recorded that the plaintiff was going well and that her pain had decreased but that she still experienced pain with increased periods of sitting and saxophone practice. The note suggests there was stiffness in the upper cervical and lower thoracic spine.
On 7 May the notes record that the plaintiff was doing well and that her neck was pretty good but that the mid‑back was worse. Stiffness and spasm was recorded in the thoracic area.
On 13 May it was noted that the low thoracic area was stiff and sore although there had been improvement. Mr McDiven suggested that the reference to stiff and sore probably reflected a reaction to the prior manipulation. There was also a complaint of left thumb pain.
On 21 May 2008 the notes record that the plaintiff had experienced mild cervical pain over the weekend which had mostly resolved and that her mid‑back pain had reduced. There was reference to stiffness in the thoracic area.
On 4 June 2008 there is reference to cervical thoracic and lumbar stiffness.
On 21 August 2008 there is a reference in the notes 'Been down south for uni holidays. Back at uni for three to four weeks. Heavy load. Cervical and shoulder ache'.
On 27 August 2008 the notes indicate that the plaintiff's shoulders were much looser since treatment but that she still experienced tightness in the upper cervical area.
On 3 September 2008 it was noted that she was still achy, and there is reference to the cervical column.
On 9 September 2008 the subjective symptoms were noted as 'left cervical achy, but bilateral upper trapezius sore'. It was considered that there was a lot of spasm of the levator scapulae muscles (essentially the right shoulder area). There appears to have been grade 4 mobilisation of the cervical spine.
On 24 September 2008 the notes record that the plaintiff was complaining of occasional aching in the cervical area and more recently in the low thoracic area. It was at that time that the leg length discrepancy was observed.
It appears that on 26 September 2008 the plaintiff received mobilisation to the T6/L3 region. Also on 4 October 2008.
The notes for 22 October 2008 record that the low back had been good but that the plaintiff had experienced cervical aching and right anterior cervical pain at the level of her ear.
On 29 October 2008 the notes reveal that the plaintiff indicated her lower back was not too bad and she mainly experienced right cervical stiffness and aching, especially with prolonged sitting and playing the saxophone.
On 5 November 2008 the notes record the plaintiff had exams, study and stress, and was experiencing cervical stiffness. She received firm mobilisation to the cervical and thoracic areas.
On 10 November 2008 the plaintiff was referred to Mr McDiven for a cervical manipulation (significant treatment). He recorded right upper cervical pain and central upper thoracic pain.
On 14 November 2008 Mr McDiven recorded that the plaintiff had been much better for two days but that her condition had deteriorated due to study, and that her pain was mainly in the low cervical and thoracic area. The erector spinae muscles were tight.
The notes for 1 December 2008 indicate that the plaintiff was feeling much better.
The notes for 2 April 2009 record the fracture of the left scapular at softball.
On 6 April 2009 the notes record that the plaintiff was doing a lot of studying and required dry‑needling (an adaption of acupuncture) to the upper thoracic area bilaterally, and treatment to the cervical spine.
The last occasion on which the plaintiff was seen prior to the accident was 30 April 2009 when the practice arranged a handover to Busselton Physiotherapy. The handover note read:
Lives in Busselton, at WAAPA, plays sax, handover cervical shoulder pain, poor postural control, recently fractured left scapular during softball, since developed impingement signs.
As already observed the first attendance following the motor vehicle accident was on 4 August 2009.
The notes for 7 October 2009 record the plaintiff's complaint of pain in the L3 region, more to the right than the left, and left mid‑thoracic pain and to a lesser extent on the right.
On 9 October 2009 it was recorded that there had been improvement with chiropractic.
Mr McDiven stated that having regard to the plaintiff's postural issues lengthy playing of the saxophone would be likely to cause symptoms.
In re‑examination it became obvious that Mr McDiven's assessment of the plaintiff was influenced by his belief that her vehicle had been struck by another vehicle travelling at 80 km per hour. He expressed the view that prior to the accident the plaintiff had a postural problem with ligamentous integrity, but after the accident there would be far less ligamentous integrity.
Brett Ian Furniss
Mr Furniss conducts a physiotherapy practice in Busselton and has 33 years' experience. Since the accident the plaintiff consulted him on five occasions being 6 October 2009, 6 April 2010, 9 April 2010, 6 July 2010 and 27 October 2010. In his report of 8 November 2013 (exhibit 14) he noted the motor vehicle accident and a history that the impact caused major damage to the plaintiff's vehicle. The plaintiff stated that she had a rapid development of soreness particularly in her cervical and thoracic spine impinging on her ability to play the saxophone for prolonged periods. The spinal injury was multi‑level in distribution involving the C2/3 levels and T2/3 to T10 levels. Mr Furniss did not consider that there was a marked loss of range of movement, but that there was significant para‑vertebral muscle spasm. He treated the plaintiff with ultrasound, mobilisation and localised manipulation, and prescribed a series of exercises aimed at maintaining inter‑segmental mobility. His prognosis was that she would continue to experience problems with the affected areas for the rest of her life, particularly as a result of the necessity to play saxophone. He suggested that there was a necessity for ongoing monthly physiotherapy visits at a cost of $70 per visit.
In evidence Mr Furniss stated that the first consultation he had with the plaintiff was on 16 June 2003 in respect to calf strain. He then saw her in 2005 with a foot injury. In 2007 he saw her regarding tempero‑mandibular joint problems. It appears that at about this time he obtained a history of some neck and upper back soreness due to 'postural things and carrying school bags and that sort of stuff'. There were some further consultations in 2008 regarding postural issues and Mr Furniss commented that the plaintiff was playing a saxophone which aggravated the situation. There was a consultation on 17 April 2009 again relating to postural problems.
Mr Furniss concluded that the plaintiff sustained a whiplash injury in the car accident – a multi‑factorial soft tissue injury. In respect to ongoing treatment he stated that physiotherapy would provide pain relief. He recommended that she see a physiotherapist who specialised in exercise programmes for muscle strength. He suggested there would need to be a couple of visits a week initially, gradually tapering off to once a month. He stated that playing the saxophone would prolong an estimated 12 months recovery time, although he did not anticipate a full recovery.
In cross‑examination Mr Furniss agreed that he saw the plaintiff on 3 and 16 October 2007 in respect to cervical and thoracic discomfort, and three times in 2008 in respect to the same problem. He confirmed that her symptoms were likely to be aggravated by playing the saxophone, and that the longer she played the more intense would be the symptoms. He confirmed that the plaintiff never presented with a complaint of lumbar pain or shoulder pain. He would not agree that the prognosis for soft tissue injuries was that there would be resolution of symptoms.
Matthew John Styles
Mr Styles is a specialist lecturer in saxophone at WAAPA having held that position for approximately six years. He has previously been employed at the University of Western Australia and overseas universities. He stated that he would have a minimum student contact of a 1‑hour weekly lesson, but that he had an open door policy and might see students up to five times a week. His recollection was that he would see the plaintiff at least 2 to 3 hours a week outside normal lessons, and when she was participating in a saxophone ensemble. In the event he suggested he would have contact with her for probably 5 hours a week.
Mr Styles described the plaintiff as very skilled, stating that following the obtaining of a degree she was accepted into the Honours programme and subsequently accepted into the Master's programme at the Royal Northern College of Music Manchester, which was no mean feat. He described her as a very talented musician who had worked very hard.
Mr Styles stated that the career path for a saxophonist would likely be as a teacher and as a performer.
He could not recall the plaintiff experiencing or demonstrating any physical discomfort with her neck or back prior to the accident. His recollection was that for 6 to 8 weeks post‑accident she could not play the saxophone to its full extent as she could not manage the weight of the saxophone. He stated that after that time he would hear about the plaintiff 'having regular therapy to the extent where she would also have cortisone injections, which to my mind would be - is fairly extreme'. He worked with her on postural changes. The plaintiff's practice time had to be segmented to cope with her difficulty. That process of working through the problems continued until he stopped teaching her in 2011. It appears from his evidence that over that period he was not aware of whether the plaintiff was or was not in pain. Mr Styles stated that the pain most students presented with as a result of playing the saxophone was forearm and upper arm pain, not necessarily neck or back pain. In her Masters course he expected the plaintiff to be practising a minimum of 4 hours and up to 8 hours a day, which would be a very high demand on her body.
Report of Andrew Leece
The plaintiff tendered by consent a report dated 28 November 2013 (exhibit 18) from a chiropractor Mr Andrew Leece who saw her on 29 occasions from 5 April 2012 to 30 April 2013. In each case the attendance was for 'spinal adjustment'. Mr Leece reported that the plaintiff attended complaining of pain following a motor vehicle accident when her vehicle was struck from behind by another vehicle travelling at about 70 km per hour. She then experienced neck and mid to upper thoracic spine symptoms which made it difficult for her to play her musical instrument. Mr Leece reported a 30% loss of the normal range of cervical motion, suggesting that scans indicated 'substantial imbalance to muscle function and nerve function particularly in the neck and upper back' (whatever that means). There was pain and tenderness on the right side in the cervical and upper back. Mr Leece adjusted the plaintiff's spine including the lumbo‑pelvic area to stabilise alignment. This resulted in an increase in the range of motion to nearly 90% of normal, and a reduction in muscle tightness. He reported that the prognosis was good although the plaintiff's work made it hard to hold the adjustment for a good length of time. He recommended ongoing chiropractic management.
Vikas Kapoor
Mr Kapoor practises as a consultant spinal surgeon and medico‑legal consultant in Cheshire England. He reviewed the plaintiff at the request of her solicitor on 21 November 2013 and his report of 22 January 2014 (exhibit 19) was tendered. In the letter requesting review (exhibit 20) the plaintiff's solicitor advised Mr Kapoor (inter alia):
Our client reports as a result of the accident she experiences discomfort when playing her saxophone. Dr Flahive describes this as postural. Our client maintains she did not have discomfort prior to the accident.
The plaintiff provided Mr Kapoor with a history of a rear end collision when her car was struck by a small truck travelling at about 60 km per hour. The plaintiff told him that following the accident she made a 3‑hour car journey to Busselton and that she started getting neck pain, with stiffness bruising and pain around her right shoulder, and lower back pain. The symptoms became significantly worse the following day and she consulted her general practitioner. Because of her symptoms she had to defer her exams and could not work for the next four months. She told Mr Kapoor that she had quite a lot of physiotherapy for the next three to four months but stopped when funding was refused. She only had about 20% resolution of symptoms. In 2011 she still had predominant pain in her neck and some in her lower back. Her shoulder symptoms were getting better although she had intermittent problems. She indicated that she was about 70% to 80% symptomatic.
Mr Kapoor noted that the plaintiff had been in the United Kingdom since June 2012 and after a long flight got an exacerbation of symptoms which had continued such that her residual symptoms in the neck and lower back were 60% of the level experienced immediately post‑accident. She also described some right shoulder symptoms when playing the saxophone. The plaintiff said that she used Panadol. Mr Kapoor noted that the plaintiff 'denies any history of back pain or similar injury in the past prior to the injury of 2009'. The plaintiff told him that her neck and back became symptomatic when she was playing the saxophone. Also that apart from music her main hobby was playing golf, and she experienced a very sore neck and back after a game of golf. Examination revealed a good range of pain‑free flexion and extension of the cervical spine. Left lateral flexion and rotation were restricted by about 20% and right lateral flexion and rotation by about 40%. There was cervical tenderness, more to the right than the left. Neurological examination was unrewarding. There was some tenderness around the right‑sided para‑spinal region and the left side in the lumbar spine. There was no tenderness in the thoracic spine.
On the history given that the plaintiff developed neck pain, lower back pain and right shoulder pain following the accident Mr Kapoor concluded that she had a ligamentous strain in those areas entirely consistent with the nature of the injury, as was the amount of time lost from work. He commented on the fact that although it had been more than 4 years since the date of the accident the plaintiff described only 40% improvement in her neck and lower back and experienced pain in the right shoulder when playing the saxophone. He thought it reasonable to attribute approximately 12 to 15 months of painful symptoms to the direct effect of the accident. He did not detect any conscious exaggeration but accepted that there could be an element of unconscious exaggeration. He recommended referral to a pain specialist for a pain management programme.
In evidence Mr Kapoor again referred to the fact that the plaintiff had been unable to work for four months post‑accident. When the plaintiff's counsel directed Mr Kapoor's attention to the fact that was not correct he was led to respond that it would not alter his opinion. He nominated a period of 12 months to 15 months post‑accident when the accident would be directly responsible for symptoms but stated that thereafter secondary factors could result in a continuation of symptoms.
Martyn Edwin Flahive
Dr Flahive a consultant occupational physician reviewed the plaintiff on 27 June 2013 and issued a report dated 24 July 2013 (exhibit 16). He outlined the plaintiff's impressive professional and vocational achievements since the accident noting that she normally practised saxophone 6 to 8 hours a day. Having recounted the immediate post‑accident history of symptoms he noted that it had been necessary for the plaintiff to defer her exams for a couple of months. Dr Flahive observed that the plaintiff did not continue her post‑accident physiotherapy when the Commission declined to confirm that it would meet the cost, but she indicated that she was quite busy as it was her third and final year of study in addition to which she was playing in two bands, working as a waitperson, and tutoring. He noted that she saw Mr Andrew Bell a physiotherapist in late 2011 early 2012.
The plaintiff told Dr Flahive that her neck became sore following performances or prolonged teaching. The pain was on both sides of the neck, although on the right side it was more in the upper area of the back. She experienced tightness down the left side of the neck. The middle of the back ached, particularly after sitting or driving for prolonged periods. She also reported headaches after a long day of music playing and would be obliged to take Nurofen or Panadol. The plaintiff told Dr Flahive that she had been having chiropractic treatment up to once a week, and that earlier in the year she had been swimming for about 45 minutes two to three times a week and occasionally went running. Her description of her domestic activities suggested there was little in the way of restriction. Dr Flahive noted 'Ms Royer confirmed that she has no other significant medical problems or had any prior neck injuries. The only condition of any significance was a prior history of mild asthma'.
Clinical examination revealed a full range of cervical and thoraco‑lumbar spine movements, although the plaintiff reported some tenderness predominately in the para‑vertebral musculature of the cervical and mid‑thoracic spine. Dr Flahive concluded that she sustained a soft tissue strain injury to her cervical and thoracic spine with some persisting symptoms. He concluded that the prolonged periods of playing saxophone was likely to be a significant contributing factor to her continuing symptoms largely related to postural and muscular fatigue. He recommended a regular exercise programme but was of the view that physiotherapy and/or chiropractic would not result in any sustained clinical improvement. He expressed the view that the prognosis was excellent and that there would not be any permanent disability.
Dr Flahive did not expect the plaintiff's injuries to affect her capacity to undertake normal domestic or other activities of daily living.
In evidence Dr Flahive expressed the view that playing saxophone for extended periods of time was a significant factor in the development of tenderness over the postural muscles of the neck and back. He stated that the main focus had to be improving muscular strength and endurance around the postural musculature. He confirmed the view expressed in his report that beyond a period of a few weeks physiotherapy really did not make any difference, and could detract from a person pursuing active and muscle strengthening exercise programmes.
When made aware of the fact that the plaintiff had been receiving physiotherapy treatment as a result of shoulder, neck and back complaints prior to the accident he stated that it confirmed his view that she was probably fatigued and tired around the postural muscles. Dr Flahive confirmed his reported view that the plaintiff was a fairly straight forward individual with real symptoms but did not agree with Mr Kapoor that there was any point in pain management referral because of risks associated with that type of treatment. The answer was to pursue an appropriate exercise programme.
In cross‑examination Dr Flahive agreed with the self‑evident proposition that in making a diagnosis or prognostication an accurate history was important. He emphasised that it was not so much the weight of the saxophone but the prolonged postural position when playing it that was relevant. He stated that neck and shoulder pain was an occupational consequence for musicians. He stated that soft tissue injury resolves in the young and healthy, and that the severity of the injury was relevant to the symptom resolution period. With properly managed soft tissue injuries, function and recovery was very good although symptoms might not resolve completely.
When it was put to Dr Flahive that he was at a disadvantage not having seen the plaintiff for a period of four years post‑accident he stated:
I can't determine the past or whether she has actually recovered wholly from the – the crash or – or that she is getting still some symptoms from it. What I have explained in the report is that I think the substantial cause of her current symptoms is her day‑to‑day activities and the career that she is pursuing that are – are a predominant feature of her presentation and that she needs to continue to look at that and manage those symptoms.
He stated that although there might be some symptoms that related to the accident they were on balance unlikely to be significant or a real cause of her presenting symptoms, and that the predominant and probable cause of her having symptoms was her activities. The fact that she had symptoms before the accident confirmed that view. On the balance of probabilities the effects of the soft tissue injury had probably long resolved. Dr Flahive stated that in the plaintiff's case there would be a little bit of a restriction for the first couple of weeks but that thereafter one would expect most of the swelling and inflammation to have settled down and the ligaments to have begun healing whereupon it would be appropriate to guide the plaintiff to return to fairly normal activities.
Determination
The importance of an accurate history when making an assessment of what are essentially subjective symptoms is, as I have already observed, self‑evident. The accuracy of the plaintiff's description of her circumstances is obviously of considerable importance.
In respect to her pre‑accident physical condition the plaintiff told Dr Flahive on 27 June 2013 that prior to the accident she had a history of mild asthma but did not have any neck injuries or other significant medical problems. She did not disclose the extensive physiotherapy she received for spinal and shoulder symptoms at Maylands Physiotherapy from 17 April 2008 to 30 April 2009 (28 attendances over a 12‑month period), nor did she address the treatment she received from Mr Furniss. I do not accept that Dr Flahive did not ask her any questions relevant to pre‑existing difficulties.
The plaintiff told Mr Kapoor at the pre‑trial assessment that she did not have a history of back pain or similar injury prior to the motor vehicle accident. She neglected to refer to the pre‑accident physiotherapy, although she acknowledged that Mr Kapoor enquired about pre‑accident symptoms. The letter from the plaintiff's solicitor to Mr Kapoor (exhibit 20) makes it clear that she maintained she did not have discomfort prior to the accident.
In the course of submissions in respect of the application to amend the defence the plaintiff's counsel confirmed her instructions to him that although she received physiotherapy for a discrete shoulder injury it had nothing to do with neck or back symptoms.
Mr Kapoor was also instructed that the plaintiff had been unable to work for a period of four months post‑accident. I reject her explanation for that misstatement, being that she thought he was only asking about her musical commitments. It is also to be noted that in par 9 of the plaintiff's opening outline of submissions it is stated that she was off work for a period of four months post‑accident. It is clear from the evidence that she resumed her casual employment at the Ellington Jazz Club on 30 August 2009 and continued in that employment regularly thereafter. In the financial year in which the accident occurred the plaintiff earned $14,470 from Just Sax, but because of the lack of detail in the taxation return, and the fact that no primary documentation was produced, it is not possible to determine the break up if any between musical engagements and tutoring and/or the dates of those activities.
In the result I have been left with a lack of confidence in the plaintiff's evidence concerning the cause and duration of her injuries and symptoms, and as a consequence assessment is reliant to a large extent on the objective material.
The probative value of Mr Styles's evidence is somewhat reduced by his misunderstanding of the treatment the plaintiff was receiving.
Mr Kapoor's evidence is necessarily based upon an acceptance of the plaintiff's account and history of symptoms, and her attribution of those symptoms to the accident. The fact that the plaintiff did not inform him accurately of her pre‑accident condition necessarily impacts upon the worth of his diagnosis and prognosis.
I accept the evidence of Dr Flahive. His clinical examination revealed a full range of cervical and thoraco‑lumbar spine movements. He did not believe that the plaintiff would have any permanent disability, and on an acceptance of her complaint of symptoms did not consider it would affect her capacity to undertake normal domestic or other daily living activities. He considered that the effects of the soft tissue injury had probably long resolved, and that the substantial cause of her current symptoms was her vocational activity. That view is supported by the fact that it is clear the plaintiff's vocational activities had been productive of shoulder, neck, thoracic and lumbar symptoms of consequence for some time before the accident.
Clearly in the accident the plaintiff received a soft tissue insult to her left shoulder (not her right shoulder) and back generally, which would have given rise to symptoms of pain and restriction for a reasonable period of time post‑accident. That necessitated her attendance upon a general practitioner the day following the accident, and radiological examination at the Busselton Hospital. She appears to have seen a general practitioner at ECU on 5 August 2009. She resumed physiotherapy at Maylands Physiotherapy on 4 August 2009 and had 17 treatments up to 16 October 2009. I do not accept that she ceased treatment because the Commission declined to meet the cost thereof (the Commission in fact declined to pay for gym membership in view of the lack of medical reports supporting such a need); and did not pay any physiotherapy accounts until 13 April 2010. Her earnings in the financial year ended 30 June 2010 amounted to $17,489, more than double that of the previous year. The plaintiff consulted another physiotherapist, Brett Furniss, on 6 October 2009 and on four occasions in 2010. Thereafter she attended upon a student of chiropractic at Murdoch Chiropractic on five occasions in February/March 2011; the Dalkeith Physiotherapy Clinic on seven occasions in February and March 2012; Dr Andrew Taylor on 7 June 2012; and upon the chiropractor Mr Leece on 29 occasions over a 12‑month period commencing 5 April 2012. The attendances upon the Dalkeith Physiotherapy clinic, Mr Leece and Dr Taylor occurred subsequent to the plaintiff taking steps to initiate proceedings.
I do not accept that the physiotherapy (save for that paid by the Commission) and the chiropractic was necessitated by accident caused symptoms.
The plaintiff's lifestyle since the accident is inconsistent with a significant degree of disability. Her achievements as a saxophonist are to say the least remarkable. It is difficult to envisage that she could have achieved more. In addition she had clearly led a very active and fulfilling social life including extensive travel, and considerable engagement in vocational activities. Her medical, para‑medical and pharmaceutical requirements up until she gave instructions for her claim were modest.
I accept that the plaintiff would have experienced painful and distressing symptoms in the immediate post‑accident period and that those symptoms would have imposed restrictions on her ability to engage in her pre‑accident employment from the date of the accident until the end of August 2009. They would also have impacted upon her academic obligations, as evidenced by the fact that it became necessary to defer her examinations for a short period of time. It is obvious however from her general lifestyle that her symptoms had substantially reduced by the end of 2009 and essentially resolved by mid‑2010 such that they were no longer relevant in respect to her capacity to undertake normal domestic, social and vocational activity. I reject the para‑medical evidence to the contrary. I am satisfied that such physical symptoms as she experienced subsequent to the middle of 2010 were a direct of consequence of her vocational activities, consistent with the position that applied prior to the accident. The plaintiff suffered no more than what could be described as a modest soft tissue injury to the cervical spine of limited duration and without permanent disability. It amounts to no more than 5% of a most extreme case. I assess damages for non‑pecuniary loss at $17,500 which however is below the threshold.
I am satisfied that in the short term the accident impacted upon the plaintiff's earning capacity but having regard to the shortcomings in the evidence concerning documentation thereof it is difficult arithmetically to calculate past loss.
In the 10‑week period up to the date of the accident the plaintiff worked at the Ellington Jazz Club an average of approximately 6 hours a week at a rate of $16 net per hour. That amounts to $96 per week which sum I allow for 5 weeks from the accident until she resumed that employment – i.e. $480.00.
I have already referred to the difficulty quantifying any loss of Just Sax. It would seem that the plaintiff's examination commitments would to some extent have impacted upon her ability to pursue commercial engagements during the relevant period up until the death of her father. In the result I allow $2,500.
Consequently the plaintiff is entitled to $2,980 for past loss.
I do not accept that the plaintiff has established a loss of future earning capacity.
By way of special damages the plaintiff is entitled to the following:
Maylands Chiropractic Clinic $70.00
Pharmaceutical $100.00
Travelling$100.00
$270.00
The plaintiff is entitled to interest on the above amounts at 4% for 4.5 years being $585.
In the result there will be judgment for the plaintiff in the sum of $3,835.
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