White v Simpson - [2007] WADC 55

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: WHITE -v- SIMPSON [2007] WADC 55

CORAM: KEEN DCJ

HEARD: 26-30 MARCH & 2 APRIL 2007

DELIVERED : 24 APRIL 2007

FILE NO/S: CIV 1138 of 2004

BETWEEN: MARTINE FABIENNE WHITE
Plaintiff
AND
PHIL SCOTT SIMPSON
Defendant

Catchwords:

Negligence - Personal injuries - Mitigation

Legislation:

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

Result:

Plaintiff awarded $43,244.85

Representation:

Counsel:

Plaintiff: Ms H Prince
Defendant: Mr P Olivier

Solicitors:

Plaintiff: Alison & Associates (Legal) Pty Ltd
Defendant: Talbot Olivier

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

Fazlic v Milingimbi Community Inc (1982) 150 CLR 345
Fontaine v Quality Platers (1995) 12 WAR 71
Kalavrouziotis v Howel & Anor (unreported; FCt SCt WA, Library Number 980219; 1 May 1998)
Matters v Baker [1951] SASR 91
Plenty v Argus [1975] WAR 155
Wakim v McNally (2002) 121 FCR 162

KEEN DCJ: The plaintiff claims damages for personal injuries and other losses arising out of a motor vehicle accident on 13 February 2003 at the junction of Dowd Street and Kewdale Road, Welshpool. The motor vehicle driven by her was struck by a motor vehicle driven by the defendant. Liability for the accident is not in dispute.

Background

The plaintiff is 45 years old, having been born on 18 October 1961. She formed a relationship with Stephen White in about February 1999 and married him on 19 December 2002.
Prior to the accident the plaintiff claimed to be an active person engaged in walks around the river, cycling, rollerblading and bushwalking particularly on the Bibbulmum Track. She also engaged in fun runs, albeit walking. Her other leisure activities included going to the cinema and socialising. Mr Clive Dutton gave evidence that he had known the plaintiff for six or seven years and had been involved in some of the activities described by the plaintiff, for example, the walks on the Bibbulmum Track and fun runs.
The accident in which the plaintiff was involved was clearly a serious accident. The airbag in her car was deployed and the car was written off. There was some suggestion that the plaintiff was rendered unconscious in the accident. She was taken to Sir Charles Gairdner Hospital by ambulance. It appears that little in the way of treatment was given to her and she was released without x‑rays or the like being taken. The plaintiff did not improve and went to Royal Perth Hospital and then to see her general practitioner Dr Kerr. Dr Kerr apparently did not handle injuries and treatment arising out of motor vehicle accidents. The plaintiff went to see solicitors and ultimately on 19 December 2003 came under the care of Dr Lingham Sam, a general practitioner.
The plaintiff remained under the care of Dr Sam who she continued to see, even up to the present time, almost on a weekly basis. It appeared from the evidence that the only time that the plaintiff did not visit Dr Sam on a weekly basis was if he was on holiday. She was also referred to and saw a number of other medical practitioners and had scans, radiology, physiotherapy and some psychological treatment.
Prior to coming to Western Australia from Victoria the plaintiff had worked in a number of occupations, including that of shop assistant and on a production line at Nissan Motors. She came to Western Australia in about February 1999. It was then that she developed the relationship with her husband, Stephen. The plaintiff did not work between February 1999 and May 2001.
In May 2001 the plaintiff took over from her husband a courier business that he had been running. She opened a bank account and obtained an ABN. She contracted with Linfox doing pick-ups and drop-offs as required by them. She worked two days a week on Tuesdays and Thursdays. She utilised her own vehicle for the work, a Daihatsu Sirion.
She said in evidence that it was light work. She said that her day was broken up into one or two hour lots. She would do one drop and then go home for a couple of hours and then go out again. She was on call to do whatever was required of her on those days.
Within a matter of days of the accident she decided that she could not get back into the car and drive and she gave up the business. She transferred the business to her husband.
The plaintiff has not worked since.

The Plaintiff's Injuries

The plaintiff gave evidence that after the accident she was in a great deal of pain. She said the pain was in her lower and upper back and she could not move her neck. She said that the right shoulder was bruised from the seatbelt and was painful. She also said that her left breast and chest were painful and it was hard to breathe.
At the time she saw Dr Sam she also had pain between her shoulder blades. She also had headaches, both frontal and at the rear. She described a cut to the right knee which was also hurting. The injury to her breast comprised bruising. She said her left breast was black and blue and also her stomach was badly bruised.
On visiting Dr Sam the plaintiff was put on medication.
The plaintiff continued to see Dr Sam on a weekly basis. She said that she had not returned to driving and could barely be a passenger in a vehicle. She said that she had flashbacks and nightmares. She will only travel as a passenger in her husband's vehicle. Apart from him driving her to the doctor's on a weekly basis, she did not go out much, apart from the odd shopping trip.
During the weekly visits to Dr Sam he would prescribe medication for her. It was put to the plaintiff that she visited Dr Sam merely for counselling and in re-examination she was asked whether there was any treatment provided or counselling or anything of that nature given to her and she replied "No, just medication".
Apart from the medication, evidence was given by the plaintiff's husband that he would spend time massaging his wife.
Whilst the visits to Dr Sam appeared to consist of the plaintiff relating to Dr Sam how she was progressing and Dr Sam prescribing medication, Dr Sam also referred the plaintiff to other practitioners for treatment. She was also referred to other practitioners for assessment in relation to her claim for damages. She recalled visiting Dr Lee, a psychiatrist, who she described as very nice. Dr Lee was engaged by the Insurance Commission of Western Australia ("ICWA") to carry out an examination of the plaintiff and prepare a report on its behalf She also went to see a sex therapist, Dr Adams. In relation to Mr and Mrs White's sex life Mr White said that it had stopped. The plaintiff had felt a lump in her breast and Dr Sam referred her to Dr Archer and she had mammograms and a biopsy. The plaintiff also said that she saw Dr Gee, a pain specialist, who referred her to a Dr Michael Ponchard, an exercise physiologist, who she saw on two occasions. She said:
"He pushed me too far… I walked out of there in more pain than when I walked in".
The plaintiff was also referred to a Mr Semmens, a psychologist.
The plaintiff said that she had gained 20 or 30 kilos in weight after the accident and was depressed.
In relation to medications, she said that ICWA stopped paying for medications and the bill for these was accumulating. She said that she was currently on Avanza for her depression. In addition, she was on Rifen for pain and her husband massages her with Voltaren and Finalgon.
The plaintiff's current symptoms are a sore back and pain in the upper back between the shoulder blades, radiating to the right arm. She suffers frontal and back of head headaches. She said that she cannot sit for more than half an hour without excruciating pain.
Dr Sam gave evidence. He is a general practitioner. He said that he does not make appointments for his patients. During the course of his evidence he was taken through, visit by visit, the plaintiff's attendances upon him until that line of questioning was stopped at the visit of 28 July 2004. It is not necessary for me to detail all that occurred during those visits as described by the doctor but they may be summarised as the plaintiff attending upon him, advising of her symptoms at the appropriate time and the doctor prescribing medication, although not on every visit.
Dr Sam said that when he first saw the plaintiff on 19 February 2003 she complained of severe headaches, right shoulder pain and bruising to the upper chest wall and lower abdomen. The bruising described by him was extensive. She also complained of neck pain and left shoulder pain and not sleeping. Dr Sam produced two medical reports, Exhibits 19C and 19D, dated 17 June 2003 and 19 January 2004 respectively. In the report of 17 June 2003 he also described complaints of left upper arm tingling, lumbar back pain and pain radiating to the right leg. There was also a complaint of dizziness, insomnia and the plaintiff being nervous especially in cars and depressed.
Dr Sam prescribed conservative treatment in the way of pain‑killers and creams. He also recommended physiotherapy. He sent her for radiological examination.
Dr Sam confirmed that he referred the plaintiff to pain specialist Dr Finch but apparently she saw Dr Gee in his place. He also referred her to Dr P C Anderson, an orthopaedic surgeon, and to Dr Stephen Archer. Because of the bruising to the plaintiff's breast the doctor was concerned that she might have breast cancer or some other underlying pathology. Dr Sam also referred the plaintiff to Dr Gee and Dr Warner, an occupational physician, and Dr Ng, a psychiatrist. She was also referred to a gynaecologist, Dr Walters. Dr Sam was also aware that the plaintiff was seeing Dr Ponchard who he believed to be a clinical psychologist or physiologist recommended by Dr Gee. He was also aware that in September 2003 the plaintiff was to see Dr Lee, the psychiatrist. On 21 April 2004 he referred the plaintiff to Dr Semmens, a pain specialist, but Dr Sam was not sure whether the plaintiff had in fact visited him.
Dr Sam noted that the plaintiff, apart from complaining of pain, was severely depressed and anxious. He could not remember specifics about the anxiety but recalls being told by the plaintiff that if she is in a car or near junctions, she is very nervous and tearful with flashbacks of the accident. Dr Sam noted that the plaintiff's weight had increased from 86 kilograms to 100 kilograms.
In cross-examination Dr Sam confirmed that there were advanced degenerative changes in the plaintiff's lower lumbar facets which were age related and not related to the accident.
In his first report Dr Sam felt that the plaintiff was unfit for work as a courier driver. In his second report of 19 January 2004 he noted that she still suffered from headaches, right shoulder and right arm pain and pain in the neck, middle and lower back, left side of the chest, right leg and right knee. He noted that the bruising in the chest and abdomen were fading. He noted that she still had dizziness and vertigo and complained of nervousness and being anxious and suffering from insomnia and depression. He noted that she would continue with conservative treatment with pain-killers and anti-inflammatory medications and antidepressant medication. He said that she could benefit from psychological treatment or psychiatric treatment for the following two to three years. He noted that she was not fit for work and that her future working life would be affected by the ongoing disabilities.
The plaintiff had been referred to Dr Anderson, an orthopaedic surgeon. He first saw the plaintiff on 28 May 2003. He produced three reports being Exhibits 19F, 19G and 19H dated respectively 29 May 2003, 1 July 2003 and 23 March 2007. In his first report Mr Anderson notes the complaints of the plaintiff are largely similar to those given to Dr Sam. He noted that the cervical spine had three-quarters of normal range of movement and lumbar spine, one-half of normal range. He said that the condition of the right shoulder appeared to be normal. He reviewed the radiology and recommended the plaintiff continue on a self-help program at home. He noted the plaintiff had a degree of anxiety and subjective symptoms in relation to headaches and concept of disability associated with the cervical and lumbar regions of her spine. He had no doubt that the injuries had been sustained but that the severity of the injuries was not considered to be of major significance at that time. He also felt the degree of apprehension and anxiety displayed in the course of the consultation was not identified as a major factor. However, he did note that it would be desirable for her to see Dr Peter Burvill or some other psychiatrist.
In his second report he considered the plaintiff to be totally unfit for work. It was desirable that she tried to help herself with exercise programs. He supported Dr Gee's program, including attending an exercise physiologist to promote the plaintiff's recovery. At that time he felt that the plaintiff was unable to undertake any open employment for the rest of the year.
His final report was dated 23 March 2007 and is clearly a report that has been prepared for the purposes of updating the position for the trial. He noted that the plaintiff's condition had not improved. He gave details of her complaints. He noted restriction of movement in the right shoulder, but that ultrasound investigation did not reveal a major abnormality but some degenerative features were noted. He also noted that a CT scan and MRI scan of the lumbar spine showed evidence of facet joint arthropathy and degenerative features. Dr Anderson thought that the plaintiff's degenerative features have been aggravated by the sequence of events following the accident. He noted that she had been unable to maintain a satisfactory rehabilitation program and her condition had deteriorated due to increasing stiffness in association with degenerative features. He thought she was unable to resume work as a courier driver. He said that her rehabilitation program failed to achieve a reasonable objective in the early stages of her management and her chronic disability exists which prevents her from working.
In examination Dr Anderson confirmed that the degenerative changes were not accident caused. However, he said that the pathology had been aggravated by the accident in terms of her symptoms of back pain and referred pain down her leg, suggesting sciatica. However, in examination, and referring back to his examination in May 2003, he said that he thought she should have seen a psychiatrist at that stage.
Dr Anderson did not think the plaintiff needed narcotics in terms of pain control. He felt that she should have an exercise program at home and anti‑inflammatory drugs. He said she should be self-sufficient in terms of looking after herself but limiting her activities to avoid such things as hanging out washing on the clothes line which her right shoulder would prevent her from doing.
Dr Anderson described the injury to the knee as a minor injury and confirmed that there was little that was indicative in the way of injury in relation to her right shoulder, having commented in his report that it appeared to be normal. However, he did say that she thought that she might have a rotator cuff problem.
The plaintiff saw Mr Nick Batalin on 11 July 2003. He produced a report dated the same date, being Exhibit 19M. The plaintiff advised him that she had not attempted rehabilitation and Mr Batalin noted that inquiring into daily activity revealed a surprising degree of incapacity.
Mr Batalin's examination showed inconsistencies in straight leg raising. He reviewed the radiology available to him and summarised the plaintiff's position. He said that she had sustained bruising to her chest and abdomen in the accident and there may have been soft tissue strain aggravation of degenerative changes in relation to her neck and lower back. In relation to the inconsistencies that he noted when using direct and indirect methods of assessment, he said that it raises the question of whether other environmental factors contributed to the symptom perception. He said that management should be conservative, aimed at weight loss and graded exercises and occasional use of mild anti-inflammatory medications and embrocations. The indications were for a graduated return to work.
Mr Batalin's diagnosis was of a possible soft tissue strain to the neck and low back but he had difficulty in accepting the severity of the disability as stated by the plaintiff.
In examination he amplified the inconsistencies to which he had referred in his report. He gave a number of assessments in relation to the restriction of movement in both the formal and informal examination. He observed the plaintiff being able to remove her socks. He also noted inconsistencies in spinal tenderness.
As to the plaintiff's capacity for work, he said that she should look at a graduated return to work with some restriction on lifting and working in confined spaces. He was of the view that depression is a factor in pain perception and that depressed people will feel pain more. He also noted a number of other factors which appeared to affect recovery from pain including job satisfaction, financial factors, compensation factors and depression factors.
A report of Dr R J Warner, an occupational physician, dated 8 September 2003 was tendered pursuant to s 79C of the Evidence Act and became Exhibit 19K. Dr Warner saw the plaintiff on 5 September 2003. Having set out the history, presumably given to him by the plaintiff, and having examined the plaintiff and reviewed the radiology available to him and having noted a diagnosis of L4-5 disc bulge, L5-S1 disc bulge, post traumatic stress disorder with depression and loss of sexual function, he concluded that the plaintiff should have a course of acupuncture and therapeutic massage and also needed to see a clinical psychologist for post traumatic stress disorder. He thought, seven months post accident, that the plaintiff's progress had been limited and that she was totally unfit for her pre-accident work duties to that time and continuing. He felt the prognosis was poor.
Dr Warner was not available to be cross-examined. His curriculum vitae became part of the exhibit. In relation to occupational health it showed that on 1 July 1998 he became a consultant occupational physician for the purposes of the Health Insurance Act, had held a position as member of the Occupational Health Committee of the Australian Mining Industries Council and was a Member of the Curtin University Occupational Safety and Health Association and member of the Occupational Health and Safety Committee Chamber of Minerals and Energy through 1986 and 2001. It is unfortunate that Dr Warner was not available to be examined about his specialities and there was no evidence from him to show what the specialities involved. Accordingly at the end of the day I am bound to treat his evidence as that of a medical practitioner but not placing it any higher than that.
The plaintiff was sent for medical assessment to Dr Joseph Lee, a consultant psychiatrist, who saw her and her husband on 16 September 2003 and 23 September 2003 and produced a report dated 11 November 2003 which became Exhibit 19J. In that report Dr Lee refers to a number of reports that he had been shown and noted that it was felt that she needed counselling with a clinical psychologist and it may be desirable for her to be seen by a psychiatrist to assess the significance of any emotional factors.
He noted that after the accident the plaintiff had been unable to drive because of a "paralysing fear of driving and being in a car". He said she was "super sensitive to cars" and had difficulty getting into a car. He noted that the plaintiff's husband had been trying to get her over her fear and force her to get into a car twice a week. The plaintiff had urged him to pull over a number of times because of severe anxiety. Seeing another car or hearing screeching noises of a car braking could be anxiety provoking.

Dr Lee also noted complaints of mood instability and poor anger control. Her concentration has also suffered and she had become withdrawn.
Dr Lee carried out a mental state examination. He noted that the plaintiff had "just had a near accident on her way to the consultation; her husband was the driver". He noted she was feeling depressed, said her heart was pounding and her muscles were tensed up. She had difficulty relaxing and described recurrent dreams and flashbacks.
Dr Lee's conclusion was that the plaintiff had suffered from post traumatic stress disorder as a reaction to the accident. He noted that post traumatic stress disorder is often a chronic and recurring condition and that pharmacotherapy in combination with psychological treatment offered the best treatment outcome. His diagnosis was that she was in need of active treatment. He estimated that she would need four to six sessions with a psychiatrist and nine to 12 sessions with a clinical psychologist and effective pharmacotherapy for 12 months and psychotherapy for six months.
In evidence Dr Lee clarified the plaintiff's paralysing fear as being a fear of driving as well as being in a car.
Dr Lee was shown a video taken of the plaintiff which became Exhibit 17. Segments of that video shown to the doctor were of 9 and 16 September 2003. I pause to note that the second segment of the video was taken on the day that the plaintiff had visited Dr Lee. In evidence she had said that they had been involved in a near accident on the freeway on that day.
Having seen the video, Dr Lee said:
"I didn't see any objective signs of distress (in the video) that would be consistent with what she described to me but I couldn't tell from the way there was – her subjective experience, whether she was feeling sort of scared."
It was put to the doctor that he was very much at the mercy of the patient in describing the symptoms and feelings and he agreed. He was then asked whether there was anything in the video that might cause him to doubt the conclusions that he expressed in his report and he replied:
"Well, it didn't show in here evidence to support the conclusions in my report, I admit."
He was then asked if he wouldn't expect to see some signs of agitation during the period of time that the plaintiff was seen in the video and he said that he would expect that. He also said that what he saw on the video was inconsistent with what was described in his report as "a paralysing fear of being in a car". He also confirmed that on the day of his examination of the plaintiff she had not volunteered that she had been out making deliveries on that day.
As far as treatment is concerned, Dr Lee was still of the view that the sort of treatment that he was advocating in 2003 would still be of assistance to the plaintiff.
The plaintiff was also seen by Dr Alan Home at the behest of the defendant and he produced a report dated 18 July 2005 being Exhibit 19N. He saw Mrs White with her husband on the day of the report. In that report Dr Home viewed a number of medical reports and radiology reports and noted the history that he had obtained from the plaintiff. Part of that history related to the referral to Dr Semmens. The plaintiff told Dr Home that she received no benefit from the treatment. She said that the doctor was undertaking some tapping on her head and she could not stop laughing. She said she could not take the treatments seriously and has not attended a psychologist since. The history also referred to her attendance upon Dr Michael Ponchard. The plaintiff said she found that she was in agony after that visit and had not returned.
The report of Dr Home notes the symptoms as described by the plaintiff. As to her disabilities, she told Dr Home that she had difficulty sitting for more than 15 to 20 minutes and standing for more than 10 minutes. She said that she did not believe that she would be able to drive a vehicle due to the weight of the seatbelt, in addition to her anxiety complaints and that she had not driven since the accident due to that anxiety. She said that she could not tolerate manual activity and even activity such as holding a book or crocheting or knitting for more than several minutes due to pain in her right shoulder. In relation to that shoulder, Dr Home noted the radiology report which reflected a subacromial bursitis.
Dr Home carried out an examination and said in his report that the plaintiff demonstrated evident pain behaviour. Dr Home noted the range of movement in the plaintiff's back and that straight leg raise was grossly inhibited.
Dr Home's assessment was that the plaintiff had possibly sustained some indirect trauma to the right acromio-clavicular joint but that a cortico-steroid injection may well lead to alleviation to her complaints in that area. So far as the neck is concerned, he thought it probable that her injuries have rendered symptomatic mild underlying degenerative changes. The complaint of pain in the upper back was more difficult to assess and there may be some soft tissue injury there. He thought it probable that the accident had rendered symptomatic degenerative changes in the thoracic joints. He also felt that it was probable that the accident had rendered symptomatic the degenerative segments of the lumbar spine.
Having noted the plaintiff's psychological complaints Dr Home stated:
"I am somewhat surprised that psychological counselling has not been pursued after two initial sessions with Dr Semmens in late 2003. I would endorse the opinions expressed by Dr Lee regarding the requirement for ongoing cognitive therapy in addition to pharmacotherapy. Mrs White presents with psychological symptoms that appear poorly controlled."
Dr Home went on to say that the level of symptoms reported was at the extreme end of the spectrum in view of the nature of injuries sustained, notwithstanding the underlying degenerative changes. Dr Home recommended cortico‑steroid injection to the right shoulder and a supervised hydrotherapy program and analgesia and antidepressant medication. He thought that it was possible the psychological factors and other factors were contributing to the presentation of disability and:
"based upon her subjective presentation of pain, it is reasonable to assess that Mrs White is currently totally incapacitated for work as a courier"… "at this stage Mrs White describes a high level of subjective complaints and based upon the veracity of those complaints she would be regarded as incapacitated for work. I would stress that there is no radiological evidence of severe structural injury arising from the motor vehicle crash and it is possible that other factors are contributing to the presentation of subjective disability in the clinical setting."
Under examination Dr Home noted that there had only been two visits to Dr Semmens and the plaintiff had thought that it was not going to help her but made no further efforts to seek treatment for her psychological complaints. He noted that the plaintiff and her husband were aware that they had seen a psychiatrist (Dr Lee) who had made recommendations regarding psychological counselling and Dr Home was amazed that no treatment follow-up had been instituted given those recommendations.
Dr Home also expanded upon the plaintiff's sitting and standing tolerances of 10 to 15 minutes and said that that was very restricted. The plaintiff's disability relating to her physical complaints was surprising. He noted that she had said that she pressed buttons on the washing machine but her husband loads the machine. He went on to say:
"I can't think of another case in which a woman suffering from spinal pain has said she is not able to put clothes in a washing machine. There was a high level of disability, one would say, in relation to her presentation."
He went on to say:
"I would say that it is very unusual history in someone without obvious evidence of a very severe spinal injury. This lady has not had a spinal fusion or she hasn't got a prolapsed disc compressing two nerve roots or something like that. She has, on objective findings, a fairly good range of movement … ."
Dr Home was further questioned about the inconsistencies in the plaintiff's presentation and the poorly localised tenderness. He said that normally in patients with organic pathology there is an area of the spine in which there is tenderness elicited. In this case the tenderness extended beyond that and to areas that would not normally be tender in a person with a back problem. He said it raised the issue of anxiety or other factors contributing to presentation.
In relation to the shoulder, he acknowledged that direct trauma to the shoulder could cause a contusion of the bursa. He said that an injection in that area would lead to alleviation of the problem. He thought there was a very good chance, perhaps 70 to 80 per cent likelihood, that a single injection, or certainly two injections, would have alleviated the shoulder pain.
Dr Home was also shown the video of the plaintiff of 9 and 16 September 2003. In seeing the same he gave evidence that there was a capacity to work and based on the video, taking into account the objective findings and rejecting some of the veracity of the subjective complaints that had been reported to him, the plaintiff was fit to work as a courier. However, he did qualify that by noting that she was not driving and so would have to ask if there were some reason why she was not driving. Nevertheless, from a physical viewpoint she showed the capacity to do the courier work.
Dr Nicholas Anastas was called on behalf of the defence. He had seen the plaintiff on 3 October 2005 and produced a report of the same date which became Exhibit 19L(1). Annexed to it as 19L(2) was a list of complaints handed to him by the plaintiff.
The report followed a usual format of history, treatment and complaints which was obtained from the plaintiff. Mr Anastas then went into his examination and noted similar inconsistencies to other medical practitioners in relation to straight leg raising. He also carried out further tests. The plaintiff complained of upper back discomfort with axial compression and lower back discomfort with simulated rotation of her spine. Dr Anastas in examination said that neither of these tests should cause pain in the spine.
After viewing the radiology material Dr Anastas diagnosed soft tissue musculo-ligamentous injury to the cervical spine, aggravation to mild pre‑existing degenerative changes in the thoracic spine and aggravation to pre‑existing asymptomatic degenerative changes in the lumbar spine. He also noted a bursal impingement at the right shoulder.
Mr Anastas, in his report, expected the injuries to lessen and resolve in time. The plaintiff needed a program of neck exercises and lower back exercises which could be done independently and at home. She should continue with simple analgesics and anti-inflammatory analgesic gel to the tender areas. He also recommended injection of the bursa of the shoulder.
In his report Dr Anastas noted that the inconsistencies on examination suggested symptom magnification and that the plaintiff's incapacity was not as great as she perceived. He thought she was fit to engage in a graduated return to work program towards engaging in her pre-accident duties. Graduation was required because of body deconditioning and not because of her injuries. The plaintiff should lose weight.
Dr Anastas's prognosis was that, there being a natural tendency for the body to heal itself from injuries such as this, the plaintiff would improve with further time and would not be left with a permanent disability of her cervical spine, thoracic spine or lumbosacral spine as a result of the accident. He did not think that the plaintiff needed to see her GP as appropriate medication, ibuprofen, Voltaren gel and Finalgon cream can be purchased without prescription.
Under examination Mr Anastas was asked about the development of symptoms in her spine irrespective of the motor vehicle accident. He said there was a distinct probability that she would have developed symptoms in her lower back but the accident was responsible for accelerating the onset of symptoms. As to when these symptoms might have arisen he was unable to say with any certainty. Under cross-examination he said that it was more likely that the plaintiff would have become symptomatic in her back. Now that it is symptomatic, that it is related to the accident. Nevertheless, he said that the aggravation to the degeneration would have ameliorated with time. Again he could not give any firm indication as to when that might be. He thought that 20 years was excessive.
In relation to the problems of the right shoulder Mr Anastas said the plaintiff could probably do housework duties but that activities involving repetitive right arm movement and reaching above her head would need to be done in stages.
Orthopaedic surgeon, Dr Desmond Williams, saw the plaintiff on 14 December 2006 at the request of the plaintiff's then solicitors and produced two reports dated 19 December 2006 and 2 January 2007 which became Exhibit 19O. The latter is a report on further x-rays carried out at the request of Dr Williams.
Dr Williams' report follows a similar format to the reports of the other orthopaedic surgeons in this matter. He said that the right shoulder symptoms would benefit from an injection of steroid and the plaintiff also required assessment by a clinical psychologist and perhaps a psychiatrist. He noted that the plaintiff had ongoing problems and had only one physiotherapy treatment and one chiropractic treatment. He noted that she has disability to a mild degree in her cervical spine, moderate degree in her thoraco-lumbar spine and a significant degree in her right shoulder. She needed intensive rehabilitation efforts in physical and psychological areas.
Dr Williams was of the view that there was no evidence that the accident had led to progression of her clearly established pre-existing degenerative changes in her spine. On that latter point, under examination, Dr Williams found that there was essentially no change in the pathology between the earlier x‑ray series and the series that he had requested in December 2006. He said there wasn't a progressive arthritis related to her injury which was largely soft tissue with pre-existing pathology present.
In relation to the degenerative changes in the plaintiff's spine, Dr Williams thought that it could become symptomatic irrespective of the accident in five to 10 years but that depended upon any particular stress incident that could precipitate symptoms and the plaintiff's physical condition and protection that she might give to it. However, he also acknowledged under cross‑examination that she might not become symptomatic until she reached her 60s or 70s.
As to the right shoulder Mr Williams was also of the view that bursitis has the potential to resolve with an injection of steroid. He said there was a very high level of good recovery and shoulder function – well over 90 per cent. The shoulder pain would be relieved. He said there was no risks with the procedure.
On the question of rehabilitation Dr Williams said:
"I just was amazed that this patient had had such limited treatment over this long period and I have mentioned the shoulder injections as a first option in treatment which would free up the shoulder and give pain relief and allow better efforts in rehabilitation with programs such as swimming. I also saw a need for a significant weight reduction, a fitness program generally and I'd recommend techniques such as yoga with stretching and pilates and light gymnasium schedules. This sort of physical rehabilitation program hadn't been presented or followed."
Dr Williams was then asked:
"If it had been soon after the accident, what is your opinion as to the likely progression of the plaintiff's problems?---We see her injuries as largely soft tissue injuries and soft tissue injuries have a time frame of recovery and with an appropriate physical rehabilitation program that recovery usually comes in a three to six to 12 months period following injury. This hasn't happened. I was seeing a patient who was some three years down the track from injury with virtually no effective rehabilitation management strategies put in place."
"If appropriate strategies had been put in place, soon after the accident, how long would you have expected it to be before her symptoms would have ameliorated?---I have said that some symptoms resolve in three, some in six and some in 12 and in very unusual circumstances, there would be a period of 18 months where there would be some residual symptoms. I also said in this report that even though we are three years down the track, it's not too late to start … there would be a similar plan that you take three to six to 12 to 18 months to see the residual symptoms peel off."
When asked whether or not the symptoms were seen to be as permanent residual disabilities, Dr Williams said:
"I believe that if she had adequate rehabilitation, these levels of disability would significantly resolve."
The cross-examination, in criticism of the plaintiff's general practitioner, Dr Williams said that a general practitioner should be doing these basic steps (of rehabilitation) and if he is uncertain, he should be turning to help within the time frame of three to four years.
Dr Williams said, in further questioning from me about rehabilitation, that it would be reasonable to expect somebody in the plaintiff's position to undergo rehabilitation. He said that the basic fundamentals of treatment hadn't been initiated.
The plaintiff, having complained of diminution in sexual activity, was sent by her solicitors to see Dr Stephen Adams a specialist in the field of sexual health. He produced a report dated 1 January 2007. It could be reliably inferred from the timing of the report that it has been prepared for the purposes of these proceedings, rather than for the purposes of initiating any particular treatment for the plaintiff. His report became Exhibit 19B.
The doctor noted a complaint of high levels of anxiety, reaching an almost "phobic degree regarding driving to the extent that she had not driven since her accident". He also noted a disturbance, depression and post traumatic stress disorder. The history given to the doctor was that of pre-accident intercourse of approximately five times a week but post-accident there had been no sex at all. The plaintiff attributed this to a fear of provoking neck and back pain and a change of dynamic between the plaintiff and her husband.
Dr Adams carried out an examination of the plaintiff and concluded that the larger part of the plaintiff's sexual dysfunction was associated with a change in psychological state and the dynamic of the relationship. She said she no longer feels a sexual person or sexually attractive, although she is able to function normally from a purely physical perspective.
In examination he associated the accident and the present state of dysfunctioning. He said there was a chronological relationship between the prior history of normal sexual function and changes post-accident.
The final medical report produced in this case was from Dr Boon Loke, a psychiatrist. Dr Loke produced a report dated 10 January 2007 and again it can be reasonably inferred that this was prepared for the purposes of the action rather than for the purposes of providing any treatment for the plaintiff. That report became Exhibit 19E.
Dr Loke examined the plaintiff on 18 December 2006. He noted that at the time of the accident the plaintiff was "shocked" and "scared" and thought she was "going to die". He noted that since the accident she had not driven a car and had recurrent dreams of being "maimed or mangled" in an accident. She had nightmares, panicked and screamed in a car. She often argued with her husband before taking trips in the car. She said her life had changed and she did not feel happy and did not see a future for herself and claimed to have a lot of suicidal thoughts. She believed that she was not going to recover from her pain but it would get worse. She was "touchy and grumpy". Her sleep was restless and she tossed and turned. Her concentration was bad.

Dr Loke diagnosed post traumatic stress disorder in accordance with DSM‑IV. He noted that the plaintiff was taking antidepressant medication, that she had had two sessions with a psychologist but was not having ongoing psychological treatment.
Dr Loke said that the plaintiff's post traumatic stress disorder had taken on a chronic course and she remains significantly disabled by her phobic avoidance of driving and going out without company. He said she was totally unfit for work as a courier owner-driver since the motor vehicle accident of 13 February 2003 and that her psychiatric symptoms and disability were likely to persist into the foreseeable future and she would be unable to return to work as a courier owner-driver.
Under examination in relation to the plaintiff's occupational function Dr Loke noted that the plaintiff had told him that she could not drive and that her business of a courier had folded up after the accident.
As to treatment, Dr Loke said this could include some exposure therapy called desensitisation. He said that that was the key element in relation to overcoming or reducing her problems. Antidepressant medication would play a useful role.
When asked whether it was reasonable behaviour for the plaintiff only to have gone for two sessions with a psychologist he suggested that if he was treating the plaintiff, he would advise that it would be worthwhile to consider seeing another psychologist. He said there was a degree of matching required and that the type of therapy that was being given to her involving touching and saying certain words maybe was not convincing her that it was a treatment that could be helpful. He thought she should have more treatment.
Dr Loke thought that the plaintiff's symptoms were moderate in severity and perception of pain was affected by anxiety and depression and that Mrs White did have anxiety and depression.
Dr Loke was shown the video film of the plaintiff and was asked if there was anything about her demeanour in the film which was consistent with somebody who was as anxious as the plaintiff said she was. Dr Loke said he could not determine just by looking at the video. However, he was asked to agree with the proposition that the plaintiff was getting in and out of a vehicle and her demeanour appeared to be that of a normal person doing that. He agreed that that appeared to be the case. He also agreed there was nothing in the video which would indicate any panic or anxiety.

Mitigation

In his defence, the defendant has pleaded:
"5. Further, if the plaintiff suffered from the alleged or any injuries (which is denied) by 11 July 2003 she had recovered or sufficiently recovered from those injuries so as to enable her to resume her pre-accident occupational and leisure activities and, in the premises, the plaintiff has failed to mitigate her damage.
Particulars
The plaintiff has failed to make any or any reasonable attempts to resume her pre-accident occupation or to secure employment at any time since the accident."
Whilst in that pleading is not specifically pleaded by the defendant that the plaintiff had failed to mitigate her loss by undergoing medical or rehabilitative treatment the case was run, at least in part, on that basis and I am prepared to deal with the matter on that basis as coming within the plea that the plaintiff had "failed to make any or any reasonable attempts to resume her pre‑accident occupation… ".
The law is clear that the plaintiff has a duty to take all reasonable steps to mitigate her loss consequent upon the breach of duty on the part of the defendant. It is also clear that the onus of proving such failure to mitigate rests upon the defendant: Wakim v McNally (2002) 121 FCR 162.
In Kalavrouziotis v Howel & Anor (unreported; FCt SCt WA, Library Number 980219; 1 May 1998) Wheeler J, with whom Kennedy and Wallwork JJ agreed, said:
"It is clear that the learned trial Judge correctly stated the law in relation to failure to mitigate. The core issue was the reasonableness or otherwise of the appellant's refusal to return to work for work hardening. As her Honour observed, the test for reasonableness is an objective one, but depends upon personal characteristics, including the worker's state of knowledge at the time; Fazlic v Milingimbi Community Inc (1982) 150 CLR 345, Fontaine v Quality Platers (1995) 12 WAR 71."
In Plenty v Argus [1975] WAR 155 Burt J (as he then was) noted at 158:
"In all the personal injury negligence cases so far reported, it appears to have been established on the balance of probabilities both that the plaintiff had acted unreasonably and that had the operation been carried out, the incapacity would have been removed or reduced to a certain degree. In such cases the onus is discharged on either view with the result that damages are assessed 'as they would properly have been assessable if he had, in fact, undergone the operation and secured the degree of recovery to be expected from it'."
His Honour then went on to ask whether the defendant can discharge the onus of proving that the plaintiff had failed to mitigate damage by showing that the advised operation or treatment carried with it but an even or a more remote chance of a cure, partial or complete. His Honour went on to say:
"If the injury untreated would cause a high degree of incapacity and if the advised treatment represented a chance, although the measure of the chance being even or less than even, of a complete or significant cure there being no risk that by the treatment the condition would be made worse, there would appear to me to be no reason why it could not be held that the plaintiff in refusing the treatment had acted unreasonably and had failed to mitigate his damage … The question, however, is not whether the treatment is reasonably likely to be successful but whether the plaintiff acted unreasonably in refusing to submit himself to it … For present purposes I am only concerned to say that in my opinion proof that he so acted and that he had thereby failed to mitigate his damage is not necessarily to be denied because the defendant is unable to establish on the balance of probabilities that the treatment would be wholly or partly successful."
It is also well established that a plaintiff is entitled to recover the reasonable costs of attempting to mitigate his or her loss and related to that issue is whether the plaintiff is obliged to spend money in order to mitigate the loss. That has been answered in the affirmative; see e.g. Matters v Baker [1951] SASR 91. The question of the plaintiff's personal financial means is a factor in considering the reasonableness or otherwise of the plaintiff's conduct.

Finding on Injuries and Disabilities

The medical evidence supports a finding that as a result of the accident the plaintiff sustained severe bruising to her left breast and chest and to the abdomen. This was patently obvious as it could be seen by Dr Sam. At that time she had also complained of pain between her shoulder blades, headaches and cut to the right knee. She also complained of pains in her neck, upper back and lower back. Subsequently she has developed the bursitis in the right shoulder and this is demonstrated on radiology.
I find based on the preponderance of evidence, including radiological evidence, that the plaintiff did have pre-existing degenerative changes in her thoracic and lumbar spine.
The accident in which the plaintiff was involved was a significant collision. As a result, apart from the bruising to the chest and abdomen to which I have referred, I find that the plaintiff did suffer soft tissue injury to the cervical spine and injury to her thoracic and lumbar spine which aggravated that pre‑existing condition so that the condition which had been asymptomatic became symptomatic. Again, this is the preponderance of the evidence given by the medical practitioners and acknowledged by Mr Anastas in his report of 3 October 2005.
The difficulty in this case is making an assessment of the extent of the disabilities of the plaintiff arising from those injuries. According to the plaintiff the injuries have been far-reaching and she has continued with medical consultations over a long period. Before making any findings in relation to the extent of the plaintiff's disabilities it is necessary for me to say something as to her credibility.
There was the suggestion by Drs Anastas and Home that there is symptom magnification or non‑organic factors coming in to play in relation to the plaintiff's condition. Further, a number of doctors have noted inconsistencies in the plaintiff's presentation during the course of examination. It is not necessary for me to repeat those here as they are dealt with elsewhere in these reasons.
The plaintiff claims to have suffered psychologically as a result of this accident and suffers post traumatic stress disorder. Nevertheless, apart from two visits to a psychologist, she has not sought further treatment. She claims that she is depressed but, nevertheless, told Dr Home that the treatment that she was receiving from Dr Semmens was such that she could not "stop laughing". The plaintiff was well aware of advice given by psychiatrists and others that she should seek psychiatric or psychological assistance for her depression.
During the trial a video was shown to the plaintiff and to various doctors. The plaintiff described to Dr Lee, in September 2003, that she had been unable to drive because of a "paralysing fear of driving and being in a car". The video shows the plaintiff on 9 and 16 September making deliveries with her husband in the courier business that he took over from her shortly after the accident. She made no mention of this to Mr Lee nor, apparently, to Dr Sam who she also saw shortly after those days. Whilst the plaintiff was not seen to be driving the vehicle, the doctors agreed that she did not appear to demonstrate any signs of distress.
Apart from these occasions shown on the video, which the plaintiff suggested were of short duration and limited to those two occasions, the plaintiff subjected herself to weekly visits to Dr Sam. Her husband drove her. The journey was 20 minutes each way.
All of the foregoing leaves me an uneasy feeling as to the extent of the plaintiff's ongoing disability. I find that she is not as seriously incapacitated as she would have the Court and the various doctors believe. However, there is the evidence of Drs Anastas and Williams to the effect that soft tissue injuries of the type sustained by the plaintiff do have a tendency to heal within a relatively short space of time and I accept that evidence. Further, I accept the evidence of Dr Anastas that the aggravation that the plaintiff sustained to the pre-existing degenerative changes to her spine would or should have ameliorated over time and ceased to play a role in her present presentation.
There was some speculation as to, but for the accident, the period of time within which the degenerative changes to the plaintiff's spine might have become symptomatic so as to affect her working and leisure activities. In view of my findings on the plaintiff's credibility, it is not necessary for me to speculate further as to when this may or may not have occurred.
There is no doubt the plaintiff sustained physical injuries in this accident of the type that I have described. I am also satisfied that the injury to the right shoulder, whilst not noted initially, was on the balance of probability caused by the accident and probably the force of the seatbelt on the shoulder. It appears that that became symptomatic some time late in 2003.
In my view of my findings in relation to the plaintiff's credibility, I find that the physical injuries sustained by the plaintiff could not be classified as any more than mild to moderate.
This was a significant accident and the psychiatric evidence and that of all of the other doctors treating the plaintiff or reviewing her is that there are some psychological features. It has been described by the psychiatrists as post traumatic stress disorder. I find that there were psychiatric consequences as a result of this accident. I also accept that, to some degree, this may be the cause of the plaintiff giving up her job as a courier drive. I will return to this later. Whilst I find that there is some psychological problem arising from the accident, I do not accept that it is as serious as the plaintiff makes out. I accept Dr Lee's evidence in preference to that of Dr Loke in relation to the video of the plaintiff. He had seen the plaintiff at that time, whereas Dr Loke had only seen the plaintiff early 2007. Dr Lee was clear that he would have expected to have seen some kinds of agitation in the plaintiff in the video and thought that the video did not support the conclusions in his report.
It is necessary for me to consider whether or not the plaintiff has failed to mitigate her loss in relation to non-pecuniary aspects of her claim.
I accept the evidence of Drs Home and Williams that the injury to the plaintiff's shoulder could, with a high degree of probability, be cured by a simple procedure. It is a procedure that carries with it no risk to the plaintiff.
So far as the psychological injuries are concerned, whatever residual psychological problems there may be, I find that the plaintiff could have been assisted by psychiatric or psychological intervention. She has received advice in relation to this and she has failed to take that advice.
In considering the other matters relative to mitigation, the plaintiff was not working after the accident and so no question arises of having to take time off work for treatment. So far as the cost is concerned there seems to be no dispute on the part of the defendant that such treatment is reasonable and ought to have been undergone. Whether ICWA would have paid for it at the time is not clear upon the evidence but certainly it would have been treatment that would have formed part of the plaintiff's special damages. Further, as it was ICWA's own doctors who were advising treatment of the plaintiff, it could hardly be seen to refuse to pay for such treatment. Alternatively the plaintiff could probably have claimed the cost on Medicare.
There is little evidence of the plaintiff's inability to pay for this treatment, although I do note that the plaintiff and her husband had incurred substantial pharmaceutical costs which they had had to pay.
I find that the plaintiff has unreasonably refused to undergo medical treatment both of a physical and psychological nature which would, so far as her shoulder is concerned, have more than probably alleviated the problem and so far as the psychological symptoms were concerned, there would have been a good chance of some amelioration of those symptoms.
Having dealt with that it falls for me to make an assessment of the amount of damages to be awarded to the plaintiff for non-pecuniary loss as a proportion, determined according to the severity of the loss, of the maximum amount that may be awarded; Motor Vehicle (Third Party Insurance) Act 1943 as amended, s 3C(2). The maximum amount may only be awarded in a most extreme case (s 3C(3)).
Having regard to the injuries sustained by the plaintiff, having made allowances for exaggeration or symptom magnification and for the plaintiff's failure to mitigate, I find that an appropriate percentage of a most extreme case would be 15 per cent. After making an allowance for the appropriate deduction, that would leave a figure for damages for non-pecuniary loss at $27,850.

Economic Loss

I have already noted as part of the background details of the plaintiff's work at the time of her accident. I noted that within a matter of days of the accident she gave up the business and transferred it to her husband. His evidence was that he had to take it back straightaway, otherwise the business would be lost.
The plaintiff produced a bundle of invoices and payment receipts from Linfox. She also produced taxation returns for years ended 30 June 2002 and 30 June 2003. Without doing some audit of the invoices and payment receipts from Linfox it is not possible for me to determine the true level of income of the business from May 2001, when the plaintiff took over the business, until 30 June 2001.
Apart from the taxation returns there were no other financial statements in the way of profit and loss statements or balance sheets provided. The taxation return for the year ended 30 June 2002 shows that the plaintiff had a total business income of $18,338. The business in that return was described as "courier service". The return showed expenses of $8,766 made up as to $3,956 depreciation expenses, $2,494 motor vehicle expenses and $2,316 for all other expenses. This resulted in a net income for the business of $9,572 or $184 per week. The return showed that the depreciation expenses were in respect of the plaintiff's Daihatsu motor vehicle. According to the return, this had been acquired on 10 August 2001 at a cost of $17,182. In that year the rate of depreciation was 22.5 per cent per annum giving a depreciation in that year of $3,442. In addition the plaintiff claimed depreciation on a computer said to have been acquired on 20 December 2001 for the sum of $3,600. That was depreciated at 27 per cent per annum giving a depreciation in that year of $514. This accounted for the total depreciation claim of $3,956.
The taxation return also showed motor vehicle expenses for fuel $1,216, registration and insurance $695, repairs $201, and sundry items $382. Other expenses in the way of bank charges, government charges, printing and stationery, protective clothing, sundry expenses and telephone expenses were also claimed.
Given that this return was for a full year, one can see in that year the income after expenses and before tax averaged $184 per week.
The tax return for the year ended 30 June 2003 showed a total business income of $15,825. However, this was not for a full year. The accident occurred on 13 February 2003 and the plaintiff did not work in the business thereafter. Accordingly, it represents some 7.5 months of the year.
Attached to that return is a "Main Business Schedule" which shows the receipts from the business to be $13,384 and added to that a notional income of $2,441 being an adjustment in respect of depreciation on the motor vehicle. A depreciation worksheet shows that the vehicle was disposed of on 21 February 2003 for a consideration of $16,181. The depreciated amount had been $13,740. Accordingly, there was an add back for depreciation that had been overclaimed. The return showed only one item of expense, namely accounting fees in the sum of $120.
The plaintiff's explanation for there being no expenses shown in this taxation return was that her husband had said not to keep dockets because he was too busy and he did the tax return. In evidence he said that he had done the tax return for the first year "pretty well" and that in the second year decided not to keep the receipts and "will do the extra tax at the end of the year".
It can be seen that the trading income for the year ended 30 June 2002 (before expenses) was $18,338 or $352 per week. The trading income for the year ended 30 June 2003 was, for the period to 13 February 2003, $13,384 or $411 per week. Accordingly, not making any allowance for any seasonal adjustments that may occur, it appears that in the first 7.5 months of the second year of trading the business had improved.
Nevertheless, it is necessary to look at the evidence critically to try to see to what extent the plaintiff was exercising her capacity. In evidence when asked whether she had any idea of the amount of money that she might have received after expenses in the year ended 30 June 2003, the plaintiff replied "Not really".
It seems to me that the plaintiff would, necessarily, have incurred expenses in earning her income. Some of the expenses shown in the 2002 return might not be recurring, for example, the government charges for the business name. Another charge that might not be recurring each year was the protective clothing. In trying to make an assessment of the extent to which the plaintiff did exercise her earning capacity, I must make certain assumptions as to the expenses. For example, as the income is not too dissimilar, I would imagine that similar amounts of fuel would be used in earning that income. There may be some fine adjustments to be made for increases in rates of remuneration or cost of fuel etc but those would be matters of speculation which I cannot go into. However, it is probably fair to assume that, at least in the short term, depreciation expenses would come down as the rate of depreciation bites on an ever reducing capital base.

Nevertheless, in view of the plaintiff's unsatisfactory record keeping I find, on the balance of probability, that in the year ended 30 June 2003 the plaintiff earned, before tax, an amount per week slightly above that which she earned in the year ended 30 June 2002 (that is to say $184 per week) and find this to be in the order of $200 per week.
The plaintiff said, in cross-examination, she had tried to go back to work a couple of times with her husband. In re-examination she said that her husband had insisted she do that as he wanted to get her out and that he might be able to get her back into the work. That was confirmed by her husband.
Dr Home, in his evidence, noted the plaintiff's sitting tolerance of 10 to 15 minutes. He noted that that was an unusual history of someone without obvious evidence of a severe spinal injury. He thought that she would be able to be placed in sedentary work. He said that in relation to her previous occupation as a courier driver it would be difficult for her to work as a courier driver with a sitting tolerance of 10 to 15 minutes. He said that relying on her veracity of complaints, she was incapacitated for work. If her sitting tolerance was longer, then she could work as a courier driver. He agreed that if she could not drive, then that would affect her capacity to work as a courier driver.
Dr Home further said that the bursitis in her shoulder would not affect her capacity to work as she is able to carry parcels below shoulder height which was demonstrated on the videotape. He was further asked in cross‑examination about the position of persons over 45 years of age in the workplace and he said that it was pretty good.
Dr Anastas, in his evidence, was of the opinion that at the time of his examination (October 2005) the plaintiff would have been fit to return to work on a graduated basis. This return was graduated because of her deconditioning and not because of her injuries. He went on to say that a graduated return program ought to be over a two month period.
Mr Batalin, who saw the plaintiff on 11 July 2003, was also of the opinion that the plaintiff should look at a graduated return to work trial with some limitation, namely the avoiding of lifting heavy objects or working in confined spaces.
I find that immediately after the accident the plaintiff was incapacitated for work by reason of the injuries that she sustained. Nevertheless, I am not satisfied that, in respect of the physical injuries, that incapacity extended for any considerable length of time. For example, the video shows that in September 2003 the plaintiff was able to assist her husband in carrying out his duties as a courier. It is significant that on neither occasion did she mention this fact to the doctors that she saw about those times, namely Dr Sam and Dr Lee.
Accordingly, I find that by the beginning of September 2003 the plaintiff had regained her capacity for work in a physical sense. There is no doubt, and I have so found, that, as a result of the accident, later in that year her right shoulder became symptomatic. The extent to which that would have affected her ability to carry out her work is problematic. Dr Home felt that it would not have a significant effect upon her. In any event I have found that medical treatment of an appropriate nature would have, in all probability, alleviated the symptoms. Nevertheless, there may have been a period of time when the plaintiff would have been incapacitated for work whilst undergoing that medical treatment and recovering from it. Unfortunately I was not provided with any information as to how long such a recovery period would have been.
One of the difficulties in this case is that the plaintiff gave up her courier business almost immediately after the accident and handed it to her husband otherwise, according to him, the business would have been lost. I accept that that may well have been the case. The plaintiff was engaged by Linfox on a subcontract basis and the likelihood is that if the plaintiff could not do the work, it would be given to others. Nevertheless, there is no reason why, after the plaintiff had recovered from her physical injuries she could not have recommenced the business. In effect it seems to me, that her husband could have been the caretaker of the business in the interim.
Whilst that deals with the physical aspects of the plaintiff's ability to work there is still the question of the psychological impact. I have found that the plaintiff could have been assisted by psychiatric or psychological intervention and that she had received advice in relation to this and had failed to take that advice. It is difficult to assess for what period the plaintiff may have required that treatment. Dr Lee in his report, having seen the plaintiff in September 2003, noted that her symptoms had been persistent and disabling for over half a year. He said that pharmacotherapy in combination with psychological treatment offered the best treatment outcome. He supported the continuation of effective pharmacotherapy for 12 months and psychotherapy for 6 months. He estimated that she would need four to six sessions with a psychiatrist and nine to 12 sessions with a clinical psychologist. Whilst he documented that proposed treatment regime, he did not indicate when, within the period of that treatment, the plaintiff might be likely to be able to return to driving.
Notwithstanding that evidence, it is to be remembered that having seen the video he was not so sure of his conclusions in his report.
Dr Lee, in observing the video, said that he did not see any objective signs of distress in the video but could not tell whether or not she was feeling scared. Nevertheless, the plaintiff failed to tell both Drs Sam and Lee that she had been working on the days close to when she had seen them. I take this omission into account when considering the degree to which the psychological effect of the accident has impacted upon her capacity to work. Even if I accept that at September 2003 the plaintiff, whilst being able to be a passenger in a motor vehicle to assist her husband and travel every week to the doctor, was still unable to face driving, I find that on the balance of probability by the end of the year, had she engaged in appropriate treatment, she ought to have been able to have returned to work in her previous capacity.
In the circumstances I am prepared to find that, so far as past loss of earning capacity is concerned, the plaintiff was incapacitated from the date of the accident until the end of 2003. Given that the injury to the shoulder only became symptomatic at the end of 2003 and allowing for a period to recover from treatment in respect of the same, I would extend the period of incapacity through to February 2004, that is to say a total period of one year after the accident.
So far as future loss of earning capacity is concerned, in view of my findings I am not able to accept that the plaintiff has lost her earning capacity for the future. I return to my findings in relation to the plaintiff's failure to mitigate her damage. I find that had the plaintiff undergone reasonable and proper treatment, both in respect of her physical and psychological injuries, the probability is that she would have recovered sufficiently to be able to return to and remain in the workforce.
In the circumstances I make no award as to future economic loss. In doing so I have had regard to the plaintiff's position in the labour market to see whether or not the prospects of obtaining employment have been affected by her injuries and I find that they have not.
Based upon the analysis of the plaintiff's income and taxation returns I have found that her pre-accident earnings, before tax, were approximately $200 per week. After tax, this would give a figure of approximately $183 per week. Allowing for one year's loss of earning capacity from the date of the accident results in a figure of $9,516.
I would be prepared to allow interest on the sum of $9,516 at 3 per cent for the first year during which the loss was being incurred. At the end of the first year the total loss is crystallised and I would allow interest at 6 per cent thereafter. This gives a total interest component of:
One year at 3 per cent         $ 285.00
Approximately 3 years to date of trial at 6 per cent   $1,713.00
Total for interest  $1,998.00

Gratuitous Services

The plaintiff claims damages for services rendered by her husband. The plaintiff says that since the accident she does very little in the way of household duties. She puts the washing into the washing machine and switches it on but her husband has to hang it out. She does a little bit of cooking, sitting on a stool to chop vegetables and the like. Her husband does all of the other household chores and she does virtually nothing. She was unable to say how many hours he put in. The plaintiff's husband, when asked what she does on a daily basis since the accident, said that she is virtually reclusive since. He said that he did the vacuuming and the household duties. He so said that he carried out grooming for her – cutting her toe nails, shaving her legs.
It was agreed between the parties that should I make an allowance for the cost of gratuitous services I could calculate the same at a rate of $12 per hour. The plaintiff in her schedule of damages admitted that an appropriate rate would be five hours per week for the past and into the future.
Section 3D Motor Vehicle (Third Party Insurance) Act 1943 provides:
"This section limits the damages that may be awarded for the value of gratuitous services of a domestic nature or relating to nursing and attendance that have been or are to be provided to the person in whose favour the award is to be made by a member of the same household or family as that person."
Section 3D(6) provides:
"If the amount of damages that may be awarded under subs (3) or (5) is Amount D or less, no damages are to be awarded for the value of the services provided or to be provided."
Amount D is fixed at $5,000.
In view of my findings in relation to the plaintiff's injuries, in particular her physical injuries, I find that in the early stages after the accident it was probable that the plaintiff would have required some assistance around the house from her husband. After all she had suffered severe bruising and soft tissue injuries. However, given what has been shown in the videotape, by September 2003 the plaintiff appears to have recovered sufficiently to be able to go out on the courier run (even if only on a trial basis). That being the case I see no reason why she could not carry out her domestic duties and attended to her own personal needs. If I were to allow five hours per week as suggested by the plaintiff, and in the early stages that may not be unreasonable, I would not allow the same past September, that is to say that it would be limited to a period of seven months or 30 weeks. Allowing five hours per week at $12 results in a figure of $1,800.
I find that there is no need for further services beyond September 2003 and accordingly, the figure calculated coming below the threshold as provided for in the Motor Vehicle (Third Party Insurance) Act, I make no award under this head.

Special Damages

The plaintiff claimed for a new bed, mattress and pillows. She said her old bed was 5 to 10 years old. She said the new bed had been recommended by the doctors. There was no evidence in support of that requirement. Accordingly I make no allowance in respect of the same. The plaintiff also claimed for a back massager, foot rest and a "hotty pack". Whilst I am prepared to accept that the hotty pack obtained from Inglewood Pharmacy might be of some assistance to the plaintiff, there is no evidence before me to show that the plaintiff needed the back massager or the foot rest. Accordingly, for these aids I only allow for the hotty pack the sum of $14.95.
The plaintiff also claimed medical expenses. The plaintiff was sent to Mr Stephen Archer, an oncologist, to be checked in respect of the pain in her breast to rule out the possibility of cancer. It seems to me that that was a reasonable investigatory step to take given the plaintiff's injury to her chest and I would allow the claim in that regard in the sum of $190.
The plaintiff also claims in respect of Dr Steven Adams the sum of $165. The plaintiff saw Dr Adams in December 2006 in respect of her sexual problems. It seems to me that the referral was more for the purposes of obtaining a medico-legal report rather than for treatment of the plaintiff. The plaintiff has not received any treatment and I would disallow this claim as a head of damage.
The plaintiff claimed the sum of $125 in respect of expenses to Perth Imaging. I would accept that this is a reasonable claim in the circumstances and allow the same. There was also a claim for $50.90 in respect of SKG for the mammogram that she underwent. Again on the basis that the investigation of the breast problems was reasonable, I would allow this sum.
There is a claim in respect of Botts Pharmacy in the sum of $1,698.70 for pharmaceuticals supplied. The amount of the account is not in dispute. The defendant says that the plaintiff has over‑indulged in medication and could also have reduced the cost by obtaining generic brands or over the counter medication. Whilst there may be some force in that argument, the fact is that the plaintiff has incurred this cost in managing her condition. Nevertheless, in view of my findings as to the plaintiff's failure to mitigate her loss, I would not allow the whole sum. Doing the best that I can I would allow $1,000.
There is another claim in respect of Inglewood Pharmacy for $7.95. I am unable to detect what this is for and do not allow the same.
The plaintiff also claims the sum of $1,561.90 in respect of Medicare Australia. Exhibit 20 is the Notice of Past Benefits from Medicare. It shows the amount to be $2,394.20. It is not immediately apparent to me, nor from argument that I heard, as to what part of that notice represents treatment afforded to the plaintiff as a result of this accident. Apart from investigations of the breast, the largest single item on the notice is in respect of Dr Sam for the period between 15 December 2004 and 26 October 2005 in the sum of $832.30. Given my findings about the plaintiff's failure to mitigate and again, doing the best that I can with the information provided, I would be prepared to allow part of this claim. I make a global award in the sum of $1,000 but decline to exercise my discretion to award interest thereon.

Future Medical Expenses

The medical evidence seems to suggest that the plaintiff will require some analgesia from time to time and perhaps anti-inflammatories. She has all along required some psychological treatment arising out of this accident and the need for the same probably continues to the present time.
However, given the plaintiff's presentation it is difficult for me to judge what level of future treatment the plaintiff may require. Apart from the psychological treatment, I would not be prepared to accept that she would require any ongoing medical attendances and her requirements are limited to a modest amount of pharmaceuticals.
I am unable to make any firm assessment as to the cost of the psychological treatment. Accordingly, in respect of future medical expenses and pharmaceutical expenses I award a global sum of $1,500.

Conclusion

In the circumstances I would allow the plaintiff;-
Non-pecuniary loss  $27,850.00
Past loss of earning capacity     $ 9,516.00
Interest thereon  $ 1,998.00
Special damages  $ 2,380.85
Future medical expenses  $ 1,500.00
Total$43,244.85
There shall be judgment for the plaintiff for the sum of $43,244.85.