Tomlinson v Thomas - [1999] WADC 119

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: TOMLINSON -v- THOMAS [1999] WADC 119

CORAM: DEANE DCJ

HEARD: 3, 4 MAY 1999

DELIVERED : 15 NOVEMBER 1999

FILE NO/S: CIV 1365 of 1998

BETWEEN: DEAN ROBERT ANDREW TOMLINSON
Plaintiff
AND
KRISTY LEE THOMAS
Defendant

Catchwords:

Damages - Assessment - Personal injury - 41 year old trades assistant - Injury to right leg - Subsequent development of right sided torticollis - Causation - Damages for past and future loss of earning capacity - Section 3C Motor Vehicle (Third Party Insurance) Act 1943 - Award for non-pecuniary loss - Calculation of superannuation entitlements - Assessment of retained earning capacity

Legislation:

Nil

Result:

Plaintiff awarded total damages in the sum of $84,504.85

Representation:

Counsel:

Plaintiff: Mr D R Clyne
Defendant: Mr J G Staude

Solicitors:

Plaintiff: Simon Walters
Defendant: John G Staude

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

Bennett v Jones [1977] 2 NSWLR 355
Black v MVIT [1986] WAR 32
Brown v Rodrigues, unreported; FCt SCt of WA; Library No 970334; 3 July 1997
Graham v Baker (1961) 106 CLR 340
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
March v E & M H Stramare Pty Ltd (1990‑91) 171 CLR 506
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Paul v Rendell (1981) 34 ALR 569
Riddle v McPherson (1995) 37 NSWLR 338
Southgate v Waterford [1990] 21 NSWLR 27
Tubemakers of Australia Limited v Fernandes (1976) 10 ALR 303
Vischer & Co v Holt & Thompson [1979] 2 NSWLR 322

Case(s) also cited:

Bowen v Tutte (1990) A Tort Rep 81-043
EMI Australia Ltd v Bes (1970) 2 NSWR 238
Pollock v Wellington (1996) 15 WAL 1
Thomas v O'Shea (1989) A Tort Rep 80-251
Watts v Rake (1960) 108 CLR 158

DEANE DCJ: In this action the plaintiff claims damages from the defendant for an injury allegedly suffered by the plaintiff in a motor vehicle accident which occurred on the corner of Ennis Avenue and Elnora Drive in Rockingham on 24 March 1997. Liability is admitted on behalf of the defendant but the allegations relating to the alleged injuries are not admitted. The defendant says that any injury suffered by the plaintiff as a result of the motor vehicle accident was of a minor nature and therefore was likely to have resolved within a short time after the event. Further, the defendant disputes that any cervical injury which may have been suffered by the plaintiff was caused as a result of the motor vehicle accident.
Circumstances of the accident
The plaintiff was born on 8 December 1957 and is now 41 years of age. At about 6.00pm on the evening of 24 March 1997 the plaintiff was riding his Yamaha 1200 motorbike at a speed he estimated to be between 40 and 50km/h towards the intersection where the collision occurred. The defendant, Ms Thomas, (who has since married and is now Mrs Baldwin) was driving her motor vehicle and was about to execute a righthand turn at the intersection. The front righthand corner of her vehicle came into collision with the plaintiff on his motorbike and the plaintiff said he was struck on the right leg area. He "reefed" the handle bars of his bike and lost control of the machine for a second or two before regaining control of it. In his evidence the plaintiff said that the muffler on his bike was squashed as a result of the collision and the shock absorber was bent and torn off. The foot peg bracket of the machine was also bent and the swing arm was damaged. According to the plaintiff about $4,500 worth of damage was done to his motor bike. The defendant's vehicle suffered only minor damage in that the right headlight cover of her car was broken, there was some damage to the indicator and there was also a small dent in the rubber bumper bar.
The plaintiff brought his bike to a halt some distance away and hobbled or limped back to where the defendant had parked her vehicle on a median strip. At that point the plaintiff said his leg was sore and he was, it seems, in a somewhat agitated condition. The defendant gave evidence that the plaintiff behaved in an angry and abusive manner towards her. Arrangements were made for the plaintiff's motorbike to be removed from the scene and he obtained a lift to the Rockingham/Kwinana Hospital where he received medical attention. His evidence was that he complained about his sore leg and that he also had a cut on his knee. At the plaintiff's request, according to a report from the hospital, he was given an intramuscular injection of Pethidine to deal with his leg pain. The plaintiff had approximately one week off work due to his sore leg and after that he returned to work as a trades assistant at Austel Ships, where he had been working at the time of the motor vehicle accident. The plaintiff worked without incident on his first day back at work and on the following day he again went to work. During the course of that day, his evidence was that he was tightening some bolts in the usual course of his work. Shortly after this at 8.30am he began to experience pain in his right shoulder and neck area, with the result that his neck inclined significantly to his righthand side. According to the plaintiff's evidence, he had not experienced any neck pain between that day and the time of his accident approximately one week earlier. As he was in considerable pain the plaintiff, who said he was unable to ride his bike, obtained a lift to the Woodbridge Medical Centre where he consulted a doctor.
As a result of the cervical injury suffered by the plaintiff, which was subsequently diagnosed as a wry neck or torticollis, the plaintiff had about four months off work.
Plaintiff's personal circumstances and work history
The plaintiff was born in New South Wales and received his education there before leaving school at 15 years of age. His work history has consisted exclusively of carrying out labouring work. He has some skills as a furniture removalist and between 1979 and 1987 he worked in that capacity for Grace Brothers. On 9 January 1987, whilst he was working for that firm, the plaintiff injured his lower back whilst assisting a co‑worker to move a sheet of armour plate steel. As a result of that accident the plaintiff sustained a severe back injury which required surgery including a spinal fusion. He was off work for a period of five years and in 1992 received a settlement of $350,000 in relation to the injury.
The plaintiff has never held a licence to drive a motor car or a truck but has, for most of his adult life, ridden motorcycles. He has had a number of motor vehicle accidents whilst riding motorcycles including one in 1976 where he said that his big toe on one foot was severed but fortunately was able to be sewn back on to his foot. He also received an amount of compensation in relation to that accident.
In mid‑1992 the plaintiff, his de facto wife of approximately 18 years and a number of their children came to live in Western Australia as the plaintiff's wife considered that it would be a cheaper place to live and in which to raise their family. In that year and early in the following year the plaintiff was not working but said that he was attempting to build up his fitness after his earlier back injury and surgery, with a view to eventually obtaining employment. I accept the evidence that the plaintiff has overcome considerable physical obstacles in learning to walk again and even to this day he retains a slightly unusual gait as a result of his injury and the subsequent surgery. On arrival in Western Australia the plaintiff bought a house and furnished it with the proceeds of his New South Wales compensation settlement. He also used those moneys in order to live and support his family.
In mid‑1993 the plaintiff obtained a job doing labouring work at Clover Meats for a period of about seven weeks. He then worked for a short time as a trades assistant at Domuie Engineering as well as working for Skilled Engineering in a similar capacity. The plaintiff also worked for Fluor Daniel and confirmed that much of his work after his arrival in Western Australia was on a contracting basis which meant that he went from one job contract to another. Essentially each of these jobs involved labouring but the plaintiff stressed in his evidence that he coped well with the physical aspect of this work despite his previous back fusion. He found the work awkward at times rather than heavy. According to the plaintiff at the time of his motor vehicle accident he was about to cease work with Austel Ships because he was not happy to sign a work place agreement with that particular organisation. He said he had obtained work with Fluor Daniel and was in fact supposed to begin his new job with them the day after the motor vehicle accident. When he was unable to do so it was the plaintiff's evidence that Fluor Daniel kept the job open until the plaintiff was available to take advantage of that employment.
When the plaintiff eventually did take up work with Fluor Daniel it was as a trades assistant doing sentry duty and carrying tools at a construction site. He did that for a short time and then was transferred by Fluor Daniel to their Murrin Murrin site where again he did work as a trades assistant. He said that he was still experiencing neck pain but was managing to work until he suffered a right sided hernia which necessitated him having one week off work. Upon his return to Murrin Murrin the plaintiff continued to carry out duties of a lighter nature such as washing cars and working in the stores section of the project. Despite the lighter work his evidence was that he continued to experienced neck pain and so he left Fluor Daniel's employment. He then had two short term jobs as a trade assistant which he managed to carry out despite suffering some pain. The plaintiff's evidence was that his motivation to continue working was based very largely on his need to earn an income as he had no entitlement to social security benefits until October of 1998, there being a 6 year preclusion period following the settlement of his claim in New South Wales in June 1992.
The plaintiff continued to attempt to find employment and eventually obtained about 2 months work again with Fluor Daniel at their Kwinana Power Station site. There he was able to carry out most physical tasks using his left arm in order to avoid aggravating right sided neck symptoms. The plaintiff left that particular job in October of 1998. On the plaintiff's evidence there is no doubt that he is still able to grip with his right arm and pick up items with that arm but he says that any reaching involving the right arm leads to pain.
The plaintiff's evidence was that he is still attempting to find employment but without success. His evidence was that he has applied for work again with Fluor Daniel who have advised him that he is on a waiting list and his previous employer Austel Ships have informed him that no work is currently available.
Mr Stockey, the Safety and Human Resources Manager at Austel Ships, confirmed that the plaintiff did not work for that organisation after 1 April 1997 and he formally resigned on 22 April 1997 as he indicated he had alternative employment available. He advised the Court that currently there is work available with the organisation and Austel is recruiting employees and would consider the plaintiff to be eligible for re‑hiring. Mr McKinnon, the Service Supervisor at Skilled Engineering, confirmed that the plaintiff worked for them for about a 2 week period as a trades assistant in December 1997 and January 1998. He worked again for the organisation for a very short period of about 18½ hours on 17 January 1998. He was unable to advise whether or not the plaintiff had contacted Skilled Engineering seeking employment since January 1998. As far as Skilled Engineering were concerned any potential employee must be physically fit and although they were aware that the plaintiff had had a previous back injury they made attempts to find him suitable employment within the organisation. Notwithstanding this, Mr McKinnon conceded that it is more difficult to find a job for an employee if that person has an injury such as a neck injury and although currently there is work available within the organisation, realistically it would seem to be the case that the plaintiff would be competing with prospective employees who had no physical disabilities.
Ms Hall gave evidence in her capacity as the Human Resource Manager for Fluor Daniel Engineering, Construction and Maintenance. She confirmed the details of the plaintiff's previous employment history with Fluor Daniel in July and August 1997 at Kwinana and again at Murrin Murrin in September, October and November of 1997. When the plaintiff was re‑hired as a trades assistant at Kwinana in September, October and early November of 1998 the work he undertook was not subject to any restrictions and Ms Hall's evidence was to the effect that as the plaintiff's site appraisals had always been good the organisation would consider the plaintiff eligible for re‑hiring were job prospects within the company more optimistic. She could only tell the Court that if a person such as the plaintiff had a previous spinal fusion and claimed ongoing neck problems, the severity of those problems would have to be carefully considered before the company would hire the individual. In this regard it is significant that in his evidence in cross‑examination the plaintiff conceded that generally he was not prevented from doing work because of his neck symptoms and although he had pain, if the work was available, he would attempt to do it.
At the time of trial the plaintiff's evidence was that he was separated from his wife and family mainly as a result of the financial strain as well as the frustration and anger he has felt since the time of his neck injury arising. He said that he has no fixed accommodation but stays where he can and at the time of trial that was at a tattoo studio in Applecross owned and run by an acquaintance of his. There the plaintiff answers the telephone, takes messages and does general cleaning work in return for accommodation, food and some cigarettes. It would appear from the plaintiff's evidence, however, that this is not the first occasion upon which he and his wife have separated, as after his accident in New South Wales, he went to live in a country area for a time and a medical report from a Dr Irwin dated 4 July 1991 advised that his information from the plaintiff was that financial pressures caused the plaintiff to lose his motor bike as well as other personal items and the resulting instability and strain led to family breakdowns.

Medical evidence relating to the plaintiff's injuries and the extent of the plaintiff's incapacity

After attending the Rockingham Kwinana Hospital on the evening of 24 March 1997 the plaintiff received some medical attention and went home. After this time, according to exhibit P2, a book of medical reports which was tendered by consent, the plaintiff received further medical treatment mainly from doctors at the Woodbridge Medical Centre. Dr Jose saw the plaintiff on 25 March 1997 when he was complaining of pain in his right calf, for which he received an injection and anti‑inflammatory treatment. Dr Bouverie, who did not give evidence but whose report was before the Court, indicated that on 29 March 1997 the plaintiff was complaining of an acute wry neck with associated pain. This is most curious as it is at odds with the plaintiff's evidence and would have been at a time prior to the plaintiff returning to work with Austel Ships after the motor vehicle collision. On 1 April 1997 the plaintiff attended Dr Cameron at that practice complaining of a painful cervical spine and a diagnosis of whiplash was queried. The following day the plaintiff attended on Dr Jose complaining neck pain and he was given an injection of Pethidine to control the pain. On nine further occasions in April 1997 the plaintiff attended the practice and on each occasion he was complaining of neck pain and symptoms. Again on two occasions in May, three occasions in June and one occasion in July of that year the plaintiff was attended to at the practice in relation to complaints regarding his neck. According to the medical records of the practice the last attendance of the plaintiff in 1997 with respect to his neck pain was on 21 July. Although the plaintiff attended for one or two unrelated problems subsequent to that time it was not until one year later in July of 1998 that he again attended with respect to neck problems. Dr Cameron was not called but his medical reports tendered in evidence indicated that he was of the view that when he saw the plaintiff on 2 July 1997 the cause of his neck problem may well have been related to the motor vehicle accident in which he was involved on 24 March. Although acute wry neck and the associated pain can arise from a number of causes, for example sleeping awkwardly, Dr Cameron's opinion was that wry neck caused by that type of activity would be generally likely to recover quickly as distinct from the plaintiff's situation.
Unfortunately, Dr Bouverie's notes of 29 March 1997 gave little information as to the basis of his diagnosis of wry neck and in the absence of further evidence from him I do not believe a great deal of weight can be attached to his observation. I accept that it is the case that a blow to the head can cause wry neck, which is not an uncommon medical problem but again Dr Cameron's reports indicate that such a cause would result in a wry neck recovering comparatively quickly with anti‑inflammatory treatment and manipulation of the neck. The plaintiff's history to Dr Jose on 2 April 1997 was consistent with the plaintiff's evidence that he had returned to work at Austel Ships for a very short period of time after the motor vehicle accident when he suffered neck pain on 1 April. Certainly when Dr Jose saw the plaintiff the day after the accident the plaintiff made no complaint of neck pain to him at that time. Dr Jose agreed that typically whiplash injury does manifest itself within a very few days after a motor vehicle accident and if there is a greater gap in time and the manifestation occurs after a return to work then arguably such a neck injury might be said to be related to a work activity but in his opinion that activity at work would have to be the result of a significant injury. There is no evidence before the Court that the plaintiff suffered such a significant injury upon his return to work at Austel Ships after the motor vehicle accident. In the end Dr Jose favoured the view that the cause of the plaintiff's wry neck on the information available to him was the motor vehicle accident on 24 March 1997.
An occupational physician, Professor Andrew Harper, examined the plaintiff and prepared a report dated 18 December 1998. He obtained a history of onset of neck pain a week or so after the motor vehicle accident and was firmly of the view that despite the time delay the likely cause of the neck injury was the motor vehicle accident. He believed that the "reefing" of the bike which the plaintiff engaged in at the time of the collision was very relevant because such an action applies sudden stress to the neck. This in turn can lead to straining or tearing of the soft tissue and fibres of the tissue within the neck and the result is inflammation and swelling which may occur over an ensuing number of days. It was Professor Harper's view that in some situations other injuries to the body might result in more dominant pain which masks neck pain initially but he was unable to say if such a theory applied to the plaintiff. In my view it would seem on the plaintiff's own evidence that although he had a sore leg it recovered relatively quickly and would not have been of such a nature as to mask what no doubt would be significant neck pain. In Professor Harper's view the activity whereby the plaintiff was tightening bolts at work upon his return to Austel Ships could well have been a physical activity which aggravated the injury site within the neck which in turn caused the plaintiff to become acutely aware of the pain in that region.

The plaintiff's evidence was that at the time of the trial he experienced difficulty in turning his neck to the right and any movements of the right arm aggravate the pain which is why he restricts movement of that arm. In addition he experiences excessive sweating under the right armpit. From time to time he also suffers from headaches and physiotherapy has not assisted in alleviating any of the symptoms. The only pain relief the plaintiff seems to have found effective is the occasional Pethidine injection. He gained some temporary relief also from traction. The plaintiff however refuses to undergo a course of medical injections for his current symptoms because he believes, on the basis that such treatment did not assist his knee pain, it will not assist the neck pain.
The general effect of the plaintiff's evidence was that although he does experience and has experienced some back pain in the past it is not significant and does not impact negatively on his ability to work. This was confirmed by the evidence of Professor Harper who considered that the plaintiff had made a good recovery from his spinal surgery. The plaintiff's ongoing problems are related to his neck injury and Professor Harper's diagnosis of soft tissue injury in the root of the neck close to the spinal column indicates that treatment will be difficult although there is the possibility of analgesics assisting pain control. As the plaintiff is coping without such analgesics Professor Harper saw no need for pain killers to be administered and currently believes that the acute phase of the plaintiff's injury has passed and he is now in a chronic phase of injury with associated physical restrictions. Certainly CT scans and x‑rays performed in April 1997 were normal according to Dr Cameron's reports.

Findings on the medical evidence

The issue of causation is raised squarely on the pleadings and the evidence before the Court. On the weight of the evidence I find that the plaintiff made no immediate complaint about neck pain following the motor vehicle accident but rather presented to his local medical practice complaining of severe pain in that area on the second day of his return to work at Austel Ships, after he had been engaged in some tightening of bolts. On all of the evidence before me, despite the delay in the noticeable onset of the neck symptoms, I find that the torticollis or wry neck suffered by the plaintiff arose as a direct result of the plaintiff's involvement in the motor vehicle injury on 24 March 1997. I accept the evidence of Professor Harper in this regard and note that there is no evidence which would readily permit a contrary view to be drawn. In his report of 6 May 1997 Dr Cameron did note that at consultation on 1 April that year the plaintiff had complained of some neck pain initially which appeared to settle but then recurred. According to the reports of Dr Cameron, the plaintiff continued to complain of neck pain and restricted movement. He also complained of headaches to Dr Woo in July of 1998 and was noted by Dr Cameron on 14 July to be suffering from neck pain which resulted in a decreased range of movement in the cervical spine which was demonstrated upon examination. Finally the evidence of Dr Jose was that in his view the plaintiff's neck problems were the result of his involvement in the motor vehicle accident. In his report of 10 November 1997 a pain specialist, Dr Anderson noted the plaintiff to be tender over the right trapezius with a slight reduction in neck movement associated with pain on right rotation of the neck. There is no question but that the soft tissue injury to the plaintiff's right leg which also occurred as a result of the motor vehicle accident has now completely resolved and in no way impacts upon his ability to carry out physical work. On the evidence before me I also find that the prior back injury suffered by the plaintiff and the spinal fusion which he subsequently underwent is not of such a nature that it has a significant impact upon his current ability to carry out physical work.
I accept the defendant's submission that questions of causation are to be determined by a value judgment involving ordinary notions of language and common‑sense; March v E & M H Stramare Pty Ltd (1990‑91) 171 CLR 506 at 524. In my view the evidence in this case is not an example of medical evidence denying a connection between the injury and the cause of that injury and this is not a case where a scientific "possibility" is improperly or inappropriately being elevated to a "probability"; Tubemakers of Australia Limited v Fernandes (1976) 10 ALR 303. Having made a finding that the plaintiff's wry neck or cervical condition is related to the motor vehicle accident which occurred on 24 March 1997 it is necessary to consider the medical prognosis as to the extent of the plaintiff's ongoing problems. When Dr Cameron reviewed the plaintiff in July of 1998, over 12 months after the motor vehicle accident, he was of the opinion that the plaintiff could not do heavy work such as lifting and bending as it would aggravate his neck condition. Nonetheless Dr Cameron remained optimistic at that time and was hopeful that the plaintiff would make a full recovery within the following 12 months. This was particularly so as the plaintiff's symptoms appeared to have stabilised and there was a suggestion that this augured well for improvement. In addition Dr Cameron was of the opinion that soft tissue injuries to the neck may generally be considered to be mild and therefore the prospects of such injuries resolving over time are good. Unfortunately it would appear as at the date of trial that Dr Cameron's opinion may have been somewhat optimistic.
On the other hand the plaintiff himself in evidence did not deny that he could carry out some work if it was available. He admitted that his right leg injury sustained in the accident had healed and there seemed to be no question that his hernia, sustained while he was working for Fluor Daniel at Murrin Murrin, had also healed. Finally although he admitted suffering some back pain and incapacity it did not seem to be frequent, nor did it prevent him from working. His main complaint seemed to be of pain in the right arm and right side of the neck base which was exacerbated when he lifted it to shoulder height and also an inability to lift heavy objects with associated problems in reaching and gripping.
In his evidence Professor Harper confirmed that movements of the right arm would aggravate the plaintiff's neck symptoms and as a result, considering his work history, the plaintiff's work capacity was reduced although Professor Harper certainly felt that the plaintiff was capable of restricted work on a full time basis. In this sense although Professor Harper's prognosis was guarded, nonetheless he confirmed that the plaintiff could work if appropriate employment was available, although there was a significant compromise with respect to the plaintiff's employability.
It is necessary also to take into account that subsequent to the motor vehicle accident and period of time away from work the plaintiff has had periods of employment as a trades assistant on a contract basis. Some of that work has been lighter in nature than work he carried out prior to this accident but on his evidence the plaintiff was able to earn up to $1,000 net per week when he was able to obtain appropriate employment. The plaintiff's evidence was that he wishes to work and has continued to apply for various positions but for a variety of reasons it seems he has not been successful in obtaining work. The medical and other evidence supports a conclusion that the plaintiff does, in any event, retain a significant earning capacity, notwithstanding that there are clearly some physical aspects of the work of a trades assistant that he is precluded from doing or that he can only carry out with some difficulty as a result of his neck condition.

Loss of amenities and pain and suffering

The injuries suffered by the plaintiff have reduced to a degree the range of physical activities in which he is able to participate in the work environment although as I have noted he still retains a significant earning capacity. I accept the plaintiff's evidence that he suffers some pain and discomfort, particularly in the right arm and right side of the neck when he uses his arm in a certain way and I also accept that he suffers intermittent headaches. Nonetheless I find that the pain he suffers is not so great that he requires ingestion of pain killers or regular injections to control it. It would therefore seem that the degree and type of pain suffered varies from time to time, depending on the nature of the physical activity in which the plaintiff has been engaged.
The plaintiff's evidence was that his life used to centre around the work in which he was engaged and his other main outlets were visiting friends and doing some house maintenance. It would not seem that he continues to carry out house maintenance, although I note he does some sweeping and general security work at the tattoo parlour where he was living at the time of trial. As a result of the financial strain suffered by the plaintiff, due to his loss of employment, I accept he has suffered a degree of frustration and anger which has caused some emotional problems for him and to a degree this has adversely affected his relationship with his wife and family. I accept that the excessive sweating which the plaintiff complains of under his right arm is no doubt also a cause of discomfort and possible embarrassment. There is no evidence that there were a wide variety of sports or other social activities in which the plaintiff engaged before his accident which are now no longer open to him.
That the plaintiff's pain is to a large degree both under control and controllable in my view is evidenced by the fact that he now does not use or need pain relieving drugs. Also it does not seem he requires any form of continuing physiotherapy or manipulation for his physical problem. There is no evidence before me that he is unable to continue to ride a motor bike.
The plaintiff's injuries arose out of a motor vehicle accident which occurred after 1 July 1993. The provisions of s3C of the Motor Vehicle (Third Party Insurance) Act 1943 govern the amount of damages to be awarded to the plaintiff for non‑pecuniary loss.
Non‑pecuniary loss is defined in the Act to include pain and suffering, loss of amenities of life, loss of enjoyment of life, curtailment of expectation of life and bodily or mental harm. Subsection (2) of s3C of the Act provides that:
"(2)The amount of damages to be awarded for non‑pecuniary loss is to be a proportion, determined according to the severity of the non‑pecuniary loss, of the maximum amount that may be awarded."
The maximum amount of damages that may be awarded under the Act for non‑pecuniary loss as from 1 July 1999 is set at a figure of $219,000, (Amount "A").
Subsection (3) of s3C provides as follows:
"(3)The maximum amount of damages that may be awarded for non‑pecuniary loss is Amount "A", but the maximum amount may be awarded only in a most extreme case."
Southgate v Waterford [1990] 21 NSWLR 27 is of some assistance in interpreting these provisions. Although the New South Wales legislation considered in that case was in somewhat different terms to s3C of the Act as it stood at the time that legislation provided that damages for non‑economic loss were only to be awarded in cases where there had been significant impairment of an injured person's quality of life and required the Court to assess the amount of damages to be awarded for non‑economic loss as a proportion, determined according to the severity of the non‑economic loss, of the maximum amount which that legislation permitted to be awarded. In their joint judgment Gleeson CJ, Kirby P and Meagher JA said at 440:
"There are a number of ways by which trial Judges could approach the task of apportionment required by s79(2) and s79(3). It is important in this case for this Court to mandate any particular way of arriving at the 'proportion' required by s79(2). But clearly, because the task in hand is that of awarding damages for 'non‑economic loss', it is appropriate for the trial Judge to consider and to make findings on those elements in the evidence which are relevant to such loss. This will require the Judge to consider and make findings on the evidence relevant to those heads of damage formerly considered in the award of general damages. Then it is necessary for the Judge to conceive 'a most extreme case'. Only for such case may the maximum amount provided by s79(3) be awarded. The use of the indefinite article 'a' has already been noted. Opinions of what constitute 'a most extreme case' will doubtless vary. But clearly quadriplegia would fall into that class. The amount to be awarded must then be apportioned somewhere between nil and $180,000, but in a ratio which the Judge fixes keeping in mind the fact that the cap of a statutory maximum is retained for 'a most extreme case'."
After canvassing the evidence relevant to the heads of damage which fall within an award of general damages it is then necessary to consider what might be a most extreme case in which the maximum amount of damages, currently standing at $219,000 may be awarded for non‑pecuniary loss, and then apportion damages by comparing the severity of this plaintiff's non‑pecuniary loss with that likely to be suffered in a most extreme case. When the plaintiff's injuries and associated symptoms are compared with the example of what might be regarded as a most extreme case, namely quadriplegia, I find that the plaintiff's initial injuries and symptoms, their progression and treatment, their current status and the effect that they have had on the plaintiff's enjoyment of life puts this situation at 12 per cent of a most extreme case. 12 per cent of $219,000 is $26,280. As this amount of $26,280 is more than Amount "B", namely $10,500 but not more than Amount "C", namely $33,000, the amount of damages to be awarded for non‑pecuniary loss is the excess of $26,280 over the sum of $10,500. This results in a sum of $15,780 being awarded to the plaintiff for non‑pecuniary loss.

Past loss of earning capacity

As was observed in Graham v Baker (1961) 106 CLR 340 at 347, "an injured plaintiff recovers not merely because his earning capacity has been diminished but because the diminution of his earning capacity is or may be productive of financial loss and if, notwithstanding such impairment, both his contract of employment and his right to ordinary wages continue, how can it be said that his impairment has resulted in any loss so far as his earning capacity is concerned?". On all of the evidence before me in this case I am satisfied that for certain periods of time following his accident on 24 March 1997 to the date of trial, the plaintiff's impairment has been productive of financial loss.
The plaintiff gave evidence that at the time of the motor vehicle accident he was working as a trades assistant at Austel Ships where he was earning about $515 net per week. He said that he was to begin employment the day after the accident with Fluor Daniel on a contract basis and there he would be earning significantly more money and would receive about $1,000 net per week. I note, however, that after one week off work the plaintiff did not go to work for Fluor Daniel but rather returned to work with Austel Ships and a day or so later suffered the wry neck injury. He then had about four months off work and it was then that he went to work for Fluor Daniel.
I do not accept the submission that any damages paid to the plaintiff for past economic loss should be based on earnings of $1,000 net per week. In any event the plaintiff gave evidence that during the 16 week period that he was off work following the accident and the development of his wry neck and before he went to work for Fluor Daniel he was in receipt of $350 net per week pursuant to weekly payments from an insurance policy.
Following upon the injury to his neck the plaintiff was offered work from 24 March 1997 to 13 July 1997 (16 weeks). During this period, as I have said, the plaintiff was in receipt of $350 net per week by way of payments pursuant to an insurance policy. He was then employed at Fluor Daniel from 13 July 1997 to 23 August 1997. The plaintiff was thereafter off work from 24 August 1997 to 21 September 1997 (4 weeks). He was then employed again by Fluor Daniel doing light duties between 22 September 1997 and 30 November 1997. That contract came to an end and the plaintiff was unable to obtain work between 31 November 1997 and 23 September 1998 (42 weeks). He was then employed again for a short period of time doing light work at Fluor Daniel between 24 September 1998 and 12 November 1998. Finally, the plaintiff has been unemployed and unable to obtain work from 13 November 1998 to the date of trial (24 weeks). Therefore the plaintiff has been unemployed between the date of accident and the date of trial for a period of 86 weeks.
I consider that the plaintiff's past economic loss should be assessed as follows:
For the period 24 March 1997 to 13 July 1997
$515 net per week - $350 net per week = $165 net per week
$165 net per week x 16 weeks = $2,640.
Thereafter for the remaining period of 70 weeks during which the plaintiff was unemployed and unable to obtain work his loss should be calculated as:
$515 net per week x 70 weeks = $36,050.
That is a total loss of past earnings of $38,690. From this sum must be deducted two further amounts of moneys earned during the relevant period as a result of short periods of employment that the plaintiff had with WA Universal Rigging ($898 net) and Skilled Personnel ($4,008 net)
$38,690 - $4,906 = $33, 784.
Where loss occurs over a period of time, as is the case of loss of interest on past loss of earnings an appropriate formula is;
Interest = half (interest rate) x principal x time.
Riddle v McPherson (1995) 37 NSWLR 338 at 342. The relevant interest rate was 8 per cent until 11 September 1997 and thereafter it has been 6 per cent. If interest rates have varied over time it is appropriate to adopt an average, or it may be necessary to shift the 'centre' one way or the other; Bennett v Jones [1977] 2 NSWLR 355 at 370; Vischer & Co v Holt & Thompson [1979] 2 NSWLR 322 at 338.
I therefore find the interest on the plaintiff's past loss of earnings to be 3.5 per cent (half interest rate) x $33,784 x 2 (years) = $2,364. The total award for past loss of earning capacity is therefore $36,148.

Past loss of employer based superannuation benefits

The plaintiff's evidence was that whilst he was employed at Austel Ships as a trade assistant he was earning approximately $515 net per week. This equates to approximately $670 gross per week which is an annual gross salary of $34,840. The employer based contribution is to be calculated on the basis of 7 per cent of the relevant gross wage for a 38 hour week. The plaintiff's gross yearly earnings at the time of the accident on his evidence were $34,840. 7 per cent of this gross annual salary is $2,438. This amounts to a weekly superannuation contribution of $46.88. When this sum is applied to the 86 week period of the plaintiff's unemployment it results in a figure of $4,031. Interest on past superannuation loss should be calculated in the manner I have previously described. The interest on this loss is calculated as follows;
3.5 per cent (half interest rate) x $4,031 x 2 (years) = $282.
The award in relation to past loss of employer based superannuation benefits is therefore $4,313.

Future loss of earning capacity

As the plaintiff claims damages for loss of earning capacity, pursuant to Medlin v State Government Insurance Commission (1995) 182 CLR 1 he is obliged to satisfy the Court of two things:
"The first of those requirements is the predictable one that the plaintiff's earning capacity has in fact been diminished by reason of the negligence caused injuries. The second requirement is also predictable once it is appreciated that damages for loss of earning capacity constitute a head of damages for economic loss awarded in addition to general damages for pain, suffering and loss of enjoyment of life. It is that the 'diminution of … earning capacity is or may be productive of financial loss' (Graham v Baker (1961) 106 CLR 340 at 347)."

As was noted by Lord Diplock in Paul v Rendell (1981) 34 ALR 569 at 471:
"… The assessment of economic loss involves the double exercise in the art of prophesying not only what the future holds for the injured plaintiff but also what the future would have held for him if he had not been injured."
Clearly there are difficulties involved in this exercise and there can be no certainty as to either one of these assessments. In Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 Deane, Gaudron and McHugh JJ observed at 642-643:
"When liability has been established and a common law court has to assess damages, its approach to events that allegedly would have occurred, but cannot now occur, or that allegedly might occur, is different from its approach to events which allegedly have occurred. A common law court determines on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred. Hence, in respect of events which have or have not occurred, damages are assessed on an all or nothing approach. But in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high - 99.9 per cent - or very low - 0.1 per cent. But unless the chance is so low as to be regarded as speculative - say less than 1 per cent - or so high as to be practically certain - say over 99 per cent - the court will take that chance into account in assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability."
Having considered all of the evidence before me, I find that the plaintiff does retain an earning capacity. To a large extent this has been demonstrated by the fact that for periods of time since he sustained his injury he has been able to work on a contract basis for various employers. It is the case, however, that on those occasions, although he has been employed as a trades assistant, evidence is that he has generally done lighter work such as carrying tools, washing cars and doing sentry duty. He has been able to carry out the work although at times he has encountered some difficulties in doing so, particularly when required to use his right arm and lift it shoulder height or above. I accept Professor Harper's evidence that movements of the plaintiff's right arm would aggravate his neck symptoms, which in turn would reduce his work capacity, although the plaintiff can, in Professor Harper's view, work on a full‑time basis if appropriate employment is made available and certain limitations in that work are observed. I do not find that the plaintiff's previous back injury currently presents an obstacle to him carrying out physical activities.
In my view the plaintiff as a result of his current physical state is less competitive in the market place, particularly given that he has only ever worked in a physical or labouring job capacity. Despite the fact that he has had a good work history with various employers in the past it is likely that the plaintiff may well not be employed for a particular job in preference to someone who does not have a history of a work related injury with some ongoing physical restriction.
It is difficult to assess the plaintiff's future loss of earning capacity because of the nature of his employment history in the past. He has had significant periods of unemployment in the past and in addition, he has of more recent times worked on a contract basis where, although the income he earned was high from time to time, there was lack of security and permanency in those occupations. It seems that the plaintiff was intent on pursuing this form of employment on a contract basis when he made his decision to leave the employment of Austel Ships.
Counsel for the defendant drew the Court's attention to the authority of Brown v Rodrigues, unreported; FCt SCt of WA; Library No 970334; 3 July 1997. In that case the plaintiff had been injured in a motor vehicle accident and had been left with some residual disabilities affecting her ability to engage in heavy physical activities requiring the use of her right shoulder. The most significant residual disability was that of a head injury which led to ocular difficulties. She had left school at a young age without formal qualifications and was unskilled. The work she had done generally consisted of manual labour and at the time of her injury the plaintiff was working in a manual occupation which she was unable to continue after her accident. She retained a work capacity, however, and in fact had worked on a part‑time basis in a veterinary clinic after her recovery. Nonetheless she was unable to carry out a range of work and that in turn led to anxiety and frustration levels being exhibited by the plaintiff.
Generally the plaintiff in this case is in a not dissimilar situation. I do not find he has lost his pre‑accident earning capacity but rather there has been a diminution in that capacity. He is still able to carry out the work of a trades assistant but on a more limited basis than hitherto and that may well make it difficult for him not only to obtain work in that capacity in the future but also to maintain that employment. I am satisfied therefore that since the accident the plaintiff has demonstrated a capacity to work from time to time but the range of unskilled employment open to him is more limited than before the accident as a result of the physical limitations he now suffers.
As with Brown v Rodrigues, I consider that this is not a case where an award for future economic loss can be readily assessed by mathematical calculation. Doing the best I can on the material available to me, taking into account the medical history, the plaintiff's history of intermittent employment since this accident, the plaintiff's evidence and the evidence as to future employment prospects, I consider that an appropriate award for future economic loss is $30,000.
There are contingencies, however, which need to be taken into account. The plaintiff may have decided to cease work for personal reasons, or he may have been precluded from continuing to work until age 65 by virtue of illness, injury, death, or loss of employment in an industry which is physically demanding. In addition, it is to be noted that the plaintiff had decided to work on a contract basis and employment of this nature may often be characterised by periods of unemployment in between jobs. Following the guidance given in authorities such as Black v MVIT [1986] WAR 32 I propose to discount the calculated future economic loss by a further 6 per cent to reflect these contingencies:
$30,000 - $1,800 (6 per cent) = $28,200

Future loss of employer based superannuation benefits

Initially a claim was made in this matter with respect to future loss of employer based superannuation benefits and in a schedule of superannuation filed on behalf of the plaintiff it was suggested that any such sum should be based on a calculation of 7 per cent of any global amount ordered by way of loss of future earning capacity.
I accept counsel for the defendant's submission, and I do not understand counsel for the plaintiff to dispute contents of this submission, that where one is considering an award for future loss of earning capacity based on the application of an arithmetical formula, then there is a sound reason to add a component for future loss of superannuation. In a situation, such as this, however, where the Court awards a global sum to reflect future loss of earning capacity which includes a loss of degree of competitiveness in the work place, then it is appropriate that only one sum be awarded which sum includes and takes into account all other benefits of employment. For that reason the global sum awarded for future loss of earning capacity in this matter takes into account any loss by way of future superannuation benefits that the plaintiff may suffer.

Future medical expenses

A claim under this head of damages was not actively pursued at trial. There was no evidence from either the plaintiff or Professor Harper that the plaintiff needed or required any specific medical treatment or medication in the future. There was no suggestion in any of the medical reports that there would be a long term need for medical treatment and medication. It is the case from time to time that it has been suggested pain killers or pain killing injections might assist the plaintiff but on his own evidence he does not wish to undertake any injection or course of injections and he seems to be coping comparatively well without the use of pain killers on a regular basis. He has undergone physiotherapy on a few occasions in the past but no longer does so and he would not seem to wish to pursue this avenue of treatment in any event. There is also no suggestion on the material before me that the plaintiff requires or needs to attend regular medical appointments in the future relevant to his condition. For these reasons I make no award under this head of damages.

Special damages

Special damages have been agreed as between the parties in the sum of $63.85 for travelling expenses and I make an award in this regard.

Summary of award

Loss of amenities and pain and suffering                 $15,780.00
Past loss of earning capacity  $36,148.00
Past loss of employer based superannuation benefits $ 4,313.00
Future loss of earning capacity  $28,200.00
Future medical expenses   No award made
Special damages (as agreed)  $      63.85
$84,504.85