Sohn v Minniti - [2004] WADC 250

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: SOHN -v- MINNITI [2004] WADC 250

CORAM: O'SULLIVAN DCJ

HEARD: 1-5 DECEMBER 2003, 4 & 5 MARCH 2004

DELIVERED : 10 DECEMBER 2004

FILE NO/S: CIV 628 of 2000

BETWEEN: SUSAN ROSEMARY SOHN
Plaintiff
AND
DOMENIC MINNITI
Defendant

Catchwords:

Assessment of damages for personal injuries - Motor vehicle accident - Injuries to shoulder and mouth - Psychiatric injuries - Conflicting medical opinions as to nature of the shoulder injury - Injury nevertheless caused by negligence of defendant.

Legislation:

Nil

Result:

Damages assessed in the sum of $530,417.32

Representation:

Counsel:

Plaintiff: Mr D R Clyne
Defendant: Mr J R Brooksby

Solicitors:

Plaintiff: Friedman Lurie Singh
Defendant: Greenland Brooksby

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

Bryden v Chief General Manager of the Health Department (1987) A Tort Rep 80‑075
Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720

Case(s) also cited:

Nil

O'SULLIVAN DCJ: This is a claim for damages for personal injuries sustained by the plaintiff as a result of a motor vehicle accident which occurred on 5 July 1998. Liability is not in dispute.

Background

The plaintiff was born in South Africa on 21 January 1963 and was therefore aged 35 at the date of the accident. She is married with three children aged 11, 12 and 13 years at the date of trial. She and her husband, who is a solicitor, came to Western Australia in 1997. She was educated in Johannesburg and obtained a Bachelor of Commerce degree at the University of Witwatersrand in 1989. She worked part time before and during her university studies, and after graduating as an accountant in a number of positions. In 1995 she commenced work in her husband's legal practice and continued to do so until they came to Australia. She was not working here at the time of the accident, but said that it was her intention to do so once her husband had obtained the necessary qualifications to practice as a solicitor in Western Australia and the children had settled into their new schools.
The plaintiff was born with a cleft lip and palate and said that she had had a total of 31 operations over many years before she came to Australia. In February 1998 she attended on Mr Mathew Hansen who is a cranio facial surgeon to discuss ongoing problems concerning this condition, but nothing had been done about them before the accident.

The accident

At the time of the accident the plaintiff was a front seat passenger in a Tarago being driven by her husband. She was seated in a bucket seat, and had a seat belt on. Her young daughter was seated in the middle of a bench seat immediately behind the front seats. As the Tarago slowed to turn right, the defendant's vehicle, which was a Toyota Land Cruiser fitted with a bull bar collided with the back of it, causing it to spin in a clock‑wise direction.
The plaintiff said that at the time of the collision, she was bending forwards looking down into a shopping bag at her feet. She said:
"- - -Well, I heard a loud bang and then my daughter began to scream. … hearing her scream, my maternal instincts prevailed and I jolted upright to try and grab her. Of course my head jerked upwards before the rest of my body did. Assumingly at this point my mouth got injured. It could either have been from the ashtray which had dislodged – I used the ashtray as a coin tray … it was full of parking meter money. It could have been from a coin which had came up from the ashtray. After the accident I did notice that the ashtray was out of its socket on the seat and the coins were all over the vehicle or I could have – when I turned my head to look to the right I could have hit my face on a lever … ".
The plaintiff was asked what happened to her body on impact and she said:
"- - - Well, on impact, as I mentioned before, my primary motive was to get to my daughter but I had a problem; the seat belt was restraining me … I tried to turn to my right to get to my daughter but the motion of the car threw me to my left. My right arm was blocked by the seat due to my not being tall enough to reach over the seats to get to my daughter. The seat had collapsed slightly. It had gone slightly forwards and down, and I caught my leg – I think I caught my leg underneath, I cannot be sure, because I think I used my leg as an anchor to try and get to my daughter. It's very difficult to remember the sequence. It's impossible to remember exactly what happened. I think that I did hit my shoulder on the window. I do know that I hit the left side of my head on the window because an odd bump appeared later on."
The plaintiff said that immediately after the accident she felt pain in her mouth in the region of her two front teeth, one of which was loose, and she was in a high level of anxiety. About two hours later she attended on her general medical practitioner, Dr Shulman. At that time she was mainly concerned about injury to her mouth, but also felt pain in her right calf and recalled over the next few days finding bruising in the area, as well as on the left hand side of her stomach and experiencing headaches and a sore foot.
On the evening of the day of the accident the plaintiff began to feel pain in the shoulder and she said that this worsened the next day. However, her main pre‑occupation at this time was with the injury to her mouth. As her shoulder became more uncomfortable she spoke to Dr Shulman about it and was referred to a physiotherapist, Lisa Dallin. She said that physiotherapy did not help her condition very much, and some time later she was referred by Dr Shulman to Dr Peter Silbert, neurologist. She was also seen by Mr Mathew Hansen in relation to her mouth.

Shoulder injury

The plaintiff pleads that as a result of the accident she suffered an "injury to [the] long thoracic nerve causing paralysis of the serratus anterior muscle and winging of the scapula."
The scapula is a flattened triangular bone lying on the posteriolateral aspect of the chest wall. The term "winged scapula" signifies an undue prominence or sticking out of the scapula.
The consequence of a winged scapula can include difficulty or inability in elevating the arm and pain on elevation. The scapula must rotate to allow movement of the arm.
The serratus anterior muscle is connected at various sites to the scapula and travels around the chest wall before joining the ribs.
The long thoracic nerve is the motor nerve for the serratus anterior muscle.
The nature of the plaintiff's condition has been the subject of exhaustive investigations and it is fair to say that there is a deep division of opinion concerning it. There is no disagreement that the plaintiff has demonstrated winging of the scapula but, broadly speaking, there is an issue as to whether she is able to do so voluntarily or whether she has suffered a nerve or muscle injury.
Against this background I turn to examine the course of the investigations into the plaintiff's shoulder condition and to note a number of the opinions expressed.

Dr Geoffrey Shulman

Dr Shulman wrote in a report dated 24 October 1998 that the plaintiff was seen by him on the day of the accident and subsequently on 13 July 1998 and 12 September of that year. He wrote that the nature of her injuries included a "mild to moderate soft tissue cervical whiplash injury" and a "left upper back muscular injury." He also described her continuing symptoms as including "[d]isuse muscle wasting of left upper back."
Dr Shulman did not give evidence in person.

Lisa Dallin

Ms Dallin is a physiotherapist who first saw the plaintiff on 15 July 1998, on referral by Dr Shulman. She was the first physiotherapist to see her and she treated the plaintiff on 12 occasions between then and the end of August of that year. It was her evidence that on the initial and subsequent assessments the plaintiff demonstrated "poor scapulo‑humeral rhythm which was evident of winging of the scapula". She wrote a report to that effect dated 9 April 1999 which she said would have been based upon her clinical notes.
In an earlier report dated 10 December 1998 Ms Dallin did not specifically use the term winging. However, she wrote that: "the left scapulo‑humeral rhythm was markedly affected with restriction of shoulder girdle movement" and she said that this was "a general reference … to that."

Dr Peter Silbert

Dr Silbert first saw the plaintiff on 22 July 1998. In a report dated 24 July 1998 he wrote:
"Over the next few days she was aware of increasing left trapezius and cervical discomfort, and generalised headaches. There were periods of vagueness in the first couple of days, however she was fatigued and had significant discomfort. Her current symptoms are primarily mid‑thoracic muscular discomfort, left trapezius discomfort, and a bifrontal headache. …
Susan's symptoms at present are mainly muscular, however it is relatively early after the accident and they will become more defined with time. She has some subacromial discomfort at this early stage, and this may become more relevant. … At present I have suggested that she reduce her physiotherapy so that it is available in subsequent months when it is of more use to her and to try and stay flexible, to walk regularly and to take regular non‑steroidals."
Dr Silbert reviewed the plaintiff on 3 August 1998 and noted that she continued to complain of left trapezius discomfort and bifronto‑temporal headaches, but that her cervical spine range of movement was reasonably good. He stated in a report to Dr Shulman of 4 August 1998 that he would review her again in six weeks time. However, he saw her on 31 August 1998 in the following circumstances: Mrs Sohn's father was a general surgeon in South Africa and he and her mother were visiting at the time. He examined her and arranged to see Dr Silbert with her, she said, "just to query certain things that Dr Silbert had said and to discuss my condition with him and to try and, you know, sort of establish a treatment."
On 1 September 1998, Dr Silbert wrote to Dr Shulman as follows:
"I reviewed Susan on 31 August 1998 at the request of her husband. Her father who is a Professor of Surgery from South Africa felt that his daughter had sustained a left brachial plexus injury at the time of the motor vehicle accident.
It should be noted that she turned as she was in the passenger seat, and reached backwards with her right arm. Most of her discomfort has been localised to the left trapezius region. He was concerned regarding wasting of the left supraspinatus muscle, rhomboids, hyperaesthesia of the left arm, winging of the scapula, and limitation of shoulder abduction due to muscle weakness. These symptoms seem to have been worse following a recent dental operation. Susan felt they were 'mainly with exertion'.
On examination, although she did wing the scapula on active testing, this was most likely due to pain inhibition and part of her giveway weakness, as she did not wing the scapula when she was doing a pushup, or pushing firmly against the door. It was not really possible to assess her left upper extremity power due to a prominent giveway component in all muscle groups. She remains tender in the subacromial region. Although there may be some early wasting of the left supraspinatus, I feel this is most likely due to disuse and her limitation of shoulder abduction is related to subacromial pain.
Clearly this consultation placed me in a difficult position, and I did not feel, from the way it was presented to me that the patient or their family would accept that this was anything other than a brachial plexus injury that occurred at the time of the motor vehicle accident. (Despite the absence of any of these findings when I first reviewed her, whether or not the current clinical findings were real).
I have therefore arranged for Dr Wally Knezevic to review Susan, and to perform an EMG."
On 20 September 1998 Dr Knezevic wrote to Dr Silbert and Dr Shulman enclosing an EMG report stating that there was no EMG evidence of significant brachial plexopathy or of a long thoracic neuropathy.
Dr Silbert reviewed the plaintiff a number of times in the months after September 1998 while she continued to receive physiotherapy which he had recommended and hydrotherapy.
In a letter to her solicitors dated 5 April 1999 he confirmed the opinion he had formed in the following terms:
"Mrs Sohn's motor vehicle accident occurred on 5 July 1998, and her condition deteriorated in late August, approximately 6 weeks after the motor vehicle accident. Scapula winging had not been noted prior to this date, either by myself or the Physiotherapist. The EMG performed by Dr Knezevic excludes a neurogenic cause for the scapula winging. i.e., there is no evidence for a long thoracic neuropathy causing serratus anterior weakness, but the scapula winging is due to a faulty pattern of muscle activation.
Patients develop faulty patterns of muscle activation for various reasons, most commonly through seeking positions of comfort. In any patient with physical symptoms after a motor vehicle accident, psychological factors cannot be excluded as being contributory, particularly when a deterioration occurs 6 weeks after the accident.
…
I believe that Mrs Sohn's response to injury is such that she has developed an abnormal pattern of muscle movement about the left shoulder, and that she does require ongoing physical therapy. If she continues to wing the left scapula through inhibition of her serratus anterior contraction, then she will cause further damage to her periscapular muscles such as the rhomboid. She is currently benefiting from the hydrotherapy that I referred her for, and I fully support it continuing, recognising that it is likely that she will require a prolonged period of treatment. …
Considering that her symptoms are muscular, there is the potential for significant improvement. …"

Dr Wally Knezevic

I have already noted that Dr Silbert referred the plaintiff to Dr Knezevic and have set out his comments upon his findings. In a report dated 20 September 1998 Dr Knezevic stated that he performed an EMG and nerve conduction studies upon the plaintiff and that there was no evidence of denervation of the serratus anterior muscle or rhomboids. He did note that an MRI scan showed some asymmetry in the size and shape of the serratus anterior but stated that when discussing this with the radiologist its significance was uncertain. It was his view, expressed in the report that she had not suffered any major neural injury. However, he did believe that she had "a significant soft tissue injury and … associated dystonic posturing of the left shoulder."
In a further report to the plaintiff's solicitors dated 5 November 1998 he stated:
"It was difficult to interpret the winging of the scapula in the absence of significant denervation of serratus anterior and also difficult to interpret the significance of the apparent asymmetry of the serratus anterior on the MRI scan."
Dr Knezevic went on to say that he thought the plaintiff would make a full recovery although she may have discomfort for several years. He did not expect any permanent residual weakness or any long term sequelae.

Mr Peter Honey

The next medical practitioner to investigate the plaintiff's condition was Mr Peter Honey, orthopaedic surgeon, who saw her on 12 and 23 November 1998. He considered that there may have been damage to the shoulder joint itself and therefore determined to examine it under anaesthesia. He did so and noted that the scapula posture under general anaesthetic was normal and he was unable to find any structural problem in the joint.
It was his view expressed in a report dated 20 July 1999 that the diagnosis remained obscure and that it was a matter for argument between neurologists. He thought that further studies of the nerves and muscles in the shoulder should be performed.

Dr John Saunders

The plaintiff was seen by Dr John Saunders, general surgeon, for the first time in November 1998. He took a detailed history from her which he sets out in a report dated 23 November 1998. After noting that it seemed that the winging of the left scapula did not develop until some six weeks after the accident he also commented:
"It is difficult to assess the incapacity as a result of the accident. She developed a late winging of the scapula which she said has caused her considerable disability with the left arm. There appears to be associated inconsistencies with this injury."
Earlier in his report Dr Saunders stated that while right shoulder movements were within normal range on examination:
"… it was almost impossible to get active or passive movements of the left shoulder. Winging of the left scapula was prominent throughout the examination and even when attempting to get her to push against the door she did this with her right hand but failed to do so with her left saying she could not do this. Testing of the upper limb muscles again showed inconsistency. All muscles below the shoulder joints showed evidence of give‑way phenomenon and it was noticed that often muscles to different joints instead of acting synergistically tended to act antagonistically."
In a further report dated 12 February 1999 Dr Saunders stated that at his original examination of the plaintiff her "clinical pattern was inconsistent with the natural history of the type of muscular strain or injury to the shoulder in particular, that one would have expected as a result of the motor vehicle accident." He further stated:
"The progressive deterioration and wide spread non anatomical nature of the complaint clearly indicates non physical psycho‑social factors. These include an irrational level of injury disability conviction and possibly medico‑legal factors."
In later reports Dr Saunders confirmed that he was unable to find any evidence of neurological damage to any of the nerves or muscles in the shoulder. It was his view that she demonstrated scapulo‑thoracic dysenergia which he defined as "a disturbance of muscular coordination". He stated that this condition may be involuntary or voluntary and on this occasion he believed it was voluntary.

Professor Mastaglia

On 22 May 1999 the plaintiff was seen by Professor Mastaglia, consultant neurologist. He wrote to her solicitors on 25 May of that year:
"I reviewed the MRI scan of the cervical spine and brachial plexus performed on 4 September 1998 and noted that this showed an asymmetry in the serratus anterior muscles on the two sides, the muscle on the left side being reduced in size in comparison to that on the right. No abnormalities were noted in the cervical or upper thoracic spine or brachial plexus. An MRI scan of the left shoulder joint performed in November 1998 was abnormal showing interarticular capsular folding at the postero‑inferior aspect of the joint together with some degree of superior and anterior subluxation of the head of the humerus.
I gather that Mrs Sohn has also had an electromyographic study, which was performed by Dr W Knezevic in September 1998. This is said not to have shown evidence of denervation of the left serratus anterior or rhomboid muscles nor evidence of a brachial plexus lesion.
My conclusion was that, in addition to the soft‑tissue injuries which your client was considered to have suffered in the accident, there have also been significant injuries to the left shoulder joint and to two nerves arising from the left brachial plexus, namely the long thoracic nerve to the serratus anterior muscle resulting in the weakness of this muscle and "winging" of the left scapula, and the intercosto‑brachial nerve accounting for the sensory impairment in the left axilla and medial aspect of the left upper arm. The reduced size of the left serratus anterior muscle noted on the MRI scan would be consistent with atrophy of the muscle resulting from an injury to the long thoracic nerve."

On 23 September 1999 Mrs Sohn was seen by Professor Mastaglia again and he commented in a report to her solicitors of 27 September of that year that the degree of winging of the scapula was "quite striking". He continued:
"On the basis of my experience I do not believe that this degree of 'winging' can occur unless there is a severe weakness or paralysis of the serratus anterior muscle, (contrary to Dr Silbert's statement) or that it can be induced by 'inhibition of activation of the serratus anterior muscle' as suggested by Dr Silbert. As far as the EMG findings are concerned the serratus anterior muscle is, in my experience, at times difficult to identify with an EMG needle electrode, particularly when the muscle is atrophied as it often is when there is damage to the long thoracic nerve. The significance of the reported normal EMG findings in September 1998 is therefore uncertain."

Professor Allan Skirving

Professor Skirving, consultant orthopaedic surgeon, saw the plaintiff on 31 March 2000 and again on 6 November 2000. He stated in a report of 27 November of that year:
"Like all other practitioners I have some difficulty in arriving at a specific diagnosis. There are however several facts which appear incontrovertible.
Mrs Sohn did not have any problem with her left non‑dominant shoulder prior to her accident.
Mrs Sohn now has a persistently winged left non‑dominant scapula which considerably interferes and inhibits her left shoulder function.
The available evidence, I submit does not suggest a neurological cause for her winging in the form of an injury to the nerve to serratus anterior. This opinion is the result of:
a)It is in my experience highly unusual to sustain an injury to the nerve to serratus anterior in this fashion.
b)There appears to have been at least a brief delay before the winging of the scapula became evident when if this had been due to an injury sustained at the time of the accident the winging would have been apparent immediately.
c)The winging is present at rest and this again in my opinion is a very unusual occurrence with winging of the scapula due to an injury to the nerve to serratus anterior, indeed I do not recall ever seeing this before.
d)There is no EMG evidence to confirm an injury to the nerve serratus anterior. I acknowledge that it is sometimes difficult to accurately place the needle in the muscle belly of the serratus anterior. In addition, the MRI scan has not demonstrated any abnormal signal which one would have expected in a muscle which was denervated.
e)There has been no improvement and certainly no recovery since the time of the accident which is now nearly 2 years and 5 months ago. Most closed injuries of nerves, particularly those caused by an indirect direct blow (sic) recover to a significant extent.
There is no evidence either that Mrs Sohn's winging of the scapula is the result of any intrinsic lesion in the shoulder. This form of winging is well known and seen frequently by shoulder surgeons and is quite unlike that.
Mrs Sohn therefore has a very definite and disabling winging of the scapula which is not clearly the result of injury to the nerve to serratus anterior. There is therefore an argument that the only way to confirm this would be to repeat the EMG and nerve conduction studies and this certainly could be done and would I believe help resolve the matter. There would however be a reluctance on the part of a specialist to do this procedure purely on the basis of medico‑legal necessity.
It is my opinion therefore that Mrs Sohn has experienced an unusual injury to her left shoulder region which has resulted in muscle imbalance, dystonia as described by Dr Peter Honey or dysenergia a term used by Dr Peter Silbert, Neurologist. …"

Mr John Kagi

Mr John Kagi, orthopaedic surgeon, saw the plaintiff on 2 June 2000. He has a special interest and experience in brachial plexus lesions. He noted in a report of 9 June 2000 that there was very obvious winging of the left scapula even when the plaintiff was clothed in a T‑shirt and skivvy. He wrote:
This woman has winging of the left scapula which on history has arisen since the motor vehicle accident. There are many causes of scapular winging. The fact that the deformity (the winging) disappeared when Mrs Sohn was prone suggests that there was no bony cause. Serratus anterior palsy would be a difficult diagnosis to maintain in the fact of normal EMG and the lack of denervation changes on the MRI.
…
By exclusion, the most likely causes of Mrs Sohn's winging are primary causes in the shoulder itself and they would seem to have been excluded by Dr Honey, or the rare cause, voluntary subluxation. I personally have no experience of this condition and in the literature there are only a handful of cases."
Mr Kagi reviewed Mrs Sohn in about October 2001 and arranged for a further MRI to be done. In a report of 19 October of that year he stated that the MRI was reported as normal showing no MR evidence of denervation. He then stated:
"As intimated in my initial report, it is my opinion that Mrs Sohn's winging is not the result of paralysis of the serratus anterior muscle, or indeed paralysis of any muscle controlling the scapula, and as a corollary of this, of any damage to any nerve supplying the peri‑scapular muscles, in particular the long thoracic nerve. From the three occasions on which I have examined her it has been my distinct impression that the winging is, at different times, of a different amount. I have expressed the opinion that the cause is likely to be the relatively rare voluntary winging, and this is still my opinion."

Mr David Sonnabend

Mr Sonnabend is Associate Professor of Orthopaedic Surgery at the University of New South Wales.
He saw the plaintiff in June 2000 and wrote a report dated 16 June. He wrote:
"There are numerous causes for winging, but they fall into three broad categories. The first is neuromuscular, essentially any condition paralysing or disrupting the serratus anterior. The second is the presence of any mass between the scapula and the chest wall preventing the scapula from sitting on the chest wall. The third is an assortment of instabilities, mainly posterior, in which the scapula comes forwards to provide a posterior buttress to keep the humeral head from slipping out of joint.
In your sister's case, I could find no evidence at all for the third group. If there was a mass lesion present, one would not be able to passively reduce the scapula, and that is not the case. This leaves neurological or muscular causes."
Mr Sonnabend went on to state that his "best guess" is that there was an underlying neurological explanation for the plaintiff's condition and recommended repeat conduction studies of the serratus anterior by another neurologist.

Dr Mark Hersch

Dr Mark Hersch is a neurologist practising in New South Wales. He saw the plaintiff in March 2001 and performed an EMG at the request of Professor George Murrell, a Professor of Orthopaedic Surgery.
Dr Hersch wrote to Professor Murrell on 30 March 2001 stating:
"I took the opportunity to have a quick look at her signs and my conclusions, both clinically and electrophysiologically, are that the major problem affecting the left shoulder region is attributable to left trapezius dysfunction. Whether or not there is super‑added serratus abnormality, given the marked abnormality that trapezius weakness has caused on the function of the scapula I find it difficult to tell; there may be additional nerve and muscle dysfunction."

Professor George Murrell

Professor Murrell saw the plaintiff in Sydney on 14 March 2001 and wrote a report dated 14 August.
As I have noted he had arranged for a nerve conduction study and reviewed by Dr Mark Hersch. He also arranged for a MRI by Dr Ron Shnier. In his report of 14 August Professor Murrell states:
"The EMG showed abnormality of the left trapezius and sternomastoid but was normal with respect to the left serratus and right trapezius. Dr Ron Shnier performed the MRI. The report by him concludes that there was a mixed pattern of muscle wasting seen on the neck and the chest, which did not fit with any anatomical distribution. The MRI performed at Queensland X‑ray on 31 August 2000, showed wasting of the left serratus anterior muscle and associated winging of the left scapula. There was wasting of the left pectoralis major and minor muscles and left rotator cuff muscles.
In summary, I am of the view that Mrs Sohn has sustained a significant injury to one or more nerves supplying the scapular stabilisers of her left shoulder. I am of the view that this most likely occurred during the accident that she described occurring in July 1998. This has left her with a permanent cosmetic and functional deformity, which renders a significant loss of the use of her left shoulder and upper limb."

Mr Michael Alexeff

The plaintiff was reviewed by Mr Michael Alexeff on 4 April 2003. He noted the extensive reports and findings of other practitioners and that the plaintiff "clearly retains subjective symptoms and has objective evidence of scapulo‑thoracic dysfunction." He felt that there was no neurophysiological evidence of serratus anterior palsy and concluded:
"It may be that a cause is never found. This raises the question then of Dr Silbert's original diagnosis which may be correct."

The nature of the plaintiff's shoulder condition

As can be seen there is a considerable divergence of opinion as to the nature of the plaintiff's shoulder condition. I have not set out all the views of the medical practitioners who testified but clearly some believe that the plaintiff has suffered a neurological injury while others think that she demonstrates dyssynergia or dystonia the cause of which is unknown, or is able to wing her scapula voluntarily.
In the course of his evidence Dr Silbert was adamant that the plaintiff did not demonstrate winging when he first saw her on 22 July 1998. At that time he specifically noted her complaint of subacromial discomfort and he conducted an upper limb neurological examination which he was confident would have revealed it. He only saw the winging when it was brought to his attention on 31 August 1998. However, he said she only demonstrated it on active testing and when the push test was administered the serratus anterior muscle operated normally to hold the scapula in place.
In Dr Silbert's opinion this was significant because it demonstrated "antalgic inhibition" or "give-way weakness". In other words the winging was voluntary although when he examined the plaintiff he was prepared to accept that it might be due to pain.
Dr Silbert's comment upon the findings of Dr Schnier on an MRI scan and Dr Hersch on EMG was in effect that they support his view that there was no injury to the nerves of the shoulder.
Professor Mastaglia said that if winging had a neurological cause it would not necessarily be manifest immediately. He expressed the view that it is possible for a neurological injury to a peripheral nerve to be delayed for a "matter of days at least and sometimes even a week or two". In this case Dr Silbert first saw the plaintiff 17 days after the accident.
Professor Mastaglia questioned whether Dr Silbert may have overlooked the presence of winging on his initial examination. He did in fact accept that it was difficult to imagine that winging was not present on 22 July 1998 but noted that Dr Silbert reported having examined the plaintiff with a sheet around her.
Apart from noting the pitfalls in conducting an EMG study of the serratus anterior Professor Mastaglia also noted that the EMG study of the trapezius and sternomastoid muscles performed by Dr Hersch was abnormal.
It was the professor's view that both the serratus anterior and trapezius muscles were implicated in the plaintiff's condition. He wrote in a report dated 27 October 2003:
"2.On the basis of my current assessment I believe that there is significant weakness and malfunction of the trapezius muscle as shown by impairment of shoulder elevation, and I believe that the weakness of the trapezius muscle is contributing to the winging of the scapula and for the accentuation of the winging when the shoulder is abducted. The weakness and atrophy of the trapezius muscle is presumably the result of an injury to its nerve supply (ie the spinal accessory nerve).
…
5.In my opinion, I believe that it is possible that the spinal accessory nerve may have been damaged as a result of a traction injury resulting from the combination of your client twisting to reach her daughter in the back seat, and the restraining action of the seatbelt at the time of the accident. The occurrence of stretch or traction injuries to the spinal accessory nerve is well documented in the literature (eg Logigian (Muscle & Nerve 1998; 11:146‑150); Porter and Fernandes (Journal of Shoulder Elbow Surgery 2001; 10:92‑93).
6.I agree that, with hindsight, it would have been appropriate for the initial EMG study to have included the trapezius muscle.
7.As far as Dr Silbert's interpretation of Dr Hersch's EMG findings in the trapezius and serratus anterior muscles, he seems to be suggesting that Dr Hersch's finding of 'polyphasic and excessively spiky' potentials in the left trapezius and sternomastoid muscles may not necessarily indicate denervation in the absence of spontaneous denervation potentials (ie fibrillations and positive waves).
While I accept that it is difficult to make a confident diagnosis of denervation on EMG when fibrillation potentials and positive waves are not found, the finding of polyphasic motor unit potentials, a reduced interference pattern, and motor units firing at high rates (as recorded by Dr Hersch in his report on 23 March 2001), would still be compatible with partial denervation of the muscles in question as a result of an incomplete lesion of the spinal accessory nerve. Bearing in mind that Dr Hersch carried out his EMG study almost three years after the original injury, it would not be surprising that fibrillation potentials and positive waves were not present after such a long interval.
Moreover, it is known that negative or inconclusive EMG findings do not exclude an injury to the spinal accessory nerve (eg see Post M in 'Orthopaedic Management of Neuromuscular Disorders').
Dr Silbert also states that the EMG of the serratus anterior muscle was normal and that this argues against an injury to the long thoracic nerve. However, as indicated above in the case of the spinal accessory nerve, normal or inconclusive EMG results do not necessarily exclude a partial nerve injury. Moreover, as indicated in my previous reports, there are sometimes technical difficulties in recording the EMG from the serratus anterior muscle."
There was a conflict in the evidence as to whether the plaintiff was seen to wing her scapula intermittently. The significance of such evidence was that if it was accepted a permanent deformity and an injury to the nerves in the shoulder might be eliminated as a cause of her condition. In relation to the latter Dr Silbert said:
"I think the basic principle is that if someone has a nerve lesion they will have fixed deficit. If someone has a long thoracic neuropathy and wings their scapula due to that, they will always have it, it would always be present."
In the course of the trial evidence was led of surveillance videos taken of the plaintiff in February 2003. Like much else in this case what they demonstrated was very much in issue. Professor Mastaglia in particular and Dr Harper maintained that it was not possible to see whether the plaintiff's scapula was winging by reason of the clothes she was wearing and the quality of the views. Dr Kagi on the other hand claimed that the views were excellent and that winging was not detectable. Dr Silbert gave evidence that he did not think he saw any winging on video and Professor Skirving wrote in a report "at no time through the clothing is the scapula obviously winged." Mr Alexeff agreed that winging was not evident.
Having carefully viewed the videos for myself I have to say that I feel unable to make a finding that they do or do not demonstrate winging. This conclusion is perhaps not surprising given the differences of opinion among the medical experts and the doubt expressed by some even as to the evidence of the physiotherapist, Lisa Dallin.
Of all the practitioners who testified the only ones who appear to claim to have seen the plaintiff winging intermittently when not prone with their own eyes are Drs Silbert and Knezevic.
Dr Silbert said that while he saw winging on active testing the plaintiff did not wing the scapula passively when doing a push up or pressing firmly against a door.
Dr Knezevic wrote in his report of 20 September 1998:
"With the arms extended pushing against the wall, although the left scapula was riding high it is not actually wing (sic) off the thoracic cage."
On the other hand Mr Kagi noted that the plaintiff winged "continuously" on each of the occasions he saw her, although it was his impression that the degree of winging varied. He also wrote in his report of 19 October 2002 that while winging was very obvious with her arm by her side this increased when she pushed on a wall.
Professor Skirving also noted that pushing against a wall with her arms in front of her also caused increased winging of the scapula. He stated that during each consultation the scapula had been persistently winged and elevated. A video tape of the plaintiff pushing against a wall also showed the scapula to be winging.
Dr Silbert last saw the plaintiff to examine her in February 1999 over five years ago and he said that at that time he felt that her abnormal shoulder movements were contributed to by pain. However, he said that dyssynergia is a condition which usually improves over time and as the plaintiff had not improved all he could conclude is that she demonstrated a bizarre winging of the scapula which was not explained neurologically. Nevertheless, as he stated in his report of 24 August 2001:
"For all the controversies in the reports, as I stated in my initial medico‑legal report, the initial disability is the same and the persistence of symptoms, results and the final disability being the same whether the diagnosis was scapulo‑thoracic dyssynergia as I initially suggested or neurological."
Other practitioners who emphasised the absence of any evidence of neurological injury in expressing their views are Dr Kagi, Mr Alexeff, Dr Saunders and Professor Skirving.
Of these Dr Kagi, unlike Dr Silbert, does not accept that the plaintiff could be winging due to pain inhibition. He classifies the winging as voluntary although not necessarily due to what he describes as "malingering". He said that voluntary winging could be due to hysteria but he said that he was unable to distinguish between the two. There is no evidence of hysteria here.
I have already noted that Dr Saunders expressed the opinion that the plaintiff was suffering from dyssynergia of a voluntary kind. However, in a report dated 6 November 2001 he stated: ***
"I note that Dr Skirving has estimated the loss of function as being fifty percent of the left overall function above the elbow. I would agree with this."
When it was put to Dr Saunders that there was an inconsistency in his views he said:
"I'm saying she wasn't using her shoulder because she was voluntarily inhibiting it and because of that she did have a disability because of the voluntary inhibition."
I have already noted Mr Alexeff's comment that the cause of the plaintiff's condition may never be found. He said in evidence in his evidence: "something is not working."
While he continues to maintain that the plaintiff has not suffered any injury to the nerves of the shoulder Professor Skirving has no doubt that she wings her scapula as a result of the motor vehicle accident and, as I have noted, estimates her disability to be in the region of 50 per cent of the overall function of the left shoulder. In the course of his evidence he stated:
"… to suggest, … that this is voluntary, that this is feigned and that the tertiary consequences are feigned – because if you're saying then that she actually goes home and uses her arm normally, then that would be [an] Academy Award. I mean, that's pretty impressive if that's – and I don't believe that that's the case, but I still don't know the aetiology of her winging of the scapula."

The cause of the plaintiff's shoulder condition

Counsel for the plaintiff submitted that as a matter of law it did not matter which diagnosis was correct so long as the court accepted that the plaintiff had suffered an injury to the shoulder as a result of the accident. He cited the judgments of Mason J (as he then was) and Murphy J in Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720 at 724 and 725 as authority for that proposition but in the end of course each case turns upon its own facts. Nevertheless it is true to say that a finding of causation may be made in an appropriate case even if the precise medical mechanism whereby an injury was sustained is the subject of controversy (see for example, Bryden v Chief General Manager of the Health Department (1987) A Tort Rep 80‑075 and the remarks of Vincent J at 68,368).
In examining the question of whether the plaintiff has a condition in her shoulder resulting from the accident the starting point is to observe that there is no evidence that prior to it she had any shoulder problems and indeed there is uncontradicted evidence that she had none. A report from Dr Hugh Cobb, the plaintiff's family physician in Johannesburg was tendered confirming that he saw her as a patient before she emigrated to Australia and stating that she had no history of musculo‑skeletal injuries or disabilities. Dr Cobb wrote:
"The physical examination in this regard was entirely normal. …
If required, a copy of Form 26 will be provided. This is the medical examination that people emigrating to Australia are required to have and include comments on the musculo‑skeletal system."
In addition to this evidence there is a report from Dr Fine dated 13 August 1999 which was tendered. Dr Fine practises as orthopaedic surgeon in Queensland and is the plaintiff's brother‑in‑law. He states that he has known her for a period of 13 years and that when he saw her in June 1999 she had diminished function and pain in the left shoulder and muscle weakness around it with winging of the left scapula. He continued:
"These abnormalities were not present prior to her motor vehicle accident in July 1998. She previously had a completely normal left shoulder girdle."
It is also appropriate to observe that within a short time after the accident the plaintiff complained of pain in the region of the left shoulder. I have already noted that Dr Shulman who saw her on the day of the accident noted a left upper back muscular injury and on 15 July 1998 Lisa Dallin the physiotherapist found what she described in her report of 10 December 1998 as "extensive muscle spasm of the upper trapezius and levator scapular muscles." She also noted the left scapula‑humeral rhythm was markedly affected and stated in her report of 9 April 1999 that winging of the scapula was present on initial and subsequent attendances. While there is an issue as to whether Ms Dallin saw a true winging of the scapula the point is that it is at least clear that she saw objective evidence of some dysfunction in the normal movement of the shoulder.
It is also true that Dr Silbert who saw the plaintiff on 22 July 1998 states that winging of the scapula was not then apparent but he nevertheless noticed that "she was tender to palpation over the left trapezius muscle and diffusely over the thoracic paraspinal musculature."
Dr Silbert again noted the same complaints by the plaintiff when he saw her on 3 August 1998 and, of course, he did see winging of the scapula on 31 August of that year. As to whether he should have seen it earlier I note Professor Mastaglia's comments but in any event it is clear that Dr Silbert did find some problem in the region of the shoulder.
In my opinion it is clear on all the evidence that whatever the precise mechanism of it the plaintiff has suffered an injury to her shoulder as a result of the motor vehicle accident. Both the timing of her complaints in the period immediately following the accident and the findings of the practitioners who examined her in the first few months after it support this conclusion. Despite the differences of opinion as to the precise nature of the condition I am satisfied that the plaintiff has suffered a shoulder injury and a resultant disability in consequence of the negligence of the defendant.

Psychiatric harm

The plaintiff pleads in her statement of claim that as a result of the accident she has suffered an adjustment disorder with severe shock and subsequent anxiety, panic attacks and depression.
This is a re‑trial and at the beginning of it counsel for the plaintiff informed me that the claim under this heading was limited to harm suffered before the last trial.
I understood that concession was made because the plaintiff and her legal advisers were content to accept that the adjustment disorder had largely resolved by then. I also understood that the plaintiff did not want to go back to be reviewed by Dr Mustac, psychiatrist, who had been engaged by the defendant for medico‑legal purposes.
I have already noted that in the course of this trial Dr Kagi raised as a possibility that the plaintiff had suffered psychiatric harm in the form of an hysterical reaction. When that was done counsel for the plaintiff sought an adjournment of the matter and to be relieved of any agreement to limit a claim of that nature so as to pursue the possibility that one existed.
An adjournment was granted but when the trial resumed there was no application to amend the statement of claim to plead that the plaintiff has suffered hysteria or any psychiatric harm other than that pleaded.
The position as I understand it then remains that the plaintiff simply claims damages under this heading relating to an adjustment disorder with severe shock and subsequent anxiety, panic attacks and depression. I also understand that it is accepted that her condition resolved by the time of the first trial.
In his report of 24 October 1998 Dr Shulman noted that the plaintiff had suffered "severe shock with subsequent anxiety and panic attacks" and "anxiety and depression". He referred her to Dr Bill Douglas, clinical psychologist who saw her for the first time on 1 August 1998.
It was Dr Douglas's view, expressed in a report of 11 August of that year, that the plaintiff was suffering from an adjustment disorder and that psychotherapeutic counselling was required.
In a second report dated 19 October 1998 Dr Douglas wrote:
"2.In diagnostic terms I feel that she is suffering from the effects of an Adjustment Disorder with depressed mood which I believe is a direct result of her motor vehicle accident and the injuries sustained.
…
6.I would say that she is currently quite unfit for work from a psychological point of view, and her psychological symptoms and pain would make it extremely difficult for her to concentrate and undertake any meaningful work."
On 17 September 1998 the plaintiff was referred by Dr Shulman to Dr Roger Paterson, psychiatrist. Dr Paterson wrote in a report of 14 November 1998 that he agreed with Douglas's diagnosis of an adjustment disorder with anxiety/depressed mood. He thought medication for her nervous condition as well as psychological counselling was necessary and considered that her progress towards recovery would be slow.
Following the plaintiff's first consultation with Dr Paterson he saw her on a weekly basis until the end of 2000 and thereafter fortnightly.
On 2 February 2000 the plaintiff was seen by Dr Zelko Mustac. He agreed that she had suffered an adjustment disorder associated with symptoms of anxiety as a result of the accident but considered that her condition had by then resolved. He also wrote that she was keen to embellish her symptoms and that she had attempted to deceive him and concluded that she was malingering.
Dr Paterson disagreed with Dr Mustac's view that by February 2000 the plaintiff's adjustment disorder had resolved. As I have noted he continued to see and treat her by counselling throughout 2000 on a weekly basis and thereafter on a fortnightly one. It was not put to him in cross‑examination that he was wrong to continue to see her and I do not accept that he was. Dr Paterson explained that it can be difficult to say how long treatment should persist but ongoing physical problems can result in an ongoing adjustment disorder and there is no doubt of the existence of such problems in this case.
Dr Mustac came to the conclusion that the plaintiff was embellishing her symptoms and malingering after administering the so‑called TOMM test. TOMM stands for test of memory malingering and Dr Mustac said that "it was designed to detect people who are feigning concentration or memory problems who have had some sort of trauma such as a head injury due to a motor vehicle accident." The result of the single test he administered was a score of 35/50 which was very low indeed. He said:
"The reason I administered it is because she had complained of this terrible problem with concentration and in fact her treatment with my respected colleague Dr Paterson had focused on her allegedly having anxiety and poor concentration. I found no evidence for the anxiety. As I have indicated she came across as a very self assured lady, who related in a confident fashion. And I found no evidence for the concentration problem because, as you will note, she gave a very detailed answer and she was a very clear historian. She had a good turn of phrase. I found it totally inconsistent that she be complaining of this terrible concentration problem. So I gave her the TOMM in an effort to see would she attempt to exaggerate on it and, as I have indicated, she scored that low score."
A great deal of evidence was placed before me to dispute the propriety of Dr Mustac's approach and in particular to attack the way in which he administered the TOMM test.
Dr Mustac has in fact been professionally disciplined for his use of the TOMM test and the reasons for the disciplinary proceedings and the results before the Medical Board were also referred to.
Evidence regarding the TOMM test and its significance was provided by Dr Douglas and Dr Groth‑Marnat. Both are highly qualified clinical psychologists and they were very critical of Dr Mustac's approach.
Dr Douglas wrote in a report dated 11 August 2000:
"The test of Memory Malingering (TOMM) was initially developed by a Professor Tombaugh in Canada. It was specifically developed for the detection of malingering among a rather specific sub‑group of cognitively impaired patients. That sub‑group, was patients presenting with memory loss as a result of brain injury. In the course of presenting basic research data for this test, the author has published data on the performance of non‑brain impaired control subjects and it would appear to be this data that Dr Mustac has used in order to compare Mrs Sohn's performance. However, it is quite inappropriate to use such normative data as a measure of malingering in a case such as Mrs Sohn's because this data is not based upon individuals presenting with Adjustment Disorder and associated anxiety. It is particularly noteworthy that Tombaugh (1997, p 263) makes the point in relation to the TOMM that this test was specifically developed for assessing patients with 'neurological impairment' and furthermore '… norms for various types of neurological impairments must be available against which scores from suspected malingerers can be compared.' In other words, this test cannot be reliably used to assess malingering among brain impaired patients presenting with any other disorder than memory deficit, let alone a patient such as Mrs Sohn presenting with Adjustment Disorder. It is therefore completely inappropriate to use this test in order to assess malingering among patients presenting with purely psychological symptoms.
Where Mrs Sohn's performance on this test was concerned, it is noteworthy that Dr Mustac observes that it appears that Mrs Sohn has a 'problem with concentration'. I think it is well known that concentration difficulties is a common symptom of anxiety and would also be a reasonable explanation of her less than perfect performance rather than any deliberate attempt to deceive. Furthermore, I note that on page 6 of Dr Mustac's report, he reports that she scored 35 out of 50 and makes the comment that 'this indicates an intention to deceive me'. He comments further that 'it was revealing that her performance declined after I told her that she was getting more answers right than wrong during the test'. In my reading of the transcript however, it would appear that Dr Mustac has made a simple error of arithmetic with an error rate of 47.3% up until the time of his comment that 'she was getting more answers right than wrong' compared with an error rate of 37.5% following this comment. Her performance therefore continued to improve and did not decline as the test progressed.
In summary, I would agree that Mrs Sohn was presenting with symptoms of an Adjustment Disorder when I saw her in 1998. Dr Mustac's use of the TOMM test as a measure of malingering in this case is quite inappropriate and in fact constitutes a gross misuse of this psychometric instrument. Finally, he has made a mathematical error in describing the trend of her performance."
Dr Groth‑Marnat said in evidence that the TOMM test was:
"… designed to look at memory exaggeration … and that's the flaw in the thinking that Dr Mustac is trying to say that this test of malingering from memory can be a blanket test for any type of malingering someone is doing. I can't imagine any person qualified to do psychological testing that would agree to that."
In my view it is clear that in assessing the plaintiff Dr Mustac has used the TOMM test incorrectly and his conclusions should be rejected. In addition I accept the evidence of Mr Douglas and Dr Paterson that they found no suggestion of malingering or a preparedness to exaggerate in the plaintiff's presentation.

Injury to the mouth

I have already noted that the plaintiff was born with a cleft lip and palate and that she had seen Mr Hansen, cranio facial surgeon, before the accident. At that stage which was in about 1998 her concern was some protuberance of cartilage in the roof of the mouth, the result of earlier surgery. However, nothing had been done about it before the accident.
On 13 August 1998 the plaintiff attended on Mr Hansen complaining of increased discomfort and swelling around the cartilage graft and some looseness in the upper left central incisor. Mr Hansen noted that the swelling was significantly interfering with her denture and affecting her ability to eat.
On 17 August 1998 surgery was performed to trim the edge of the cartilage and at that time Mr Hansen wrote in a report dated 8 October 1998:
"The operative findings were that the cartilage graft had become fairly loose and there was some surrounding pus, suggestive of a low grade infection. In order to try and free up the tethering of her upper lip a local flap was performed at the same time to lengthen the upper buccal sulcus, adjacent to where the cartilage graft was trimmed."
Dr Hansen reported that the plaintiff recovered well from this surgery.
The looseness of the upper central left incisor was treated by Dr Mark Davis, endodontist. He wrote in a report dated 23 March 1999 that when he examined it the tooth was slightly discoloured and he went on to perform root canal treatment.
In the meantime the plaintiff developed a fistula in the roof of the mouth just behind her incisors and was seen again by Mr Hansen who wrote on 26 January 1999:
"Since the time of my previous correspondence to you she has developed a fistula in the roof of her mouth just behind her incisor teeth. A fistula is a small split in the lining which communicates from her mouth to her nose. The fistula has arisen along the lines of one of the previous scars from her palatal surgery but did not appear until after the car accident which occurred on the 5th of July 1998."
Surgery to close the fistula was performed at the Mount Hospital on 15 February 1999 and on 6 April of that year Mr Hansen reported that it appeared then to have been "highly successful, the hole being closed and subjectively Susan stated that her speech was much better".
Although the defendant pleads that "any dental or oral problems complained of by the plaintiff were pre‑existing and not related to the motor vehicle accident" I am satisfied that the looseness in the upper left central incisor was caused by a blow sustained in it and as a result she was required to have the treatment which was performed by Dr Davis. Dr Davis' evidence, which I accept, is that the root canal treatment would normally have taken two or three visits but that because of the plaintiff's cleft palate and the trauma some 11 or 12 sessions were necessary.
I also accept Dr Davis' opinion that because of the fragile nature of the plaintiff's palate and the existence of bone grafts she will experience significant complications if she loses the tooth and is required to have repair procedures carried out.
In my view it is also quite clear that the operations performed by Mr Hansen on 17 August 1998 and 15 February 1999 were necessary as a result of the accident.
While the plaintiff had seen Mr Hansen earlier surgery only became necessary on the first occasion because of inflammation and swelling which interfered with her ability to speak and eat.
As far as the fistula is concerned Mr Hansen was clearly of the opinion, which I accept, that it was caused by the trauma of the accident. He was closely cross‑examined on the question and stated that he first noted the fistula on 12 October 1998. Nevertheless he said that it would have been present before that. While he stated in a report dated 8 October 1998 that it was very difficult to unravel how much of the plaintiff's condition was due to the accident he also wrote that further surgery in the area of the buccal sulcus may be required on a result of the trauma and that is where the fistula was located.

General damages

The plaintiff gave evidence that if she sits for long periods her shoulder feels painful and "dragged down". Household activities such as mopping and using a vacuum cleaner causes a pulling sensation in her back and also give pain. She has difficulties in reaching out with her left arm and uses her right to select gears in the automatic car she drives. She uses her left hand to steady the steering wheel but her right to turn it. Her sleep is also sometimes interrupted by sharp pain in her shoulder.
The plaintiff also said that she has problems using a computer. She said that she used to be a fast two‑handed typist. Now she cannot use both hands on the keyboard and she would have difficulty using her left hand to turn a document over and in coordinating activities such as using a mouse in one hand and a dictaphone in the other. Reaching out for documents and carrying heavy files around the office would also pose a problem.
These complaints, which I accept, generally reflect the point made by Professor Murrell who is of the opinion that the plaintiff has suffered a significant loss of the use of her left shoulder and upper arm. As he put it:
"Most specifically, there is poor muscular control of the scapula. Good scapula control is necessary for good shoulder function. Good shoulder function is necessary for good elbow and hand function."
In my opinion the defendant's submission that the plaintiff has exaggerated her difficulties should not be accepted. In my view it is clear on all the evidence that she has suffered a significant injury which has resulted in persistent pain and limitation upon the function of the shoulder. I do not find it surprising that as a consequence her ability to cope with many day to day activities has been curtailed and that there are some things she cannot do and others that cause her difficulty.
I am satisfied on all the evidence that the plaintiff's shoulder condition is permanent. She has now had it for over six years and the overwhelming view among the medical practitioners is that nothing is likely to change without surgery.

For some time she did wear a brace, designed to hold her scapula in place, on the recommendation of Mr Sonnabend. However, while the plaintiff said that this did improve the movement of her shoulder and alleviate some discomfort, it was itself uncomfortable and made her feel like she was in a straight‑jacket. She gave up wearing it after a few months and now wears a nylon halter for comfort.
There was some evidence concerning the surgical options open to the plaintiff. In his report of 14 August 2001 Professor Murrell mentioned the possibility of a scapular thoracic fusion, a procedure which he described as "a very rare operation" and the plaintiff said that she wishes to have it. Professor Murrell said of this surgery:
"The main aim would be to reduce the dragging sensation that she would have in her arm and give her better control, especially with overhead activities. But of your whole shoulder movement about 30 to 40 per cent comes from the scapulothoracic articulation, so she would obviously lose that movement, so one would expect that she would lose at least 30 to 40 per cent of the movement of her arm … primarily above the head, above shoulder height."
Professor Skirving is also of the view that the plaintiff would benefit from surgery and he said a number of procedures may be available to her but the difficulty was to choose the one which was appropriate. In any event, he said, it was unlikely that with a successful operation she would regain normal function and become pain free."
In addition to her shoulder injury the plaintiff has suffered psychiatric harm the effects of which persisted for a long time and required extensive counselling. Further, she has sustained injuries to her teeth and the roof of her mouth.
In all the circumstances I am satisfied that the plaintiff's capacity to engage in ordinary everyday activities were and have been significantly diminished. I assess damages for non‑economic loss at 35 per cent of a most extreme case and as a result the amount to be awarded is $89,950.

Past economic loss

Professor Mastaglia considers that the plaintiff remains incapacitated for work as an accountant or bookkeeper and does not believe that it would be realistic for her to attempt to take on any other forms of work involving keyboard activities or repetitive lifting, bending or the co-ordinated and repetitive use of the upper limbs.
This opinion, of course, is consistent with the view which he and others hold that the plaintiff has suffered injury to one or more nerves in the shoulder.
A number of medical practitioners who do not think there is any neurological injury are of the opinion that she has a significant impairment but do not consider that she is necessarily disabled. Mr Alexeff, for example, said that with the scapula being rotated and protracted her arm would already be ideally placed to operate a keyboard. Professor Skirving agreed and thought that she could, if she wished, return to work as an accountant.
Nevertheless both said that the plaintiff had suffered some loss of function which would limit her activities. Professor Skirving considered that she may well have some difficulties in coping with certain aspects of work as an accountant involving in particular heavy activities and dexterous work and, as I have already noted, estimated that she had suffered a 50 per cent loss of function in the left upper limb above the elbow. Mr Alexeff did not agree with this estimate but conceded "a degree of ongoing impairment".
The other medical practitioner whose evidence in relation to this aspect of the case should be noted is Dr Andrew Harper, consultant occupational physician. It was his view that the plaintiff was incapacitated for work as a bookkeeper or accountant being only able to sit continuously with difficulty, and unable to regularly lift and handle office files or to engage in repetitive work with her left arm especially when extended. Dr Harper also noted that the plaintiff's confidence and ability to concentrate had been impaired as a result of the dysfunction of her shoulder. This was also the evidence of the plaintiff herself. It was Dr Harper's opinion that her employability was significantly reduced.
In the light of all the evidence I am satisfied that the plaintiff has been unable to work since the accident.
Turning to the question of the extent to which the plaintiff would have exercised her capacity to earn I am of the view that it is likely that she would have sought and obtained employment as a bookkeeper/accountant by the end of 1998. However, there is no evidence that she intended to work on a full time basis and the children were still young at that time. I also note that in the two years or so before coming to Australia, the plaintiff had worked in her husband's practice no doubt in a position which suited her role in the family and did not demand her full time presence.
Evidence was led that a qualified bookkeeper/accountant such as the plaintiff could earn an income working full time of between $38,000 and $47,000 per annum.
I would accept that the plaintiff would have been likely to have earned about $300 net per week working in a part time capacity.
309 weeks have elapsed since the beginning of 1999 and the plaintiff could therefore have earned an amount of $92,700 net in this time and I allow that sum, together with interest on it at the rate of 3 per cent per annum.

Future economic loss

The plaintiff is 40 years of age and I accept that she intended to work until 65.
In all the circumstances I do not believe that she would have worked full time in the future. There is no evidence that she intended to.
It is true that as the children grow older the plaintiff will have more time on her hands but I think that it is more likely than not that a part time work arrangement, perhaps involving her husband's practice would have been made.
In my opinion an assessment of future economic loss should be made upon the basis that the plaintiff would have continued to work part-time earning in the order of $300 per week.
The relevant multiplier is 686.9 and the result is $206,070.
There is I think a reasonable chance that notwithstanding her lack of keyboard skills and the like the plaintiff could still work in a legal practice for her husband or in a similar environment where she would not feel intimidated and could work at her own pace.
I would discount the sum of $206,070 by one third to allow for these contingencies as well as the ordinary vicissitudes of life and the result is $137,380.

Loss of superannuation benefits

The net income of $300 per week to which I have referred translates to a gross weekly income of $338. I would therefore allow the sums of $5,848.75 and $13,001.64 for past and future loss of superannuation benefits.

Domestic assistance

The plaintiff and her husband employ a cleaner for five hours per week at a present day cost of $15 per hour. The plaintiff said that they have done so for the last five years paying $12 per hour until about two years ago.
I consider that this claim is reasonable. I would allow an amount of $17,160 for the past, plus interest thereon at 3 per cent per annum and for the future, calculated by reference to the multiplier for 30 years which is 739.6, the result is $55,470. This sum should be discounted by 10 per cent to allow for a variety of contingencies including some degree of success in surgery. The sum to be awarded is therefore $49,923.

Gratuitous assistance

The plaintiff brings a claim for the cost of gratuitous assistance provided by family members, notably her husband and calculated by reference to a need of two hours per day at a rate of $12.50 per hour.
I think that two hours per day is too much, but I do accept that there are a lot of ordinary household tasks which the plaintiff cannot perform and which would not be attended to by hired help. They include such matters as lifting and carrying heavy cooking pots, making beds and some ironing.
I would allow for one hour per day.
For the past the amount allowed under this heading is the sum of $27,037.50. For the future using the appropriate multiplier, the amount arrived at is $58,243.50 after allowing a discount of 10 per cent for contingencies.

Dental expenses

Dr Davis is of the view that the incisor damaged in the motor vehicle accident may require further root canal treatment once in the plaintiff's lifetime at a cost of $688. I allow this sum.

Future medical expenses

I would allow $3,000 under this heading.

Special damages

The plaintiff has incurred medical and travelling expenses of $16,385.37 and I am satisfied that this amount should be allowed.

Conclusion

I assess the plaintiff's damages in the sum of $530,417.32 made up as follows:
Non‑pecuniary loss  $89,950.00
Past economic loss  $92,700.00
Interest on past economic loss  $16,525.56
Future economic loss  $137,380.00
Past loss of superannuation  $5,848.75
Future loss of superannuation  $13,001.64
Past domestic assistance  $17,160.00
Interest on past domestic assistance  $2,574.00
Future domestic assistance  $49,923.00
Past gratuitous assistance  $27,037.50
Future gratuitous assistance  $58,243.50
Future dental treatment  $688.00
Future medical expenses  $3,000.00
Special damages  $16,385.37
$530,417.32