Wild v Danks
[2009] WADC 33
•13 MARCH 2009
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: WILD -v- DANKS [2009] WADC 33
CORAM: DEANE DCJ
HEARD: 9-12 FEBRUARY 2009
DELIVERED : 13 MARCH 2009
FILE NO/S: CIV 1298 of 2007
BETWEEN: LEANNE MARIE WILD
Plaintiff
AND
MICHAEL ROBERT DANKS
Defendant
Catchwords:
Assessment of damages - Personal injury arising out of motor vehicle accident - Liability admitted - Whether any ongoing incapacity and/or residual disability - Fitness for work
Legislation:
Motor Vehicle (Third Party Insurance) Act 1943
Result:
Damages assessed in relation to general damages, past and future economic loss, superannuation, past and future medical expenses and treatment
Representation:
Counsel:
Plaintiff: Mr D R Clyne
Defendant: Mr G P Bourhill
Solicitors:
Plaintiff: Simon Walters
Defendant: Lavan Legal
Case(s) referred to in judgment(s):
Amaca Pty Ltd v Hannell (2007) 34 WAR 109
Fox v Wood (1981) 148 CLR 438
Jongen v CSR Ltd (1992) A Tort Rep 81‑192
Southgate v Waterford (1990) 21 NSWLR 427
DEANE DCJ:
Introduction
This matter concerns an assessment of damages. The defendant admits liability for a motor vehicle accident in which the plaintiff was involved on 22 February 2005. The circumstances of that accident are that the plaintiff was driving a motor vehicle in the course of her employment and was stationary at the intersection of Great Eastern Highway and Belgravia Street in Belmont. The defendant was driving a vehicle and in approaching that intersection failed to stop, so that a rear end collision occurred when it hit the plaintiff's vehicle. It is alleged that as a result of that accident the plaintiff sustained a soft tissue injury to the lumbar spine at L5‑S1 with radiation to the knee, right shoulder and hip injury, which injuries produced:
(a)pain, stiffness and tenderness of the lower back with pain radiating to the knee, right shoulder and hips;
(b)limitation of movements of the lower back with radiation to the knee, shoulder and hip;
(c)neck discomfort;
(d)spasms of the lower back;
(e)headaches and discomfort together with sleep disturbance.
It is to be noted that some of the alleged injuries pleaded such as bowel irritability, ear pain, visual disturbance and tightness in the hamstring anterior and groin pain were not the subject of specific evidence at trial and do not appear to be particularly pursued.
As a result of the alleged injuries the plaintiff has undergone a considerable range of treatment including physiotherapy, chiropractic treatment, an exercise rehabilitation program with a physiotherapist, Botox injections into the occipital area, ultrasound massages, pain management counselling, regular general practitioner reviews, intramuscular injections and the use of a TENS machine. In addition, the plaintiff has been prescribed a range of medications by various treating practitioners and health professionals as a result of which she has incurred cost and expense and suffered loss. That cost and expense has been met by either the defendant's insurer or the Commonwealth Health Insurance Commission but there is a range of expenses by way of special damages claimed by the plaintiff, those costs having been met by the plaintiff. Reference will be made to this aspect of the claim during the course of these reasons. It is further said that the plaintiff will continue to incur cost and expense with respect to medical treatment and management in the future and for that a global sum is claimed.
The plaintiff also claims for general damages, future medical treatment, past economic loss with interest, diminished perimeter of employment in the future and past and future loss of superannuation benefits with interest. There is no claim for gratuitous services, but considerable emphasis is placed on the issue of economic loss in this claim.
Whilst the defendant admits liability for the accident issue is taken with the severity and extent of the plaintiff's injuries and her alleged incapacity for work and, in particular, her incapacity to return to her pre‑accident occupation. The defendant submits that in the event that the plaintiff is found to have a reduced earning capacity it is of limited duration. Further, the defendant pleads that any injuries, loss or damage allegedly sustained by the plaintiff on 22 February 2005 were caused or, alternatively contributed to by injuries sustained in the motor vehicle accident on 25 August 1992, injuries sustained in a motor vehicle accident on 30 October 2001 and further, that the plaintiff relevant to the issues as they unfolded at trial had a pre‑existing history of migraines.
The evidence
The plaintiff was born on 9 December 1971 and at trial was 37 years of age. After completing Year 12 she completed a nursing degree at Curtin University where she achieved well academically. She is married with three children whose respective dates of birth are 26 August 2001, 19 October 2003 and 17 September 2006. The plaintiff worked as a nurse for a comparatively short period of time before moving into the area of sales of pharmaceuticals and medical supplies in approximately 1993 when she was employed by Astra Pharmaceuticals as a sales representative. She remained working in that occupation for approximately three years and in reference to the plaintiff's second book of financial documents, Exhibit 1, various letters from her employer attest to the plaintiff's considerable success and work ethic whilst in the employment of Astra Pharmaceuticals. The plaintiff then went to work for Medtronic Australasia, again selling medical equipment in her capacity as a manager for that organisation. Once more the plaintiff gave evidence that she was very successful in this regard, meeting her budgets and in fact at times exceeding them.
In approximately January 2000 as a result of her husband's employment the plaintiff moved to Albany and purchased a pet shop business, where although she worked long hours each week, the business was financially unsuccessful and was closed in early September 2001 with a large debt related to paying out a five year lease. By this time the plaintiff was pregnant with her first child and was offered a job with BOC Medical selling gases in both Western Australia and the Northern Territory. She commenced this job approximately five weeks after the birth of her first child having returned to Perth and again the plaintiff was involved in also selling surgical and medical equipment. The plaintiff continued to work for the next three years with BOC Medical and once more gave evidence that she was very successful in her role consistently finishing well ahead of budget. In that job in 2003, according to records before the Court the plaintiff's annual salary was $51,228 gross with accompanying superannuation benefits and a fully maintained company car. In addition, the plaintiff received bonuses in the form of vouchers from time to time with her employer paying any associated fringe benefits tax. Whilst the plaintiff enjoyed her job with BOC Medical she wanted to be more involved in the sale of surgical equipment and for that reason she took up employment with B Braun on an increased salary. In her new job the plaintiff was on a base salary of $61,000 per annum in her role as a product specialist. In addition, she received an all‑inclusive car allowance of $15,000 and was eligible for a commission of 12 per cent upon achievement of budget and an incentive of 3 per cent bonus for achievement of administration goals. Documentation before the court revealed a total package of $96,481 exclusive of bonuses. The plaintiff was set budget targets that she was expected to meet and in fact having commenced employment with B Braun in March 2004 in the first quarter of 2005 with a budget target of $184,043, the plaintiff achieved $213,418 worth of sales, which being in excess of her target entitled her to bonuses. Although the plaintiff was not eligible for the incentive bonus system during her first three months of employment, from 1 July to 31 December 2004 she received bonuses of $7,442.
In January 2002 the plaintiff and her husband had purchased their residential home in Booragoon but as things were progressing well financially, they purchased an investment property in Leeming on 19 January 2005 and this also funded the development of a property the plaintiff and her husband owned in Scarborough. On 6 May 2005 the Western Australian Planning Commission acknowledged the plaintiff's application to develop the Scarborough site as a triplex. During this period of time the plaintiff gave evidence that she was very committed to her career and advancing it, as she enjoyed working. As she was in essence the primary breadwinner for the family, her husband worked considerably less hours which permitted him to devote a reasonable amount of time to caring for the children and dealing with domestic matters in the home.
As previously noted, it was in the course of her employment with B Braun on 22 February 2005 that the plaintiff was involved in a motor vehicle accident with the defendant's vehicle. She described the impact as causing her vehicle to move forward a bit but it was not badly damaged, in the sense of the tow ball of her vehicle became enmeshed with the front bumper of the defendant's vehicle and there was no difficulty immediately following the accident in the plaintiff driving to consult her general practitioner, Dr Gild. She recalled experiencing neck and back pain immediately following the accident but had a relatively short period of time off work in February 2005 and from 18 April 2005 to 10 May 2005 for which she was paid $4,457.40 by way of workers' compensation. As her position with B Braun was very specialised involving the sale, setting up and demonstration where appropriate of neurosurgery equipment to various hospitals the plaintiff felt there was pressure for her to return to work as soon as possible.
She explained that the weight of some of the equipment because of its nature was sometimes in the vicinity of 20 to 30 kilograms. It had to be delivered to the plaintiff's home initially because it was very delicate and required checking before delivery to various hospitals by the plaintiff. The plaintiff's evidence was that the lifting and carrying of this heavy equipment after her motor vehicle accident became an issue in her employment, so that on 28 February 2005 the plaintiff sent an email to B Braun requesting that boxes containing equipment that was sent to her home which were over 5 kilograms in weight be marked with a heavy sticker. The plaintiff advised she had picked up a box weighing 13 kilograms causing her neck to spasm given that she was, in her words, "a little touchy" as a result of her accident the week before. Although B Braun attempted to accommodate the plaintiff's difficulties by allowing her to purchase a luggage trolley to move equipment it did not resolve the difficulties according to the plaintiff, because it still meant that she had to bend over and lift instruments from the trolley.
She continued to carry out her work but it was with some difficulty given the weight of various items of equipment the plaintiff had to move. In addition, the plaintiff said that she lost some part‑time assistance from another worker due to budget constraints and this resulted in the plaintiff working between 50 and 60 hours a week which was problematic for her.
As a sales representative for very specialised equipment, the employer required the plaintiff to complete annual tests confirming her product knowledge. The plaintiff was required to undertake such a test shortly following her motor vehicle accident. She scored 88 per cent of the required 100 per cent result and received a warning letter from the company to which the plaintiff replied by email on 31 March 2005 which is found at p 77 of Exhibit 1. Although the plaintiff's evidence as is apparent from that document was that she had been given the wrong information by management as to what study she should undertake for the test and that she had taken pain medication at the time of testing, she also pointed out that she was working very long hours as a result of company restructuring with a large territory to cover and that this was impacting upon her family life. The plaintiff advised that unless a workable situation could be reached she would reluctantly have to commence seeking employment elsewhere. She did not mention having taken pain medication prior to the examination, only that she had been given wrong information as to examination content. She did not put forward her symptomatology at the time of the test, being neck spasming leading to headaches and inability to clearly recall information, as a reason for her poor performance because the plaintiff suggested she wanted to present a positive façade to the employer.
The plaintiff was to travel to Sydney on 16 May 2005 for a week long product training session but due to the symptoms of pain she was experiencing at that time, following her accident, she was physically unable to do so and formed the view she could not perform her role to the level required. There was no prospect in the industry of her reducing her working hours and in all of the circumstances the plaintiff considered it best that she tender her resignation, which she did by email of 22 April 2005 giving three months' notice, pointing out that her territory was well ahead of budget for 2005. In the end the plaintiff's employment was terminated with four weeks' notice effective from 8 June 2005 but with her work ceasing on 22 May 2005.
The plaintiff's evidence was that despite her symptoms she wished to stay in the area of hospital sales, providing there were minimal travel requirements as driving caused her physical difficulties and further that there would not be a weight issue in relation to the products the plaintiff was required to handle. To this end the plaintiff said she was offered employment with Dansac, a division of Liberty Medical on a part‑time basis of 20 hours per week with a base salary of $31,200 per annum and a vehicle allowance of $7,700 per annum. This employer also offered a tapered incentive scheme if the plaintiff exceeded her designated budget. The plaintiff commenced this employment on 27 June 2005 and gave evidence that she was successful in her role with Dansac by for example, receiving a bonus payment of $2,667 for the period April to June 2006. The job at Dansac also had the advantage that the plaintiff was able to devote considerable time to undertaking a rehabilitation program following her motor vehicle accident as it had become obvious to her that her injuries were not settling as quickly as she would have hoped.
She had been referred by her GP, Dr Gild to Mr Ponchard, an exercise specialist, and she was undertaking as part of that program attendances at her local gymnasium, the Melville Aquatic and Fitness Centre, and she was also undertaking a specialised weights program. She had found whilst working with B Braun that her work commitments simply did not allow her the time to undertake the rehabilitation program as required.
Due to the decrease in the plaintiff's income she and her husband had to sell the property they had hoped to redevelop in Scarborough with settlement proposed for 31 January 2006. The plaintiff continued working at Dansac but difficulties arose in that over time there was an increased demand for the plaintiff to drive to country areas, aggravating her neck pain and further, given growth within the company, the plaintiff was asked to take over a role in developing sales within the Northern Territory which she felt physically she would be unable to undertake because of the long driving distances which would be involved. The plaintiff's evidence was that she developed significant neck pain if required to drive for more than 30 or 40 minutes and that on one occasion when driving to a social event in Mandurah without stopping to rest, she developed a migraine and had to attend a pharmacy to obtain medication. The plaintiff explained that she had experienced migraine headaches as a result of a thyroid condition unassociated with her motor vehicle accident, however she said medication resolved the problem and she did not suffer a recurrence of headaches until following her motor vehicle accident in February 2005. This is to be contrasted with the evidence of her GP, Dr Gild who said he had been treating the plaintiff since she was 23 years of age and he understood that she had a very long history of experiencing headaches.
Given the difficulties which arose the plaintiff decided she could no longer continue working for Dansac, even on part‑time basis and she would be best advised to obtain employment that would allow her to work despite her physical restrictions. To this end she sought advice from a careers counsellor and that is how she came to undertake study to qualify as a mortgage broker. During the course of her evidence the plaintiff stressed that given the very small and highly specialised nature of the pharmaceutical and medical sales business in Western Australia she was most anxious not to be seen as an employee who moved from one position to another and might as a result be considered unreliable. At this time the plaintiff was also pregnant with her third child and suffering an extreme amount of back pain so she took maternity leave in late June and did not return to Dansac's employment. She studied between July and October 2006 obtaining her mortgage broker's licence on 19 November 2006, at which time the Leeming investment property was also sold for financial reasons. The plaintiff experienced a period of feeling quite anxious and depressed because being unable to work as she had previously done, adversely affected her self‑esteem. For a short time she attempted to work in a nursing capacity at Hatherley Medical Centre between 24 October and 21 November 2007 for which she earnt the relatively modest amount of $1,355 minus $147 in tax.
Currently the plaintiff works on a part‑time basis from home as a mortgage broker and this allows her the physical latitude she says she needs to deal with her injuries. Nonetheless there are financial difficulties, part of which relate to problems the plaintiff encountered when monies a third party was supposed to pass on to her from a finance corporation did not eventuate. In the first year that the plaintiff worked as a mortgage broker as reflected in her 2007 tax return, her income from that work was $8,448, however the income appears considerably greater than that because there was capital gains from the sale of the Leeming property. According to the plaintiff's tax return for 2008 her total business income was $5,574 whereas her total expenses were $61,363 leading to a net loss of $55,631. The plaintiff estimates that she currently works on average 15 hours per week in her mortgage broking business as that is all she feels she can cope with given her symptoms.
The plaintiff has undergone a considerable amount of medical treatment according to her evidence, a large component of which is chiropractic. This relates to her neck injury in particular but also has been administered in relation to complaints not connected with the motor vehicle accident such as a fallen arch in her left foot. However, since the accident the plaintiff's evidence was she has attended a chiropractor for accident related problems and she has found it an effective treatment for pain relief in her neck and spine. In addition, she was referred to a pain specialist, Dr Gee as well as Mr Ponchard and further she has received Botox injections from Dr Berrigan, another pain specialist, which have been very effective as a nerve block and have given pain relief for up to six months, as compared to one month following an ordinary pain block injection.
Further, in relation to special damages, the plaintiff said she had been prescribed Lyrica by Dr Berrigan for fibromyalgia, which was of assistance in pain control. Dr Gild prescribed Mersyndol Forte for pain relief as well as Mimigran. The massage treatment was recommended by Mr Ponchard and it would seem that Dr Gild recommended acupuncture at one point in time. In relation to the exercise program recommended to the plaintiff, she said she needed to purchase an anti‑burst gym ball for her Pilates classes as well as walking shoes for exercise and, it would seem, a swimsuit for swimming. The plaintiff claimed that because she used so many pillows in order to find a comfortable position to sleep at night, she was required to purchase a much larger bed and bedding so that her husband would also have sufficient room to sleep. On two occasions she paid for callout visits from locum doctors due to severe migraines and on another occasion she attended an ENT specialist because of sinus pain which the plaintiff understood may have been the result of pressure on the trigeminal nerve. In an effort to deal with her pain the plaintiff attended a naturopathic clinic for a period of about six months before ceasing that treatment when it was to little effect.
As part of her rehabilitation and also in combination with an effort to lose weight, given that it is clear from a number of medical reports the plaintiff was considerably overweight at the time, she undertook a full exercise program including attending a program called "Babes on the Run" where she was able to take her child or children. The plaintiff also purchased a pram which was lighter in weight and more appropriate for walking as part of her exercise program. Breastfeeding her youngest child was also problematic and for that reason she hired an electric breast pump. She paid for a bone study at SKG Radiology ordered by Mr Vaughan the neurologist and neurosurgeon, and also Enjo cleaning equipment to enable her to more easily carry out housework tasks.
Currently the plaintiff takes Mersyndol Forte every second night, Valium from between every second day up to four times per day depending on her condition and she is also taking a trial medication, Olnestat, for pain relief in addition to Panadol. She tries to avoid taking very strong pain relief medication as it causes drowsiness.
Although the plaintiff does not claim for gratuitous services as part of her damages she pointed out that her husband has increased his hours of work and in addition to that he carries out a large amount of domestic duties including shopping, cooking and child care. At time of trial the plaintiff and her husband employed an au pair who in return for 45 hours a week of household work receives board and $300 per week. Despite this assistance the plaintiff said that her injuries have adversely affected her enjoyment of life and she is no longer able to play with her young children as she used to nor is she able to enjoy regular family holidays. She has difficulty lifting her children and has had to find an alternative means of changing the nappy of her youngest child by lying him on the floor when doing so. Her husband has designed a device that enables the plaintiff to hang out washing without pain.
The plaintiff conceded she was involved in a motor vehicle accident in October 1993 the result of which she suffered headaches, mid‑thoracic and low back pain as well as forearm pain. She settled her claim for damages relevant to that accident in the sum of $19,500 in February 1997. Following this on 30 October 2001 the plaintiff was involved in a further motor vehicle accident for which she attended Dr Gild and the Applecross Chiropractic Clinic. Relevant to that accident the plaintiff completed a General Pain Disability Index questionnaire, Exhibit 4, for Mr French at the Chiropractic Clinic. The plaintiff settled her claim for damages relevant to that second accident for $21,000 on 12 April 2004. The plaintiff also agreed that in the course of her employment just before the birth of her second child she had a fall whilst at Fremantle Hospital although she did not remember jarring her upper thoracic spine or region and her neck as well as injuring her lower back in that incident. The plaintiff did not take issue with Dr Gild's record that in June 2003 she complained of regular occipital headaches or difficulties with her shoulder following the 2001 motor vehicle accident. She said, however, that if he had noted that she was considering leaving her job with BOC it would only be if she had another job to go to due to her financial commitments.
The plaintiff was referred to reports being Exhibit 6 of 8 March 2004 she made regarding her symptoms to Mr French, a chiropractor, following her accident on 30 October 2001. At that time the plaintiff reported experiencing recurrent pain and neck ache including upper thoracic pain and associated bilateral trapezius muscle tightness with lumbosacral pain associated with buttock pain. She could not remember recounting those symptoms but agreed that she must have done so if they appeared in Mr French's report. Similarly, between January and June 2004 the plaintiff was very regularly attending that chiropractic centre for spinal adjustments as various invoices indicate, but once again, she could not specifically recall doing so as she was also attending at that time for other chiropractic treatment. At the time Mr French also noted reports of daily neck pain and stiffness with associated sub‑occipital pain, tightness, headaches and occasional dizziness albeit that the plaintiff could not remember reporting those symptoms at that time. Certainly, it would appear that some of the information contained in the report whilst accurate did not reflect exactly what was happening at the time. For example, whilst there was a reference to the plaintiff ceasing to breastfeed her child because of strain to her upper back and neck, that related to a time considerably earlier than the date of the report. She agreed she advised Mr French that as she was unable to do housework the plaintiff had hired a cleaner to do so although she pointed out that between the October 2001 accident and the February 2005 accident there were times when she did not employ a cleaner. Exhibit 3, the schedule of special damages refers to a number of spinal adjustments in January 2005 which the plaintiff underwent just prior to the accident the subject of this claim.
The plaintiff agreed that in late 2004 and early 2005 the B Braun management did query some of her work practices, but pointed out that a number of queries were directed at staff generally and not just herself. She also agreed that she was given a questionnaire in December 2004 which she had some difficulty in answering because she said she was experiencing cluster migraines at the time which were associated with her thyroid condition. The company, however, took the view that the plaintiff could complete the test because she had proof read the document initially and therefore should be able to answer the questions contained in it. Again in a questionnaire of February 2005 where the plaintiff's performance fell below acceptable standards she said that was the result of her having a migraine as distinct from cluster headaches, which she had in the earlier test. She agreed she had suffered migraines after the 2001 accident. On 6 April 2005 B Braun issued a formal warning to the plaintiff following her poor results in the tests she undertook after her February accident, Exhibit 7, so the plaintiff's problems in this regard had been an issue with her employer from approximately December 2004. The plaintiff responded to the formal warning in an email to B Braun on 31 March 2005 as previously described. She agreed in that email she made no reference to in any way being unable to carry out her employment due to pain or injury sustained in her February motor vehicle accident but again the suggestion from the plaintiff was that she did not want to get a reputation within a fairly small industry for being unreliable or an employee who might present some difficulties for the employer. However, she also agreed that at the time B Braun were well aware of her having been involved in the motor vehicle accident because it was the subject of a workers' compensation claim for which the plaintiff was covered.
She agreed that she tendered her resignation to Dansac by email dated 9 May 2007 and ceased employment with them the following month. In that document, Exhibit 8, the plaintiff resigned complimenting the manager, Mr David Werda whom she said was a key consideration in her attempting to return to work despite the health issues she'd had with her youngest child. She explained in evidence that the child suffered reflux but denied that his health problems limited her ability to return to work rather she was simply updating Mr Werda on her child's condition because he had made an enquiry about it previously and further, the plaintiff said that her child's condition had resolved by the date of her resignation from Dansac.
During the course of evidence the Court was shown a series of surveillance footage of the plaintiff taken on 15 February 2007, 4, 8 and 13 March 2009 and finally, footage taken on 5 and 7 January 2009. It is not necessary to discuss in great detail the contents of that footage being Exhibit 13(1)‑(3) save to observe that it does show the plaintiff carrying out a number of tasks such as pushing a pram or stroller and walking her children to school or day care as well as collecting them. The plaintiff is seen walking her children and two dogs and sitting for some period of time in a coffee shop speaking with a friend and on another occasion sitting on a stool in a coffee shop reading a book or magazine. The plaintiff is seen to put her children in and take them out of the vehicle which she is driving and to drive that vehicle to various locations including what appears to be a shopping centre before exiting near a pharmacy. The plaintiff in carrying out all of those activities appears to move with considerable ease and there would not seem to be any significant or noticeable restriction in her physical movements. She agreed that on 5 January 2009 when she is seen moving about fairly freely on video, that she did have an appointment to see Dr Bacvic, an occupational rehabilitation specialist, arranged on behalf of the defendant. She also agreed that on that day she advised her solicitors she could not attend the appointment because she was unwell and suffering severe flare‑up symptoms from her accident resulting in pain and poor memory. She further advised that she had had to have an emergency appointment with Mr French the evening before due to her pain state.
The plaintiff pointed out that between the motor vehicle accident of 30 October 2001 and the motor vehicle accident of 22 February 2005 she had worked for most of that time, save for maternity leave and annual leave and a short period of time she took off to maintain her practical nursing skills.
The medical evidence
Dr Gild, the plaintiff's medical practitioner, prepared a number of medical reports being Exhibit 9(1)‑(7) between 2005 and 2008. He also prepared two reports Exhibit 11(1)‑(2) dated 17 February 2004 and 23 June 2003. When he reviewed the plaintiff on 26 March 2003 following her motor vehicle accident of October 2001 she reported suffering two headaches per week and had had a severe occipital headache the previous day. Her thoracic and lumbar pain remained unchanged and on examination she had a full range of movement in both the lumbar and cervical spine with no neurological involvement. At review on 10 June 2003 the plaintiff complained of getting occipital headaches most days but not being troubled with shoulder pain, despite it limiting activities such as hanging out washing. Dr Gild noted at that time the plaintiff found her employment onerous and was considering resigning because she found driving great distances in the country being part of her work for BOC, was resulting in headaches and lumbar pain. She complained of occasional sciatica in the left buttock. On that occasion the plaintiff continued to exhibit a full range of neck, lumbar spine and arm movement and was undertaking yoga, a light weights program and walking program. She reported that her headache and back pain were eased by chiropractic treatment, which Dr Gild considered was reasonable and appropriate in the circumstances to undergo on a fortnightly basis. Following her fall at Fremantle Hospital Dr Gild reviewed the plaintiff and commented that her situation in terms of pain and discomfort had not improved particularly, and she was continuing to have frequent chiropractic treatment. On review in February 2004 the plaintiff continued to complain of neck stiffness and right shoulder pain, although her symptoms were improving. She had relatively persistent lumbago in her left buttock, but maintained an excellent range of movement of the lumbar spine with normal straight leg raising and reflexes. At that time she was considered fit for full‑time work and her future work capacity had not in Dr Gild's opinion been affected. He made this comment as the plaintiff on his understanding was about to recommence work as a nurse for 32 hours per week and in his opinion the plaintiff had no significant percentage of permanent disability.
Dr Gild also issued the plaintiff with a number of workers' compensation certificates, Exhibit 10 between 22 February 2005 being the date of her motor vehicle accident and 29 January 2008. Her initial complaints on 22 February were of headache, neck discomfort and lumbar spasm following the rear end collision in which the plaintiff advised she had been heavily jolted. On review she had a full range of cervical spine movement with no neurological involvement and so was prescribed painkillers. Over the next few days having undergone chiropractic treatment the plaintiff reported an improvement in her symptoms, although there was still persistent pain in her right shoulder area. Again she exhibited an excellent range of cervical and lumbar movement. She complained in April 2005 of persistent neck pain following the motor vehicle accident, in combination with lumbar pain radiating into her right knee. She reported that driving long distances caused her symptoms to flare up although on review on 18 April, she continued to exhibit a good range of cervical and lumbar spine movement. As the pain persisted Dr Gild referred the plaintiff to a pain management specialist, Dr Gee, whilst she was continuing to undergo chiropractic treatment. On 23 June 2005, just prior to the plaintiff commencing employment with Dansac, she complained to Dr Gild of continuing lumbago, right shoulder pain as well as neck pain and stiffness. Her range of movement continued to be good, but as her current bed was exacerbating her pain Dr Gild advised investigating the possibility of purchasing a new bed. A CT scan of the cervical spine organised by Dr Gee did not reveal anything of significance and the plaintiff continued the program under Mr Ponchard, a clinical exercise physiologist. She was coping in August 2005 with her work at Dansac, despite suffering a flare‑up of neck and lumbar pain after a trip to Melbourne.
Following a severe headache in early September 2005 Dr Gee recommended investigations to see whether the pain was as a result of an allergy or whether it was accident related. In early October 2005 the plaintiff reported a flare‑up of cervical pain concentrated in the sternomastoid muscles, albeit that again she had a good range of movement of the cervical spine. The exercise program of swimming, yoga, Pilates and stretching was to continue on Dr Gild's advice. He continued to review the plaintiff in 2006. In March she complained of pain in her low cervical spine and central thoracic spine and this continued on review in June that year with the addition of frequent migraines being reported. She was continuing her exercise program but still found that driving exacerbated her pain state. By July 2006 she was using a TENS machine on Dr Gee's advice and Dr Gild was of the view that she was only fit to work 20 hours per week. In July as a result of her ongoing complaints Dr Gild certified the plaintiff unfit for a month.
On review in August 2006 Dr Gild commented that the plaintiff's ongoing neck problems were perhaps exacerbating her sinus problems via some compression of the occipital nerve and she was certified unfit for a further month. Her complaints of mid‑thoracic pain and neck pain persisted through September and October. In January 2007 Dr Gild noted that the plaintiff had ceased breastfeeding earlier that month as it produced a great deal of pain in her cervical and thoracic region. She was using less analgesic and her pain state at that time was limited to the high cervical spine, low central cervical spine and mid‑thoracic spine, given that her low back pain was not that bad. There was some radiation of discomfort into the buttocks and legs. Symptoms of intermittent paraesthesia in both arms were reported but the plaintiff commented that generally she was able to manage her pain state with medication such as Panadol and Valium. The plaintiff had lost a great deal of weight, which Dr Gild regarded as very positive and he recommended the continuation of her supervised exercise and weight loss program. Although the plaintiff had an excellent range of cervical spine movement on examination, Dr Gild considered she was unable to return to work at that time particularly given that it would involve considerable driving which the plaintiff reported severely exacerbated her spinal symptoms. In view of that Dr Gild considered that the plaintiff would have find a change of occupation at least over the next few years as he felt that within two years her situation should improve and she could return to her current employment as a medical sales representative. He did not consider that she could work in a traditional nursing role, as it would involve lifting and as with lengthy driving he would not recommend that for the plaintiff in her situation. In Dr Gild's opinion the plaintiff had suffered moderate injuries in her accident and at the time of that report in January 2007 he advised she would probably require analgesic medication for another couple of years in combination with physiotherapy, chiropractic massage and gym membership for the same period of time. However, at the time of giving evidence at trial Dr Gild, who has continued to review the plaintiff, considered that she is currently not able to return to work due to her symptoms, accepting that in so concluding he was highly dependent on her reports of pain and disability, both of which were subjective on the plaintiff's part. However given that her MRI and bone scans did not demonstrate damage other than soft tissue damage, he was hopeful she would make a recovery over the next few years.
In November 2008 on review Dr Gild commented that although the plaintiff was working as a mortgage broker he did not believe at that time that she was able to undertake what he described as physical work and he regarded her as having a significant restriction in competing in the open workforce because of her injuries which he described as of moderate severity. He believed that chiropractic and physiotherapy treatment in combination with appropriate medication would probably be required by the plaintiff for another three years.
Dr Gild was consulted by the plaintiff on a number of occasions between 17 February 2004 and 22 February 2005 when she had her most recent motor vehicle accident. She attended for a range of complaints including sinus infections as well as neck pain. In July 2004 she was consulting a psychiatrist and taking Xanax to assist her to sleep but this does not seem to be pressed as related to her accident of February 2005. Dr Gild prescribed Valium for the plaintiff but as a muscle relaxant rather than as medication to assist her to sleep, but did not believe this was prior to 2004. In November 2004 the plaintiff was prescribed Lexapro, an antidepressant which was beneficial. Dr Gild noted treating the plaintiff for headache or at least having reports from her of headache prior to the accident in February 2005. He rejected the proposition that it was inconsistent that the plaintiff complained of pain yet on examination she exhibited a good range of movement. He agreed it was perplexing that prior to November 2008 on examination the plaintiff had had a good range of movement, but on review in November she had a poor range of cervical and lumbar spine movement.
Dr Harper
Dr Harper, an occupational physician since 1986, reviewed the plaintiff and prepared a number of reports being Exhibit 12(1)‑(3). He first reviewed the plaintiff on 20 December 2007 and took a history from her regarding her motor vehicle accident in February 2005. She advised Dr Harper that her car was pushed forward a metre and a half but it was not a major accident. She immediately experienced neck stiffness and developed back pain so she attended Dr Gild that day. At the time of review she reported experiencing neck pain which was aggravated by lifting and driving for more than 30 minutes. She also reported back pain which was fairly constant and of a severity of 5 out of 10. It too was aggravated by lifting and static postures. The pain from the back radiated into her elbows and hands as well as to the buttocks and legs. The plaintiff reported mood changes and a feeling of light headedness, although overall she said her symptoms were improving. Nonetheless she was experiencing some sleeping difficulties and reduced tolerance for both sitting and standing. She required assistance around the home and carrying out domestic duties from both her husband and outside sources.
Dr Harper was of the opinion that the plaintiff had sustained strain injuries to the cervical and lumbar spines and was continuing to experience muscle pain in her neck and had difficulty adjusting to her symptoms. In his view at that time the plaintiff had a reduced work capacity but was still capable of full‑time work within the limits of certain restrictions, he believed she was capable of general office and work as a sales representative, providing she avoided heavy lifting and prolonged static postures and driving. He considered that these restrictions would reduce the plaintiff's competitiveness in the open workforce but anticipated her future work capacity improving. Dr Harper assessed the plaintiff's physical residual disability from the accident as very mild following mild initial injuries. He commented that the plaintiff had some neck and low back symptoms prior to the motor vehicle accident in February 2005, but that the accident aggravated the symptoms leading to her current situation.
In January 2009 after further review the plaintiff advised him that overall she felt there had been improvement in her symptoms, although at a time proximate to that review she felt there had been an exacerbation of them and she reported neck pain which was constant, but varied in severity as well as back pain in the form of tightness. Her emotional state had worsened with poor concentration during episodes of pain and light headedness. She also experienced a crawling sensation on her skin from time to time. On examination her posture, gait and agility were normal with unrestricted range of back movement and only mild tenderness in the lower lumbar region. Her shoulder and neck movements were also normal. At that review Dr Harper considered that the plaintiff continued to experience muscular pain from her original strain injuries to the neck and lower back and that her work capacity therefore remained reduced. He did not feel her physical injuries precluded her from working full‑time within the limits of certain restrictions. He reiterated what he said in his earlier report regarding those restrictions but commented the plaintiff was able to work as a mortgage broker and whilst he expected some improvement in her work capacity over time, that would not be for a further one to two years during which period prolonged desk work, driving and lifting would be problematic thus restricting significantly her competitiveness in the open workforce. Overall he confirmed that her physical residual disability as a result of the accident was mild, but impaired adjustment and emotional symptoms associated with her pain were causing mild to moderate disability. Pain management counselling and psychological counselling were recommended to assist with anxiety and stress and an ongoing exercise program was considered beneficial. Shortly thereafter on 9 February 2009 in a report Dr Harper stated that it was commonly the case that people involved in motor vehicle accidents and in other injuries experienced disability for which physical findings including x‑rays are unremarkable and therefore the findings in relation to the plaintiff, in his opinion, did not rule out the presence of disability.
In his evidence Dr Harper expressed the view that his opinion differed from that of another occupational physician, Dr Bacvic because his focus was on both the physical and emotional aspects of the plaintiff's condition, whereas he considered that Dr Bacvic had confined herself to commenting on the physical aspects only. He agreed that he was heavily reliant on history and symptoms reported to him by the plaintiff, but said he also looked at the pattern of presentation because often persons have a pain syndrome which does not correspond with a physical injury present in a particular way. In the plaintiff's case he thought her anxiety was an intrinsic part of her presentation and situation and that anxiety leads to stress and muscle tension as well as a perception of increase in pain which, in turn, interferes with endurance during particular activities. Although he felt that the plaintiff's physical injuries were modest, he advised against her working as a sales representative because activities associated with that job aggravated the plaintiff's symptoms on her reports, albeit the mechanism for this was not readily explicable.
Whilst he considered that the plaintiff could lift items up to 10 kilograms in weight it was not an activity she should undertake on a repetitive basis. He conceded that he advised against sales representative work because the plaintiff informed him that carrying items and driving caused her physical problems. In combination with his assessment that the plaintiff was somewhat labile, in the sense that she reacted on his perception to situations to a greater degree than the average person, Dr Harper said that was not as a consequence of her motor vehicle accident necessarily. He considered that her emotional state would fluctuate in the sense that she would experience both good days and bad days so it was not surprising that over time her perception of how the motor vehicle accident had affected her life had moderated, in that she did not feel as strongly about it as she had initially done. In Dr Harper's view whilst there was no abnormality noted on examination, when the plaintiff twisted and moved in the workplace where she was repeatedly carrying out certain physical actions, he believed that this repetition in combination with emotional fatigue would adversely affect the plaintiff's endurance.
Dr Bacvic
Dr Bacvic has been a specialist in occupation medicine for a similar period of time as Dr Harper, although she has practised in Western Australia for only the last 10 years. Like Dr Harper she had reviewed the plaintiff on three occasions and prepared a number of reports as a result being Exhibits 14(1)‑(3). They were prepared in November 2005, May 2007 and February 2009 respectively. When first seen by Dr Bacvic the plaintiff advised a 60 per cent improvement in her condition since the accident, but complained of constant stiffness, numbness in her neck and back pain. She reported difficulties with sleeping so that on occasion she required Valium to assist her to sleep. The back pain was worse at night than during the day and diminished with increased movement. During the day she rated the pain level as 2 out of 10 whereas at night it escalated to 7 out of 10. At the time of that review the plaintiff reported being able to drive for two hours as well as being able to work part‑time for 20 hours a week. In the domestic environment she was able to cook, hang out clothes and to garden for 30 minutes without experiencing difficulties, but sweeping aggravated her back and shoulder symptoms. Dr Bacvic was aware of the plaintiff's previous history regarding her earlier motor vehicle accidents. On examination her gait and posture were normal and she moved freely with no apparent difficulties. Neurological examination was unremarkable and physical examination did not demonstrate anything unusual and so in Dr Bacvic's opinion the objective findings of clinical investigations did not appear to support or explain the plaintiff's complaints. In that sense there was a discrepancy between the complaints made and objective findings on assessment. Dr Bacvic considered that the plaintiff had sustained a whiplash injury, which would normally fully improve within four to six weeks of the accident but on the plaintiff's reports had not done so. In the end at that time Dr Bacvic considered the plaintiff's scope of employment should not be affected as a result of the accident.
When the plaintiff was next reviewed by Dr Bacvic she advised that she felt her condition had improved 50 per cent as distinct from the earlier assessment of 60 per cent and that she was restricted in what she could do, citing pain in the top of her head as a major problem. She reported pain in the occipital area and occasional pain in the C7 area as well as pain across the mid‑back radiating around the thorax. She had reduced tolerance for sitting and walking as well as lifting. Whilst she could drive for 30 minutes she then required a break to stretch. Again, on physical examination, the findings were unremarkable and Dr Bacvic confirmed she could not detect any organic signs clinically or from medical investigations to explain the extent of the plaintiff's complaints and reported symptoms. For that reason Dr Bacvic advised consulting a psychiatrist or pain management specialist with respect to further treatment as that was not a matter within Dr Bacvic's sphere of expertise. Physically she found no basis for any physical restrictions in the plaintiff's case and believed that her prognosis was good. She reiterated that the plaintiff would not suffer any physical permanent impairment as a result of the accident.
When Dr Bacvic reviewed the plaintiff in February 2009 just prior to trial, she was told that the plaintiff's symptoms of neck tightness and numbness had decreased significantly and were managed with pain medication. Her dosage of the antidepressant Lexapro had been increased from 5 milligrams to 20 milligrams. Whilst there was some improvement in the symptoms she still complained of tingling in her hands and some pain in the occipital area as well as C7 and T5‑6. Her tolerance for driving beyond 30 minutes had not altered, although she could walk for approximately 60 minutes without difficulty. She was limited in the household tasks which she could perform due to her symptoms and she avoided lifting. Again on physical examination the plaintiff's gait and posture were normal and she moved freely. Dr Bacvic repeated that objective medical findings on examination could not explain the symptoms of which the plaintiff complained. It was Dr Bacvic's view that the plaintiff was not at increased risk to herself or anyone else by working in her pre‑accident occupation for which she was physically fit. For that reason Dr Bacvic believed the prognosis was good and that there would be no permanent physical disability as a result of the accident in February 2005 so no further treatment for possible symptoms related to the accident was required.
Dr Bacvic confirmed that in her opinion the assessment of disability was based on objective findings and where these did not explain complaints of ongoing symptoms or pain, then it was a matter that was within the realm of a psychiatrist or pain management specialist because although pain can be disabling, its cause was another issue. In her view if pain had a physical basis one could usually find objective evidence of this. She conceded that Dr Gee had prescribed pain relief medication for the plaintiff in the absence of objective physical findings for the pain.
The plaintiff conceded in her evidence that on 5 January 2009 she advised her solicitors that she was feeling very unwell on that day and in considerable pain which was adversely affecting her memory. For these reasons she was unable to attend a review by Dr Bacvic on that date.
The video surveillance film of the plaintiff on that same day shows the plaintiff apparently interacting with her children and moving in a normal and unrestricted manner and engaging in a number of physical tasks. I accept this appears to be somewhat inconsistent with what the plaintiff told her solicitors but overall this incident in isolation does not cause me to form an adverse view of the plaintiff's credit. On the occasions she attended Dr Bacvic for review there is no suggestion that the plaintiff was difficult or uncooperative. Despite Dr Bacvic's opinion and evidence she did not convey that the plaintiff was in any way malingering or attempting to deceive Dr Bacvic.
Mr Vaughan
The plaintiff was referred to Mr Vaughan by Dr Gild and he reviewed her in January 2007. He prepared a number of reports, Exhibit 15(1)‑(5). On examination he considered that the varying symptoms were indicative of a straining injury without neurologic loss and the symptoms were in keeping with some stresses and perhaps anxieties, even some underlying depression. No significant injury was detected which was consistent with Mr Vaughan's views. He felt there had been some reduction of capacity following the motor vehicle accident and when he first saw the plaintiff considered she had little capacity for work, but it was not permanent. He believed there was a future work capacity however it was not likely to eventuate for the next one or two years. At that time Mr Vaughan considered that the plaintiff would be able to resume part‑time work within the medical industry as he described, but counselled against her being placed in positions of stress or work in situations requiring her to engage in heavy lifting or twisting. This would also preclude her from working in the medical industry where she was required to move trays of heavy instruments and for that reason he saw a less arduous and demanding role in the medical industry in the future as being a more appropriate employment situation for the plaintiff.
He considered that she had a 10 per cent disability to the cervical spine with associated headaches and neuralgic state and a 5 per cent loss of efficient lumbar spine function. These residual disabilities he classified as mild to moderate. In addition, he recommended further counselling and stress management to deal with underlying depression and anxiety problems. Simple analgesics and continuing exercise therapy would be beneficial as part of her future medical treatment. Despite the lack of objective physical evidence to explain the plaintiff's continued complaints of pain and physical restriction Mr Vaughan considered that her complaints were genuine.
In relation to Exhibit 4 completed by the plaintiff in mid‑2003 for her chiropractor the main distinction on review by Mr Vaughan was the complaint related more to upper torso pain. He reiterated that heavy lifting or twisting and bending as required by mainstream nursing employment would be problematic for the plaintiff, when she ultimately returned to the workforce. Mr Vaughan was quite clear in his evidence that he did not consider continuing chiropractic treatment was likely to provide the plaintiff with any long term benefit, albeit that it might give some psychological support. On reviewing the surveillance footage in Exhibit 13(1) Mr Vaughan did not see the plaintiff's presentation as being inconsistent with what she told him or his understanding of her situation. Rather, he considered it proved that one was not considering a neurological problem or physical disorder and further made the point that it was as he termed it a "snapshot" at one particular point in time of the plaintiff's life and presentation. She was clearly capable of doing some activity but as I understand his evidence the contents of that surveillance film did not change the view that he had previously expressed as to the plaintiff's condition.
Findings on the evidence
In determining the issues in this matter there is a question of whether the defendant is liable to the plaintiff for any disability and consequential financial loss, if they are found to exist. This encompasses an issue of whether the defendant is liable for any aggravation of any existing problems that the plaintiff may have had at the time of her accident, if that is found to be the case and any consequential exacerbation of her level of incapacity or disability. The defendant suggests that the plaintiff's injury and any symptoms she may have had at the time of her accident were as had previously existed and thus the accident on 22 February 2005 had no or minimal impact on the plaintiff's condition. It is submitted on behalf of the plaintiff that any disability and financial loss associated with such disability was more probably than not caused by the plaintiff's involvement in the motor vehicle accident and further that the motor vehicle accident does not have to be the sole cause of any ongoing disability or complaints, but a material contributing cause to those matters; Amaca Pty Ltd v Hannell (2007) 34 WAR 109 at [389]. On any analysis the plaintiff's credibility is of central importance in resolving the issues before the Court.
It is the case that the plaintiff has made claims and has been awarded damages relevant to her involvement in previous motor vehicle accidents, but I do not understand the defendant's case in that regard to rely substantially on the accidents that occurred in the early 1990's. There is a strong suggestion in the defendant's case, however, that the plaintiff had ongoing symptoms, which are very similar in nature to those that she complains of following the motor vehicle accident the subject of this trial, which had never resolved and that her most recent accident did not result in any real aggravation of her condition or change in her circumstances.
In considering the evidence in relation to the plaintiff's work history it is clear in my view that she has a positive and well developed work ethic and I accept the submission that for this particular plaintiff work is an important part of her life. In the past it has been a source of self‑esteem as well as a means of providing financial security for her family. This no doubt is why, given her capacity to earn more than her husband, in combination with the plaintiff's desire to work, the decision was made in the past that she would in essence be the main breadwinner. The plaintiff has a consistent work history since leaving school and obtaining her nursing qualifications. She worked consistently in a variety of jobs in the medical and pharmaceutical sales area for a number of years prior to leaving her employment with Dansac. It is to be noted that after the birth of her first two children the plaintiff returned to work very quickly and that whilst working in employment that offered a bonus scheme the plaintiff, according to evidence which was uncontradicted, met her sales targets and often exceeded them.
Clearly the plaintiff was involved in a motor vehicle accident on 30 October 2001 while working for BOC and sustained what appears to be what might generally be described as soft tissue injuries, however she returned to work for BOC following her award of damages after that accident. The award was in the sum of $21,000 which does not suggest that she sustained significant injuries in that accident or that she was left with a considerably reduced work capacity. It is the case, however, that in mid‑2003 following the 2001 accident the plaintiff was experiencing frequent occipital headaches according to Dr Gild's evidence and driving long distances in the course of her employment for BOC exacerbated those headaches and caused lumbar pain. However, she continued to work in that job until March 2004. Just prior to that according to Exhibit 4, the pain questionnaire completed for the chiropractor Mr French, there were a number of symptoms outlined by the plaintiff which were said to cause pain of moderate intensity however there would not appear to have been difficulties at that time in the plaintiff's being able to function or being able to carry out the requirements of her employment. Certainly, in February 2004, which was 12 months before the accident the subject of this claim and approximately one month before the plaintiff commenced employment at B Braun, Dr Gild noted that her neck stiffness was improving and certified her fit for full‑time work, stating that the plaintiff's future work capacity at that time was not affected by her complaints and that she had no significant disability such that she was restricted in any way in competition for work.
I consider Dr Gild's evidence to be of considerable importance because he has had the advantage of treating the plaintiff since she was 23 years of age and it would appear that he has seen her for a variety of matters on a fairly regular basis both before and after her various motor vehicle accidents. It is the case for the first six months of 2004 and on six occasions in January 2005 the plaintiff regularly attended her chiropractor for spinal adjustments, although these are not the subject of any claim for payment in this matter. In my view the plaintiff has an entrenched history of attending chiropractic treatment relevant to a number of conditions and against that background, her attendances for spinal adjustment prior to the accident in February 2005 are not of great significance. It would appear that the plaintiff did derive some benefit, at least on her perception, from engaging in this form of treatment, although the medical evidence overall would suggest that after a period of time it ceases to have any identifiable effect from a medical perspective.
In my view the evidence establishes that the plaintiff had for quite some years prior to her accident in February 2005 suffered from headaches and this is certainly clear from Dr Gild's evidence which I accept on this point, however the evidence also makes it plain that any headaches the plaintiff suffered, when viewed in isolation, were not an impediment to her continuing to engage in employment prior to or following February 2005. It is not possible to conclude that the headaches of which the plaintiff now complains are not related to her accident, albeit that they may in part be related to a thyroid problem from which the plaintiff has suffered in the past. In this regard I take note of Dr Harper's evidence, that anxiety which the plaintiff suffers in relation to her current situation leads to stress which results in muscle tension and pain as well as reduced endurance. In addition, the plaintiff did advise Dr Gild on the day of her accident not only of neck pain and lumbar spasm but also of headache.
There is no doubt that the motor vehicle accident in which the plaintiff was involved in February 2005 was relatively minor in nature and overall I do not find the plaintiff's case to suggest to the contrary. Following that accident the plaintiff had a comparatively short time off work for which she received workers' compensation payments. Obviously her employer B Braun was aware of what had occurred on that day.
During the period for which the plaintiff was employed at B Braun there were clearly some difficulties and a level of dissatisfaction with her work, albeit that according to some correspondence before the Court the plaintiff was achieving targets and endeavouring to manage the territory which she had been allocated as part of her employment. Although the plaintiff would appear to have been in some difficulties in her employment situation with B Braun, I do not consider it possible to positively find that she would have been sacked by them. It is correct that the plaintiff indicated to B Braun that she was struggling with the workload and found it was encroaching on her personal and family life such that if a solution could not be found she would have to consider finding alternative employment but she did not mention that she was having any physical difficulties coping with her job as a consequence of injuries sustained in her motor vehicle accident. On the other hand, B Braun were well aware of the accident and the payments of workers' compensation to the plaintiff following it and further, the plaintiff had earlier in an email in February advised that she was in essence having difficulty lifting heavy weights because it caused neck spasm following her motor vehicle accident. In addition there is nothing to contradict the plaintiff's evidence that she was somewhat circumspect in complaining about her symptoms and their resulting restrictions in her employment to B Braun or Dansac because of the small and specialised nature of the industry in which she was working. I do not consider it unreasonable or implausible that given the plaintiff's work ethic and history she was concerned not to gain a reputation among her peers as an employee who was unreliable or who would be a somewhat risky proposition in terms of future employment within the industry. Again in the light of the plaintiff's work history I consider that leaving her employment at that time and continuing to claim workers' compensation payments would not have been a course of action the plaintiff would have pursued if it could possibly have been avoided. In this regard it should also be noted that the plaintiff was earning a very good income, in the sense of an above average income whilst employed at B Braun and in my view she would have endeavoured to retain her job if at all possible because of her financial commitments, which included not only maintenance of the family or residential address but also costs associated with the purchase of the investment property in Leeming and the proposed redevelopment of the triplex site in Scarborough. Whilst I accept that the plaintiff did have some difficulties with management whilst employed at B Braun that were not connected with the sequelae of her motor vehicle accident, I also accept on the evidence that she had difficulties in remaining in her employment that were the result of physical problems arising from the motor vehicle accident. These included problems lifting heavier weights, bending to lift such weights and driving long distances or driving for long periods of time which exacerbated her neck and back symptoms.
It is not clear how exactly the plaintiff then went to work for Dansac on a part‑time basis for 20 hours a week in the sense of whether that was all that was available in terms of employment at that time or whether the plaintiff specified she wished to work part‑time or indeed if she was searching for part‑time work.
It is clear that very shortly after resigning from B Braun the plaintiff commenced work at Dansac and albeit she was certified fit for full‑time work it was on the basis of carrying out light duties only. Although there is no direct evidence from Dr Gild that it was advisable for the plaintiff to reduce her working hours at this point, when one looks at the progress medical certificate he issued on 26 April he notes, "Poor progress on the part of the plaintiff" and certified her unfit for two weeks from that date, referring her to Dr Gee at the Pain Management Clinic. The next certificate of 10 May 2005 which speaks of lighter duties, certifies the plaintiff fit for a restricted return to work avoiding lifting items over 10 kilograms, repetitive bending and lifting and prolonged standing, walking or sitting. It was also suggested the plaintiff avoid driving for longer than 30 minutes at a time. The certificate of 23 June 2005 then specifies the plaintiff was fit for restricted duties for 20 hours a week, three days a week, avoiding heavy lifting, prolonged standing, walking or sitting. Given the financial commitments of the plaintiff at the time she went to work for Dansac, it is difficult to understand why she would accept a very substantial drop in her income compared to her previous employment income, unless she was suffering genuine symptoms and pain precluding her from continuing to work for B Braun or in a similar position on a full‑time basis. I also accept the plaintiff's evidence that she was very desirous of rehabilitating so that she could return to full‑time work in her chosen field with its obvious financial incentives, but that in order to do so she required time to fully commit herself to her exercise and rehabilitation program which the full‑time work at B Braun did not permit.
The plaintiff worked for Dansac on a part‑time basis for approximately two years between June 2005 and June 2007 and it would appear that it was a relatively positive and successful relationship. On p 114 of Exhibit 1 by letter dated 1 August 2006, Dansac advised the plaintiff that her performance during April and June 2006 resulted in her being awarded a bonus payment in recognition of performance meeting criteria and she was thanked for her valuable contribution. Although in her resignation advice to Dansac the plaintiff referred to health issues with her youngest son, I do not take the view that the only interpretation of that advice is the reason for her resignation was the concerns the plaintiff had over her child's health. Her evidence was that his health issues had resolved by that stage and I accept she was simply making this reference because Mr Werda had recently asked her about that matter.
According to the medical certificates issued by Dr Gild in May 2007 as at 15 May 2007 the plaintiff was unfit for work and a certificate to similar effect was issued on 23 May 2007, which indicates that the plaintiff was having ongoing difficulties with her pain state at that time. This being the case the increased physical demands on her in her employment with Dansac, requiring more extensive travel and in particular driving were, I accept, problematic for the plaintiff. In the circumstances previously mentioned by the plaintiff I accept that she was at some pains to leave the opportunity open to return to the medical and pharmaceutical sales field in the future and for that reason did not stress her physical problems or mention them in her resignation email. The plaintiff had carefully considered her employment situation according to the evidence and the fact that there were physical restrictions in working as a sales medical and pharmaceutical supplies sales representative because she sought professional advice regarding an alternative career or employment. That is how she came to study mortgage broking and indeed did so whilst on maternity leave from Dansac, which is indicative of the plaintiff's desire to remain in the workforce in some meaningful way and also to continue to provide financially for her family.
Reference has previously been made to the reasons for some of the financial difficulties the plaintiff encountered in working as a mortgage broker following her obtaining her mortgage broking licence. The plaintiff did attempt to return to nursing at Hatherly Medical Centre in late 2007, albeit that in a progress medical certificate of 12 November 2007 and a further one on 22 November 2007 as well as one on 3 December 2007, Dr Gild continued to certify her unfit for work. Overall, looking at the plaintiff's work history and in particular that history commencing when she began employment at B Braun, I accept the submission that it is indicative of the plaintiff's work ethic and her desire to work, not only for reasons of self‑worth but also because her family were heavily financially reliant on her income and her ability to earn an income.
There is no doubt on all of the medical evidence before the court that the plaintiff's physical injuries are not serious and indeed are comparatively mild. The plaintiff, however, has continued to complain of pain and restriction of movement, despite there being no identifiable pathology on examination for these complaints. Neither Dr Gild, Dr Harper nor Mr Vaughan however, who have reviewed the plaintiff a number of times and in Dr Gild's case many times, suggest that the plaintiff's complaints of pain and restriction are anything but genuine. The plaintiff does not have an identifiable psychiatric condition or disability as a result of the accident, but the consensus of medical opinion is that she has a genuine perception of a pain state and that this has led to some anxiety and depression on her part. Even Dr Bacvic whose evidence might be said to be the least supportive of the plaintiff's case, does not suggest the plaintiff is exaggerating her symptoms or is not genuine, rather from a purely physical perspective she like the other medical practitioners mentioned, could not find a clinical basis for the extent of the plaintiff's symptoms and reports of pain and suggested the explanation may lie elsewhere. All the medical practitioners agreed that essentially the plaintiff had suffered a strain or whiplash injury, which despite the somewhat protracted history had a good prognosis in terms of recovery. The plaintiff in her evidence did not suggest that her physical restrictions and pain state are such that she can do little or nothing. She explained that, for example, she can hang out washing and it would appear that in terms of caring for her children she has attempted to adopt alternative methods, such as nappy changing in a particular way to accommodate her physical restrictions. She explained that she carries out her current occupation as a mortgage broker, albeit not on a full‑time basis, but in a way that accommodates her need to adopt various physical positions in dealing with clients so that she is comfortable. Given that they are often not face to face situations it is not problematic in a professional sense if, for example, the plaintiff may be sitting on the floor or wearing a surgical collar and speaking with a particular client. The plaintiff does not suggest that she cannot drive, lift objects or function physically, rather it is in terms of endurance and repetition in carrying out such physical activities that difficulties are experienced.
In recent reviews for example, by Dr Harper, the plaintiff reported some improvement in her physical symptoms to the point that she could work as a mortgage broker but with restrictions. The prognosis was positive in that he felt in one to two years there would be further improvement in her work capacity. Dr Gild was a little more conservative in late 2008 believing the plaintiff would hopefully make a recovery over the next few years. Mr Vaughan believed the plaintiff had a future work capacity but it would take one to two years before it could be realised and then there would be some physical restrictions placed upon her employment. I consider that the positive consensus of medical opinion regarding the prospects of the plaintiff's ability to return to full‑time work with some restrictions within the foreseeable future in combination with her past commitment to rehabilitation and her positive work ethic bodes very well for her future recovery and return to the full‑time workforce, with limited restrictions.
Assessment of damages
Non‑pecuniary loss – General damages
The plaintiff's injuries relevant to this claim arose out of a motor vehicle accident which occurred after 1 July 1993. The provision of s 3C of the Motor Vehicle (Third Party Insurance) Act 1943 govern the amount of damages to be awarded to the plaintiff for non‑pecuniary loss which includes pain and suffering, loss of amenities of life, loss of enjoyment of life, curtailment of expectation of life and bodily or mental harm. Subsection (2) of s 3C of the Act provides that:
"(2)The amount of damages to be awarded for non‑pecuniary loss is to be a proportion, determined according to the severity of the non‑pecuniary loss, of the maximum amount that may be awarded."
The amount of damages that may be awarded under the Act for a non‑pecuniary loss as from 1 July 2008 being the amount prescribed at date of trial is set at a figure of $309,000 (Amount "A").
Subsection (3) of s 3C provides as follows:
"(3)The maximum amount of damages that may be awarded for non‑pecuniary loss is Amount A, but the maximum amount may be awarded only in a most extreme case."
A helpful discussion of what might be considered a most extreme case and how the court may approach the assessment is to be found in Southgate v Waterford (1990) 21 NSWLR 427.
In this case in relation to the injuries sustained in the relevant motor vehicle accident taking into account all of the circumstances and evidence I find that the plaintiff suffered a comparatively mild soft tissue or strain injury, sometimes described as a whiplash injury, resulting in neck discomfort and lumbar spasm with associated headache. There was some pain from the back reported as radiating into the buttocks and legs but no neurologic loss or underlying pathology. There was, however, a fluctuating pain state following the accident and some restrictions in relation to prolonged driving, sitting or standing. The plaintiff has suffered a degree of stress and anxiety associated with her symptoms but has no identified psychiatric disorder and has not been receiving treatment for such a disorder as a consequence of the accident. She has suffered some sleep disturbance from time to time which has on occasion been addressed by the use of appropriate medication. In assessing damages for this aspect of the claim I take into account that the plaintiff did have a history of suffering headaches prior to the accident, although it would seem that this condition did not interfere with her employment and certainly following the accident she suffered headaches from time to time, so one can accept that the accident exacerbated this particular problem.
The plaintiff's lifestyle and daily functioning have not been greatly restricted by her injuries in the sense that as the surveillance film demonstrates she is still able to drive and enter and exit her vehicle with comparative ease, although she is not able to do this for extended periods of time. The plaintiff also is able to engage in a range of household activities such as hanging out washing and taking a high level of responsibility for caring for her three children, albeit that she has some assistance in this regard. She still has the capacity to socialise with friends and certainly was able to study and retrain for her certificate as a mortgage broker. She has been committed to her rehabilitation program which has been comparatively active involving exercise in the form of walking and swimming as well as Pilates and she has physically been able to carry out these activities.
When the plaintiff's injuries and associated symptoms following the motor vehicle accident are compared with the example of what might be regarded as a most extreme case, namely quadriplegia, I find that her injuries and symptoms as well as their progression, treatment and current status in addition to the effect that they have had on the plaintiff's enjoyment of life puts this situation at 12 per cent of a most extreme case.
This results in a sum of $37,080. Applying the appropriate formula pursuant to s 3C(6) of the Act the amount of damages to be awarded for non‑pecuniary loss in these circumstances is $21,580.
Past economic loss
The defendant accepts it is liable to refund workers' compensation to the workers' compensation insurer the amount of $4,457.40 being compensation for weekly payments made to the plaintiff. In the defendant's submissions it seems that those payments were made for loss of earnings from 22 – 23 February 2005 and from 18 April – 10 May 2005 and it would also appear that the plaintiff received workers' compensation payments for the period of four weeks' notice given to her by her employer. I do not find on the evidence that the plaintiff's decision to resign from B Braun and commence part‑time employment with Dansec had no relationship to her injury, because I accept the plaintiff's evidence as to why she left that employment and I also take account of the medical evidence including that of Dr Gild. For that reason I reject the submission that the plaintiff should not be awarded any damages for past economic loss or past loss of earning capacity over and above the payments of workers' compensation that have been received.
There then arises the question as to the rate of remuneration upon which the calculation for that loss should be made. The defendant submits that it should not be based on the plaintiff's rate of remuneration whilst in the employ of B Braun. It is said that the plaintiff on the evidence was experiencing some difficulties in that employment and given this it is unlikely that she would have remained in that employment even if she had not been involved in the accident. In my view the evidence does not permit this inference to be drawn. It is simply not possible to say whether that would have occurred or not, either by virtue of the plaintiff being dismissed or deciding to change her occupation for reasons unrelated to the sequelae of her accident. I consider that there were strong incentives for the plaintiff to remain working for B Braun if possible because it was financially rewarding, she apparently enjoyed her work and felt the need to work for reasons of self‑worth and because financially the plaintiff had a number of commitments at that time. As the primary earner in the family unit it was largely her responsibility to meet those commitments if possible.
In relation to past economic loss, however, in written closing submissions filed on behalf of the plaintiff it is said that prior to the accident, the plaintiff worked as a nurse, working one six‑hour shift per month at $33 per hour. As a result of the accident injuries it is said that the plaintiff was unable to continue to work the shift and she claims for that loss of income from approximately June 2005 until the date of the trial being the sum of $9,543.60. This assertion was not the subject of any oral evidence from the plaintiff at trial and so perhaps not surprisingly she was not cross‑examined on the issue. Further, it is not clear when it was prior to the accident that the plaintiff carried out this work or where she worked or what generally and precisely the nature of that shift work was. The plaintiff mentioned in the course of her evidence that she was a qualified nurse and had worked for a short time after qualifying in that occupation, before moving to the area of pharmaceutical and surgical sales. She also gave evidence that she worked for a very short period of time, approximately one month at Hatherley Medical Centre but that was well after her accident. Finally, the plaintiff gave evidence that at one point, in order to maintain her nursing qualifications she worked at a hospital for one month but received no payment for that work. In the circumstances in the absence of any evidence from the plaintiff regarding this aspect of her claim for past economic loss I am not minded to make the award sought.
Prior to the accident the plaintiff was earning $97,000 per year which consisted of $61,000 base salary, $19,000 in bonuses and a $17,000 car allowance. This equates to $1,865.38 per week gross or $1,231.50 net per week for a 37 hour five day week. As a result of the injuries sustained in her accident the plaintiff did not work from 22 February to 1 March 2005, a period of approximately one week. In relation to this period her economic loss is therefore $1,231.50 net.
On 18 April 2005 the plaintiff returned to full‑time employment at B Braun but as a result of her injuries following the accident she was unable to work a 37 hour week, rather she cut her hours to 18.5 hours per week until 3 May 2005, a period of 2.29 weeks. The plaintiff's economic loss for this period is therefore $615.75 x 2.29 = $1,410.00 net.
As previously indicated I find on the evidence that as a result of the injuries sustained in the motor vehicle accident the plaintiff was unable to continue to meet the demands placed upon her in employment at B Braun and so she changed her employment to Dansac as from 1 June 2005. At Dansac the plaintiff was earning $45,200 gross or $34,475 net per annum for working a 20 hour week. The difference therefore between her annual salary at B Braun and her annual salary at Dansac was $51,800 gross or $34,236 net per annum. I consider this difference to be the appropriate basis to calculate her past economic loss relevant to this aspect of the claim. The plaintiff worked at Dansac on this basis until 1 August 2006 when she left work on maternity leave prior to the birth of her third child in September that year. The plaintiff's economic loss for this period, being 61 weeks, is $60,606 gross or $40,161.46 net.
After the plaintiff's third child was born on 17 September 2006 I accept given her work history and the financial need for the plaintiff to work it is reasonable to take the view that but for the injuries sustained in the accident the plaintiff would have returned to full‑time sales representative employment between four and six months after the birth of her child. It is fair in my view to consider that she would have returned to work from 1 February 2007 and therefore her economic loss from that point to date of trial on 9 February 2009 is a period of two years. The plaintiff's economic loss for this period is therefore $128,076 net.
The total past economic loss of the plaintiff therefore is:
22 February 2005 to 1 March 2005 $1,231.50 net
18 April 2005 to 3 May 2005 $1,410.00 net
1 June 2005 to 1 August 2006 $40,161.46 net
1 February 2007 to 9 February 2009 $128,076.00 net
Total$170,878.96 net
Interest on past economic loss
Interest at 3 per cent per annum is claimed on the award of damages for past economic loss for the period 22 February 2005 to 9 February 2009, being four years.
Therefore the award relevant to this aspect of the claim is:
$170,878.96 net x 3% x 4 years = $20,505.47
Diminished perimeter of employment
Counsel for the plaintiff submits that she has suffered a reduced perimeter of employment as she is no longer able to engage in activities which involve repetitive bending and lifting, prolonged sitting or standing, working with arms raised above shoulder level and the use of knee, shoulder and hip. It is said that as a result the plaintiff is prejudiced when competing in the open labour market. In relation to this aspect of the claim the court is urged to award the plaintiff damages in a global amount in relation to a period from date of trial until the plaintiff attains the age of 70 years.
There was no specific or clear evidence regarding problems that the plaintiff might have in particular involving her knee, shoulder and hip. The other physical problems referred to were covered in the plaintiff's evidence as well as mentioned in the evidence of various medical practitioners and their reports but it was not suggested that the plaintiff is entirely precluded from engaging in that range of activities, although certainly she is limited to a degree in being able to carry them out or engage in them.
There was no evidence that the plaintiff intended working until 70 years of age, in fact there was simply no evidence as to her intended age of retirement. However, given the plaintiff's consistent work history until the time of her accident and her attempts to work following the accident, as well as her desire to work it is fair to assume that the plaintiff would not have taken early retirement. Given the positive prognosis and taking all of the medical evidence into account, against this background I consider that within 12 months of date of trial the plaintiff's condition will have improved to the extent that she can re‑enter the workforce, albeit with some restrictions to which reference has previously been made. Taking this into account and the plaintiff's future having re‑entered the workforce I consider that an appropriate award to reflect her diminished perimeter of employment is in the order of $50,000.
Future loss of superannuation benefits
$50,000 x 9% = $4.500.00
Past loss of superannuation and interest
On these findings the plaintiff's past loss of superannuation is to be calculated on the following gross sum:
22 February 2005 to 1 March 2005 $1,865.38 gross
18 April 2005 to 3 May 2005 $2,135.86 gross
1 June 2005 to 1 August 2006 $60,765.38 gross
1 February 2007 to 9 February 2009 $194, 000.00 gross
Total$258,766.62
(rounded up to $258,767.00)
$258,767 x 9% = $23,289.00
From this must be deducted 30 per cent or $6,987 to reflect the principle in Jongen v CSR Ltd (1992) A Tort Rep 81‑192 by making an allowance for tax and fund administration expenses.
$23,289 — $6,987 = $16,302.00
Interest on past superannuation
$16,302 x 3% x 4 years = $1,956.00
Future medical treatment
According to the plaintiff's evidence she does not take a great deal of medication to deal with pain, anxiety or sleeplessness. The medical evidence does not support continued chiropractic or massage treatment and in Mr Vaughan's opinion such treatment after this passage of time is not recommended. Some ongoing exercise program over the next 12 months in combination with relevant attendances on Dr Gild and the purchase of appropriate medication is properly reflected in my view in an award of $3,000 under this head of damages.
Special damages
Relevant to this aspect of the claim solicitors for the plaintiff filed a relatively extensive schedule of special damages consisting of 43 categories for which damages are claimed, as well as five items relating to outstanding medical expenses as at 5 February 2009. At trial counsel for the plaintiff advised that categories 18 and 19 as well as categories 27‑43 were not being pursued as they related to business expenses not connected with the plaintiff’s claim.
Categories 1, 2 and 3 were accepted by counsel for the defendant as being payable by it. These are:
1.Brentwood Pharmacy $190.45
2.Pharmacy 777 $95.90
3.St John of God Subiaco $501.75
Five visits to Massage Works in 2005 and 2006 are claimed in category 4 but I am not inclined to allow this claim as in the light of the medical evidence overall I do not accept that in the circumstances this was effective medical treatment. For the same reason I do not allow the claim for the naturopathic treatment pursued by the plaintiff in 2008 as on her own admission it was not beneficial and further it would not seem to have been recommended by any medical Practitioner.
Category 5 is a claim for one treatment of acupuncture and this is allowed as it was suggested by Dr Gild as part of the plaintiff’s treatment.
AACMA $55.00
Category 6 an attendance by Dr Bird on 26 December 2005 at the plaintiff’s home to treat her for a migraine headache is allowed.
Dr Bird $160.00
In all of the circumstances I do not consider it reasonable that the defendant should bear the cost of clothing or exercise equipment purchased by the plaintiff particularly, as in part this was connected with a weight reduction programme undertaken by the plaintiff which would not appear to have a direct connection with the sequelae of the accident. Nor do I consider it reasonable that the plaintiff should be awarded the cost of a bed and bedding purchased by her following the accident and that therefore disposes of categories 7, 8, 9, 10, 11, 12, 17, 21 and 22. I do not make an award for category 26 being Enjo cleaning equipment purchased by the plaintiff, as again it was not suggested as part of her treatment. However, in the light of the medical evidence and as part of the plaintiff’s rehabilitation programme I consider it reasonable that an award be made in relation to category 20 and category 24, being:
Babes on the Run $702.00
Melville Aquatic Fitness Centre $40.00
Category 13 is an account in relation to Dr McManus of 2 February 2007 relevant to investigating the cause of sinus problems the plaintiff was suffering at that time. This claim is allowed as Dr Gild referred the plaintiff to Dr McManus as part of an investigation as to the source of the plaintiff's headaches.
Dr McManus $110.00
The defendant accepts liability to pay for categories 23 and 25 which are:
Australian Breast Feeding Association $25.00
SKG Radiology $169.00
Substantial claims are made in relation to the many attendances that the Plaintiff made at the Applecross Chiropractic Centre and Riseley Physiotherapy. In relation to the chiropractic treatment, counsel for the plaintiff concedes that no award should be made for any attendances or treatment prior to 22 February 2005. The plaintiff’s first attendance at the Centre following her accident was on 15 June 2005 and thereafter she attended regularly until 18 August 2008. I consider that the plaintiff is entitled to reimbursement for those particular attendances.
Applecross Chiropractic Centre $4,551.00
Riseley Physiotherapy $4,672.45
Finally, the plaintiff is entitled to an award in
relation to outstanding Medical expenses to5 February 2009 which total $3,954.75
Total award for special damages $15,227.30
The plaintiff has been paid an amount by way of workers' compensation. I will hear counsel as to any issues that arise with respect to Fox v Wood (1981) 148 CLR 438 as the matter was not addressed by way of submissions at trial.
Summary of award
Non‑pecuniary loss $37,800.00
Past economic loss $170,878.96
Interest on past economic loss $20,505.47
Past loss of superannuation $16,302.00
Interest on past superannuation $1,956.00
Diminished perimeter of employment $50,000.00
Future loss of superannuation $4,500.00
Future medical treatment $3,000.00
Special damages $15,227.30
$320,169.73
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