Russell v Tuong - [2016] ACTSC 93

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Russell v Tuong
Citation:	[2016] ACTSC 93
Hearing Dates:	11-14 April 2016
Date last submissions received:	21 April 2016
DecisionDate:	13 May 2016
Before:	Mossop AsJ
Decision:	See [181]
Catchwords:	PERSONAL INJURY – rear end collision – liability admitted – assessment of damages – whiplash injury – pain condition – turns on own facts
Legislation Cited:	Civil Law (Wrongs) Act 2002 (ACT), s 45 Civil Procedures Rules 2006 (ACT)
Parties:	Tamara Russell (Plaintiff) Daniel Huy Tuong (First Defendant) Lina Wang (Second Defendant) Insurance Australia Limited t/as NRMA Insurance (Third Defendant)
Representation:	Counsel R McIlwaine SC with K F Jones (Plaintiff) R Cavanagh SC with D Crowe (Defendants)
Solicitors Maliganis Edwards Johnson (Plaintiff) HWL Ebsworth (Defendants)
File Numbers:	SC 540 of 2014

MOSSOP AsJ:

The plaintiff’s claim in negligence arises out of two motor vehicle accidents. The accidents occurred on 22 February 2012 and 28 February 2013. Both accidents were rear-end collisions involving cars running into the back of the plaintiff’s vehicle. Liability has been admitted by the defendants and the case therefore involves an assessment of damages. Both defendants were insured by the same insurer. Because of that no issue of apportionment between the accidents arises.

The accidents

The first accident occurred at 6.45pm on 22 February 2012 at the intersection of Coronation Drive and Commonwealth Avenue. Coronation Drive is the road on which the Chinese embassy is located and has an intersection with Commonwealth Avenue at a point where the Canberra Croquet Club is on one side and the British High Commission is on the other. For vehicles on Coronation Drive there is a slip lane that permits traffic turning left onto Commonwealth Avenue to avoid the traffic lights that otherwise govern passage through the intersection. Vehicles using the slip lane are required to give way to vehicles already on Commonwealth Avenue. The plaintiff was in the slip lane intending to turn left and travel past the Hyatt Hotel, across Commonwealth Avenue Bridge and home to her house in Ainslie. She stopped at the intersection and was looking to her right, watching a car on Commonwealth Avenue that was approaching rapidly from the south. Her head was turned to the right. The first defendant’s vehicle struck the rear of her car. She felt the impact and estimated that the impact moved her car 80 to 100 cm forward. She described immediately having a splitting headache over the top of her head and through to her eyes. She described the pain as being at an intensity of 9 on a pain scale of 1 to 10. She turned onto Commonwealth Avenue and pulled over into the carpark at the Hyatt Hotel. She described that she had a very sore neck on the left side and through to her trapezius. In the Hyatt Hotel carpark she spoke to the driver of the other vehicle and exchanged details.

A photo of the plaintiff’s vehicle after the accident (Exhibit 3) shows that it sustained appreciable crumpling of the bumper bar and the rear of her vehicle around the number plate.

The second accident occurred on 28 February 2013 at about 11.55am at the intersection of London Circuit and Constitution Avenue, the intersection which is adjacent to the carpark commonly used by those attending the Canberra Theatre. The plaintiff was on London Circuit, intending to travel south and use the on-ramp to get onto Commonwealth Avenue and travel southwards over the Commonwealth Avenue Bridge. She had attended her general practitioner that morning and obtained a referral to a psychologist. She was waiting at the traffic lights. A van was in front of her vehicle. When the lights changed the van pulled off and the second defendant’s vehicle ran into the back of her. It was a light impact. A photograph of the plaintiff’s vehicle after the accident (Exhibit 8) shows only one very small dent at the bottom right hand side of the bumper bar. I accept the second defendant’s evidence that she was driving an automatic vehicle and had simply taken her foot off the brake, permitting the vehicle to move forward and run into the plaintiff’s vehicle. The plaintiff, however, was very upset by the impact. She described having an aching neck and tender lower back. However, she was able to continue her journey to work and complete that day’s work. The records from her business on that day show that she completed four hours of massages that afternoon. The plaintiff gave evidence that by the end of the day she had “a severe tight headache” and was feeling “very emotional”.

The plaintiff’s history before and after the accident

At the time of trial, the plaintiff was 54 years old and had a life expectancy of 34 years.

She completed secondary school at the end of year 12 in 1979. In 1980 and 1981 she was employed at Toorak State College in Melbourne as a graduation coordinator, performing administrative duties. In 1982 and 1983 she worked at Calvary Hospital in Canberra as a relief clerk, performing clerical duties in a variety of different parts of the hospital when other employees were away. In 1984 and 1985 she travelled through North America, the Eastern Bloc and Europe. She was employed in London by Package Programs Ltd as a personal assistant to the marketing director, doing secretarial work. In 1986 and 1987 she was employed by Young & Rubicam, an advertising agency in Melbourne, as an account coordinator performing secretarial duties for account managers. During this period she obtained a diploma in advertising and marketing at Caulfield TAFE in Melbourne.

In 1988 she travelled through Asia, China and the USSR as a backpacker. Later in that year she was employed by JG Word Processors, a temporary staffing agency in London, as an executive assistant and worked in a number of different firms of solicitors. It was during this period that she met her husband.

In 1989 she was employed by Klein Grey Ltd in London as a senior advertising account executive. She married Martin Russell in August 1989.

For a period in 1989 and 1990 she was employed by the Greater London Council as a marketing consultant. She was responsible for the marketing for a new college that was opening in the East End.

Her first child, Natasha, was born in 1990.

Between 1991 and 1993 she published a business directory called the South-West London Parents’ Directory, a directory of businesses and services for parents. It was distributed free and made its money from its advertising content.

In 1993 her second child, Rhiannon, was born. In that year she started a business known as Puddleduck Designs which sold gift cards and painted china to order. The plaintiff produced these items herself.

Her third child, Katya, was born in 1994. The plaintiff was a full-time mother and out of paid employment for the period up until April 1998 when she was employed by Buckinghamshire County Council as a consultant in safety for schoolchildren. She implemented programs to encourage children to walk to school and to ride bikes. She stayed in that employment until 2003 when she and her family moved back to Canberra. They lived in Campbell on a large block and planted a productive garden there.

After returning to Australia she was employed by the Australian National University Students’ Association as its financial officer/administrator. While employed there she was able to cycle to work. She stayed in that employment until October 2005.

Prior to her second child the plaintiff did not have any back problems. After she had her second child, she would occasionally get twinges in her back. After her third child she would have lower back pain that flared randomly, triggered, for example, by gardening. The existence of this issue did not affect her recreational activities and during the period that she was in the United Kingdom she did a lot of hiking.

In November 2004, the plaintiff consulted Dr Stella Kingston at the Campbell Medical Practice in relation to suffering from some lower back pain after lifting files at work. She saw Dr Kingston again in January 2005 and the doctor noted that her back was improving, but that she still had low back pain on lifting and prolonged sitting. She was recorded as having to lie down on the sofa at work every hour and being treated with physiotherapy.

In June 2005, the plaintiff separated from her husband. She has remained separated from her husband although not divorced. Although the evidence is not clear, it appears that her three daughters continued to live with her.

Between 2005 and 2008 she was employed in the Commonwealth Public Service by the Department of Industry, Tourism and Resources as an APS 6 and then as an EL 1. She was at that point working four days per week.

In October 2006, she consulted Dr Kingston again in relation to low back pain. Lots of gardening had set off an episode of back pain which led to her spending two or three days “flat on her back”. Her condition resolved itself over four or five weeks.

During this period she had a dog which she would walk for four or five kilometres each morning prior to work.

In April 2007, she and her family moved from the house in Campbell to a house in Cobb Crescent, Ainslie. That too was a large block in which she established a productive garden. She devoted time to the garden each weekend.

For a couple of months in early 2008 she was employed by the Department of Innovation, Industry, Science and Research as a program manager (EL1) in the Manufacturing Division. In early 2008 the Department changed its name to the Department of Innovation, Industry, Science and Research.

In April 2008, she worked as an Assistant Director (EL1) in the Department of Environment Water, Heritage and the Arts. In August 2008 she suffered a repetitive strain injury in her right wrist, which was resolved following some physiotherapy and the provision of an altered workstation. Between March 2009 and September 2011 she was employed by the Department of Climate Change and Energy Efficiency as an Assistant Director (EL1), sometimes acting as Director (EL2). She was at this point working four days per week.

In June 2010, she contacted Dr Streetharan at the Blamey Medical Practice in relation to her low back. This followed her attempts to move a washing machine using a trolley during which she strained her back. She also saw Mr Ben Field, an osteopath, in relation to knee pain which arose after cycling and a clicking noise in her upper neck.

In September 2010, the plaintiff obtained a Certificate IV in Massage Therapy. This was a one-year course, but she managed to do it in nine months. At about the same time, she purchased a business known as Yarralumla Body Works which was a remedial massage business in Yarralumla. She reduced her work in the public service from four days to three days, working afternoons on Tuesday, Wednesday, Thursday and the whole of Friday in the massage business. If necessary she would also work on Saturday. The premises from which the business operated had room for only one massage table. Her opinion was that the vendor from whom she had purchased the business had not been diligent and that the business had been run down. She managed to build up her own business largely by word of mouth.

In November 2010, she saw Dr Kingston who prescribed Lovan, an antidepressant. At that stage the plaintiff described her public service workplace as being “very negative” and her father was ill.

In April 2011, the plaintiff took leave from the Department to work in her business. She was, at that point, working up to eight hours a day on four days of the week, as well as some Saturdays for four hours. She employed a contractor to work on Mondays and two contractors each working one Saturday per month.

At Easter 2011 her lower back flared for no apparent reason. She spent three days “flat on her back”. She consulted Dr Balu at the Ainslie Family Practice in May 2011 in relation to her back pain. She was referred for a CT scan of her lumbar spine. In June 2011, she had a CT guided cortisone injection at the L5/S1 level by a specialist in Deakin. She was reviewed in July 2011 by Dr Balu. At that point she reported that the cortisone injection had only helped a bit. She still suffered radiating pain to her left lower leg, some numbness and had trouble sitting or standing for long periods. She was referred for physiotherapy and to see a neurosurgeon, Dr Justin Pik. However, the pain resolved prior to her appointment with Dr Pik in early August and she cancelled it.

In September 2011, she obtained a Diploma in Massage Therapy. This was significant because with a diploma she was able to register with major private health funds and hence her clients were more likely to be able to claim some part of the cost of massage treatments from their health funds. At that point she also resigned from the Commonwealth Public Service in order to pursue her massage therapy business. She continued to work four days during the week and every second Saturday.

In December 2011 she consulted Mr Field, the osteopath, with a complaint of generalised low back pain without neurological symptoms. She responded well to the treatment and only saw Mr Field again on 25 February 2012, after the accident.

The day after the accident on 22 February 2012, she saw a doctor at the Ainslie Family Practice (Dr Medhurst), giving a history of a motor vehicle accident. The doctor’s notes disclose:

MVA-assessment
MVA-Commonwealth Ave/Coronation Dr-rear-ended-driver of front car. No head trauma
Whiplash neck-increasing today; [right] wrist & [right] knee aching
[On examination] Wrist: No bruising/deformity or swelling
Knee: Minor local swelling [right lateral] joint line No bruising
Neck:-Full [movements left] trapezius tension
for heat/massage/may need physio/NSAID
…

She had a number of sessions of physiotherapy at a physiotherapy practice in O’Connor and consulted Dr Medhurst on two more occasions.

For two weeks in April 2012 she went with her daughter on a holiday to Goa. That trip was prompted by the fact that her daughter had won some free accommodation. The plaintiff had, prior to the first motor vehicle accident, paid for the air tickets. She had to fly from Canberra to Sydney, Sydney to Singapore, Singapore to Mumbai and Mumbai to Goa. She described the various plane trips as being painful. She described the holiday as not being the most comfortable one and that she spent a lot of time in the pool.

In May 2012, she continued to receive treatment for her back condition. She had an MRI of her cervical spine and right knee, physiotherapy, a consultation with the Dr Balu and remedial massage. In July 2012, she had a guided CT injection at the C5/6 level which she described as being painful.

In July 2012 her second daughter, Rhiannon, moved to Melbourne to study.

In September 2012 she consulted the osteopath, Mr Field, on two occasions. In October 2012 she decided to sell her massage business due to her ongoing pain from the first accident. In October 2012 she had another CT guided injection, this time at the C6/7 level. The plaintiff described this as a very painful process, 8 or 9 out of a scale of 10. She said she felt nauseous afterwards and had to have two days away from work.

In November 2012 she was examined at the request of her solicitors by Dr Graeme Griffith, consultant surgeon, and Ms Leesa Morris, psychologist.

On 1 August 2012 she attended her general practitioner and the notes record “constant lower back pain”, but the content of these notes and the plaintiff’s oral evidence indicate that this was more likely than not unrelated to any back condition relevant to these proceedings.

In January 2013 she was seen by Ms Bronwyn Thompson, a psychologist at Fit to Manage (a rehabilitation consultancy), upon referral by Dr Balu.

On 29 January 2013 Dr Peter Cole, a general practitioner, provided a referral to Dr Pik, a neurosurgeon, which includes the statement: “She is a massage therapist and is struggling to work due to the pain.”

In February 2013 the plaintiff’s third daughter, Katya, moved to Melbourne and her eldest daughter, Natasha, who was still studying at the Australian National University, moved in with her father.

The second accident occurred on Thursday 28 February 2013. The plaintiff had, that morning, consulted with Dr Balu at the Ainslie Family Practice and had been given a referral to Ms Michelle Martinez, psychologist.

In fact the plaintiff saw Ms Martinez on 1 March 2013. She reported a further aggravation of pain due to the second accident.

The next Monday, 4 March 2013, the plaintiff consulted Dr Balu again, complaining of increased back and neck pain. This was the first consultation with a doctor following the second accident. Dr Balu’s notes record:

Was stationary at a traffic light, just turned green and was rear ended.
Increase in back and neck pain… Sharp pains.
Aches down both arms all weekend… now not so bad. No [paraesthesia].
Aches into both shoulders while lying in bed and moves head.
Just over 1 year since first MVA in 2012
Discussed … time needed, no need for any more scans yet. Continue endep, panadol osteo

The plaintiff was at that stage attempting to sell her business. Following the second accident she reduced the asking price of the business from $12,000 down to $7,000 and was successful in March 2013 in selling the business to Ms Prue Curtotti. The last day that she worked in the business was 21 March 2013.

She saw Ms Martinez on four more occasions in March, April and May 2013. She found those consultations useful to deal with issues arising from the change in her anticipated career path and the sadness that she had felt was growing in relation to that.

She was examined by Dr Pik, neurosurgeon, on 26 March 2013 in relation to neck and shoulder pain. Dr Pik recommended against surgery and recommended that the plaintiff be seen by a pain management specialist. She was seen by Dr Mark Porter, orthopaedic surgeon in relation to bilateral knee pain on 5 April 2013. Dr Porter also recommended against surgery.

Between 29 April 2013 and 25 June 2013, the plaintiff retained a cleaner in order to assist her to clean her house. While her daughters had been living with her they had done the cleaning and otherwise assisted her around the house, but since they all had moved out she had not been able to do the cleaning herself.

On 27 June 2013, the plaintiff relocated to Melbourne in rented premises at 170 Stewart Street, Brunswick East. She lived there with Rhiannon and Katya. Her daughters did the housework.

In August 2013, she consulted Dr Kathleen McDonald (also known as Kathleen Holcombe) at the Brunswick Medical Group. The doctor’s notes record that the plaintiff had neck pain after the first accident, and that it was worse after the second accident and she was now getting aches and pains all over her body. The notes also record that she was “worried re fibromyalgia”. The doctor gave her a number of referrals including a referral to a rheumatologist and a referral for physiotherapy to Mr Vincent Russo. The plaintiff has continued to see Mr Russo since that time. She was also referred to Dr Tim Bennett, rheumatologist, and Dr Seaton Charlesworth, psychologist. She had five sessions with Dr Charlesworth and considered that she obtained a benefit from those consultations including mindfulness exercises and strategies for dealing with pain and depression.

On 26 September 2013 she saw her general practitioner and the doctor’s notes record that she had lumbar back pain which had been getting worse over the last two months with radiation down the posterior side of her left leg for the last week, which was the same sensation as when she had an L5/S1 disc bulge in 2011. She was referred for a CT scan.

In March 2014 her general practitioner, Dr McDonald, recorded ongoing pain in three different locations: first a bony ache through her spine/back; second a shooting/sharp pain in her posterior neck up towards her head and in her left hip; third a sensation in her left foot as though she was walking on glass. At that point she was still awaiting consultation with a neurosurgeon and with the chronic pain clinic at the Royal Melbourne Hospital.

By May 2014 she had sold her house in Ainslie and purchased a property at 79 Stewart Street in Brunswick East. She had some repairs and modifications done on the house prior to moving in. She and two of her daughters (Rhiannon and Katya) lived there together.

In June 2014 she was assessed at the pain clinic at the Royal Melbourne Hospital. There had been a delay of about 12 months in getting into this clinic due to a long waiting list. She attended the pain clinic on five occasions after her first assessment.

In July 2014 her eldest daughter, Natasha, completed her university degree at the Australian National University and moved to Melbourne to live with her mother and sisters.

In July or August 2014 the plaintiff had a holiday in Cambodia with her daughter Katya. She decided to go on this notwithstanding that she continued to suffer from neck and back pain. She made return trips by bus from Phnom Penh to Seim Reap and from Phnom Pehn to Sihanoukville. Each bus trip was four to five hours.

After moving to Melbourne the plaintiff applied for a number of jobs. The jobs are listed in the Exhibits 12, 14, 15 and 24. The jobs appear to be part-time jobs ranging from seven hours per week up to 22.5 hours per week. In August 2014 the plaintiff was employed in her current employment by the Council of Australian Postgraduate Associations. She worked two days per week as a financial and administrative officer. Initially she worked those two days in the office, but found that a full day in the office as well as getting to and from work was too exhausting and worsened her pain. As a consequence, she negotiated with her employer so that she did one relatively short day of approximately five hours in the office per week and the balance of her work was done remotely from home. In August 2015 her wage was increased from $369 to $465 per week plus a 17% superannuation contribution.

In September 2014 the plaintiff’s kitchen was rebuilt. That included new cupboards and a raised bench height. The cupboards were designed with draws to make access to them easier and the raised bench reduced the extent to which the plaintiff needed to bend while working.

The plaintiff’s mother had died in August 2014. In the second half of 2014, the plaintiff’s father was ill and she had to travel to Canberra by car or by air on 13 occasions between August 2014 and August 2015. She was able to drive from Melbourne to Canberra, although she could not do it in minimum time. She arranged for her father to move to Melbourne in August 2015. He lived in an aged care facility in Melbourne until he died in November 2015.

In October 2014 she was still seeing the team at the Royal Melbourne Hospital pain clinic. She saw her general practitioner, Dr McDonald as a result of a fall in her bathroom which led to soreness over her coccyx.

In November 2014 she saw a doctor at the Brunswick Medical Group because she suffered an increase in bilateral trapezius pain following doing more work on the computer. The general practitioner gave her advice about work posture.

In April 2015 she had a flareup of sciatica with pain from L5/S1 radiating down her left side and intermittently to her left foot.

In July 2015, she saw a general practitioner at the Brunswick Medical Practice with a history of six months of progressively worsening pain over her sacroiliac joint with sharp knifelike pain and spasms radiating into the left buttock and sometimes radiating down the posterior aspects of her leg. She was referred for further x-rays.

In August 2015 her general practitioner, with the benefit of the x-rays, recorded that inflammatory sacroiliitis was unlikely, that there was no evidence of degenerative changes, that the pain was possibly related to fibromyalgia and there had been no worsening of pain.

In December 2015, the plaintiff injured her left wrist when she was knocked off her bicycle. Her general practitioner diagnosed a sprain. The left wrist continues to cause her slight pain. The plaintiff was not required to take any time off work. She saw her general practitioner in January 2016 with ongoing left wrist pain despite analgesia and immobilisation by a splint. In early February 2016 the report of a CT scan confirmed a fracture of the radius and the plaintiff was given a plaster slab for her wrist.

The plaintiff has maintained her website for the business Puddleduck Designs, which sells the greeting cards that she produces. She also maintains a website called Karhina.com which advertises a range of products and services. While the website advertises a range of services that the plaintiff can provide in the form of craft workshops, the website is principally for the purpose of marketing her craft products which she continues to produce. Although the range of items she now produces is more limited than previously, she continues to sell items from stock which she no longer produces. A printout of the whole of the website was tendered and became Exhibit 18.

The plaintiff also maintains an Instagram account which documents her life and activities. A print out of the whole of her account was tendered and became Exhibit 19.

The plaintiff’s current treatment involves seeing a physiotherapist once per month and having a remedial massage once per month. She does not regularly see a psychologist or psychiatrist. She swims regularly at either a private pool or at the Brunswick baths. She takes Endep (an antidepressant), venlafaxine (an antidepressant) and Pentoprazole (medication for an unrelated condition) as well as Panadol Osteo and ibuprofen.

Expert medical evidence

Apart from the records and reports of treating medical practitioners, the parties relied upon a large number of reports from experts who examined and reported upon the plaintiff for the purposes of the proceedings. The review of the expert medical evidence below is set out in chronological order based upon the first date upon which the relevant medical professional assessed the plaintiff.

Dr Pascall

Dr Virginia Pascall, an occupational physician, assessed the plaintiff on 10 September 2012 and reported to the NRMA on 31 October 2012. Her conclusions were most relevantly as follows:

(a)There was no indication that her lower back was affected by the first accident, but her upper back in the upper thoracic region was affected.
(b)The plaintiff had significant symptoms in her neck arising from the motor vehicle accident. These were entirely muscular. The muscular complaints relating to the cervical whiplash injury were the cause of her shoulder pain.
(c)The doctor was unable to determine whether the work-related issues of the right forearm and wrist also caused some of the plaintiff’s neck complaints.
(d)She did not consider that the plaintiff’s wrist or thumb pain had any relationship to the motor vehicle accident, but rather was a long-term problem aggravated by her massage techniques.
(e)The plaintiff’s knees had significant degenerative changes aggravated by the motor vehicle accident, the right knee being worse than the left.
(f)80% of the neck and upper body restrictions were attributable to the motor vehicle accident and 20% were associated with the ongoing right forearm/wrist complaint and her work practices as a massage therapist.
(g)In relation to her knee problem, the ongoing irritation comes from her work practices as a massage therapist.
(h)The need for present treatments for her neck/shoulder/upper back and her right knee were 60% due to the accident, 30% due to work practices aggravating the situation and 10% due to degenerative symptoms.
(i)She doubted whether the plaintiff would achieve the capacity to undertake extensive garden care in the future, but the limiting factor would primarily be a lower back complaint rather than anything else.
(j)She should not be undertaking massage treatments more than three hours per day, but had the potential to get up to five hours per day. However, sooner or later, the lower back and knees would give her problems in carrying out that level of massage treatment even if the accident had not occurred.

Dr Pascall was not required for cross-examination.

Dr Griffith

Dr Graeme Griffith, consultant surgeon, examined the plaintiff on 19 November 2012 and reported to the plaintiff’s solicitors on 25 November 2012. Dr Griffith took a history from the plaintiff, examined her and identified the sequelae of the accident as being

1. Persistent cervical myalgia, particularly left-sided.
2. Persistent cervicogenic left sided headache.
3. Left side by bicipital tendinosis.
4. Minor adjustment disorder with elements of depression and anxiety (a matter which has not been discussed with treating personnel).

He described the plaintiff as having pre-existing degenerative disease of the lower lumbar and physical regions with extensive spondylosis as described in the radiological reports. He recorded that the plaintiff was now virtually totally asymptomatic in the lumbar region in spite of the motor vehicle accident and the degenerative changes in her spine. He considered that the prognosis would be one of continued improvement especially with a proactive treatment program in relation to which he made suggestions.

Ms Morris

Ms Leesa Morris, psychologist, reported to the solicitors for the plaintiff on 7 January 2013. She had assessed the plaintiff on 19 December 2012. Ms Morris concluded that the plaintiff did not satisfy the requirements for Acute Stress Disorder or Post Traumatic Stress Disorder, but that she did satisfy the requirements for a diagnosis of Adjustment Disorder with Anxiety and Depressed Mood in accordance with DSM IV.

Dr Le Leu

Dr Leon Le Leu, an occupational physician, saw the plaintiff on 15 March 2013 and reported to the plaintiff’s solicitors on 16 March 2013. The report provides a comprehensive assessment of her status shortly after the second accident. The report records the plaintiff’s complaint of lower back pain and tingling down her right leg. The diagnosis was an exacerbation of pre-existing degeneration of the cervical spine and possible new cartilage injury to the patellae, more on the right side, or an exacerbation of pre-existing, but clinically silent, chondromalacia patella.

Dr Silver

Dr John Silver, a consultant occupational physician, saw the plaintiff on 6 November 2013 and reported on 9 November 2013 to the defendants’ solicitors. His report made the following points:

(a)The history elicited from the plaintiff was inconsistent with the history provided to other reporters.
(b)The plaintiff had a history of psychological and emotional vulnerability.
(c)The plaintiff had long-standing low back pain and pre-existing neck and bilateral knee pain.
(d)The plaintiff suffered a classic minor soft tissue whiplash mechanism injury as a result of the first accident, and the history regarding symptoms secondary to the second collision was not plausible based on the biomechanics of the collisions.

Significant for the doctor’s conclusions was his opinion that the natural history of minor whiplash mechanism soft tissue injuries was full resolution “within a few days or weeks and it is apparent that this has occurred in this case”. He considered that her ongoing issues related to her pre-existing degenerative cervical spondylosis and her lumbar degenerative disease, as well as bilateral knee degenerative disease.

In the course of cross-examination Dr Silver was asked about the basis for his clear conclusion that the whiplash injury had resolved. The following appears in the transcript:

Now, in your report you say that you accept that she incurred a minor soft tissue whiplash mechanism injury in the first accident, and that the effects of this have long since resolved. What possible basis have you got for saying that?---Because the natural history of minor soft tissue whiplash mechanism injuries is the resolution within a few days, or, in more severe cases, only a few weeks.
Now, in your experience, have you not come across patients who have had whiplash injuries that have not resolved within that time frame?---It's unusual that people do not from ordinary soft tissue injuries, whiplash mechanism injuries get better within a few weeks.
As an occupational physician, haven't you had numerous patients who have had the consequences of whiplash injury experienced for years?---Well if you – if you know about the - was it Slater and Gordon who bought a law firm in London, on the basis of hundreds of patients having whiplash mechanism injuries that went on for years, and as soon as the law changed, they all got better.
Really?---Yes
That's Slater and Gordon, is it?---(indistinct)
And how do you know all their patients got better?---Because it was in the newspaper. It was widespread general knowledge, because it was reported. Now, there are certainly people who complain that what's known as whiplash injuries could go on for years and years, but the fact is that unless there's structural damage, soft tissue injuries don't go on for years and years, they get better. It's the natural history with the situation.
Just like all of Slater and Gordon's clients got better once Slater and Gordon was confronted with a change of law in the UK. Is that what happened?
---Well, I don't know. You're talking about whiplash injuries going on for years and years, and I'm telling you about genuine soft tissue injuries that do not go on for years and years.
Well, I want to suggest to you, doctor, that that is not the case, and that soft tissue injuries can persist and cause symptoms in the long term, they can become chronic?---You're entitled to your opinion.

I observe that this explanation from Dr Silver did not, in my view, provide a scientific medical basis for the dogmatic conclusion that the doctor reached. The conclusion implied in the explanation that the doctor gave is that those persons complaining of pain following a whiplash injury beyond the period of a few weeks after the accident were making false complaints. The opinion appeared to me to be inconsistent with the other expert opinion in the case and I do not accept it.

Dr Shannon

Dr Michael Shannon, orthopaedic surgeon, first saw the plaintiff on the 11 February 2014 and reported to the defendants’ solicitors on 13 February 2014. He re-examined the plaintiff on 14 September 2015 and reported again on 22 September 2015.

He was of the opinion that the plaintiff may well have suffered a soft tissue injury at the cervical spine. He thought it unlikely that she would have sustained any direct trauma to her knees and was not, at that stage, suffering ongoing significant symptoms. He thought that it was unlikely that the second accident would have had a significant influence on the plaintiff’s low back. He considered that the current physical findings were entirely consistent with long-standing degenerative changes in her neck and back. He did not recommend returning to work as a massage therapist. He expressed the opinion that “her ongoing symptoms of neck discomfort and headaches could in part relate to the first accident”, but that her back complaints were not reasonably related to either accident.

In his second report, he expressed the opinion that the plaintiff’s pain was much better managed following her attendance at the pain management clinic at the Royal Melbourne Hospital and that her requirements for pain relief were quite modest. He considered that the significant injury from the first accident was to her neck and the injury was an aggravation of pre-existing, but previously asymptomatic degenerative change. He expressed the opinion that there was no clear documentation of any alteration in the back pathology following the second accident and, having regard to the low speed, it was highly unlikely to cause significant back injury. His conclusion was:

... it is my view that neither accident has resulted in significant changes to either her back or her knees, but that the first accident and possibly the second accident has aggravated pre-existing cervical disc degeneration and possibly precipitated a pain syndrome diagnosed by several rheumatologists as fibromyalgia.

Dr Shannon was not required for cross-examination.

Dr Fraser

Dr Kevin Fraser, a rheumatologist, saw the plaintiff on 25 March 2014 and reported to the defendants’ solicitors on 26 March 2014. He also provided a report dated 22 July 2015 after seeing her again on 17 July 2015. In his report on 26 March 2014, he recorded his opinion that he was not convinced that there was any ongoing motor vehicle related injuries in that case. In short, while he accepted that the plaintiff probably suffered soft tissue strains or temporary symptomatic aggravation of pre-existing degenerative changes at various sites, in particular the cervical/shoulder region and perhaps the right knee in the first accident, any such injuries would have resolved within a few months and any ongoing symptoms were either age-related degenerative changes or matters of a psychosocial nature.

In his report of 22 July 2015, which was made after having reviewed the report of Dr Champion, Dr Fraser made the following points:

(a)He suggested that the fibromyalgia diagnosed by Dr Bennett was “due to psychosocial factors rather than trauma”.
(b)He agreed that the possibility that the transport accidents played “a bit part” in the aetiology of the fibromyalgia was a possibility that could not be excluded.
(c)He did not consider that the plaintiff’s current disabilities, incapacity or need for treatment related to the transport accidents, but considered that “they predominantly related to pre-morbid factors of a psychosocial nature and degenerative changes due to her age and constitutional factors”.
(d)He conceded that “one cannot completely exclude the possibility that the motor vehicle accidents have been one of many factors associated with the onset of her fibromyalgia like symptoms, although for psychological rather than physical reasons”.
(e)“It is impossible to tease out the extent of the relevant contributory factors mentioned by Dr Champion and discussed previously, except that I would suggest that the motor vehicle accidents have been relatively minor in this regard.”
(f)The prognosis was poor and it is unlikely that there will be any improvement in the foreseeable future.

Dr Fraser was cross-examined briefly and did not express different opinions in giving that evidence.

Dr Vickery

The plaintiff was examined by Dr Graham Vickery, psychiatrist, on 1 April 2014. Dr Vickery reported on the same date. The injuries from the first motor vehicle accident were described as a whiplash injury associated with pain in the left side of the neck and shoulder as well as pain in the right wrist and both knees. The wrist pain had resolved. There was minimal pain in her knees when she was not standing for long periods. The main problem appeared to be the plaintiff’s neck. Dr Vickery concluded that there was no evidence of psychiatric incapacity in the clinical examination and no objective evidence of any psychological/psychiatric conditions suffered by the plaintiff.

The plaintiff saw Dr Vickery again on 20 May 2015 and he reported to the defendants’ solicitors on the same day. By this date Dr Vickery described himself as “Psychiatrist & Pain Management Consultant”. The plaintiff’s mother had died and her father was in the last stages of pulmonary fibrosis. She had also been treated at the Royal Melbourne Pain Clinic. His conclusions were the same as in 2014, namely, that there was no evidence of psychiatric incapacity or impairment in the clinical examination and no objective clinical evidence of a diagnosable DSM IV psychiatric disorder or injury. He considered her prognosis to be positive.

Dr Vickery reported again to the defendants’ solicitors on 18 March 2016. He did so in response to a request arising out of the report of Dr Champion of 20 March 2015. He set out some aspects of Dr Champion’s report and indicated that the content of that report did not change his opinion. He also set out a general discussion of the condition known as fibromyalgia.

In cross-examination Dr Vickery pointed out that in order to warrant a diagnosis of adjustment disorder it was necessary to establish significant impairment of social activities or general function, as well as marked distress. He was not able to say whether the report of the psychologists who had seen the plaintiff were based upon the existence of such impairments at the time that they were made.

Dr Champion

Dr Champion saw the plaintiff on 20 March 2015 and reported to the plaintiff’s solicitors on 21 March 2015. He also provided a supplementary report on 19 February 2016. In the first report he recorded that the plaintiff’s ongoing symptoms were predominantly left-sided neck pain referred to the adjacent suprascapular region, fairly constant left headaches, aches down her arms and lower back pain referred to the iliac crest region and also paraesthesiae in her left leg. He concluded that the arm pains “clearly relate to the second accident” while acknowledging an anatomical and pathophysiological predisposition. His diagnosis included the following points:

(a)The plaintiff has multilevel chronic cervical spinal pain syndrome characterised as a whiplash associated disorder superimposed on pre-existent asymptomatic minor spondylosis.
(b)The plaintiff’s posterior spondylotic changes were pre-existent and it was not possible to determine whether the motor vehicle accidents added to the pathology of a kind that can be visualised.
(c)The neck pain and headaches were primarily the consequence of the first motor vehicle accident, but the radicular symptoms (and very likely signs) were substantially causally influenced by the second motor vehicle accident. It is possible that brachial plexus hyperexcitability has contributed to the pain and paraesthesia in the arms.
(d)By the first accident the plaintiff was highly vulnerable to recurrence of lower back pain. The low back pain with the left leg radiation and paraesthesia was predominantly attributable to the second motor vehicle accident. The degenerative changes shown in the CT scan in 2013 were pre-accident and included disc degeneration at L4/5 and L5/S1 and left-sided canal stenosis at L5/S1. There was no indication that either motor vehicle accident influenced the observable pathology.
(e)The most likely mechanism causing pain in the plaintiff’s knees was that she struck her knees on the dashboard.
(f)The predominant causal influences on the extension of pain following the second motor vehicle accident were the plaintiff’s pre-accident constitutional vulnerability, anxiety and depression, the trauma of the two motor vehicle accidents and additional somatosensory inputs and pain resulting from endeavours to maintain her massage therapy business.

He considered that her current level of work was her reasonable and practical limit at the present time. He estimated the costs of future medical treatment and considered that the most likely prognosis over the next few years would be more of the same, although there may be improvement or deterioration.

In his second report, he was asked to review the reports of Dr Bennett, Dr Fraser, Dr Shannon, Dr Vickery and Dr Silver. His conclusion was that the content of those reports did not cause him to alter the views expressed in his primary report. However, he did accept that the cause of the right patellofemoral pain syndrome remained unclear and that there was more evidence of an absence of a causal link with the first accident.

In cross-examination Dr Champion gave evidence that the plaintiff was, prior to the first accident, highly vulnerable to the aggravation of her lumbar spine condition. It was clear that his opinion about the effect of the second accident on the plaintiff was based upon the assumption that she had been in some way jolted in the second motor vehicle accident, that is, that there was a minor biomechanical stress to her spine. In relation to the effect of her lumbar spine condition on her capacity to conduct a massage business, he gave evidence that the conditions from which she suffered in 2014 and 2015 would have meant that she could only work as a massage therapist with “very considerable difficulty”. She would have been able to work to some extent part-time in a limited capacity and the extent to which she was able to continue would depend substantially on her motivation and personal circumstances.

Dr Entwisle

Dr Timothy Entwisle, psychiatrist, saw the plaintiff on 5 February 2016 and reported to the plaintiff’s solicitors on 16 February 2016. The doctor made a diagnosis of Adjustment Disorder with Depressed and Anxious Mood in remission. He considered her prognosis was a good one, particularly as a result of the pain management treatment she received after moving to Melbourne.

Are the plaintiff’s neck pain and headaches caused by the first accident?

In my view the plaintiff’s ongoing neck and shoulder pain was caused by the first accident. I accept the accuracy and honesty of the plaintiff’s reporting of ongoing pain in the neck and shoulders and of the headaches that she suffers. I accept that the ongoing condition of her neck as a result of the plaintiff’s particular susceptibility resulted in her suffering an ongoing pain condition, which it is not possible to tie back to particular features caused by the accident that are visible on the available imaging. In this regard I accept the opinion of Dr Champion.

This conclusion is consistent with the reports of Dr Pascall, Dr Le Leu, Dr Griffith and Dr Shannon. Dr Fraser appeared to accept that it was at least a possibility. To the extent to which Dr Fraser disagreed with Dr Champion on this point, I prefer the evidence of Dr Champion. It appears to me to be more consistent with the plaintiff’s history to conclude that but for the first motor vehicle accident she would not be presently suffering the pain condition in her neck and cervical spine or the headaches associated with it. As indicated above, I do not accept the opinion of Dr Silver, which did not appear to contemplate the possibility that a person suffering a whiplash injury may develop, for physical and psychological reasons, an ongoing experience of pain causally related to the original whiplash injury.

Having accepted the accuracy of plaintiff’s reporting of her headaches and neck and shoulder pain, and having regard to the circumstances of the accident and the history of her condition since then, I consider that it is more likely than not that her current condition is caused by the first accident (in the sense required by s 45 of the Civil Law (Wrongs) Act 2002 (ACT) (CLW Act)), rather than by any unrelated underlying condition or other factors. The defendant did not establish (or submit) that in the absence of the accident the degenerative processes in the plaintiff’s cervical spine would have led her to suffer the same headaches and pain that she now continues to suffer.

Was any knee condition caused by the first accident?

Immediately following the first accident, the plaintiff was examined by Dr Medhurst who found minor local swelling in her right knee (see [31] above) consistent with there having been some impact during the accident itself. This was consistent with the report to the physiotherapist, on 29 February 2012, that the plaintiff’s knee (along with her wrist) was sore at the time of the accident.

In September 2012, Dr Pascall concluded that the plaintiff’s knees had been aggravated in the accident notwithstanding that she considered that the evidence was consistent with there being no actual blow to the right knee. She considered that there may have been a sudden jarring which aggravated degenerative changes in her right knee and that any symptoms in the left knee were indicative of underlying degenerative changes.

By January 2013, Ms Thompson of Fit To Manage recorded that the plaintiff’s knee symptoms had improved and the plaintiff was primarily concerned with her neck and shoulder symptoms.

The plaintiff saw Dr Porter, in relation to her bilateral knee pain in April 2013. In his July 2013 report, which was based on his consultation on 5 April 2013, Dr Porter found that the plaintiff’s symptoms were consistent with a diagnosis of degenerative disease in the patellofemoral joints, but recognised that trauma may contribute to the progression of that degenerative disease. He declined to say that the motor vehicle accident caused the plaintiff’s knee conditions, preferring to defer to the opinions of those who treated her closer to the time of the accident. By the time she saw Dr Shannon in February 2014, the plaintiff was not reporting ongoing significant symptoms in her knees.

In my view, the plaintiff suffered an aggravation of the underlying degenerative condition in her right knee in the first accident. To the extent to which she suffered bilateral knee pain, that is more consistent with the underlying degenerative process described by Dr Porter. However, the effects of any aggravation in her right knee were substantially concluded by the time she saw Dr Porter in April 2013 and any additional symptoms are more likely than not to be caused by the underlying degenerative condition, rather than anything that occurred in the first motor vehicle accident.

Was her lumbar spine pain caused by the second accident?

Having regard to the findings set out above at [4], my conclusions in relation to the effect of the second accident are as follows:

(a)The plaintiff noted that her lumbar spine pain recurred after the second accident.
(b)The accident was not severe enough to mechanically aggravate the plaintiff’s back condition.

The principle impact of the second accident was an emotional one, because it came on top of the first accident and its consequences. While there may have been some link between the emotional impact of being involved in a further accident, having regard to the nature of the accident, the medical evidence is not sufficient to establish on the balance of probabilities that the back condition from which the plaintiff suffered at times since the accident and currently suffers is a result of, or aggravated by, the second accident. To the extent to which Dr Champion expressed a view to the contrary I do not accept that evidence because it was based upon an assumption that there was some jolting in the second motor vehicle accident which is inconsistent with the findings that I have made above in relation to the accident.

What impact would her lumbar spine condition have had on her earning capacity?

Dr Champion described the plaintiff’s back as being, prior to the first accident, highly vulnerable to aggravation. The evidence discloses an underlying degenerative condition which had been symptomatic on and off over a substantial period prior to the first accident.

The evidence of Dr Champion was that if the plaintiff was suffering the back symptoms that she was in 2015 then she would have had very considerable difficulty being a massage therapist, her capacity would have been limited and she would have had to have worked reduced hours.

Had the plaintiff not been injured in the first accident then it is likely that she would have continued working as a massage therapist. There was a risk that her pre-existing back condition, which was as at 2012 asymptomatic, would have flared and become symptomatic again. That was what Dr Pascall predicted even prior to the plaintiff reporting an increase in pain following the second accident. Her back did become symptomatic in 2013, probably again in 2014 (although the relevant doctor’s notes are not entirely clear) and in 2015. I accept Dr Champion’s evidence that had her lumbar spine become symptomatic to the extent that it was in 2015 then the plaintiff would have been unable to continue working full-time as a massage therapist.

General damages

The principal condition caused by the accident which affects the plaintiff on an ongoing basis is the condition of her upper back and neck. That continues to cause her pain and headaches on an ongoing basis. Following treatment at the Royal Melbourne Hospital she has been better able to manage that pain. However, the expert evidence of Dr Champion, Dr Fraser and Dr Shannon indicate that the condition is likely to remain. Dr Champion recognised that there may be improvement or deterioration.

I accept the evidence of Ms Morris that as at the end of 2012 the plaintiff was suffering from adjustment disorder. That corresponds with the period when the plaintiff was having most difficulty as a result of the first motor vehicle accident, struggling to keep her massage business afloat while trying to sell it. I also accept the evidence Dr Entwisle and Dr Vickery that the adjustment disorder is no longer present and that the plaintiff’s prognosis is now generally good.

Had the plaintiff only had the lumbar spine condition it is unlikely that she would have been as adversely affected as she has been. Not only does the lumbar condition appear to have been less constant, but dealing with a single condition in the lower back is very different from dealing with pain in two different areas as well as headaches associated with her neck and cervical spine condition.

The contention of the defendants was that the plaintiff, in her evidence and in the history that she gave to doctors, placed inadequate emphasis upon the capacity which she retains to work and to enjoy life outside work. In particular, the defendant submitted that the plaintiff has continued to be able to work, has continued to be able to pursue her business and hobby of making craft as well as pursue other interests such as gardening, overseas travel and outings such as going to craft markets or the theatre. The defendants also emphasised that the condition of the plaintiff’s lower back was not related to the second accident. They pointed to the history of activities disclosed on the plaintiff’s Instagram account as providing evidence of a life which has not been as affected by the plaintiff’s neck and upper back condition as the evidence would otherwise indicate.

My view is that the plaintiff has made the best of a bad situation. She has not simply given up on life as a result of her back and neck pain, but rather has been attempting, within her limitations, to lead a full and productive life. Her neck and upper back continue to cause her pain, but she has been better able to cope with that pain as a result of her consultations with the Royal Melbourne Hospital pain clinic. While I accept that if the impression gained from social media postings and postings on the Karhina.com website was adopted as fully reflecting the plaintiff’s life then a different approach to the assessment of general damages might be adopted, I consider that care must be taken when assessing material like this. That is because postings on social media and personal websites usually involve a picture of the poster’s life which is skewed towards the positive aspects and excludes or minimises the negative. If, instead of pictures of food, outings, unusual scenes and beautiful things, the Instagram account had the pictures of a sore neck, headaches, housework and tiring days at work, it might more accurately reflect life, but would not attract “likes”, admiration or positive comments from those following the postings.

In these circumstances, in my view, an appropriate award of general damages is $110,000, apportioned equally for the past and for the future. Interest on this amount is $4,675 (4.25 years x $55,000 x 2%).

Economic loss

What would have happened but for the accident?

The plaintiff’s claim for past and future economic loss was based upon her continuing to operate her massage business. The plaintiff gave evidence that had the adjoining premises become available to her, as in fact they did become available to Ms Curtotti, she would have taken on the lease of those premises and been able to increase the size of her business.

Calculations were provided of her likely income if she continued to work as she had prior to the accident with a single massage table and engaging contractors to assist her on Monday, Saturday and Sunday. These calculations were based upon six massages taking place every day at a rate of $85 per massage plus GST and assuming that, when a contractor was engaged, the contractor was paid 60% of the overall fee. Allowances were made in the calculations for the plaintiff working four days a week, taking six weeks of annual holiday and the business being closed for four days over Christmas. This calculation resulted in an after-tax weekly income of $1308.16.

Similarly, the calculations based on two massage tables assumed that new contractors would be providing massages using the additional table at the rate of six massages per day seven days per week. This led to an after-tax weekly income of $1784.16. No superannuation would be payable on top of these amounts because the plaintiff was self-employed.

In the calculations, the plaintiff identified her current weekly income working for the Council of Australian Postgraduate Associations as $459 plus 17% superannuation which equals $537. Using these figures the plaintiff arrived at a future loss of earnings for a one massage table business based on 12.5 years at a 3% discount rate of $420,102, less 15% vicissitudes, which gave $357,087. For a two massage table business the equivalent figures was $679,687 less 15% for vicissitudes, which gave $577,734.

On the other hand, the defendants contended that by reason of the plaintiff’s lumbar back condition which manifested itself in any event in 2015, the plaintiff would not have continued working as a massage therapist notwithstanding her earlier intentions. Therefore they submitted that her loss of earning capacity was best assessed by reference to the difference in her earning capacity working in an administrative capacity. They contended that the relevant comparison was between the plaintiff working the same number of hours as she did prior to the accident (four days or 30 hours) when compared to the number of hours that the defendant contended she would be able to work with the Council of Australian Postgraduate Associations or some equivalent employer. The defendant contended that she would in fact be able to work 22.5 hours per week in such employment. By comparing the amount that the plaintiff would earn if working 22.5 hours as opposed to the 30 hours per week that she was working prior to the accident, the defendants contended that the net weekly loss was approximately $166. At a 3% discount rate for the 12.5 years until conventional retirement age, the loss suffered would be $90,536 which, after a 15% allowance for vicissitudes, would give an amount of $76,956 to which superannuation (calculated at 18.5% of net wages) would need to be added.

But for the motor vehicle accidents the plaintiff would have continued to build up her massage business. Her capacity to continue with that was subject to the risk that her pre-existing back condition would have recurred and the degenerative changes in her spine and knees would have become symptomatic in any event as a result of either some specific incident or without any specific incident. The evidence in this case disclosed that there was a significant risk that this would have both occurred and been sufficiently serious to affect the plaintiff’s capacity to pursue her massage business on the reasonably full-time basis that she was. In the light of the lumbar spine problems that manifested themselves prior to the hearing (most significantly in 2015), the plaintiff may have persevered with her business, working less than she otherwise would have and employing additional contractors to cover those periods when she was not able to work, or alternatively she may have given up on the business. It is likely that by the time of the hearing she would either be working at a reduced level or would have ceased her massage business.

In assessing what she might have done it is necessary also to take into account the fact that her children would, in any event, have moved away from Canberra, at least temporarily, and the fact that her ageing parents would have remained in Canberra until their deaths. I accept that the plaintiff had intended to stay in Canberra and wait until her children were settled before considering any possible move to live in the same place as they did. However, for someone in the position of the plaintiff, once her parents had died, the incentives to follow her children would have been strong. Of course, if she moved she may have sought to deploy her massage skills in her new home, having regard to the relatively low barriers to entry into the massage business and her qualification which permitted clients to recover some of the cost of massages from their private health funds.

If the plaintiff had suffered from a manifestation of her lower back problems which required her to give up on her massage business or otherwise cease deploying her massage skills, she still clearly would have had an earning capacity based on her considerable administrative experience in the public service and elsewhere. She has in fact deployed that earning capacity to the extent that she can, notwithstanding her neck injury. Thus, on the hypothesis that she would in any event have been unable to pursue her massage business, she would nevertheless have been able to exploit her other earning capacity to a greater extent than she has been able to.

The other factor to be taken into account is how long the plaintiff would have chosen to continue with her massage business or other exploitation of earning capacity in any event. Only in answer to a leading question from counsel for the defendants did she agree with the proposition that she would have continued working until age 67. She clearly has interests outside work and close relationship with her daughters. There is no evidence as to her financial circumstances that would allow an assessment of how those circumstances would have influenced her decisions about continuing to work up until she became eligible for the age pension.

Having regard to her interests outside paid employment and her close attachment to her children, I think it is likely that, if financially able to, she would have ceased or reduced the extent of her paid work prior to the age of 67.

In my view, the plaintiff has a limited work capacity because of her cervical spine condition. She presently has the capacity to work 15 hours a week in a job which has a higher than usual degree of flexibility and hence accommodates the plaintiff’s limitations. I do not accept the submission of the defendants that she should be found to have a greater present work capacity than that. That is essentially because I accept the plaintiff’s evidence about the difficulties that she has had working the hours that she does and the need for flexibility. It is also reinforced by Dr Champion’s conclusion that her current level of work reflected her current capacity. I do not consider the fact that Dr Champion was not aware of the plaintiff’s holidays or cycling significantly detracts from that opinion. While the defendants made submissions about possible scenarios in which the plaintiff may be able to work in a job involving additional hours, the defendants have not shown that such a job is reasonably available. Any assessment of the number of hours that the plaintiff is able to work must necessarily involve a degree of imprecision having regard to the variability of motivation and pain tolerance. However, having regard to the evidence, I consider that 15 hours per week is the best approximation that can be made.

Had it not been for the accident then the plaintiff would have continued working as a massage therapist or, if her vulnerability to lumbar spinal problems manifested itself to an extent which led her to no longer work as a massage therapist, then she would have deployed her considerable administrative experience in a manner that earned her as much as she would have running the massage business. That is in fact the approach that she has taken since the accident, although impeded by her cervical spine condition.

Past economic loss

During the period after the first motor vehicle accident and the date when she ceased to work in the massage business, the plaintiff gave evidence that she gave fewer massages. Calculations were provided to permit an assessment of the loss suffered during this period based upon the difference between six appointments per day and the number of appointments actually completed. The defendants submitted that having regard to the actual records of the business, the daily pattern of massages did not change after the accident when compared with the period before.

The plaintiff’s evidence was that following the first accident, because of the pain that she suffered in her neck and her knees “playing up”, she cut down the number of massages that she did and got another consultant to work on Fridays instead of her. She made the decision to sell the business in about October 2012.

The plaintiff prepared a table identifying losses caused as a result of her condition following the first accident. This included potential clients that were “knocked back”, clients that were moved from one day to another and the cost of engaging the subcontractor, Freya Price, from 8 June 2012: Exhibit 17 p 106. The amount identified as having been lost was $15,870.

The plaintiff did not give oral evidence explaining the schedule of moves and “knock backs”, the different types of claim in the schedule or the individual entries in the schedule. Instead the claim was put on the basis of a claim for the difference between the actual number of massages completed by the plaintiff and what would have been performed if she had booked six clients every day.

I consider it more probable that the loss incurred up until 21 March 2013 is reflected in the schedule prepared by the plaintiff than by the application of a broad brush rule that she would have worked maximum hours every day. The broad brush rule assumes that there was demand sufficient for her to be fully booked every day that she wished to work. That assumption has not been shown to be accurate. It also assumes that the plaintiff would have booked herself to work doing six hours of massage every day, rather than a maximum of five.

Based on the plaintiff’s own calculations, in relation to this period I award $15,870 less 8.9% for variable expenses less 31.5% tax (these last two figures being drawn from the economic loss report in Exhibit 17). This gives an award of $9903 for this period.

Interest on this amount at rates set out in the Court Procedures Rules 2006 (ACT) (CPR) is $2,418.

But for the accidents the plaintiff would have continued her massage business from the date upon which she ceased work there (21 March 2013) for some time. It is most likely that she would have continued up until around the time of the hearing. However, as I have found that the flare-ups of her back pain were not related to the second accident, account needs to be taken of the fact that they would have occurred in any event and that those flare-ups of pain might have led to the plaintiff reducing her massage work or even to ceasing entirely. If in fact she was unable to continue or chose not to continue in the massage business, then she would have had an earning capacity based on her administrative skills which she would have been able to deploy notwithstanding her back condition.

The plaintiff claimed past losses after 21 March 2013 calculated as the difference between her current earning capacity and two alternative scenarios relating to the operation of her massage business.

The two alternative scenarios involved the plaintiff continuing to work in her massage business and are outlined above at [116]-[118]. The first scenario involved the assumption that she would continue to operate the business with one massage table. The second scenario was that she would have taken up an adjoining premises, which in fact become available to Ms Curtotti in May 2013, and then operate the business using two massage tables. This scenario assumed that the plaintiff would have engaged additional contractors to operate the second table and made a profit from that exercise. Each scenario assumed that each massage table was fully booked for six massages, seven days per week at the rate of $85 per massage plus GST, and that where the table was used by a contractor then the contractor obtained 60% of that fee and the plaintiff retained the balance. The two table scenario assumed that the total rental for the premises rose to $600 per week (the rate that Ms Curtotti in fact paid). The calculations permitted the plaintiff to work a four day week, take six weeks of holidays each year and close the business for four days over Christmas. The one table scenario resulted in after-tax earnings of $1308 per week. The two table scenario resulted in after-tax earnings of $1784 per week.

Assuming that the rental of the space which would accommodate the second massage table became available from 1 May 2013 (which was consistent with Ms Curtotti’s evidence), then that would lead to losses up to the date of hearing of between $160,668 and $233,972.

The defendants, on the other hand, contended for an award of $50,000 for the period, although they did not articulate the basis upon which that should be the appropriate award.

In assessing these scenarios:

(a)I accept the plaintiff’s evidence that if the opportunity had arisen she would have taken the lease on the additional premises and hence had available two massage tables for her business;
(b)I consider it unlikely that the plaintiff would have sought to operate at a rate of six massages per day and unlikely that her contractors would have sought to do the same.
(c)It is not clear that operation of the business seven days per week would have been the pattern, although it is likely that it would have operated 5½ days per week;
(d)My impression was that the plaintiff was seeking to establish a reasonable business which would provide her with a reasonable income, but was not principally motivated by maximising financial returns to herself. Therefore I consider it unlikely that her massage business would have been operated in the manner assumed by the calculations provided by the plaintiff so as to maximise financial returns.
(e)The plaintiff is likely to have been very satisfied with her career change if she managed, on a consistent basis, to earn a comfortable wage from her business at the same time as being able to operate it in a manner which left room for her craft, travel and other pleasures.
(f)While her business appeared to be in the process of being successfully established, the plaintiff did not have a track record of consistently earning amounts equivalent to that contended for by the plaintiff in the period prior to the accident.

If instead of assuming six massages per day, five per day is assumed, then the gross weekly income for a single table business would be closer to $1300 per week and the net income $1000 per week. Both of these figures are substantially higher than the plaintiff had earned prior to the accident. There is certainly the chance that she would have been able to earn a greater amount than this as a result of expanding the premises and engaging additional contractors. However, there is also the chance that she would have earned less than this having regard to patchy bookings for herself or her contractors or as a result of her own health or reducing her workload in order to spend time with her parents up until their respective deaths.

In my view, bearing these uncertainties in mind, it is appropriate to make an award of damages upon the basis of an earning capacity of $1000 per week net for the period 22 March 2013 up until the date of hearing.

I have found above that the plaintiff’s residual earning capacity was and remains reflected by her current actual earnings of $551 per week. (Although the calculations provided by the plaintiff were based on a figure of $538 per week, the plaintiff gave evidence that her after-tax weekly income was $465. Assuming, as the defendants did, that superannuation at the rate of 17% of gross income correspondent to 18.5% of net income, this gives actual total earnings of $551.)

The net weekly loss is therefore $449 ($1000 minus $551). The total period since 22 March 2013 is 164 weeks.

In the period from ceasing work in the massage business until 8 August 2014, the plaintiff was not earning income from employment. The defendants have not pleaded that she failed to mitigate her loss. In this period (72 weeks), her loss was $1000 per week, a total of $72,000. Interest on this amount is $11,283.

The loss over the balance of the period from 22 March 2013 to date is 92 weeks. Her loss of earnings in that period is $41,308 ($449 x 92 weeks). Interest on this amount is $2,282.

This brings the total past economic loss to $123,211 ($9903 + $72,000 + $41,308). The total award of interest for these amounts is $15,983 ($2,418 + $11,283 + $2,282).

Future economic loss

In relation to the future, there are a range of issues which render the precise assessment of economic loss difficult:

(a)The effect of the plaintiff’s lower back condition upon the likelihood that she would continue in her massage business;
(b)Whether she would have moved to Melbourne in any event following the death of both of her parents and all of her daughters moving there for at least the medium term;
(c)The extent to which, having regard to her lower back condition, her earning capacity would have been impeded in any event; and
(d)Whether her financial circumstances would permit her to retire before she became eligible for the aged pension.

If it is assumed that the plaintiff would have continued for as long as possible in the massage business, and the loss for the future is assessed on the same basis as for past loss (single table, five massages per day), then the difference in her earning capacity is approximately $449 per week. Assessed over a 12.5 year period this would give a loss of earnings of $244,885 ($449 × multiplier of 545.4). It would be appropriate to apply a higher than usual discount for vicissitudes to take into account the prospect that because of the plaintiff’s underlying lumbar condition, the physical nature of the work and her vulnerability to pain conditions so that she may not have been able to continue that work for the full period. Adopting a discount for vicissitudes of 30% would give a future economic loss of $171,419. Using this method there would be no allowance for superannuation because the plaintiff would be self-employed. However, this method would only be valid if the continuation of the business was at risk of the plaintiff developing back problems which interfered with her earning capacity, rather than the situation here where she has in fact suffered such problems.

Alternatively, if the future loss is assessed on the basis of the difference in earning capacity doing administrative work then the relevant comparison is between her current work capacity and that which she would have had but for the accident. But for the accidents it is unlikely that the plaintiff would have worked more than 30 hours per week, which was the amount that she had worked in the public service for many years. As I have found above, I consider that the plaintiff’s current work capacity is approximately the amount that she is working. There is inevitably some uncertainty about this as it involves the intersection between the plaintiff’s pain condition and the availability of suitable work. The plaintiff gave evidence that she has only been able to cope with her existing employment because of the flexibility with which her duties can be performed. While there is certainly a theoretical possibility that in an ideally structured job which incorporated precisely the degree of flexibility that the plaintiff required she would be able to work additional hours, the defendant has not established that in fact that work is available to the plaintiff. In my view, it would be appropriate if assessing the plaintiff’s loss of capacity to do administrative work, to do so on the basis of the difference between what she would earn working 30 hours per week and what she earns working 15 hours per week. Using the calculations provided by the defendant, the difference in net weekly earnings would be $382 per week ($847 minus $465). Based on working until age 67, that would produce a net loss of $208,343 ($382 x multiplier 545.4). Adopting a lower discount for vicissitudes of 20% having regard to the less physical nature of the work, but still taking account of the prospect that back pain would interfere with her earning capacity, would result in a net loss of $166,674. Loss of superannuation would need to be added to this. Adopting the generous superannuation entitlement which the plaintiff presently has (17% of gross income) and proceeding on the basis contended for by the defendant, namely that this corresponds to approximate the 18.5% of net income, would give an additional award for superannuation of $30,834. If, instead, the superannuation allowance was 11% of net income, then the figure would be $18,334. Adopting the higher figure for superannuation would lead to a total future economic loss of $197,508.

This calculation does not take into account the possibility that the plaintiff may not have chosen to continue working four days per week up until retirement or that her financial position may have been such that she was able to retire prior to becoming eligible for the age pension.

Recognising that there are too many uncertainties to make any calculation based on precise assumptions accurate, I consider that, in the light of the calculations set out above an award of damages of $175,000 for future economic loss inclusive of superannuation is appropriate. Because of the uncertainties to which I have referred, this amount must really be considered to be in the nature of a buffer.

Griffiths v Kerkemeyer

The plaintiff gave evidence that during the periods when she was living with her daughters, they performed six hours domestic work per week which otherwise would have been performed by the plaintiff. The defendants contended that some of this work was work which would, in any event, have been carried out by the plaintiff’s daughters as they got to an age where they would reasonably be expected to provide assistance around the house if they continued to live with their mother.

The plaintiff’s claim was for gratuitous care at the rate of six hours per week for two periods in the past when the plaintiff was living with her daughters (1 April 2012 to 15 February 2013 and 27 June 2013 to date). The plaintiff then also claimed gratuitous care on the same basis for a further year and a half when one or more daughters could be expected to be living with the plaintiff and then, after that paid care, at the rate of four hours per week for the rest of the plaintiff’s expected life.

The defendants on the other hand contended that an award of three hours per week for the past, and two hours per week for the future gradually diminishing over time would be appropriate.

In relation to the past, I consider that an award of six hours per week is consistent with the evidence and reasonably reflects the needs created by the accidents. I accept the evidence of the breakdown of that time disclosed in Exhibit 4. Notwithstanding that normative judgments can be made about how much work university aged children should be carrying out in any event, I accept the plaintiff’s evidence that she in fact would have borne the burden of that work in the absence of the accidents. The evidence was not sufficient to permit a dissection of the amount of assistance required over the period since the first motor vehicle accident in order to be able to assess the impact of the treatment by the plaintiff at the Royal Melbourne Hospital pain clinic, the modifications to the kitchen or the impact of her lower back pain on the need for that assistance. Therefore, for the two periods identified above the damages for gratuitous home assistance is $41,160 ($35 x 6 hours x 196 weeks).

Interest on this amount is claimed and is $5874.

In relation to the future, the principal assistance required by the plaintiff is likely to be in cleaning and garden maintenance. Having regard to the breakdown of activities identified in Exhibit 4, I consider it is likely that in the absence of her children the plaintiff will adapt her circumstances so that she is able to manage most aspects of shopping, cooking, cleaning the kitchen, washing and putting out the bins with the result that she does not need paid assistance to do those things. I consider that an award of three hours per week will accommodate her need for household cleaning and garden maintenance as well as occasional assistance with other matters.

I do not consider that an award of damages for the balance of the plaintiff’s expected life is appropriate. She is 54 now. Particularly having regard to her back condition and the fact that she is likely to be living alone, I consider it likely that in any event by the age of 64 she would be requiring equivalent assistance.

The agreed rate for gratuitous care was $35 an hour and the rate established by the evidence for paid domestic assistance was $36 per hour. Adopting the higher of these rates and allowing three hours per week for a period of 10 years gives a figure of $48,794 (3 hours x $36 x multiplier 451.8) and I award that amount.

Past out-of-pocket expenses

The plaintiff’s claim for past out-of-pocket expenses had a number of components:

(a)Treatment expenses paid by the plaintiff totalling $9328.34 based on the material in Exhibit 7. Following written submissions from the defendant this was reduced to $8336.10
(b)Miscellaneous past out-of-pocket expenses arising from needs created by the accidents:
(i)modified kitchen $14,000;
(ii)artificial grass $2800 or $3300;
(iii)paid care $410;
(iv)gardening $960;
(v)car washing $203.

(c)Travel expenses totalling $224.97 (including some amounts paid by the NRMA and some amounts paid by the plaintiff).
(d)Amounts paid by and repayable to Medicare identified in two Medicare schedules, the first being for $8195.05 and the second being for $4477.38. Following written submissions by the defendants, the amount claimed by the plaintiff based on the first schedule was reduced to $6865.46 and no additional amount was claimed based on the second schedule.
(e)Amounts paid by and repayable to the NRMA for treatment totalling $10,405.45.

Only the amounts at (c) and (e) were uncontroversial.

The defendants made detailed submissions following the hearing about 50 items within Exhibit 7, contending that they were not recoverable for a variety of reasons.

It is necessary to deal separately with each of the contested categories of out-of-pocket expenses claimed.

Treatment expenses paid by the plaintiff

The amount awarded in relation to items claimed in this category is arrived at as set out in the following table.

A Original amount claimed $9328.34

B Amount disputed in defendants’ written submissions $8261.55

C Amount not disputed $1066.79 A - B

D Amount of disputed items conceded in plaintiff’s written submissions $992.24

E Amount remaining in dispute following plaintiff’s written submissions $7269.31 B - D

F Disputed items allowed as per table below $2324.63

G Amount awarded under this heading $3391.42 C + F

Set out below is a table which explains my reasons for allowing the amounts that I have at item F above and not allowing the balance of the plaintiff’s claims in relation to the items in dispute (item E above)

Item number from Defendants’ submissions Provider (and date/s) Amount allowed Reasons

2, 3, 4, 5, 6
Freya Price

Various dates from 6 July 2012-27 May 2013
$1014 Items 2, 3 and 5 are allowed, but discounted by 40% to take account of the manner in which Freya Price was paid. (This reduces the amount from $640 to $384.) Items 4 and 6 will be allowed in full ($630). I do not accept the defendants’ primary submission that there is no evidence to demonstrate that the treatment was reasonable or necessary, particularly in circumstances where the plaintiff was also undergoing physiotherapy. Although the evidence as to massages was minimal, on the balance of probabilities the massages were palliative treatment for the plaintiff’s neck and shoulders. The massages cover the period when the plaintiff was attempting to maintain her massage business. That the massages had not been specifically prescribed by a doctor or occurred at the time when the plaintiff was also receiving physiotherapy treatment does not deny the fact that it was treatment received in order to alleviate the consequences of the first motor vehicle accident.

7
Poolside Massage Centre

2 March 2012-22 June 2012
$560 I allow this amount for the same reasons as set out in relation to items 2, 3, 4, 5, 6, namely as an expense for palliative treatment more likely than not to have been incurred because of the effects of the first accident.

8
Emily Garnett Massage

26 August 2013-3 March 2014
$0 The amount claimed is $790. These invoices do not make clear whether the massage related to the lower back or upper back and neck. The plaintiff did not give oral evidence about these massages. The plaintiff has not discharged the onus of proving that these expenses related to the first accident as opposed to her lower back condition which had become symptomatic by this time. The references to massage in the evidence at Exhibit 1:5, 317 and Exhibit 9:15 do not address the question whether massage in this period related to upper or lower back.

9
Brunswick Baths

7 October 2013-14 August 2014
$0 $645.73 was claimed. The oral evidence of the plaintiff in relation to this expenditure did not indicate whether it related to her upper or lower back condition. The expenses were incurred during the period when her lower back was symptomatic. The plaintiff has not discharged the onus of proving that this expenditure related to her upper back condition.

10
Brunswick Medical Group

26 September 2013
$0 The amount claimed is $67 for a consultation with a general practitioner. The defendants submitted that it was unrelated to the upper back condition. Although the consultation involved a request for a letter to continue NRMA funding a gym membership, having regard to the complaint of lumbar back pain, the detail of the history given and the treatment plan, I consider that this consultation would have happened in any event due to the plaintiff’s lower back condition.

11
Brunswick Medical Group

3 October 2013
$0 The amount claimed is $67 for a visit to the plaintiff’s general practitioner. This consultation is a follow up to the consultation in item 10 and relates to the plaintiff’s lower back condition.

12
Central Brunswick Physiotherapy

15 August 2013-4 January 2015
$0 The amount claimed is $1823. While the reasonableness of physiotherapy for the plaintiff’s upper back condition has been established, there is no evidence as to what this treatment related to. It might have been upper back, it might have been lower back or it might have been both. The plaintiff has not discharged her onus to prove on the balance of probabilities that the treatment related to her upper back.

13
N Ferguson and M Driscoll

5 April 2012-9 May 2012
$290 I allow this amount for the same reasons as set out in relation to items 2, 3, 4, 5, 6, namely as palliative treatment more likely than not to have been incurred because of the effects of the first accident.

14
The Body Whisperer (massage)

23 January 2015-13 October 2015
$0 The amount claimed is $664. The plaintiff did not give oral evidence in relation to this treatment. The receipts do not disclose whether this treatment related to upper back, lower back or both. The plaintiff has not discharged the onus of proving on the balance of probabilities that the treatment related to her upper back condition.

15
S Pettifer

7 August 2014
$0 The amount claimed is $90 for remedial massage. The evidence does not disclose whether this related to the plaintiff’s upper back condition, lower back condition or both. The plaintiff has not discharged the onus of proving on the balance of probabilities that the treatment related to her upper back condition.

17
The School for FM Alexander Studies

20 May 2013
$0 The amount claimed is $175. The plaintiff submitted that she was referred to the School for review and assessment to assist with her posture. However, there is no evidence to that effect. The invoice itself simply identifies what was purchased as “Student Clinic”. The plaintiff has not proven that the expenditure was incurred by reason of her upper back condition.

18
Nicholson Street Physical Therapy

19 July 2013
$0 This is an amount of $50. The plaintiff submitted that she was referred for a range of therapies to treat her fibromyalgia including physiotherapy. No oral evidence was given about this. The receipt identifies the treatment as “MET plus Bowen”. The plaintiff has not proven that the treatment related to her upper back condition.

19
The Well-being Clinic (myotherapy)

6 September 2013-18 October 2013
$0 The amount claimed is $120. The plaintiff submitted that myotherapy is a form of massage and that the plaintiff was referred for a range of therapies to treat her fibromyalgia including myotherapy. No oral evidence was given about this treatment. There is insufficient evidence to prove that this treatment related to the plaintiff’s pain condition or upper back condition.

20
Moreland Physiotherapy Clinic

13 August 2013
$0 The amount claimed is $58 for physiotherapy. Having regard to the date when it occurred, the plaintiff has not proved on the balance of probabilities that it related to her upper back condition.

21
Royal Palms Beach Resorts (Goa)

7 April 2012-27 April 2012
$158.98 These massages were received when the plaintiff was on holiday. She gave oral evidence that as a result of the travel she had pain in her upper back and that her holiday was not the most comfortable. I allow these items because the evidence establishes on the balance of probabilities that the treatment was palliative treatment for conditions caused by the first accident.

22
Dr Mark Porter

5 April 2013
$0 The amount claimed is $190. While I have found that the plaintiff did suffer an aggravation of her right knee condition in the first accident, by the time she saw Dr Porter she was suffering bilateral knee pain more consistent with the progress of her underlying degenerative condition: see [103] above. Therefore I am not satisfied that this expense was incurred as a result of the motor vehicle accidents.

24
Yarralumla Body Works

27 March 2013
$0 This involved expenditure of $125 on a massage from Jackie Vittles one of the plaintiff’s contractors. Only 60% ($75) is claimed. This was shortly after the second accident. The evidence does not disclose which part of the body this treatment related to and the plaintiff has not proved that it related to the upper back condition caused by the first accident.

26
Pharmacy

11 March 2013
$36.90 The defendants contended that it has not been shown that the spinal pain for which this was prescribed was related to the accidents. This depends upon the interpretation of the general practitioner’s clinical notes at Exhibit 1:135. Having regard to the record of the plaintiff suffering “shooting/sharp pain in posterior neck upwards towards her head” as one of her complaints, I find on the balance of probabilities that the prescription was a result of the injuries suffered in the first accident.

27
Pharmacy

24 July 2014
$0 The amount claimed ($17.97) is for fish oil tablets. The defendants submitted there is no evidence that this was required due to the accidents. The plaintiff submitted that they were recommended to the plaintiff to assist in the consumption of medication consumed due to her high levels of pain. There is no evidence to support the plaintiff’s submission and therefore it is not allowed.

28
Pharmacy

8 August 2014
$0 The amount in contest is $25.99 for an item described on the receipt as “ETH/NUT SPR B DLY STRESS”. I infer that this is “Ethical Nutrients” brand vitamin B supplement of some sort, marketed as assisting with stress reduction. The plaintiff submits that this was consumed in order to assist with her psychological disabilities arising from the accident. There is no evidence that this was prescribed for the plaintiff or had any therapeutic quality. Therefore it is not allowed.

30
Pharmacy

10 February 2015
$0 The amount in contest is $25.99. The product seems to be the same described in relation to item 28 and for the same reasons it is not allowed.

31
V Russo (physiotherapy)

7 October 2013-2 December 2013
$264.75 The amount claimed is $264.75. The defendants submitted that there is no evidence showing what the physiotherapy treatment related to or that it was necessary. The oral evidence of the plaintiff (11 April 2016 page 50) was that she was referred to Mr Russo by her general practitioner. The entry in the general practitioner’s notes on 1 August 2013 shows a referral to Mr Russo in response to complaints of neck pain and aches and pains all over her body. Therefore I will allow this item.

32
Brunswick Holistic Health (massage)

9 November 15-7 December 2015
$0 The amount claimed is $150. The defendants submitted that it has not been shown that this treatment related to the motor vehicle accidents. The evidence referred to by the plaintiff in support of this relates to the requirement for physiotherapy rather than massage. Further, having regard to the date of the treatment it is not clear whether the treatment related to upper back or lower back. Therefore this item is not allowed.

Total $2324.63

Miscellaneous expenses

The effect of the defendants’ written submissions was to concede only two items: an amount for house cleaning when the plaintiff was living alone in Ainslie after her children had moved out and an amount for $3300 relating to the laying of artificial grass at her house in Brunswick. The balance of the items were in dispute. The table below identifies my reasons for allowing or not allowing these items.

Item number from Defendants’ submissions Provider and Date/s Amount allowed Reasons

34
Carwash (various)

7 April 2013-9 December 2014
$137 The defendants contended that the plaintiff was not unable to wash her own car as a result of the accidents. The plaintiff gave evidence that she was unable to wash her car without aggravating her pain levels (“It’s too painful to stretch up and scrub”: 11 April 2016 page 58) and I accept that evidence. This item is therefore allowed.

35
Steve’s Lawn Maintenance

25 November 2012-6 March 2013
$640 The amount claimed was for hedge trimming of the house at Cobb Crescent in Ainslie. The plaintiff gave oral evidence that “I couldn’t use my arms to go out and do the hedge anymore”: 11 April 2016 page 58. I accept that evidence and allow this item.

36
SnA’s Mowing and Gardening

30 July 2013-2 September 2013
$50 The amount claimed is for lawnmowing. The plaintiff gave evidence in relation to a later period that she was unable to use a mower any more (11 April 2016 page 57). Having regard to the earlier difficulties with gardening, it is more likely than not that this relates to her upper back condition. I therefore allow this item.

37
Trim It Mowing Services

15 October 2013-4 June 2014
$270 The amount claimed is for lawnmowing. I allow for the same reasons as items 36.

38
Blue Elephant Car Wash

27 July 2014
$30 This item relates to car washing. I allow it for the same reason as item 34.

39
Coles Car Wash

17 July 2013-26 November 2013
$36 This item relates to car washing. I allow it for the same reason as items 34.

40
Avanti Plus

9 October 2013
$0 The amount claimed is $439. The plaintiff gave evidence that she bought a new bike, which she described as a “sit up and beg” bike (11 April 2016 page 77). This was a bike which allowed her to adopt a much more upright riding position which was appropriate having regard to her neck and shoulder condition. There was no evidence of the cost of the bicycle and as a consequence no amount is allowed.

41
Pelagonia Kitchens

22 October 2014
$7000 This is an amount for kitchen renovation at 79 Stewart Street Brunswick so as to incorporate higher than usual benches raising the height of the oven and draws, rather than cupboards, which provide easier access. The amount is the total cost of the kitchen renovation ($18,000) less an amount of $4000 for the cost of the benchtop which the plaintiff accepts she would have installed in any event. The defendants contended that this was renovation which, consistently with the earlier undertaking of renovations in other parts of the house, the plaintiff would have undertaken in any event. However, I accept the plaintiff’s evidence that the existing kitchen was serviceable and that she would not have undertaken this renovation but for the motor vehicle accidents. There was no specific evidence in relation to whether the inclusion of drawers was necessitated by the plaintiff’s upper or lower back condition. The raised bench height is more obviously attributable to her neck and shoulder condition. I am satisfied that the raising of the bench heights was necessitated by her upper back condition. The plaintiff has failed to prove that the modification of the cupboards was caused by that condition as opposed to her lower back condition. Adopting a broad brush approach I will therefore allow half of the amount claimed namely $7000.

42 Garden redesign $0 This amount of $1160 is identified as a garden redesign. No invoice is included in Exhibit 7. The plaintiff did not give evidence about the incurring of this expense. There was only oblique evidence in relation to having a raised garden bed and gardening while sitting. It is therefore not allowed.

43
Easy Turf

12 December 2014
$0 This claim for $2800 is based on a quote for the laying of artificial turf at the plaintiff’s house. The oral evidence of the plaintiff and the documentary evidence did not make it clear whether the turf had in fact been installed. The evidence was more consistent with two quotes having been obtained: one for $3300 and one for $2800 (Exhibit 7: 237-238), but the work not having been carried out. In my view the replacement of lawn with artificial turf is an expense arising out of the injuries suffered in the first motor vehicle accident, because the plaintiff can no longer use a mower. However, the defendants did not make any objection to the $3300 amount (Exhibit 7:238) and to include the $2800 would involve double counting. I will therefore not allow it.

Total $8163.00

The total of the undisputed items (house cleaning and artificial grass) was $3710. Added to this is the amount that I have allowed in relation to the disputed items, namely $8163. This brings the total amount awarded under this heading to $11,873.

Medicare schedule items

As identified above, by the end of the written submissions, the total amount claimed by the plaintiff was $6,865.46. The remaining items in dispute (which are identified in the table below) amounted to $798.95. Of those items I have only allowed $43.20. This results in a total award of $6,109.71 ($6,865.46 - $798.95 + $43.20).

Item number from Defendants’ submissions Provider and Date/s Amount allowed Reasons

45
Capital Radiology

26 September 2013
$0 This is an amount of $228 for a CT scan of the plaintiff’s lumbar spine: Exhibit 1:136. Because I have found that the plaintiff’s lumbar spine condition is not related to the motor vehicle accidents this item is not allowed.

47
Dr Balu, Ainslie Family Practice

1 August 2012 and 13 August 2012
$0 The amount claimed ($137.50) arises from entries in a Medicare schedule (Exhibit 1:268) for two consultations on 1 August and 13 August 2012. The defendants submitted that these appointments were entirely unrelated to the accident. Having regard to the clinical notes relating to those consultations (Exhibit 1:3) and my finding in relation to the report of lower back pain in the entry on 1 August 2012 (see [38] above), I find that these consultations did not relate to the motor vehicle accidents and hence do not allow these items.

48
Moreland Radiology

24 July 2015
$0 The amount claimed ($137.95) was for radiology on the plaintiff’s lower back region. The terms of the clinical notes of the plaintiff’s general practitioner at Exhibit 1:131-132 demonstrate that this related to the plaintiff’s lower back pain which I have found was not caused by the accidents. The amount is therefore not allowed.

49 (first appearing)
Dr Holcombe, The Brunswick Medical Group

1 May, 2 October 2014, 5 November 2014
$0 Having regard to the entries in the schedule, Dr Holcombe appears to be the same person as Dr McDonald referred to in the evidence. The total amount paid by Medicare was $122.70. The consultation on 1 May 2014 was unrelated to any condition caused by the accidents. The consultation on 2 October 2014 involved getting a prescription for matters related to her pain condition, but also to two other matters unrelated to the accidents. I therefore find that it would have occurred in any event and do not allow it. The consultation on 5 November 2014 related to pain in the trapezius muscles as well as gastroenterology. I find that it would have occurred in any event because of the gastroenterology issue.

49 (second appearing)
Dr Teo, Brunswick Medical Group

17 April, 24 July, 10 and August, 16 September 2015
$43.20 The amount paid by Medicare for these consultations was $172.80 (the defendants’ submissions identified it as $216, but that includes the consultation on 13 February 2015). The consultation on 17 April 2015 related to sciatica and other matters unrelated to the accidents. I do not allow the Medicare charges for it. The consultation on 24 July 2015 related to lower back pain and I do not allow the Medicare charges for it. The consultation on 16 September 2015 related to the plaintiff’s application for a disability support pension and the prescription of Effexor. This is a consultation which on the balance of probabilities would not have been required but for the accidents. Therefore I will allow the amount of $43.20 disclosed by the Medicare schedule.

Total $43.20

Summary and interest

Based on the categories that I identified at [160] above, the amounts that I will allow for damages are, in summary:

Treatment expenses $3391.42

Miscellaneous out-of-pocket expenses $11,873

Travel expenses $224.97

Treatment expenses repayable to Medicare $6109.71

Treatment expenses repayable to NRMA $10,405.45

Total $32,004.55

The total amount for past out-of-pocket expenses is $32,005. Interest is claimed on those amounts paid by the plaintiff. The total for treatment expenses, miscellaneous expenses and travel expenses is $15,489. However, I have found that $3300 for artificial grass has not yet been incurred, reducing the total to $12,189. Assuming for calculation purposes that these expenses were incurred evenly over the whole period since the first accident, the interest on those amounts at CPR rates is $1739.

Future out-of-pocket expenses

The plaintiff submitted that the award for future treatment and medication should be $107,936 which was calculated on the basis of a weekly amount of $71.27 for treatment, $16.24 for medication for the balance of the plaintiff’s expected life plus a buffer of $10,000.

The defendants submitted that an amount of $10,000 should be allowed which was as a buffer for occasional conservative treatment for neck pain and headaches during flare-ups of the plaintiff’s condition. The defendants drew attention to the evidence of Dr Champion and Dr Entwisle that the plaintiff’s condition was improving and also pointed to the evidence about the expenses that had actually been incurred by the plaintiff over the six months to the end of February 2016. They submitted that the actual level of expenditure disclosed by the evidence was around $25.50 per week and regard should be had to the potential for improvement in the plaintiff’s condition.

Exhibit 5 discloses that the plaintiff’s current medication is Panadol Osteo, iburprofen, Endep 25 mg, Venlafaxine 75 mg and Pantoprazole 40 mg. The plaintiff claimed a weekly amount of $16.24 for the cost of this medication based upon the report of Dr Teo dated 9 March 2015 (Exhibit 1 page 318). This equates to $884 per year. However, Dr Teo’s report does not deal with the cost of Pantoprazole which is a medication related to gastroesphageal reflux and the plaintiff has not established that this is required to be taken because of the accidents. The evidence in Exhibit 22 indicates actual purchases of Endep (Amitriptyline), Velafaxine and Panadol Osteo during 2015 which would, if purchased at the costs disclosed in Dr Teo’s report, cost $349 (7 x $9.87 + 10 x $19.46 + 5 x $16.98) annually. In my view, it is more appropriate to base the allowance for future medication on actual past use. With some additional allowance for the purchase of ibuprofen, I allow a total of $500 per year for medication or $9.61 per week.

The plaintiff claimed future treatment including additional general practitioner visits, physiotherapy, remedial massage visits to a psychologist and hydrotherapy or gym membership.

In relation to general practitioner visits, the question is whether the plaintiff’s claim of six visits per year appropriately reflects the number of visits which would be required having regard to the various other reasons why the plaintiff may need to visit her general practitioner, including her lower back condition. Having regard to the long-standing nature of her condition and the extent to which Exhibit 1 discloses few visits to the doctor attributable solely to her upper back condition, I will allow one additional visit per year. In relation to physiotherapy and remedial massage, the evidence does not disentangle the requirement for those treatments for the upper or lower back. I will allow one visit per month for either physiotherapy or massage giving a weekly amount of $19.61 ((12 x $85) / 52).

The evidence in Dr Teo’s report is not sufficient to establish the need for gym membership or hydrotherapy attributable to the accidents. The evidence is not sufficient to establish a need for hydrotherapy relating to the plaintiff’s upper as opposed to lower back condition. So far as general fitness is concerned the plaintiff takes as much exercise as she can tolerate by cycling, gardening or walking and I am not satisfied that gym membership is required for the conditions caused by the accident. I will also allow $700 per year to take account of the possibility of additional specialist advice and imaging related to her condition. This amounts to $13.46 per week.

These amounts total $42.68 ($9.61 + $19.61 + $13.46).

The plaintiff claims that amount for the rest of her life. There appears to me to be a considerable degree of uncertainty about this. The first accident occurred just over four years ago. It is very difficult to predict the condition of the plaintiff years into the future and certainly not beyond 10 years from today. The evidence of Dr Fraser was that the plaintiff’s prognosis was poor and it was unlikely to improve “in the foreseeable future”. Dr Champion said her prognosis “over the next few years will be more of the same”, although he recognised that her condition might get worse or might get better. The evidence did not explicitly indicate that the plaintiff would suffer the same condition and require the same treatment for the rest of her life. Nor did it establish that pain conditions will generally persist for the rest of a person’s life. In those circumstances, I will award damages for future out-of-pocket expenses on the basis that those expenses will continue to be incurred for 10 years. To the extent to which the precision of that period may be spurious precision, the award can be considered to be a buffer, the quantum of which has been determined by reference to what would be incurred during that period.

Adopting this approach gives a total award for future out-of-pocket expenses of $19,282 ($42.68 x multiplier 451.8).

Summary

A summary of the components of damages awarded is set out in the following table.

General damages $110,000

Interest on past component of general damages $4,675

Past loss of earnings (incl superannuation) $123,211

Interest on past loss of earnings $15,983

Future loss of earnings (incl superannuation) $175,000

Past out of pocket expenses $32,005

Interest on past out of pocket expenses $1,739

Future out of pocket expenses $19,282

Past Griffiths v Kerkemeyer $41,160

Interest on past Griffiths v Kerkemeyer $5,874

Future Griffiths v Kerkemeyer $48,794

Total $577,723.00

Orders

The orders of the Court are:

1. Judgment be entered for the plaintiff against the third defendant in the sum of $577,723.

2. The third defendant is to pay the plaintiff’s costs of the proceedings.

3. Order 2 does not take effect for a period of 14 days and, if any party notifies my associate by email (copied to each other party) within that time that the party wishes to be further heard in relation to costs, does not take effect until further order.

I certify that the preceding one hundred and eighty-one [181] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Associate Justice Mossop.

Associate:

Date: 13 May 2016

A	Original amount claimed	$9328.34
B	Amount disputed in defendants’ written submissions	$8261.55
C	Amount not disputed	$1066.79	A - B
D	Amount of disputed items conceded in plaintiff’s written submissions	$992.24
E	Amount remaining in dispute following plaintiff’s written submissions	$7269.31	B - D
F	Disputed items allowed as per table below	$2324.63
G	Amount awarded under this heading	$3391.42	C + F

Item number from Defendants’ submissions	Provider (and date/s)	Amount allowed	Reasons
2, 3, 4, 5, 6	Freya Price Various dates from 6 July 2012-27 May 2013	$1014	Items 2, 3 and 5 are allowed, but discounted by 40% to take account of the manner in which Freya Price was paid. (This reduces the amount from $640 to $384.) Items 4 and 6 will be allowed in full ($630). I do not accept the defendants’ primary submission that there is no evidence to demonstrate that the treatment was reasonable or necessary, particularly in circumstances where the plaintiff was also undergoing physiotherapy. Although the evidence as to massages was minimal, on the balance of probabilities the massages were palliative treatment for the plaintiff’s neck and shoulders. The massages cover the period when the plaintiff was attempting to maintain her massage business. That the massages had not been specifically prescribed by a doctor or occurred at the time when the plaintiff was also receiving physiotherapy treatment does not deny the fact that it was treatment received in order to alleviate the consequences of the first motor vehicle accident.
7	Poolside Massage Centre 2 March 2012-22 June 2012	$560	I allow this amount for the same reasons as set out in relation to items 2, 3, 4, 5, 6, namely as an expense for palliative treatment more likely than not to have been incurred because of the effects of the first accident.
8	Emily Garnett Massage 26 August 2013-3 March 2014	$0	The amount claimed is $790. These invoices do not make clear whether the massage related to the lower back or upper back and neck. The plaintiff did not give oral evidence about these massages. The plaintiff has not discharged the onus of proving that these expenses related to the first accident as opposed to her lower back condition which had become symptomatic by this time. The references to massage in the evidence at Exhibit 1:5, 317 and Exhibit 9:15 do not address the question whether massage in this period related to upper or lower back.
9	Brunswick Baths 7 October 2013-14 August 2014	$0	$645.73 was claimed. The oral evidence of the plaintiff in relation to this expenditure did not indicate whether it related to her upper or lower back condition. The expenses were incurred during the period when her lower back was symptomatic. The plaintiff has not discharged the onus of proving that this expenditure related to her upper back condition.
10	Brunswick Medical Group 26 September 2013	$0	The amount claimed is $67 for a consultation with a general practitioner. The defendants submitted that it was unrelated to the upper back condition. Although the consultation involved a request for a letter to continue NRMA funding a gym membership, having regard to the complaint of lumbar back pain, the detail of the history given and the treatment plan, I consider that this consultation would have happened in any event due to the plaintiff’s lower back condition.
11	Brunswick Medical Group 3 October 2013	$0	The amount claimed is $67 for a visit to the plaintiff’s general practitioner. This consultation is a follow up to the consultation in item 10 and relates to the plaintiff’s lower back condition.
12	Central Brunswick Physiotherapy 15 August 2013-4 January 2015	$0	The amount claimed is $1823. While the reasonableness of physiotherapy for the plaintiff’s upper back condition has been established, there is no evidence as to what this treatment related to. It might have been upper back, it might have been lower back or it might have been both. The plaintiff has not discharged her onus to prove on the balance of probabilities that the treatment related to her upper back.
13	N Ferguson and M Driscoll 5 April 2012-9 May 2012	$290	I allow this amount for the same reasons as set out in relation to items 2, 3, 4, 5, 6, namely as palliative treatment more likely than not to have been incurred because of the effects of the first accident.
14	The Body Whisperer (massage) 23 January 2015-13 October 2015	$0	The amount claimed is $664. The plaintiff did not give oral evidence in relation to this treatment. The receipts do not disclose whether this treatment related to upper back, lower back or both. The plaintiff has not discharged the onus of proving on the balance of probabilities that the treatment related to her upper back condition.
15	S Pettifer 7 August 2014	$0	The amount claimed is $90 for remedial massage. The evidence does not disclose whether this related to the plaintiff’s upper back condition, lower back condition or both. The plaintiff has not discharged the onus of proving on the balance of probabilities that the treatment related to her upper back condition.
17	The School for FM Alexander Studies 20 May 2013	$0	The amount claimed is $175. The plaintiff submitted that she was referred to the School for review and assessment to assist with her posture. However, there is no evidence to that effect. The invoice itself simply identifies what was purchased as “Student Clinic”. The plaintiff has not proven that the expenditure was incurred by reason of her upper back condition.
18	Nicholson Street Physical Therapy 19 July 2013	$0	This is an amount of $50. The plaintiff submitted that she was referred for a range of therapies to treat her fibromyalgia including physiotherapy. No oral evidence was given about this. The receipt identifies the treatment as “MET plus Bowen”. The plaintiff has not proven that the treatment related to her upper back condition.
19	The Well-being Clinic (myotherapy) 6 September 2013-18 October 2013	$0	The amount claimed is $120. The plaintiff submitted that myotherapy is a form of massage and that the plaintiff was referred for a range of therapies to treat her fibromyalgia including myotherapy. No oral evidence was given about this treatment. There is insufficient evidence to prove that this treatment related to the plaintiff’s pain condition or upper back condition.
20	Moreland Physiotherapy Clinic 13 August 2013	$0	The amount claimed is $58 for physiotherapy. Having regard to the date when it occurred, the plaintiff has not proved on the balance of probabilities that it related to her upper back condition.
21	Royal Palms Beach Resorts (Goa) 7 April 2012-27 April 2012	$158.98	These massages were received when the plaintiff was on holiday. She gave oral evidence that as a result of the travel she had pain in her upper back and that her holiday was not the most comfortable. I allow these items because the evidence establishes on the balance of probabilities that the treatment was palliative treatment for conditions caused by the first accident.
22	Dr Mark Porter 5 April 2013	$0	The amount claimed is $190. While I have found that the plaintiff did suffer an aggravation of her right knee condition in the first accident, by the time she saw Dr Porter she was suffering bilateral knee pain more consistent with the progress of her underlying degenerative condition: see [103] above. Therefore I am not satisfied that this expense was incurred as a result of the motor vehicle accidents.
24	Yarralumla Body Works 27 March 2013	$0	This involved expenditure of $125 on a massage from Jackie Vittles one of the plaintiff’s contractors. Only 60% ($75) is claimed. This was shortly after the second accident. The evidence does not disclose which part of the body this treatment related to and the plaintiff has not proved that it related to the upper back condition caused by the first accident.
26	Pharmacy 11 March 2013	$36.90	The defendants contended that it has not been shown that the spinal pain for which this was prescribed was related to the accidents. This depends upon the interpretation of the general practitioner’s clinical notes at Exhibit 1:135. Having regard to the record of the plaintiff suffering “shooting/sharp pain in posterior neck upwards towards her head” as one of her complaints, I find on the balance of probabilities that the prescription was a result of the injuries suffered in the first accident.
27	Pharmacy 24 July 2014	$0	The amount claimed ($17.97) is for fish oil tablets. The defendants submitted there is no evidence that this was required due to the accidents. The plaintiff submitted that they were recommended to the plaintiff to assist in the consumption of medication consumed due to her high levels of pain. There is no evidence to support the plaintiff’s submission and therefore it is not allowed.
28	Pharmacy 8 August 2014	$0	The amount in contest is $25.99 for an item described on the receipt as “ETH/NUT SPR B DLY STRESS”. I infer that this is “Ethical Nutrients” brand vitamin B supplement of some sort, marketed as assisting with stress reduction. The plaintiff submits that this was consumed in order to assist with her psychological disabilities arising from the accident. There is no evidence that this was prescribed for the plaintiff or had any therapeutic quality. Therefore it is not allowed.
30	Pharmacy 10 February 2015	$0	The amount in contest is $25.99. The product seems to be the same described in relation to item 28 and for the same reasons it is not allowed.
31	V Russo (physiotherapy) 7 October 2013-2 December 2013	$264.75	The amount claimed is $264.75. The defendants submitted that there is no evidence showing what the physiotherapy treatment related to or that it was necessary. The oral evidence of the plaintiff (11 April 2016 page 50) was that she was referred to Mr Russo by her general practitioner. The entry in the general practitioner’s notes on 1 August 2013 shows a referral to Mr Russo in response to complaints of neck pain and aches and pains all over her body. Therefore I will allow this item.
32	Brunswick Holistic Health (massage) 9 November 15-7 December 2015	$0	The amount claimed is $150. The defendants submitted that it has not been shown that this treatment related to the motor vehicle accidents. The evidence referred to by the plaintiff in support of this relates to the requirement for physiotherapy rather than massage. Further, having regard to the date of the treatment it is not clear whether the treatment related to upper back or lower back. Therefore this item is not allowed.
Total	$2324.63

Item number from Defendants’ submissions	Provider and Date/s	Amount allowed	Reasons
34	Carwash (various) 7 April 2013-9 December 2014	$137	The defendants contended that the plaintiff was not unable to wash her own car as a result of the accidents. The plaintiff gave evidence that she was unable to wash her car without aggravating her pain levels (“It’s too painful to stretch up and scrub”: 11 April 2016 page 58) and I accept that evidence. This item is therefore allowed.
35	Steve’s Lawn Maintenance 25 November 2012-6 March 2013	$640	The amount claimed was for hedge trimming of the house at Cobb Crescent in Ainslie. The plaintiff gave oral evidence that “I couldn’t use my arms to go out and do the hedge anymore”: 11 April 2016 page 58. I accept that evidence and allow this item.
36	SnA’s Mowing and Gardening 30 July 2013-2 September 2013	$50	The amount claimed is for lawnmowing. The plaintiff gave evidence in relation to a later period that she was unable to use a mower any more (11 April 2016 page 57). Having regard to the earlier difficulties with gardening, it is more likely than not that this relates to her upper back condition. I therefore allow this item.
37	Trim It Mowing Services 15 October 2013-4 June 2014	$270	The amount claimed is for lawnmowing. I allow for the same reasons as items 36.
38	Blue Elephant Car Wash 27 July 2014	$30	This item relates to car washing. I allow it for the same reason as item 34.
39	Coles Car Wash 17 July 2013-26 November 2013	$36	This item relates to car washing. I allow it for the same reason as items 34.
40	Avanti Plus 9 October 2013	$0	The amount claimed is $439. The plaintiff gave evidence that she bought a new bike, which she described as a “sit up and beg” bike (11 April 2016 page 77). This was a bike which allowed her to adopt a much more upright riding position which was appropriate having regard to her neck and shoulder condition. There was no evidence of the cost of the bicycle and as a consequence no amount is allowed.
41	Pelagonia Kitchens 22 October 2014	$7000	This is an amount for kitchen renovation at 79 Stewart Street Brunswick so as to incorporate higher than usual benches raising the height of the oven and draws, rather than cupboards, which provide easier access. The amount is the total cost of the kitchen renovation ($18,000) less an amount of $4000 for the cost of the benchtop which the plaintiff accepts she would have installed in any event. The defendants contended that this was renovation which, consistently with the earlier undertaking of renovations in other parts of the house, the plaintiff would have undertaken in any event. However, I accept the plaintiff’s evidence that the existing kitchen was serviceable and that she would not have undertaken this renovation but for the motor vehicle accidents. There was no specific evidence in relation to whether the inclusion of drawers was necessitated by the plaintiff’s upper or lower back condition. The raised bench height is more obviously attributable to her neck and shoulder condition. I am satisfied that the raising of the bench heights was necessitated by her upper back condition. The plaintiff has failed to prove that the modification of the cupboards was caused by that condition as opposed to her lower back condition. Adopting a broad brush approach I will therefore allow half of the amount claimed namely $7000.
42	Garden redesign	$0	This amount of $1160 is identified as a garden redesign. No invoice is included in Exhibit 7. The plaintiff did not give evidence about the incurring of this expense. There was only oblique evidence in relation to having a raised garden bed and gardening while sitting. It is therefore not allowed.
43	Easy Turf 12 December 2014	$0	This claim for $2800 is based on a quote for the laying of artificial turf at the plaintiff’s house. The oral evidence of the plaintiff and the documentary evidence did not make it clear whether the turf had in fact been installed. The evidence was more consistent with two quotes having been obtained: one for $3300 and one for $2800 (Exhibit 7: 237-238), but the work not having been carried out. In my view the replacement of lawn with artificial turf is an expense arising out of the injuries suffered in the first motor vehicle accident, because the plaintiff can no longer use a mower. However, the defendants did not make any objection to the $3300 amount (Exhibit 7:238) and to include the $2800 would involve double counting. I will therefore not allow it.
Total	$8163.00

Treatment expenses	$3391.42
Miscellaneous out-of-pocket expenses	$11,873
Travel expenses	$224.97
Treatment expenses repayable to Medicare	$6109.71
Treatment expenses repayable to NRMA	$10,405.45
Total	$32,004.55

General damages	$110,000
Interest on past component of general damages	$4,675
Past loss of earnings (incl superannuation)	$123,211
Interest on past loss of earnings	$15,983
Future loss of earnings (incl superannuation)	$175,000
Past out of pocket expenses	$32,005
Interest on past out of pocket expenses	$1,739
Future out of pocket expenses	$19,282
Past Griffiths v Kerkemeyer	$41,160
Interest on past Griffiths v Kerkemeyer	$5,874
Future Griffiths v Kerkemeyer	$48,794
Total	$577,723.00