Syme v Roos
[2016] WADC 164
•25 NOVEMBER 2016
SYME -v- ROOS [2016] WADC 164
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WADC 164 | |
| Case No: | CIV:924/2015 | 19-23 SEPTEMBER 2016 | |
| Coram: | GETHING DCJ | 25/11/16 | |
| PERTH | |||
| 51 | Judgment Part: | 1 of 1 | |
| Result: | Judgment for plaintiff Damages assessed | ||
| PDF Version |
| Parties: | CATERINA SYME KEVIN EDWARD ROOS |
Catchwords: | Torts Negligence Motor vehicle accident Negligence admitted Causation Assessment of damages |
Legislation: | Civil Liability Act 2002 (WA) Motor Vehicle (Third Party Insurance) Act 1943 (WA) |
Case References: | Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 Brocx v Mounsey [2010] WASCA 196 Browne v Dunn (1894) 6 R 67 Den Hoedt & Anor v Barwick [2006] WASCA 196 Gamser v Nominal Defendant [1977] HCA 7; (1977) 136 CLR 145 Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161 Hendrie v Rusli [2000] WASCA 249 Houlahan v Pitchen [2009] WASCA 104 Husher v Husher [1999] HCA 47; (1999) 197 CLR 138 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 Kschammer v R W Piper & Sons Pty Ltd [2003] WASCA 298 Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361 Mastaglia v Burns [2006] WASCA 190; (2006) 32 WAR 427 Medlin v State Government Insurance Commission [1995] HCA 5 (1995) 182 CLR 1 Montemaggiori v Wilson [2011] WASCA 177 Newman v Nugent (1992) 12 WAR 119 North v Thompson [1971] WAR 103 Panizza v Moir [2009] WADC 110; (2009) 64 SR (WA) 166 Paul v Rendell (1981) 34 ALR 569 Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118 SAM v The State of Western Australia [2016] WASCA 64 Santos v The State of Western Australia [No 2] [2013] WASCA 39 Scope Machinery Pty Ltd v Ross [2009] WASCA 100 Setton v Eves [2006] WASCA 3 Sharman v Evans [1977] HCA 8; (1977) 138 CLR 563 Smith v Zhong [2015] WASCA 202 Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 182 Thomas v Bass [2006] WASCA 59 Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327 Winiarczyk v Tsirigotis [2011] WASCA 97 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
KEVIN EDWARD ROOS
Defendant
Catchwords:
Torts - Negligence - Motor vehicle accident - Negligence admitted - Causation - Assessment of damages
Legislation:
Civil Liability Act 2002 (WA)
Motor Vehicle (Third Party Insurance) Act 1943 (WA)
Result:
Judgment for plaintiff
Damages assessed
Representation:
Counsel:
Plaintiff : Mr N F Morrissey
Defendant : Mr J F Bennett & Ms H C Richardson
Solicitors:
Plaintiff : Premier Compensation Lawyers
Defendant : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420
Brocx v Mounsey [2010] WASCA 196
Browne v Dunn (1894) 6 R 67
Den Hoedt & Anor v Barwick [2006] WASCA 196
Gamser v Nominal Defendant [1977] HCA 7; (1977) 136 CLR 145
Graham v Baker [1961] HCA 48; (1961) 106 CLR 340
Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161
Hendrie v Rusli [2000] WASCA 249
Houlahan v Pitchen [2009] WASCA 104
Husher v Husher [1999] HCA 47; (1999) 197 CLR 138
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Kschammer v R W Piper & Sons Pty Ltd [2003] WASCA 298
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361
Mastaglia v Burns [2006] WASCA 190; (2006) 32 WAR 427
Medlin v State Government Insurance Commission [1995] HCA 5 (1995) 182 CLR 1
Montemaggiori v Wilson [2011] WASCA 177
Newman v Nugent (1992) 12 WAR 119
North v Thompson [1971] WAR 103
Panizza v Moir [2009] WADC 110; (2009) 64 SR (WA) 166
Paul v Rendell (1981) 34 ALR 569
Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118
SAM v The State of Western Australia [2016] WASCA 64
Santos v The State of Western Australia [No 2] [2013] WASCA 39
Scope Machinery Pty Ltd v Ross [2009] WASCA 100
Setton v Eves [2006] WASCA 3
Sharman v Evans [1977] HCA 8; (1977) 138 CLR 563
Smith v Zhong [2015] WASCA 202
Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 182
Thomas v Bass [2006] WASCA 59
Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327
Winiarczyk v Tsirigotis [2011] WASCA 97
1 GETHING DCJ: On 25 May 2013 at approximately 11.30 am, Caterina Syme was a passenger in a car travelling in a northerly direction along South West Highway, Armadale. The car was being driven by her then partner, Brady Galipo. The car was in the right hand lane of the dual carriageway.
2 At the same time, Kevin Roos was driving eastwards along Fourth Road. Mr Roos proceeded into the intersection of Fourth Road and South West Highway, and collided with the car in which Ms Syme was travelling impacting, on the left hand side adjacent to where she was sitting (the Accident).
3 Ms Syme commenced an action against Mr Roos seeking damages for the injuries she sustained in the Accident.
4 Mr Roos has admitted liability in negligence for the Accident. As Mr Roos played no part in the trial, I will refer to him as 'the defendant'.
5 The action was listed before me for an assessment of damages.
6 The action was listed for trial immediately after the assessment of damages in an action commenced by Mr Galipo (being CIV 1653 of 2015). At a directions hearing on 6 September 2016 I ordered that, to the extent relevant, the evidence in this action and the evidence in the action commenced by Mr Galipo stand as the evidence in both actions, with counsel (who were the same in both actions) having liberty to call evidence, cross examine and re-examine on matters arising in both actions.
7 Based on the pleadings and particulars of damages filed by Ms Syme, the following issues arise for determination:
• What was Ms Syme's pre-Accident medical condition and lifestyle?
• What injuries did Ms Syme sustain in the Accident?
• What is the appropriate assessment for past special damages?
• What is the appropriate assessment for future medical expenses?
• What is the appropriate assessment for past and future economic loss?
• What is the appropriate assessment for past and future care and assistance?
• What is the appropriate assessment for non-pecuniary loss?
• What quantum of damages is Ms Syme entitled to?
8 Ms Syme gave evidence. She called her son, Daniel, and a former work colleague, Tracey Burston. She also called two medical practitioners, Dr Andrew Fairhurst and Mr Ross McLaren. Dr Fairhurst is a general practitioner with qualifications to undertake impairment assessments for workers' compensation injuries. He saw Ms Syme for a medico-legal review on 25 July 2014, and produced a report of the same date. Mr McLaren is an orthopaedic surgeon. He saw Ms Syme on 23 May 2016 for the purposes of a medico-legal review, and prepared a report of that date.
9 The defendant called two medical practitioners, Dr Sam Bowden and Dr Andrew Porteous. Dr Bowden is a specialist general practitioner. He provided a report to the Insurance Commission of Western Australia dated 28 January 2015. Dr Bowden's report was based on the notes received from the emergency department at Armadale Kelmscott Hospital, his own notes of a consultation with Ms Syme on 29 May 2013 and information gained from review of her subsequent visits to the Langford Medical Centre, including with other practitioners. Dr Porteous is a consultant occupational physician. He reviewed Ms Syme on 15 October 2014 for the purposes of preparing a medico-legal report, which was of the same date.
10 Each of the four medical practitioners was accepted by counsel as being appropriately qualified to provide the expert opinions which are before the court in this case.
11 The parties tendered an agreed bundle of medical reports and records. Counsel agreed that the statements in the medical reports and records could be treated as evidence of the truth of the facts contained in those statements, subject to submissions as to weight and specific issues identified in cross-examination.
What was Ms Syme's pre-Accident medical condition and lifestyle?
Ms Syme's evidence
12 Ms Syme was born on 23 March 1972. As at the date of trial, she has a son, Daniel, aged 19 and a daughter, Taneesha, aged 15.
13 She completed schooling at year 12 in 1989, and after school worked as a waitress for many years.
14 During her younger years Ms Syme was very physically active. From around the ages of 10 through 18 she participated in gymnastics, including doing so competitively. Throughout the same period, she also participated in Tae Kwon Do, attaining one level short of a black belt. In her early 30's she played netball socially.
15 Ms Syme married in 1997. Her son Daniel was born in 1997. Her daughter Taneesha was born in 2001. She separated from her former husband 10 years ago.
16 The evidence before me is that Ms Syme had three medical conditions prior to the Accident: long standing asthma, long standing depression and intermittent lumbar spine pain.
17 As to the longstanding asthma, Ms Syme gave evidence that she had this throughout her childhood. She was, and is, able to control the asthma using medication. From the description of her medication which she gave to Dr Fairhurst, it appears that this medication is both preventative and for use when she has an asthma attack.
18 Her longstanding depression followed a neonatal death after premature delivery of a child (ts 230). She has had this depression for over 15 years. Both prior to and after the Accident, she managed the depression through antidepressant medication prescribed by her general practitioner. She had not seen a psychologist or psychiatrist.
19 The third health issue is intermittent lumbar spine pain. Ms Syme gave evidence that this started in her teenage years, she felt as a result of the gymnastics which she did throughout this period. Ms Syme gave evidence that she was not experiencing lower back pain immediately prior to the Accident. In the weeks and months prior to the Accident, she said she experienced lower back pain perhaps once a fortnight whilst at work. She described the pain as being the lower back just above the buttocks. She would deal with the lower back pain by combination of over-the-counter pain medication and heat packs.
20 Ms Syme gave evidence that prior to the Accident she had no neck-related conditions, and never really suffered from headaches (ts 219).
21 In around 2005, Ms Syme commenced working in the childcare industry with Mulberry Tree. In order to so, she obtained a Certificate III in Children's Services from Thornlie TAFE. She finished working for Mulberry Tree in 2010. In 2012 she commenced working as a childcare worker with Goodstart Early Learning (Goodstart).
22 When Ms Syme initially started work with Goodstart, she was with the toddlers. Around four years ago she moved to working in the nursery, looking after 12 babies between 6 weeks and 2 years old. This work involved all aspects of the care of the babies, from changing nappies and feeding through to making developmental observations. Throughout this period she was working full-time, 38 hours per week. When she first started with Goodstart she was earning $620 per week after tax. She currently earns $740 a week after tax.
23 Immediately prior to the Accident, Ms Syme said that she was playing netball in a social competition, playing once a week. She stopped this after the Accident. She does not currently have any other hobbies and has limited social activities, both due to her pain.
24 Ms Syme gave evidence that prior to the Accident she had a lot to do with her children. She said that she would watch her son play football in the local competition, and would sometimes kick the football with him. Her son kept playing football after the Accident, though she was not able to watch as sitting down on the ground made her neck really sore and gave her headaches. She also said that she used to go shopping with her daughter. She does not do this anymore. She is less active with her children.
25 Ms Syme said that prior to the Accident, she would go out socially every weekend. Since the Accident she does not see her friends anymore and does not go out. She stays at home. In the two years prior to the Accident she would do something every weekend with her friends or family.
Medical evidence
26 Ms Syme disclosed to Dr Fairhurst her longstanding asthma condition, and the medications she was then on. She also disclosed her chronic depression, and that she had been on antidepressant medications for many years. She denied to Dr Fairhurst that she had any prior neck or back injuries (25 July 2014 Report, page 3).
27 Ms Syme disclosed to Dr Porteous that she had depression for 10 years, for which she has been on treatment for most of that time. She also had pre-existing asthma, with treatment as necessary. She reported that prior to the Accident, she used play netball and football with the children.
28 Ms Syme disclosed to Mr McLaren the three pre-existing conditions, asthma since childhood, depression and lower back pain since she was a child. She said that she was taking medication for her asthma and depression. In relation to her recreational activities, Ms Syme reported that she had previously participated in gymnastics, Tae Kwon Do and netball, but said that she had no specific leisure activities leading up to her Accident.
Factual findings
29 Ms Syme's description of her pre-Accident medical conditions is generally consistent with what she told Dr Fairhurst, Dr Porteous and Dr McLaren. In particular, she did not make any materially inconsistent statements about her pre-Accident medical conditions to any of these medical practitioners.
30 As noted, Ms Syme denied any prior back injury to Dr Fairhurst. In dealing with past medical history, Dr Porteous made no mention of prior lower back pain, from which I infer that Ms Syme did not report this to Dr Porteous. She told Mr McLaren that 'she always had some lower back pain since she was a child' (24 May 2016 Report, page 3).
31 In cross-examination, Ms Syme could not recall whether or not she told the doctors who examined her for medico-legal reviews whether she had prior lower back pain, and accepted that she may not have done so. However, counsel for the defendant did not suggest that, because Ms Syme did not tell either Dr Fairhurst or Dr Porteous that she did not have lower back pain prior to the Accident, that this meant that I should not accept her evidence that she had lower back pain prior to the Accident. Rather, this point was made in the context of reviewing the factual basis for the opinions ultimately arrived at by these doctors.
32 Accordingly, I find that, prior to the Accident, Ms Syme had three medical conditions: longstanding asthma, longstanding depression and intermittent lumbar spine pain (Prior Medical Conditions). I make factual findings in terms of Ms Syme's evidence as set out at [16] to [19]. I also find that prior to the Accident, Ms Syme had no neck-related conditions, and never really suffered from headaches.
33 As to Ms Syme's domestic, social and recreational activities, in summary terms, her evidence is that immediately prior to the Accident, she:
(a) was living with her children, and doing virtually all the household chores;
(b) was playing netball in a social competition;
(c) would catch up with friends at least once on the weekend;
(d) would watch her son play football and would sometimes kick the football with him; and
(e) would go shopping with her daughter from time to time.
34 Ms Syme's evidence as to her domestic, social and recreational activities prior to the Accident was not challenged in cross-examination. In particular, there was no cross-examination of Ms Syme to the effect that the Prior Medical Conditions imposed any greater limitations on her capacity to enjoy life than she described. She did not make any materially inconsistent statement about these matters to any of the medical practitioners who reviewed her. I make a factual finding in terms of Ms Syme's evidence at [33].
35 I also find that the Prior Medical Conditions did not prevent Ms Syme from engaging in these activities.
36 As to her pre-Accident work, in summary terms, Ms Syme's evidence is that for most of the 10 years preceding the Accident, she was employed as a childcare worker, working a full-time 38-hour week.
37 Again, this evidence was not challenged in cross-examination and she did not make any materially inconsistent statement about these matters to any of the four medical practitioners who reviewed her. Accordingly, I make a factual finding in terms of Ms Syme's evidence at [21], [22] and [36].
38 I also find that, save for the intermittent impact of the lower back pain described above [19], the Prior Medical Conditions did not prevent Ms Syme from working as a childcare worker on a full-time basis.
What injuries did Ms Syme sustain in the Accident?
Pleadings and particulars
39 Ms Syme's statement of claim contains a general plea that she suffered injury, loss and damage as a result of the Accident.
40 In her particulars of damages filed 7 September 2016, Ms Syme says that as a result of the Accident she suffered injuries to her neck and back, as well as an aggravation of a pre-existing psychiatric condition. She says that as a result of the injury sustained in the Accident, she suffered and continues to suffer the following disabilities:
(a) constant pain and discomfort in the neck;
(b) aggravation to pain in the neck when moving her head;
(c) aggravation to pain in her neck when sitting or standing for extended periods;
(d) aggravation to pain in her neck when driving;
(e) aggravation to pain in the neck when lifting;
(f) pain in the neck radiating into the head;
(g) headaches;
(h) stress;
(i) mood swings;
(l) interrupted sleep pattern;
(m) reduced ability to concentrate;
(n) difficulty continuing with pre-Accident employment; and
(o) reliance on family for home support.
41 The only point specifically raised in the defence is that Ms Syme had a pre-existing depressive condition, but has continued to work in child care since the Accident.
Ms Syme's evidence
42 Ms Syme recalled the circumstances of the motor vehicle Accident in May 2013. She was a passenger in a car being driven by her then partner Brady Galipo. She gave evidence that they were driving along Albany Highway, though in cross-examination she was somewhat vague as to the details of where she was driving. It is common ground that the Accident occurred on South Western Highway. Ms Syme gave evidence that a car came out of a side street, hitting the car she was travelling in pushing it to the other side of the road. The other car made a full frontal contact with the left hand side of the car in which she was a passenger. She was thrust forward and sideways, then backwards. Her arm hit the passenger side window. Immediately after the impact she could not move. She had to climb out of the car through the driver's side, being assisted by Mr Galipo.
43 After the Accident, Ms Syme waited for an ambulance. Immediately after the Accident she felt pain down her neck, a headache coming on and was feeling pretty sore. She said that was her first accident and described being in shock. She recalled being on the side of the road for about five minutes until the ambulance came. The ambulance officers did a preliminary examination, put a brace around her neck, placed her on a stretcher and conveyed her by ambulance to Armadale Kelmscott Hospital. The ambulance officers gave her pain medication intravenously.
44 At Armadale Kelmscott Hospital, X-rays were performed. She recalled a diagnosis of whiplash. She was given Panadeine Forte to take home. She was at the hospital for six or seven hours. She was given a medical certificate to take the week off work.
45 The Accident occurred on a Saturday. She spent the weekend in bed. Her neck was stiff and sore and she had a 'really big headache' (ts 218). She had pain in her neck radiating up to the back of her head. She also had pain in her lower back (ts 219). She took the Panadeine Forte which took a while to settle the pain.
46 The following Monday she went to a general practitioner, who gave her the week off work. The other evidence before me identified this general practitioner as Dr Bowden. Ms Syme did not go to work that week, other than to go and hand in her medical certificate. She stayed at home in bed, saying that she was 'really sore' in her neck and her head (ts 219).
47 Ms Syme went back to work after her week off. When she went back to work she would experience a 'really sore' neck if she did too much lifting during the day (ts 234 - 235). Her back pain at work was worse than it was before the Accident (ts 220). She has remained at work since the Accident, but continues to suffer pain in the neck radiating up to her head, pain which is aggravated by her work. Lifting at work pulls on her neck and causes tension which leads to headaches. She is helped by other staff members who do lifting for her. She sometimes requires pain medication during the day. On other days, she needs to take a 10 minute break at work to sit down in a chair (ts 234).
48 In the period since the Accident Ms Syme has taken time off work as a result of her symptoms, in particular her neck pain. Throughout the period following the Accident she has also taken sick leave to look after her children as well as attend to other unrelated personal medical issues. She ended up in the position where she used up all her sick leave and had to take days off work without pay. She also was able to use some time in lieu which she had accumulated, which she estimated to be four or five hours. She said that she would take days off work here and there, taking perhaps one to two days off a month (ts 223). Ms Syme said that there were days when she was forced to go to work when she did not have any leave left. She estimated that she had taken more days off without pay than sick leave (ts 244). She did not get a doctor's certificate every time she had time off work (ts 243).
49 Ms Syme gave evidence that she would treat her neck pain at home. She would take over-the-counter painkillers, in particular Panadeine Extra. She said that since the Accident she has been using about a packet of Panadeine Extra a fortnight, which cost her around $10 a packet. She said that Panadeine Extra sometimes gave her a side effect of constipation. In more recent times she has noted that the Panadeine Extra does not work as well as it used to. She also uses a heat pack.
50 Ms Syme said that aside from her general practitioner, she has not seen any other specialist in relation to her neck pain.
51 Ms Syme gave evidence that when she comes home from work after a full day she 'feels like crap' and she wants to go to bed (ts 224). She would place a heat pack on her neck, have some painkillers, then go to bed (ts 224). This is her normal routine after work. Although she would normally take pain medication in the evenings, sometimes she would take it in the day as well. She is not able to do any household chores when she gets home from work (ts 240). If she does household chores like washing or cooking on the weekend, she suffers pain (ts 240).
52 Ms Syme gave evidence that she had been advised to do neck exercises. She said that she would try and do the exercises every day but does not always do so. She does the exercises in a hot shower. She understood that the purpose of the exercises was to strengthen her muscles in her neck. She said that she was first given this advice about a year ago. She said that she had not noticed any difference from doing the exercises.
53 Ms Syme said that soon after the Accident her children, who were then living with her, started doing household chores for her. Prior to the Accident she would do all the household chores. This included cooking, cleaning, washing clothes and hanging the clothes out. In cross-examination, Ms Syme said that before the Accident, her children would not help out much, mainly just doing the dishes for 10 minutes once or twice a week (ts 240). After the Accident, her son Daniel would go to the shops with her and push the trolley and help and do the lifting. She did not have a garden. She said that she could not do these activities as, at the end of the day, she would have a sore head and a headache. All she wanted to do was to go to bed. She estimated that her children have provided her with four to five hours a week of assistance around the house since the Accident (ts 227).
54 Ms Syme said that in September last year she moved in with her mother. This followed the death of her father. Her daughter lives with her as well. In cross-examination Ms Syme said that her intention at the time in moving in with her mother was to look after her and give her some company, but in fact her mother has been looking after her. Ms Syme said that her mother 'does everything for her' (ts 228) including the grocery shopping. She cannot do anything. She said that Taneesha helps her mother out with the chores. She estimated that her daughter would do two to three hours a week of chores for her (ts 229).
55 Ms Syme gave evidence that since the Accident, her depression has been getting worse; in her words: 'I was just having severe episodes where it was getting a lot worse' (ts 213). This ultimately led to her seeing her general practitioner around a year ago, who changed her medication to Pristiq. She takes a Pristiq tablet every morning. Since going on Pristiq 'it has been okay' and she has still been able to go to work (ts 231).
56 Ms Syme confirmed in cross-examination that she had not seen any specialists to deal with her neck pain. She tries to put up with the pain and avoid seeing doctors (ts 247).
57 Ms Syme also said that she had not seen a psychologist or psychiatrist in relation to her depression after the date of the Accident. She did say that her general practitioner had recommended that she undertake some counselling, but she did not feel able to do so.
Factual findings concerning the Accident
58 As I have mentioned ([6]), the evidence in the action commenced by Mr Galipo stands as evidence in the action commenced by Ms Syme. Mr Galipo's evidence was to the effect that:
(a) the Accident involved the defendant's car 'T-boning' his car on the passenger side around the point of the front tyre and front door;
(b) at the point of impact, Ms Syme was pushed over and hit him on the left-hand side;
(c) the impact was of sufficient force to push his car across to the other side of the road.
59 This is consistent with Ms Syme's evidence, set out at [42], in particular that, at the point of impact, she was thrust forward and sideways, then backwards.
60 Ms Syme did not make any materially inconsistent statement to any of the doctors who reviewed her about the manner in which the Accident occurred. Nor was her version of events challenged in cross-examination. Accordingly, I find that:
(a) the Accident involved the defendant's car 'T-boning' the car in which Ms Syme and Mr Galipo were travelling on the passenger side around the point of the front tyre and front door;
(b) at the point of impact, Ms Syme was thrust forward and sideways, then backwards;
(c) as part of the sideways movement, Ms Syme hit Mr Galipo on the left-hand side;
(d) also as part of the sideways movement, Ms Syme struck her arm on the passenger side window; and
(e) the impact was of sufficient force to push the car across to the other side of the road.
Factual findings concerning the onset of symptoms after the Accident
61 Ms Syme's evidence as to the onset of symptoms after the Accident may be summarised in the following terms:
(a) immediately after the Accident she felt pain down her neck, a headache coming on and felt pretty sore;
(b) on leaving the hospital she was given pain medication;
(c) she spent the weekend in bed, the Accident occurring on a Saturday;
(c) she had pain in her neck radiating up to the back of her head;
(d) she also had a sore lower back;
(e) she took Panadeine Forte to settle the pain;
(e) she saw her general practitioner the following Monday and obtained a doctor's certificate to take the following week off work;
(f) she spent the week in bed feeling really sore, with neck pain and a headache.
62 In evidence before me is the discharge summary from the Armadale Kelmscott Hospital Department of Emergency Medicine, as well as a report dated 5 December 2014. The history of the presenting complaint recorded is not inconsistent with the evidence given by Ms Syme. Examination revealed that there was no external injury to the head. There was tenderness to the neck and lumbar spine. Her left upper arm was slightly tender. The diagnosis given was soft tissue injury to the neck, lower back and left thigh. This report confirms that Ms Syme was given pain medication on her discharge.
63 As to Ms Syme's initial injuries, Dr Bowden reported in the following terms (28 January 2015 report, page 1):
1. Her description of injuries:
She advised that she had hurt her left shoulder and suffered a whiplash type injury to her neck. The ED notes indicate that she was the front passenger in a vehicle travelling at 60 kph which was struck on the passenger side. She was thrown about but did not strike her head on any hard surface. She was wearing a seatbelt and presented to the ED via ambulance complaining of pain in the left upper arm, left lateral thigh, neck, and lower lumbar.
2. Diagnosis
The ED diagnosis is of soft tissue injuries including whiplash type injury and lower back muscle pain. When I saw her on the 29/5/13 she was still suffering neck and left arm pain with tenderness around the elbow and the deltoid area of the shoulder. Her symptoms had been improving. I did not diagnose any additional injuries and she no longer had symptoms in the lower back or left leg.
3. Inconsistencies?
There were no inconsistencies
4. Directly caused by the crash?
These injuries are entirely the result of the described motor vehicle crash.
5. Pre-existing injuries?
These symptoms are not associated with any prior condition.
65 Dr Porteous recorded that with the Accident, Ms Syme had an onset of neck pain, left shoulder and elbow pain and lower back pain.
66 Ms Syme told Mr McLaren that she struck her left elbow against the window. Following the Accident, she noticed that she had soreness in her neck and back and developed a headache. In relation to her then treatment to date, Mr McLaren recorded the following (24 May 2016 Report, page 2):
Ms Syme was assessed at the Armadale Hospital, had some x-rays of her neck and back and was allowed home. She subsequently attended her general practitioner who gave her some stronger analgesic medication and some exercises which involved range of motion exercises for her neck and shoulders. She said that she has not attended a physiotherapist or any other allied health professional. She occasionally sees her general practitioner.
67 Ms Syme's evidence as to the onset of symptoms set out above ([61]) was not challenged in cross-examination. Her evidence is consistent with the contemporaneous record in the discharge summary from the Armadale Kelmscott Hospital, and not materially inconsistent with what she told the doctors who reviewed her.
68 I make factual findings in accordance with Ms Syme's evidence as set out at [61].
Factual findings as to Ms Syme's current symptoms
69 Ms Syme's evidence as to her symptoms and limitations, since the Accident and to the date on which she gave evidence, may be summarised as follows:
(a) she experiences continuing neck pain and headaches;
(b) she experiences lower back pain more frequently than prior to the Accident;
(c) since the Accident, she has continued to work a full-time 38-hour week as a childcare worker;
(d) the standing and lifting she is required to do at work aggravates her lower back and neck pain;
(e) she is helped at work by other staff members who do some lifting for her;
(f) she sometimes requires pain medication during the day or needs to take a break and rest at work during the day;
(g) her daily routine on a work day involves going home from work in the late afternoon, feeling like 'crap', taking pain medication, placing a heat pack on her neck and going to bed by 6.30 pm;
(h) when her neck pain gets bad, Ms Syme will take time off work, at the rate of one to two days a month; and
(i) her symptoms of depression have increased over time after the Accident, ultimately requiring a change in medication, following which her depression has been 'okay'.
70 As to the development of symptoms, Dr Fairhurst stated (25 July 2014, Report, page 2):
She reportedly returned to work duties after a week. She recalled persisting difficulties in lifting babies and infants. She reported attempting to delegate this responsibility to her colleagues as much as possible.
She recalled developing headaches after a few weeks. She reportedly did not return to her GP to discuss this, claiming 'I don't like seeing doctors'. She reported 'putting up with the pain', taking Panadeine Forte two tablets, twice a day, on a frequent basis. She has reportedly been 'living with the pain since'.
She reported a long history of depression and that her depressive symptoms have reportedly worsened since her injury. She has become increasingly frustrated with feelings of guilt, she is unable to attend to her family and children as she would like.
71 Under the heading 'Current Status', Dr Fairhurst recorded the following (25 July 2015 Report, page 2):
She reports intermittent dull lower back pain. She reports episodes of pain lasting up to a week. She reports that her back pain is triggered by either exertion, particularly after lifting at work or if she has been standing for a prolonged period. She reports lower back stiffness after prolonged sitting. She denies any radiation into the buttock or legs. There is no reported incontinence, numbness or tingling in the legs.
She reports periodic left-sided neck pain with radiation into the left temporal and parietal regions of her head. She denied any referred pain into the arms, numbness, tingling or weakness.
72 On examination, Ms Syme presented, to use Dr Fairhurst's words, 'as a slim but poorly conditioned lady in her forties' (25 July 2015, Report, page 4). Dr Fairhurst found that she reported her symptoms without embellishment and displayed no abnormal pain behaviour. He observed her to be noticeably withdrawn with marked effect. A clinical examination of the cervical spine revealed tenderness to palpitation along the spinous processes and over the left para-spinal region. There was also tenderness to palpitation over the left side of the upper trapezius muscle. Ms Syme had restriction in extension of her neck. Flexion, rotation and natural flexion were considered to be within normal limits.
73 Dr Fairhurst conducted an upper limb examination, which was unremarkable. He also conducted a lumbar spine examination, which noted accentuation of the lumbar lordosis, tenderness along the spinous processes and left para-spinal areas of the lumbar spine. Movement of the spine was considered full. There was normal rotation, flexion to 90 degrees such that she could touch her mid shin with her fingertips, extension to 20 degrees and lateral flexion such that she could touch her lateral knee joint with her fingertips bilaterally. Dr Fairhurst also conducted a lower limb examination which was also unremarkable.
74 Dr Fairhurst observed that Ms Syme's treatment has been minimal and noted surprise at the absence of any physiotherapy input. He said that she had been largely self-treating her injuries with analgesia stating: 'I suspect that this is a consequence of a long standing reluctance to seek medical advice' (25 July 2014, Report, page 6).
75 Dr Fairhurst noted that Ms Syme had not been incapacitated from engaging in her usual occupation, though that she reported worsening of her symptoms after work duties. He said that prolonged lifting or standing tends to aggravate her symptoms. He suggested that she should endeavour to reduce the amount of lifting and prolonged standing if this is practicable. He continued (25 July 2014, Report, page 7):
I am not aware of any acute aggravation of her injuries sustained in the course of her employment duties. She reportedly finds the heavier manual tasks more difficult than she did prior to the accident. It is important that her employer is aware of this and able to accommodate a lighter manual workload should the need arise. I do not consider that she requires intermittent time off as a consequence of her injuries.
76 In his report dated 15 October 2014, Dr Porteous records that, Ms Syme was given a week off work, after which she returned to work on full duties 'initially struggling'. He records that 'a few weeks later she reports onset of right frontal headaches worse than previously, and slightly different from previous headaches'. Ms Syme reported that her depression was worse, having had it for 10 years and been treated with medication. She also reported that she carried on working during this period as she needed to.
77 As to her presenting condition, Dr Porteous records the following (15 October 2014, Report, page 2):
Currently, Ms Syme reports constant left neck aching. If she has not done much physical activity such as on a Saturday or Sunday, it can be 1 or 2/10. Today, after working this morning, it is currently 6/10 and is felt in the left posterior neck and the left superior and posterior shoulder. At the end of the day the left neck and posterior shoulder pain can be up to 8 or 9/10.
With the pain at high levels, Ms Syme reports left frontal headaches with a history of having only very occasional bilateral frontal headaches prior to this.
Ms Syme reports left lower back ache and discomfort at the end of the day, often 6/10, settling overnights sometimes, but sometimes in the morning. It resolves on her day off.
For pain relief she is taking over-the-counter Nurofen 200mg one tablet twice a day.
Ms Syme says that her neck and shoulder pain frequently wakes her.
78 Dr Porteous records the following outcomes from his examination of Ms Syme on 15 October 2014 (15 October 2014 Report, page 4):
Examination of the neck shows minus 15 degrees of the left rotation and right lateral neck movement because of pain in the left shoulder. There was slight guarding evident with these actions. There was discomfort to light touch in the left shoulder. There was no marked spasm today.
…
Examination of the right shoulder showed a full range of movement. Examination of the left shoulder indicated minus 30 degrees of flexion, abduction and extension because of left neck pain limiting this.
…
Examination of the lumbar spine showed her able to flex and get her hands to lower shins with normal extension of lateral movements. There was no evidence of asymmetrical movements, spasm or guarding. There is minor tenderness in the left upper lumbar spine area. There was no evidence of lateral or gluteus discomfort.
79 In giving evidence, Dr Porteous explained that the reference to 'minus 15 degrees' is his way of describing that the movement was 15 degrees less than normal. Dr Porteous was asked whether or not his clinical examination matched the description given by Ms Syme of her pain levels. He said that 'they didn't match it well', as he would have expected lesser degrees of movement with the level of pain described (ts 316).
80 Under the heading 'status as present', Mr McLaren recorded the following (23 May 2016 Report, page 3):
Head:
Ms Syme said she develops a headache every other day. They are not severe headaches. She takes two Panadol twice a day when she has a headache.
Neck:
Ms Syme said her neck gets 'really sore' up the middle of her neck and down each side. This extends out over the upper border of the right trapezius. She experiences no shoulder or arm pain.
Lower back:
Ms Syme said that she always had some lower back pain since she was a child. Her lower back pain was worse for a time after the accident but has now settled to the pre-accident pain level.
81 Mr McLaren's clinical examination revealed the following (23 May 2016 Report, page 3):
Head and Neck examination findings:
Ms Syme complained of tenderness to palpation along the nuchal lines, over the spines of the mid-cervical spine, and upper border of the left trapezius muscle, particularly the right. Range of motion was preserved, except for mild restriction of extension, which was associated with some discomfort. There was no normal neurology related to the neck.
Upper limb examination findings:
There was no muscle wasting or deformity. All joints move through normal range with normal power and sensation.
Spine/back examination findings:
Ms Syme stood with a slight increase in a normal lumbar lordosis. There was no specific tenderness in the lumbar spine. The lumbar spine moved through a satisfactory range without significant discomfort. There was no abnormal neurology related to the lumbar spine.
82 When giving evidence, Mr McLaren stated that it was very common for people who have a soft tissue injury to the neck such as that diagnosed in Ms Syme to develop headaches (ts 320).
83 Ms Syme's statement to Mr McLaren that her lower back pain has settled to her pre-Accident pain level is admissible as an admission against her interest: Santos v The State of Western Australia [No 2] [2013] WASCA 39 [54] (McLure P, with whom Buss and Mazza JJA agreed). Other than this point, the statements of Ms Syme recorded by Dr Fairhurst, Dr Porteous and Mr McLaren are not materially inconsistent with her evidence as set out in [69]. In particular, the pain scale references (that is, pain on a scale out of 10) recorded by Dr Porteous closely mirror Ms Syme's evidence as to the normal work day.
84 With one caveat, the findings on examination by each of these doctors are also consistent with Ms Syme's evidence. The caveat is that Dr Porteous would have expected less movement with the level of pain reported. However, this point was not developed in cross-examination with either Dr Fairhurst or Mr McLaren. To the extent that there is any inconsistency between the opinion of Dr Porteous and that of Mr McLaren, I prefer the latter's opinion as it was given nearly two years after that of Dr Porteous, and it thus a more relevant gauge of Ms Syme's ongoing symptoms. Further, Ms Syme's evidence as to the day-to-day impact of her symptoms was not challenged in cross-examination. Specifically, it was not put to her that she was exaggerating her symptoms or their impact on her day-to-day life.
85 For these reasons, I make factual findings in terms of [69], save for (b) in relation to back pain. In that regard I find that while for some time after the Accident she experienced lower back pain more frequently than prior to the Accident, this pain has now settled to the pre-Accident pain level.
Relevant law - causation
86 The issue of what, if any, of the impairments to Ms Syme's physical or mental condition, were caused by the Accident is to be determined under the Civil Liability Act 2002 (WA) (CLA) s 3, s 5A. The same goes for the economic loss she claims: CLA s 3, s 5A. As the plaintiff, Ms Syme bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation: CLA s 5D.
87 The issue of causation required the court to consider two elements. The first is whether 'the fault was a necessary condition of the occurrence of the harm': CLA s 5C(1)(a). The second is whether it 'is appropriate for the scope of the tortfeasor's liability to extend to the harm so caused': CLA s 5C(1)(b). This second element is not in issue in the present cause; the defendant did not suggest that it was not appropriate for the scope of his liability to extend to the harm found to have been caused applying the first element.
88 As to the first element, a 'necessary condition is a condition that must be present for the occurrence of the harm': Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 182 [20] (French CJ, Gummow, Crennan & Bell JJ). As such, the term 'necessary condition; imports the 'but for' test; but for the negligent act or omission, would the harm have occurred?: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 [45] (judgment of the court); Strong [18]. Even if a fault that cannot be established as a necessary condition of the occurrence of harm, in an 'appropriate case' the fault may nonetheless be sufficient to establish factual causation: CLA s 5C(2). However, on the facts of the present case, it is not necessary for me to consider this additional limb.
89 In the present case, for the defendant to succeed in an argument that he is not liable for the harm experienced by Ms Syme since the Accident, the evidence as a whole would need to be sufficient to satisfy the court that Ms Syme has failed to prove, on the balance of probabilities, that this harm was caused by the Accident as defined in CLA s 5C.
Factual findings - causation
90 As I have already noted, Dr Bowden was of the view that Ms Syme's soft tissue injuries to her neck and back were caused by the Accident. However, he went on to say (28 January 2015 Report, page 2):
I feel that she has no ongoing sequelae from the accident. However she has on two subsequent occasions in 2014 mentioned it to my colleagues when reviewed. She noted that she had had some back pain in the MVA and when she saw Dr Atkinson on the 22/8/14 but no further investigation was undertaken. She also mentioned the neck injury to Dr Obademeji on 22/12/214 when she presented with a headache for which she was given a certificate for work that day. He examined her neck and found no areas of tenderness and did not note any concerns regarding her back.
I feel that these two incidents do not represent ongoing symptoms related to the accident given the natural course of such injuries, and as such she has no ongoing symptoms related to the injury.
91 In cross-examination, Dr Bowden accepted that, if Ms Syme's symptoms had remained constant since May 2013, it is 'entirely possible' they could have continued from the Accident (ts 343).
92 The patient records for the Langford Medical Centre were not before the court. Ms Syme was not cross-examined in relation to the two particular consultations at the Langford Medical Centre identified in Dr Bowden's report as to the symptoms she may or may not have had and reported on those occasions. In my view, this constitutes a failure to comply with the principle of procedural fairness set out in Browne v Dunn (1894) 6 R 67 (HL) (as to the rule in Browne v Dunn, see generally: SAM v The State of Western Australia [2016] WASCA 64 [40] (Corboy J, with whom McLure P & Mazza JA agreed); Scope Machinery Pty Ltd v Ross [2009] WASCA 100 [28] - [29] (Martin CJ, with whom Buss & Miller JJA agreed)). On that basis, I place no weight on the observations of Dr Bowden as to these two consultations. Moreover, Dr Bowden's opinion is inconsistent with the balance of the evidence. In particular, as I have mentioned, Ms Syme gave evidence that she has had continuing neck pain and headaches since the Accident, which evidence was not challenged in cross-examination.
93 Dr Fairhurst diagnosed Ms Syme as suffering from a whiplash associated disorder affecting the cervical and lumbar spine. He observed (25 July 2014 Report, page 5):
She sustained injuries to her neck and lower back which have failed to settle with conservative treatment. She remains limited in her ability to perform many of her activities of daily living and requires intermittent analgesia to assist with her symptoms. She reports worsening of depressive symptoms as a consequence of her injuries. She remains restricted in her ability to perform many activities of daily living. She continues to work in a capacity as a child care assistant. She reports that the lifting requirement of her role continues to cause her ongoing difficulties.
94 When giving evidence, Dr Fairhurst said that whiplash associated disorder is the most common injury he sees as a result of a motor vehicle accident. He also gave evidence that, if it was the case that Ms Syme had symptoms in her lumbar spine which predated the Accident, it would not necessarily have affected his opinion that the whiplash type injury to her neck was caused by the Accident (ts 252).
95 In terms of causation, Dr Porteous states the following (15 October 2014 Report, pages 4 and 5):
Ms Syme reports onset of left neck pain, left shoulder, elbow and arm pain and left lumbar back pain with the accident.
Her left elbow pain resolved.
Ms Syme reports ongoing chronic pain in the left neck and shoulder and the left lower back since the accident.
…
Ms Syme reports that she did not have any neck or back pain prior to the accident. In my view given thus there is a temporal association with the motor vehicle accident and her current symptoms.
I believe they are therefore caused by the motor vehicle accident on 25 May 2013.
96 When giving evidence, Dr Porteous reiterated that the temporal onset of symptoms informed his conclusion that the Accident was the cause of the symptoms.
97 As to causation, Mr McLaren opined as follows (24 May 2016 Report, page 4):
As a result of the accident, Ms Syme sustained a soft tissue injury to her neck and has some ongoing symptoms. She had some mild exacerbation of her pre-existing lower back symptoms which have now settled.
...
The motor vehicle accident of 25 May 2013 has been responsible for the injuries.
....
Ms Syme's ongoing symptoms have been caused by the accident.
98 In giving evidence, Mr McLaren said that a 'soft tissue injury to the neck' is referred to by other medical practitioners as whiplash or whiplash associated disorder.
99 On the evidence before me I find that:
(a) Ms Syme currently suffers from a soft tissue injury to her neck;
(b) the soft tissue injury to her neck was caused by the Accident;
(c) the soft tissue injury to her neck has resulted in symptoms of neck pain and headaches from immediately after the Accident to the date of trial;
(d) the soft tissue injury to her neck has exacerbated her pre-existing depression.
100 As to the lower back injury, I find that the Accident caused an aggravation of Ms Syme's lower back symptoms, which were still present in 2014 (as reported to Drs Fairhurst and Porteous) and by 2016 had settled to its pre-Accident level (as reported to Mr McLaren).
101 In terms of CLA s 5C, Ms Syme has established on the balance of probabilities that the Accident was a necessary condition of the occurrence of the soft tissue injury to her neck and of the sequelae of that injury, being her neck pain, headaches and an exacerbation to her pre-existing depression.
What is the appropriate assessment of past special damages?
102 In her particulars of damages, Ms Syme seeks an indemnity for accident related medical expenses that have not been paid as at the date of assessment. As at the date on which the particulars were provided, 7 September 2016, a current Medicare Notice of Charge had been requested from Medicare Australia. She claims miscellaneous out-of-pocket treatment expenses, estimated globally at $2,000.
103 The only evidence of specific expenditure incurred by Ms Syme is the $10 a fortnight she spends on Panadeine Extra, say $20 per month. Over the 42 months from the date of the Accident to the date of assessment (25 November 2016), this equals $840.
104 In my view, the estimate of $2,000 for miscellaneous out-of-pocket treatment expenses is not supported by the evidence. In my view, the amount of $1,000 is a reasonable and appropriate estimate. I assess past special damages in that amount.
105 She is also entitled to an indemnity for accident related expenses for which there is a claim by Medicare.
What is the appropriate assessment for future medical expenses?
Relevant law
106 Ms Syme is entitled to recover from the defendant her reasonable future medical expenses: Sharman v Evans [1977] HCA 8; (1977) 138 CLR 563, 573 - 574 (Gibbs & Stephen JJ). In assessing reasonableness, the court will balance the health benefits to the plaintiff against the cost of the treatment proposed: Sharman(573 – 574).
Particulars
107 In her particulars of damages, Ms Syme claims the global amount of $5,000 for future medical expenses, relying on the reports of Dr Fairhurst and Mr McLaren.
Dr Fairhurst – prognosis and treatment
108 As to prognosis, Dr Fairhurst in his report dated 25 July 2014 stated (page 7):
Over a year has passed since her motor vehicle accident and her symptoms remain troublesome. The nature of whiplash associated disorder is that most sufferers will make a full recovery over this period, thereafter the likelihood of full resolution becomes increasingly less likely. I consider that the likelihood of full resolution is now slight.
109 Dr Fairhurst said that Ms Syme required ongoing analgesic medication, noting that she was currently then taking over-the-counter Panadol Extra. He opined that she is likely to require non-prescription analgesic medication for the foreseeable future, estimating the cost of this at approximately $500 per year. In relation to ongoing treatment, he stated (25 July 2014 Report, page 8):
The mainstay of treatment for whiplash associated disorder is conservative. She may gain benefit from physiotherapy or exercise physiology, even at this late stage in her recovery. 'Hands on' treatment combined with gym based exercises and/or hydrotherapy for up to three months may be helpful. I estimate the cost of this at approximately $2,000. Additionally, she would benefit from psychological treatment through a clinical psychologist. I estimate a minimum 10 sessions at a cost of $1,500.
110 Dr Fairhurst confirmed in evidence that if whiplash extends beyond 12 months, then it is likely to become permanent. This is because there has been permanent damage to the tissue in the neck.
111 In relation to the future treatment proposed, Dr Fairhurst said that exercise is important as, if the muscles in the spine and neck can be strengthened, the patient is less likely to experience symptoms. He was asked in evidence-in-chief whether or not this opinion remains, if he knows that some two years later Ms Syme is experiencing the same symptoms. He said that it would. He observed that one desirable outcome of the exercise treatment is that the patient is able to take analgesics less frequently, and reducing the side effects of analgesics.
112 Dr Fairhurst was also asked whether or not, assuming Ms Syme had the same neck symptoms currently, his opinion remained that it would be important for her to seek psychological treatment. He commented that it would be even more important. He said that pain is a complicated and multifaceted thing and sometimes unresolved psychological issues prevent injuries from being resolved. He said this was quite common (ts 258, 259).
Dr Porteous – prognosis and treatment
113 In relation to prognosis, Dr Porteous opined that 'there is likely to be mild to moderate pain and restricted range of motion in the neck and lumbar spine at least in the short to medium term'. In giving evidence, Dr Porteous said that by the short term he was referring to 3 – 12 months and by the medium term he was referring to 1 – 3 years. He also opined that Ms Syme had reached 'maximum medical improvement'. In evidence, he explained that this is a term from the workers' compensation arena, which means that the condition is unlikely to change in the next 12 months.
114 In relation to future treatment, Dr Porteous opined as follows (15 October 2014, Report, page 7):
The medical literature consistently indicates that improved cardiovascular fitness significantly helps in chronic pain disorders. With regard to treatment then, the only outstanding treatment I believe is for Ms Syme to initiate and undertake a graduated independent fitness program. I suggested she worked slowly towards exercising for 20 – 30 minutes 3 - 4 times a week at a moderate rate. She should confirm this with her treating Doctor.
115 In giving evidence, Dr Porteous commented that, 17 months after a motor vehicle accident, he would expect to see the symptoms of a soft tissue injury to have settled in a normal case, although he did observe that he does see people who have extended musculoskeletal symptoms.
116 In cross-examination, Dr Porteous was asked to assume that Ms Syme's conditions at the date of his examination persisted until September 2016, and then asked whether or not this made it more likely it was to be a longer term issue. He replied that he could not answer that question directly as 'things may have changed since I saw her last' (ts 314).
Mr McLaren– prognosis and treatment
117 As to prognosis, Mr McLaren opined as follows (24 May 2016 Report, page 4):
The general prognosis for soft tissue injuries to the neck is that there is a gradual improvement with time. There is a long history of depression which is generally associated with a poorer prognosis for injury.
118 When giving evidence, Mr McLaren said that whilst Ms Syme's symptoms should improve over time, it was impossible to put a time frame on how long or how short that would be (ts 324). He said that his comment that depression is generally associated with a poor prognosis for injury is a generally accepted position in the medical sphere. He said that depression means that the patient feels pain more severely and the length of time the pain takes to resolve seems longer.
119 As to future treatment, Mr McLaren opined (24 May 2016, page 4):
The only treatment I would suggest would be a self-managed isometric muscle strengthening program. There is no indication for further investigations or any invasive treatment. Any passive therapy modalities are unlikely to result in any lasting benefit.
120 When he referred to 'passive therapy modalities', Mr McLaren explained in cross-examination that this is a reference to manipulation and massage, that is, someone else is doing the work. This is in contrast to the self-managed exercise strengthening program he recommended, which he described as an active modality, which involved Ms Syme doing the work. A physiotherapist or exercise psychologist could assist Ms Syme with such a program. He also gave evidence that an exercise program of this kind should provide a long term benefit (ts 331).
121 In cross-examination, Mr McLaren was asked whether, some three years post-Accident, he would have expected the symptoms to have fully manifested. He said that Ms Syme does not fall outside the norm in relation to ongoing symptoms; for some people, their symptoms resolve relatively quickly, for others it takes decades.
122 In re-examination, Mr McLaren said that it was reasonable to expect that Ms Syme would take analgesic medication from time to time due to her pain.
Findings and assessment
123 There is a large measure of consistency in the evidence of Dr Fairhurst, Dr Porteous and Mr McLaren. To the extent that there is any inconsistency, I prefer the evidence of Mr McLaren, given that he had the opportunity to examine Ms Syme in closest proximity to trial.
124 I make the following findings:
(a) Ms Syme falls into the category of people who do not make a full recovery within 12 - 18 months of sustaining a soft tissue injury to the neck in a car accident, and thus it is likely that her current symptoms will persist in the medium to long term;
(b) while she is experiencing the current level of symptoms, Ms Syme will require over the counter pain medication, at around the same rate as she is currently taking this medication;
(c) it would benefit Ms Syme to undertake a self-managed strengthening program, in particular to strengthen her spine and neck muscles, working towards 20 - 30 minutes, three to four times a week;
(a) she is not able to do any of the activities in [206];
(b) she does not see her friends anymore and does not go out anymore, tending rather to stay at home; and
(c) she is forced to work for economic reasons.
Daniel Syme's evidence
210 Daniel observed that his mother had to stop doing things. She started sleeping and resting more because of the pain caused by the headaches she was suffering. Often when she returned home from work she would go straight to her room to lie down or sleep. In cross-examination, Daniel gave evidence that his mother complained about her neck injuries.
Medical evidence
211 In his report dated 25 July 2014, Dr Fairhurst recorded Ms Syme saying that she avoided physical exertions since her injury. She has had to stop playing sport with her children, though some of her activities are limited by chronic asthma.
212 Dr Porteous recorded that Ms Syme used to play netball and football with the children but has not been able to do that since the Accident. As at the date of her interview, she did not have any recreational activities. She said her only real recreational activity is watching television.
213 Ms Syme told Mr McLaren that she had previously participated in gymnastics, Tae Kwon Do and netball, but said that she had no specific leisure activities leading up to her Accident.
Factual findings
214 I have also already found that Ms Syme falls into the category of people who do not make a full recovery within 12 - 18 months of sustaining a soft tissue injury to the neck in a car accident, and thus it is likely that her current symptoms will persist in the medium to long term.
215 Ms Syme's evidence as set out in [209] was not challenged in cross-examination. Specifically, it was not put to her that she was overestimating or exaggerating the amount of assistance she obtained. Her evidence is consistent with that of Daniel, and not materially inconsistent with what she told the medical practitioners.
216 I make factual findings in terms of the evidence at [209].
Assessment
217 In my view, Ms Syme's non-pecuniary loss is appropriately assessed at 15% of a most extreme case. This is for three main reasons. First, her symptoms have persisted some three and a half years after the Accident, and are likely to continue for the medium to long term. Second, she is forced to work for economic reasons, which aggravates her symptoms on a daily basis. This leads to a daily routine on a work day which involves going home from work in the late afternoon, feeling like 'crap', taking pain medication, placing a heat pack on her neck and going to bed by 6.30 pm. It also means she has had to use some of annual leave as, in effect, sick leave. Third, her symptoms have resulted in her being unable to undertake a significant range of activities of the kind which make life enjoyable, as I have set out above.
218 As assessment of 15% of a worst case equates to an amount of $40,400, calculated as follows:
15% x $406,000 = $60,900 less $20,500.
219 I am of the opinion that, within the statutory framework of the MVTPI Act, an amount of $40,400 is fair and reasonable compensation for the injuries received by Ms Syme and the disabilities caused, having regard to current general ideas of fairness and moderation.
What quantum of damages is Ms Syme entitled to?
220 For the reasons set out above, I assess the damages to which Ms Syme is entitled at $112,024, as follows:
Past special damages $ 1,000
Future medical treatment $ 4,000
Past economic loss $ 7,868
Future economic loss $ 20,000
Past gratuitous services $ 23,614
Future gratuitous services $ 15,142
Non-pecuniary loss $ 40,400
Total $112,024
221 She is also entitled to an indemnity for any outstanding Accident-related expenses for which there is a claim by Medicare.
222 I will hear from counsel as to costs.
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