Simpson v Lewis and Suncorp Insurance and Finance

[2002] QDC 301

DISTRICT COURT OF QUEENSLAND

CITATION:	Simpson v Lewis and Suncorp Insurance and Finance [2002] QDC 301
PARTIES:	MARY OLIVE AGNES SIMPSON Plaintiff And CATHERINE ROSINA LEWIS First Defendant And SUNCORP INSURANCE AND FINANCE Second Defendant
FILE NO:	1916 of 1998
DIVISION:
PROCEEDING:	Civil
ORIGINATING COURT:
DELIVERED ON:	20 November 2002
DELIVERED AT:
HEARING DATE:	12 November 2002
JUDGE:	Samios DCJ
ORDER:	Judgment for the plaintiff against the second defendant for $65,968.94.
CATCHWORDS:	Personal injuries – injury to neck and back – pre-existing degenerative changes in neck and back.
COUNSEL:	Mr Bowden for the plaintiff Mr Atkinson for the defendants
SOLICITORS:	Woudwycks for the plaintiff Walsh Halligan Douglas for the defendants

1. In this proceeding the plaintiff claims damages for personal injuries, loss and damage and interest.

1. At about 10.20pm on 8 May 1995 at the corner of Stephens Road and Gloucester Street, Dutton Park in Brisbane a collision occurred between a Mercedes Benz motor vehicle being driven by the plaintiff and a Mitsubishi Magna sedan being driven by the first defendant (hereinafter referred to as “the collision”).

1. Liability has been admitted by the defendants.

1. Immediately before the collision the Mercedes Benz motor vehicle was stationary.  The plaintiff’s intention was to turn right into Gloucester Street.  The Mitsubishi Magna sedan collided with the rear of the Mercedes Benz motor vehicle.

1. When the collision occurred the plaintiff was 54 years of age having been born on 21 January 1941.  The plaintiff is now 61 years of age.

1. The plaintiff claims that as a result of the collision she suffered injury to her neck and back.  Further, the plaintiff claims that as a result of the collision she has been left with permanent loss of function of her neck and back.

1. The plaintiff was born in Ireland and migrated to Australia in 1967.  Initially the plaintiff worked in nursing.  From about 1967 until 6 October 1991 the plaintiff was employed in various hotels around Brisbane.  In these hotels she worked in a variety of positions including housekeeper, breakfast cook and bar work.  Her husband was a member of the Queensland Police Service.  They have three children, twins born in 1961 and a child born in 1964. 

1. The plaintiff’s medical history shows that between the period from about 1981 to the collision the plaintiff has required investigation and on many occasions surgery for a number of conditions.

1. In 1981 the plaintiff injured her lower back when the plaintiff was helping someone to lift a three foot square table with a steel frame.  The other person lost their grip and the plaintiff took the weight.  For this the plaintiff spent three and a half weeks in the Holy Spirit Hospital.  In 1982 the plaintiff underwent an operation upon her right wrist.  Thereafter, the plaintiff underwent a number of operations on her wrists.  In 1984 when the plaintiff was in hospital for an operation on her wrists Dr Cooke performed upon the plaintiff a neck myelogram.  That was because the plaintiff was experiencing pain in the back of her neck.  Then in January 1988 the plaintiff was taking down curtains at her work.  As she was taking down the curtains off the hooks, with the weight of the curtains and the way the curtains were being lifted, she felt something go in her neck.  For that event the plaintiff made a claim for workers’ compensation.  This incident occurred when the plaintiff was employed at the Regal Hotel.  The plaintiff left the Regal Hotel a couple of days later. 

1. On 8 April 1991 Dr Cooke operated on the plaintiff’s neck.  This operation was a C5/6 discectomy with anterior interbody fusion of the C5/6 segment for left posterolateral prolapse of the C5/6 disc.  In her evidence the plaintiff said that following this operation for the first couple of months her neck was painful and sore but she gradually started to improve and was able to do things pretty well.  She considered the operation had been a very good success.  The plaintiff went back to work at the Majestic Hotel.  The plaintiff said if she did something that was strenuous she might feel stiffness and some pins and needles in her neck.  However, the plaintiff said it did not incapacitate her.  The plaintiff resigned from her position at the hotel on 6 October 1991.

1. When the plaintiff gave evidence she said she retired from the Majestic Hotel because her husband was retiring and they were going to go on a trip.  When cross examined the plaintiff would not accept that the reason she retired from the Majestic Hotel was because her neck was playing up.  The plaintiff’s husband retired in the following year on 12 July 1992.  When I brought to the plaintiff’s attention that Counsel for the defendants by his questions implied that as her husband’s retirement occurred in the following year, it was therefore unlikely that was the reason for her resignation from the Majestic Hotel, the plaintiff said she retired because of a conflict she had with the licensee whom she found to be very arrogant and expected her to do a lot more than she was supposed to be doing.

1. A statement to the Workers’ Compensation Board dated 24 October 1991 signed by the plaintiff was tendered in evidence.  This was a statement in support of an application by the plaintiff to re-open her neck injury claim if that were possible.  In this statement the plaintiff made the following statements:

“I resigned for personal reasons from this job on 6 October 1991.  Since returning to work May 1988 my neck initially was not too bad but it has gradually deteriorated over the years to the point I find it rather difficult to work in my position as housekeeper …
There has been no specific incidents – just a gradual deterioration of my neck … 
There has be no specific incidents or accidents that have aggravated or caused my further neck problems over the last couple of years.”

1. Another statement signed by the plaintiff to the Workers’ Compensation Board and dated 4 February 1988 was also tendered in evidence.  This statement contains the following statements by the plaintiff:

“In 1981 I first injured my lower back.  I had no back injuries prior to 1981.  In 1981 I was working at the Plaza Tavern and I was helping someone else to lift a table when that person twisted and lost her grip and I was left holding the weight.  The table was about three foot square with a steel frame. … 
I was put in the Holy Spirit Hospital for three and a half weeks.  No traction or operations.  A stiff collar and physiotherapy were required …
Eventually I returned to work after about three months to the Plaza Tavern.

My lower back was OK but not a hundred percent and to this day I still get twinges mainly in the right side.  I have not since lost any time off work for my lower back.

In 1984 I had a cervical myelogram at the Mater and this was whilst on compensation for my right wrist injury.  The myelogram was done to see if there was any relationship between my back and wrist.  I also had a scan done which found some problem with my neck but I’m not sure what the problem was.  The remainder of 1984 and 1985 was spent either working at the Carlton Hotel or on compensation for wrist injuries.  During this time I had no upper back problems and occasional twinges in the lower back.  In 1985 and 1986 I did not require any treatment for back problems.  In 1986 I did not work due to wrist injuries.  In 1987 about mid ’87 I had my neck in traction at the physio to help relieve symptoms in my wrist and hands.  My upper back was not sore but Dr Cooke felt there may be some relationship between wrist and hand pain and my neck/upper back. 

I had no further treatment on my back until the incident of 13 January 1988.

On 13 January 1988 I was hanging some heavy curtains in the front of the motel.  I was standing on a footstool and as I reached up I felt a click at the base of my neck.  I finished the last bit of the job and had a little rest. …
I last worked a full day on 17 January 1988 when my services were terminated which I was told by Barry Buchester that Graham said I was too slow.  I always felt Graham did not like me.”

1. The plaintiff was examined by Dr Blue an orthopaedic surgeon on 22 November 1991.  At that time the plaintiff informed Dr Blue that she was suffering pain in the left side of her neck which was radiating into the left upper limb.  She told Dr Blue that this pain was present for six months and despite conservative treatment from Dr Cooke by way of physiotherapy and various tablets her symptoms had not improved.

1. After the plaintiff’s husband retired the plaintiff and her husband went overseas for 12 months.  On her return the plaintiff looked for positions in the daily paper and went around to various hotels and put her name down to seek employment.  There were no positions vacant and the plaintiff felt because of her age she was considered too old.  The plaintiff did not obtain any employment after her return from overseas.

1. On 6 February 1995 the plaintiff underwent a further operation performed by Dr Cooke.  This operation was a left L3 to S1 hemi laminectomy and L4/5 sequestrectomy and discectomy.  Before that operation the plaintiff was suffering a gradual onset of symptoms in her back.  She had pain in her back and it was limiting her as to what she could do.  The plaintiff’s evidence was that at this point in time she was having no problems with her neck.

1. The plaintiff said following the operation by Dr Cooke on 6 February 1995 for the first couple of months her back was sore.  Then she gradually got back to getting really good and she could do things.  In the two weeks or month before the collision the plaintiff said her back was very good.  She had no neck problems and no backaches.  She had no problems lying in bed or getting up. 

1. The plaintiff said when the collision occurred she felt something go in the back of her neck and she was shaking quite a lot.  Her legs were jumping up and down.  She could not stop her legs jumping up and down.  Her legs felt numb.  The plaintiff said she had to be assisted out of the vehicle by an ambulance driver and a police officer.  She was taken by ambulance to the Princess Alexandra Hospital.  She was x-rayed and seen by a doctor and discharged.  She was not given any medication.  She saw Dr Cooke the next day.  She was in quite a lot of pain and had a lot of discomfort.  Thereafter, she saw Dr Cooke on a number of occasions.  She was taking digesics if she had pain.  She did not seem to be getting relief and was not able to do much.  Then on 6 September 1995 Dr Cooke performed a further operation upon the plaintiff.  This was a L3 to S1 decompression.  The plaintiff said after this operation for a couple of months she was in a lot of pain and gradually it settled but she was still unable to do very much.  Therefore a year later on 2 September 1996 Dr Cooke performed a further operation upon the plaintiff.  According to the report of Dr Cooke dated 20 March 1997 (Exhibit 9) when he did this he noted the plaintiff had significant instability at the 4/5 level secondary to the degenerative changes evidence at L3/4, L4/5 and to a lesser extent L5/S1 level on the right side expanded by a significant prolapse of the L4/5 disc posterolaterally on that side.

1. Notwithstanding the operation performed by Dr Cooke on 2 September 1996 the plaintiff said in her evidence she remained more or less the same. 

1. In March 2001 Dr Cooke performed a further operation upon the plaintiff.  The plaintiff said that she found difficulty walking and Dr Cooke had done some x-rays and scans to see what the problem was and ascertained it was not related to the collision.  In these proceedings the plaintiff does not claim that this operation performed in March 2001 and the expenses associated with it were caused by the collision.

1. Opinions regarding the condition of the plaintiff’s neck and back before the collision and what effects (if any) the collision had upon the plaintiff’s neck and back have been provided in these proceedings by three orthopaedic surgeons.  These orthopaedic surgeons are Dr Cooke who has treated the plaintiff now over a 20 year period, Dr Gillett who saw the plaintiff on 12 March 2002 and Dr Fraser who saw the plaintiff on 13 April 1999.

1. All three orthopaedic surgeons agree that before the collision the plaintiff had pre-existing degeneration in her neck and back.

1. However, Dr Fraser is of the opinion that the accident had served to aggravate the pre-existing degenerative conditions of the cervical lumbar spine.  That aggravation was mild.  The effects of the aggravation would have been expected to have resolved fully within a period of three months.  The plaintiff’s continuing symptoms relate to the pre-existing degenerative condition of the cervical and lumbar spine and the post operative limitations following spinal fusion in both the cervical and lumbar area.  There was no residual permanent and partial disability attributable to the accident.  No further treatment or investigation was indicated for the injuries suffered in the accident.  The plaintiff’s limitations of daily activities, sexual activity and work relate to her primary degenerative disorder and not to the affects of the motor vehicle accident of 8 May 1995.

1. After reviewing the reports of Dr Cooke dated 12 March 2002 and the report of Dr Gillett of 12 March 2002, Dr Fraser remained of the same opinion.  That is, the accident caused the exacerbation of the plaintiff’s symptoms which would have been temporary and the continuing symptoms and disability pertained to the pre-existing state of her neck and lumbar spine and not the affects of the accident.

1. On the other hand Dr Gillett’s view is that the plaintiff suffered from an acceleration, deceleration type injury involving the cervical and lumbar spines as a consequence of the accident.  In his opinion the forces applied to her at that time could produce injury.  He noted at the time of the accident the plaintiff had pre-existing pathological processes involving her cervical and lumbar spines.  Further she was in a convalescent period post surgical treatment of her lumbar spine and the plaintiff’s treating surgeon (Dr Cooke) and the plaintiff indicated to him that the plaintiff was recovering adequately post that surgery and developed new symptoms post the accident.  This caused the plaintiff to have further surgical treatment to remove what would appear to be a discal injury at the 4/5 level producing problems, which were not apparent prior to the accident.  He states with regards to the findings of the surgery of 6 September 1995 and the pre-operative MRI, it would appear from the surgeon’s description that there was new sequestrated material as well as the scarring from the previous surgery.  Subsequently the plaintiff required surgical stabilisation on two occasions.  With regard to the lumbar spine, had the plaintiff not had the event, she most likely would have continued to improve, although it is unclear whether the 4/5 level would have gone on to cause symptoms requiring surgical treatment.  He thinks that had the plaintiff not had the car accident there was a chance the plaintiff would have required surgical stabilisation of her lumbar spine.  He thinks overall there was a 50% likelihood that she would have required that.  In his opinion the indication for the third surgery appears to be related to a level higher than the previous surgical stabilisation and this would be an area unrelated to the collision and reflects the underlying degenerative process.

1. Regarding the plaintiff’s neck, Dr Gillett notes the plaintiff had pre-existing pathological processes in the cervical spine.  He states the plaintiff has had a mechanism of injury consistent with an acceleration deceleration injury.  He states it is known that persons with pre-existing pathological processes of degeneration are more prone to have symptoms post this type of accident than those who do not have a degenerative process.  In his opinion residual symptoms associated with the plaintiff’s neck reflect acceleration and aggravation of the pre-existing pathological processes.

1. Regarding the plaintiff’s back Dr Gillett is of the opinion, on the balance of probabilities, the accident produced injury to the lumbar spine, aggravating and accelerating pre-existing degenerative and post-surgical pathology in her lumbar spine.  He states on her treating surgeon’s description a new 4/5 disc protrusion occurred and this was treated in a surgical fashion.  Dr Gillett feels that a 50% risk has occurred for the plaintiff to require surgical stabilisation of her spine post the revision laminectomy of September 1995 and he would apportion that 50% of the cause of why she required surgery in September of 1996 relates to the surgery of September 1995, which is due to the accident.  He does not believe that the surgery of 2001 reflects any pathology that has occurred related to the car accident and reflects the natural progression of the degenerative process occurring in the plaintiff’s lumbar spine.  In his view the plaintiff has a 25% impairment of bodily function related to the lumbar spinal pathology of which 10% is a consequence of the accident.

1. With regard to the plaintiff’s cervical spine Dr Gillett believes that had the plaintiff not had the accident she was at risk of developing symptoms in her cervical spine at some stage in the future and those symptoms may have occurred within a period of three to four years regardless of the accident, but overall the affect of the accident has been to produce injury, aggravate and accelerate the degenerative process causing a 5% permanent impairment of bodily function.  Current cervical spine pathology would attract an impairment of bodily function of 13%, of which therefore 8% reflects the pre-existing pathological processes and 5% reflects the residuals of the accident.

1. Dr Cooke in his report dated 12 March 2002 refers to the surgery performed upon the plaintiff on 6 February 1995 and states that while the symptoms had been relieved, the site of surgery was in a healing phase with scar tissue being laid down reaching maturity of insufficient strength to provide normal stability of the segment.  He states, hence the abnormal forces applied to a lumbosacral spine would have caused significantly greater damage to the dysfunctional healing L4/5 segment than would have been the case in other circumstances where the L4/5 segment was anatomically normal.  He states this fact would account for the subsequent problems that the plaintiff suffered with her lumbosacral spine as a consequence of injuries sustained in the accident.  He states her clinical symptoms and signs were consistent with a right posterior lateral prolapse of the L4/5 intravertebral disc which was demonstrated on MRI scanning on 31 August 1995, some three months after the accident.  This scan revealed a disc prolapse which was on the opposite side to the previous herniation at this level treated surgically a few months prior to the accident to be markedly indenting the thecal sac and impinging on the right L5 nerve root while there was extensive post operative scarring about the L4/5 disc from previous surgery.  A decompressive laminectomy extending from L3 to S1, performed on 6 September 1995, revealed gross extradural scarring encapsulating a large mass of sequestrated nucleus pulposus arising from the right posterolateral tear of the annulus fibrosis of the L4/5 intervertebral disc.  This scar tissue was excised while the sequestrated disc material was enucleated along with residual necrotic nucleus pulposus within the L4/5 disc.  He states the nett effect of repeated L3 to S1 laminectomy and L4/5 discectomy was relative instability of the L4/5 segment which continued to cause disabling symptoms that necessitated a revision laminectomy and bilateral posterolateral fusion with Moss Miami instrumentation that was performed on 2 September 1996.  He states it would be reasonable to suggest that had the plaintiff not been involved in the accident, then the L4/5 segment would have continued to heal and stabilise following the original laminectomy on 6 February 1995 and would not have required the two subsequent procedures.  So far as the cervical spine is concerned, the plaintiff had previously undergone anterior interbody fusion of C5/6 segment of the cervical spine some three years prior to the accident.  This fusion had consolidated leaving the C5/6 segment stable so that the abnormal forces applied to the cervical spine in the accident had no effect on the C5/6 segment but rather caused soft tissue damage to the flexor compartment of the cervical spine with possible damage to the C2/3, C3/4 and C6/7 discs.  This soft tissue injury resolved spontaneously with conservative treatment.  In his opinion the plaintiff’s permanent partial disability resulting from the injuries sustained in the accident is for the cervical spine 10% loss of function of the plaintiff as a whole and for the lumbosacral spine 25% loss of function of the plaintiff as a whole.

1. Therefore, it can be seen there is a significant difference between the opinions of Dr Fraser on the one hand and the opinions of Dr Cooke on the other hand regarding the effect the collision has had upon the plaintiff’s neck and back.  In my opinion it would be fair to say that Dr Gillett’s opinion regarding the effect the collision has had upon the plaintiff’s neck and back is somewhere in between the opinions of Dr Fraser and Dr Cooke.

1. Having considered the evidence I do not consider the plaintiff deliberately misstated anything when giving evidence.  Although the plaintiff said at one stage she retired from the Majestic Hotel when her husband retired, I consider the plaintiff was confused.  That is because shortly after giving that evidence (Transcript 7/5) the plaintiff was asked if after the operation which was a reference back to the operation back in February 1991 did the plaintiff return to the Majestic Hotel, to which the plaintiff answered in the negative.  However, later in her evidence at T25/60-T26/2 the plaintiff indicated she was trying to remember the sequence of events and said she did return to the Majestic Hotel following that operation.  I do not consider the plaintiff sought to conceal anything about her resignation from the Majestic Hotel.  I bear in mind in her statement in support of her application to re-open her claim it shows the plaintiff was having neck problems for some time before that and the report of Dr Blue shows that soon after her resignation from the Majestic Hotel the plaintiff complained to Dr Blue of problems with her neck.  However, that evidence does not lead me to take an adverse view of the plaintiff’s credit.  That is because in her statement in support of her application to re-open her claim the plaintiff stated she was resigning for personal reasons.  I consider that is consistent with her evidence there was a conflict between the plaintiff and the licensee.  Further, the plaintiff did not in her evidence deny she had symptoms in her neck before she resigned.  Her evidence was that the symptoms did not incapacitate her.

1. The plaintiff’s husband also gave evidence as did a Mrs Anderson, the plaintiff’s friend of long standing.  I consider the evidence of the plaintiff’s husband and Mrs Anderson confirmed the plaintiff’s evidence.  The fact that each is the plaintiff’s husband and a friend of long standing I did not consider detracted from their credibility and reliability concerning the evidence they gave. 

1. The plaintiff ‘s husband confirmed the plaintiff had complained of back pain in the past but it did not cause her a lot of trouble.  When they went overseas they had no problems although occasionally she may have worn the collar if her neck was bothering her.  He confirmed that he had an interest in photography and the plaintiff would accompany him.  However, if she was getting troubles with her back she would drop off.  He confirmed the plaintiff loved gardening before the collision.  Generally before the collision the plaintiff was in pretty good health. He also confirmed that although there was damage to the right rear mudgard of the Mercedes and the rear tail light on the right hand side was broken, the Mitsubishi Magna was quite heavily damaged.  He said the main impact seemed to be at the centre of the front of that vehicle.  The mudgard was pushed well back as was the bumper bar.  He also confirmed the problems the plaintiff has had since the collision and the impact the collision has had upon her.

1. Mrs Anderson gave evidence of her observations of the plaintiff on the night immediately before the collision.  She said the plaintiff walked alright and just normal.  Mrs Anderson also confirmed that the damage to the Mitsubishi Magna was such that it was smashed in and badly damaged.  She confirmed that it was the ambulance man and a policeman that assisted the plaintiff out of the Mercedes after the collision.  She confirmed the plaintiff and her have tried to do line dancing since the collision but the plaintiff could not do it.  They have also tried aqua aerobics but the plaintiff cannot do it as one might expect a normal person to be able to do it. 

1. I was favourably impressed by the plaintiff’s husband and Mrs Anderson.  I accept their evidence.  I consider there is no good reason not to accept their evidence.

1. This is not a case where it is disputed the plaintiff has the symptoms she complains about.  The plaintiff did not conceal her medical and surgical history.  The plaintiff’s evidence was consistent with the description of the circumstances of the lifting of the table in 1988 and the taking down the curtains in 1991 contained in the contemporaneous statements Exhibits 2 and 3.  I did note Dr Cooke said when he gave evidence the plaintiff told him she fell when taking down the curtains.  This was not put to the plaintiff when she was cross-examined.  However, I prefer the plaintiff’s evidence on this point because I consider her statements which are consistent with her evidence are more reliable as those statements are contemporaneous with the events. 

1. I have concluded the plaintiff is an honest and reliable witness.  I accept her evidence.

1. Regarding the evidence from the orthopaedic surgeons I consider that Dr Cooke has the advantage over the other orthopaedic surgeons of having been the plaintiff’s treating doctor for now over 20 years and as he has performed the relevant operations I consider he is in the best position to describe the plaintiff’s spine and what was done to it before the collision and what he observed regarding her lumbar spine after the collision when he operated upon the plaintiff in September 1995 and in September 1996. 

1. The other aspect I consider relevant regarding the evidence of the orthopaedic surgeons is that following the collision MRI eye scans, plain radiographs and a CT discography were performed.  I consider these investigations provide some objective evidence of what happened to the plaintiff’s lumbar spine following the collision.  It was not suggested to Dr Gillett or to Dr Cooke that Dr Cooke could not have made the observations he made nor that his findings were not open to him nor that the MRI scan, x-rays and discography could not support the opinions of Dr Cooke or Dr Gillett.

1. Therefore, I accept the evidence of Dr Cooke regarding what he did when he operated upon the plaintiff and his observations and findings about the condition of the plaintiff’s spine.  Further, I accept Dr Cooke’s evidence regarding what can be concluded from the scan, x-rays and discographs.

1. Regarding Dr Fraser, it seems to me he formed the view that the collision was “trivial”.  He said that was how it was described to him by the plaintiff.  The cross examination of the plaintiff about damage to the vehicles concentrated on the Mercedes rather than the Mitsubishi Magna.  The evidence is that there was not much damage to the Mercedes.  However, I consider that approach, which may have been the approach of Dr Fraser, ignores the damage to the Mitsubishi Magna attested to by the plaintiff’s husband and Mrs Anderson.   Notwithstanding this issue about damage to the vehicles I consider the material question is as stated by Dr Cooke in his report dated 12 March 2002, namely what were the forces applied to the spine and what was the condition of the plaintiff’s spine, particularly the lumbar spine which had been operated on three months earlier and which was then in the healing phase.

1. Notwithstanding I accept those aspects of Dr Cooke’s evidence I have referred to, I do not accept Dr Cooke’s opinion that the plaintiff has been left with a 10% loss of function of the plaintiff as a whole relating to the permanent partial disability of the cervical spine nor that the plaintiff has been left with a 20% loss of function of the plaintiff as a whole relating to the permanent partial disability of her lumbosacral spine the degree of permanent partial disability.  That is because I consider Dr Cooke has not given sufficient weight to the history of the plaintiff’s neck and back condition and the surgical procedures that have been performed upon her neck and back when arriving at his opinions.  On the other hand I consider Dr Fraser has given too much weight to the plaintiff’s history when arriving at his opinions and does not appear to have considered the observations of Dr Cooke, the investigative procedures and the evidence of further injury to the lumbar spine as has Dr Gillett.

1. Therefore, I prefer the evidence of Dr Gillett to that of Dr Fraser.  Further, I prefer Dr Gillett’s opinions regarding the extent of impairment of bodily function suffered by the plaintiff as a consequence of the collision as against the opinions of Dr Cooke in that respect.  Further, I accept Dr Gillett’s opinions regarding the percentage risk that the plaintiff may have required the operation in 1996 in the event the collision had not occurred.

1. Therefore, I find the collision has caused the plaintiff residual symptoms associated with her neck which reflect acceleration and aggravation of her pre-existing pathological processes.  I find the collision has caused injury to the plaintiff’s lumbar spine, aggravating and accelerating pre-existing degenerative and post surgical pathology in her lumbar spine. I find the collision caused the plaintiff to suffer a new 4/5 disc protrusion which required to be treated in a surgical fashion.  I find there was a 50% risk that the plaintiff could have required surgical stabilisation of her spine post the revision laminectomy of September 1995 and 50% of the cause for why she required surgery in September of 1996 relates to the surgery of September 1995, which was caused by the collision.  I find the plaintiff has a 25% impairment of bodily function related to her lumbar spine pathology of which 10% was caused by the collision. 

1. With respect to the plaintiff’s cervical spine I find that had the collision not occurred the plaintiff was at risk of developing symptoms in her cervical spine at some stage in the future and those symptoms may have occurred within a period of three to four years regardless of the collision, but overall the effect of the collision has been to produce injury, aggravate and accelerate the degenerative process causing a 5% permanent impairment of bodily function.  I find the plaintiff’s current cervical spine pathology represents an impairment of bodily function of 13% at this time, of which 8% reflects the pre-existing pathological processes and 5% was caused by the collision.

1. Assessing damages in this case does require consideration to be given to the plaintiff’s pre-existing permanent impairment of bodily function which I consider would cause the plaintiff some limitations in any event.  These limitations would have impacted upon the plaintiff and her enjoyment of the amenities of life in any event.  Nevertheless I consider the collision has caused additional impairment and consequent loss of amenities of life and caused the need for further operations subject to the discounting for the risk the plaintiff required the operation in September 1996.

1. In all the circumstances I assess the plaintiff’s damages for pain and suffering and loss of amenities of life at $30,000.

1. I allow the plaintiff interest on past pain and suffering and loss of means of life on the sum of $15,000 at 2% per annum from 8 May 1995 to 19 November 2002 a period of 7.53 years which is the sum of $2,259.

1. With respect to special damages, a schedule of hospital and medical expenses is to be found in Exhibit 1.  I consider it is appropriate to dissect the hospital and medical expenses into two periods so that the first period covered is from 9 May 1995 to reflect the period following the collision and following the operation in September 1995 until the date I infer consideration commenced to be given to the need for a further operation, that date being 6 December 1995.  Therefore, the second period would be from 6 December 1995 to 13 May 1997.  For special damages I allow the plaintiff the entirety of the hospital and medical expenses for the period 9 May 1995 to 16 November 1995 which is the sum of $14,567.32.  Thereafter from 6 December 1995 to 13 May 1997 I allow the plaintiff 50% of those expenses which is 50% of $23,630.50, namely $11,815.25.  I also allow the plaintiff travelling expenses in the sum of $500.  Therefore, the total for special damages is the sum of $26,882.57.

1. The parties have agreed interest be allowed on the sum of $9,576.87 for hospital and medical expenses and the sum of $500 for travelling expenses (if sums to that extent were found in favour of the plaintiff).  I allow the plaintiff interest on the sum of $10,076.87 at the rate of 4% per annum for 5.53 years (13.5.97 to 20.11.02).  This is a sum of $2,224.97.

1. Regarding past economic loss which was claimed as a global sum of $20,000 I do not allow the plaintiff any damages for past economic loss.  This is because I consider what the plaintiff lost was the chance to earn income following the collision.  However, I consider on the evidence the degree of probability that the plaintiff might have earned income following the collision is so low as to be negligible.  That is because the plaintiff had not been in employment after resigning from the Majestic Hotel at the end of 1991 until she commenced to look for work in about mid 1993.  When she did so she found her age was a barrier.  She had applied for many jobs without success.  Further some months following the collision she commenced to experience some symptoms in her leg which ultimately led Dr Cooke to operate on the plaintiff in March 2001.  The plaintiff accepts that operation (and therefore I infer those symptoms) were not caused by the collision.  Therefore, those symptoms and the operation in March 2001 ought to be taken into account when assessing the plaintiff’s claim.  Further, the plaintiff had the residual disabilities from her previous operations which were not, in my opinion, insignificant.  By the time the plaintiff was involved in the collision her history was such that I do not consider it can be accepted that the plaintiff could not have disclosed some of that history to a prospective employer and expect to receive a favourable response.  Finally, about two years ago the plaintiff had a stroke.  The stroke had some effect upon the plaintiff.  The plaintiff said she does not seem to be able to cope with things as much and she gets very tired.

1. Regarding the plaintiff’s Griffiths v Kerkemeyer claim I do not doubt that the plaintiff has required the assistance of her husband.  Although there is some difference in the evidence between the plaintiff and her husband about the extent of the assistance I prefer the plaintiff’s husband’s evidence as I consider it better described the circumstances of the assistance.  That is, the plaintiff required a substantial amount of assistance for a month or so following the collision and following each operation and that it would then gradually become less.  However, the period from about 6 December 1995 onwards would in addition require discounting by 50% to take into account Dr Gillett’s opinion of the prospect that a further operation may have been required even if the collision had not occurred.  Furthermore, after the operation in 1996 consideration was then given because of other symptoms to the operation that was performed in March 2001.

1. The parties agree the rate to be applied for the Griffiths & Kerkemeyer damages is $13 per hour.

1. Therefore, I consider the approach to the assessment of the Griffiths v Kerkemeyer damages to be as follows:

Date	Days/Months	Hours	$
8.5.95-8.6.95	30 d	2 h/d	780
8.6.95-6.9.95	3 m	1.5 h/wk	234
6.9.95-6.10.95	30 d	2 h/d	780
6.10.95-6.12.95	2 m	1.5 h/wk	156
6.12.95-2.9.96	9 m
2.9.96-2.10.96	1 m	1.5 p/wk	$4,914 x 50% = $2,457
2.10.96-1.3.01	53 m

This is a total of $4,407 to which there should be that further discounting for the commencement of symptoms that required the operation in March 2001.  Therefore, I round off the Griffiths v Kerkemeyer damages caused by the collision to $4,000.  I allow the plaintiff $4,000 for Griffiths v Kerkemeyer damages.

1. I allow the plaintiff interest on the Griffiths v Kerkemeyer damages of $4,000 at the rate of 2% per annum for 7.53 years which is the sum of $602.40. 

1. I consider it is not possible to assess any future Griffiths v Kerkemeyer damages in light of the operation in March 2001 and the plaintiff’s permanent partial disabilities from other causes including the stroke.

1. Therefore I assess the plaintiff’s damages in the sum of $65,968.94

1. I give judgment for the plaintiff against the second defendant for the sum of $65,968.94.

1. I will hear the parties on the question of costs.