Taylor v Deane-Shaw No. DCCIV-96-305 Judgment No. D3792

[1998] SADC 3985

TAYLOR v DEANE-SHAW

Civil
Judge Anderson

This is an assessment of damages wherein it is agreed between counsel that the plaintiff is to receive 100% of her damages to be assessed.

The plaintiff was injured whilst a passenger in a motor vehicle which was involved in a collision on 8 March 1993 in O’Connell Street, North Adelaide.  The vehicle was then driven by her brother, who was the second named defendant.  He is no longer party to the proceedings and the damages are to be awarded against the first named defendant who was the driver of the vehicle which struck Mr Condo’s vehicle in the rear.

At the time of the accident the plaintiff was 37 years of age and at trial she was 42 years of age.

The plaintiff, who lives in Irymple in the State of Victoria, was visiting Adelaide at the time of the collision.  Her husband was sentenced in the District Court at Adelaide on 5 March 1993 for a drug related offence.  The plaintiff had remained in Adelaide to provide him with money whilst imprisoned and, at the time of impact, was returning to her motor vehicle at a motel prior to driving herself to her home.

Whilst undertaking this latter journey, the plaintiff noticed the onset of stiffness in her right shoulder, with pain to the back of her neck and pins and needles and stiffness in her arm.  She said that the pain was from the nape of her neck, along her shoulder, to the shoulder joint to the right.  It was with her throughout the journey and overnight at Irymple.

On the following day, the plaintiff found she was unable to easily get out of bed.  She went to see her general practitioner, Dr Marrows, still with stiffness in her neck and in her right shoulder.  The plaintiff said she told Dr Marrows of this pain and of the accident the previous day.  The doctor directed physiotherapy and gave the plaintiff a sickness certificate.  She then commenced a long period of physiotherapy with a physiotherapist, Mrs Helen Israel.

Having been born in Mildura, the plaintiff left school when aged 15 and went to Melbourne and trained as a hairdresser.  She returned to Mildura and followed her chosen occupation, first as an employee and then in her own business for about two years.  Then she went to Western Australia where she worked and lived, initially alone and then with her husband, on and off until she returned permanently to Irymple in mid-1989, at which time her mother had been diagnosed with Parkinson’s disease and progressive dementia and her brothers had requested that she come home to care for her.  Prior to that time she had returned to Victoria for a short time in late 1980 into 1981, but then returned to Western Australia when her husband’s father died.  For all of the time the plaintiff was in Western Australia, she worked in a variety of jobs, but always had work of a physical nature such as a hairdresser, waitress/barmaid, cook and shop assistant.  None of this work, including block work for her brother when they were in Mildura during these years, caused the plaintiff any difficulty and she was free from physical restriction of any type when working.

When the plaintiff and her husband returned to the Mildura district in mid-1989, neither worked.  They lived on the proceeds of cashed in insurance policies and superannuation funds.  The plaintiff cared for her mother from that time.  She and her husband lived in her mother’s house.  Because of increasing financial difficulties, she commenced work for her brother at Condo Brothers, about four weeks prior to 8 March 1993.

The plaintiff said that her husband had left home in late 1991.  She said in her evidence that she was unaware of his whereabouts from then until she became aware, shortly before 5 March 1993, that he was in trouble for growing cannabis.  She said she only saw her husband in a coffee lounge in Adelaide shortly before he was sentenced.  He was sentenced to six months imprisonment, which was followed by six months home detention release.  Hence in September 1993, home detention commenced.  The plaintiff did not work from the time of the accident until she moved to Berri to establish a home in South Australia to which her husband could be so released.

Notes of Dr Marrows’s examination of the plaintiff on 9 March 1993, and his evidence, indicate that on examination, the plaintiff’s neck was tender everywhere and she had a reduced range of movement in her neck.  However, his neurological examination of her upper body was normal.  An x-ray of the cervical spine revealed no bony damage and a diagnosis of whiplash injury was made by Dr Marrows.  The plaintiff then commenced a course of physiotherapy, but before I turn to that, it is of significance to note that the plaintiff consulted a doctor in her clinic following this accident in June, August, November 1993 and in January 1994 and made no complaint of pain in her neck.  Such a complaint was made again in March 1994.

The report and notes of Mrs Israel were tendered by consent (Exhibit P1) and she was not required to give evidence.  When the plaintiff saw Mrs Israel on 11 March 1993, the plaintiff’s injuries were noted as being:

1. Soft tissue injury to her sterno-mastoid muscles, the muscles of flexion on her neck.

1. Soft tissue injury of her neck extensor muscles and ligaments.  Her right Trapexuis and Supra-Spinatus muscles were more tender and painful than her left; she had loss of her neck range of movements and complained of headaches."

Mrs Israel concluded that the plaintiff "had sustained a hyperflexion/extension injury to her neck, particularly on the right side, and to her right shoulder Girdle muscles".

This diagnosis coincided with the diagnosis made by Dr Marrows after he had examined the plaintiff and observed the x-rays.  In evidence, the plaintiff said Mrs Israel gave her mild manipulation using machines and heat treatment to both her neck and right shoulder.

In 1993 and 1994, the plaintiff visited Mrs Israel a total of 43 times.  In a letter of 13 November 1996, from Mrs Israel to the plaintiff’s solicitors, which forms part of Exhibit P1, Mrs Israel said that "at all times (the plaintiff) reported pain in her neck and right shoulder girdle, and sometimes, into her right long head of biceps tendon, especially on its attachment to the acromio clavicular joint, and into her deltoid muscle".  The plaintiff said that for the time that she saw Mrs Israel, her condition did not really improve until she ceased so doing, except for the stiffness of her neck which subsided after several weeks.  The plaintiff said that after this, she still continued to have difficulty with lifting her right arm.  She was unable to lift her right arm up at all or lift heavy things.  The plaintiff said that apart from the improvement to the neck stiffness, this difficulty with lifting and the strain in her shoulder continued until she saw Dr Maguire on 26 October 1994.  He told her to desist from physiotherapy and to restrict lifting to below waist level.  The plaintiff said that this caused an immediate improvement to her shoulder.

The plaintiff said that she did not work from the date of the accident until when she saw Dr Maguire.  She cared for her mother at home until about June 1993 and then, as I have said, she moved to Berri where her husband was to be on home detention release and her mother had respite in a nursing home in the Riverland district of South Australia.  She was there until about mid January 1994 when her mother was placed in a home in Mildura.  She returned, leaving her husband and son until they were free to join her in March 1993.

The plaintiff said that at this time she was unable to work because of her injury, but had she not been injured, she would have then been free to work for her brother again as she had in the weeks prior to the accident.

Upon her husband’s release from prison, he obtained a permanent sickness benefit because of a disease of the spine.  She said that at this time, when he was at home and she was caring for her mother’s house, she no longer had pain in her neck.  She said that that subsided about four months after the accident.  She said that once she stopped physiotherapy (after October 1994) the pain in her shoulder improved and subsided slowly over the next 4-6 months and that only certain movements caused her shoulder to catch and cause pain.

Notwithstanding this difficulty, the plaintiff said that she returned to work for Condo Brothers in June 1995.  She said that she went back to work and gradually came back to being a full time casual packer.  She was adamant in her evidence, that prior to this return to work, she had not worked since the accident in March 1993, except for intermittently over a period of 3 or 4 weeks, by helping at a coffee shop, which was restricted work which did not involve her in excessive use in her arms or shoulder.  This was work which she did not recall doing until confronted with it at trial.

The plaintiff maintained that she had not done any other work prior to her return to work in mid 1995.  This was notwithstanding an entry in Dr Marrows’s notes that she told him during a consultation on 25 March 1994 that she had pain in her right arm from her right neck and into her right shoulder since having returned to work packing grapes five weeks earlier.  Examination at that time showed a reduced range of movement to her neck and that she was unable to fully adduct her right shoulder and there was pain in her supra-spinatus area.  Dr Marrows diagnosed whiplash to her neck and subacromial bursitis and a Cortisone injection was given under local anaesthetic into her shoulder.  It subsequently allowed a full range of movement.  An examination by Dr Marrows on 17 August 1994 showed full range of movement in her right shoulder with normal power, but again with tenderness in her right shoulder from her neck.

The plaintiff said that from the time she started work at Condo Brothers in mid-1995, her neck was fine, bearing in mind the nature of the work.  Her problem was her shoulder.  When she made a circular, round-arm type movement with her arms, it would catch on the right and cause extreme pain.  Notwithstanding that, since then, she has worked as a full time casual when work was available.  Generally speaking, work is available throughout the whole year with some short periods where work hours are reduced.

The plaintiff said that when she commenced work, about 7 months after the cessation of physiotherapy, her shoulder had improved and was, in her words, "really quite good" (T p23).  Since working, her shoulder catches two, three or four times a day and she is required to take Panadol every third or fourth night.  The plaintiff said that she tries to control her movements so as to reduce the occasions upon which her arm and shoulder might catch.

The plaintiff said that because of this, in her opinion, she would be unable to return to work as a hairdresser.  Mr Maguire generally agreed.  Here, because she works for her family, if she is in any difficulty she is able to take time off and still maintain her work opportunities.  She said that she needs to take about half a day off once or twice a month.

Prior to having difficulty with her shoulder on an ongoing basis, the plaintiff said that she had a minimal regime of physical activity such as swimming and bike riding.  She said that now, because of her shoulder catching, she is unable to either rest on handlebars and thus ride a bike, or swim overarm.

When giving evidence in chief, the plaintiff appeared to be straightforward and confident of the factual bases about which she gave evidence spread over the years from when she left school.  Unfortunately, she was not able to maintain that degree of assuredness in cross examination.  She was, in my opinion, shown to be a most unreliable witness when regard is had not only to the cross examination, but also to the evidence of her brother, who confirmed the evidence of Mr Kempton, who was then an employee of Condo Brothers, that she had in fact worked for some time in January and February 1994 prior to visiting Dr Marrows on 25 March 1994 when she referred to working at a time about five weeks earlier.  This is a significant failure on the part of the plaintiff to accurately recall what she had and had not been doing.

In cross examination, the plaintiff agreed with counsel for the defendant, Mr Hilditch, when he put to her that the pain which she felt in the time after the accident was pain from the nape of her neck, along the shoulder to the shoulder joint.  She agreed that the pain went along her shoulder and down into her arm, as she was driving back from Adelaide on 8 March 1993, rather than pain specifically in the shoulder joint.  This is largely consistent with Mrs Israel’s comment of 13 November 1996 in exhibit P1 to which I have referred.

The plaintiff also agreed that when she was living at Berri she did not have any treatment for her shoulder or neck at all, that is to say either medical treatment or physiotherapy treatment.  She said that by this time she was not having pain in her neck.  The treatment resumed when she returned to Victoria in early 1994 and continued until she saw Dr Maguire in October when he instructed that it cease.

In cross examination, the plaintiff said that from when her husband left home, as a result of a poor financial situation in late 1991, she did not have any contact with him until shortly before the date of him being sentenced in March 1993.  She found out that he was in trouble with the law when the police contacted her about then and for the whole of that time she said that he had not been in contact with her.

It was because of the need to accumulate funds to pay his legal expenses that she returned to work in early 1993.  The plaintiff said that she knew, as a consequence of the charge which her husband faced, that he was likely to go to prison and that she would need income in excess of that which was provided by benefits.

The plaintiff fiercely repudiated the suggestion that she had told Dr Marrows on 25 March 1994 that she had the pain to which I have previously referred as a consequence of returning to work packing grapes.  She denied that on the basis that she had not worked at that time and indeed did not work until June 1995.  She was steadfast in her view that she did not work prior to late March 1994.  Consequently, she disagreed, equally vehemently, with the suggestion that this was the first occasion on which pain extended into her right arm.  She affirmed that since the accident she had always complained to both her doctor and physiotherapist about pain in her shoulder at the front even though there is no support for this in their respective notes.

As I have said, in the course of giving evidence the plaintiff recalled that some time in 1994, after her return from Berri, she took a part-time job in place of a girlfriend in a coffee shop in Mildura.  She described her task as simply taking the money at the cashier and making a roll every now and then.  The plaintiff said that she was offered a full time job in the shop by the proprietor shortly after she had been there and that she declined the offer of employment because she did not think that she could cope.  The plaintiff said that she told the proprietor about her injured shoulder as the reason for not being able to cope with a more intensive continuous job.  In addition, the plaintiff said that because it was necessary for her to attend to her mother, who was then in a nursing home, and help feed her on more than one occasion each day, she also would not be able to take a job in such an establishment that required her to be present until 5.30pm each day.

The plaintiff was employed by Mrs Boynton on 12 July 1994 who said in evidence that the plaintiff, like others, was employed in; "preparing food, cleaning, washing dishes, serving customers at the register and taking food out.  Afterwards, cleaning up, mopping floors, just general food service".  (T p241).  Mrs Boynton denied the plaintiff’s evidence that the work was simply working at the cash register and helping out making a few rolls.  She described a business where all of the staff helped with all of the tasks and that no arrangements were made to have individual jobs within the running of the business.  The plaintiff said in evidence that she had given up that job because of difficulties with her shoulder.  Mrs Boynton said that the plaintiff told her on the telephone that she was giving up because she wanted to undertake a TAFE course and that the hours conflicted.  She said that the plaintiff made no mention of any injury or accident.  She said she knew nothing of any injury to the plaintiff for the few weeks of her involvement with her.  Neither did she offer the plaintiff full time employment.

Indicative of the period of her employment is the fact that the relevant Group Certificate reveals that the plaintiff’s total earnings from this employment was $189 and that it was between 12 July 1994 and 3 August 1994.

I prefer the evidence of Mrs Boynton to that of the plaintiff on this topic.

The plaintiff denied, when put to her by Mr Hilditch, that she had been working prior to seeing Dr Marrows in March 1994 and that thereafter, apart from a short period of time off work on worker’s compensation, she continued to work until the agreed date of the resumption of her work in June 1995.  To my mind, the evidence does not support the assertion contained in the cross examination that the payment to the plaintiff from the Traffic Accident Commission of the sum of $1,140 related to an absence from work in March 1994.  It is much more likely that payment related to an absence from work in March 1993 and support for that is to be found in the exhibit D8 which shows that on 4 November 1993, the Traffic Accident application form was completed.  A subsequent payment contained within the tax return for the year end 30 June 1994 is consistent with that fact, more so than with a claim made in March 1994.

Not only are Dr Marrows’s notes supportive of the fact that the plaintiff told him she had worked five weeks earlier packing grapes, but when she complained of pain in her right neck and shoulder, arm and hand on 25 March 1994, an objective assessment on examination at that time showed full adduction to her shoulder.  A few days before that, on 17 March 1994, the plaintiff consulted Mrs Israel for the first time since her return from living in Berri.  Mrs Israel’s notes indicate that she was told that the plaintiff had been working for two days, picking.  She there complained of pain in the right side of her cervical spine and into her shoulder.

That the plaintiff worked in early 1994 prior to these consultations, is also supported by evidence given by her brother, her employer, to the effect that she did return to work, that she had trouble with her shoulder and that he told her to leave work and attend to her shoulder and not return until it was better.  He said that it was from then that she was off work until June 1995.

As has become obvious, there was a significant attack upon the plaintiff’s credit in the cross examination and throughout the trial.  In my opinion, her credit was considerably undermined by her unwillingness and/or inability to recall and to answer in a forthright manner.  In my opinion, she was an extremely poor witness whose evidence could only be accepted if it were supported independently by other evidence.

As I have said, her brother, Guiseppe Condo, the second named defendant, also gave evidence.  It is he who runs the business, Condo Brothers, at Irymple and it is that business which has employed the plaintiff at all times when she has worked since her return from Western Australia.

In the course of his evidence, Mr Condo acknowledged that the plaintiff worked in 1994 and I find that was work which she did, as detailed in the exhibit D3, and I accept the explanation given by Mr Condo as to the error in the type of work there described.  That exhibit shows that she worked over the periods ending 28 January, 3 February and 10 February 1994 and was paid for an aggregate 138 hours of work.  In his evidence, Mr Condo said that at this time she was, to use his words, "not performing to what I wanted her to perform and she was always complaining about it, about her shoulder" (T p169).  It was then that he told her to go away and get better.

The plaintiff’s husband gave evidence which supported her evidence as to their history together until they separated in 1991.  He said that they separated because of financial and matrimonial difficulties, reinforcing her evidence which had hinted at such, but had also referred to financial difficulties.  Mr Taylor said that he was absent for most of 1991 and 1992, until he was sent to prison in March 1993, except for some periods.  He said that it was his practice, and in this he differed from the evidence given by his wife, to be absent for three or four months and then come back for a few days or a weekend and go again.  He said that that continued until about two months before he went to prison when he was back full time.  He vacillated when asked whether she was working at that time and that evidence is contradictory and uncertain.  He confirmed that she left Berri in early 1994 to move back to Mildura when her mother went into the Mildura Hospital.  He returned to Mildura in March 1994, after his home detention was completed and soon thereafter was diagnosed with a debilitating back condition that has meant that he has been in receipt of a disability pension since that time and has not worked outside the house.  He said that upon his return in 1994, she looked after him and she also had pain in her own shoulder.  He said that she had complained of pain in her shoulder when they lived together in Berri.  I do not accept this evidence as indicative of the rotor cuff diagnosis subsequently made.

That the plaintiff worked for a few weeks in January and February 1994 was also supported by the evidence given by Mr Kempton, who was employed by Condo Brothers from about 1990.  Mr Kempton said that he recalled the accident in March 1993, because he remembered the smashed up car returning to Condo Brothers.  He said, however, that prior to that accident, the plaintiff was not working for Condo Brothers, when it is quite plain from all of the evidence that she was and in this evidence he is in error.  He also incorrectly asserted that subsequent to the accident, at no time did the plaintiff live away from Irymple, when it is clear from the whole of the evidence that she lived away from about mid-1993 until early 1994.

Attaching significance to the instalment of a new citrus packing shed for the citrus packing season of 1994, Mr Kempton said that the plaintiff was working on the packing line in February 1994.  He said that he remembered she was, at that time, packing grapes on the line because his wife was also there.  Mr Kempton said that the new citrus packing plant commenced at about the end of May 1994 and that he remembered that his wife was not offered further employment, but that the plaintiff was.  He continued to work for Condo Brothers.  He said that the plaintiff was working throughout the whole of the citrus packing season from May until about November 1994.  He also said that she worked in the grape season in 1995 and the citrus season in 1995.  The thrust of his evidence was that the plaintiff had worked continually from early 1994 until trial.

On the whole of the evidence, this witness was clearly mistaken about that and I decline to accept his evidence in that regard in the face of the other more independent documentary evidence to which I have previously referred to and upon which I have based the findings which I have made in relation to the time when the plaintiff worked during this period.

The plaintiff first saw Mr Maguire, orthopaedic specialist, on 26 October 1994.  That was after the plaintiff had been examined by Dr Marrows on 25 March 1994.  It was at that examination that Dr Marrows found, for the first time upon examination, restrictions of the plaintiff’s right shoulder movement.  He said in evidence that there were what he described as new symptoms and he recorded his shoulder examination findings as abnormal.  He diagnosed a "sub-acromial bursitis" (Exhibit D8).  He thought that the plaintiff had this new injury, plus some old problems from the whiplash injury to her neck.

Before the plaintiff saw Mr Maguire, she again saw Dr Marrows on 17 August 1994.  From his notes, at that time she complained of right shoulder pain.  There was an examination.  Again, an examination of the right shoulder gave a full range of movement and again Dr Marrows diagnosed continuing whiplash injury to the neck.

The notes of Mrs Israel show that on 22 June 1994, between the examinations by Dr Marrows in March and August, an examination by her revealed a full range of movement in the shoulder joint, with tenderness in those areas which Dr Marrows had described as being associated with whiplash injury to the neck.  In August 1994, Mrs Israel found that internal rotation of the shoulder was limited and tender.

In his examination on 26 October 1994, Mr Maguire noted that there was a slight loss of internal rotation on the right side.  There was pain in the abduction of the right shoulder and tenderness on the front of the humeral head.  She also displayed discomfort on the right side of her neck on lateral flexion with rotation to the left.  An ultrasound undertaken on 27 October 1994 was unhelpful as to the plaintiff’s shoulder pain as she described it.

In his report (Exhibit P2) as a consequence of these examinations, Mr Maguire advised Dr Baguley (the plaintiff’s usual general practitioner) that the results indicated "some degree of supraspinatus tendinitis".  He acknowledged there that it may not be entirely caused by the accident, but might have been a degenerative condition aggravated by the sudden forces within the accident.

When the plaintiff was examined by Mr Maguire on 15 December 1994, he noted "the shoulders had a full range of forward flexion and adduction with normal rhythm, but there was crepitus in the right subacromial and subdeltoid region.  She was again very tender over the front of the humeral head, and had a positive impingement test."  This accords with Dr Marrows’s diagnosis of March 1994.

The plaintiff was examined again by Mr Maguire on 17 January 1996, at which time she had been working at Condo Brothers for about seven months for between 30 and 48 hours a week doing packing work which required much shoulder movement.  At that time, the plaintiff described to Mr Maguire the pain which she described when giving evidence, as occurring on a daily basis and which she dealt with by taking Panadol after work.  Again, examination showed a full range of movement in her shoulder, with slightly less internal rotation behind the back of the right shoulder.  She continued to have pain adducting the right shoulder and still had a positive rotator cuff impingement sign.

At that time, Mr Maguire concluded that the plaintiff’s shoulders’ symptoms seemed "definite and genuine", but he remained uncertain as to the origin of the pain in her trapezius and levator scapulae muscles.  He expressed the opinion, in his report of 26 January 1996, that "it is not my experience that such pain comes from the shoulder".  His diagnosis was not assisted by x-rays taken that day.  At that time, Mr Maguire concluded only that based upon what he had been told, the plaintiff had no symptoms prior to the accident and that ever since, she has symptoms in her shoulders and the base of her neck.  He noted then, as he said in evidence, that the work which she had been doing since June 1995, "is stressful for a shoulder in that it is being repeatedly used".

Mr Maguire examined the plaintiff again on 7 August 1996.  At that time she complained of a feeling of pins and needles in the right hand and had swelling spasmodically.  He also said that she described a sharp pain in the right side of her neck when getting out of bed, which pain lasted about two minutes.  Mr Maguire was surprised by the degree of anxiety exhibited by the plaintiff for such a short duration of pain.  She told him that the arm actions required for her to bulk oranges for packing hurt the front of her right shoulder.  Examination revealed the same restriction to the back of her right shoulder, which was otherwise normal.  Adduction of her right arm across her chest hurt and so another ultrasound examination was performed.  Consequently, this led to the diagnosis of "rotator cuff impingement".  The ultrasound and x-ray examinations since the accident have not indicated any radiological evidence of deterioration in the disc spaces, thus confirming the original diagnosis of soft tissue injury to her neck and lessening the likelihood of injury to disc or joint in the accident as a source of pain.

In a subsequent report, dated 27 November 1996, Mr Maguire expressed the opinion, which he confirmed in evidence, that the right shoulder symptoms of the plaintiff may have been precipitated by the accident, based upon a common confusion of neck and shoulder symptoms.  He acknowledged, however, that her present employment of fruit packing would be "about the worst thing that she could do for her shoulder".  A further report of 27 February 1997, which contains a summary of the medical information which was available to Mr Maguire to enable him to form his opinion, leads him "conclusively to support" that the plaintiff injured her shoulder in the accident and has suffered since then.

The general thrust of Mr Maguire’s cross examination, however, was that there could be no real certainty that the impingement to the plaintiff’s shoulder has come from the accident in March 1993.  He conceded in cross examination that it was equally likely that this injury could have been caused by some event between June 1993 and 25 March 1994.  Mr Maguire was compelled to concede in cross examination that when he took a history from the plaintiff upon the initial appointment in October 1994, he was left with the impression that she had done no work of any significance between the accident and that time.  He was also compelled to concede, upon the assumption that Dr Marrows properly examined the plaintiff at the initial examination in March 1993, then he would have been in a good position to assess whether the plaintiff had suffered a neck injury as opposed to impingement of the right shoulder in the accident which he was able to diagnose in March 1994.  This later diagnosis has been confirmed and so I have no difficulty accepting Dr Marrows’s evidence as to the first diagnosis made upon examination.

In the opinion of Dr Jose, the diagnosis by Dr Marrows in March 1994 was indicative of a shoulder joint condition which came on subsequent to the initial accident.  In his opinion, it is likely that the work that the plaintiff undertook in early 1994 was causative of her impingement injury.  Of course, this opinion is consistent with that of Mr Maguire that the type of packing work undertaken by the plaintiff is conducive to the development of such an injury.  There was a consensus between the medical experts that a re-commencement of work of the type which the plaintiff undertook in January and February 1994 could be conducive to the development of the type of ailment diagnosed and from which the plaintiff now suffers.  It is an injury which may come on suddenly.

Where there is a disagreement or conflict in either the evidence or the opinions of the experts, I prefer the evidence of Dr Jose.  The probabilities of the evidence support the conclusion that the plaintiff’s activities, whether they were restricted to work or whether they involved some domestic activity subsequent to her move to South Australia in June 1993, were instrumental in the development of the symptoms diagnosed by Dr Marrows in March and August 1994 and Mr Maguire in and after October 1994.  Mr Maguire’s written opinions are gradually developed toward the conclusion which he reached in his final report and to which I have referred.  However, it was apparent, as he gave evidence, that that was a position which could not be maintained on the balance of probabilities having regard to his initial examination and his heavy reliance upon the history as given to him by the plaintiff.

As I have said, the plaintiff was such a poor witness that her complaints of shoulder pain, unless they are able to be otherwise supported, are not acceptable to me from her evidence alone.  I am not of the view that the evidence supports a finding that there was any sufficient complaint of shoulder pain as opposed to neck referred shoulder pain prior to her complaint to Dr Marrows in March 1994.

In his final address, Mr Martin of counsel for the plaintiff, sought to paint the plaintiff as a witness who was "not that bright", who has had distress in recent years and who, as a consequence, has become "confused and forgetful as to the history" (T p282).

Bearing in mind the considerable deficiencies in the plaintiff’s evidence to which I have referred, in my view, the failure of the plaintiff is something more than mere confusion.  Whilst a failure to recall that she worked in January and February 1994 may arguably be something that is contrary to her interests, the fact of the matter is that the evidence overwhelmingly leads to a conclusion that she did that work, but continued to deny throughout the whole of her evidence that that had been so.

In all of the circumstances, I am unable to be satisfied on the balance of probabilities that the injuries which the plaintiff alleges were sustained in the collision as set out in her Statement of Claim are so established.  I accept that she suffered a whiplash injury in her neck in the accident and find that it was cleared by about four months after the accident.  It is apparent that had it not been for the accident, she would have worked for about another three months until June 1993 when she went to Berri.  At this time she was having little or no difficulty with her neck and in my opinion, had it not been for her domestic circumstances, she would have been able to return to work at Condo Brothers at that time and would have worked continually, as she has done since June 1995.  The plaintiff is entitled to damages in respect of this injury of both the economic and non economic type, but is not entitled to any damages in respect of the rotator cuff impingement injury from which she now suffers.  She has failed to prove on the balance of probabilities that that injury was caused in the accident on 8 March 1993.

I turn then to the assessment of damages.  It is necessary for me, pursuant to the provisions of Section 35A of the Wrongs Act 1936 to ascribe a number between 0 and 60 to the plaintiff’s whiplash injury.  I have regard to the evidence in relation to that injury and in particular to her evidence and the medical evidence and also to the fact that subsequently she had a recurrence of that injury as diagnosed by Dr Marrows in March 1994.  I ascribe the figure 5 to this injury.  The relevant multiplier is $1,390, giving a total of $6,950.

The plaintiff is entitled to a loss of income for a period of 3 months, from the date of the accident until June 1993 - say 13 weeks at a nett rate of $476 per week, as taken from the exhibit P3 which details her earnings for four weeks prior to 8 March 1993.  This is a total of $6,188.

A schedule of agreed special damages was handed up.  The plaintiff is entitled to those special damages to the extent that they were incurred prior to June 1993.  For calculation purposes, I fix the appropriate date as 16 June 1993, which is the last occasion on which she consulted Mrs Israel prior to her move to Berri.  From the schedule, these total $705.55.

To some extent, the plaintiff self-medicated by the use of analgesics from the date of the accident and, using a broad axe, I allow $100 past medical expenses different from agreed special damages.  In view of my findings, there are no future special damages.

The plaintiff is to have interest on the lost income and the travel portion of the agreed special damages.  I fix lump sum interest at $500.

In summary therefore, the plaintiff’s assessed damages are:

non economic loss $       6,950.00
         past economic loss        $      6,188.00
         special damages    $       705.55
         past medical expenses    $      100.00
         lump sum interest  $       500.00

$       14,443.55

I shall hear counsel as to any necessary consequential orders.