Silvestro v Vaccaro - [2000] WADC 326

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: SILVESTRO -v- VACCARO [2000] WADC 326

CORAM: COMMISSIONER GREAVES

HEARD: 16-18 & 23 OCTOBER 2000

DELIVERED : 15 DECEMBER 2000

FILE NO/S: CIV 2972 of 1999

BETWEEN: CARMELA SILVESTRO
Plaintiff
AND
SALVATORE VACCARO
Defendant

Catchwords:

Damages - Personal injuries - Acute strain injury to cervical and lower lumbar spine - Depression - Prior soft tissue injury to cervical spine - General damages $11,500 - Past and future loss of earning capacity $10,000 - Turns on its own facts

Legislation:

Nil

Result:

Judgment for the plaintiff

Representation:

Counsel:

Plaintiff: Mr T N Cullity
Defendant: Mr B E Lawrence

Solicitors:

Plaintiff: Trewin Norman & Co
Defendant: Lawrence & Howell

Case(s) referred to in judgment(s):

Graham v Baker (1961) 106 CLR 340
Southgate v Waterford 21 NSWLR 427
Wylde v Aristondo 'Ariazza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997

Case(s) also cited:

Nil

COMMISSIONER GREAVES: This is an assessment of damages for injury and loss which the plaintiff sustained when the defendant collided with the motor vehicle which she was driving at the intersection of Crimea Street and Walter Road, Morley on 13 July 1998. The defendant has admitted liability but denies that the plaintiff is entitled to the relief claimed.
It is common cause in this case that on 14 September 1995 the plaintiff tripped and fell on carpet at the Noranda Square Shopping Centre. She sustained injuries which I shall describe shortly. The existence of those pre‑existing injuries in this case is not in issue, although the nature and extent of those injuries will be relevant in this case in the assessment of damages for the injury and loss which the plaintiff sustained in the motor vehicle accident on 13 July 1998.
The plaintiff was 41 years old at the time of the hearing, having been born on 24 November 1958. Following her fall on 14 September 1995, the plaintiff consulted Dr Ralph Mendelsohn. His report of 6 January 1996 records that he saw the plaintiff on 14 September 1995 at which time he diagnosed soft tissue injury to the right shoulder and right lateral neck and right C7 radiculopathy. Dr Mendelsohn expressed the opinion that the condition was caused by the jarring of the fall and was likely to continue to limit work capacity for a period of a few months, and was likely to resolve without permanent sequelae. The plaintiff's solicitors referred her to Dr John Quintner for an opinion. He examined her on 22 January 1996. By his report of 4 April 1996, he recorded:
"Cervical spinal radiology revealed some narrowing of the C5/6 intervertebral disc space with osteophytic encroachment upon the spinal canal and foramina, as well as limitation of range of flexion and extension of the cervical spine. CT scan confirmed the moderate degree of disc degeneration at C5/6 with minor posterior spurring on the right and minimal foraminal narrowing. Electrodiagnostic testing performed by Dr Peter Silbert on 23 January 1996 revealed findings consistent with a chronic right C6 or C7 radiculopathy. The underlying cause of your client's ongoing right cervicobrachial pain syndrome is a right C6 radiculopathy. The type of pain from which she is suffering is known as neuropathic pain (ie, pain due to dysfunction within the nervous system). Your client's injuries and symptoms are as the result of the fall on 14 September 1995.
… As it is now over six months since your client's injury occurred, her future prognosis must be somewhat guarded. Unfortunately pain of neuropathic type can be intractable, severe and unresponsive to treatment. I'm optimistic that there will be a slow reduction in your client's pain over the next 6 to 12 months."
In cross‑examination Dr Mendelsohn expressed the opinion that the degeneration at the C5‑6 level may have protracted recovery but he accepted that the span of almost three years between the fall and the motor vehicle accident "is quite a long time for the symptoms to be unabated." He also acknowledged his consultation note of 4 June 1998 recording the plaintiff's complaint of pain radiating into the lumbar sacral spine. He acknowledged that this complaint occurred immediately preceding the motor vehicle accident and was the first such complaint. He observed, however, that the plaintiff made no complaint of lower limb symptoms at that time. Dr Quintner's reports of 30 July 1996, 12 May 1997, 25 November 1997 and 10 May 1998 provide a comprehensive record of the progress of the injuries sustained in the 1995 fall. She consulted him almost monthly during 1996, continuing to complain of pain in the right cervical aspect of her right neck, the right scapula, right shoulder, right elbow, right wrist and fingers 2 and 3. By 25 November 1997, Dr Mendelsohn reported to the plaintiff's solicitors that the plaintiff continued to be markedly symptomatic subsequent and due to her fall.
Dr Mendelsohn expressed the opinion that while the plaintiff complained of pain radiating into the lumbosacral spine on 4 June 1998 shortly prior to the motor vehicle accident, she experienced no symptoms in her lower limbs prior to the motor vehicle accident, which suggested to him that her lumbosacral symptoms were consequent upon the motor vehicle accident.
Following the motor vehicle accident on 13 July 1998, the plaintiff saw Dr Mendelsohn on 15 July 1998. By his report of 24 September 1998, Dr Mendelsohn advised the plaintiff's solicitors in part as follows:
"The patient in the accident under discussion appears to have suffered soft tissue lumbosacral injury with exacerbation of pre‑existing cervical injury and worsening by virtue of increased area involved."
Following examination on 20 July 1998, Dr Mendelsohn said the plaintiff complained of lower back pain and right subcostal pain with associated tenderness. He continued:
"Examination revealed a right loin muscular tenderness; left truncal rotation produced right abdominal pulling discomfort; right rotation produced right L3 central pain. Neck ache was described as severe, similar to previously, but intense. The shoulder, which had ached prior to the current accident of the 13th of July, 1998 continued to ache. The patient described approximately three hours of pain relief with Panadeine Forte, but this latter treatment had produced constipation and was changed to digesics, two tablets to be taken three times a day. The patient stated in addition since the accident under discussion she tended to panic when in a motor vehicle. The patient was reviewed most recently on 27th of July, 1998 at which time she complained of being very stiff from the waist up. She stated that her shoulders were stiff, the trapezii felt stiff, as did her neck. She complained of a right facial sensation of puffiness and poor sleep. Symptoms were eased with analgesics and the patient consumed six per day. Suboccipital pressure produced retro‑orbital pain and the patient was very tender along the thoracic spinous processes and paravertebral musculature. Nuchal pressure produced otalgia. The tympanic membrane had been previously examined on the 20th of July, 1998 and found to be normal. The patient stated that she had only worked two half days since the accident. On the 20th August, 1998 the patient complained of lumbosacral pain experiencing no relief with physiotherapy, and right subcostal pain. The patient stated that when she rose from sitting she tended to walk with her back in flexion due to pain for the first few steps; this has been a new development since the accident of 13th of July, 1998. The patient complained of severe left lateral neck ache also a development since the motor vehicle accident on the 13th of July, 1998 and the right nuchal pain continued. Back flexion produced back ache and shoulder ache, flexion being possible so that the tips of her fingers reached the distal 1/3 of the tibia. The patient experiences a right thoracic pain with left back rotation in extension; right back rotation in extension produced lumbosacral and right thoracic pain. The patient was tender over the L2-L5 spinous processes."
Dr Mendelsohn reviewed the plaintiff again on 21 October 1998. By his report of 13 February 2000, he advised the plaintiff's solicitors in part as follows:
"The patient complained of bilateral nuchal pain and lumbosacral pain with pain in the right hip when she was reviewed on the 21st October, 1998. She stated that she suffered from dizziness with neck rotation. She was working approximately two hours a day as a hairdresser and with Mersyndol was afforded 30% improvement in symptoms. She complained of constant headaches. But the patient stated that she felt that her neck pain was far more severe following the second motor vehicle accident ie, that which occurred on the 13th July 1998 and that prior to the second motor vehicle accident pain would radiate to the scapula area only. The patient stated that prior to the second motor vehicle accident of the 13th of July, 1998 she had not suffered from lower back pain. She stated that thumping headaches continued and she was afforded the most relief with Digesic but this produced palpitations. She stated that she took Mersyndol six ‑ eight tablets per day.
The patient was reviewed on the 26th of November 1998 at which time she stated that her back was painful. She complained of pain when she sat or laid down and complained of a feeling of weakness. Despite Panamax and Digesic she suffered lumbosacral pain radiating to the sacrococcygeal area. She stated that the analgesics did remove approximately 50% of the pain albeit it temporarily. She was prescribed Ducene to take at night.
On the 14th of January, 1999 the patient was reviewed complaining of lower back pain, bilateral nuchal ache and a sensation of confusion in her head. Headaches were experienced bitemporally. She stated that she was only working three mornings per week. Left neck rotation was limited to 75 degrees this producing a right lateral nuchal pulling sensation, right neck rotation was limited 80 degrees this producing bitemporal pulling discomfort.
… On the 22nd of February, 1999 on review the patient described and demonstrated good right neck rotation; left neck rotation was limited to 60 degrees. Back flexion produced a pulling discomfort in the right buttock and posterior right leg extending to involve the plantar surface of the foot. The patient consumed Panamax, Codalgin and Panadeine Forte the latter up to four tablets per day.
The patient stated that she was going to shut her shop and close the doors, as she could no longer manage the hairdressing. The patient was irritable and tearful and had been referred to D Bowyer clinical phycologist (sic). The patient was advised to recommence Cipramil as antidepressant. She had been attending for acupuncture by a Dr Sakalo. It was clear that marital conflict had developed due to the patient's irritability."
The plaintiff was reviewed by Dr Mendelsohn in March, May, June, July and October 1999 when she continued to complain of lower back pain and leg pain present since the motor vehicle accident and of bilateral neck pain.
In cross‑examination Dr Mendelsohn expressed the opinion that perhaps part of the reason why the plaintiff's soft tissue injuries sustained in 1995 followed a protracted course was some underlying degenerative change in her C5‑6 level in her neck. He accepted, however, that her symptoms remained unabated for what he regarded in the circumstances as "quite a long time". He accepted that the plaintiff had not told him of her regular visits to the casino which surprised him a little bit.
He was shown the video taken on 13 May 1999 and accepted that the plaintiff's neck movements would have been more restricted in his surgery than portrayed in the video. He observed that while she remained standing with her back in some degree of flexion, she walked off with what he described as "an antalgic gait". He agreed, nevertheless, that someone in significant pain would avoid such a posture and that her movements appeared normal. He was invited to give his general impression of the plaintiff and observed:
"Well, I think she does have pain. I think she is emotive in her description of it. I'd say looking at that she might feel some obligation to make sure that I noticed that she is in pain and may be that even involves an embellishment with restriction but I still do think that because of certain factors on examining her that she does have pain and she does have some real pain that is there.
…
I'd say that when she walked away from that car, she had that limp, that antalgic gait as she walked away, and it was on the right side and that's where her hard neurological signs are, with that slump testing, so I think that that's really real. I'm surprised about the length of time she can stand with sustained back flexion, neck flexion and her range of movement."
Dr Mendelsohn then went on to express the opinion to which I have already referred that he was inclined to attribute the plaintiff's lumbosacral symptoms to the motor vehicle accident.
The consultant physician in rheumatology, Dr John Quintner, reviewed the plaintiff on 22 January 1996 sometime after her fall. He confirmed that he had no record of the plaintiff experiencing pain in her back or right leg following the fall but prior to the motor vehicle accident. He observed that a CT scan of the lumbar spine revealed some degenerative disc pathology which he considered to be inconclusive in the case of this plaintiff. Dr Quintner was of the opinion that the plaintiff had suffered some form of injury to the lower part of her spinal chord and the nerve roots. In his opinion, this injury had produced a hypersensitivity state in the plaintiff similar to that which she developed after the fall, affecting her neck, shoulder and arm. He was of the opinion that her pain is neuropathic in origin so that the mere presence of degeneration did not have a lot of meaning in her case.
Dr Quintner was cross‑examined about his view of the video material. He expressed the view that in consultation he had recorded that the plaintiff had unimpeded neck and back movement within acceptable limits of normality. He was therefore not surprised to see the range of neck and back movement evident in the video material.
Dr Quintner referred to the evidence of Dr Paul Graziotti who saw the plaintiff on seven occasions after her fall before the motor vehicle accident and in September 2000. At p 2 of his report of 9 May 1997, Dr Graziotti observes:
"Examination at that time revealed diffuse tenderness throughout the right upper quadrant. There was a reasonable range of movement of her cervical spine and no neurological abnormality in her right upper limb. There was some voluntary inhibitions regarding movement and some hesitancy in applying full power through the examination.
I reviewed her x‑rays and CT scan which revealed moderate C5/6 degenerative disc disease with minor posterior spurring on the right and minimal left neural foraminal narrowing. Dr Mendelsohn kindly forwarded a copy of the EMG which Dr Peter Silbert had performed on the 23 January 1996.
His interpretation of the EMG was that it was consistent with a chronic right C6 or C7 radiculopathy. He stated the electrophysiological findings were relatively focal, however, he concluded that this may be seen in upper extremities due to the presence of rootlets prior to the formation of nerve roots. I organised an MRI of this lady's cervical spine which revealed a central disc bulge at C3/4 which was mildly indenting the anterior subarachnoid space but not reaching the anterior cord. There was no foraminal encroachment at that level. There was a slightly more prominent disc bulge at the C5/6 level, more prominent on the right side but again no encroachment on either the cord or the right C6 nerve root foramen. That report was by Dr Fraser."
Dr Graziotti goes on to report that on 17 March 1997 he administered a C6 root sleeve injection and C5/6 facet joint injections under x‑ray. At p 3 of his report, Dr Graziotti continued:
"At the time of injection around the right C6 nerve root there was a positive paraesthesia to provocation. That is her normal symptoms were reproduced by the injection. Similarly whilst injecting the facet joint at C5/6 there was a reproduction of her normal symptoms.
… The cause of the patient's symptoms are not known. The absence of a response to the C6 nerve root injection for even a short period of time would indicate that that nerve root is not implicated in the patient's symptoms. The absence of a response to the facet joint injection performed at the same time, again would indicate that that is not responsible. Although the patient has abnormalities on MRI, x‑rays and EMG related to the C5/6 level these are likely to be old and not contributing to the patient's symptoms given the results of these diagnostic tests."
In the course of his evidence, Dr Graziotti observed that the plaintiff had degenerative changes in the cervical spine at a relatively young age which changes in his opinion are often symptomatic intermittently. He noted in his report of 27 September 2000 that the plaintiff's lumbar spine pain dates from the time of her second accident and is a diffused pain through the lumbo sacral area into the buttocks and down her legs in a variable distribution. He was asked whether the mild disc bulge at L5/S1 has anything to do with those symptoms and replied:
"That's impossible to say because that’s a finding that is quite commonly seen in patients who have symptoms and who don't. I mean the studies have been done in asymptomatic patients and about 80 per cent of them will have a mild disc bulge on MRI findings of mild degeneration – this sort of abnormality and probably sometimes it is significant and sometimes it isn't.
… I find it difficult to implicate those abnormalities in terms of severe disability. I think, as I have said before, a mild disc bulge is not a serious phenomenon. People play AFL football, do any type of job you want with those abnormalities. So again it comes back – it may be associated with some degree of back ache, which back ache is normally aggravated by prolonged standing and prolonged sitting but people, if they have to do and they change position and I would have thought that as a hairdresser there would be a capacity to change position."
In cross-examination, Dr Graziotti expressed the opinion that to some extent the plaintiff was probably exhibiting pain behaviour that she was actually suffering from and that in his opinion the plaintiff was not deliberately intending to deceive him. He was of the opinion that her pain behaviour was as much related to a desire to demonstrate to him that she had a real problem. He observed that during examination of the plaintiff there were gross inconsistencies between that and her movement around the rest of the room and during the rest of the consultation. The video material confirmed his opinion. He considered the plaintiff had no serious problem in her lumbar spine.
The plaintiff's solicitors referred the plaintiff to the consultant physician in rehabilitation medicine, Dr John Ker who saw the plaintiff on 14 March 2000. He had access to the medical reports. He noted the degenerative change present in the plaintiff's cervical spine and expressed the opinion that the cause of the plaintiff's injuries was:
"… An acute strain injury, sustained in the motor vehicle accident of 13 July 1998 to her already injured and degenerate cervical spine and to a lesser extent to her lower lumbar spine."
Dr Ker expressed the opinion that he had never truly found neurological abnormality on an examination of the plaintiff but that she has had suggested intermittent symptoms. He considered that the plaintiff did not have full range of thoraco-lumbar movements and that the evidence may reflect a pre-existing degenerative problem.

In cross examination, Dr Ker accepted that he could not say that the L5/S1 disc bulging was related to the motor vehicle accident but he considered that it was related to her symptoms, notwithstanding that he had not been able to establish any true neurological signs. He said he did not know what injury she had to her lumbar spine and continued:
"I can't be sure that the complaints that she has in the presence of this disc injury represent either a soft tissue injury to the muscles and ligaments in and around the lumbo sacral junction or actually represent an injury to that disc. I can't be sure.
… I don't think that I actually know whether she injured that disc or not in the motor vehicle accident."
He agreed with the opinion of Mr Batalin that the plaintiff's symptoms are very common in people over 40 years of age. He remained of the opinion, however, that his clinical examination did not show a near normal range of thoraco-lumbar spine movements. He considered that it was relevant to ask whether the motor vehicle accident had triggered advanced symptoms of degenerative change. He agreed that the longer the time interval between the motor vehicle accident and the commencement of the deterioration, the less likely it is that the motor vehicle accident has been responsible.
Dr Ker saw the plaintiff again on 23 September 2000, prior to the trial. In his report of 9 October 2000 to the plaintiff's solicitors, Dr Ker records that the plaintiff reported that she had had some limited physiotherapy, predominantly of a soft tissue mobilising nature. She had also had some chiropractic treatment and additional alternative "Rakia" therapy. Dr Ker expressed the opinion that the specific benefits of these treatments were difficult to gauge and continued:
"On a day to day basis, she reported that she has reasonable control of pain, but she does find that many activities still produce some degree of ongoing low back pain. It appeared to me that it was low back pain that principally troubled your client at this time. She also reported intermittent headaches and neck stiffness, but these seemed not to be her principal area of complaint.
She reported to me how she continues to undertake work on a largely self‑employed basis as a hairdresser undertaking both hairdressing tasks in her home and at St David's Nursing Home. She advised me that in the week prior to my consultation she had undertaken, what she estimated to have been, six hours of working in that week.
On a day to day basis, she reported that, in addition to her spinal pain and intermittent headaches, she also has feelings of fatigue. She reported that she felt under stress and I believe that some of this is in relation to the ongoing unsettled nature of her compensation claim. She described how pain disturbs her sleep at night. I am not aware of any current pharmacological treatments for depression or involvement with any other therapist - psychologist or psychiatrist/psychiatrists.
Mrs Silvestro has had some recent further radiological investigations of her lumbar spine in the form of a CT scan (11th September 2000). These have indicated some narrowing of the limbo‑sacral intervertebral disc and some mild bulging, but no evidence of true disc herniation in the lumbar spine or neurological compromise.
My clinical examination again demonstrated your client to be in no immediate distress. In her cervical spine, I found on simple palpation that she continued to report primarily to the right of the mid‑line some discomfort in the trapezius muscle. There was little in the way of mid‑line tenderness over the cervical spine. I felt that your client demonstrated for me quite a satisfactory range of cervical spine movement.
Although cautious in ranging both upper limbs, she did demonstrate for me quite a satisfactory range of bilateral shoulder movement, although this movement produced discomfort in the right shoulder region.
With respect to her lumbar spine, she reported discomfort on firm palpation at the lumbo‑sacral junction. She had satisfactory rotational movements of her thoraco‑lumbar spine, but extension was restricted to 15 degrees. She was able to flex with fingertips to mid‑tibia and there was no restriction of straight leg raising. I noted, in particular, there was no evidence of neurological impairment in either upper or lower limbs."
Dr Ker went on to express the opinion that it was unlikely that the plaintiff would ever achieve a level of day to day physical functioning at work that would allow her to compete for hairdressing work in a conventional hair salon, even on a part‑time basis. He expressed the opinion that the plaintiff's L5/S1 intervertebral disc abnormality has a deleterious effect on the plaintiff's work capacity.
The next witness to whose evidence I wish to refer in part is that of Dr Alla Sakalo. It appears that Dr Sakalo provided gynaecological services to the plaintiff during 1995, 1996 and 1997. The plaintiff consulted her on 9 February 1999 for acupuncture for headaches, neck spasm and stress. Dr Sakalo noted that the plaintiff had both whiplash injuries to her neck and low back pain. Dr Sakalo also gave evidence that the plaintiff told her nothing of her fall and injuries sustained in 1995, and that when she presented on 9 February 1999 "she was really as stiff as a board". Dr Sakalo was shown the video material and agreed that in May 1999, the plaintiff was much better although she thought the plaintiff was quite stiff and did not flex very well in the video images. Dr Sakalo confirmed that prior to the motor vehicle accident in 1998, the plaintiff did not complain of any difficulty with her neck either during physical examination or otherwise.
The plaintiff called Dr Michael Hagan, consultant psychiatrist who first saw her on 4 August 1999. In his report of 20 December 1999, Dr Hagan describes the plaintiff's symptoms at that time in part as follows:
"At the time she indicated that her symptoms were of stress and pain. She said that she had pain all the time, was shaking and screaming and had heart palpitations and the feeling of tightness around her chest and her head felt like it was going to explode. This resulted in her feeling she hated everyone around her. She felt nauseas (sic). She said little things set her off and she just can't help it. She said she felt so angry with herself because she can't stop this feeling. She said she became depressed which comes and goes. She said at times she felt as if she might as well be dead but had made no suicidal plans. She said that she felt she might as well be dead because she can't stop this feeling. She describes her sleep as poor with difficulty getting to sleep and frequent waking during the night. She described nausea and loss of appetite. She said that her energy levels were very low. She said she had lost interest in most activities. She said she frequently had headaches and any attempt to do household activities or her previous work as hairdresser resulted in her becoming very stressed out and experiencing pain. She said her concentration was okay but her memory was bad. She said she had pain in her lower back and neck and shoulders.
… She said she had been in pain ever since. She said she had a horrible ache and nagging pressure in the lower back. She said her head felt too heavy for her shoulders. She said despite the two months off work she hadn't become any better. She said she felt that physiotherapy had made her pain worse. She said she found herself more agitated and easily fed up."
Dr Hagan gave evidence that the plaintiff's body generally had a fairly stiff posture, she was frequently tearful and she looked like a woman who was in distress when describing events. He said there seem to be two aspects to the plaintiff's anxiety. He continued:
"One was that Mrs Silvestro appeared to have a chronic level of heightened anxiety evidenced by her stiff posture, the ringing of her hands and her constant worries about herself and other matters. In addition, she described episodic exacerbations of her anxiety particularly related to heart palpitations and dizziness which appeared to be a worsening of her anxiety state than the background level of anxiety which she appears to have."
Dr Hagan went on to describe the plaintiff as a lady who now has fairly chronic symptoms of depression and anxiety and who has a sense of hopelessness about her situation. He said that she expressed considerable distress about having to come to court to give evidence. She felt that because the process was being taken to court she was not believed and that this underlined her sense of self-worth. In cross-examination, Dr Hagan agreed that it was quite possible that the plaintiff could be putting on a big act to get money out of the system. He accepted that in concluding that the plaintiff is suffering from a depressive disorder, he is reliant upon information provided by the plaintiff.
The plaintiff saw the registered clinical psychologist, Diane Bowyer, both in 1996 following her fall and in March 1999, nine months after the motor vehicle accident. From Ms Bowyer's reports it is apparent that both in 1996 and in 1999 the plaintiff exhibited to Ms Bowyer symptoms of extreme physical pain, anxiety and depression. In cross-examination, Ms Bowyer said that she formed the opinion that the plaintiff was of a very anxious disposition and was engaging in pain behaviours which she explained as follows:
"She was flinching in session a lot with minimal movements, holding her arm over the side of the chair not able to close her eyes without going dizzy, she would constantly limp coming into the room, having a lot more difficulty on internal steps, rather than external steps to the rooms, things like that."
At the request of the defendant's solicitors, the plaintiff was also reviewed by the orthopaedic surgeon Mr Nick Batalin on 15 September 1997 and 18 February 1999. His report of 15 September 1997 (Exhibit 4) records the following examination of the plaintiff:
"I found Mrs Silvestro to be a woman of small stature of 152 centimetres in height and 55 kilograms in weight. During the initial part of the interview she sat somewhat stiffly but later on when absorbed in conversation I noted reasonable movement of both upper limbs including the right arm, forearm and hand. I also noted reflex movements of the head and neck showed no significant painful inhibitions. Her gate pattern was normal. There was physiological configuration of the spine with well preserved cervical lordosis.
Formal assessment of her neck revealed a surprising degree of restriction which amounted to 80 per cent restriction. Head and neck flexion was only 20 degrees, extension was 15 degrees, rotation was 25 degrees to each side. This was inconsistent with only 10 to 15 per cent restriction noted on indirect methods of assessment. For example I noted that the patient was able to take off her shoes and socks and then subsequently put them on without assistance. When looking at her feet, head and neck flexion was at least 55 degrees, in the prone position extension was 40 degrees and when looking at a blemish over the right shoulder and then the left shoulder rotation was at least 80 degrees to each side. Involuntary neck movements were brisk and not accompanied by significant painful inhibition, when she was not focussing on her neck."
Mr Batalin said that he was uncertain whether the plaintiff's symptoms represented progression of mid cervical degenerative changes or unmasking or even possible aggravation of such changes by the fall in September 1995.
Upon examination of the plaintiff on 18 February 1999, Mr Batalin's observations were similar to those in 1997. In relation to her lower back, he observed in his report of 18 February 1999:
"Formal assessment of thoraco lumbar spinal movements revealed 30 per cent restriction with the patient able to reach with her fingertips just proximal to mid shin level, extension was only 10 degrees and lateral flexion 30 degrees to each side. Yet, indirect methods of assessment revealed a near normal range of thoraco lumbar spinal movements with the patient able to reach with her fingertip to the level of the feet when sitting on the examination couch with both legs extended in the prone position extension was about 25 to 30 degrees in rotation as well as lateral flexion was around 40 to 45 degrees in each direction."
Mr Batalin reported that cervical spinal x-rays of 13 June 1998 showed no recent new injuries. He said pre-existing, slight degenerative, changes were noted at C5/6 level with marginal osteophyte formation and disc space narrowing. Mr Batalin repeated his opinion that the plaintiff has pre-existing degenerative changes in the lower neck, mainly affecting C5/6 level. He said he would not be surprised if she had somewhat similar changes in the lower back. In his opinion, the plaintiff had suffered no further injury subsequent to the motor vehicle accident and considered that she was fit to continue in her occupation as a hairdresser.

The injuries which the plaintiff suffered on 13 July 1998

I find on the evidence of Dr Ker that the plaintiff sustained an acute strain injury to her already injured cervical spine and to a lesser extent to her lower lumbar spine in the motor vehicle accident on 13 July 1998. On the evidence, it is not possible to determine the exact nature of the plaintiff's low back injury. I do not accept, however, the evidence for the defendant that the plaintiff suffered no injury to her lower back in the motor vehicle accident. On the evidence of Dr Quintner and Dr Graziotti, I find that degeneration at C5/6 level and L5/S1 level are unlikely to have contributed to the plaintiff's symptoms in the upper and lower spine.
I find on the evidence of Dr Hagan that the plaintiff is suffering from depression and anxiety symptoms with associated disturbed sleep and eating, loss of energy and memory. The plaintiff is no longer taking medication for these symptoms because of its deleterious side effects. I accept the evidence of Dr Graziotti that the plaintiff's pain behaviour is a manifestation of her desire to demonstrate the level of physical pain which she has experienced from time to time in her upper and lower back. On the evidence of Dr Graziotti and the plaintiff herself, I find that the plaintiff has suffered considerable pain in the upper and lower back from time to time since the motor vehicle accident. In my opinion, the video evidence and the evidence of the plaintiff's regular visits to the Casino are not inconsistent with the existence of such pain.

The plaintiff's pre-accident condition

I have observed that on 14 September 1995, the plaintiff sustained a soft tissue injury to the cervical spine, manifested in her right lateral neck and shoulder. I find on the plaintiff's evidence and that of Dr Mendelsohn and Dr Quintner that as a result of this injury, the plaintiff continued to suffer pain, neuropathic in origin, in the upper spine prior to the motor vehicle accident, together with a depressive disorder, similar to that which she has experienced since. I find on the evidence that the plaintiff suffered no relevant lower back pain prior to the motor vehicle accident.

The extent of the injury suffered on 13 July 1998, given the plaintiff's pre‑accident condition

I find that but for the motor vehicle accident, the plaintiff would not have suffered the exacerbation of her previous soft tissue injury to the cervical spine and further would not have suffered the injury of uncertain origin to her lumbar spine. In my opinion, the evidence establishes on the balance of probabilities that the trauma of the motor vehicle accident materially contributed to these injuries, including the plaintiff's continuing depression.

The prognosis

I accept the evidence of Dr Ker that the plaintiff does not have a near normal range of thoraco-lumbar spine movements and that she now demonstrates quite a satisfactory range of cervical spine movement and shoulder movement. As Dr Ker observed, the plaintiff's current symptoms occur predominantly in the lower back. In my opinion, the evidence as a whole suggests that the plaintiff's further cervical injuries sustained in the motor vehicle accident have already subsided and are likely to improve further in the short term. There is no evidence that the plaintiff is likely to be left with a residual injury in the upper spine. Dr Quintner and Dr Ker were each of the opinion that the plaintiff's lower back condition of uncertain origin is likely to continue into the foreseeable future.

The assessment of damages for pain and suffering and loss of amenities arising out of the motor vehicle accident on 13 July 1998

In my opinion, the evidence which I have referred to establishes in this case that the plaintiff is entitled to damages for the pain and suffering which she has experienced as a result of the exacerbation of her pre-existing soft tissue injury to the cervical spine, symptoms of which she was continuing to experience at the time of the motor vehicle accident. The injury to the plaintiff's lower back has in my opinion had and continues to have more serious consequences for the plaintiff in her enjoyment of life. The evidence of Dr Quintner is that her lower back symptoms can be controlled by simple analgesic medication and that she is unlikely to benefit from further physical treatment to her spine. I accept the evidence of the plaintiff that her family and social life is from time to time affected by her lower back pain. The evidence is that this condition is likely to continue in the foreseeable future.
I approach the assessment of damages for pain and suffering and loss of amenities, in the past and future, having regard to the judgments of the Full Court of the Supreme Court in Wylde v Aristondo 'Ariazza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997 and in the New South Wales Court of Appeal in Southgate v Waterford 21 NSWLR 427. The greater proportion of the award of damages for pain and suffering and loss of amenities on the evidence must be in respect of the plaintiff's low back injury, the smaller proportion for the exacerbation of the cervical spine injury. In my opinion, for non‑pecuniary loss the plaintiff is entitled to 10 per cent of the maximum amount which may be awarded in a most extreme case (ie 10 per cent of $225,000) or $22,500 less $11,000 (amount B), being $11,500.

The assessment of damages for loss of earning capacity, past and future

In the assessment of damages for loss of earning capacity, I have applied the dictum in Graham v Baker (1961) 106 CLR 340 at 347 that:
"An injured plaintiff recovers not merely because his earning capacity has been diminished but because the diminution of his earning capacity is, or may be productive of economic loss".
As at 13 July 1998, the evidence establishes in my opinion that the plaintiff continued in her business as a self‑employed hairdresser, notwithstanding her 1995 injury. She said she was working four hours a day. Her evidence was that she had considered giving up the business but kept it going for her teenage daughter to take over. On her evidence, I find that she was able to work four hours a day in her salon prior to the motor vehicle accident.
Counsel for the plaintiff submitted that the evidence does not allow the court to be precise about the extent of the further diminution of the plaintiff's earning capacity following the motor vehicle accident. He submitted that the plaintiff's diaries established a gradual decrease in business after the motor vehicle accident. In my opinion, it is clear from the evidence that the diaries were incomplete and unreliable. A perusal of the plaintiff's partnership returns and personal income tax returns and trading accounts suggests that the plaintiff did not experience a reduction in income in the year ended 30 June 1999 over the year ended 30 June 1998.

Counsel for the plaintiff submitted that the evidence does not permit the court to calculate an arithmetical sum for future economic loss. He submitted that the court should make a global award for future economic loss, reflecting the views of Dr Ker that the plaintiff's low back injury is likely to remain for the foreseeable future and that she will be limited to part time work as a hairdresser for the foreseeable future. I have approached the measure of the plaintiff's loss of earning capacity on the evidence as the diminution in her capacity to work as a self‑employed hairdresser as a result of the motor vehicle accident.
I find that following the motor vehicle accident the plaintiff regained her capacity to work at least four hours a day as a self‑employed hairdresser. I find that the plaintiff would have recovered completely from the injury sustained in 1995 and is likely to recover from those sustained in the motor vehicle accident in the foreseeable future of up to two years.
I find that following the motor vehicle accident the plaintiff's earning capacity was reduced only to the extent that she has been limited to part time work as a self‑employed hairdresser for longer than she might otherwise have been and is likely to be so limited in the foreseeable future. I find that her low back pain can be controlled for that time by mild analgesics. I would allow the plaintiff the sum of $10,000 for past and future loss of earning capacity. In assessing that sum, I have included interest at 5 per cent on $2,000 from 13 July 1998 to judgment.

Conclusion

In my opinion, the plaintiff is entitled to special damages as agreed. I would allow the sum of $1,000 for future medical expenses. Otherwise, the plaintiff is entitled to general damages for pain and suffering and loss of amenities in the sum of $11,500 and for loss of past and future earning capacity in the sum of $10,000.