| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : SANCI -v- MENSINK [2005] WADC 208 CORAM : MACKNAY DCJ HEARD : 26-27 APRIL, 27 JULY 2005 DELIVERED : 9 NOVEMBER 2005 FILE NO/S : CIV 3430 of 2002 BETWEEN : SONIA ANN SANCI Plaintiff
AND
PAMELA MAY MENSINK
Defendant
Catchwords: Damages - Personal injury - Assessment - Plaintiff 37 year old female wardrobe assistant at time of accident - Soft tissue and ligamentous injury to degenerate cervical spine - Total award of $184.060
Legislation: Motor Vehicle (Third Party Insurance) Act 1943 (WA) s3C
Result: Plaintiff entitled to judgment for $184,060
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Representation:
Counsel:
Plaintiff : Mr K S Pratt
Defendant : Mr M A McAuliffe
Solicitors:
Plaintiff : Trewin Norman & Co
Defendant : Dibbs Barker Gosling
Case(s) referred to in judgment(s):
Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538
Kandic v Kandic, unreported; DCt of WA; Library No 5208; 20 December 1996
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
Purkess v Crittenden (1965) 114 CLR 164
Case(s) also cited:
Belous v Willetts [1970] VR 45
British and Colonial Land Association v Foster & Robbins (1888) TLR 574
Cayron v Russell (1897) 23 VLR 399
Christie v Christie (1873) LR8 Ch App 499
Davy v Garrett (1877) 7 Ch D 473
Fisher v Owen (1878) 8 Ch D 645
Lawson v Flavel [2001] WASCA 272
Legal Practice Board v Said, unreported, SCt of WA; Library No BC9402017; 31 October 1994
Lumb v Beaumont [1884] 27 Ch D 35
Majchowicz v Joyce Corporation Ltd, unreported; FCt SCt of WA; Library No 980405A; 23 July 1998
Meckiff v Simpson (1968) VR 62
Pihler v Genidi [2001] WADC 74
Rossage v Rossage [1960] 1 All ER 600
Southgate v Waterford (1990) 21 NSWLR 427
Squires Transport Pty Ltd v Turnor [2004] WASCA 245
Tomkinson v South Eastern Railway Company (1887) 35 Ch D 675
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Turquand & Capital & Countries Bank v Fearon (1879) 4 QBD 280
Watts v Rake (1960) 108 CLR 158
Wylde v 'Arriaza, FCt SCt of WA; Library No 970359; 23 July 1997
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Introduction 1 The plaintiff is a 41 year old mother of one who was injured in a motor vehicle accident in November 2001, and who claims damages in respect of the same. 2 Negligence is admitted, but the defendant does not admit the plaintiff suffered injury or loss, and says in the alternative that such was "caused or substantially contributed to" by an injury to the low back, said to have been sustained by the plaintiff about four weeks after the motor vehicle accident, the plaintiff's subsequent pregnancy, and a pre-existing but asymptomatic degeneration of the lumbo sacral spine.
Plaintiff 3 The plaintiff was born in Canada on 28 February 1964 and said she completed high school to the end of Year 13, and then spent four years in college, commencing a medical technology course but then changing to and completing a course in textile management technology, at the same time doing a fashion design programme. 4 After completion of her studies the plaintiff said she undertook various forms of employment, including work for about 4½ years as manager of a clothing store with 22 staff. 5 On 5 February 1993 the plaintiff arrived in Australia, together with her partner. 6 The plaintiff said that after about five weeks here she obtained employment in a laundry, her job description being "sorter and manual handler". 7 She then worked at a female and children's clothing store business in North Perth for about 3½ years the plaintiff said, first as an assistant manager and then a manager, before leaving to try and commence her own business. 8 On that proving unsuccessful the plaintiff said that she then worked for a laundry for a period of just over one year. 9 The plaintiff said that she then obtained full-time employment at the Burswood casino, where she remained until July 2002, when she left pending the birth of her first child, on maternity leave, the birth occurring
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on 1 November 2002, and the employment being terminated shortly before the end of the 12 month leave period when she elected not to return to work. 10 Prior to the accident the plaintiff said that she was working on permanent nightshift, with one other employee Jeremy Brady, the work involved the sorting for cleaning or hanging and putting away of all uniforms worn at the casino. 11 The plaintiff said that the work included a need to hang "high up" uniforms, there being "hundreds" hung up each night, and a need to work very quickly. 12 Clothing to be cleaned was put in bags which became very heavy and had to be changed several times each night, she said.
Accident 13 On 6 November 2001 the plaintiff was driving her car, she said a Nissan Pintara, in Railway Avenue, Kelmscott, at about 55 kph, although slowing, when the defendant's vehicle, which was travelling in the opposite direction, the plaintiff said, and described by her as a "large 4-wheel drive", turned across the path of the plaintiff's car so that she drove into the side of it. 14 The front of the plaintiff's vehicle was pushed in so that it was triangular in shape, she said, with pieces of it left along the street. 15 After the accident the plaintiff said her left shoulder was quite sore and it became progressively worse as she sat at the scene, with pain at the top of the shoulder radiating up the left side of the neck behind her left ear. 16 She said she then went by ambulance to Armadale Hospital where an x-ray was done, and where she experienced severe stiffness. 17 The plaintiff left the hospital after 3-4 hours, she said, and that evening the pain got worse and felt very tight in her left shoulder and behind her head. 18 The next day she was unable to return to work as her shoulder was too sore and she could not turn her head properly, she said, and three days later she saw Dr Yap as her neck was worse and she had in addition headaches and dizziness, and Vioxx was prescribed for her, whilst she later attended for physiotherapy.
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19 About two weeks after the accident the plaintiff said she went back to work, as she was feeling better, and to see "how (she) went".
Plaintiff post-accident 20 The plaintiff said that after her return to work she would be sore in the left shoulder by the end of the night, because of the need to use her arms all the time, and by the end of the week it would be "very, very stiff" again, with a limitation in turning the neck to the left, and a burning sensation in the left shoulder radiating into the shoulder blades. 21 She returned to nightshift, the plaintiff said, where she worked with Jeremy Brady, and he would not allow her to carry more than four sets of uniforms, as against the 12 to 24 sets she could previously manage, and would help with the change of trolleys and bags. 22 Physiotherapy was less beneficial, she said, and her problems at work arose from the continual raising of arms and the heavy lifting. 23 The plaintiff said that on the evening of 5 December 2001, she "woke up and rolled over to turn the alarm off and just felt a bit of a pinch" on the righthand side around her lower back into the buttocks, which after going to work increased in severity so that she was hardly able to rise from a seated position, and as a result saw the nurse there. 24 After that the plaintiff said that she saw Dr Khoo, went for an x-ray and CT scan, had physiotherapy, and lost time from work until the end of the year. 25 On her return to work she would be sore by the end of the shift and very sore by the end of the week, she said, and she continued with physiotherapy until March 2002, having earlier fallen pregnant. 26 The plaintiff said that she also began to see Dr Amira, for the same reason. 27 The plaintiff said that she ceased work in July 2002, and prior to that had been unable to work to her former capacity, the pain in her neck being worse by the end of the week and the back "sore but manageable", with both being aggravated by a slip at work at one point, whilst she was unable to take much medication due to her pregnancy, but did receive manipulative therapy on the neck, it having become very stiff. 28 Had her problem been the low back alone she would have been able to cope, the plaintiff said.
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29 Her child Alia was born on 1 November 2002, the plaintiff said, and shortly before that she had a first episode of numbness in the left hand whilst driving.
30 The plaintiff has not returned to work, she said, as apart from an inability to work the rotating shifts required at the Burswood casino she would not be able to have her arms up as much as she lacked sufficient strength in them and the work aggravated her shoulder and the left side of her neck too much. 31 Since the birth of Alia, and apart from an initial low symptom period, the plaintiff said her neck symptoms had worsened, with increasing numbness in the fingers and now both hands, and daily weakness in the arms. 32 She had daily neck pain, she said, with tightness across the shoulder blades and up behind the ear, together with postural related headaches. 33 She had discussed a decompression operation for her neck, the plaintiff said, the prospect frightened her, although if left with no other option she would have it. 34 Her low back symptoms from 2003 had improved, the plaintiff said, as she had learned management of such, that in particular involving the avoidance of heavy lifting. 35 But for the accident the plaintiff said she would have stayed at home until Alia was aged about 3 years anyway, but would then have "ideally" sought full-time work. 36 The plaintiff said that now she lacked the strength in her arms to do the pre-accident work at Burswood or work in a laundry, whilst in a shop it would be necessary to re-merchandise, and that required the use of raised arms. 37 Nonetheless she would like to return to work, the plaintiff said, perhaps as a domestic design consultant, or would like to undertake a landscape and design course through external study, in which event it would be also necessary for her to become computer literate. 38 In cross-examination the plaintiff said she doubted there was any textile trade in Perth, and she would also require some retraining and updating before she would be able to work in that area.
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39 She agreed that her present capacity to work was not known to her, but said her views as to her present abilities were based on what she did at home and what aggravated her symptoms.
40 Her "predominant problem" was her neck, the plaintiff said, although at one stage it had been her back. 41 The plaintiff said that her present medications included Panadeine Forte, Naprosyn and Endep, a muscle relaxant and mild anti-depressant. 42 Activities which had been ended or curtailed by the accident included, the plaintiff said, cooking and cleaning, her arms becoming heavy and the work much harder, driving, which she could manage for 45 minutes, with a problem on the left, gardening, which she could do for an hour of light work, camping, walking dogs and travel on a motorcycle. 43 It was still necessary for her to do most of the gardening, the plaintiff agreed, although she left any "big job" for her husband, and she was also a keen cook, using a standard oven. 44 The plaintiff said it was not feasible for her to have more children, although before the accident she and her husband had discussed having four children.
Other evidence 45 Jeremy Brady said he worked in the wardrobe department of the Burswood casino for two years with the plaintiff, during the second on the "graveyard shift" between 9.00 pm and 6.30 am. 46 The work was heavy at times and tiring, and it was necessary to work quickly, he said. 47 Prior to the accident the plaintiff worked really well and was an energetic, fast, strong, lively kind of person, he said, but after it she complained of headache, a stiff neck and shoulder problems, and was not as fast or energetic, so that he had told her to do the lighter work whilst he did the heavier work. 48 He said that he would then try to do work which involved putting clothes on lower rails, whilst the plaintiff did the higher rails, as he knew from his own experience with shoulder problems that was less stressful. 49 As to the plaintiff's level of work he said she "still did her normal duties, with help".
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50 Mr Brady said he was unaware of the development of any back problem by the plaintiff.
Medical evidence 51 Mr Peter Watson is a neurosurgeon who said he first saw the plaintiff in March 2002, when he reported on the plaintiff's cervical symptoms, which he thought related to soft tissue and ligamentous injuries following the accident, and her lumbar spine symptoms, about which he said it was more difficult to be certain. 52 After other reviews Mr Watson reported that he again saw the plaintiff in April 2005, when she complained predominantly of neck pain, with pain in the left shoulder, pain referred into both arms, and tingling, which had become worse, in the hands, together with a minor complaint of lower back pain. 53 In his report Mr Watson stated as follows: "b. The injuries sustained by your client are soft tissue and ligamentous injuries principally to the cervical spine and to a lesser extent the lumbar spine. Her symptoms are of neck pain, left shoulder pain, bilateral upper limb pains, worse on the right side than the left and tingling in the hands. She complains to a lesser extent of lumbar spine pain. c. I confirm that I believe the cause of your client's ongoing symptoms to be motor vehicle accident on the 6th November 2001. d. The treatment I would recommend for your client would be continuation of conservative treatment, exercises, strengthening and swimming programme. e. The development of your client's symptoms into the future – as I have stated I believe they will continue on as they are into the indefinite future. As the disc protrusions may deteriorate in the future at C5/6 she may gradually develop increasing symptoms in the upper and lower limbs and need to consider surgical intervention. f. The potential treatment for the long term future could include surgery. This may require a decompression and fusion at C5/6 or C6/7 levels. Otherwise conservative
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treatment should be as outlined previously with exercises and strengthening. g. Currently your client has returned to work. She is looking at retraining and as discussed today the possibility of working in design or either interior of even landscape design. I continue to believe that your client should be capable of working in sedentary employment of up to 20 hours per week. h. I believe your client has sustained a loss of competitiveness in her work. I think it is unlikely she will get back to work where a lot of lifting is required or heavier use in the upper limbs. i. It is difficult for me to say whether your client's working life as such has been shortened other than to say I think she will need to now look at more sedentary or clerical occupations rather than her previous employment." 54 The doctor agreed in evidence that the plaintiff had not in fact stated that she had returned to work. 55 He said that an MRI scan in 2003 had shown a degeneration at the C5/6 level, unusually both to the left and right, but worse on the left, and the C6/7 level, worse on the right, and the protrusions there would account for the plaintiff's lower cervical spine pain. 56 The cost of a two level spinal decompression would be $1,500, if there was no disc replacement, the doctor said, and such a procedure would preserve function rather than make any great difference in the plaintiff's capacity to work, and she would be unlikely to return to work thereafter. 57 Mr Watson said the temporal connection between the accident and the low back symptoms favoured a link, whilst it was not uncommon for the plaintiff's experience to occur, but he had found the general onset difficult to establish. 58 Over time the plaintiff's low back symptoms appeared to have settled, he said, and it would be her neck rather than her low back which would prevent her working, although repetitive bending and heavy lifting ought be avoided in regard to the latter.
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59 In cross-examination the doctor said that the radiological appearance of the plaintiff's neck was worse than expected for her age, but the lumbar spine was not excessively bad.
60 He said it was not possible to say it was more probable than not that the accident caused the plaintiff's low back symptoms. 61 Any discrepancies between direct and indirect methods of assessment on medical examination were not a particularly reliable guide, Mr Watson said. 62 He agreed the issue here was whether the accident rendered symptomatic existing degenerative changes in the cervical spine or did that and also caused acute lesions resulting in disc protrusions. 63 In the latter respect Mr Watson said it was probable the accident had caused in particular the plaintiff's C5/6 disc protrusion, there being no prior history of neck symptoms, and such a result not being uncommon, whilst there was no osteophyte at that level. 64 Dr Yap is a general practitioner and reported she first saw the plaintiff on 9 November 2001 when she complained of left neck pain with tenderness and reduction in movement, and on 6 December 2001 when there was a complaint of slight tenderness and reduction in movement in the right lumbar region, the latter being probably due to degenerative changes, and including referred pain into the right leg. 65 Following anti-inflammatory and physiotherapy treatment the plaintiff advised her neck pain had almost gone and her low back pain was much better, and she was certified fit to return to work on 2 January 2002, the doctor stated, and following that, on 26 February 2002, she complained of an aggravation of right leg pain at the end of each week, of an inability to do many daily household chores, and of feeling very tired with work. 66 Dr John Suthers, who was called by the defendant, is an occupational physician who reported in July 2003 that he had just seen the plaintiff at the request of the defendant's solicitors, and expressed the opinion that the plaintiff had "chronic neck pain consistent with a whiplash type injury associated with the … accident", although only part of the pain related to that, as the plaintiff had pre-existing degenerative changes, "albeit asymptomatic".
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67 The low back pain experienced by the plaintiff was, the doctor stated, "probably better understood in the context of pre-existing degenerative changes".
68 Dr Suthers expressed the opinion that the plaintiff was fit to return to her pre-accident duties, but would "have to continue to cope with the chronic pain state", and had a 5 per cent permanent disability related to the accident. 69 In a subsequent report in August 2003, but without further review, the doctor expressed the opinion that the plaintiff was likely to make a full recovery from her "minor whiplash associated disorder", which was "not a significant issue" in the claim, her ongoing pain having a significant relationship to the degenerative changes. 70 In evidence the doctor said some of the plaintiff's cervical symptoms could be coming from the whiplash and some from the degenerative process, and there was no clinical test to separate the two, although he thought there was some significance in a brief pain free period experienced by the plaintiff after the birth of her child. 71 Some behavioural signs observed by him also had relevance to the likely outcome, he said, although the plaintiff did not meet his criteria for a diagnosis of "non-organic pain syndrome". 72 Mr Nicklay Batalin is an orthopaedic surgeon who said he had seen the plaintiff for the defendant twice, in January and October 2003, and had provided two reports. 73 In the first report the doctor said he found conflict between the plaintiff's levels of movement on direct and indirect assessment. 74 He said the plaintiff had radiological evidence of pre-existing degenerative changes in the mid-cervical and lower lumbar spine, and it was "possible" she may have sustained a soft tissue strain neck injury from the accident, although it was difficult to establish a relationship between that and the lumber spine, given the delay of about a month. 75 In his second report Mr Batalin again said he observed a disconformity between levels of restriction on direct and indirect assessment, and variability in areas of tenderness. 76 He said that there was no major disability, but the "prognosis in a patient with diversifying symptoms and increased pain behaviour was
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difficult to predict", and if there were factors promoting pain behaviour it was likely symptoms would persist. 77 The plaintiff's degenerative changes did compromise the plaintiff's ability to do heavy labouring work, the doctor said, and she ought avoid repetitive bending or twisting and heavy lifting. 78 Mr Batalin stated that a retrospective diagnosis of a patient with degenerative change was always difficult, but "postulating a possibility" of superimposed soft tissue strain injury to each of the plaintiff's neck and back, there "may be about" 5 per cent disability to each of those areas attributable to the accident. 79 In evidence Mr Batalin said the type of work done by the plaintiff at the Burswood casino fell within that which she ought not do. 80 He agreed that the plaintiff did have a narrow cervical spinal canal, and that there was thecal indentation, which by itself he would not regard as significant, whilst he could not say whether or not there was cord indentation. 81 Mr Batalin said it was possible the plaintiff had symptoms from disc protrusions in the cervical spine, that a degenerate neck could have been rendered symptomatic by the accident, and that there was no real way of knowing when, if at all, the degeneration might otherwise have become symptomatic. 82 Dr Hamza Amira is a general practitioner who reported that he first saw the plaintiff in relation to the accident in May 2002, although he had seen her earlier for antenatal care. 83 Dr John Ker is a consultant physician in rehabilitation medicine, who is head of department at the Bedbrook spinal centre, and said that he had seen the plaintiff four times. 84 In a report of July 2003 Dr Ker stated that he had seen the plaintiff the previous month, and considered her to have an "accident-induced acute strain injury to the mid-cervical spine and lumbo-sacral junction – the site of pre-existing cervical and lumbar degenerative intervertebral disc disease". 85 The doctor said he did not believe the plaintiff would be able to return to her pre-accident work, but was hopeful that "in time" she could resume a productive working life.
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86 In his last report of March 2005, the doctor stated that he had seen the plaintiff some days before and expressed the view that if the plaintiff was to work in the future, it would need to be in an area that was not physically demanding, and would likely be on a part-time basis, following the development of skills which would enable sedentary work, as the plaintiff had "lost the capacity to compete for work within her prior level of work skills and experience".
87 In evidence Dr Ker agreed that when first seen the plaintiff was likely to have had symptoms from both soft tissue injury and degenerative change. 88 As to the plaintiff's lumbar symptoms the doctor said it was his view that it was "more probable" that the accident was the cause, as it is "not unusual to find circumstances where people sustained disc injury to the spine which is not necessarily immediately symptomatic. Its unusual but it is not an unheard (of) event". 89 The plaintiff's lumbar spine was such that she could return to work at the Burswood casino, the doctor said, but she might have difficulties sustaining that. 90 As to the onset of lumbar symptoms in any event, the plaintiff had an unusual degree of degenerative change in the lumbar spine for her age on first presentation, Dr Ker said, and was tall, and women over six feet in height did have "a pre-disposition to lower back pain in advancing years". 91 The defendant also called as a witness de bene esse Mr Jacob Van Der Plas, a physiotherapist, who gave evidence that he first treated the plaintiff on 20 November 2001, at which time she gave a history that included lower cervical and bilateral shoulder pain, and complained of presentation of left-sided neck and shoulder pain. 92 He subsequently treated the plaintiff on a further 13 occasions, until 7 March 2002, Mr Van Der Plas said, for symptoms which included right side neck pain, and low back pain.
Conclusions 93 The plaintiff was an impressive witness, and her evidence, which did not appear exaggerated, was consistent, and was not materially affected by cross-examination. 94 I have no hesitation in accepting her evidence.
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95 It is the case, as appears, that each of Mr Batalin and Dr Suthers claim to have observed behavioural signs or enhanced levels of movement on indirect assessment, on review of the plaintiff, but I note that Mr Watson considered that such were not a reliable guide, whilst the plaintiff was not asked about such during the examination, other doctors have seen no hint of exaggeration, her work history after the accident reveals stoicism, and no medical literature to support the significance of such was put forward, and the evidence of those two doctors does not affect my view of the plaintiff's evidence as to her symptoms.
96 Mr Watson's views were apparently based on similar acceptance, whilst he has appropriate expertise, and I would accept his evidence that the plaintiff sustained soft tissue and ligamentous injuries to the cervical spine in the accident, with resultant symptoms in the neck, left shoulder and bilateral upper limbs, and tingling in the hands. 97 Those injuries occurred against a background of pre-existing, but asymptomatic, multi-level degeneration in the cervical spine, and the additional injuries included the plaintiff's C5/6 disc protrusion, I find, consistently with the opinion of Mr Watson. 98 Dr Suthers' two reports, although based on a single review, are inconsistent as to the extent of the whiplash type injury, whilst he regarded the disc protrusions as clinically insignificant, and in any event his division of the plaintiff's symptoms into two discrete areas, one a whiplash type injury and the other degenerative change rendered symptomatic by the accident, is not legally significant unless a division was possible. 99 In that regard it is of course necessary for there to be "some reasonable measure of precision" as to the likely extent of the future difficulty and the timing of its onset: Purkess v Crittenden (1965) 114 CLR 164, 168. 100 I do not find Dr Suthers' evidence to be of any real assistance. 101 In regard to Mr Batalin, given the nature and extent of the plaintiff's reported symptoms after the accident, unless that doctor's opinion was formed on the basis that he did not accept the plaintiff's account, or considered the symptoms to be pre-existing, something not stated in his initial report, I am unable to understand how he could regard the sustaining of a neck injury as a mere possibility, notwithstanding the explanation offered.
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102 Mr Batalin seems to have separately regarded any accident caused soft tissue injury to the neck and accident triggered symptoms to pre-existing degenerative change there, but conceded an inability to prognosticate when such change might in any event have become symptomatic.
103 I do not place reliance on the views of Mr Batalin. 104 The evidence of Dr Ker would appear largely consistent with that of Mr Watson, save as to his view as to the relationship between the accident and the plaintiff's low back injury. 105 As to that matter, I prefer the evidence of Dr Ker that the precipitating cause of the plaintiff's low back symptoms was the accident. 106 In that regard Mr Watson was apparently originally of the view that there was such a relationship, albeit that there might be other factors as well, as appears from his first report, and he maintained in his final report an attribution of the plaintiff's ongoing symptoms, cervical and lumbar, to the accident. 107 In evidence he then said the temporal connection favoured a link, and that reaching out to turn off an alarm clock in bed was not the sort of event likely to trigger symptoms, and it was really only when asked whether it was more probable than not that the accident caused the back problem that the doctor answered in the negative. 108 On the other hand Dr Ker has consistently expressed the view that the low back symptoms were accident related. 109 The temporal connection is plainly something both of those doctors regard as significant, and given that, the force of the accident, the triggering of symptoms in the upper spine as a consequence, the lack of trauma on 5 December 2001, and the medical views referred to, and having regard to logic and ordinary human experience, it seems to me probable the accident was the cause of the plaintiff's lumbar symptoms. See also Adelaide Stevedoring Co Ltdv Forst (1940) 64 CLR 538. 110 The low back symptoms are presently less significant than those associated with the upper spine, but nonetheless would in their own right contraindicate a return to work at the Burswood casino.
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111 There was, however, a real likelihood that, absent the accident, the plaintiff would in any event have experienced low back symptoms, as indicated in the evidence of Dr Ker, and if that had occurred those would have interfered with the plaintiff's ability to work.
112 Such a likelihood existed in relation to the cervical symptoms as well, of course. 113 The position in relation to the plaintiff's working future is then this. 114 But for the accident the plaintiff would now be about ready to return to the workforce, possibly but not necessarily on a full-time basis at the outset, although she would have eventually sought and obtained full-time work. 115 In that event her ability to work full-time to ordinary retirement age may have been affected to some degree by the onset of lumbar, or possibly cervical, symptoms, although the time of onset and degree of interference in either case is not able to be ascertained. 116 As a result of the accident the plaintiff is now only capable of sedentary part-time work, and in practical terms she will need to do some retraining before she can seek that. 117 There is now a substantially greater chance that the plaintiff will experience exacerbated cervical symptoms. She may require surgery there, and that may bring an end to her working life. 118 Her lumbar symptoms may also worsen at some time in the future. 119 I note there is no claim for loss of past economic capacity or special damages. 120 The heads of damage which have relevance and my findings in relation to the same are then as follows.
Damages 121 The maximum amount allowable under this head is now $268,000. 122 The loss must be assessed in accordance with the Motor Vehicle (Third Party Insurance) Act 1943 (WA) s 3C.
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123 I set out my understanding of the correct approach to such an assessment in Kandic v Kandic, unreported; DCt of WA; Library No 5208; 20 December 1996 and would adopt that method here.
124 It is now four years since the accident, and the plaintiff is still troubled by significant symptoms, which affect her daily life and activities, and which are likely to remain with her in the future. 125 She may also require surgery to the cervical spine. 126 In all the circumstances I assess the sum of $40,200 as the appropriate proportion of the maximum amount. 127 After the obligatory deduction the sum allowable under this head is then $26,700. 128 Future surgery would be the principal item under this head, and if implants were used it would be very expensive, if it occurred. 129 There was a paucity of evidence about the need for and cost of medications, periodic review and the like and only a broad estimate is possible. 130 I allow $5,000 under this head. Loss of economic capacity 131 It is customary, in a case like this, to first calculate the total of the plaintiff's discounted future earnings, free of any adjustment, so as to gain some understanding of the possible value of the likely loss. 132 Here, based on the pre-accident net earnings of $461 per week, and utilising a multiplier to age 65 years on the 6 per cent tables of 661, a sum of $304,721 is derived. 133 That figure is conservative as it makes no allowance for likely changes in the net wage over the last four years, and does not include superannuation. 134 Further, given the plaintiff's education and employment history it would have been likely, but for the accident, that her level of employment and income would have increased.
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135 There is a retained earning capacity, but it is only part-time, and restricted, and suggestions the plaintiff will still be able to retain managerial status within her areas of competence are, I consider, unrealistic.
136 The plaintiff might lose her economic capacity altogether at a premature age if she requires cervical surgery. 137 There are also contingencies adverse to the plaintiff, and I have referred to such above. 138 The task is then that described in Malec v J C Hutton Pty Ltd (1990) 169 CLR 638. 139 There is a great deal of uncertainty in the present case, any attempt at precision would produce only an illusory outcome, and the aim can only be to provide "fair, but not perfect" compensation for the loss. 140 Doing the best I can, and balancing all of the above, I allow half the above sum and award damages under this head in the sum of $152,360.
Summary 141 The plaintiff's loss is as follows:
Non-pecuniary loss $ 26,700.00 Future medical expenses $ 5,000.00 Loss of future economic capacity $152,360.00 $184,060.00 142 The plaintiff is entitled to judgment against the defendant in the sum of $184,060.
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