Stein v Higgs - [2000] WADC 213

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: STEIN -v- HIGGS & ANOR [2000] WADC 213

CORAM: GROVES DCJ

HEARD: 17-18 FEBRUARY 2000

DELIVERED : 22 AUGUST 2000

FILE NO/S: CIV 4831 of 1998

BETWEEN: ANTONIA VICTORIA STEIN
Plaintiff
AND
DARREN WALLACE HIGGS
First Defendant
TRACEY ALMA CARROLL
Second Defendant

Catchwords:

Damages - Assessment - Personal injuries - Two motor vehicle accidents - Low speed rear end collisions - Assertion of threshold striking speed for there to be symptoms - Minor injuries to low back and cervical spine - 56 year old part-time aged-home carer

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943, s 3C

Result:

General damages (after deduction of statutory threshold) of $450 for first accident and $11,400 for second accident. Future medical expenses $500

Representation:

Counsel:

Plaintiff:     Mr T N Cullity
First Defendant             :     Mr J G Staude
Second Defendant         :     Mr J G Staude

Solicitors:

Plaintiff:     Trewin Norman
First Defendant             :     John G Staude
Second Defendant         :     John G Staude

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

Southgate v Waterford (1990) 21 NSWLR 427
Wylde v Aristondo 'Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997

Case(s) also cited:

Nil

GROVES DCJ: The plaintiff was involved in two motor vehicle accidents, the first being on 17 October 1997 ("the first accident") and the second on 7 February 1998 ("the second accident"). She claims damages from the first defendant and the second defendant respectively for injuries suffered as a consequence of each of those accidents. Liability is admitted and the action proceeded by way of an assessment of damages. In both accidents the vehicle being driven by the plaintiff was stationary when vehicles driven by the defendants collided into the rear of the plaintiff's motor vehicle. Each defendant denies that the plaintiff sustained the injuries, loss and damage alleged and each denies that their accident was of sufficient severity to have caused injury to the plaintiff. Each defendant also pleads that if the plaintiff suffers from ongoing symptoms as alleged, then such symptoms were due to injuries sustained by the plaintiff in an earlier motor vehicle accident in which she was involved on about 25 September 1993. It is necessary therefore to review the background giving rise to these claims.

Pre-accident history

The plaintiff was born 16 February 1944. She completed her education at 15 years of age and thereafter worked in her father's shop for about 12 months. She was then employed in an office performing clerical work for 4 years and married at age 21. Her husband died in 1971 when she was pregnant with their fourth child. She worked as a clerk in a solicitor's office until approximately 1973 and then as a house cleaner. She remarried in 1977 and there are two children of that marriage. She separated from her second husband in 1989. After that separation she was employed at St George's Nursing Home, Mount Lawley, as a domestic undertaking cleaning work for 12 hours per fortnight. In 1991 she transferred in her employment to Lady McCusker Home where she was employed as a permanent part‑time carer working 25 hours per week. The Home provides a home style environment for care of its residents. The plaintiff's duties as a carer involves cleaning of a domestic nature, putting washing in the washing machine and dishes in a dishwater, mopping kitchen areas, vacuuming carpets and some lifting and other general geriatric care.
The plaintiff had been involved in prior motor vehicle accidents in 1980, 1989 and on 25 September 1993. In the latter accident she suffered a whiplash injury for which she had some physiotherapy treatment but no time off work. A claim for damages for her injury was settled on 24 August 1995. The whiplash symptoms resolved subsequent to the plaintiff having breast reduction surgery and before the time of the first accident.

The first accident

On Friday 17 October 1997 the plaintiff had dropped her daughter off at school at about 7.30am. It was her day off work and she was returning home. She was driving her Toyota Corolla motor vehicle in Gibson Avenue, Padbury, when a vehicle driven by the first defendant impacted with the rear of her vehicle. The plaintiff believed that her vehicle was stationary or just slowly moving at the point of impact. It was her evidence that the impact "…wasn't much, but I did notice it otherwise I wouldn't have stopped". She said the impact "…did jar a little bit…". She alighted from her vehicle. There was some pre‑existing damage to the bumper bar of her car but otherwise no damage was apparent to the rear of her vehicle. The vehicle which hit her was driven by a Mr Kerr. He had been hit in the rear by the first defendant and propelled forward into the rear of the plaintiff's vehicle. There was minimal damage to the front of Mr Kerr's car where only the plastic grill was cracked. After taking Mr Kerr's name and address she got back into her car and it was then she noticed that driving was irritating her lower back. She attended on Dr Wong at the Craigie Medical Centre that day complaining of low backache. He certified her unfit for work for the following two days. She did work however apparently because of the fifty per cent pay loading for weekend work.

The second accident

On Saturday 7 February 1998 the plaintiff was driving in Joondalup Drive, Edgewater and on her way to work. She was stationary at traffic lights. When the lights turned green the cars ahead moved off and she "…heard a big bang and I was jolted backwards and forwards ‑ I can't remember exactly what backwards and forwards ‑ and I stopped. I felt the car dragged and then I stopped the car totally." She alighted from her car and went to the rear. The damage she saw was that "the bumper bar had been pushed into a V". Damage to the bumper on the passenger side, which pre‑existed the first accident and which was caused when she had reversed into some solid object had not been repaired. It was her evidence that there were no other dents to the rear of her car. She described the damage as being that "the bumper bar was pushed in on an angle, like a V…". It was the plaintiff's evidence that immediately after impact her head started throbbing. She alighted from her vehicle and there ensued a conversation with the second defendant who was the driver of the impacting vehicle. There were conflicting accounts of the words exchanged but it is common cause that there was discussion about damage at the rear of the plaintiff's vehicle which the second defendant denied causing and the plaintiff's complaint of her head throbbing. After exchanging details the plaintiff then travelled on to work. Her headache persisted and at her tea break she noticed that her neck was tight. She worked her shift "with a little bit of pain". She finished her shift at 7.30pm and the next day saw Dr Batty at the Craigie Medical Centre. She complained of neck pain and pain in the shoulder around the arm and that her lower back was aching.
It was her evidence that the symptoms from the first accident to her lower back had just started to come good at the time of the second accident.
She was referred for physiotherapy treatment. After the second accident she recalled occasionally having time off work when the pain was unbearable. She would nevertheless work on weekends because of the penalty rates and any time off was generally on a Tuesday or Wednesday.

Plaintiff's evidence

The plaintiff's evidence was that her symptoms of pain are continuing and that they are sometimes aggravated by work and domestic activities. She complained of pain across her back which sometimes radiates into the left buttock and down the left leg. She continues to have neck pain on and off and headaches about once a month. She complains that her back gives her more trouble than her neck. She complained that she felt low back pain "all the time, until it gets down to the leg". Her sitting tolerance is only about 30 minutes, she has difficulty pushing a loaded shopping trolley and avoids bending forwards lest she aggravates the back. She used to play badminton but has not attempted to do so since this accident for fear of aggravating her back condition. Sitting for any length of time, for example in a movie, is uncomfortable and she has the need to frequently move to ease the discomfort. She continues to work 25 hours a week and any overtime if that is available.
Medical treatment has comprised anti‑inflammatories (Voltaren) and physiotherapy. After the second accident she felt "everything came on top of her" and she "just started to fall apart." She was prescribed an anti‑depressant, Efexor, which she continues to use. Because she is also taking medication for other non accident related conditions she is reluctant to use Voltaren as often as she might when she experiences back pain.
Shortly after the first accident the plaintiff went to Sydney for holidays. On the flight back turbulence was experienced and this aggravated her low back. She attended on Dr Wong on 5 December 1997 and he referred her for physiotherapy.
On a more recent holiday to Broome she travelled in an off road vehicle and the jolting along the way aggravated her neck symptoms and caused the pain to flare up. The lower back was not aggravated because she had back support. Apart from an incident possibly 15 or 16 years ago the plaintiff had not experienced any lower back pain prior to the first accident.
In cross‑examination the plaintiff said that there had been times when she was not able to do her usual duties at the nursing home because "the pain is unbearable". She said that her back condition was worse after the second accident than it had been after the first accident. When the plaintiff was on holidays her back was much better then when she was working.
She conceded that in the first accident the impact was "very slight". She was wearing her seat belt. She could not recall her body moving as a result of the impact.
As to the second accident she had a clear recollection of being jolted backwards and forwards ‑ it was a greater impact than that of the first accident. When she alighted from the car and stood up the throbbing headache came on and that was within about 30 or 40 seconds of impact. She had not experienced that kind of headache before. It was different to other headaches she had experienced in that it was intense very quickly.
The plaintiff denied that after the second accident she was hysterical. It was her evidence that she went to the rear of her vehicle to see what damage had been done and there ensued conversation with the second defendant. The intense headache troubled her greatly. There is conflict between her evidence and that of the second defendant as to the conversation. I am not able to resolve that conflict and in the end result draw no conclusion therefrom.

Supporting evidence

The plaintiff's daughter Emma Louise Stein has been living on and off at her mother's home over the past two years. Her mother has often complained to her since the accidents of neck and back pain and headaches. She said that her mother now only undertakes light housework. That was not consistent with the plaintiff's evidence that she still continued to do both at work and at home the full range of domestic duties.
Christine Carol Cobb has known the plaintiff for the past 16 years. After the second accident she noticed a change come over the plaintiff in that she continually complained of neck, shoulder and low back pain. She had not made those complaints before the second accident. From time to time she accompanies the plaintiff to movies and travelled with her on holidays to Broome and Kalgoorlie. She has observed since the accidents that the plaintiff's sitting tolerance is limited before she commences fidgeting and moving from position to position to get comfortable. She confirmed that the plaintiff's neck complaint was exacerbated when they travelled off road in a four wheel drive vehicle on the Broome holiday.
Isobel Rosemary Burns has known the plaintiff through her work at Lady McCusker Home for the past 8 years. She was in the staff room when the plaintiff arrived for work after the second accident. She described the plaintiff as being upset and in a state of shock. Since then she has observed the plaintiff to have some obvious pain both in going about her job and sitting during breaks. For example, she has often seen her holding and rubbing her neck as though it were hurting and she has appeared to be somewhat restricted in her neck movement.
Heliouse Celine Wilhelmina Nieuwenhuis worked at Lady McCusker Home and recalled the plaintiff arriving for work after the second accident when she was crying and obviously distressed. She was given a cold pack to place on her neck as she was complaining of a sore neck and headaches. The plaintiff had not been one to previously complain but post accident there were occasions when the plaintiff complained to her of pain across the back. Her observations of the plaintiff after the second accident and subsequently were confirmed by another fellow employee Michael Neil Quayle.

Extent of damage to plaintiff's vehicle

On the day of the first accident the plaintiff went to Gnangara Smash Repairs. Coincidentally on the same day her son had been involved in a motor vehicle accident and his vehicle had been taken there for repairs. Colin Boardman had a look at the back of the plaintiff's car and noted that the rear bumper was moved in some five millimetres. He did not consider that it was worth repairing. On 10 February 1998 he gave a quotation for repairs after the second accident. What damage was done to the rear of the plaintiff's car as a result of the second accident cannot be safely determined. An independent motor vehicle assessor, John William Putland, spoke of a concertinaing effect consequent upon impact to the back left corner of the bumper. This may well have been damage which pre‑dated the first accident resulting when the plaintiff had backed into something. On 10 February 1998 when Mr Boardman gave a quotation for repairs he noted damage to the vehicle consisting of left and right hand tail end damage which appeared to be spread quite evenly across the back with slightly more damage to the left hand side. The damage to the left hand side may have been pre‑existing. In any event it can be concluded that such damage as may have been caused in the second accident was relatively minor.

Medical evidence

Following the first accident the plaintiff attended on Dr Wong at the Craigie Medical Centre complaining of low back ache. Clinical examination revealed tenderness in the lower back particularly at L5/S1 level. It was Dr Wong's opinion that the symptoms and signs were consistent with that of soft tissue injury to the plaintiff's lower back. He certified her unfit for work for the two following days. Her symptoms were aggravated on a turbulent flight from Sydney following which Dr Wong referred her for physiotherapy. On clinical examination on 29 January 1998 Dr Wong reported that the plaintiff was making good progress with minimal low backache.
Following her second accident the plaintiff saw Dr William Batty at the Craigie Medical Centre. She was referred for further physiotherapy. When Dr Wong saw her on 24 March 1998 the plaintiff complained of neck ache and low backache. Examination revealed tenderness over the lower paracervical muscles and over the left upper trapezial border. Neck rotation was limited to approximately 60 degrees each side. Lumbar extension was painful and limited. No neurological deficits were noted. The plaintiff was prescribed anti‑inflammatory analgesics for her pain. X‑rays of the lumbar spine were arranged on 7 May 1998. These reported mild degenerative disc changes throughout the lumbar spine. In his report to the plaintiff's solicitors of 18 June 1998 Dr Wong stated:
"Though there is some overlap of symptoms between the two accidents it would appear that the predominant area of trouble in the October 1997 accident was in her lower back while the February 1998 accident in addition to aggravating the low back problem had resulted in soft tissue injury to her neck.
Her neck symptoms have resolved satisfactorily and she now has a good range of cervical movements.
However she is still troubled by low back ache and stiffness with occasional referred discomfort to her left thigh and left groin."
The plaintiff was reviewed by Dr Wong on a regular basis. Through the second half of 1998 her lower back symptoms seemed to have stabilised. She was troubled by mild lower cervical ache, at the end of a heavy day at work she would experience low backache, her treatment regime was the use of non‑steroid or anti‑inflammatory analgesics and she benefited from physiotherapy. There were occasional periodic aggravations of her neck ache and low back pain. One such instance was on 17 November 1998 when the plaintiff was manually lifting a patient at work which aggravated her back and neck symptoms. On another such occasion Dr Wong certified her unfit for work on 17 February 1999 when she complained of pain in her back radiating into her thigh. Otherwise the plaintiff continued to work her usual hours being mindful to avoid heavy and repetitive lifting and frequent bending. Over the 12 months prior to trial Dr Wong had not prescribed any medication for the plaintiff. In June 1999 he concluded that "…though she may not be totally free of symptoms she should not, with sufficient care at home and work, be troubled by disabling pain." Her condition therefore appears to have stabilised whereby she has occasional stiffness or minor low back pain. She is susceptible to great pain if she does any heavy lifting or repetitive bending but provided that she avoids that then she will not be greatly troubled. There are no clinical indications for surgical intervention. When there is aggravation occasional physiotherapy may be required to relieve the pain.
Mr Barrie Slinger, spinal surgeon, reviewed the plaintiff on 7 August 1998. On the history given to him and after examination he concluded that the plaintiff sustained soft tissue injury to the lumbar spine in the first accident and to the cervical spine in the second accident. His treatment recommendation was that she sensibly avoid provocation. He recommended that she maintain a regular stretching and strengthening programme to improve general fitness and muscle tone while physiotherapy would be of value at times of symptomatic exacerbation. It was his opinion the plaintiff was fit to continue full time employment, her symptoms did not affect her ability to continue her full time employment and were unlikely to do so to anticipated time of retirement. Mr Slinger considered that the injuries were minor, as she had very little in the way of restriction of movement in either the neck or the back.
Mr Stewart Brash an orthopaedic surgeon was called on behalf of the defendants. He saw the plaintiff on 1 October 1998 when he took a history of the plaintiff's accidents and of the pain which she had experienced to both the lumbar spine and the cervical spine. He undertook an examination. In his report he states "I believe that it is straining credulity to feel that these minor two accidents could result in such symptoms. I am not able to observe any objective evidence of pathology which would account for her ongoing symptomatology. He saw her again on 8 February 2000 when the plaintiff told him that she was then the same to worse than before. She told him that she continued to have pain in the neck, left shoulder and in the back area. He again undertook examination. His report of 8 February 2000 concludes:
"I thus am of the opinion that there is no anatomical cause for this patient's symptoms. I do believe that there are non‑organic or functional factors present in the total pain picture. I make this statement because:
·   my inability to reconcile the symptoms with the complete lack of pathology;
·   my inability to reconcile the symptoms with the very minor forces involved in the accident;
·   the Waddell sign of superficial hypersensitivity.
I believe this patient's claim should be settled on the basis she suffered no structural permanent residual disability as a result of the accident."

In support of his findings Mr Brash called in aid a body of medical literature touching on the validity of whiplash syndrome. Particular reference was made to the publication "The Whiplash Encyclopedia" where Dr Robert Ferrari discusses volunteer experiments. He came to the conclusion that there has to be a threshold of speed for there to be symptoms. From this literature it was Mr Brash's conclusion that it would appear that for the formation of acute symptoms the threshold striking speed, assuming both vehicles are of the same mass, is of the order of 20km/h. It was his understanding that both the first and second accidents were minor with the plaintiff's vehicle stationary and the impacting vehicles travelling very slowly. If that were so then it did not appear that the speeds involved approached 20km/h. He stressed that this was a threshold speed which would give only the most transient of acute symptoms. His understanding of the literature was that whiplash experiments using volunteers have never caused chronic symptoms. Further it was his opinion that the history of the plaintiff's symptoms was not the history of soft tissue injury.
The opinion expressed by Mr Brash was put to Mr Slinger in the course of his evidence in chief and he was vigorously cross‑examined on this subject. Mr Slinger respectfully disagreed with the conclusions of Mr Brash and joined issue as to the validity, the methodology and conclusions arrived at in the medical literature called in aid. He pointed to other medical literature which challenged the literature refuting whiplash syndrome and various studies which had been undertaken. Likewise Mr Brash in turn refuted the critiques to which Mr Slinger had made reference. Undoubtedly each of the specialists could point to a vast amount of literature reporting case studies of the whiplash syndrome. Invariably the literature reports findings that support one side or the other of the legal debate over the validity of whiplash syndrome. Mr Slinger and Mr Brash represented the diametrically opposed views. Insofar as this case is concerned I would not venture to endeavour to resolve the conflict. The debate will no doubt continue, further research and studies undertaken and in the end result the Court will still have to determine each case on its own facts and by each trial Judge making subjective assessments on the basis of the evidence before the Court. The medical literature tendered in this case does not assist in resolving the issue one way or the other.
The defence contend that these two rear impact collisions at very low speed could not have caused injury to the plaintiff. For the reasons outlined later I do not accept that proposition. As will become apparent however it is accepted that both accidents were low impact and at least as much as Mr Slinger and Mr Brash were agreed upon was that the injury suffered by the plaintiff on each occasion was minor. In the end result that is relevant in assessing the appropriate percentage to put on the claim insofar as general damages are concerned.

Physiotherapy treatment

After the turbulent flight from Sydney which aggravated her low back Dr Wong referred the plaintiff to Johan Alvemalm, a physiotherapist at Belridge Physiotherapy Centre. It was Mr Alvermalm's evidence that the plaintiff presented on 6 December 1997 complaining of pain in the lower back and pain down the left posterior thigh to below the knee. His report to solicitors of 15 February 2000 notes:
"On initial examination, movement of the trunk was restricted at approximately 30 degrees of flexion, 35 degree extension and at half range of side flexion with the onset of lumbar pain. She had palpation tenderness over the lumbo sacral junction, more so on the left, and also over the left sacro iliac joint."
Treatment consisted of gentle mobilisations to the lower lumbar segments and to the sacroiliac joint. Treatment twice per week continued to 5 February 1998 when it was noted "that she had been good since Monday, some pain central lumbar spine today after working late shift yesterday". The plaintiff had a gradual improvement of symptoms with decreased pain in the leg and lower back and with an increased amount of movement of the back.
Following the second accident the plaintiff was again referred for physiotherapy. The plaintiff complained of the onset of left neck, anterior shoulder and right wrist pain as well as renewed pain in her lumbar and left posterior thigh. Treatment consisted of gentle mobilisations to the upper cervical spine or segments and to the upper two thoracic segments. During May 1988 Alison Louise Manners took over physiotherapy treatment of the plaintiff. The last treatment was 2 June 1998. Mr Alvermalm said that prior to that the plaintiff had been very good for long periods but that was interspersed with occasions where she would have a decreased range of motion. Generally exacerbation of symptoms was associated with work activities. In cross‑examination it was ascertained that on his enquiry of the plaintiff as to whether she had any previous injuries to her lower back or previous symptoms she did report having occasional pain in the lumbar spine which had not required any form of treatment. Physiotherapy treatment under Mr Alvermalm came to an end when the defendants' insurer indicated that it would not pay for ongoing physiotherapy treatment. The plaintiff has since had occasional physiotherapy provided free at the Joondalup Health Service.

Defendant's evidence

Charlton John Kerr was the driver of the vehicle which impacted with the rear of the plaintiff's vehicle in the first accident. It was his evidence that he was stationary about 3‑4 feet behind the plaintiff's vehicle when his vehicle was struck from the rear by another vehicle. That impact he described as being similar to the type involved in a dodgem car at the Royal Show. The impact pushed his car forward and his vehicle he said just "touched" the bumper of the plaintiff's vehicle in front of him. Mr Kerr enquired of the plaintiff if there was damage to her car. As much as was identified was a small mark on the bumper which the plaintiff told him was already there prior to this accident. He asked if she was injured and she indicated that she was not. The only damage to Mr Kerr's vehicle from the impact with the plaintiff's vehicle was a cracked grill. He gave his name and address to the plaintiff and a few days later she arrived at his home. She informed him that she was suffering pain in the lower back and told him that she was going to put in a claim.
The second defendant's vehicle came into contact with the rear of the plaintiff's vehicle in the second accident. The second defendant was stationary behind the plaintiff's vehicle at traffic lights. She observed a car in front of the plaintiff and a motorbike in front of that. It was her evidence that when the traffic lights changed to green the motorbike moved off. The next car started to move and the plaintiff's vehicle moved and then stopped. The second defendant had commenced moving forward. She did not have her foot fully off the clutch when the impact occurred. It was her evidence that there was no damage to the front of her vehicle. Photographs which were tendered in evidence showed minor scuff marksto the front bumper of her car. The second defendant's estimate was that she was doing approximately 4km/h at the point of impact. She says that the plaintiff alighted from her car, ran to her and banged on her driver's window and hysterically accused her of having caused her to have a headache, a backache and hurting legs. The plaintiff also expressed concern because she was on her way to work. The second defendant got out of her vehicle. Whilst stationary behind the plaintiff at the lights the second defendant observed a number of dents to the back of the plaintiff's vehicle. When she looked for damage after the accident at the rear of the plaintiff's car she did not see any fresh or new damage. It was also her evidence that the plaintiff stated that this was the second time that such an accident had happened to her in two weeks. There was some discussion about dents on the back of the plaintiff's car. The plaintiff accused the second defendant of having caused the damage which the second defendant denied. The second defendant suggested that they should go to Joondalup Police Station. She went there and reported the accident. She did not see the plaintiff at the police station. The plaintiff had earlier given evidence about the second defendant picking up a number plate frame from the roadway. The second defendant emphatically denied that she had done so. She said that whilst her car had a front number plate frame when it was purchased there had been a constant rattle and the vehicle had been taken back to the supplier and the frame removed. An extra screw had been placed in the number plate which is evidenced in the photographs. At the time of the accident there was not a number plate frame. The impact she described as "It was just like a jolt. I didn't move her car, no." There were other areas where the evidence of the plaintiff and the second defendant conflicted but it is not necessary for me to make any findings insofar as that conflict is concerned.

General damages

The plaintiff is entitled to general damages for the accident itself and for the consequent pain, inconvenience and other matters generally referred to as the loss of amenities.
The award of damages for loss of enjoyment of life and amenities generally requires a consideration of s 3C of the Motor Vehicle (Third Party Insurance) Act 1943 (as amended) ("the Act"). This section imposes limitations upon an award of damages for non-pecuniary loss and it applies to the present case. Section 3C(3) provides that the maximum amount of damages that may be awarded for non-pecuniary loss is at the present time $219,000 and that amount may be awarded "only in a most extreme" case
In Wylde v Aristondo 'Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997 the Court adopted the same approach to the Act as the New South Wales Court of Appeal did to the Motor Accidents Act 1988 (NSW). In Southgate v Waterford (1990) 21 NSWLR 427 at 440 the Court said:
"There are a number of ways by which trial judges could approach the task of apportionment required by s 79(2) and s 79(3). It is inappropriate in this case for this Court to mandate any particular way of arriving at the 'proportion' required by s 79(2). But clearly because the task in hand is that of awarding damages for 'non economic loss' it is appropriate for the trial judge to consider and make findings on those elements in the evidence which are relevant to such loss. This will require the judge to consider and make findings on the evidence relevant to those heads of damage formerly considered in the award of general damages. Then it is necessary for the judge to conceive 'a most extreme case'. Only for such a case may the maximum amount provided by s 79(3) be awarded. Opinions of what constitute 'a most extreme case' will doubtless vary. But clearly quadriplegia would fall into that class. The amount to be awarded must then be apportioned somewhere between nil and $180,000; but in a ratio which the judge fixes keeping in mind the fact that the cap of a statutory maximum is retained for a 'most extreme case'."
It is necessary that I make findings of fact consistent with my assessment of the evidence which has been adduced.
As a consequence of the first accident I find that the plaintiff did suffer physical injury to her lower back. Although the impact was minor it did cause the onset of pain sufficient to warrant the plaintiff seeking medical attention. Clinical examination confirmed tenderness particularly at L5/S1 level. The symptoms were consistent with a soft tissue injury to the lower back. There is no evidence of any other incident which might have caused the onset of these symptoms. The September 1993 accident involved soft tissue injury to the cervical spine. The symptoms of the first accident are not related to that prior accident. I do note that it was Dr Wong's evidence that having regard to the plaintiff's condition (post accident) and age he would not recommend her to be working in a her present occupation. He said that having regard to the nature of that type of work it was not surprising that the plaintiff had back pain occasionally. Whilst x‑rays of the plaintiff's lumbo sacral spine done in May 1998 reported mild degenerative disc disease there was no evidence to suggest that the lower back pain experienced after the first accident was work related or due to any pre‑existing condition. The plaintiff continues to experience occasional low back pain and that condition can be exacerbated both in her work and home related activities. She is mindful to avoid provocation of the symptoms and consciously avoid heavy lifting and repetitive bending which might cause aggravation.
The legislation requires me to assess general damages by relating the plaintiff's case to a most extreme case. To do this I have considered the plaintiff's physical injury consequent upon the first accident, the discomfort which she has endured and the prognosis prior to the second accident. I cannot base my consideration of her physical injuries on the level of her complaints about them or her perception of them.
Although the plaintiff was certified unfit for work for the two days following the accident she nevertheless did attend and did not take any time off work as a consequence of this accident. She had conservative treatment and she felt that her condition had substantially improved prior to the event of the second accident. She was able to manage her duties in her employment during that time.
On "a most extreme case" scale this injury is relatively minor. Quite clearly her level of disability over a relatively short period is at the low end for this type of injury. I place the plaintiff's case at no more than 5 per cent of a most extreme case. This percentage of the maximum amount that may be awarded of $219,000 equates to $10,950. The provisions of s 3C(4) of the Act imposes a threshold of $10,500. Accordingly for general damages in respect to the first accident I award $450.
The second accident was a more severe impact which I do find did cause the plaintiff to jolt back and forward in her driver's seat. Even though the impact may have been at low speed I find that it was sufficient nevertheless to give rise to the symptoms of which the plaintiff subsequently complained. The predominant area of trouble was soft tissue injury in the cervical region and aggravation of the low back problem from which she was gradually recovering after the first accident. Again there is no evidence to suggest that these symptoms were caused other than as a consequence of the impact in the second accident. Even accepting that it was a low speed impact does not detract from the fact that the plaintiff's presentation when she arrived at work and subsequently attended on her doctor was indicative of the symptoms of which she complained. By reason that she sustained soft tissue injury in the area of the cervical spine in the September 1993 accident from which, on her evidence which was uncontradicted that she had fully recovered, may only have caused her to be more susceptible to aggravation or a fresh injury after impact such as the second accident. The same might be said so far as the aggravation of her low back condition is concerned. The intense headache which followed the impact was a new phenomenon as was the radiation of pain from the low back into the left buttock and left leg. Clearly this impact gave rise to more substantial symptoms which have not completely resolved and have left the plaintiff to experience ongoing pain and discomfort albeit now on a less frequent and less intense basis but still experiencing pain from time to time. Clearly her work circumstances are such that she is at risk of aggravating her condition. Apart from a couple of days sick leave and despite the difficulties consequent upon the injuries the plaintiff has stoically continued in her employment as a permanent part‑time employee at the Home. She has not reduced her working hours. She does from time to time do extra time when she feels able to do so.
Mr Brash was unable to reconcile the symptoms with the complete lack of pathology. Mr Slinger agreed that the injuries were minor and that was consistent with the paucity of physical signs to examination. I conclude that whilst there may be a lack of pathology nevertheless the accident caused symptomatology has given rise to the pain state and discomfort experienced by the plaintiff. The plaintiff at less frequent intervals still experiences low back pain. She has neck pain on and off but approximately once per month and that comes with the headaches which she has experienced. Her tolerance for sitting is limited as is her lifting and bending capacity. It was Mr Slinger's opinion that the present symptoms would continue and he recommended as the plaintiff is doing that she sensibly avoid provocation or symptomatic exacerbation.
Again I am required to assess general damages by relating the plaintiff's case to a most extreme case. Clearly the physical injuries, the discomfort which she has endured and her prognosis as a consequence of the second accident are all much greater than was the case as a result of the first accident.
When the plaintiff's injuries and associated symptoms are compared with what may be regarded as a most extreme case it seems clear that the plaintiff's injuries as a consequence of the second accident and symptoms, their progression and treatment, the prognosis for their improvement and the effect that they have had on her enjoyment of life places her case at no more than 10 per cent of the most extreme case. This percentage of the maximum amount that may be awarded of $219,000 equates to $21,900. The provisions of s 3C(5) of the Act requires an assessment in this amount to be reduced by $10,500. I award general damages in respect of the second accident in the sum of $11,400.

Future medical expenses

Having regard to the prognosis I find that it is likely that the plaintiff will occasionally experience an exacerbation of the symptoms which will give rise to pain and discomfort. This may be relieved by anti‑inflammatories or other analgesics. It may necessitate attendance on her medical practitioner for prescriptive medicines or occasional physiotherapy. In the absence of evidence to quantify the likely expenditure, as inexact an estimate as that might have been I will nevertheless allow a global sum of $500 for those contingencies.

Summary

Damages will be allowed as follows:
General damages ‑ first accident     $450
General damages ‑ second accident  $11,400
Future medical expenses     $500
Total$12,350