Tran v Claydon - [2005] WADC 4

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: TRAN -v- CLAYDON [2005] WADC 4

CORAM: COMMISSIONER GREAVES

HEARD: 1923 & 27 JULY 2004

DELIVERED : 17 JANUARY 2005

FILE NO/S: CIV 2183 of 2000

BETWEEN: NGOC LAM TRAN
Plaintiff
AND
NIGEL CLAYDON
Defendant

Catchwords:

Damages - Motor vehicle accident - Liability admitted - Assessment - Diffuse injuries at L5/S1 and sacroiliac joint - Causation - Extent of plaintiff's disability as a result of injuries - Credibility of plaintiff - Courier driver - Capacity to retrain for fulltime sedentary work - No future loss of earning capacity - Assessment of damages in accordance with reasons

Legislation:

Nil

Result:

Judgment for plaintiff in the sum of $66,809.47

Representation:

Counsel:

Plaintiff: Mr I L K Marshall
Defendant: Mr J P T Olivier

Solicitors:

Plaintiff: S C Nigam & Co
Defendant: Talbot & Olivier

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

March v E & M H Stramare Pty Ltd (1991) 171 CLR 506

Case(s) also cited:

Nil

COMMISSIONER GREAVES: This is an assessment of damages in which liability is admitted but the cause of the plaintiff's injuries and his credibility are in issue. The plaintiff is now aged 40, having been born on 20 January 1964. On 14 April 1999 the plaintiff was driving a panel van on Kelvin Road Maddington when the defendant turned across in front of the plaintiff so that the plaintiff collided with the left hand side of the defendant's vehicle at a speed of some 60 kilometres per hour.
By par 5 of his statement of claim, the plaintiff alleges that he sustained soft tissue injuries to the neck and back, and nervous shock. The plaintiff did not lead evidence of nervous shock before me.
Prior to 14 April 1999, the plaintiff had been employed as a courier driver for many years. At the time of the accident, he was driving in the course of his employment. Following the accident, the plaintiff returned to his place of employment and then went home. At p 431 of the transcript, the plaintiff was asked to describe the problems he experienced on the night of the accident and replied:
"They start for the headaches, dizziness and it seemed like the whole spine become loose and then sore, and then can't sleep that night."
The plaintiff then said that the following morning he was "aching everywhere" as a result of which he consulted his general practitioner, Dr Cheung on 15 April 1999. He also returned to work that day and continued in his employment as a courier driver and carried out his normal duties (T454). The plaintiff gave the following evidence about how he described his symptoms to Dr Cheung (T450):
"I mentioned to him my symptoms start from the head, down to my neck, down to my shoulder blade, my elbow, my whole spine."
In his report of 27 May 1999 (exhibit 4) Dr Cheung records that the plaintiff complained of pain in his neck, upper back and left elbow. The plaintiff also complained of headaches. The plaintiff repeated those complaints on 24, 29 and 30 April 1999.
The plaintiff gave evidence (T436) that he was of the opinion that Dr Cheung could not understand his "problem" so he decided to seek another opinion from Dr M K I Tan. On 18 June 1999, Dr Tan reported that the plaintiff saw him on 30 April 1999 and complained of headaches, a painful neck especially on the left, a painful left shoulder, painful upper and mid‑thoracic spine, as well as lumbar spine, and pain in his left leg. Dr Tan expressed the provisional opinion that the plaintiff had suffered a flexion‑extension type of injury to his neck and back. A CT scan (exhibit 4) revealed a disc bulge at L5/S1. The L5 nerve roots were not compromised and the remainder of the examination was within normal limits. Dr Tan referred to a pain diagram (T646) and said the diagram depicted pain in the plaintiff's left leg right to the calf. Dr Tan said the plaintiff told him on the first day he saw him that his symptoms gradually worsened and kept him awake at night "and that's all he said" (T647). Dr Tan said he prescribed analgesics and referred him to Dr Hayes.
Dr Tan saw the plaintiff regularly over the following five years. On 17 June 2004, Dr Tan reported that the plaintiff's physical condition had not changed since his last report, and said the plaintiff's low back pain continued to be severe and disabling. Dr Tan said that during the period of five years between the accident and the trial the plaintiff generally complained of pain in his lumbar region, especially on the left side.
In cross‑examination, counsel for the defendant referred the plaintiff to his evidence in the first trial of this assessment at p 21 B and D where the plaintiff gave evidence that he experienced no symptoms the day following the accident. Before me, the plaintiff said he was not asked about low back pain the day after the accident, so he did not mention it (T460). Counsel also referred the plaintiff to his cross‑examination in the first trial at p 40 of the transcript when he confirmed his earlier evidence that he experienced no symptoms the day following the accident. The plaintiff's explanation for this evidence was (T461):
"I didn't think it’s a problem. That's no problem, sir. … I see the doctor so that is the problem. I just see a doctor for treatment."
The plaintiff agreed that he told Mr Richard Vaughan that he first experienced back symptoms two to three weeks after the accident. His explanation for this account was "I thought it was the treatment, sir." (T461) Counsel for the defendant suggested to the plaintiff that he gave a similar account to Dr Narula about the first occurrence of low back pain. The plaintiff accepted that Dr Narula's account of what the plaintiff said was correct. The plaintiff said (T468) he meant to say the pain started on the night of the accident. The plaintiff further explained the difference between his evidence at the first trial and before me, about the time of the first occurrence of low back pain, when he said (T472):
"Because I now look back to memories or I read through all the reports … and bring back memory."
The plaintiff repeated this evidence at (T477). In re‑examination, the plaintiff said that his evidence at the first trial about when he first experienced the onset of back pain was true (T590). Counsel for the plaintiff then asked him why he did not tell the court at the first trial that he felt back pain on the night of the accident, and he replied (T590):
"Because I only thought that the – the back pain start from that day, but I thought it's the treatment that start from Dr Tan. He is the one, start to treat my lower back. But before that I don't remember that Dr Cheung treating my lower back."
A little later the plaintiff said that his evidence at the first trial in this regard could be incorrect "because my memory is a problem." (T592) He repeats this evidence at (T594) where he says the account he gave to the doctors about the time of the onset of pain was also incorrect. The plaintiff said he discussed the matter with his wife in early 2004. The plaintiff then identified the report of Dr Cheung of 27 May 1999 (exhibit 4) as the only report that caused him to change his evidence. He referred particularly (T595) to the last sentence in the second paragraph of the first page of that report which reads "The pain worsened on the next day and therefore he sought medical attention." He said this statement caused him to change his mind about the onset of pain.
In re‑examination, the plaintiff also repeated his evidence that in making the earlier statement that the onset of lower back pain occurred two to three weeks after the accident, he meant that his treatment started two to three weeks after the accident (T593).
I find that the plaintiff has given two distinct and inconsistent accounts about the time of the onset of low back pain in the first and second trials. I find the plaintiff's several explanations for the inconsistent accounts unconvincing. On the balance of probabilities, I think it is very much more likely that his evidence at the first trial is the more accurate and reliable account of the onset of low back pain. That account coincides with the plaintiff's statements to the doctors from the time of the accident. I conclude therefore, that the plaintiff has consciously changed his evidence before me from the evidence he gave at the first trial. Consequently, I find as a fact that the plaintiff experienced no low back symptoms at, or immediately after the accident, and that he first experienced such symptoms two to three weeks after the accident. This finding of fact is relevant to the determination of the issue whether the plaintiff's low back pain was caused or contributed to by the accident.

Causation

The onus is on the plaintiff to establish on the balance of probabilities that the accident was a cause of his injuries. Before me, there was a conflict of expert medical opinion in relation to this issue. It will quickly be seen that the delay that I have found occurred between the accident and the onset of the plaintiff's low back symptoms was, on the evidence, central to the division of opinion between the expert medical witnesses.
I turn to that medical evidence to identify the nature and extent of the plaintiff's low back problems, and to consider the criteria by which the expert witnesses say the conflict in relation to the factual issue of the causation of the plaintiff's low back injuries is to be resolved. The neurosurgeon, Mr Soni Narula first saw the plaintiff on 10 September 1999. He noted the disc protrusion at L5/S1 suggesting a discal injury, but since there was no nerve root compromise, Mr Narula recommended on 16 November 1999 that the plaintiff be treated conservatively. The plaintiff saw a number of specialists including the orthopaedic surgeon, Mr M J McCallum. On 9 March 2001, he expressed the opinion that there was no doubt that the plaintiff had problems with both sacro‑iliac joints. He considered then the plaintiff's main pain was coming from the L5/S1 segment, and that the problems with the sacro‑iliac joint were secondary to that.
On 20 July 2001, Mr McCallum reported that he saw the plaintiff again on 11 July 2001. He refers to his examination of the plaintiff on 11 January 2001 and says that he found then that the plaintiff had a vertical plane malalignment of his left sacro‑iliac joint. On 20 July 2001, Mr McCallum expressed the opinion that assessing pelvic symmetry is difficult, but he was quite certain that the plaintiff's main problem was in his sacro‑iliac joint on the left side, and probably in the alignment of his sacrum in respect to the ilii. Mr McCallum described this as "a complex injury". Mr McCallum referred the plaintiff to the rheumatologist, Dr K C Ng who saw him on 30 May 2002. Dr Ng expressed the opinion by his report of that date that there was no radiological evidence of sacro‑iliitis. He was also of the opinion that the plaintiff was not suffering from underlying spondylo‑arthritis.
The consultant neurologist, Dr Ross Goodheart, first saw the plaintiff on 23 September 1999. Electrophysiological studies were performed on 22 October 1999. There was no evidence of nerve root irritation in the left lumbosacral region. Dr Goodheart formed the opinion that the plaintiff's low back symptoms were to be attributed to "a diffuse soft tissue injury to his spine." He considered there was a significant psychiatric component to the plaintiff's presentation. The plaintiff was referred to the psychiatrist, Dr Frederick K F Ng, for an opinion. By his report of 23 October 2001, Dr Ng expressed the opinion that the plaintiff was suffering from a chronic adjustment disorder with depressed symptoms consequent upon the plaintiff's constant pain and fears that his condition will deteriorate over time.
The expert medical evidence for the plaintiff establishes injury to the plaintiff's spine at the L5/S1 level, and to his sacro‑iliac joints. As I have observed, the issue between the parties is whether these injuries were caused by the accident. Mr Narula formed the opinion that the delay in the development of low back and leg symptoms was not common, but not unheard of. He arranged an isotope bone scan of the plaintiff's lumbar spine. He concluded in his report of 12 July 2004 that in the absence of past history of sacro‑iliac problems, the plaintiff's symptoms and bone scan findings were more likely than not to be related to the motor vehicle accident, given there was resolution of active inflammation in these joints on the isotope scan. He remained of the opinion that in addition to his other injuries, the plaintiff was symptomatic from the L5/S1 disc prolapse. Dr Ross Goodheart formed the opinion that as the plaintiff's neck symptoms decreased his lower back symptoms became more significant. As I have said, he formed the opinion that the plaintiff had suffered a diffuse soft tissue injury to his spine in the motor vehicle accident. He thought it was unlikely that the plaintiff went on to develop lower back pain through a second injury. Mr McCallum considered the plaintiff's complex injuries were sustained in the motor vehicle accident. Mr K C Ng, formed the opinion expressed in his report of 29 June 2004 that the plaintiff's delayed symptoms in his lower back were consistent with a mechanical disturbance resulting from the motor vehicle accident, even though the symptoms were not experienced until two weeks or so later.
For the defendant, the occupational physician, Dr Michael Bowles, gave evidence that he saw the plaintiff on 25 January 2002, who gave a history that two to three weeks after the accident he started noticing some soreness in the low back that radiated down into the left leg. He records that the plaintiff said there appeared to be no reason for the back and leg pain, but it came out of the blue with no history of trauma. He observed that this history was consistent with that recorded by the doctors whose reports Dr Bowles had seen. In his report of 25 January 2002, Dr Bowles refers to statistical research into the occurrence of back pain, and then expressed the opinion that back pain is a frequent predicament faced by the general population from time to time. He said it can be, and most often is, spontaneous in nature with no need for trauma. He then expresses the opinion that the association between the plaintiff's low back pain and the accident is "false and the only reason to link the two events relate to issues to moral hazard." He also expresses the opinion that the radiological evidence revealed an underlying inflammatory arthropathy affecting the sacro‑iliac joints, the hip joints and the chest. He attributes the plaintiff's symptoms to that inflammatory arthropathy. Otherwise, he expresses the opinion that the symptoms occurred spontaneously.
It is clear from the evidence of Dr Bowles that in his opinion the delay in the onset of low back pain in the plaintiff's case is a critical consideration in the determination of the question of fact whether the accident was a cause of that low back pain. It was his opinion that given the late onset of the plaintiff's low back pain, the low back injuries were not caused by the accident.
Mr Richard Vaughan expressed the opinion that the plaintiff's posture and limp suggested primarily a sacro‑iliac problem with the more discrete protrusion across L5/S1 adding to the symptomatology. To this extent Mr Vaughan agreed with Mr McCallum. Mr Vaughan then records the history of the late onset of the low back symptoms. Like Dr Bowles, he considered that if the injuries to the sacro‑iliac joints occurred in the accident, the onset of symptoms would have been immediate. He said he did not know of any pathology that would develop significantly later following a crash without there being an immediate onset of symptoms. He repeated several times that in his opinion the sacro‑iliac joint pathology had arisen "spontaneously". He expressed the opinion that the plaintiff has an underlying "rheumatologic disorder". He concluded that in the absence of the symptoms appearing immediately after the accident, they developed spontaneously "not directly caused through the processes of the crash". Mr Vaughan also expressed the opinion that disruption to the sacro‑iliac joint could not have occurred in this accident without the occurrence of serious external bruising to the plaintiff. He did not doubt that the plaintiff has degeneration across L5/S1, but in the absence of immediate symptoms after the crash, his evidence was that he could not say whether the disc protrusion was caused by the crash.
It can be seen, therefore, that Mr Vaughan's opinion was also that the late onset of symptoms in the lower back is critical in the determination of the causation of the plaintiff's injuries in this case. The issue of a pre‑existing rheumatology or inflammatory arthropathy was not explored before me in any detail. There was no evidence that the plaintiff had suffered symptoms in his lower back previously. In relation to this secondary issue, I accept the opinion of Dr K C Ng to which I have referred.
The third witness for the defendant was Dr John Rosenthal who first saw the plaintiff on 1 November 1999. He considered the plaintiff's low back and left leg pain was predominantly of soft tissue origin. He expressed the opinion there was no convincing evidence of an inflammatory spondyloarthropathy. Dr Rosenthal was of the opinion that the plaintiff has embellished his lower back symptoms, and that he has not sustained any anatomical disruption to, or significant injury involving the sacro‑iliac joint. Dr Rosenthal was also of the opinion that it was medically implausible that the plaintiff could function in the manner depicted in the video evidence (exhibit 3), and shortly afterwards display a greatly increased level of impairment to Dr Rosenthal. In his report of 4 February 2002, Mr Richard Vaughan expresses much the same opinion that it would be impossible for anyone suffering with significant sacro‑iliac disease or a significant disc protrusion to be able to display such ease of movement as displayed in the video.
Mr McCallum addresses this question in his report of 20 September 2001 when he says:
"1.There is very little of this video which is relevant to someone with a sacro‑iliac joint problem. The only time they are going to display anything worth seeing is when they are walking, either being viewed from the side or from behind, without carrying anything. On assessing leg movements it may then be possible to see the affected side being hitched up and carried forwards as distinct from the normal side which just moves forwards. At one point, just for a very short time towards the end of the video, Mr Tran does this with his left leg.
2.The second interesting thing is that his physiotherapist actually says that both sacro‑iliac joints are unstable and this may explain the fact that when Mr Tran is going up the stairs to go down the slide he goes up left leg first.
3.Mr Tran certainly bends forwards without any problems but, there again, we would expect him to do that, his problem is not in his spine and showing flexion extension is irrelevant to his problem.
4.Confirming on video an abnormality in sacro‑iliac joint function is extremely difficult and your video really makes no difference to my opinion on this man."
The expert medical evidence for the plaintiff and the defendant is, therefore, as I have said, divided in relation to the issue whether the plaintiff's low back injuries were accident caused. What the cause was of a particular occurrence is a question of fact which must be determined by applying common sense to the facts of each particular case: March v E & M H Stramare Pty Ltd(1991) 171 CLR 506 at 515. The opinion of Dr Bowles and Mr Vaughan is, as I have said, that the late onset of the plaintiff's low back pain is a critical criterion. For the plaintiff, Mr Narula thought the late onset was unusual, but not unheard of. Dr Goodheart and Mr McCallum did not consider it to be a critical criterion. Dr Goodheart, as I have said, considered that the plaintiff suffered a diffuse soft tissue injury to his spine. He thought it unlikely that the plaintiff went on to develop lower back pain through a second injury.

Mr Narula, Dr Goodheart and Mr McCallum all accept that the time of the onset of symptoms is a relevant factor. Mr Narula's opinion in this particular case is different from that of Dr Goodheart and Mr McCallum, but they each assess the late onset of the plaintiff's symptoms in the context of the nature of the soft tissue injuries involved. On the other hand, Dr Bowles and Mr Vaughan seem to apply an inflexible approach to a complex injury. In addition, it is open to conclude if necessary, that both Dr Bowles and Mr Vaughan are influenced in reaching their opinion about the causation of the plaintiff's injuries by reliance in the one case on statistics, and in the other on the video material. In my opinion, the expert medical evidence for the plaintiff is to be preferred, and I conclude on the balance of probabilities that the accident was a cause of the plaintiff's low back symptoms.

Credibility of the plaintiff

In finding that the onset of the plaintiff's low back pain occurred two to three weeks after the accident, I have rejected the plaintiff's evidence before me that he first experienced low back pain on the night of the accident. I have found that before me, the plaintiff changed his evidence about the time of the onset of his low back pain. As I have said, in the first trial of this assessment the evidence of the plaintiff was that his low back pain developed two to three weeks after the accident, while before me he said it occurred on the night of the accident. It is necessary to consider whether the fact that the plaintiff changed his evidence between the two trials in this way is material to the credibility of the plaintiff and his evidence as a whole in relation to this assessment of damages. It is not for the Court to speculate about why the plaintiff changed his evidence. It is the fact of the change in relation to a material issue of fact that requires consideration. In my opinion, the only reasonable inference that can be formed from the fact of the change is that whatever motivated the plaintiff to change his evidence, he was prepared to do so in the belief that the changed evidence would advance his claim.

The plaintiff's disability as a result of his injuries

This view leads me to conclude that the plaintiff's evidence about the extent of his disability and loss of earning capacity requires particular scrutiny. The plaintiff's primary complaint now is that he finds that sitting for any length of time aggravates his low back pain. He also has difficulty undertaking any physical exercise, whether a sports activity or domestic duties. The plaintiff repeatedly claimed that he suffers constant pain in his lower back.
On 2 July 2001, the plaintiff told the occupational physician, Dr Andrew Harper, that the pain is worst first thing in the morning and then improves to some degree and remains at a stable level throughout the rest of the day and night. The pain radiates to the left buttock and leg. At that time Dr Harper expressed the opinion that the plaintiff was incapacitated for all forms of gainful employment. By 15 February 2002, Dr Harper expressed the opinion that the plaintiff is permanently incapacitated for his pre‑accident work as a courier. He said that at that time the plaintiff would be capable of less than half‑time work in a sedentary occupation with significant restrictions. These restrictions were to avoid prolonged sitting, all manual work, occupations requiring him to move quickly, walking, climbing stairs, jobs requiring a quick mental response, and driving. Dr Harper considered the plaintiff required to be able to alternate sitting and standing as required. He considered that the plaintiff's future work prospects were significantly limited, and he was at risk of being unable to compete for gainful employment in the open market. On 22 August 2002, Dr Harper expressed the opinion that the plaintiff remained incapacitated for work as a courier driver. He considered he would certainly be capable of half‑time work and in the future Dr Harper expected the plaintiff to be able to increase his working hours to full‑time work with the restrictions mentioned. He said he felt that the plaintiff has the physical capacity to work full‑time in the long term, and he would not expect his injury to compromise the duration of his working career provided his occupation accommodated his disability. He considered vocational training would make a big difference to his competitiveness in securing employment. Dr Harper expressed similar conclusions in his report of 29 June 2004.
Determination of the plaintiff's prognosis requires consideration of the evidence of the consultant psychiatrist, Dr F K F Ng. Many of the experts who reviewed the plaintiff formed the opinion that the plaintiff's present condition has become chronic, in part through the plaintiff's own attitude to his injuries. It is in this context that Dr Ng's diagnosis of a chronic adjustment disorder with depressed symptoms is I think material. It is, however, noteworthy that Dr Ng was of the opinion that the plaintiff's mental condition does not require treatment. As far as the prognosis is concerned, the question is whether it is likely that the plaintiff can in the future help himself out of his predicament. The plaintiff's work record as a courier driver prior to the accident suggests to me that the plaintiff has the capacity to do so. I find that this capacity is at the moment limited by his chronic adjustment disorder, but that it is not likely it will remain so for more than another five years at most. In my opinion, the plaintiff's belief that he is permanently incapacitated for work is very largely motivated by his fear that his symptoms will deteriorate, as Dr Ng suggests.
I find that the plaintiff is currently unable to undertake his pre‑accident employment as a courier driver, but that within five years or so he will be capable of returning to that employment, once he realises that his symptoms have not deteriorated. I find also that the plaintiff is, and has for some time been, capable of re‑training for sedentary work with the restrictions specified by Dr Harper. In this respect, it is noteworthy that the plaintiff on his own evidence is now capable of sitting in front of a computer for many hours a day.
I turn to assess the damages to which the plaintiff is entitled.

Past economic loss, superannuation and interest

By 22 August 2002, Dr Harper considered the plaintiff was capable of half‑time work and expected the plaintiff to be able to increase his hours to full‑time work with the restrictions mentioned, after retraining. The plaintiff's own account of his symptoms was the basis for this opinion. I find that the plaintiff exaggerated those symptoms before me and to Dr Harper. I find the plaintiff was prepared to exaggerate his evidence once again in the belief that it would advance his claim. I find, therefore that at least by the first anniversary of the accident the plaintiff was capable of retraining for sedentary work, with restrictions of the kind mentioned by Dr Harper. I accept that those restrictions reduced his employability to some extent, but I find that after 14 April 2000, the plaintiff was capable of full‑time sedentary employment.
I find, therefore, that in the first year after the accident the measure of the plaintiff's loss of past earning capacity is his agreed weekly net wage of $458 x 52 = $23,816. I allow $700 for loss of superannuation benefits in this year. Thereafter, I find that the plaintiff could have retrained and earned the minimum wage of $467.40 per week or more in full‑time sedentary employment with the restrictions specified. I conclude therefore that after the first anniversary of his accident the plaintiff suffered no loss of earning capacity. The plaintiff is therefore entitled to $24,516 under this head.

Gratuitous services

The plaintiff's schedule of 19 July 2004 claims past gratuitous services at the rate of $15 per hour for three hours per week from 14 April 1999 until 19 July 2004, a period of 5 years, 13 weeks and 5 days in the sum of $12,317.14 plus interest of $2,594.14. The plaintiff also claims future services on an average of three hours per week at the rate of $15 per hour for the rest of his life in a total sum of $32,307. In my opinion, the evidence under this head was unclear and unconvincing, except for maintenance and handyman tasks. The services of cooking, ironing, shopping and cleaning have been, and are provided for the benefit of the plaintiff's family. In view of the conclusions I have reached about the nature and extent of the plaintiff's injuries and disabilities, and in the light of s 3D of the Motor Vehicle (Third Party Insurance)Act 1943, I conclude that the claim under this head does not exceed $5,000, and that therefore the plaintiff is entitled to no award.

Future economic loss

The plaintiff's schedule of 19 July 2004 sets out the plaintiff's claim for future loss of income in the sum of $228,304.96 and future loss of superannuation benefits in the sum of $20,959. In view of the conclusions that I have expressed about the capacity of the plaintiff to retrain, and my assessment of his loss of past earning capacity, I conclude that the plaintiff has suffered no loss of future earning capacity.

Future medical expenses

The plaintiff claims the sum of $16,717 in his schedule of 19 July 2004. In view of the conclusions I have expressed, I consider this claim to be excessive, and I allow a global sum of $3,000 in respect of future medical expenses for the next five years.

General damages for non pecuniary loss

I have found that the accident was a cause of the plaintiff's injuries and pain at the L5/S1 level of his spine and in the sacro‑iliac joints. I have found that the plaintiff's pain and disability will likely decrease considerably over the next five years. In my opinion, damages for non pecuniary loss in this case should be assessed as 10 per cent of a most extreme case. The maximum amount that may be awarded at the present time is $257,000, 10 per cent of which is $25,700. Amount B or $13,000 must be deducted from this sum pursuant to s 3C(5) of the Motor Vehicle (Third Party Insurance) Act 1943 so that the plaintiff is entitled to an award of $12,700 under this head.

Special damages

I allow the following special damages:
Physiotherapy expenses agreed  $2,248.50
Past medical expenses agreed  $218.88
Travelling expenses (3 years or
156 weeks @ $9 per week agreed)  $1,404.00
Statutory allowances agreed   $22,722.09
$26,593.47
In my opinion the claim for CRS rehabilitation expenses has not been established.
The plaintiff is therefore entitled to judgment as follows:
Past loss of earning capacity and superannuation              $24,516.00
Future loss of earning capacity  Nil
Future medical expenses  $3,000.00
Non pecuniary loss  $12,700.00
Special damages  $26,593.47
$66,809.47