Wilkes v Boardman - [2002] WADC 202

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: WILKES -v- BOARDMAN [2002] WADC 202

CORAM: YEATS DCJ

HEARD: 2 SEPTEMBER 2002

DELIVERED : 26 SEPTEMBER 2002

FILE NO/S: CIV 2886 of 2000

BETWEEN: HANNAH WILKES
Plaintiff
AND
LELAINE MARGARET BOARDMAN
Defendant

Catchwords:

Damages - Motor vehicle accident - Liability admitted - Assessment - Plaintiff's evidence false and unreliable - Past loss of earning capacity nil award - Future loss of earning capacity nil award - Pain, suffering, and loss of amenity below statutory threshold - Future medical expenses $1,000

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943

Result:

Plaintiff awarded $1,000

Representation:

Counsel:

Plaintiff: Mr D L Jones and Ms C F Holyoak-Roberts
Defendant: Ms B A Mangan

Solicitors:

Plaintiff: John Rando & Co
Defendant: Phillips Fox

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

Bowen v Tutte (1990) A Tort Rep 81‑043
Graham v Baker (1961) 106 CLR 340
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Thomas v O'Shea (1989) A Tort Rep 80-251

Case(s) also cited:

Nil

YEATS DCJ: This is an assessment of damages in relation to the plaintiff's claim arising from injuries she suffered as a result of a motor vehicle accident on 15 August 1997. The defendant has admitted liability.

The accident

At the time of the accident the plaintiff was a 19‑year‑old student studying for her TEE at North Lakes Senior High School. The accident happened at about 1.00 pm in the afternoon when she was returning home from school. It had rained earlier in the day so that the road surface was wet. The accident happened when the plaintiff was proceeding along a dual carriageway and noticed a dog sitting on the pavement. She slowed down and eventually came to a stop when the dog ran in front of her. The defendant was following the plaintiff some 30 or 40 metres behind in a white station wagon. She braked but her wheels locked and skidded on the wet pavement and she came into collision with the rear of the plaintiff's vehicle. The left front bumper of the defendant's vehicle hit the right rear bumper of the plaintiff's vehicle. The plaintiff was driving a 1967 Toyota Corona while the defendant was driving a white newer model station wagon.
There is a considerable conflict between the evidence of the plaintiff and of the defendant as to the events following the accident. The plaintiff gave evidence that her body felt very jolted, that she was physically moved while holding the steering wheel. She remembered the defendant speaking to her and asking her if she was ok but could not recall her answer. The plaintiff gave evidence that she was shocked and shaking all over but admitted she would have been reasonable and understanding. The defendant gave evidence that they both pulled over to the side of the road and both emerged from their vehicles. According to the defendant she asked the plaintiff if she was alright and the plaintiff said she was fine. The defendant's evidence was the plaintiff did not appear to be shaking or shocked. Nor was she angry or upset. The defendant's car had a buckled bumper, its left indicator was cracked and there was a crease on the side panel. When she pulled to the side of the road her left front tyre ran over a rim that had been knocked off in the accident so that the tyre was punctured. According to the defendant the plaintiff assisted her in changing the tyre. According to the defendant the plaintiff picked up the spare tyre where the defendant had laid it on the grass and brought it to the defendant who then put it on her car. The plaintiff denied lifting the tyre. She said she stood with the defendant while she changed her tyre and she held things for her.
The plaintiff gave evidence that she did not have her vehicle repaired after the accident because it was only worth $900. She said none of her lights were broken by the impact. The defendant gave evidence that her station wagon cost under $800 to repair.
The plaintiff gave evidence that she arrived home about 3.00 in the afternoon, had a cup of tea and went to bed because she didn't feel she could stand up. She had a headache and was uncomfortable in the night and her back started to hurt at night. She said she felt worse the next day experiencing headache and neck pain and she took the day off from her studies. She said she tried to take it easy.

Medical and employment history

It was not until some four days after the accident on 19 August 1997 that the plaintiff saw her doctor. She said she did not go to the doctor until her mother forced her to do that. She said she was back at school two days after the accident. The plaintiff saw Dr Quinlivan, a locum doctor at Dr Sandra Parsons' surgery. From the records at the surgery Dr Parsons reported that on the first visit she complained of a very sore neck with more pain on the right side, a painful upper chest, referred pain into her right arm and pins and needles probably from nerve root irritability referred down her right arm. It was noted that she had a full range of neck movement but was tender over the right side of her neck and upper back.
There was no treatment prescribed for the plaintiff by Dr Quinlivan. The plaintiff admitted in her evidence that she did not follow up that visit. Two days earlier she had returned to her TEE studies and she completed her studies before she again returned to see Dr Quinlivan. The plaintiff's explanation for this was that she thought if she had seen a doctor he would have stopped her continuing with her TEE. This was the plaintiff's third attempt at her TEE. She had first attempted year 11 in 1993 but abandoned it after the first semester because of the attitude of her human biology teacher. The following year in 1994 the plaintiff attempted year 11 again but decided not to continue with her education and left at Easter time at the end of the first term. Therefore in 1997 the plaintiff said she was determined to finish her TEE and sit her exams in November. She did not want to see a doctor again because the doctor might advise her not to continue and then she would have to abandon her TEE.
The plaintiff described her symptoms as getting worse during this period, that she was having dizzy spells and at times she could not see properly. She found she was not comfortable sitting, standing or lying down and had pains in her arms, legs and head. She said her symptoms interfered with her study but she completed her TEE. She sat her exams in November 1997 some three months after the accident. Her results (Exhibit 10) show that she did quite well in her TEE and improved on her 1996 results earning two A's and two B's in her subjects.
After completing her TEE at the end of November 1997 the plaintiff again returned to see Dr Quinlivan. On this occasion she complained that her neck had not felt the same since the accident and she'd had shooting pains up the back of her head, worse on the left side. She was still tender around the facet joint areas from C3 to C5. Dr Quinlivan recommended she undergo physiotherapy treatment. Exhibit 3 shows her physiotherapy treatments commencing on 8 December 1997 and continuing until the end of August 1998. She said she was given manipulation and massage which provided some temporary (but not full) relief from her symptoms.
On 29 August 1998 the plaintiff travelled overseas to visit her boyfriend in the United States. In her examination in chief she said that her boyfriend cared for her. She said she went for walks and didn't just sit around and watch TV but she said she did not work while she was in the United States. However, during her cross‑examination, the defence produced her résumé, Exhibit 14, which she had prepared in 2002 in an application for employment with David Jones in Perth. That résumé shows that between August and November 1998 she held a full time position as second in charge at Modern Image, a boutique in Newport, Rhode Island in the United States where she sold women's clothing and shoes. She also listed employment in September 1998 as a sign writer for a deli in Newport, Rhode Island. Under cross‑examination she claimed that she only worked 6 hours a day in the boutique and that the sign was a one off job, a 40 x 60 cm oval sign saying "The Deli". She said she was not paid for doing the sign.
The plaintiff returned to Australia in December of 1998 and in January she visited Dr Parsons where she reported pain in her lower back referred to both legs. Dr Parsons sent her for an x‑ray at her request. She saw Dr Parsons again on 27 January 1999 and 5 February 1999. She complained of continuing pain in her back and neck, that sleeping was a problem, that she had persisting headaches and referred pain in her arms. Dr Parsons referred her for acupuncture and chiropractic treatment.
The plaintiff first attended at the rooms of the chiropractor, Dr Charles Bro, on 4 March 1999. Dr Bro reported that she was complaining of neck pain, insomnia, headache or migraine, dizziness or vertigo, shoulder pain and weakness, elbow pain and weakness, wrist pain and weakness, hand pain and weakness, pain between the shoulder blades, lower back pain, buttock/leg pain and numbness and coccyx pain. This account of symptoms is well beyond anything ever mentioned by the plaintiff in her evidence in chief.
The plaintiff gave evidence that her chiropractic treatments made an immediate difference. She had relief from her symptoms and began making applications for work. She gained part‑time employment as a waitress at the Indiana Tea Rooms commencing on 19 April 1999. Her employment record showed that she ceased employment at Indiana Tea Rooms on 12 September 1999. During the intervening weeks she worked for 7 ‑ 30 hours each week. Besides that waitressing job, the plaintiff was approached by her former employer, a friend at Betts & Betts, where she had worked in 1994. She was offered work and commenced part‑time employment at Betts & Betts on 6 April 1999. She found the two part‑time jobs required a lot of hours. On 12 July 1999 she was offered full time employment at Betts & Betts doing about 38 hours of work a week. She then held that full time job along with her casual employment at the Indiana Tea Rooms until she resigned the latter employment on 12 September 1999.
The plaintiff ended her full time employment at Betts & Betts in January 2000 when she resigned to travel to the US to live with her boyfriend. She lived with him until June of 2000 when they broke up. Then she went to London and stayed with her mother for a month and then with relatives. By November of 2000 she again went to live with her boyfriend in the UK.
In her evidence‑in‑chief the plaintiff said that she did not work in the UK or the US on these visits. She said she couldn't find anything she could do. She said her mother would not let her do anything and when she lived with relatives she did not have the capacity to do anything. She might cook one meal a week for the relatives. She did spend time for about four months looking after a great aunt. In her evidence‑in‑chief the plaintiff claimed her boyfriend supported her and she did not work from November 2000 until January 2002 when the relationship ended and she returned to Perth.
However, under cross‑examination the plaintiff admitted that she had worked as a wait person in Philadelphia between January and March 2000 and again between April and June 2000 at another bar. She also had been doing some work with her boyfriend in fitting out a kitchen. While she was in London she did some child minding. She also answered the telephone and assisted her boyfriend in London between December 2000 and January 2002. All of that employment is set out in some detail in her résumé, Exhibit 14. Under cross‑examination the plaintiff claimed that much of that was a fiction and that she had put things in her résumé so that there were no gaps in her employment. Nonetheless, she did admit working as a wait person in Philadelphia for two periods. That directly contradicted her evidence‑in‑chief that she did not work while she was overseas during 2000 and 2001. The plaintiff gave evidence she saw an osteopathic physician in London and a chiropractor twice in the United States but she found the health system in the United States very costly. She said she was getting better while she was in the UK and the osteopath treated her once a week for four or five months.
The plaintiff gave evidence that when she returned to Australia on 23 January 2002 she was "a mess". She said she was not well. She was unhappy. She was making herself sick because she was not eating. Apparently much of this arose from her not eating properly and also not being in good mental condition. Nonetheless she looked for work. She said she made a number of job applications and in April 2002 she obtained casual work with Susanne's for about a month working 7 hours per week. That was not enough income so she took up employment with David Jones as a permanent part‑time sales assistant commencing on 27 May 2002. The records of her employment at David Jones (Exhibit 8) show that it was virtually a full time position. She worked 80 hours during the period ending 15 June 2002 and 77½ hours during the period ending 29 June 2002. During July and August of 2002 she worked 65 or 70 hours each fortnight. The plaintiff gave evidence that she enjoys her work. She says she does not do a lot physically at work. It mainly involved selling. But she does some bending which causes problems. She says she can only sit during lunch breaks and by the end of the day is quite tense and sometimes her headache is more severe.

Current symptoms

The plaintiff gave evidence that the pain in her neck is not as severe after treatment but it is a definite pain at the middle of her neck when she moves her neck. She described it as a stabbing pain which is there all the time and when it is worse she has severe pains up into her head. She conceded that after chiropractic treatment she would be symptom free for a period of time. She had no back problems when she returned to Australia in 2002 but she had pains in her thoracic spine. She had relief from her back problems while she had osteopathic treatment in the UK but since returning to work she said the pain has returned in her right lower back from sitting. Her headaches continue on a daily basis and one headache, she said, could sometimes last for weeks. The plaintiff said she sometimes can forget that she has a headache; she takes Aspirin and Nurofen.

Effects on lifestyle

The plaintiff gave evidence that the injury from the motor vehicle accident means that she cannot do anything that involves long sitting or bending. She used to enjoy doing puzzles and mosaics and artwork but now finds that she is too uncomfortable to do that sort of close work involving bending. She also used to sew and make clothes but that also involves bending and she cannot do it now. The plaintiff gave evidence that she had done yoga since she was 8 years old, and prior to the accident, she was doing yoga every day as well as having classes with friends. Since the accident she has pain and finds that she cannot do certain positions. Nonetheless she continues to do her yoga and can do about 50 per cent of the things she used to be able to do prior to the accident.
The plaintiff gave evidence that she has a problem sitting and watching movies. Prior to the accident she helped her mother with gardening, cooking, cleaning and washing up but, since the accident, she is unable to do any vacuuming or weeding. She was unable to do cooking which involved a lot of stirring because it made her right side go numb. She admitted that while she was in the United States with her boyfriend during 2000 she did some cooking and mopped the floor occasionally. In the UK when she lived with her mother from June to August her mother would not let her do anything but when she lived with relatives and then with her boyfriend from November she did some cooking and some cleaning.

Medical evidence

The medical reports were tendered by consent without any doctors being called to give evidence. Dr Sandra Parsons, the plaintiff's GP, provided an initial undated report and a second report dated 3 February 2000. Those reports contain no diagnosis. They merely record the plaintiff's complaints and the treatment that was recommended by Dr Quinlivan and Dr Parsons. Treatment included physiotherapy recommended in December 1997, an x‑ray ordered in January 1999 and referrals for acupuncture and chiropractic treatment in early February 1999.
The plaintiff was never referred to a specialist by her own doctors but the Insurance Commission arranged for her to be seen by Mr M J McCallum, orthopaedic surgeon. Mr McCallum provided reports in December 1998, March 1999, June 1999, November 1999 and March 2002. Mr McCallum diagnosed a soft tissue injury to her cervical spine involving the C2‑3 segment. He recorded altered sensation in the C2 nerve root dermatome in the classical manner of the flexion and extension patient. Mr McCallum reported that she was wasting at the left L4‑5 or 5‑1 facet joint area in multifidous with underlying tenderness. She also had pathology in her left sacro‑iliac joint. After reviewing the x‑rays in March 1999 Mr McCallum noted that there was a great deal of movement taking place at C4/5 between flexion extension although it was still within the normal range. In his opinion the plaintiff was "hinging" at that level and Mr McCallum thought that this was where the majority of her pain was coming from. By November 1999 Mr McCallum reported that the plaintiff had made a good recovery from soft tissue injuries to her cervical, thoracic, lumbar and lumbo‑sacral areas.
In his final report in March 2002 Mr McCallum said that the plaintiff seemed to be having symptoms out of proportion to any physical findings. The only significant finding as far as Mr McCallum was concerned was the change in the cervical posture on the lateral x‑ray. He believed that there is restrictive movement at C5/6 which is causing excessive movement at C4/5 and may be the cause of some of her headaches. He went on to find that the physical signs in her thoracic spine and thoraco‑lumbar junctional area was minimal and he could not understand why these would cause very severe pain at times.
The only treatment suggested by Mr McCallum was to attend a physiotherapist knowledgeable in the management of cervical spine injuries.
Dr Charles Bro, the chiropractor, reported on 18 June 1999. He diagnosed the plaintiff as suffering from "cervical acceleration‑deceleration syndrome with associated chronic moderate spinal subluxation complex". Dr Bro went on to say that the subjective complaints of the patient and the objective findings from examination were consistent with those that would be expected to occur as a result of the accident in question. Dr Bro noted at that time that the plaintiff reported working over 46 hours in five days and his opinion was that her condition would not preclude her from engaging in full time work provided that she is permitted to complete an appropriate rehabilitation programme.
Another orthopaedic surgeon, Mr John E Crockett, a specialist in orthopaedics and trauma reviewed the plaintiff in March 2002 and provided a report. Mr Crockett's prognosis and assessment was that the plaintiff had suffered a soft tissue injury to her mid‑cervical spine probably involving mostly the posterior facetal joints at C4-5-6 level. He also noted that he believed it was evident from her history that she had some early post‑concussion syndrome, which suggested a fairly severe rotational head injury (without any direct blow). He also noted soft tissue injuries lower in her spine and that she had 9/9 Joint Hypermobility Syndrome. That syndrome he believed would contribute towards what appeared to be early degenerative changes at the C4‑5‑6 level.

Mr Crockett recommended that so far as future treatment was concerned that she should avoid any direct hands‑on treatment of her neck in the form of mobilisation. In his view her neck was already hypermobile and what she needed to do was aim at strengthening her neck muscles. He recommended Pilates treatment. Mr Crockett said that she would be limited with regard to any work which required constrained positions of the head and neck, repeated heavy lifting and sitting for long periods in one position. He believed her chances of a job on the open market had been reduced by the accident but, overall, in a suitable job that her working life had not been shortened.
The Insurance Commission arranged for the plaintiff to be reviewed in August 2002 by Mr Nicholas Anastas, orthopaedic surgeon. Mr Anastas' diagnosis was that she had features consistent with a soft tissue musculo‑ligamentous type injury to her cervical spine and lumbo‑sacral spine. Mr Anastas considered her fit for work provided she was shown the proper way to lift and bend. He did not believe that her present condition had decreased her earning capacity or compromised her ability to compete in the open work force. Nor did he believe that the motor vehicle crash had shortened her working life. As far as treatment was concerned Mr Anastas advised the plaintiff to undertake a programme of isometric neck exercises and lower back exercises which she could do independently and unsupervised at home. He also considered she might need anti‑inflammatory analgesic cream in her tender areas.

Credibility

The plaintiff's credibility was badly marred by the false evidence about her work history she gave during her evidence‑in‑chief. In her evidence‑in‑chief she recounted two occasions when she went overseas after the motor vehicle accident. She said that when she went overseas at the end of August 1998 she was supported by her boyfriend and did not have employment. She gave evidence she had no work permit. Yet, under cross‑examination, she admitted that during that trip she took up a full time position working six hours a day at a boutique in Newport Rhode Island and also did some limited work as a sign writer. The plaintiff continued in that vein of giving false evidence about her employment when in her evidence‑in‑chief she said that when she went to the United States in January 2000 and lived with her boyfriend for six months she did not work. She went on to say that during the 18 months she was in London with her mother and relatives she did not work because she did not feel capable. She said she was offered a chance to heal herself and she did not need to work. However, under cross‑examination it was apparent that the plaintiff had worked as a waitperson in bars over a number of months in Philadelphia, and had done other work while she was in London.
When a plaintiff approaches the District Court and seeks damages for past loss of earning capacity and future loss of earning capacity her credibility will necessarily be a key aspect of her case. In this case I do not have confidence in the plaintiff's evidence. Aspects of it were not truthful. I do not find her to be a reliable witness. Undoubtedly there are parts of her evidence which could be true but her evidence of loss of earning capacity cannot be accepted. With soft tissue injuries such as she has suffered much of the diagnostic work of her doctors is necessarily based on her subjective complaints of pain and information on what she is able to do. It was of particular concern to read recent medical reports, that the plaintiff lied to Mr Anastas when she told him that during 2000 and 2001 she was in America for six months and then travelled to England for about 18 months and "she did not work in either America or England". She has lied to Mr Anastas about her work capacity. Likewise it appears from the report of Mr McCallum in March of 2002 that the plaintiff told him that she lived with her boyfriend in the UK and did not work while she was there apart from "bead work and art painting". She has lied to Mr McCallum as well.
The plaintiff's true work history only emerged under cross‑examination because defence counsel subpoenaed David Jones to provide her application documents for her permanent employment with David Jones which commenced in May of 2002. Her work history was contained in her resume presented to David Jones and, under oath, the plaintiff did admit that she had worked while overseas both in 1998 and in 2000 and 2001.
The plaintiff's father gave evidence to bolster her case. He said he had been divorced from the plaintiff's mother for some 10 years but that he saw the plaintiff once or twice a week during that period. Her father described her as pretty fit and well prior to the accident and said that she was the most lively and vivacious of his six children. The plaintiff's father said he saw her three or four days after the accident and that she was "as flat as a pancake", shaken and probably still in shock. He said his contact with her increased during 1998 before she went to America and that during that period and during 1999 she varied from "flat" to being back to her old self. He admitted that he did not see her at all during 2000 and 2001 while she was overseas. When she returned in January 2002 he met her at the airport and described her as being "as flat as she could possibly be". He said the plaintiff stayed with him for six months during 2002.
Several aspects of her father's evidence detract from its credibility. First of all, he is not an independent witness. He is related to the plaintiff and would have an interest in the outcome of her claim. Secondly, the plaintiff was living with her mother at the time of her accident and according to the plaintiff it was her mother who "forced her" to see Dr Quinlivan. During 2000 the plaintiff lived with her mother for a time in London. With that background it was surprising her father was called as a witness and not her mother. Thirdly, her father's evidence of her being "as flat as she could possibly be" when she returned to Australia in 2002 confuses his evidence. There is no basis to suggest her symptoms were worse at that time. The plaintiff gave evidence her symptoms improved while she was in London. Any "flatness" would not be associated with any symptoms arising from her neck injury. Taking all of these matters into account, I attribute very little weight to the plaintiff's father's evidence.

ASSESSMENT

Past loss of earning capacity

The plaintiff claimed $25,080.25 for past economic loss for the period from December 1997 when she completed her TEE until April 1999 when she commenced employment at Betts and Betts. Because of the plaintiff's admission that she did work full time when she went overseas at the end of August 1998 that period would have to be reduced at least to the end of August 1998, a period of nine months from the beginning of December 1997 when she finished her TEE and did not seek employment. The plaintiff claims $16,470.34 for that 38 week period.
The plaintiff had an interesting employment history. In September 1994 she had been employed as a sales assistant at Betts and Betts and held that position until October 1995 when she took extended leave and travelled to the UK. The plaintiff gave evidence that in 1999 she did not apply to Betts and Betts but they approached her and offered her a position. This gives rise to the question of whether had she approached Betts and Betts in December of 1997 she would have gained employment with them and whether she had the capacity in December 1997 to undertake full time sales work.
In her evidence‑in‑chief the plaintiff said that she enjoyed studying art and had decided to undertake textile studies at university upon completion of her TEE. She admitted, however, that she did not apply for a place at university in 1997. She said that because of the car accident she did not think she could finish her TEE let alone do a university course. She said the time to apply to university was in August and she did not do it. She did admit, however, that she could have made a late application for a place at university but she did not do so.
In her evidence-in-chief the plaintiff said that she did not obtain any employment while she commenced physiotherapy in early December 1997. She said she was not capable of working because of dizzy spells, headache and neck pain. Her evidence-in-chief focused on the work the chiropractor did in manipulating her neck commencing in March 1999 and she gave evidence that it was only that treatment that enabled her to work again. The plaintiff's evidence about that cannot be accepted. It is contradicted by her full time employment while she was overseas commencing in late August 1998 long before she was treated by the chiropractor.
Under cross‑examination the plaintiff was questioned extensively about why she did not seek any employment commencing in December 1997. She said she did not feel capable of working and did not try to obtain employment. She said she was on sickness benefits and in severe pain and she wanted to recover her health before she returned to work. She said she did not feel capable of even one day or a half day's work a week during the nine month period from 1 December 1997 until August 1998.
One matter that is troubling about the plaintiff's history is her apparent capacity to have done well in her TEE exams despite her soft tissue injuries. She did so without attending doctors or having any treatment. There is no explanation as to how she would have been able to do that and yet not be capable of any employment in December of 1997. Her preparation for her TEE exams and the exams themselves must have required a considerable amount of time spent sitting and studying. During the exams a considerable amount of time must have been spent sitting and writing. She did quite well on her exams and it is difficult to understand why she could have no work capacity in December 1997. That was four months after the motor vehicle accident. A soft tissue injury generally improves over time. It is surprising that in the plaintiff's case after four months she became incapacitated for any employment.
Having reviewed the plaintiff's history and taking account of my assessment of her credibility I find it implausible that she could not have worked in December 1997 given her capacity to so successfully complete her TEE.
Another unusual feature of the plaintiff's work history is that in 1999 she was able to work two part time jobs. She took on employment part time as a waitperson at the Indiana Tea Rooms and took on work as a sales person with Betts and Betts selling shoes. Both of those jobs are very physically demanding. It was necessary that she carry things, that she bend and that she be on her feet for long periods of time. There is no evidence that she had any incapacity for either of those jobs. In fact she gained full time permanent employment at Betts and Betts on 12 July 1999 and managed that full time work along with part time work as a wait person for a two month period until 12 September 1999 when she ceased her casual employment at Indiana Tea Rooms. It seems surprising that she was able to go from being incapable of working at all in early 1999 to working more than 40 hours a week at physically demanding jobs.
Another troubling feature of this case arises from the defendant's evidence. The defendant was a very credible witness. She is a school teacher and she impressed me as an honest and reliable witness. Liability was not in dispute and I can see no possible motive for her to exaggerate her evidence. I accept her account of events immediately following the accident. I accept her evidence that the plaintiff assured the defendant that she was fine and that the plaintiff did not appear to be shaking or shocked or upset. I also accept the defendant's evidence that the plaintiff lifted a spare tyre off the grass and brought it to the defendant when the defendant was changing her tyre. I also accept the defendant's evidence that she telephoned the plaintiff that night and was again assured by the plaintiff that she was fine. I also accept the defendant's evidence that she saw the plaintiff some time later at the North Lake High School Campus chatting with friends quite normally.
The defendant's evidence is inconsistent with the account the plaintiff gave of her symptoms after the accident. The defendant's evidence casts doubts on the plaintiff's evidence of the severity of her symptoms and casts doubts on the plaintiff's evidence generally. I do not accept the plaintiff's evidence about her early symptoms. I am satisfied that the plaintiff has exaggerated her symptoms from the beginning and continued to exaggerate them prior to trial. That finding is reinforced by Mr McCullum's evidence in his final report in March 2000 that the plaintiff seemed to be having symptoms out of proportion to her physical findings.
In Australia, a plaintiff is compensated for loss of earning capacity, not loss of earnings (Medlin v State Government Insurance Commission (1995) 182 CLR 1 per McHugh J at 16). An injured plaintiff recovers not merely because their earning capacity is diminished but because the diminution of her earning capacity is or may be productive of financial loss (Graham v Baker (1961) 106 CLR 340 at 347). Therefore, in order to establish her claim for past economic loss the plaintiff must establish that as a result of the accident she has lost her pre‑accident earning capacity. (Thomas v O'Shea (1989) A Tort Rep 80-251 at 68,701: Bowen v Tutte (1990) A Tort Rep 81‑043 at 68,084.) It is only when the plaintiff establishes a loss of her pre‑accident earning capacity that the Court assesses damages for that loss. In this case the plaintiff has failed to satisfy me on the balance of probabilities that she lost her pre‑accident earning capacity. I accept that she suffered soft tissue injuries to her cervical spine with associated nerve root irritation as well as soft tissue injuries to her thoracic, lumbar and lumbosacral spine. However, I am not satisfied those injuries affected her earning capacity. I am not satisfied that she could not have taken up full time employment with Betts and Betts in December 1997. I am satisfied that work would have been available to her if she had applied. For these reasons I make no award for past loss of earning capacity.

Future loss of earning capacity

I rely on the evidence of Mr McCallum and of Mr Anastas. I am satisfied that the plaintiff's earning capacity has not been decreased as a result of her injuries. Nor will she in any way have her ability to compete in the open work force compromised. Nor will her working life be shortened. For these reasons I make no award for future loss of earning capacity.

Pain, suffering and loss of amenity

I accept that the plaintiff did suffer soft tissue injuries. I do not accept that those injuries were as serious or as debilitating as she claims. Because of her loss of credibility I am left in considerable doubt as to the extent of pain and suffering that she has suffered.
I do accept that this sort of injury, that is a soft tissue injury to her neck, has been painful for her and has caused her some ongoing problems. I am unable to make any findings about the extent to which her injury has interfered with her artwork, her sewing or her daily living activities. While I accept that she has suffered some problems sleeping as a result of the soft tissue injuries I am unable to determine the extent of whose problems because of the plaintiff's false evidence and loss of credibility.
In assessing the plaintiff's claim for loss for pain, suffering and loss of amenity the Court is bound by the provisions of s 3C of the Motor Vehicle (Third Party Insurance) Act 1943. The maximum amount that can be awarded as at 1 July 2002 is $240,000. The maximum amount may be awarded only in a most extreme case. Section 3C(2) of the Act is in these terms:
"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."
In this case on my assessment of the soft tissue injuries and resulting neck pain, headache and back pain I would assess the plaintiff's non‑pecuniary loss as 3 per cent of the maximum, $7,200. However, s 3C(4) of the Act provides:
"If the amount of non‑pecuniary loss is assessed to be less than $12,000 no damages are to be awarded for non‑pecuniary loss."
Therefore no damages are awarded for pain, suffering or loss of amenity as my assessment is below the threshold.

Future medical expenses

The plaintiff claims $2,000 in respect of future medical treatment based on any chiropractic and physiotherapy treatment and any medication she may require. I accept that there is support in the medical evidence for continuing physiotherapy or Pilates. There is also evidence that she may require non‑prescription analgesics from time to time. I have some difficulty assessing future medical expenses because of my findings that the plaintiff has exaggerated her symptoms and, recently, has lied to Mr Anastas and Mr McMallum. Nonetheless I accept that there could be some ongoing need for physiotherapy, Pilates and analgesics.
I have had schedules of the cost of her chiropractic and physiotherapy treatments. Because of the plaintiff's propensity to exaggerate her symptoms, I award the amount of $1,000 for future medical expenses.

Summary of award

Past loss of earning capacity  No award
Future loss of earning capacity  No award
Pain, suffering and loss of amenity  No award
Future medical expenses  $1,000.00
Total award  $1,000.00