| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : SHERAR -v- NICOLI [2003] WADC 6 CORAM : NISBET DCJ HEARD : 3-5 DECEMBER 2002 DELIVERED : 17 JANUARY 2003 FILE NO/S : CIV 1794 of 2000 BETWEEN : JOANNE SHERAR Plaintiff
AND
GLORIA MARIE NICOLI
Defendant
Catchwords: Damages - Assessment - Personal injuries - Whiplash from minor collision - Turns on own facts
Legislation: Motor Vehicle (Third Party Insurance) Act 1943
Result: Award of $32,973
(Page 2)
Representation:
Counsel:
Plaintiff : Mr T N Cullity
Defendant : Mr J R Brooksby
Solicitors:
Plaintiff : Trewin Norman & Co
Defendant : Greenland Brooksby
Case(s) referred to in judgment(s):
Purkess v Crittenden (1965) 114 CLR 164
Savini v Australian Terazzo and Concrete Co Pty Ltd [1959] VR 811
Watts v Rake (1960) 108 CLR 158
Western Australia v Watson [1990] WAR 248
Case(s) also cited:
Nil
(Page 3)
Accident 1 The plaintiff claims damages for personal injuries she claims to have sustained as the result of a very minor motor vehicle accident which took place on 20 November 1998. The plaintiff says that on that day she was on her way to work and was stationary at the Stop sign facing her in Boyare Avenue at its T-junction intersection with Mirrabooka Avenue. There are two lanes in each direction in Boyare Avenue at this intersection and the plaintiff had a truck alongside her to her right and says that she had eased the car forward to see past the truck and was bent over her steering wheel peering down the road to her right when the defendant ran into the rear of her vehicle. Her car was not pushed forward in the roadway at all, merely rocking on its suspension. She got out of the car and saw that the right hand front side of the defendant's car and its bumper bar and front right headlight were all damaged and "pushed in". The plaintiff's vehicle sustained a scratch to the tow bar and a dent underneath it. She said that she was not "fussed" about the damage to her vehicle and didn't bother to get it repaired. She exchanged the usual information with the defendant and went to work. She said that she was all right when she first started her job that day but when it came time for her to do some typing she ran off and was sick. As I understood her evidence she completed her day's work however and did not present herself to a doctor until after work that day when she went to a practice which she described as being "just down the road" from her house, because she thought she would not be able to see her normal doctor, Dr Oehlers, whom she said was "very hard to get in to see." In any event she saw Dr Sacoor at the Mirrabooka Village Medical Centre and complained to him of pain at the base of her skull across her right shoulder and down her right arm. And, some days later, she experienced a pins and needles sensation in the fingers of her right hand. Dr Sacoor asked her to go to Joondalup Health Campus and have some x-rays but after waiting three hours she said she was too upset to stay any longer and went home without having the x-rays taken. (I note that in one of the medical reports the doctor has recorded that she waited two hours.)
Aftermath 2 The plaintiff continued to attend at the Mirrabooka Village Medical Centre on regular occasions after the accident. She was seen on four occasions between 20 November 1998 and December 1998 by Drs Sacoor
(Page 4)
and Low and on 12 January 1999 by Dr Michael Ling. During this period the plaintiff was prescribed physiotherapy and Feldene. The plaintiff complained of some difficulties at work, telling Dr Ling that there were occasional days when she was totally incapacitated for her usual work but otherwise she was fit for her usual duty of data entry. In this same month however the plaintiff's physiotherapist, whose name she said she could not recall, told her that her employment was aggravating her problems in consequence of which she said that she asked her supervisor at Workcover for part time work and was told that it was not available. On reporting this to her physiotherapist she testified that he told her that she had to think about whether to continue in her employment or getting herself better. In the end result, without discussing it with any of her doctors and without seeking any modification of her duties at Workcover she simply resigned and her resignation was accepted. Having resigned from her employment she then changed doctors and went to see Dr Oehlers for the first time on 18 February 1999. Dr Oehlers saw the plaintiff 12 times between 18 February and 14 July 1999. The plaintiff complained during this time of headaches, neck pain, paraesthesia and discomfort over her right scapula and right upper arm, constipation and depression. The plaintiff told Dr Oehlers that she had had x-rays taken which were normal and had been seeing a physiotherapist who was of no benefit to her. Whether she was referred by Dr Oehlers or not is not clear to me, however certainly during this period the plaintiff was seeing a psychologist, Ms Val Kostic, who was counselling her with respect to pain management. By way of further treatment she was taking medication and sleeping tablets. Dr Oehlers referred her to Dr Kyi for acupuncture and arranged for her to be examined by way of a CT-scan which did not reveal any injury. 3 Additionally, the plaintiff gave evidence that she began suffering from panic attacks. She described crying in her solicitor's office in consequence of which he sent her to Ms Kostic where she had a panic attack in her office in the reception area. Ms Kostic's report suggests that the chronology of these events is a little different in that she had already been seeing the plaintiff at the time of the panic attack in her waiting room. 4 In May of 1999 the plaintiff was also reviewed by two specialists, one at the request of her solicitor and the other at the request of the defendant's insurer. Her solicitor sent her to see Mr Peter Watson, a neurosurgeon, to whom the plaintiff complained of cervical spine pain in the muscles on the left and right of the neck which pain was associated with headache, likewise worse on the right. She complained of
(Page 5)
intermittent pins and needles in the right arm telling Mr Watson however that "this has settled". Mr Watson could find no objective evidence of any injury. The defendant's insurer asked the plaintiff to see Mr Cameron Thrum, an orthopaedic surgeon, who likewise was unable to find any objective signs of any injury. Neither Mr Watson nor Mr Thrum provided any treatment. 5 As the plaintiff said that her symptoms were continuing, Dr Oehlers referred her to a neurologist in January 2000, namely Dr Ross Goodheart. Dr Goodheart performed electrophysiological studies on the plaintiff and whilst he detected evidence of a mild median nerve compression at the right wrist (which is known as carpal tunnel syndrome) there was no definite evidence of nerve root irritation in the neck. He ordered a cervical MRI scan which noted mild disc degeneration at C5/6 but no evidence of nerve root impingement. Dr Goodheart did not recommend any treatment nor provide any. 6 Next in the sequence of medical practitioners was Dr John Rosenthal, to whom the plaintiff was referred by the defendant's solicitors. Dr Rosenthal is a rehabilitation specialist who could find no evidence of any injury in the plaintiff than a mild to moderate degree of soft tissue cervical strain. He did not offer any treatment save to advise that she "exit the medico-legal situation as soon as possible". 7 In November 2000 the plaintiff's solicitor referred her to a psychiatrist, Dr Dennis Tannenbaum. Dr Tannenbaum diagnosed depression and recommended an increase in the dosage of anti-depressants. In February 2001 the plaintiff's solicitor referred her to Dr John Ker a rehabilitation specialist. Dr Ker likewise could find no objective evidence of any injury in the plaintiff save for her lower back which he thought of more concern than any of her other complaints. The plaintiff does not complain that her lower back symptomatology has anything to do with this accident. By the time of Dr Ker's first review of the plaintiff she was complaining of intermittent headache, pain in her neck with movement restriction, and radiation of pain into her shoulders with the presence of paraesthesia in her right arm. 8 The defendant referred the plaintiff to a psychiatrist, Dr Zelko Mustac and she saw him in May 2001. The plaintiff complained to Dr Mustac of right sided cervical headaches and a pins and needles sensation in her right arm extending all the way down to the three middle fingers of her right hand. She also complained of continuing panic attacks and disturbed sleep.
(Page 6)
9 The defendant also referred the plaintiff to Dr Michael Bowles, a rehabilitation specialist, whom the plaintiff first saw in March 2002, to an orthopaedic specialist, Mr Ratan Edibam, whom she first saw in May 2002 and finally to Dr Peter Silbert a neurologist, whom she saw in June 2002. To Dr Bowles in March 2002 the plaintiff complained of headaches which occurred about once a week having reduced from daily headaches over a two year period. She also described a burning sensation in her upper neck, stiffness in the neck and occasional neck ache. Dr Bowles could find no objective evidence of any injury and did not recommend any treatment.
10 Mr Edibam examined the plaintiff and likewise could find no objective evidence of any injury and did not recommend any treatment. Finally, Dr Peter Silbert who examined the plaintiff in June 2002 found no objective evidence of any injury and did not give or recommend any treatment. The plaintiff complained to Dr Silbert of tightness at the top of the neck, a burning sensation across her shoulders and down her right arm and of being woken on average twice a week with the sensation of pins and needles in her right hand. 11 Finally, I should record that a number of the medical practitioners additionally noted the history of depression and its management by her general practitioner and the fact that she was considerably overweight. 12 The plaintiff described having been disconcerted by Dr Mustac's report of 8 May 2001 and took exception to being described as obese, looking old for her age and having been sexually abused when she was younger. She also took exception to Dr Mustac's comment that he thought she was drinking more than she let on and denied as Dr Mustac reported that she was "keen to emphasise how disabled she was". 13 The foregoing then is the history of the plaintiff's presentation to and examination by all of the medical practitioners who have seen her since the accident and a summary of the treatment some have offered her. At trial she described her current symptomatology. She said she had not had any panic attacks recently; that her neck was fine unless she had to be in front of a computer or have to drive for longer than 20 or 30 minutes; that she still experienced "burns" up and down and around her palm and fingers but this was a lot better unless she drove a car without power steering or used a mouse; that headaches were only a problem if she drove too long, (was) at a computer too long or had to sit more than 10 minutes.
(Page 7)
14 Currently she said that she is taking various forms of medication being Endep for her sleep, Panadeine Forte for her pain (which she uses with a heat bag), Celebrex and Voltaren. She no longer takes Digesics.
Medical evidence 15 I turn now to a consideration of the medical evidence in a little more detail. During the course of his opening address counsel for the plaintiff informed me that the plaintiff intended to call seven medical practitioners. I expressed some surprise which turned to dismay when counsel for the defendant told me that he intended to call five medical practitioners, a total of twelve doctors! On the morning of the second day of trial I invited counsel to advise me whether there was any reason why I should not restrict each of them to calling three medical witnesses. The parties asked for time to digest this suggestion (given by me pursuant to my powers under O 36A r 5). Counsel for the plaintiff said that one of his doctors would be Dr Oehlers and as he was to be the next witness for the plaintiff in any event he proceeded to call Dr Oehlers and at the conclusion of his evidence counsel sought a brief adjournment to enable them to decide which of their doctors they would call. In the end result each of the parties decided to call no further medical evidence and simply to proceed on the basis of a tender of all of the medical reports into evidence for my consideration. Important to the proper disposition of the plaintiff's claim, evidence of her pre-accident medical history came into evidence by consent in the form of the notes of the plaintiff's attendances upon doctors at the Mirrabooka Village Medical Centre (Exhibit D1). These contain the following references: "1 March 1992: Bulimia on occasions since December especially when working at school canteen once a fortnight. Depressed at times and socially isolated … Chronic constipation. Bowels not opened for several days. Discussion re emotional state, social isolation, interests, …(?) etc. See 1/52. 10 April 1992: Long discussion re sexual abuse as a child. ? September 1992: … Fatigue, no energy, no motivation. Thinks most of ? may be due to being overweight and stress. 14 September 1992: All tests negative. Personal stress at moment. ?? Stress from father's abuse as a child.
(Page 8)
26 May 1993: Feeling low/depressed over last 12/12. Now studying full time (human services) but feels can't handle it. Plus having trouble with teenage daughter – 14 y.o. Is a single mum with associated stresses plus son aged 13. Previously been on anti-depressants but stopped Aropax 3/12 ago. Was seeing counsellor ? as previously been suicidal, not presently. Found Aropax made her sleepy, previously had Aurorix and Prothiaden. Weight loss 10 – 12 kilogram with trying (over last 5/12). Over recent months has been vomiting after meals after 2 – 3 x per day. A) Depression. B?) Discussion re stresses. Starter pack Zoloft 50 mg by 7 plus script for repeat. Referral Mirrabooka Clinic for counselling. 29 June 1998: (1) … (2) Stress – daughter refusing school. ?? 18 November 1998: Stressed presently re 15 year old daughter has moved out to live with friend. ?? Seeing daughter tonight." 16 There then follows the notes of the plaintiff's attendance on the day of her motor vehicle accident on 20 November 1998 the relevant parts of which I have described previously. In my opinion the notes quoted above disclose that the plaintiff had a long pre-existing history of depression and anxiety and had previous difficulties with constipation. 17 During the course of her evidence the plaintiff confirmed that she had been sexually abused as a child (by her father) but said that she had dealt with it herself and she saw no relationship between this (obviously distressing) event and the effects of her motor vehicle accident. With regard to depression pre-accident the plaintiff said that she did have depression before the accident a few times brought about she said by working full time, trying to raise two children by herself and committing herself to their activities such as being the manager of their soccer team. She described herself as being continually tired both physically and emotionally but denied ever having been diagnosed with any eating disorder, let alone bulimia and denied any thoughts of self harm. These are important matters for me to record for a number of reasons. Firstly
(Page 9)
Dr Oehlers (whom she described as her regular general practitioner) said that he was unaware that the plaintiff had been seeing another medical practice for treatment for depression although he went on to say that it did not surprise him, from which I inferred that Dr Oehlers thought the plaintiff's depression long standing. This is somewhat at odds with the history she gave to Dr Tannenbaum who recorded that: "There is a previous history of depression, which seems to have been relatively mild and readily treated with counselling. She has been previously prescribed an anti-depressant, which she chose not to take." Further, the plaintiff reported no prior history of depression to Ms Kostic: "Ms Sherar states that she has no premorbid psychiatric or psychological history." It is difficult to say, but it would appear from Dr Mustac's reports that the plaintiff did not give him her history of prior treatment for depression either. It seems this only came out at second interview after Dr Mustac had been provided with a copy of the notes from the Mirrabooka Village Medical Centre (Exhibit D1). 18 There is another matter which suggests caution before concluding that the plaintiff has been an accurate reporter of her history to the various medical practitioners she has seen and that concerns her relationship with her daughter. Dr Tannenbaum concluded that her daughter's leaving home "… appears to have been precipitated directly by the accident". Ms Kostic's first report concluded that the plaintiff's problems "… both with her daughter and other interpersonal issues are the direct result of her depressed mood and increased irritability which are mood changes in response to her pain following the motor vehicle accident and her reduced mobility which has, as a consequence, caused her to cease work." This conclusion was repeated in Ms Kostic's second report. Further, the plaintiff appears to have maintained this position with Dr Mustac although by the time of his second consultation with the plaintiff he had access to the notes Exhibit D1 in consequence of which Dr Mustac noted the difference between the plaintiff's contentions and the history given to previous medical practitioners. Again the plaintiff presented this picture to Dr Rosenthal who noted on the occasion of his first consultation with the plaintiff: "She said her daughter had moved out after the motor vehicle accident as she had difficulty seeing her mother in pain." 19 When cross-examined about this issue the plaintiff maintained that her daughter left before she gave up work, not long after her accident because her daughter, she said, couldn't bear to see her in pain although she added, "We had other little issues and that as well".
(Page 10)
20 The note of the Mirrabooka Village Medical Centre of 18 November 1998 (Exhibit D1) was put to the plaintiff in respect of this issue and the following exchange took place:
"But you see your daughter moved out on 18 November, didn't she? --- I can't recall exactly when she moved out, no. But it was before the accident wasn't it? --- No, it wasn't. Look at those entries (refers) --- I can't even recall exactly what date that she moved out but obviously it says…" 21 Next, it is as well to record that whilst the plaintiff makes no claim in respect of any injury to her lower back arising out of this accident, Dr Ker was of the opinion that it was the most significant part of her presentation to him. In his last report he wrote: "I would expect that, in the foreseeable future, in your client's cervical spine, pain and mobility would remain under quite reasonable control. I believe her persisting low back and left leg symptoms and her discogenic pathology that has been documented in the lumbar spine, is rather of more concern. Hopefully, with the maintenance of a physical treatment regime and pool therapy, this lady will be able to have improved control of her back pain and leg pain." 22 Next, whilst the plaintiff claims to have put on over 20 kilograms since the accident and, I think, attributes her current weight problems to the accident, I would suggest that the evidence is that she has always struggled with her weight. And her efforts at weight loss certainly caused one of her doctors to make a note (at the very least) that she was bulimic. In her evidence before me she said that she had put on 22 kilograms since the accident, 14 of which she had put on since November 2001 because she cannot be as active as she was before the accident. But in February 2001 she told Dr Ker that she had put on 20 kilograms since the accident and in May 2001 she said the same thing to Dr Mustac claiming additionally that she was watching her diet and exercising and had lost five kilograms. She was upset with Dr Mustac for describing her as obese notwithstanding its accuracy, probably because other doctors used less precise terminology such as "overweight".1 Clearly, the plaintiff is markedly overweight and has been for some time before the accident. (Notes in Exhibit D1 for September 1992 and May 1998 refer.) In ____________________
1 Obesity: an increase in body weight beyond the limitation of skeleton and physical requirement, as the result of an excessive accumulation of fat in the body.
(Page 11)
summary therefore the medical evidence discloses that before the accidentthe plaintiff had great difficulty controlling her weight, was clinically depressed and suffering from a low back complaint.
Other witnesses 23 In addition to the medical evidence the plaintiff called her mother and brother to support her claim. Generally speaking it can be fairly said that the evidence of the plaintiff's mother and brother was sympathetic to and supportive of the plaintiff but with a couple of exceptions, it lacked particularity. It can be summed up by the evidence of the plaintiff's mother at transcript p 87 when she was asked, "What was it that you noticed about her?" and she replied, "It's hard to describe really. She just changed in herself and – yes, it's just hard to describe". 24 Mrs Sherar Sr went on to say that she thought that whilst the plaintiff used to complain a lot about pain but thought that "… she has learnt to manage it". 25 Finally, it should be noted that the plaintiff's mother was unaware that the plaintiff had been suffering from and treated for depression. 26 The plaintiff's brother said that he became aware that the plaintiff was having panic attacks after her motor vehicle accident and that occasionally he would call in to see his sister when he would find that she was still in bed but he did say that over the last year "she has been a lot better".
Pleadings 27 The mechanism of the motor vehicle accident was such that in my opinion any injury to the plaintiff was of the soft tissue type only there being no evidence of any other type of injury at all. The great majority of the medical practitioners who examined the plaintiff with a view to assessing her physical state (as opposed to her mental state) expressed the opinion that soft tissue injuries typically get better, not worse. Furthermore most, with the exception of Dr Oehlers, expressed the view that the plaintiff would be able to return to employment, some saying that she could return to her pre-accident employment on a full time basis others preferring the view that she should look to other forms of occupation and, initially at least anyway, part time employment in the order of 20 hours per week.
(Page 12)
28 In her statement of claim the plaintiff pleaded that she suffered from headaches, numbness in the right ear, pain at the base of the skull, pain in the neck, a central disc protrusion at C5/6 producing indentation of the cal sac, soft tissue injury to the cervical spine, tenderness and restricted mobility at C6/7, pain and paraesthesia to the right shoulder, pins and needles and tingling to the right arm, pins and needles to the right hand, nausea, depression, anxiety, constipation and disturbed sleep. Of those complaints the plaintiff pleaded that the following were continuing and permanent: headaches, pain to the base of the skull, numbness in the right ear, pain and restricted mobility to the neck, pain to the shoulders, pain and paraesthesia to the right arm, numbness to the right hand, anxiety, depression and disturbed sleep.
Findings 29 I observed the plaintiff closely when she was in the witness box. She seemed to me to be a pleasant person, obviously carrying far too much weight for her own good. She has had a difficult life. She suffered sexual abuse at the hands of her father which she had to endure all over again when she discovered that her father was abusing her daughter at about the same age as she had been abused. These are issues which excite sympathy and compassion and I am not at all unmindful of how difficult it must have been for the plaintiff to endure them. One cannot sit in this Court in its criminal jurisdiction as often as one does these days, presiding over trials involving the sexual abuse of children, and sentencing those convicted of these offences, without being very much alive to their social consequences. Nevertheless I accept that the plaintiff had as she deposed put this issue behind her having resolved it in her own mind and having brought any interference with her daughter to an end. Further one must imagine the stresses and strains that go with being a single parent on a limited income in a consumer oriented society with no male influence to assist in the bringing up of the children on a day-to-day basis. This too would be very difficult. Notwithstanding all of this, the plaintiff appeared before me as a person prone to exaggeration. Whilst counsel for the defendant urged upon me that she was a deliberate exaggerator in the sense that she was deliberately exaggerating for profit, this was not my impression. Rather I think she exaggerated by reason of a predisposition of personality to blame her myriad difficulties on the accident notwithstanding that when faced with objective evidence of the fact that her difficulties pre-dated the accident, she was prepared to acknowledge them as having existed previously but still insisted on maintaining that all of her woes were accident related. The example of her daughter is a case
(Page 13)
in point. Clearly she and her daughter were having grave problems before the accident such that her daughter left home. How she could then turn around and blame her daughter's subsequent departure from the home on the accident defies common sense. The causal connection is simply not there. The same applies to her depression. 30 As to any suggestion that she presently continues to endure the symptoms she described, my observations are such that they certainly were not present during the course of a fairly long day when she gave evidence in the witness box for over three hours, when she had testified that she couldn't sit for longer than 10 minutes. She sat in the witness box without any apparent discomfort. Perhaps she had taken some medication, I don't know. Asked specifically by her counsel how she was feeling she said "I've got burning down my arm and I've got just a tightness. It's not really severe but it's just starting there." But I couldn't detect any discomfort. She looked fine to me. 31 In my opinion the plaintiff has exaggerated her symptoms almost from the beginning. I think her first treating doctors had it right in their assessment of her condition and I think it is open to me to infer from the evidence that she changed the management of her condition to Dr Oehlers with a view to finding more support for her claim. There seems no other reasonable explanation. She had consistently gone to the doctors at the Mirrabooka Village Medical Centre for many years before the accident. At the same time she was seeing Dr Oehlers from time to time. Why she should move the management of this condition, whatever it was, from one to the other is not properly explained by her evidence that Dr Oehlers was her regular doctor. I should make it plain that I am not either expressing. or accepting any criticism of Dr Oehlers. Far from it. In my opinion he did the best he could with a patient giving the history that she was giving to him. In my opinion given the mechanics of the accident, its exceptionally minor nature, the lack of any objective medical evidence to support anything other than a soft tissue injury to the cervical spine, the opinion of Dr Ling's expressed in his report of 21 January 1999 remains the most accurate. He there wrote:
(Page 14)
3. It appears that there may be occasional days when she is totally incapacitated for her usual work. Otherwise, she is fit for her usual duty, which is data entry. 4. The anticipated period of partial incapacity is between three to six months. 5. There is a low likelihood of any permanent disability. 6. The above injury is not an aggravation of pre-existing injuries. 7. I consider this claim capable of finalisation within 3 – 6 months. 8. She is currently attending physiotherapy twice weekly under Mr Des Bushell at Mirrabooka Physiotherapy Clinic. 32 In my opinion this diagnosis and prognosis is supported by the great majority of medical opinion expressed in this case. In particular it is supported by Mr Watson save that he thought her symptoms would take 12 to 18 months to resolve stating additionally in his report of 23 January 2002: "I see little evidence on her ongoing examination today to suggest any major limitations or complications in the future." It is further supported by Mr Thrum save that he too thought that there should be perhaps 12 to 18 months before settlement of the claim and that he thought there was a minor residual permanent disability as being in the order of 10 per cent of the function of the cervical spine. The opinion is supported by Dr Goodheart who observed that the natural history of soft tissue injury is towards improvement. From a mental state point of view the opinion is supported by Dr Tannenbaum who wrote that: "… From a depression perspective … in general depression can be well dealt with and to a sufficient level to enjoy a fruitful and active life." Later, it should be noted, Dr Tannenbaum did not support that part of the original prognosis which suggested the plaintiff should return to work because at one time he thought she was only capable of 15 hours per week but later revised that upwards to 20 hours a week. The opinion is further supported by Dr Ker
(Page 15)
and it is supported by each of Drs Rosenthal, Mustac, Bowles, Edibam and Silbert. 33 In the end result it seems to me that the preponderance of evidence favours the view that the plaintiff sustained a mild soft tissue injury which caused her difficulties for a period of about six months and that thereafter her subjective complaints were exaggerations of her symptomatology such that it could be confidently said in my opinion that 12 months after the accident she should have been in a position to return to full time employment.
Economic loss 34 At the time of her accident the plaintiff was employed by Workcover as an information officer and it appears to be common ground between the parties that her then net income was $450.00 per week. The plaintiff has put forward a claim on the basis that she was completely unfit for work from the date that she resigned her employment on 4 February 1999 through until on or about 30 June 2001 where after she was capable of working 20 hours a week. The plaintiff then claims that she will continue with a partial incapacity for a further 18 months until she is sufficiently recovered to again return to full-time employment. 35 In my opinion this is an exaggerated claim. As I have already found, the plaintiff sustained a mild soft tissue injury which of itself caused her problems for a period of only about 6 months where after they would have gradually dissipated until 12 months after the accident when she would have been in a position to return to full-time employment.
Causation 36 For the sake of completeness I should say a word or two about causation. The plaintiff submitted that in essence the defendant's defence was that if any of the plaintiff's symptomatology which continued after the accident arose from pre-existing conditions and to the extent that it did, then the onus was on the defendant to disentangle the causally related symptomatology from the non-causally related symptomatology, citing Watts v Rake (1960) 108 CLR 158. Certainly the defendant pleaded that the plaintiff's symptoms were occasioned by pre-existing symptomatic conditions sustained in a previous motor vehicle accident, a lower back problem and a history of depression. The principle is correctly stated. It travels through that line of authority commencing with Savini v Australian Terazzo and Concrete Co Pty Ltd [1959] VR 811; Watts v
(Page 16)
Rake (supra);Purkess v Crittenden (1965) 114 CLR 164 and Western Australia v Watson [1990] WAR 248 especially at 310 – 313. 37 The principle is, to use the words from Purkess v Crittenden at 168: "… where a plaintiff has, by direct or circumstantial evidence, made out a prima facie case that incapacity has resulted from the defendant's negligence, the onus of adducing evidence that his incapacity is wholly or partly the result of some pre-existing condition or that incapacity, either total or partial, would, in any event, have resulted from a pre-existing condition, rests upon the defendant." 38 What Western Australia v Watson explained was that this evidence may be obtained in the plaintiff's case (at 312): "Likewise in the present case it was for the appellant to do the disentangling and to quantify the extent of the respondent's disability caused by each of the concurrent conditions. This could be done by either evidence led in chief or elicited in cross-examination. ..." 39 It seems to me that, consistent with my earlier findings, the plaintiff has established a prima facie case of damage arising out of the defendant's negligence, albeit relatively minor damage. The defendant has submitted that if the plaintiff has any presently subsisting injury or incapacity for employment (which she denies) this has been materially contributed to by causally independent events and accordingly she carries the burden of disentangling them. This the defendant did by cross-examining the plaintiff, examining the plaintiff's medical evidence, and by adducing medical evidence of her own, demonstrating the pre-existing symptomatic conditions I have previously described. In my opinion the defendant has demonstrated that the plaintiff had pre-existing symptoms and that all that might be attributed to the defendant's negligence are relatively minor symptoms to the neck being headache and minor restriction on movement for a relatively brief time, and perhaps some altered sensation down the right arm. It is precisely because the defendant has succeeded in discharging the burden of disentanglement upon her to the extent that she has that I have reached my opinion about such of the plaintiff's symptoms and their duration as I have expressed previously.
(Page 17)
Conclusions
40 The provisions of section 3C of the Motor Vehicle (Third Party Insurance) Act 1943 apply to this claim and in accordance with s 3C(2) of that Act in my opinion the proportion which this claim bears to the maximum amount that may be awarded in a most extreme case is 7½ per cent. Amount (A) under s 3C is presently $240,000 and the deductible amount (B) is $12,000. 7½ per cent of $240,000 is $18,000 and after deducting amount (B), $12,000, the award for the plaintiff for non-pecuniary loss is the sum of $6,000.00. 41 In so far as economic loss is concerned the plaintiff should have been back to full-time employment by November 1999. In reality in my opinion she should have returned to at least part-time employment within some little time at least before that date, but acknowledging that once a person has left employment, in a time where there is not full employment it may take some time to re-enter the work force, it seems to me that an allowance of 52 weeks at $450.00 a week should be made. This equals $23,400. The plaintiff claimed interest on this amount at 4 per cent, however I think the appropriate rate is 3 per cent per annum for the year in which the loss was being accumulated and 4 per cent per annum thereafter. This calculates out as follows: 42 There was a claim too for future medical treatment however whatever the plaintiff's need for continuing medical treatment it does not in my opinion arise out of the accident and accordingly the claim for future medical expenses is refused. 43 With regard to other items of special damage the parties had agreed and they had been paid save for $81 of outstanding medical expenses and there will be an award to include that sum.
Summary General damages $6,000.00 Economic loss $23,400.00 Interest $3,492.00 Special damages $81.00 $32,793.00
|