Weatherall v Insurance Commission of Western Australia - [2005] WADC 135

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: WEATHERALL -v- INSURANCE COMMISSION OF WESTERN AUSTRALIA [2005] WADC 135

CORAM: YEATS DCJ

HEARD: 4-8 APRIL 2005

DELIVERED : 15 JULY 2005

FILE NO/S: CIV 1974 of 2003

BETWEEN: ALISON HARMIONI WEATHERALL
Plaintiff
AND
INSURANCE COMMISSION OF WESTERN AUSTRALIA
Defendant

Catchwords:

Damages - Motor vehicle accident - Liability admitted - Loss of earning capacity - Plaintiff primary carer for two disabled children - Past loss of earning capacity - Future loss of earning capacity - Gratuitous services

Legislation:

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

Result:

Total award $393,272

Representation:

Counsel:

Plaintiff: Mr B L Nugawela
Defendant: Ms B A Mangan

Solicitors:

Plaintiff: Marks & Sands
Defendant: Phillips Fox

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

Graham v Baker (1961) 106 CLR 340
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
Mallett v McMonagle [1970] AC 166
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Pollock v Wellington (1996) 15 WAR 1
Ramsay v Watson (1961) 108 CLR 642
TA v Lucky Import & Export Co Pty Ltd [2002] WASCA 65
Thomas v O'Shea (1989) A Tort Rep 80-251

Case(s) also cited:

Nil

YEATS DCJ: The plaintiff claims damages for injuries she received in a motor vehicle accident on 7 January 1999. Liability is admitted but the defendant disputes the extent of the plaintiff's claim for loss of earning capacity. The defendant contends that quite apart from the motor vehicle accident, the plaintiff has only a limited ability to exercise her earning capacity because of her domestic commitments. At the time of the accident the plaintiff was the primary carer for her 21‑month‑old twin children, a boy Jack and a girl Libby. Libby was born with mild cerebral palsy. In a very unfortunate development Jack exhibited hypoactivity from an early age, and tragically, in 2003 suffered meningitis which left him with learning disabilities.

History

The plaintiff is 39 years of age. She was born in the United Kingdom on 27 September 1965 and emigrated to Australia after finishing school with an achievement certificate at age 16. She undertook two unskilled jobs for one year in Australia working as a kitchen hand at Graylands Hostel and as a teacher's aid at the Wanneroo Community School. Then she earned a certificate for caring for the elderly which involved practical work at St George's Nursing Home, at Balga Special School and at Sir David Brand Centre. After completing that certificate in 1984 she returned to the United Kingdom in 1985 on a one year working holiday when she worked in restaurants. Upon her return to Australia in 1986 the plaintiff worked as a despatch clerk at Aherns but did not enjoy that job because she was not in an environment with people.
In 1986 she joined Kmart where she started on the checkout counter but soon began working in the photo lab where she was trained on the job and obtained certificates of her qualifications as a photo lab technician beginning in 1992. Fourteen certificates (exhibit 1) were Kodak certificates. Two others recognised her five year and then in 1996, her 10 year service to Kmart. During her 10 years' employment the plaintiff gained the highest qualification as a specialist photo lab technician and was qualified as a trainer.
On 31 July 1996 the plaintiff resigned from Kmart (exhibit 10). She explained that she resigned in order to access her long service leave money, some $6,000, but, despite her resignation, she continued working part-time at Kmart in the same job as a photo lab technician. The plaintiff used her long service leave payment to pay for IVF treatment and she fell pregnant in July 1996. On 18 February 1997 the plaintiff signed a part-time contract for 20 hours work per week with Kmart (exhibit 11). That final contract was signed shortly before the plaintiff commenced maternity leave on 26 February 1997 because of complications in her pregnancy. Kmart allowed employees 12 months' maternity leave without pay.
On 27 March 1997 the plaintiff gave birth to her twins, Jack and Libby. Libby was diagnosed with mild cerebral palsy. At the time the babies were born the plaintiff and her husband lived in Rockingham but they soon moved to Kingsley to be near the plaintiff's mother, Sylvia Betts. Mrs Betts was employed in two jobs but her hours were flexible and she was able to help her daughter with the twins. At the time the twins were born the plaintiff's husband's employment was in transition. By 1995 he had worked for Kmart for 20 years. He resigned from Kmart in 1996 and worked for one year as a store manager at Red Dot. In 1997 he bought a seafood franchise and worked at it for 12 months but that business did not produce enough income to support the family. During 1997 the family finances were very minimal and the plaintiff went back to work at Kmart on a part-time basis in December 1997. The plaintiff's husband changed jobs again in 1999. A week prior to the motor vehicle accident he started working for Perth Construction delivering building materials to sites. It was a very full-time job. He worked 12 hour days some times seven days a week.
The plaintiff worked part-time from December 1997 until the accident on 7 January 1999, a period of approximately 56 weeks. During that time her average gross earnings (exhibit 2) were only $77.84 per week. She was earning $14.28 per hour and on average worked less than six hours per week. The plaintiff gave evidence that she wanted to work and wanted to extend her hours. There was some evidence that her average gross earnings to 30 June 1998 were only $59.27 per week whereas her average gross earnings from 30 June 1998 until the accident on 7 January 1999 increased to an average of $99.27 gross per week.
At the time of the accident the plaintiff's mother was living with the family in a "granny flat" behind their home in Wanneroo. As the evidence unfolded it became clear it was not really a "flat"; it was a separate room behind the house for Mrs Betts but she shared the house facilities with the family. Mrs Betts had sold her Kingsley home and purchased a duplex block where she built duplexes one in front for herself and the other at the back for the plaintiff's family. They all moved into the duplexes in September/October 1999 and continued to live in close proximity to each other.
Two further events in the plaintiff's history should be noted. Some three years after the motor vehicle accident in February 2002 she suffered a marked deterioration in her symptoms as a result of a coughing fit. She had the flu at the time and had a coughing fit during which she felt a "pop" sensation in her back and her back went into spasm. Her pain was severe for about a week and she had to be looked after by her mother. Her condition deteriorated at this time.
It was in July 2003 that her son Jack contracted viral meningitis and encephalitis and was in a coma for a week and a half near death. Jack remained in hospital for two months and the plaintiff and her husband took a flat near the hospital while Mrs Betts gave up her job to look after Libby. When Jack returned to school he had to learn to walk and talk again and the plaintiff went into school on several sessions to help him. Jack suffered learning deficits as a result of the severe illness and now requires weekly speech therapy, one hour sessions at Princess Margaret Hospital.

The accident

The motor vehicle accident involved an unidentified driver. The plaintiff was travelling north on the inside lane on Wanneroo Road approaching the intersection with Gnangara Road. Another vehicle was travelling behind her but in the outside lane. The unidentified driver tried to move between the two vehicles and in so doing he collided with the right rear side of the plaintiff's vehicle. The impact caused the plaintiff's motor vehicle to spin out of control. She described a big bang when her car hit the centre kerb and she banged her right forehead. She was able to get out of her vehicle without assistance but 30 minutes later she experienced severe pain in her lower back down her right side from the base of her neck across her shoulder. She had a throbbing headache and felt nauseous. Repairs to her motor vehicle cost only $1,000 but the repairs were done by a friend of the family.
The plaintiff's pain and symptoms are in the following areas:
1.She suffers constant lower back pain "like a toothache" a constant dull ache that radiates to different frequencies. At its worst she suffers spasm which causes numbness radiating from her right buttock to her right leg, numbing her right foot. The plaintiff takes Panadeine to cope with the pain and, when the pain is worse, she takes Tramal but the Tramal makes her feel quite nauseous and she tries to avoid taking it.
2.The plaintiff also suffers intermittent symptoms in her right leg and foot – about three times a week when she loses sensation and suffers numbness in her foot.
3.The plaintiff's neck and right arm pain are not as severe as her lower back pain but that pain is aggravated by a number of simple household chores.
The plaintiff's pain has had a devastating affect on every aspect of her life. When her lower back goes into spasm she is unable to get out of bed, unable to toilet or shower herself or dress herself. Her sexual relationship with her husband is greatly reduced. The pain tires her, makes her grumpy and not able to be the mother she tries to be with her children. Her right foot and leg problems interfere with her doing such a simple thing as going for a walk for fear of falling over or riding a push bike for fear of falling off. Even walking the dog is not possible for fear he will pull her the wrong way and aggravate her back pain. Chopping vegetables, sewing and sitting at the computer doing email all aggravate her shoulder and neck.

Medical treatment

The plaintiff has been treated or reviewed by a large number of doctors and other health professionals.
Dr Lyn Minsker, her general practitioner, first saw her on 8 January 1999 about her injuries in the motor vehicle accident. Dr Minsker's diagnosis was soft tissue injuries to her neck, back and abdominal muscles. She noted headaches and back pain and prescribed analgesics and physiotherapy. Dr Minsker had been the plaintiff's treating general practitioner since 1984 interrupted when the plaintiff lived in Rockingham but resumed from 1998. Dr Minsker has a particular interest in depression and had discussed possible post-natal depression with the plaintiff following the birth of the twins but no such depression was diagnosed or treated at that time. But after the motor vehicle accident when the plaintiff was in pain all the time, her mood was low and she was very tearful and crying, Dr Minsker's opinion was that she was depressed.
Professor Mastaglia, consultant neurologist, examined the plaintiff on three occasions – 15 February 2001, 14 March 2002 and 21 March 2005. His reports are exhibit 14. He found the plaintiff suffered a serious injury to one of the lower lumbar intervertebral discs during the motor vehicle accident that has resulted in some neural compression and neural sensitisation. The plaintiff underwent an MRI scan on 28 January 2001. In February 2001 Professor Mastaglia noted a posterolateral protrusion of the L5/S1 intervertebral disc with displacement of the spinal nerve root at this level. When Professor Mastaglia reviewed the plaintiff a year later in March 2002 he found her condition had deteriorated and her pain symptoms had increased as a result of a coughing fit some three weeks earlier (exhibit 14, p 17). Upon examination he found a weakness on dorsiflexion of the right ankle and toes which was not present in 2001, a reduced range of back movement and a reduced range of straight leg raising. Professor Mastaglia ordered a further MRI scan on 31 March 2002. That scan confirmed that the disc protrusion at L5/S1 was still present with evidence of S1 nerve root compression. The posterolateral annulus tear at L4/5 had enlarged (exhibit 14, p 19).
Professor Mastaglia reviewed the plaintiff in March 2005 and noted a slight improvement in the range of movement of the lumbar spine but there was still disc protrusion and nerve root compression. The plaintiff continued to experience intermittent neck and right shoulder pain, particularly when her back pain was severe. Professor Mastaglia believed that that was due to the considerable degree of secondary muscle tension in the para-spinal muscles. He explained that the high level of pain in the lumbar region will affect the pain threshold throughout the whole body – what neurologists call "neural sensitisation" (T138).
The plaintiff gave no evidence at trial of numbness, tingling or weakness in her right-hand grip but Professor Mastaglia had received such complaints during her initial examination and his final examination and explained that those all arise from neck injury and are secondary to excessive tension in the muscles that the nerves pass through.
Despite the slight improvement in 2005 Professor Mastaglia did not find that the plaintiff had returned to the condition she was in when he first examined her in 2001 prior to the exacerbation of symptoms during the coughing fit in 2002.
Dr John Salmon is a pain medicine specialist. Dr Minsker referred the plaintiff to him for treatment in June 2002. The plaintiff had been referred to the pain specialist Dr Gee in 2001 who treated her with a right L5/S1 facet joint injection and a right S1 sleeve injection which did not reduce her pain. The plaintiff gave evidence she did not get on with Dr Gee. Dr Salmon proposed a different treatment regime, not involving the facet joints, but involving an x-ray guided epidural injection at the L5/S1 segment with a right L5 sleeve injection and injection around the L4 nerve root. This was performed on 26 July 2002 and led to a marked reduction in the plaintiff's back and right leg pain.
Dr Salmon reviewed the plaintiff in May 2003 and noted the recurrence of symptoms brought on by the coughing fit. He repeated the x-ray guided epidural injections on 10 June 2003 and the procedure again relieved the plaintiff's pain symptoms.
Dr Salmon combined the injections with an ongoing home based exercise program designed to strengthen the lumbar bracing musculature. He noted the significant flare up of symptoms after the coughing episode. In his opinion that indicated that her discogenic pain problem remained somewhat fragile.
Dr Salmon reviewed the plaintiff in April 2004 when he noted that the stress and increased activity associated with Jack's severe illness had exacerbated her chronic back and leg pain symptoms and he repeated the injections for a third time, this time combined with pulsed radio frequency gangliotomy on 14 April 2004. The plaintiff again experienced significant reduction of her back and her leg pain symptoms for a number of months. Dr Salmon remains optimistic about the plaintiff's prognosis and expects a gradual improvement over time if she is able to maintain appropriate self-management strategies. At the time of trial the plaintiff was regularly reviewed in her exercise program by Stephanie Martin, physiotherapist.
In his evidence Dr Salmon discussed the concept of "neural sensitisation" and the program of treatment he pursued with the plaintiff which relied on the injections combined with self-management in the form of exercises to strengthen lumbar bracing musculature. He believes the injection treatment may provide a window of analgesia for increases in exercise. Dr Salmon confirmed that with such treatment the neural inflammatory process can in some cases settled down.
Dr Salmon considered the plaintiff particularly at risk in her circumstances as primary carer for two disabled twin children because her pain symptoms are activity provoked by her duties as primary carer. Nonetheless he remained positive about her future.
Professor Andrew Harper, a specialist in occupational medicine, reviewed the plaintiff on 24 August 2004. Professor Harper confirmed a diagnosis of strain injuries to the cervical and lumbosacral spines resulting in constant and chronic low back pain. He noted an annulus tear at L4/5 and L5/S1 in the lumbar spine with a disc protrusion at L5/S1 resulting in S1 nerve root compromise on the right – all resulting from her motor vehicle accident on 7 July 1999.
Professor Harper listed her specific restrictions: To avoid lifting, bending, twisting, static positions, prolonged sitting and prolonged standing. He noted her difficulties with many routine activities such as dressing, showering, standing, walking, driving, housework, shopping, cooking and sexual activity. She is limited carrying and precluded from sporting and recreational activities.
Professor Harper did not anticipate the plaintiff would ever be able to return to her pre‑accident duties as a photo lab assistant because he understood her job involved prolonged standing, lifting and bending. He understood that paper rolls weighing in excess of 10 kilograms had to be lifted and fitted on the machine. He understood that chemicals weighing 10, 15 or 20 kilograms had to be carried and lifted. Professor Harper did believe the plaintiff would be able to work part time – two or three hours work a day as a receptionist or clerk provided she was able to change her position as required. But he noted that the plaintiff would have difficulty competing in the open workforce because of her history of low back pain.
Professor Harper acknowledged that the plaintiff as a "stay at home mum" who was raising twin children would probably do more in the course of her domestic duties than she would in the workplace in terms of aggravation of her cervical lumbosacral injuries but he noted that she had no choice with her domestic responsibilities. He would not add to her problems by returning her to any physically aggravating activity in the workplace. He did accept, however, that a limited return to the workforce (although not as a photo lab technician) would provide some respite for her from her domestic duties.
Dr Nicholas Anastas, an orthopaedic surgeon, reviewed the plaintiff on three occasions – 6 November 2000, 19 November 2001 and 21 February 2005. From his first examination of the plaintiff in November 2000, Mr Anastas considered her fit to work full time in her pre‑accident occupation as a photo laboratory technician. In November 2001 Mr Anastas' prognosis was that the plaintiff would continue to improve with further time and eventually make a complete recovery. Upon review in 2005 Mr Anastas passed her as fit to engage in work which did not involve repetitive lifting or prolonged bending and he said:
"I would not have expected a soft tissue musculo‑ligamentous type injury to her lumbar spine to have interfered with her ability to presently work as a photo laboratory technician, night‑filler or a clerk.
I further would not have expected the soft tissue lumbar spine injury sustained on the 7th January 1999 to have presently interfered with her earning capacity, or compromised her ability to compete in the open workforce. The soft tissue injury sustained to her lumbar spine would not have been a factor in shortening her working life." (Defendant's book of medical reports, p 23 No 6.)
Under cross‑examination, after being referred to Dr Minsker's report dated 13 February 1999, Mr Anastas conceded that he did not maintain his opinion that there was no direct relation between the plaintiff's neck symptoms and the accident (T295). Mr Anastas also conceded that he would defer to a neurologist's opinion in matters concerning the plaintiff's neurological deficit. He was unable to comment on the concept of "neurosensitization". He did find the plaintiff to be a genuine person, not a malingerer.

Under cross‑examination Mr Anastas explained the tests he had used during his examination of the plaintiff and he agreed that his opinion about her capacity to work was inextricably bound with his diagnosis of a simple soft tissue injury with no neurological impingement.
Dr John Rosenthal, a specialist in rehabilitation medicine, examined the plaintiff on three occasions, 10 August 2001, 5 September 2002 and 24 February 2005. Dr Rosenthal found that the accident had caused some anatomical disruption to her L5/S1 disc which produces mechanical pain and dysfunction. He found her cervical symptoms were consistent with a soft tissue strain injury causing myalic symptomatology. Dr Rosenthal found her low back pain interfered with her capacity to undertake physically onerous activities in the house or recreationally. He expected her cervical symptoms would eventually settle.
When Dr Rosenthal reviewed the plaintiff in September 2002 he noted the recurrence of right lower limb pain and the relief for leg pain provided by Dr Salmon's root sleeve injection. Dr Rosenthal noted that the L5/S1 disc had been damaged in the motor vehicle accident and that the recurrence of nerve root irritation/leg pain was consistent with her initial injury and symptoms.
In September 2002 Dr Rosenthal's opinion on her work capacity was:
"I would not regard her as physically capable of undertaking night filling work. She has a present capacity to work half time as a photo laboratory technician. With appropriate physical reconditioning after a further six months I would envisage her being able to work full‑time as a photo laboratory technician.
With reference to other spheres of employment these would need to be in the lighter category specifically avoiding heavy lifting and repetitive bending. A sales position, clerical job and customer services role would seem appropriate." (Defendant's book of medical reports p 36 Nos 5.1 and 5.2.)
The situation had not changed when Dr Rosenthal conducted his final review of the plaintiff in February 2005. He remained of the opinion that she had the capacity to work half time as a photo lab technician, a clerk or in sales or customer services. He believed her capacity to work as a photo lab technician would progressively increase as her fitness increased.
Dr Rosenthal was quite familiar with the work duties of a photo lab technician because he had rehabilitated people with bad spinal injuries into that area, particularly as self‑employed franchisees operating their own photo lab. He explained the procedure:
"They are basically completely automated procedures. In a standard suburban processing laboratory the machine would be the width of this little desk that I'm sitting at. It would be fractionally higher. It would take a 150 metre paper roll and if it's a machine this size the roll of paper wouldn't be more than 4 kilograms for that particular size of machine. The chemicals for the machine come in 5 litre bottles for this type of automation. The physical requirements are quite minimal. It's certainly compatible with people with ongoing back and other types of muscular‑skeletal problems." (T312)
Under cross‑examination Dr Rosenthal confirmed his opinion that the plaintiff would have to be careful but she did have a retained work capacity.
Mr Christopher Gerard, a registered clinical psychologist, provided treatment to the plaintiff in eight sessions for pain management during 2001 as directed by Dr Geoffrey Gee, a pain specialist. Mr Gerard explained it was a self‑management programme where the plaintiff used autogenic relaxation techniques, basically a calming down response which she could practice on her own at home.
Ms Stephanie Martin, a registered physiotherapist, treated the plaintiff on 10 occasions commencing on 4 May 2005 and continuing to the date of trial. Ms Martin gave the plaintiff instructions on exercises needed to stabilise muscles in her lower back. Initially these were floor based exercises the plaintiff could do at home. As the plaintiff progressed she began undertaking some resistance work at Curves gym. Ms Martin worked under the direction of Dr Salmon.
Mr Christopher G Semmens, a clinical psychologist, provided eight treatment sessions for the plaintiff in an effort to teach her the skills to allow her to progressively relax her muscles and thus retrain her nervous system so that she would have a more generalised response rather than an aroused state when she felt pain symptoms. Mr Semmens treated the plaintiff in 2001 and reported that she had practised the techniques diligently and expressed to him that she found it to be amazing that she could relax so much.

Loss of earning capacity

In Australia a plaintiff is compensated for loss of earning capacity, not loss of earnings. An injured plaintiff recovers not merely because her earning capacity has been diminished but because the diminution of her earning capacity is or may be productive of financial loss (Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 16 per McHugh J; Graham v Baker (1961) 106 CLR 340 at 347). Earning capacity is an intangible asset. Its value depends on what it is capable of producing. Earnings are evidence of the value of earning capacity but they are not synonymous with its value. (Medlin's case per McHugh J at 16.)
When a plaintiff seeks damages for injuries suffered as a result of the negligence of the defendant the plaintiff bears the onus of proving loss of earning capacity. That onus can in some circumstances shift. In Thomas v O'Shea (1989) A Tort Rep 80-251 at 68,701 Malcolm CJ and Wallace J said:
"The legal onus of proof of loss of earning capacity rests, of course, on the plaintiff, but once the plaintiff has proved that he has lost his pre-accident earning capacity and has been unable to find alternative employment, or that his condition has prevented him finding alternative employment, an evidentiary burden is cast on the defendant to show what alternative employment opportunities were open, including the state of the labour market and the likely earnings."
The first issue that needs to be considered is whether in this case the plaintiff has lost her pre‑accident earning capacity as a photo lab technician. The plaintiff gave evidence that her duties as a photo lab technician required her to collect paper rolls and chemicals from the storeroom at Kmart using a pallet lifter or a trolley and bring them into the photo lab. She gave evidence that she then had to load the rolls of paper into the machine about three times each day and replenish chemicals in the machine three or four times a day. Her evidence about that differed slightly from that of Mr Mirco, the Kmart store manager who said the paper was loaded twice a day, but he admitted that in really busy periods it might be loaded as often as four times a day. The plaintiff's evidence was that each paper roll weighed about 16 kilograms (T19) and that the heaviest bottle of chemicals weighed 10 to 15 kilograms (T20). Mr Mirco's evidence was that the paper and chemicals weighed much less than that. The plaintiff's job allowed the plaintiff to move around and change position as she performed various tasks including putting customers' film into the machine for processing. When the machine was printing the plaintiff undertook quality control duties, sitting and watching the photographs come out of the machine. She then was required to package the photos and have them available for collection by the customer. During quiet times her job also involved some customer service. The plaintiff admitted under cross‑examination that the job involved a lot of moving around, sitting, standing, walking and lifting (T84).
The trial proceeded on the basis that the weights the plaintiff was required to lift were 16 kilogram paper rolls and 10 to 15 kilogram containers of chemicals but these facts were subject to some uncertainty arising from Mr Mirco's evidence. That was the state of the evidence when the expert witnesses, including Professor Harper the occupational physician and Dr Rosenthal, the specialist in rehabilitation medicine gave their evidence. It was only on the fourth day of the trial after those specialists were long gone that the parties visited Kmart in Joondalup and took some photographs of the photo lab and agreed on the actual weights of the paper rolls and chemicals (exhibit 29).
The parties agreed that the paper rolls each weighed 6.95 kilograms. The rolls came in boxes of two weighing 13.9 kilograms. The magazine weighed 8.9 kilograms, and, when loaded, weighed 15.2 kilograms. The loaded magazine had to be placed on top of the printer at about waist height as shown in the photograph, exhibit 29. It was not clear whether the loaded magazine had to be lifted onto the machine or whether the 8.9 kilogram magazine could be placed on the top of the machine and then loaded with the 6.95 kilogram roll of paper. There were two types of chemicals – P1 and P2. Each container of P1 chemicals weighed 3.75 kilograms and came in a box of two weighing 7.5 kilograms. Each container of P2 chemicals weighed 3.9 kilograms and came in a box of four weighing 15.6 kilograms. Containers of those chemicals are placed in a drawer at the bottom of the machine.
It is highly unsatisfactory that the factual evidence reached the court after the evidence of expert witnesses. The agreed evidence in exhibit 29 showing paper rolls weighing only 6.95 kilograms is very different from 16 kilogram paper rolls as suggested by the plaintiff's evidence. It seems to be the case that the plaintiff did not intend to mislead the court. She simply referred to "16 kilograms" because she remembered that was written on the box containing the paper rolls. Those preparing her case for trial should have ensured that the experts and the court had accurate information on this issue and that each expert gave an opinion based on the same facts. That has not happened in this case.
The opinions of Professor Harper and Dr Rosenthal directly conflict with each other. Professor Harper's opinion was that the plaintiff would never be able to return to her duties as a photo lab assistant. To the contrary, Dr Rosenthal believed the plaintiff had the capacity to work at least half time as a photo laboratory technician. And he believed her capacity to work in this job would increase as her fitness increased. While Professor Harper's opinion was based on what he "understood" were the plaintiff's duties, Dr Rosenthal was quite familiar with the duties of a photo lab technician and had rehabilitated people with serious spinal injuries into this employment. He considered the duties of a photo lab technician to be appropriate for this plaintiff's injuries.
Given Dr Rosenthal's direct experience with the work of a photo lab assistant I accept his opinion that the plaintiff retains the capacity to undertake these duties at least on a half time basis. I do not accept Professor Harper's opinion. He had no actual experience of the duties of a photo lab technician. He explained his opinion in his evidence at T252 when he said:
"Firstly, it's a job standing and it's a job standing at a machine and it requires prolonged standing. It's a job which requires a certain amount of lifting and bending. The paper rolls have to be lifted and fitted into the machine, chemicals have to be carried, lifted and put into the machine so it is a static job generally but it does require significant lifting in terms of the heavy paper roll and also going to get those paper rolls and carrying them to the work station."
That description by Professor Harper of the duties of a photo lab technician is not supported by the evidence. The plaintiff's evidence showed that neither prolonged standing nor prolonged sitting was required. It is now established that the paper rolls were not heavy and weighed only 6.95 kilograms and not 16 kilograms. The chemicals weighed much less than the weights suggested to Professor Harper. This is a case where the failure of the plaintiff's solicitors to prove the facts about the duties of a photo lab technician renders Professor Harper's expert opinion inadmissible because it is not based on any proven facts (Ramsay v Watson (1961) 108 CLR 642 at 649).
These issues were discussed in Pollock v Wellington (1996) 15 WAR 1 at 3 per Anderson J.
"Before an expert medical opinion can be of any value the facts upon which it is founded must be proved by admissible evidence and the opinion must actually be founded upon those facts: Ramsay v Watson (1961) 108 CLR 642; Trade Practices Commission v Arnotts Ltd (1990) 21 FCR 324; Paric v John Holland (Constructions) Pty Ltd (1985) 59 ALJR 844 at 845 ‑ 846."
The plaintiff relies on the re‑examination of Professor Harper at T272 where plaintiff's counsel put to him:
"Professor, if a finding were to be made by this court that her job as a photo lab technician required her to load rolls of paper into the machine up to four times per day during a busy day and each of those rolls weighed six and a half kilograms, and if this court were to make a finding that she would also have to replenish the containers of chemicals daily, each weighing 10 kilograms and 13 kilograms, and bend to the ground level, or four inches above the ground, to load these containers of chemicals, would that affect your opinion in any way as to her suitability to work as a photo lab technician?"
To this Professor Harper replied:
"No, my opinion is as I've expressed it, and what you're saying would simply be reinforcing in my own mind the fact that that job, in my opinion, is one that I would medically not recommend for this particular person."
In that paragraph a reduced weight of the paper rolls was put to Professor Harper but the weights of the chemicals were wrongly put to him. Professor Harper never had the opportunity to deal directly with the facts that were eventually agreed as to the weights of the paper rolls and the chemicals.
The plaintiff submits that I should not rely on Dr Rosenthal's opinion because although he practises in rehabilitation medicine he is not a fellow of any specialist college of Australia. The plaintiff relied on a finding made by Jenkins DCJ as she then was in Barwick v Den Hoedt & Anor [2004] WADC 10 at [39] where her Honour said: "I do not accept that his [Dr Rosenthal's] overseas qualifications are equivalent to such a fellowship." I accept that Dr Rosenthal has different qualifications from those of Professor Harper and I certainly would accept that at one level Professor Harper is better qualified than Dr Rosenthal. However, for the purposes of this case, Dr Rosenthal has a qualification totally lacking by Professor Harper, ie., direct experience with the operation of a photo lab and the use of a position as a photo lab technician in the rehabilitation of patients with back injuries. In the circumstances of this case Dr Rosenthal is more highly qualified than is Professor Harper.
There was support for Dr Rosenthal's opinion that the plaintiff's condition would gradually improve and that support is found in the expert opinions of Dr John Salmon and Mr Anastas. I do not however, accept Mr Anastas's opinions about the plaintiff. His diagnosis was that of a simple soft tissue injury with no neurological impingement. I accept Professor Mastaglia's opinion supported as it is by all the other specialists that there was S1 nerve root compression.
This then is a case where the plaintiff's earning capacity has been diminished as a result of the accident. Before the evidential burden shifts to the defendant it is also necessary for the plaintiff to show that she has been unable to find alternative employment (Thomas v O'Shea). In TA v Lucky Import & Export Co Pty Ltd [2002] WASCA 65 the Full Court discussed a similar situation and said at [25]:
I accept that the limitation on the appellant's ability to lift heavy objects meant that his earning capacity was affected to some degree. That, however, does not shift any evidential burden to the respondent. It was still necessary for the appellant to show something more before there was any shifting of the evidential burden. The appellant had to show, in addition, that he has been unable to find alternative employment."
The plaintiff gave no evidence in this case of actively seeking any employment outside the home. That is not surprising given her maternal commitments and the time she necessarily had to spend as principal carer for her twins. Nonetheless she admitted under cross‑examination that she never tried to go back to work as a photo lab technician and never spoke to Kmart about what sort of support they could give her if she tried to go back (T91).
During re‑examination the plaintiff expressed her belief that with her injuries she would pose a problem for Kmart and she believed the bending and stretching associated with her duties would create really bad pain for her. She said she would have returned to work if it had not been for her injuries and the accident. The plaintiff relies on this as evidence that the plaintiff's condition has prevented her from finding alternative employment (Thomas v O'Shea) and submits that an evidentiary burden is therefore cast on the defendant. I do not accept that submission. The plaintiff was aware of the medical opinions of both Dr Salmon and Dr Rosenthal. She had, prior to trial, experienced considerable relief in her symptoms as a result of Dr Salmon's treatments. In the circumstances that she faced as the full time carer for her children I am satisfied that it was that full time care that prevented her from returning to her duties as a photo lab technician. She admitted as much in her conversation with Ms Pennefather (exhibit 27).
Mr Frank Mirco, the store manager for Kmart in Joondalup gave evidence the plaintiff approached him in November 2003 and asked if he had any positions going in the photo lab. Mr Mirco answered in the affirmative. Mr Mirco said that the plaintiff was a good worker. In her evidence she said Mr Mirco told her there was a full time position coming up in the near future and the plaintiff said she told him she was "so sad" because she couldn't take the position because of her injuries. There was no evidence she ever applied to return to work part time at Kmart as she had been doing at the time of the accident.
There is support in the expert evidence for the plaintiff's belief that her injuries might cause a problem for Kmart. Professor Harper noted that the plaintiff's injuries have affected her employability – that she would not be able to compete in the open workforce once prospective employers learn of her injuries and the persistence of her symptoms (T252). But it does not seem to me that that factor directly applies in a case where the plaintiff was highly skilled as a photo lab technician, had work experience part time as a photo lab technician and yet never sought part time employment with her former employer.
Taking account of all of this evidence I am satisfied that the plaintiff did lose her pre‑accident earning capacity. Her earning capacity was diminished by the accident. She has not shown that she has been unable to find alternative employment. Nor am I satisfied that her condition prevented her from working part time as a photo lab technician. For these reasons the evidential burden has not shifted to the defendant (Thomas v O'Shea; Lucky Import & Export Cocase).
The defendant contends that the plaintiff's duties as the primary carer for her twins left her with virtually no exercisable earning capacity. The defendant relies on evidence in the course of the trial of the care regime for her daughter Libby and the care regime for her son Jack. Each care regime has been usefully set out in schedules. Those schedules show that the care regime has varied for each child. Libby's mild cerebral palsy led to frequent hospital visits for medical and paramedical reviews. Between birth and age 5 Libby needed one hour per week of physiotherapy and one hour per week of occupational therapy. These were either at the David Brand Centre or at home. After age 5 those sessions dropped to every two to three weeks for physiotherapy and monthly for occupational therapy. There were daily requirements in addition to therapy sessions that the plaintiff had to carry out at home from birth until Libby reaches physical maturity. These include both physiotherapy and exercises to keep her limbs supple which must be done twice daily for five minutes, one half hour of occupational therapy every day and daily serial casting and fitting Libby with a splint. Also during this period until Libby is 13 years of age there were six monthly Botox injections needed to relieve the muscle in the back of Libby's leg. She now needs to see an orthopaedic surgeon annually.

On top of that rigorous regime with Libby the plaintiff had other special problems with Jack who was diagnosed as hyperactive at the age of 4. From that time the plaintiff took him to Dr McMichael once every two to three months and had a one hour appointment with a social worker each week. In July 2003 when Jack contracted meningitis the plaintiff and her husband moved into a flat near PMH for two months while the plaintiff's mother cared for Libby. After Jack returned home and recovered he was left with a learning deficit and the plaintiff spent an hour each week at an appointment with a speech therapist at PMH.
One issue that arises is whether there was or is anyone who could have cared for the twins if the plaintiff exercised her retained earning capacity. It is clear that her husband is only available if she were to work nights. The plaintiff and her mother, Mrs Betts, both gave evidence that although Mrs Betts worked two jobs during the period before the twins started school her employment was flexible and she would have been able to help with the children. Mrs Betts now works one job but is available five days each week to look after the twins. The evidence shows that Mrs Betts certainly did step in and help in emergencies such as during the first 40 days after the accident and when Jack was hospitalised. But the evidence shows that when the plaintiff worked part time after the twins were born before her accident she worked in the evening and her husband minded the children. There was no evidence of any ongoing arrangement during the first two years of the twins' life of her mother looking after them on a regular basis so that her daughter could return to work.
This was supported by the evidence of Ms Sharon Pennefather, a witness called by the defence. Ms Pennefather is a claims officer with the Insurance Commission of Western Australia who had made a file note after speaking with the plaintiff by telephone on 9 March 2000 before litigation commenced. Ms Pennefather refreshed her memory from the file note she had made at the time of the telephone call and gave evidence the plaintiff told her she would like to go back to work. She told Ms Pennefather she was earning $80 a week. According to Ms Pennefather the plaintiff told her: "I can't go back anyway because my kids – the one with cerebral palsy needs a lot of medical appointments." The only assistance with the children that the plaintiff mentioned she could get was from a friend. She said her husband worked long hours. The plaintiff did not mention any help from her mother. The plaintiff's counsel did not cross‑examine Ms Pennefather and instead, tendered her file note as exhibit 27.
The twins commenced school in February 2002 and the plaintiff gave evidence she had always intended to work full time when the twins went to school. Her work would have been interrupted in any event by Jack's illness in 2003. From that time the care regime for the twins – Libby with mild cerebral palsy and Jack with learning disabilities – was extensive and would continue to be extensive at least until the twins were about 13 years old in 2010. Even if she had not been injured I am satisfied the plaintiff's earning capacity was not fully exercisable during the period from the birth of her twins until they reach 13 years of age because of the extensive care regime she had had to undertake.
In assessing damages for loss of earning capacity another factor that needs to be taken into account is the plaintiff's actual earnings after the birth of the twins and prior to the motor vehicle accident. The plaintiff's tax returns for financial years 30 June 1995 through to 30 June 1999 were received as exhibit 2. In 1998 she earned $1,778 or approximately $59.27 gross per week that she worked. Those earnings cover the period November 1997 when she returned to work part time after the birth of the twins on 27 March 1997 until 30 June 1998. In FY1999 from 1 July 1998 until the date of the motor vehicle accident on 7 January 1999 the plaintiff earned $2,581 or approximately $99.27 gross per week worked. During the entire 56 week period the plaintiff was back at work after the birth of the twins her average earnings were only $77.84 gross per week. This is consistent with the earnings of $80 per week that the plaintiff mentioned to Ms Pennefather in September 2000.
In Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 at 639 the High Court discussed the approach the court must take in assessing the plaintiff's loss of earning capacity in a case such as this.
"The fact that the plaintiff did not work is a matter of history, and facts of that kind are ascertained for the purposes of civil litigation on the balance of probabilities: if the court attains the required degree of satisfaction as to the occurrence of an historical fact, that fact is accepted as having occurred. By contrast, earning capacity can be assessed only upon the hypothesis that the plaintiff had not been tortiously injured: what would he have been able to earn if he had not been tortiously injured? To answer that question, the court must speculate to some extent. As the hypothesis is false – for the plaintiff has been injured – the ascertainment of earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history. Hypothetical situations of the past are analogous to future possibilities: in one case the court must form an estimate of the likelihood that the hypothetical situation would have occurred, in the other the court must form an estimate of the likelihood that the possibility will occur. Both are to be distinguished from events which are alleged to have actually occurred in the past."
The High Court then referred to what was said by Lord Diplock in Mallett v McMonagle [1970] AC 166 at 176:
"But in assessing damages which depend on its view as to what will happen in the future or would have happened in the future if something had not happened in the past, the court must make an estimate as to what are the chances that a particular thing will or would have happened and reflect those chances, whether they are more or less than even, in the amount of damages which it awards."
I am satisfied based on the evidence of the extensive duties the plaintiff undertook as primary carer for her two children that even if she had not been injured, there was no chance of her working full time before the twins reach the age of 13 in 2010. If the plaintiff had not been injured in the motor vehicle accident I believe there is a 90 per cent chance she would have continued to work part time until the twins commenced school in 2002. But I must bear in mind that during 2003 Jack was severely ill. That is an historical fact that has been established. The plaintiff would not have been able to work at all for the two months she and her husband lived near PMH to be near Jack. And because of Jack's extra needs as he recovered from his illness I believe there was only a 50 per cent chance that the plaintiff would have returned to work at all that year.
From 2004 to 2010 when the twins will be 13 years of age if the plaintiff had not been injured I am satisfied there was a 90 per cent chance she would have worked half time.
These findings mean that even if the plaintiff had not been injured in the motor vehicle accident she was unlikely to have fully exercised her earning capacity because of her maternal duties. But the effect of the motor vehicle accident has been to stop her from working at all. In these circumstances I will assess damages for loss of earning capacity based on the loss of the exercisable earning capacity she retained after the birth of the twins. That is the loss of earning capacity she has suffered that has been productive of financial loss (Graham v Baker).

Past loss of earning capacity

When the plaintiff worked part‑time for Kmart after the birth of her twins she was earning $14.28 gross per hour. As she earned less than $3,000 during financial year 1998 and financial year 1999, gross and net figures are pretty irrelevant as she would have paid no tax. In assessing her loss of earning capacity from the date of the accident 7 January 1999 until the twins commenced school in February 2002, a figure of $15 per hour seems to me a fair assessment. That was a period of three years and four weeks equals 160 weeks. The plaintiff worked very few hours prior to the accident and I doubt if those hours would have substantially increased until the twins commenced school. I am prepared to allow for eight hours work per work during this period. That is more than she was working prior to the motor vehicle accident, but I accept that her hours would have gradually increased. She would therefore have earned an average of $120 per week for the 160 weeks equals $19,200 for that period.
During the first year the twins were at school (2002) I accept there was a 90 per cent chance she would have worked half time (20 per week) earning about $300 per week gross, or say $260 per week net. That would amount to $260 x 52 x .9 = $12,168 compensation for 2002.
During 2003 when Jack was so ill in July I am satisfied she would not have worked at all for two months, and there was only a 50 per cent chance that the plaintiff would have worked half time from September 2003 to December 2003. For the first six months of 2003 I award $260 x 26 x .9 = $6,084, and for the last four months I award $260 x 18 x .5 = $2,340. Total compensation for 2003 is $8,424.
From 2004 to July 2005, a period of 78 weeks, I award $260 x 78 x .9 = $18,252. Total past loss of earning capacity is assessed at $58,044. The plaintiff concedes this should be discounted for contingencies of 10 per cent = $52,240.
The plaintiff should also be compensated for loss of superannuation calculated as 9% of her gross past earnings = $5,762 less 30 per cent (Jongen v CSR Ltd (1992) A Tort Rep 81 – 192) = $4,033.
Interest of six per cent on past loss of earning capacity for 6.5 years = $52,240 x .03 x 6.5 = $10,187. Interest of past loss of superannuation = $4,033 x .03 x 6.5 = $786.

Future loss of earning capacity

The plaintiff's case is that she will never be cured. I accept Professor Mastaglia's evidence that the plaintiff's low back injury caused a protrusion of the L5/S1 disc with evidence of S1 nerve root compression. But I do not accept that her prognosis is entirely negative. Dr Salmon expects a gradual improvement over time. Dr Rosenthal believed her capacity to work as a photo‑lab technician would progressively increase as her fitness increased. Dr Salmon's treatments have provided her considerable periods of relief from her pain, and she has experienced relief by using the relaxation techniques she learned from Mr Semmens, and by strengthening her muscles with the exercise program under Stephanie Martin.
The care she must provide for Libby until she is full grown in 2010 at age 13, and the special care she must continue to give to Jack satisfy me that even if she had not been injured she would not have worked more than half time during the period July 2005 until July 2010 when the twins would have turned 13 years of age. These factors leave considerable uncertainty in calculating future loss of earning capacity.
Based on a 50 per cent retained earning capacity, the plaintiff's loss of $260 net per week for 26 years (multiplier 698.6) = $181,636. That figure needs to be reduced by a further 25 per cent to take account of what I expect to be an increase in the plaintiff's earning capacity as her condition improves. That figure should then be discounted for the usual contingencies as the plaintiff's suggest of six per cent. Therefore I calculate future loss of earning capacity as $181,636 less 31 per cent = $125,329. In addition she is entitled to a loss of future superannuation calculated at $300 gross per week x 698.6 less 31 per cent x .09 = $13,015 less the Jongen discount of 30 per cent = $9,110.

Gratuitous services

The plaintiff gave evidence that for the first three months after her injuries she needed virtually 24 hour care from her mother for herself, for her personal needs and for the twins. That happened again in February 2002 when she had a coughing fit and her back went into spasm. On that occasion her symptoms were very severe for about a week, and again she had to be looked after virtually full time by her mother.
Besides those severe periods, the plaintiff has ongoing needs as a result of the injuries she suffered in the motor vehicle accident. Prior to the accident she took care of all the cleaning, but she is no longer able to do that without help. She is able to do some laundry and to hang it out, but she cannot get it off the clothes line. She is unable to clean the shower recess or the toilets. She can pull the sheets off the bed but cannot make the beds. She used to help her husband in the garden but is no longer able to do so.
The plaintiff's husband, Graham Weatherall, gave evidence that he cleans the bathrooms and toilets each week, taking him about an hour. He also helps when he arrives home in the evening with laundry or cleaning if its needed. Prior to the accident Mr Weatherall said that his wife was very house‑proud and did everything around the house. Now he regularly helps her as needed.
The plaintiff's mother, Sylvia Betts, provided personal care for the plaintiff for the 40 days immediately following the accident. She helped the plaintiff shower, toilet and dress. She took care of all meals and the care of the twins. During those 40 days, Mrs Betts was on call virtually 24 hours a day if the children were ill at night. Mrs Betts admitted that the regime changed a bit: she was able to help her daughter for two hours in the morning by giving the twins breakfast, preparing their lunch and changing the twins before leaving them on their mother's lap when she went to work. Later Mrs Betts did shopping, cleaning, vacuuming and changed the beds.
But that changed to a less rigorous routine after the 40 days. Mrs Betts now helps her daughter about four hours per week with bringing the washing in, ironing, some shopping and house cleaning. Mrs Betts takes the children to school twice a week, but she admitted that she would take them to and from school whether the plaintiff was injured or not. She enjoyed assisting her daughter. Under the terms of s 3D(2) of the Motor Vehicle (Third Party Insurance) Act 1943 no damages are to be awarded for the value of the services if the services would have been provided to the person even if the person had not suffered the bodily injury. I make no award for Mrs Betts driving the children to school.
The claim by the plaintiff covers both services she requires and services she had previously provided for her family and for her twins. Under the traditional formula in Griffiths v Kerkemyer (1977) 137 CLR 161, Van Gervan v Fenton (1992) 175 CLR 327 and Newman v Nugent (1992) 12 WAR 119 at 129 the plaintiff is entitled to the reasonable costs of meeting the need for services assisting her that she can no longer provide because of her injury, but the law did not recognise any entitlement for the reasonable costs of services she could no longer provide for her family. That loss was intended to be included in the general damages award as a loss of enjoyment she suffered because of her inability to provide services for her family. I accept however, that the law has now changed (Thomas v Kula (2001) WASCA 362; Sullivan v Gordon (1999) 47 NSWLR 319; Mitchell v Mitchell (2004) WADC 184 per Blaxell DCJ [54] to [60]). Therefore, in assessing the plaintiff's claim for gratuitous services I need not differentiate between her need for services for herself, and her need for services for her family. The award covers the reasonable costs of meeting the need for services reasonably required for herself or the services previously provided by her for her family so long as the need for those services arose because of the injuries the plaintiff suffered in the motor vehicle accident. In this case I accept the plaintiff's evidence and that of her mother and husband that because of her motor vehicle accident injuries, she did require not only personal care but also help with cleaning, shopping and laundry and care for the twins.
The plaintiff claims eight hours gratuitous services per week, an average of six or ten hours per week. I accept eight hours is an appropriate estimate for the period of time between the date of the accident and the time of trial. Therefore I award $15 x 8 x 320 weeks = $38,400 for past gratuitous services. The plaintiff claims no interest on that award.
I also accept the plaintiff's estimate of four hours gratuitous services each week for the next 10 years while the children are still dependent = $15 x 395.5 x 4 = $23,730. Because of my findings that the plaintiff's condition will improve I make no further award for gratuitous services, therefore the total award for future gratuitous services is $23,730.

Past special damages

Past special damages have been agreed in the amount of $26,418.

Future special damages

Dr Salmon gave evidence of the plaintiff's future treatment requirements. Her medications include six to eight Panadeine tablets per day, 100 to 150 milligrams of Tramal at night and one Lexapo tablet daily. The plaintiff provided no information about the costs of these medications and I am unable to make any allowance.
Dr Salmon also expected the plaintiff to need two further sets of lumbar epidural and L5 sleeve injections, and pulse radio frequency ganglionotomy. He also expects the plaintiff will need 15 physiotherapy review sessions. Finally, Dr Salmon indicated that if the plaintiff failed to respond to the epidural there would be a chance, estimated at 25 per cent, that she will need to undertake an intensive pain program treatment such as the Achieve program which costs $6,000.
Exhibit 6 shows that for the last epidural treatment including a consultation on 10 March 2005 and the treatment on 23 March 2005, Dr Salmon's total cost were $1,358. As costs can be expected to increase I allow $1,500 for each further procedure, and I allow $6,000 x 25 per cent = $1,500 for the chance of the need for the Achieve program.
The plaintiff's exercise consultations with Stephanie Martin cost $52.50 (exhibit 8) and I would allow a further 15 of those consultations = $789.
The plaintiff commenced gym membership on 23 February 2005 and her ongoing membership will cost $48 per month. I am satisfied, given the nature of the plaintiff's back injury, that she will require ongoing gym work to build her musculature to support her back. $48 per month amounts to $576 per year, or about $11 per week. I am prepared to allow $10 per week for the next 10 years for gym membership. The present value of $10 per week for 10 years on the six per cent tables is $3,950. Total future special damages are therefore awarded in the amount of $9,239.

General damages

The plaintiff has suffered an extremely painful injury. Coming as it did when her twins were not yet two years of age, the effects of her injury have had a severe impact on her ability to be the kind of wife and mother she had set out to be. She is clearly a very devoted and good mother who finds that her ongoing severe back pain has interfered with every aspect of her life during the time she was already under pressure as the primary carer for her twins. Her pain continues even now at trial, although she has had some relief since Dr Salmon began his treatments in 2002, some three years after the accident at around the time a coughing fit had led to extreme pain and a week's total disability.
The pain arising from her injuries interferes with and limits every aspect of her life. Her sex life is limited. Her ability to clean and to do laundry for her family is limited. She has had to depend on others to do the things she would have done herself.

There is no doubt in my mind that she suffered considerable pain looking after her twins. As the primary carer, I have no doubt things had to be done and she did them despite the pain. That would particularly apply to the rigorous regime she has to undertake for Libby's care during all of the years until Libby reaches full growth.
Everyone who gave evidence about the plaintiff on a personal basis described her as a bubbly and effervescence personality with lots of energy, who managed her twins, her household and some part‑time employment prior to the accident. Much of that has now been taken from her by the motor vehicle accident and the ongoing pain she has suffered. She can no longer even go for a walk, ride a push bike or walk the dog because of her fear of aggravating her back and experiencing excruciating pain.
Section 3C of the Motor Vehicle (Third Party Insurance) Act 1943 limits the award that can be given for non‑pecuniary loss and requires the court to fix that amount by applying the formula set in that legislation (Wylde v 'Arriaza, unreported; FCt SCt of WA; Library No 970359, 23 July 1977). The amounts applicable under s 3C vary every year. From 1 July 2005 they are:
Amount A$268,000
Amount B$13,500
Amount C$41,000
Amount D$5,000
The rules for calculating compensation for non‑pecuniary loss are set out in s 3C(2) to s 3C(6) of the Act as follows:
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 being amount A which may be awarded only in the most extreme case. In this case that is $268,000. If the amount of non‑pecuniary loss is assessed to be $13,500 or less, no damages are to be awarded for non‑pecuniary loss. If the amount of non‑pecuniary loss is assessed to be more than $13,500 but not more than $41,000, the amount of damages to be awarded is the excess of the amount so assessed over $13,500. If the amount of non‑pecuniary loss is assessed to be more than $41,000 but less than $54,500 the amount of damages to be awarded for non‑pecuniary loss is to be calculated as the excess of the amount so assessed over $13,500 minus the difference between the assessed amount and $41,000.
In this case I am satisfied that because of the severe pain suffered by this plaintiff and the effect it has had on all aspects of her life that this case is 35 per cent of a most extreme case, and therefore I award $93,800 for general damages for non‑pecuniary loss. No further calculation is required.

Summary of the award

General damages  $93,800.00
Past loss of earning capacity  $52,240.00
Past loss of superannuation  $4,033.00
Interest on past loss of earning capacity  $10,187.00
Interest on past loss of superannuation  $786.00
Future loss of earning capacity  $125,329.00
Loss of future superannuation  $9,110.00
Past gratuitous services  $38,400.00
Future gratuitous services  $23,730.00
Past special damages  $26,418.00
Future special damages  $9,239.00
Total award  $393,272.00