Sghendo v Mann No. DCCIV-98-1333

[2000] SADC 154

SGHENDO  v  MANN
[2000] SADC 154

Judge Bishop

Civil

Katie Sghendo (“the plaintiff”) claims damages for personal injury, loss and expense allegedly suffered in a motor vehicle accident which occurred about 4.30 p.m. on 25 September 1995, at Welland, when the stationary vehicle that her husband was driving, and in which she was a passenger, was struck on the driver’s side, with considerable force, by the vehicle then being driven by Neil Anthony Mann (“the defendant”).  Liability having been admitted, the action proceeded upon assessment of damages, a major issue being whether her left knee had been injured in the accident.

The plaintiff is a 50 years old married woman, who was born in Malta and came to Australia with her husband in 1972, when she was about 22 years old.  They have three children, who are now adults.  While both the plaintiff and her husband can speak English, the plaintiff’s fluency and comprehension are such that, during her examination-in-chief, the services of a Maltese interpreter were obtained (T132), to assist her in giving evidence.  At the time of the accident, the plaintiff’s husband was driving her to her employment with a cleaning agency (“Tempo”) as a cleaner at Qantas House.  She had begun working with Tempo in January 1995 (T24).  Previously, she had last been employed as a cleaner at the Royal Adelaide Hospital in 1987 when she injured her back (T164-165).

The plaintiff’s evidence

In the accident (during which she was wearing a seat belt), both the plaintiff and her husband were briefly rendered unconscious.  When they awoke, there was an ambulance in attendance.  With an aversion to ambulances and hospitals, they walked back to their nearby residence.  The plaintiff did not then experience any pain (T10).  That night, however, a doctor was called when pain developed across where she had been wearing the seat belt.  Analgesic medication was prescribed.  Next day she awoke with painful bruising in the torso region of her body and her right thigh.  That day she consulted her general medical practitioner, Dr. Tsavdaridis.

With pain in her back, 10 days later (on 6 October 1995) the plaintiff again consulted Dr. Tsavdaridis.  She was apprehensive that the accident might adversely have affected the anterior disc inter-body spinal fusion (at the L4-5 level) which had been performed upon her on 8 August 1989 by Mr. (now Professor) Robert Fraser, in consequence of symptoms which had developed while she was working as a cleaner at the Royal Adelaide Hospital and not (as Professor Fraser then reported she had first told him) while she was washing a toilet at home (see the medical reports contained in exhibit P10).  (She here denied having told Professor Fraser that she had injured her back at home (T145).)  Dr. Tsavdaridis again referred her to Professor Fraser.

Following the accident, the plaintiff was absent from work for only two days.  (Normally she worked about three hours each week day (T25).)  In her evidence, with persisting back and knee pain, she then returned to work at Qantas House for more than a year (T25-27).  Experiencing pain when using her ‘back-pack’ vacuum cleaner, she was supplied with a cleaner on wheels (T17).  During 1996, she was absent from work because of “back pain” (and no other pain) for 33 days (see the Rule 46 particulars in exhibit P11).

According to the plaintiff, “soon after” (T20) and “not much later after” (T171) the accident, she began feeling pain in her left knee.  She could not recall having been involved in any incident injuring her left knee after the vehicular accident (T85-86).  Previously, she said, she had never had a problem with that knee (T19).  She agreed, however, that in 1992 she had been referred to Mr. Peter Dobson, an orthopaedic surgeon, with pain in her left knee (T20-21).  She was unable to remember the problem (T218).  Between 1992 and the accident, she did not have any ongoing problems with that knee (T21).  Because of the manner in which she subsequently walked (with a limp), she said that pain later developed in her right knee (T23).  Problems with that knee did not arise until “years after” the accident (T229).  (Damages in respect of her right knee were here neither pleaded nor sought.)

While the plaintiff recalled first having told Dr. Tsavdaridis about her left knee pain about eight months (on 23 May 1996) after the accident, through the interpreter she added, “but I had been feeling pain before that” (T135).  In her evidence, she first experienced pain in that knee,

“Soon afterwards, after the accident - I felt the pain just after the accident, but I didn’t tell the doctor straightaway, I told him about eight months afterwards” (T137).

(My emphasis.)

The reason for which she did not tell the doctor until then was because (she somewhat confusedly said), “the doctor used to say that ‘The pain in your knees is coming from your back’” (T137; 220).  Then she inconsistently said that, between the accident and 23 May 1996, she did tell the doctor that, because of her knee, she could not walk properly, was limping and could not perform her work as a cleaner (T137).  (In those respects, she did not derive support from Dr. Tsavdaridis.)

In cross-examination, the plaintiff elaborated (with my emphasis) upon being aware that her left knee had been injured in the accident:

“I remember straight after the accident this [left] knee - because I hit, it was starting to hurt.  I hit it on the door, the car door.  I remember that, but I never felt the pain straight away.  Then the pain started slowly and then I noticed it the next day.  I kept on working.  I felt the pain, but my work had to be done and I kept on working, and the pain started getting worse and worse, and I was limping” (T171).

She did not tell Dr. Tsavdaridis about her left knee pain when she told him of her back pain on 6 October 1995,

“Because at the time I was coping with the pain.  When I couldn’t bear it any more, that’s when I told the doctor” (T174).

When asked, “Why wouldn’t you tell the doctor if you had pain, even if you were coping with it” (T174), she replied,

“I can’t understand myself why.  I was scared that I was going to lose my job because the job was important to me too” (T174).

To the question, “But why would you tell your doctor about your back pain, but not tell him about your knee pain, because if you were scared you were going to lose your job, telling him about back pain would surely affect that, wouldn’t it” (T174), she replied,

“Because the pain in my back was stronger and I was still having pain in my knee, but the back pain was worrying me more” (T174).

On 29 September 1995 (four days after the accident), the plaintiff signed the Injury Claim Form (exhibit D3) in which the nature and extent of her injuries were described as “Bruising on torso”.  When that description (in the handwriting of a relative) was drawn to her attention, in cross-examination, she said that,

“The bruising was evident, could see the bruising, but I hadn’t started feeling real pain in my knee” (T175).

Because bruising on her torso was then “the most evident”, she said that only that was described in the form (T177).  She remembered that she did not complain about her knee at the time, “because the only evidence there was the bruising” on her torso (T214).  When she returned to work after two days, “The pain in my knee was there, but I didn’t complain about it” (T214).  She said that she told the doctor about her left knee when she began to limp (T221).  Asked if she thought that the knee pain was coming from her back, why would not she mention that to her doctor (T222), the plaintiff replied that she did not know how to answer that question.  Nor could she remember why she did not tell Professor Fraser of her knee problems when she saw him on 26 October 1995, about a month after the accident.

Upon termination of Tempo’s cleaning contract with Qantas, for about two years the plaintiff cleaned at John Martin’s, until that business closed in 1998.  After holidaying for about five weeks, ‘to relieve her pains’ (T26), she then went to work for Tempo at David Jones.  She only remained there for one night, because she was again required to use a ‘back-pack’ vacuum cleaner and clean escalators and toilets (T27-30).  On 16 April 1998, she admittedly (T166) told Mr. Fahlbusch, Tempo’s area manager, that (as he confirmed in his letter to her of 1 May 1998 - exhibit D2), she was unable to work at David Jones, “due to the stairs leading into the site and the bending involved, causing you problems with your knees.”  (In evidence, she said that she also told him about her back problem (T166).)

Since leaving David Jones, the plaintiff has not worked as a cleaner (T31).  Realising that no-one would employ her ‘with her back problem’ (T32), in September 1999 she ceased looking for cleaning work and applied to become a child care provider through the Children’s Services Office (T155-157).  Earlier this year she paid for and completed a six weeks course which qualified her to look after young children at her house (T32-34).  In July 2000 she began working as a child care provider.  Dr. Tsavdaridis has expressed reservations about her caring for children under three years old because of the attendant strain (T58, 59).  Still she is troubled by pain in her back and left knee and is uncertain whether she will be able to continue with child care work (T144).

For the plaintiff, her husband confirmed in evidence that, ‘soon after’ and on the same day as the accident (T280, 286), she had shown him a red mark on her knee (T280, 286); that she had said, ‘she thought she had hurt her knee somewhere’ (T268); and that she had, “complained straightaway to the doctor” (T269).  In the Motor Accident Report Form which he signed on 29 September 1995, the plaintiff’s injury was described as “bruised torso” (exhibit D4).  Ms. Caraccia, who was the plaintiff’s supervisor at John Martin’s, said she recalled that the plaintiff there had a knee problem and occasionally limped.  She was a good, willing worker (T210).

There was here presented a formidable array of evidence from five medical practitioners, four of whom were orthopaedic surgeons.  To that evidence (with my emphasis) reference shall now be made.

Dr. John Tsavdaridis

In his four medical reports (exhibit P1), the plaintiff’s general practitioner, Dr. Tsavdaridis, said that,

·.. when he first saw the plaintiff on 26 September 1995, she was asymptomatic, except for bruising over her left abdomen and right thigh;

·.. on 6 October 1995, she had begun to experience some pain in her back, on the left side, extending to the buttocks and hip, with restriction in forward and lateral flexion, consistent with a sprained apophyseal joint in her lower back from the accident;

·.. on 20 March 1996, he recommended that Professor Fraser be consulted in relation to the plaintiff’s continuing back problems;

·.. he saw the plaintiff on 23 May 1996 regarding left knee pain and subsequently saw her in relation to that pain on eight occasions between August 1996 and August 1997;

·.. in the plaintiff’s clinical notes, the only other reference to previous knee pain was on 29 October 1992 (as he corrected in evidence [T55]), an episode of posterior knee pain caused by a popliteal cyst on an unidentified knee; and

·.. the plaintiff sustained her left knee injury in the accident.

In evidence, Dr. Tsavdaridis said that the plaintiff had consulted him on numerous occasions concerning her back pain after the accident, both in 1995 and 1996.  On 17 April 1996, when manipulating her legs and back, she did not complain of any knee problem (T74).  Until 23 May 1996, she did not complain of any knee pain (T51).  On that date, he noted,

“Also painful left knee, apart from tenderness over the patella, no other abnormalities” (T50).

The ligaments were intact and the only area of soreness was actually over the kneecap (T50).  (He did not make note of any event having occurred in relation to her complaint (T84).)  On 28 August 1996, the plaintiff next reported tenderness over the patello tendon below the kneecap.  The collateral and cruciate ligaments were noted as being “fine”.  In his noted assessment, “could this be osteo-arthritis, could this be patella-tendonitis” (T51).  Never did the plaintiff speak about problems with her right knee (T59), until 6 August 1998 (T79).

In cross-examination, Dr. Tsavdaridis explained that, although the plaintiff had been able to work, with pain, until about April 1998, in his opinion she was not fit to continue working with her persisting back and knee problems beyond 5 May 1998 (T63-70).  In his view, if trauma of the accident caused the plaintiff’s left knee injury, it was ‘unlikely but still a possibility’ that she would first have complained in May 1996 (T77).  In significant modification of his reported opinion that the knee injury was sustained in the accident, Dr. Tsavdaridis said,

“all I am stating is the motor vehicle accident may be one of the factors here .... because it was one of the things that could be responsible for the pain” (T77-78).

In his modified opinion,

“the most likely cause of her knee pain is a combination of degenerative changes that you’d expect at her age, plus something like the trauma of the accident to have just stirred it up a bit” (T79).

Professor Robert Fraser

In his five medical reports (exhibit P2), Professor Fraser (who did not give oral evidence) said that,

·.. following her spinal fusion on 8 August 1989, the plaintiff made very satisfactory progress and returned to work as a cleaner from the beginning of 1995;

·.. in October 1995, CT scan confirmed that the fusion appeared to be solid, with a very minor disc bulge at the lumbo-sacral level on the left side, which he diagnosed as being facet joint irritation;

·.. upon review on 11 December 1995, her condition had not improved and subsequent injection of the facet joint with local anaesthetic and steroid failed to achieve lasting relief;

·.. from the history given, it would seem that the plaintiff sustained a “soft injury” to the lumbo-sacral spine as a result of the accident, followed by the development of symptomatic degenerative changes at the lumbo-sacral level, which may have left her with the relatively small five per cent impairment of her lower back and lumbar spine ‘over and above’ the pre-existing impairment which resulted from the fusion;

·.. the plaintiff is likely to be limited in the range of physical activities that she can perform with comfort;

·.. in October 1996, she complained of knee swelling and giving way, which he thought might be due to patello-femoral arthritis and referred her to Mr. Dobson;

·.. in October 1996, she was again treated with facet joint injections which did not result in any worthwhile improvement in her back symptoms;

·.. in October 1997, she was again unsuccessfully treated with facet joint injections and she reported still being disabled by her left knee; and

·.. upon review in November 1999, her condition had not changed, examination revealing tenderness over the low lumbar facet joints on the left, with pain on lumbar extension.

Mr. Peter Dobson

In his five medical reports (exhibit P3), Mr. Dobson said that,

·.. he saw the plaintiff on 16 December 1996, upon reference by her doctor with regard to her left knee which, she said, had been injured in the accident;

·.. he had previously seen her in regard to her left knee in 1992 with pain around the medial side of the knee, suggestive of a mild medial meniscal problem, for which no treatment was necessary;

·.. upon the examination in December 1996, he formed the opinion that the plaintiff had sustained a soft tissue injury to her knee, possibly spraining the anterior cruciate ligament and had probably also sustained a mild contusional injury to the patello-femoral joint and that her ongoing symptoms were mainly related to the patello-femoral joint rather than the anterior cruciate ligament;

·.. he did not consider that the symptoms were bad enough to warrant any form of surgical intervention at the time;

·.. he believed that the knee injury was “consistent with the stated cause” (that is, a motor vehicle accident) and assessed the degree of residual disability in the knee “as a consequence of this accident” as being in the order of five per cent loss of function of the leg as a whole;

·.. upon review on 1 May 1997, he considered that her knee had gradually deteriorated;

·.. arthroscopy performed on 7 May 1997 confirmed damage to the anterior cruciate ligament and the patello-femoral joint, but also a tear of the posterior horn of the medial meniscus (cartilage) which had been present for some time and was probably the cause of the initial “locking” or “catching” in the joint, as the tear had extended;

·.. the cartilage problem having been resolved by removal of the torn meniscus, he hoped that her symptoms would be improved;

·.. on 22 October 1997, he formed the view that the plaintiff had significant ongoing residual knee problems, mainly from the patello-femoral joint, and assessed the permanent residual disability of her knee as being in the order of 15 per cent loss of function of the whole leg; and

·.. on 9 November 1999, upon review of the plaintiff after she had seen Mr. Darren Waters (another orthopaedic surgeon) for a second opinion, Mr. Dobson confirmed his previous opinion.  (To him, the plaintiff had never complained of any problems in her right leg.)

In evidence, Mr. Dobson said that, on presentation in December 1996, the plaintiff told him that she had been experiencing pain in both her hip and left knee since the accident, which had occurred in the previous year (T237).  In concluding that her knee problem had arisen from the accident, he had regard historically to there having been no other (reported) trauma (T238).  Commonly, he said, a person of the plaintiff’s age group may suffer a meniscal tear which remains asymptomatic for some time (T238-239).  Although he would expect that the person may have some symptoms, if significant injury had occurred, that would depend on whether there were other injuries at the time - “one will mask the other” (T239).  Meniscal injuries, he explained, do not normally give problems with straight walking, but are aggravated by twisting, turning or particular activities (T239).  Unless her knee had significantly deteriorated since 7 May 1997, he did not feel that a knee replacement was a “probability” in the near future (T240).

In cross-examination, Mr. Dobson said that, on clinical examination, he had not observed any abnormality in the plaintiff’s right knee (T242).  Addressing the damage to her anterior cruciate ligament, he said,

“that is something that’s not just going to occur and, therefore, it has been unexplained, without a significant injury.  ....  If she had another significant injury in that interim, then yes, I would say there’s a possibility that that caused it” (T248).

In his view, there must have been a significant injury either in the accident or the interim (T248).  Although the plaintiff told him that she had pain in her knee after the accident, he could not explain why, if she had that pain, she did not tell anybody else but, he said, “You see some strange things” (T250).  Mr. Dobson made clear that he was not asserting that ‘the traumatic event’ could only have been the accident; that, he said, was for me to determine.  He did not know what had occurred between 1992 and 1996 (T251-252).

Mr. Darren Waters

In his three medical reports (exhibit P4), Mr. Waters said that,

·.. on examination of the plaintiff’s left knee in November 1997, she had patello-femoral degeneration which ‘would be consistent with a rapid deceleration injury, with the knees impacting the dashboard or being violently rotated’ and he recommended revision arthroscopy;

·.. in September 1998, he performed bilateral knee arthroscopies, with significant pain improvement, but there still persisted some ongoing postero-medial discomfort, especially in the left knee;

·.. in his opinion, the plaintiff will require surgery to her left knee, either an osteochondral graft to the defective medial femoral condyle or a total knee arthroplasty (knee replacement); and

·.. “As she denies having pain in the knee prior to the motor vehicle accident I believe the accident has been the principal cause of her knee pathology.”

In evidence, Mr. Waters explained that he performed the arthroscopy on the plaintiff’s right knee after her complaint, on 5 August 1998, of pain in both knees (T97).  He believed, “that the motor vehicle accident has been a principal determinant in the cause of her pain in the left knee” (T96).  (That was also his view in relation to her right knee problems (T97).)

Upon the history which Mr. Waters obtained from the plaintiff, severe pain was present in her left knee immediately after the accident (T100).  While acknowledging that she had other pain issues to contend with after the accident and that she spoke poor English, Mr. Waters said that, if he had been treating her for a few months following the accident, he “would have been surprised if she hadn’t mentioned the pain in the knee if it were as severe a problem” (T100).  Pain would have been associated with the traumatic event (“a punched-out defect on the medial femoral condyle” (T107)) which had occasioned the knee injury.  He did not know why she had not reported it to her doctor (T103), beyond observing that, “People vary enormously with what they do” (T105).  When then asked, in cross-examination,

“Q.... But if she never mentioned both knees when she first saw the G.P., never mentioned a knee, being the left, until eight months later, that doesn’t make sense in what you would have expected to have seen, does it” (T106),

he replied, “I would have expected for her to have recorded that” (T106).

Mr. Garth Fraser

In his three medical reports (exhibit D1) prepared for the defendant, Mr. Fraser said that,

·.. when he saw the plaintiff in September 1996, she had a significant low back problem due to degenerative changes which were a natural sequel of her spinal fusion and, to a lesser degree, contribution from the accident, her permanent physical impairment being assessed at 30 per cent of function of the low back and lumbar spine, five per cent of which was directly contributed to by the accident;

·.. in September 1996, she did not tell him of any knee problem;

·.. although she did not seek any medical treatment for her left knee until May 1996, that could have resulted from confusion with generalised pain radiating into that area;

·.. diagnostically, the plaintiff has ongoing degenerative arthritis in her left knee (which predated the accident), with the accident probably representing an aggravation by stretching of the anterior-cruciate ligament, a degree of patello-femoral chondral damage and further tearing of a degenerate medial meniscus;

·.. she first had problems with her left knee in 1992 (some medial discomfort not severe enough to merit any invasive treatment) and did not medically complain of that knee until eight months after the accident;

·.. in his opinion (of 29 June 1999),

“it is impossible to state with any degree of certainty whether further meniscal tearing occurred in the motor vehicle accident or not.  The absence of any knee symptoms, such as effusion, pain, locking etc, in the period immediately following the motor vehicle accident would infer that no great damage occurred at that time.  However, in my opinion, it does not follow that the motor vehicle accident had no influence whatever on the plaintiff’s knee.  It does however support the inference that any influence that the motor vehicle accident did have, was minor”;

·.. upon review on 15 June 1998, the plaintiff gave a history of having experienced gradually increasing left knee symptoms, for which no medical relief was sought until eight months after the accident;

·.. in his opinion (of 29 June 1999),

“on the history available, the patient has a gradually progressive degenerative condition in the left knee which may have been aggravated to minor degree by the motor vehicle accident” [which contribution he assessed at 2.5 per cent of function of the left lower limb at or above the knee].

In evidence, Mr. Fraser said that he would put far more weight on the accident having a significant effect, “if there had been some sort of acute signs” (T188).  He continued,

“If one tears a meniscus acutely I would expect an effusion, limp, difficulty walking and complaints at the time ... - in my interpretation, the longer the time between the onset of symptoms and the alleged mechanism of injury then the more remote becomes the link between the two” (T188).

To Mr. Fraser, the most important indicator of a significant degree of damage having occurred in the accident is how soon after the accident were complaints of pain made or noted by the patient (T189).  He felt that some twist or injury at the time of the accident possibly aggravated the knee to some degree, “but there is no way of knowing for sure” (T194).  In his opinion,

“It’s not inconceivable that you can twist a degenerative knee to cause some degree of increased symptoms at a later stage, but the further away that date becomes, then the more tenuous is that connection” (T194).

If the left knee pain were not first experienced until eight months after the accident, to him that was too far away to say that the accident had contributed to the knee problem.  “I would expect signs much earlier in the piece if there had been a significant injury at the time of the motor vehicle accident” (T204).

Findings

In presenting the plaintiff’s case, Mr. Britton accepted that the plaintiff bears the legal responsibility of establishing that she suffered particular loss or injury and that such loss or injury was caused by the defendant’s wrongful act.  With regard to her left knee, there was considerable debate, not as to whether the plaintiff has suffered an injury, but whether that injury was caused by the wrongful act of the defendant in driving his vehicle into the driver’s side of the stationary vehicle in which the plaintiff was a passenger.

Upon review of the evidence here presented, after making allowance for the plaintiff’s linguistic and educational deficit, I found her to be both an inconsistent and unreliable witness.  Although she here said that she experienced left knee pain ‘soon after’ the accident (to Mr. Waters she said that the pain was severe), she did not complain of that pain to Dr. Tsavdaridis for eight months, did not complain of it to Mr. Fraser in September 1996 and did not complain of it to Professor Fraser until 25 October 1996, more than a year after the accident.  I do not accept that she told Dr. Tsavdaridis of that pain before 23 May 1996.  I am not persuaded of the reasons for which she did not previously tell him of the pain (that is, because she was coping, she did not want to lose her job and her back pain was more severe).  Her evidence of having experienced left knee pain ‘soon after’ the accident was also inconsistent with her (unamended) pleading (in paragraph 6) that she began to experience that pain “in the months following the accident”.

While Dr. Tsavdaridis, Mr. Dobson, Mr. Waters and Mr. Fraser opined that the plaintiff’s left knee injury was consistent with having been caused in the accident, their opinions were expressed upon an understanding that the injury was ‘significant’ (Mr. Dobson, T248; Mr. Fraser T204) or ‘acute’ (Mr. Fraser, T188), that ‘severe’ pain was immediately present (Mr. Waters, T100), that complaint would soon have been made to her doctor (Mr. Waters, T100) and that, the longer the delay between complaint and accident, the more remote or tenuous the link between them (Mr. Fraser, T194).  In light of the medical evidence and the belated complaints and inconsistent statements of the plaintiff, I am not satisfied, on balance of probabilities, and am unable to find established that the plaintiff injured her left (or right) knee, either directly or indirectly, in consequence of the accident.  For the plaintiff’s knee injuries, I do not consider that responsibility of the defendant has been established.

With regard to the plaintiff’s lower back injury, upon all the evidence I am satisfied, on balance of probabilities, and find that, in consequence of the accident the plaintiff suffered a minor aggravation of a pre-existing serious back problem.  She sustained a soft tissue injury to her lumbo-sacral spine, with some associated degenerative changes.  Her resultant permanent physical impairment is assessed at five  per cent functional impairment of her lower back and lumbar spine.

In assessment of the plaintiff’s damages, unpaid special damages relating to her back injury were agreed in the amount of $978.05.  With regard to the plaintiff’s non-economic loss, it was not contended that her ability to lead a normal life was not “significantly impaired” by her back injury for a period of at least seven days (Wrongs Act, 1936, section 35A (1)(a)(i)).  Although she returned to work after an absence of two days because of bruising sustained in the accident, during 1996 she was absent from work with back pain for 33 days.  In application of the well-established principles referred to in Percario v Kordysz [1990] 54 SASR 259, at 260, the severity of her non-economic loss is determined as being ‘moderate’. Taking everything before me into account as best I am able, on a scale running from 0 to 60 (section 35A (1)(b)(i)), to the plaintiff’s “total non-economic loss” the numerical value of 8 is assigned. I was told that the “prescribed amount” referred to in section 35A (1)(b)(ii) is $1,450. That amount, when multiplied by the assigned number, results in award of the plaintiff’s damages for “total non-economic loss”, past and future, in the amount of $11,600. In that amount, therefore, her damages for total non-economic loss are assessed.

With regard to past economic loss, after her successful spinal fusion operation in 1989, the plaintiff returned to work as a cleaner in January 1995, nine months before the accident.  She continued in that occupation for about 2½ years after the accident, except for 35 days absence on paid sick leave because of her back in 1995 and 1996, and further absences because of her knees.  She ceased that occupation in April 1998 because of ongoing problems with her knees, not because of any persisting problem with her back.  Upon the evidence, I am not satisfied that the accident injury to her back was a contributing factor in her ceasing work as a cleaner or in her not resuming that occupation.  There is here no evidence that the plaintiff has suffered any past economic loss as a consequence of the back injury which she sustained in the accident.  I am unable to make an award of damages for past economic loss.

Upon the findings which have been made, I do not consider that an award should here be made in respect of future economic loss because no such loss has been established.  In my judgment, the plaintiff’s accident-related injuries have not deprived her of the opportunity to obtain employment which she was previously physically capable of performing.  Because she was able to continue working after the accident, I do not consider that allowance should be made for gratuitous services of her husband.

The plaintiff’s damages are assessed as follows:

Special damages  $978.05

Non-economic loss   $11,600.00

$12,578.05

Judgment will be entered for the plaintiff against the defendant in the amount of $12,578.05.  Upon costs, counsel shall be heard.