Wood v Fieldhouse - [2008] WADC 37

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: WOOD -v- FIELDHOUSE [2008] WADC 37

CORAM: GROVES DCJ

HEARD: 4-7 SEPTEMBER 2007

DELIVERED : 12 MARCH 2008

FILE NO/S: CIV 1492 of 2006

BETWEEN: TANIA WOOD
Plaintiff
AND
MICHAEL FIELDHOUSE
Defendant

Catchwords:

Tort - Motor vehicle accident - Cervical spine - Mild soft tissue injury - Stress and anxiety work related - Assessment of damages - Turns on own facts

Legislation:

Nil

Result:

General damages $7,400
Agreed special damages $3,000

Representation:

Counsel:

Plaintiff: Mr T Lampropolous
Defendant: Mr J R Brooksby

Solicitors:

Plaintiff: Simon Walters
Defendant: Williams Handcock

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

Den Hoedt & Anor v Barwick [2006] WASCA 196
Southgate v Waterford (1990) 21 NSWLR 427 at 440

GROVES DCJ: The plaintiff claims damages for injuries sustained in a motor vehicle accident on 31 March 2005. The defendant admits liability and the matter becomes one for assessment of damages only.

The accident

The plaintiff was driving her 1986 VK Holden Commodore fitted with a tow bar to work. She was wearing a seat belt. She was stationary in a line of traffic at the light controlled intersection of Roe Street and Fitzgerald Street, Northbridge. She heard a vehicle skid and almost simultaneously a Mazda Astina impacted into the rear of her vehicle. The Mazda had been struck from behind by a BMW driven by the defendant.
The defendant in a statutory declaration tendered at trial (Exhibit 21) stated that at the time of the accident the roads were wet and that the car in front of him stopped suddenly. The defendant was unable to avoid colliding with the rear of that vehicle which was pushed forward into the plaintiff's vehicle. The defendant says that he was travelling at something between 10 and 20 kilometres per hour at the time of the impact.
Repairs to the defendant's BMW cost $2,736.34 (Exhibit 16). Repairs to the rear of the plaintiff's vehicle cost $1,498.86 (Exhibits 2 and 3). The plaintiff observed the Mazda to have sustained damage to both front and rear and had to be towed from the scene. I accept that it was a sudden rear end impact. I would not however, given what appears to have been relatively minor damage to the BMW and the plaintiff's car, consider it to have been a fairly major collision.
At impact the plaintiff's head went forward and she heard a "snap" in her neck. She was immediately aware of injury to the neck which was sore straight away. She alighted from her vehicle and observed damage to the other vehicles. She was shaken and upset. Her vehicle had the bumper hanging off and the tow bar bent up but was drivable and she proceeded to her place of work in West Perth.
That afternoon (Thursday) she left work early and attended her general practitioner Dr Danny Sader at Morley Medical Practice. She attended work next day Friday 1 April but then stayed in bed for most of the weekend of 2 and 3 April. She described her symptoms as being neck stiffness with pain at either side of the base of her skull, pins and needles and numbness in both hands and pain in her mid to upper back and cervical pain. She attended at work on Monday and Tuesday 4 and 5 April. Prior to the accident she had booked three days annual leave for Wednesday, Thursday and Friday, 6, 7 and 8 April. They were not days taken off work as a consequence of the accident. On 6 April she saw Dr Sader again.

Medical history prior to accident

The plaintiff had a number of health related problems prior to this accident. When the plaintiff first started office and desk work in about 1998 she experienced posture related tension in the shoulders and neck for which she has had both physiotherapy with a recommended exercise program and chiropractic treatment. The symptoms subsided once ergonomical work stations were designed and implemented at her then place of employment. An x‑ray taken in 1999 was normal. It has since been her practice to have a massage about every three months to relieve tension around the shoulders.
On 7 September 2004 she attended on a doctor (Exhibit 5) complaining of urinary tract infections and tension headaches. The Progress Notes record "Tension headaches. No neck stiffness."
In January 2005 the plaintiff said she had been getting back into training for kick boxing, had pushed herself and had pain in the chest wall "… like your having a heart attack when you do those push-ups and you pull that muscle". Asked had she consulted her doctor in January about that she responded, perhaps tellingly, "I did. I consult my doctor about any little thing, almost a hypochondriac, any little thing". Dr Sader's notes of 17 January 2005 (Exhibit 5) record her presenting symptoms as something different namely "Rash on chest wall/chest itchy".
On 9 February 2005 after she had learned that her ex partner had been an intravenous drug user she attended on Dr Sader and requested that HIV, Hepatitis B and C tests be undertaken. The test results returned negative for HIV and Hepatitis. The break up and subsequent concern about risk of infection was for a period of some six months, quite an emotionally difficult time for her.
She had attended Dr Sader on 17 February 2005 (6 weeks pre‑accident) and complained of work related neck discomfort. On examination he diagnosed tender trapezei which he attributed to tension and he gave her posture advice.
The plaintiff had also been troubled from time to time by urinary tract infections. In 1996 she had attended on Dr Harry Cohen who found her to be somewhat tense. She said that the urinary tract infection symptoms develop during times of emotional stress in her life. Again in 1999 Dr Cohen had encouraged her to be a less tense person. As noted above, in September 2004 she consulted a doctor complaining of urinary tract infection and tension headaches. At about that time, at her instigation, her relationship with her boyfriend ended.
The plaintiff commenced employment with Leighton Contractors on 19 April 2004. Prior to her accident she had taken sick leave on the following occasions –
2004
19 May (half day), 8 July (half day), 29 July, 5 August, 6 and 7 September, 14 and 15 October, 1 and 16 December.
2005
11 February, 1 and 3 March (half days) and 24 March.
On 1 March 2005 she had seen a Mr Rocchi a chiropractor complaining of neck discomfort as a result of having fallen asleep on a lounge with her head in the wrong position. Otherwise she was not able to be specific as to her need to have those days of sick leave. A medical certificate was only required by her employer if more than two days sick leave were taken at a time.

Medical history subsequent to accident

On the afternoon of the accident the plaintiff attended on Dr Sader. She gave him a history of the accident. It was her evidence that he simply asked her to bend over and touch her toes and declared that she was fine and said "don't worry". In his Progress Notes (Exhibit 5) Dr Sader noted that the plaintiff complained of "minor discomfort in neck" and on examination he noted non‑tender trapezei and full range of movement of the neck. He noted soft tissue injury and recommended neck stretches. He also noted the past history of computer related neck problems and that the plaintiff was attending a chiropractor occasionally. In his subsequent report to the defendant's solicitors dated 30 July 2007 (Exhibit 20) Dr Sader records that his diagnosis made on 31 March (day of the accident) was not significantly different to that which he had made pre‑accident on 17 February 2005. Both diagnoses were soft tissue in nature.
The following week on 6 April 2005 the plaintiff again attended on Dr Sader. It was her evidence that he examined her shoulders, found them to be non‑tender and told her that "everything will be alright". The plaintiff asked if she should have an x‑ray or have physiotherapy and was told that was not necessary. In his progress notes Dr Sader records that there were no new symptoms, non‑tender trapezeis and back and full range of movement of both neck and back. He noted "soft tissue injury resolving." In his subsequent report and in his evidence it was Dr Sader's opinion that at that consultation on 6 April 2005 that the plaintiff "… appeared to have substantially recovered." At no time did he certify her as being unfit for work as a consequence of her injuries.
The defendant's solicitors administered interrogatories to the plaintiff (Exhibit 8). In Answer 6 she acknowledged that on 6 April 2005 she attended Morley Medical Centre (Dr Sader) "… complaining about numbness in hands and persistent neck pain and headaches". It is noteworthy that neither on 31 March nor 6 April is there mention in Dr Sader's notes of any complaint of numbness in the hands or headaches.
In Answer 6 she confirmed that on 24 March she had booked three days annual leave from 6 to 8 April 2005. She states "booked on 24 March because I could not give my employer 100 per cent of my time considering I had to organise car repairs/medical appointment etc". Quite clearly that answer cannot be correct as, at the time of booking the holiday leave, she had not yet had the accident.
The next occasion on which the plaintiff saw Dr Sader was some six months later on 10 October 2005. In that time she did not seek medical attention for accident related injuries from any medical practitioner.
It was the plaintiff's evidence that between attendances on Dr Sader she nevertheless continued to suffer back and neck pain and numbness in her right index finger. She said she was frustrated by her doctor's apparent lack of concern or empathy and that her complaints were not being taken seriously. (Exhibit 8 Answer 7).
She took sick leave on 27 April 2005 when she was unwell and "vaguely recalled back/neck pain aggravated during menstrual cycle (a recurring pattern since injury)." She took sick leave on 16 May when she was not feeling well. On 27 July she took one day sick leave complaining of back/neck pain. She was on sick leave from 24‑26 August when she was suffering from the flu. She consulted Dr Lu at the Noranda Medical Centre on 24 August. No mention was made to Dr Lu of her accident.
It was the plaintiff's evidence that during this period she was under a lot of pressure at work which was stressful for her and that as a consequence her immune system was at an all time low making her susceptible to illness. She was still troubled by neck pain and was depressed because she felt that no‑one was sympathetic to her condition and also that she was pushing herself to please her employer.
On 30 August she attended on Dr Kwa at the Noranda Medical Centre. She sought medical attention for both her throat/chest infection and for depression and was prescribed medication. She was certified unfit for work 30 August and 1 September. It was her evidence that she told Dr Kwa on this occasion about the accident and that he told her that only Dr Hawkins at that practice dealt with medico‑legal motor vehicle accident and work accident cases. Dr Hawkins had been her and her family's general practitioner for over 10 years. She knew that it was difficult to get in and see him. On the other hand Dr Hawkins said that the other doctors in the practice did see motor vehicle accident patients.
She took further sick leave on 30 September 2005 which she described as stress leave and suffering chronic pain and depression and felt ostracised from colleagues who could not "see" or understand that she was working with pain. On 10 October she took sick leave for the same reason. It was on that day that she went back and saw Dr Sader.
It was the plaintiff's evidence that over those months she had resorted to methylamphetamine (described as "ice") to relieve the pain which she was experiencing and also the use of marijuana at weekends. The use of both these illicit substances she said masked the pain which she was experiencing.
On attending Dr Sader on 10 October 2005 she complained of neck pain and numbness and pins and needles in the right arm. Dr Sader noted that she had a full range of movement of the shoulder and was non‑tender. At the plaintiff's insistence she was referred for x–rays and a CT scan. X‑rays of the cervical spine were normal. The CT scan was suggestive of disc protrusions at two levels on the right. She took two days annual leave on 13 and 14 October 2005 and two weeks annual leave from 31 October to 11 November 2005.
Dr Sader referred her to neurosurgeon, Mr G Wayne Thomas whom she saw on 11 November 2005. He referred her for an MRI scan of the cervical spine which was undertaken on 16 November. The scan ruled out any disc protrusion. A slight bulging of the annulus at C5/6 was not considered significant and the possibility of nerve or spinal cord disturbance was ruled out.
On 9 November 2005 the plaintiff had seen Dr Kwa for a sore throat and disclosed to him her amphetamine use which he discouraged. On 24 November 2005 she again attended on Dr Kwa complaining of an aching back. His examination note (Exhibit 22) notes "movements with discomfort, mildly tender".
On attending Dr Sader on 23 November the plaintiff complained of ongoing neck symptoms. Again on 9 January 2006 she complained of ongoing pins and needles in her hands and now in her feet, she had been having physiotherapy and Dr Sader discussed with her anxiety and stress.
On 11 January 2006 she attended on Dr Singh at the Noranda Medical Centre. The doctor's consultation notes (Exhibit 22) record:
"1.Sore throat, frequency.
2.Feeling depressed at present. Had a car accident last year she states since then it is not been right. Feeling down, teary, emotional. No history of depression in the past. Feeling suicidal but no plans of carrying it out.
Work‑personnel assistant feels quite stress about it as well.
Sister is unwell as well, worried about her mum and dad."
On 6 February 2006 the plaintiff was able to see Dr Hawkins who subsequently provided a report to her solicitors dated 26 February 2006 (Exhibit 10).
On 24 February 2006 the plaintiff ceased her employment with Leighton Contractors Pty Ltd. Her leaving was by mutual agreement with her employer and she gave as her reasons (Exhibit 8 answer 28):
"Medical assessment and chronic pain resulted in:
(a)Her inability to commence work on time; and
(b)Absenteeism.
Agreed that my injury and pain and the more time it was taking to seek solutions to fixing my injury (health) ie attending medical assessments, undermining my capacity to perform my job on a full‑time basis, to the best of my ability. Agree that until my health significantly improved, I should focus on 100 per cent attention on ways to cope with the pain whilst investigating and understanding the best treatment as consistently as things permit."
Thereafter the plaintiff was referred to a number of medical practitioners for medico–legal assessment. The evidence of all medical witnesses is dealt with later in these reasons.

Plaintiff's evidence - work history pre and post accident

In 1994 the plaintiff completed her TEE at Chisholm College. In 1995 she enrolled at Edith Cowan University to study primary teaching. She worked at part‑time jobs to pay her way through university but when this got too much she deferred her studies. In 1996 she re‑enrolled but again deferred. She undertook a course at City Business College and then gained employment with Detroit Diesel. In mid‑1997 after about six months she left Detroit Diesel and in November 1997 commenced employment at the Chamber of Commerce where she remained for some three and a half years. It was in that job that she first experienced tension in her shoulders being symptoms derived from keyboard work. In 2001 she enrolled for a Bachelor of Science degree majoring in Psychology. At about that time she commenced employment with Worley Engineering as a part‑time document controller. She also worked in a nightclub at weekends. In mid year she deferred her studies and in July ceased the nightclub work. In early 2002 she left Worley Engineering and enrolled with employment agencies and undertook various temporary jobs. In May 2002 she went to Melbourne on a working holiday and worked there with an engineering company before returning to Perth at the end of 2003 and again obtaining temporary work.
On 19 April 2004 the plaintiff commenced employment with Leighton Contractors as an Operations Secretary. She was engaged in a personal assistant role to two of the directors. Her starting salary was $40,000 per annum plus superannuation. With the prospect of stable employment she purchased a house in Morley. She fell in love. Her boyfriend who lived at Rockingham moved into her house. In September 2004 the plaintiff instigated the break up of that relationship. She subsequently ascertained that her partner had been an intravenous drug user. She described this period in her life as having been emotionally quite difficult. She trained up Kerrie Major and helped her into her job when she commenced with the company in November 2004. At the end of 2004 she received a Christmas bonus of a couple of hundred dollars plus an increase in her salary of $1,000 per annum. In early 2005 there was a change in her work situation and she was required to additionally provide secretarial assistance to Mangers on another level.
On 31 March 2005 she had the accident. Up until then she described her work life as being exemplary. In contrast to that however she did acknowledge that she was a poor timekeeper insofar as arriving at work on time. That was confirmed by the witness Ms Horsefield. The plaintiff did suggest however that she made up that time by working at lunchtime and staying back late after work. She was able to undertake all duties required of her including the extra duties and also trained up new staff. Post accident however there became a lot of tension in the work place and she had conflict with Kerrie Major who piled more work onto her. As well in August 2005 and from October 2005 she had to take time off work to see doctors and have chiropractic treatment. Other girls did not take on the workload or extra responsibilities and this caused conflict in the workplace. She complained of having a heavy demanding workload with no one to delegate to, she was working overtime and taking time off, a lot of administrative work devolved upon her and the other girls became quite negative towards her. She said that she did not complain but managed to get through her job by taking painkillers. The environment was stressful and the plaintiff described that she felt as though she was "being kicked when I was down." It was during this time that she turned to illicit drugs. Methylamphetamine masked the pain which she was experiencing as did marijuana.
Faced with the stressful situation at work being depressed and struggling to fulfil her work duties without missing time from work and needing to attend medical appointments she took two weeks annual leave at the end of October 2005. She described that as emergency stress leave. She was later to write (Exhibit 4) "under too much stress I took immediate holidays (two weeks annual leave)". When she returned the situation had not improved for her so far as the negative work environment was concerned.
In January 2006 she had a confrontation with Kerrie Major which prompted her to draft a letter dated 10 January 2006 (Exhibit 4). That letter reflects her claims of a demanding workload both pre and post accident, working late to complete work, taking time off to attend medical appointments, conflict in the workplace and a perceived lack of assistance and recognition and the feeling that she was being treated unfairly.
She wrote: "this treatment by Kerri only aggravated my situation and I had lost too much energy to confront this situation. I ended up taking more sick leave with my immune system so weak and the impact of negativity when I came into the office leading to further depression. Spending much of your life a negative work environment is dangerous to health".

In the plaintiffs own mind all these problems, ie breakdown of immune system, sore throat, sickness, chronic pain and depression, were all related to the body shock sustained in the accident.
The time which the plaintiff was taking off from work had become a problem for her employers. For the plaintiff's part her health was important to her and she was concerned that she needed time to once more become healthy. So it was that on 24 February 2006 by mutual agreement she ceased her employment with Leighton Contractors.
Thereafter she concentrated on her wellbeing by engaging in physiotherapy and hydrotherapy and avoiding activities which aggravated her condition. On or about 1 April 2006 she was offered a position as a receptionist/personal assistant with Bell Personnel. She did not feel that she could undertake the work by reason of her accident related injuries so declined that offer of employment.
On 6 June 2006 she commenced employment with St John of God Hospital working 5 hours per day doing typing only and no clerical duties. She could not cope with this work and complained that her "neck would go numb". From 19 June 2006 her hours were reduced to 7 hours per week but even this she could not manage. She ceased employment on 23 June 2006 and has not worked since. Without an income she was not able to maintain the mortgage on her Morley home and the house was sold into her family. Since about October 2006 she had returned to live with her parents because she complains that she could not cope in her own home. Since January 2007 she has participated in a work rehabilitation program with the Commonwealth Rehabilitation Service. She is there undertaking a program with a view to her gradual return to employment.

Employers evidence

Jeremy James Roberton was one of the directors at Leighton Contractors for whom the plaintiff worked. He was called by the defendant to give evidence. From October 2003 to September 2005 he was the Manager, Mechanical Division of Leighton Contractors. The plaintiff worked as a personal assistant to both he and Wayne Bizzaca who was Manager Civil Division. He did not think that their work combined engaged the plaintiff full‑time. The plaintiff's work for him comprised about 20 per cent of the time at a keyboard and otherwise arranging appointments and meetings, taking telephone messages, filing and preparation and collating of documents. The work did not require any heavy lifting. He was aware that the plaintiff was given duties for banking and petty cash when it was realised that work for the directors did not keep her busy all the time and she had the capacity to do that other work.
Mr Roberton described the plaintiff's performance as ranging from very good to being distracted with other things on her mind. On a good day she was quite good but on other days he described her as being "not with it" as to timekeeping and relating to others. He described her as being distracted by personal matters and recalled that she got a reputation for not helping others. She was often late in arriving at work in the morning. He had occasion to discuss this situation with Tanya Horsefield. He was aware that Ms Horsefield was not happy with the plaintiff's timekeeping and that she was endeavouring to improve the plaintiff's performance at work. He observed also that junior staff in the office had discontent with the plaintiff in that she would not assist them. Mr Roberton ceased employment with Leighton Contractors in September 2005, ie 6 months post–accident.
Tanya Horsefield was from 1998 to April 2006 when she went on maternity leave employed with Leighton Contractors as a personal assistant to the Director and General Manager, Western Australian branch. She was also called by the defendant. It was she who did the first round of interviews for the job with the plaintiff prior to her engagement. For the first two or three months after employment she observed the plaintiff's performance to be excellent. Thereafter however she appeared to get complacent, uptight, coming in late, having issues with other girls and generally her attitude was uptight and grumpy and upsetting other girls. Ms Horsefield talked with her and ascertained that she had personal and financial issues. The plaintiff had spare capacity and in July 2004 was given the role of looking after the WA Imprest account and petty cash/West Perth banking. The plaintiff was not punctual in attending at work. Initially she might be 15 to 30 minutes late and then sometimes up to an hour late. On occasions Ms Horsefield would telephone the plaintiff to ascertain if she was attending at work. Pre-accident the plaintiff was taking sick days off work with the consequence that other girls in the office would have to undertake her duties on those days. Ms Horsefield started keeping tabs on sick leave and recording time of arrival and departure.
Ms Horsefield only became aware of the plaintiff's accident on the day following when she was told by another lady in her office. She was not aware that the plaintiff might have taken any time off on the day of the accident or whether she had seen a doctor on that day. A few days later however the plaintiff did inform her that she was going back to her doctor "for whiplash". Thereafter the plaintiff continued to take occasional days for sick leave with the consequence that her not being there impacted on the role of other girls in the office which gave rise to conflict between the plaintiff and other personnel. Ms Horsefield was aware of the argument which the plaintiff had in early 2006 with Kerrie Major. Ms Major was second in charge to Ms Horsefield and she worked for the Accountant/Administration Manager on the finance side. Ms Horsefield was aware of occasions when she left work that the plaintiff was still there after hours working at her desk and may have been working on tenders.

Medical evidence

The first medical practitioner whom the plaintiff saw following the accident was Dr Danny Sader a general practitioner at the Morley Medical Practice. He too was called by the defendant to give evidence. He had seen the plaintiff as a patient since 2001 when she had presented with a soft tissue injury to her thumb. In September 2004 he noted that the plaintiff had had two urinary tract infections in the preceding two months. This was about the time she broke up with her boyfriend. On 9 February 2005 she attended to have blood tests for HIV and Hepatitis B and C she having ascertained that her ex-boyfriend had been an intravenous drug user. When she attended on 17 February 2005 she was advised that those tests were negative. She complained then of "neck discomfort at work". Dr Sader diagnosed very tender trapezius on both sides which he put down to being tension related and he gave her posture related advice such as regular stretching and breaks in her work sitting at a keyboard or telephone. On 31 March 2005 in the afternoon the plaintiff attended on Dr Sader following her accident that morning on her way to work. He noted (Exhibit 5) that she complained of "minor discomfort in neck". On examination he diagnosed "non‑tender traps (trapezius)". He noted a full range of movement of the neck. No medication was prescribed. He noted the medical history of computer related neck problems and that she was attending a chiropractor occasionally. He advised "stretches/observe/advise".
In his report of 30 July 2007 (Exhibit 20) he was asked whether or not the diagnosis he had made on 17 February 2005 was significantly different from that on 31 March 2005. His response was: "Not significantly different. She had tender trapezius muscle in her neck, secondary to posture. Post motor vehicle accident she reported she had neck discomfort, but was not tender in her neck. Both were soft tissue in nature". By way of explanation he said that on the first examination she was tender on palpation but post-accident she wasn't tender to palpate.
On 6 April 2005 the plaintiff again attended Dr Sader. His notes record:
"No new symptoms. Non-tender traps (trapezius) full range of movement neck. Non-tender back. Full range of movement back. Soft tissue injury resolving. Not necessary to have x‑rays. Not necessary to have physio. Review as necessary."
His report notes that on that consultation the plaintiff "appeared to have substantially recovered."
The next occasion he saw the plaintiff was 10 October 2005. His notes record that the plaintiff complained of "neck numbness now. Requests x‑rays of neck. Pins and needles in right arm from shoulder/non-tender". He did not relate those complaints to the motor vehicle accident because the symptoms were different. He referred her for x‑rays and a CT scan. The scan was suggestive of disc protrusions at two levels on the right. He then referred her to neurosurgeon Mr G Wayne Thomas who referred her for an MRI scan. The scan ruled out any disc protrusion. A slight bulging of the annulus at C5/6 was not considered significant and the possibility of nerve or spinal cord disturbance was ruled out.
On 23 November the plaintiff complained of ongoing neck symptoms. On 3 December 2005 he advised her of the results of the MRI and advised that she undertake home exercises. He noted that she was keen to return to kickboxing. On 9 January 2006 she complained of "ongoing pins and needles in hands and now in her feet". Dr Sader noted "? anxiety/stress – discussed." He gave a referral for pain management. On 22 January and 2 August 2006 the plaintiff attended for STD/HIV screens which returned negative on each occasion.
In his evidence Dr Sader said that so far as the complaint of pins and needles on 9 January 2006 it was his opinion that such was not unusual for persons to have pins and needles in their hands and feet when they suffer from anxiety and panic attacks. I note that this complaint coincides with the time when she was having her confrontation with Kerri Major.
Contrary to the plaintiff's assertion Dr Sader denied that when she attended on the day of the accident that he had simply asked her to bend over and touch her toes. He carried out a normal examination. His notes of examination confirm that. He said that his advice was that she do neck stretches and he endeavoured to reassure her that the complaint was minor and that with time the symptoms would go away. He described the plaintiff as being obviously a tense individual.
Mr Geoffrey Wayne Thomas, a specialist neurosurgeon, now retired, saw the plaintiff on referral from Dr Sader. He saw the plaintiff on 11 and 29 November 2005 and 20 June 2007 (reports Exhibit 12). He took a history that the plaintiff was immediately aware of injury to the neck which was stiff and sore straight away and that she subsequently started to experience pains in the right arm and hand with numbness especially on of the right index finger. She had also complained of bad headaches initially which continued to persist. On examination the plaintiff demonstrated an extremely good supple range of neck movement, associated with some discomfort. He noted tightness of the upper and inner trapezius muscles but not the cervical muscle and noted that she was not tender to pressure over the bony prominences of the neck or to either side. Neurologically there were no abnormalities in the upper limbs with good preservation of power reflexes and sensation to pinprick.
In his final report Mr Thomas noted:
"The clinical examination itself reveals more or less normal findings and so any determination of the nature and extent of her injuries cannot be ascertained from the clinical examination but rather from the history of the injury and the reported symptoms. … on the basis of the history, clinical findings and radiological studies her diagnosis is one of diffuse soft tissue cervical injury as sustained in the motor vehicle accident."
As to the plaintiff's then current work capacity he would not rule out her ability to work in an office setting and believed it would be feasible for her to work full‑time but that she would have to rely on medication to control her symptoms. He considered her injuries to be of moderate severity. He concluded:
"Therefore overall the main stay of her treatment will consist of medication to control symptoms, exercises for her neck that she can carry out of her own accord and avoiding aggravating factors by attention to lifestyle factors."
In cross‑examination he acknowledged that the forces involved in an accident may have relevance to the severity of injury and found some justification for her symptoms in her history of being involved in what he assessed as a "fairly major collision" with another vehicle "written off". It being a "fairly major collision" gave, in his opinion, some justification for the symptomatology of which she was complaining. As earlier indicated I do not consider it to have been a fairly major collision. He could find no objective evidence of a serious neck disorder. He could not elicit any pain on examination. He acknowledged that the plaintiff's general practitioner who had seen her both pre and immediately post the accident would have a better feel for her condition.
Professor F L Mastaglia, a consultant neurologist, saw the plaintiff on referral from her solicitors on two occasions 29 September 2006 and 31 February 2007. He noted a six year previous history of neck soreness and stiffness. Formal neurological examination failed to disclose any motor, sensory or reflex abnormalities in the upper or lower limbs or any impairment of cranial nerve functions. He noted mild restriction of neck movements in all directions and moderate tenderness over the lower cervical spinous processes as well as the left lower cervical facet joints on deep palpation. His diagnosis was that the plaintiff "suffered a moderately severe musculo‑ligamentus (soft tissue) injury to the cervical and upper thoracic spine". He noted also that the numbness in the hands suggests "that she may also have developed a carpal tunnel syndrome following the accident, particularly on the right side, as may sometimes occur following a cervical whiplash injury." He classified the neck injury as being "of moderate severity" he anticipated that the plaintiff would remain restricted in her ability to resume her previous type of work for the foreseeable future. When seen on the second occasion it did not appear to Professor Mastaglia that there had been any significant change in the plaintiff's condition.
Professor Mastaglia initially saw the plaintiff some 18 months after the accident. He acknowledged in cross-examination that he was entirely dependent on the history which the plaintiff gave both as to the accident and the symptoms arising from it. He acknowledged also that it was important to have a full history of what she may have told doctors and others in the days and weeks following the accident. He had no information as to that from Dr Sader. He opined that the plaintiff's symptoms would have been at their worst in the days and weeks following the accident than she presented with when he saw her. On Dr Sader's evidence that was clearly not the case. In those circumstances I have reservations in accepting Professor Mastaglia's diagnosis as credible. In his second report he notes that the plaintiff complained of mid‑thoracic pain whereas she had not made complaint of pain in this area on the first occasion. Nor was it a complaint she had made to others.
Dr Andrew C Harper, occupational physician, saw the plaintiff on referral from her solicitors on two occasions, 18 May 2006 and 1 August 2007 (reports Exhibit 15). He noted the prior history of neck pain and treatment by a masseuse once every three months. There had been no prior injury to her neck and no symptoms affecting her arms. On examination he noted the plaintiff was tense and in her general demeanour appeared a little agitated. Movement was normal in her lower back, shoulders and neck. There was no neck or upper back tenderness. There was slight tenderness over spinous processes T8 and 9 and to the left of the spine at this level. Examination of the arms revealed no abnormality with sensation and power being normal. It was a very normal examination. It was his opinion that the plaintiff sustained a mild strain injury to the cervical spine. He considered that the physical injury of which she complained had been compounded by feelings of stress, difficulty coping and impaired adjustment to her symptoms. He felt her principle disability related to stress and difficulty coping. Whilst her current work capacity was reduced he considered that she was capable of full‑time work with restrictions. He recommended psychological counselling, physiotherapy and follow up with her family doctor.
His second report noted that her symptoms earlier diagnosed were continuing and he remained of opinion that stress and difficulty coping were predominant in her disability. Work capacity was significantly reduced but she was capable of part‑time restricted work with limits but work capacity may be compromised for a further three years and possibly longer.
He too acknowledged that a general practitioner familiar with her history and who had seen her immediately post accident would probably be in a better position to analyse the extent of her injury and disability immediately after the accident. He noted her as being a "talkative" individual which he related to anxiety rather than to being depressed. He considered that she needed much reassurance that she could do things which she thinks she cannot do by reason of the claimed pain which she experiences. He also opined that other stressors and muscular tension can and does aggravate musculo‑ligamentus pain. Stress increases muscle tone and with the increase of muscle tone there is a stimulation of muscle tightening which can lead to pain. With relaxation of the muscles the pain will thereby be reduced. He was of the view that there could be such pain, that is musculo‑ligamentus pain, without there being any physically abnormal findings.
Dr C Nick De Felice a consultant psychiatrist saw the plaintiff on referral from her solicitors on 14 August 2006 and 6 August 2007 (reports Exhibit 13). He took a lengthy history from the plaintiff and concluded there were no psychotic features. In his opinion:
"Ms Wood has suffered from an adjustment disorder with predominantly anxious, but also depressed mood, subsequent to her March 2005 MVA. I think this is the appropriate diagnostic label to attach to Ms Woods psychiatric symptoms. Although Ms Wood had prominent anxiety symptoms, I don't think she has a generalised anxiety disorder, or other specific anxiety disorder. She has not experienced a post‑traumatic stress disorder. Although she has a number of depressive symptoms, I don't think she fulfils the diagnostic criteria for a major depressive disorder. Rather I think that her symptoms are best labelled as an adjustment disorder, in response to the stressor of her ongoing pain, and the limitations associated with it. In addition she has experienced the stressors of her workplace and some conflict with her family, Ms Wood attributing this to her limitations due to her pain subsequent to her March 2005 MVA."
He did not consider that Ms Wood's psychiatric symptoms limited her work capacity and considered that the psychiatric symptoms, being linked to that of her pain, would subside as her pain and physical problems reduced. Anxiety and depressive symptoms would depend on her progress. He considered that from a psychiatric point of view her anxiety, low mood, lack of motivation or enthusiasm would all restrict her competitiveness in the open workforce compared to her usual self. He considered that the plaintiff's adjustment disorder symptoms were moderate in severity. He considered that there should be ongoing psychological treatment looking at techniques to manage her anxiety and depressive symptoms, to manage her pain and to address personal factors.

When seen on the second occasion he noted that she presented as very much improved. He did not think that her psychiatric symptoms had limited her work capacity since seen in August 2006. Her psychiatric symptoms had improved substantially although she still had some residual symptoms of anxiety.
In the history which the plaintiff gave she had made no reference to the stressful circumstances of the break up of her relationship and subsequent medical tests. Dr De Felice considered these too would have been significant stressors in her life and would have considered such stressors as adding to the burden causing stress and depression. Nor had she mentioned the use of Methylamphetamine to him. He described this drug as affecting mood and stability and elevating mood. He was aware of her marijuana use which he said could affect motivation. With chronic use motivation could be lowered. It was the plaintiff's evidence that since she stopped work she had used marijuana daily claiming it helped with her pain. No doubt it also impacted upon her mood at the time she saw Dr De Felice and, possibly her motivation to get back to work.
Dr Michael Douglas Hawkins is a general practitioner who had been the plaintiff's GP over the past 10 years. (Reports Exhibit 10, medical certificates Exhibit 11). He took over the plaintiff's care from 6 February 2006 (some 10 months post accident). On examination on 6 February 2006 he noted considerable tenderness to palpation of the trapezius and rhomboid muscle groups with near full range of movement of the cervical and upper thoracic spine and no evidence of abnormal neurological signs in the limbs. It was his experience that patients with this type of injury commonly experienced symptoms for 2–3 years and sometimes longer. He classified her injuries as mild – moderate in severity. Whilst some persistent symptoms may continue for sometime he did not consider there would be permanent residual physical disability. He recommended a physical‑therapy program designed to increase muscular strength and fitness in the neck and upper back. The only medication required was mild analgesics intermittently.
In cross–examination Dr Hawkins acknowledged that he relied upon the history given by the plaintiff as to her symptoms and the time which she had taken off work as a consequence. His reports states that "the (plaintiff) lost some two weeks from work immediately following the accident …". Clearly that information upon which he was reliant in forming his opinion was incorrect. Similarly he learnt from the plaintiff as he reported "she has however, managed to fulfil her normal work duties without missing time from work, other than for medical/therapist appointments". It is apparent from the evidence that she also took leave on occasions other than to attend such appointments. In cross–examination he confirmed as he had stated in that report that it was his opinion that at that time so long as the plaintiff took sensible advice she was capable of carrying out her normal work duties despite her symptoms.
Dr Hawkins saw the plaintiff again on 20 March 2006 at which time she complained of persistent symptoms of neck pain and headache. His subsequent report notes "we discussed the management of her persistent symptoms and noted that stress was very likely to worsen these symptoms and she was advised as to methods of muscular relaxation that might help reduce her pain". Conservative management and continuation of her exercise regime was indicated. When seen on 12 April 2006 there had been considerable improvement in her level of pain. She had been seeing a physiotherapist weekly and her symptoms had improved. She had full range of movement of the cervical spine and no abnormal neurological signs in the limbs. She had reduced her analgesic considerably and felt well enough to start looking for light work. When next seen on 24 April 2006 there were still symptoms of neck pain and headache and she complained that any effort to sit for long periods at her desk and computer worsened her symptoms. She had ceased working some two months previously. It is difficult to understand how she could now be making that complaint. She was continuing to see a physiotherapist on a weekly basis. At that time the plaintiff was still looking for light clerical work and Dr Hawkins advised that it would be best to avoid any work that would likely involve returning to long hours hunched over a desk and computer terminal. In his report of 21 June 2006 it was Dr Hawkins opinion that when last seen the plaintiff's condition had improved since he first saw on 6 February 2006, he believed that a graded physical therapy programme at a gym overseen by a physiotherapist would help in strengthening neck and shoulder musculature, thereby helping to reduce symptoms more than passive physiotherapy alone. He considered her condition had stabilised sufficiently to allow finalisation of her claim. In his report of 18 November 2006 Dr Hawkins considered that the plaintiff "… should be able to perform light office duties of most types that did not involve long hours sitting at a computer terminal. It would also be prudent to avoid any work that required heavy lifting or repetitive upper limb movement which would also be likely to cause recurrence of symptoms".
In cross–examination Dr Hawkins acknowledged that the symptoms described by the plaintiff could be brought about by many things. His conclusion that the motor vehicle accident played a part was based on the history given by the plaintiff. It was his experience that soft tissue injury of the type described does not manifest itself for some 24/48 hours post accident then worsens for a period of time before improvement is noticed. He acknowledged there would be variations from person to person depending upon the severity of the injury and their circumstances. In the case of the plaintiff he acknowledged that since the accident there had been a whole constellation of events in her life which may have impacted on her condition. For example the stressful work environment, relationship problems and concern about the outcome of HIV tests. All would be stressful.
Dr Brian Dare a consultant occupational physician reviewed the plaintiff on referral by the Motor Vehicle Insurance Commission. He saw the plaintiff on 9 June 2006 and 29 June 2007 (reports Exhibit 17). On examination her cervical spine demonstrated a full range of movement with no discomfort. She had a full range of movement of both shoulders with no pain on movement. Examination of her upper limbs demonstrated normal power, sensation and reflexes. She described some tenderness to palpation in her left lower cervical spine. It was his opinion:
"… Ms Wood would have suffered only a minor soft tissue injury to her cervical spine in her accident on 31 March 2005 and I would have expected any minor injury she would have suffered from the accident to have now have completely resolved … I consider the majority of her symptoms at present relate to the type of work she performs and also to a degree of stress and tension as she does appear anxious and was suffering a significant amount of stress and anxiety symptoms associated with her previous employment as a Personal Assistant."
His assessment was that the plaintiff had recovered from any injury she may have received in her motor vehicle accident which was minor. He did not consider that she required any ongoing treatment and certainly no ongoing passive physiotherapy. He did not consider that she had suffered any permanent disability.
On the second occasion he saw her he noted that the plaintiff had stopped work at St John of God Hospital due to increasing neck pain. Her continuing symptoms described to him were consistent with those described on the earlier occasion. She was continuing with physiotherapy once a fortnight and was also going to hydrotherapy three times a week. She was continuing to take analgesics Mersyndol and Panadene Forte tablets. Again on examination she had a full range of movement with no pain and only some minor tenderness to palpation in her left lower cervical spine. His findings on clinical examination demonstrated no difference from when he previously examined her. He reiterated that whilst she most likely suffered minor soft tissue injuries to her cervical spine he considered that any ongoing symptoms were related to her work, or a pre–existing condition and not to her motor vehicle accident. He did not believe that the accident was causative of any aggravation of any pre–existing condition being neck soreness relating to posture with her work.
From the information which he had been supplied he considered the accident to have been very minor and opined that where there is a minor accident there will only be minor injury unless there is other objective evidence e.g. x‑rays/MRI etc. He was not aware of the extent of damage to the towbar of the plaintiff's vehicle. There were no inconsistencies in her presentation and history which she gave him, she was cooperative and moved her neck well. The view he expressed that she had recovered from her injuries was based upon the "minor nature of the accident and the fact that she had only suffered minor soft tissue injury as a result".
Prior to trial Dr Dare had been provided with the medical records from Dr Sader which recorded the plaintiff's attendances on Dr Sader on 31 March, 6 April 2005 and subsequently. Dr Dare contended that the records confirmed his opinion that the injuries were mild and he considered it would be difficult to explain why she should develop an increase in neck pain and right arm symptoms some seven months following the minor motor vehicle accident.

The court's finding on the evidence

The issue for determination by the court is the extent of the plaintiff's entitlement to an award of damages. Before considering this question it is necessary to make some findings on the evidence before the court.
For some years prior to the accident the plaintiff had a pre–existing condition of posture related tension in the shoulders and neck. She had not suffered any prior injury to the neck or shoulder region. She had sought chiropractic treatment and was in the habit of having a massage every three months to relieve tension around the shoulders.
She also had a predisposition to anxiety and tension which manifested itself at times of stress. This was noted as early as 1996 when she presented to Dr Harry Cohen with a urinary tract infection. Such stress and tension would manifest itself in soreness and tightness of the musculature around the neck and shoulders region thereby warranting relief by massage.
The evidence as to the severity of the impact at collision is inconclusive. Damage to the defendant's vehicle was a minor dent in the front bumper and slight bonnet damage and the plaintiff's vehicle sustained minor damage in the rear. The vehicle in the middle sustained both front and rear end damage. There was only hearsay evidence as to the extent of the damage to that vehicle. I don't accept the proposition put by the defence that because it was only a minor impact that the plaintiff must only have suffered a minor injury. The extent of the damage to the vehicles can never be the determinant of the seriousness of injuries which persons in the vehicles may suffer. For example, a person with a pre–existing condition may well suffer consequences as a result of the impact more severe than somebody without such condition.
The history given by the plaintiff to the doctors has generally been consistent and her evidence before the court was consistent with the history given. She was co–operative with the doctors. There has been no evidence to them of exaggeration. She however seems to be at odds with others who do not share her own view of herself. She was not accepting of Dr Sader's diagnosis and advice which, I accept she was perfectly entitled to do. She said that she "… had lost faith in him … " and didn't go back to him as she … "wanted to see someone who would tell (me) the truth". She felt that Dr Sader had really missed something. If that were so it begs the question as to why she did not attend on another medical practitioner with her ongoing complaints of neck pain, pins and needles and headaches. She saw Dr Lu in August but made no mention of accident related injuries. Later in August and in November she saw Dr Kwa and claims to have made mention of her accident. Dr Hawkins evidence suggests that her evidence on that issue is open to question. Dr Hawkins had been her families' general practitioner for many years. Even accepting that he might be busy and that she might have a wait to get to see him she did not do so until 6 February 2006 by which time her situation at work had become practically intolerable. Despite claiming that she had lost faith in Dr Sader it was to him whom she turned some six months later on 10 October 2005 complaining of ailments which he did not relate to the motor vehicle accident because the symptoms were different. She had not earlier complained to him of neck numbness, pins and needles or headaches. At her instance x–rays, CT scans and MRI were undertaken which ruled out any cervical spine trauma. In a sense that confirmed Dr Sader's earlier assessment that x–rays were not necessary. Her assertion, that he had not told her the truth, by implication was not borne out.
In my view also she had a false assessment of her work performance being exemplary. She was a poor time keeper in arriving for work. She was in conflict with fellow workers which ultimately led to an unsatisfactory and almost untenable work environment. I do not suggest that this situation was wholly of her making but, as reflected in her draft letter she allowed the situation to get the better of her. Her own assessment of her work performance is to be contrasted with that of both Mr Roberton and Ms Horsefield.
Similarly her claim that she always had very good health prior to the accident is not borne out by the history. Over the preceding years she had attended on doctors on a number of occasions for a variety of medical conditions. She described herself as being "… almost a hypochondriac … ". Prior to the accident in the time that she was with Leighton Contractors she had taken many days off work as sick leave. She could not account for each and every reason why she had taken sick leave but nevertheless that record is not consistent with a person being in "very good health".
When all these matters are taken into consideration I am unconvinced that I can accept the plaintiff's evidence at face value suggesting that all her ills post-accident are attributable to the motor vehicle accident. I will go on to expound my reasons for coming to that conclusion.
On examination by all the doctors there was no objective evidence of abnormal neurological signs in the neck and shoulder region and the plaintiff had a full range of movement of the cervical spine and upper thoracic spine.
In my opinion, and I find accordingly, the plaintiff sustained a soft tissue strain injury to her cervical spine as a result of the motor vehicle accident on 31 March 2005. On the consensus of medical evidence the soft tissue injury was of minor to mild severity. Dr Sader referred to "minor discomfort in the neck". Mr Thomas referred to "diffused soft tissue cervical injury …". Dr Harper described "… a mild strain injury to the cervical spine …". Dr Hawkins classified the soft tissue injury as "mild – moderate in severity". Dr Dare's opinion was that of "… only a minor soft tissue injury to her cervical spine … a minor injury". I am satisfied on the balance of probabilities that the soft tissue injury produced pain, stiffness and tenderness of the neck and upper back for a relatively short period of time following the accident.
Again the consensus of medical opinion was that the treating doctor, ie the doctor familiar with her health and history before the accident and who treated her post–accident, would be in the best position to be able to speak as to the extent of the injury immediately post–accident. The doctor who was in that position was Dr Sader and some weight must thus attach to his opinion. The plaintiff felt that Dr Sader was not sympathetic to her. For example he did not at the initial consultations send her for x–rays. When subsequently x–rays, a CT scan and an MRI scan were carried out there was no evidence of any serious neck disorder. That really confirmed Dr Sader's assessment on examination that there were no abnormal neurological signs. There was no record of complaint of headaches made to Dr Sader on either of her first two consultations with him after the accident.
It is apparent from the evidence that prior to the accident the plaintiff was under a fair amount of stress at work. She was being called upon to undertake additional duties without additional support. When Dr Sader saw her on 17 February 2005, prior to the accident, he diagnosed very tender trapezius on both sides which he put down to being tension related. Immediately following the accident his diagnosis was "not significantly different" in that the plaintiff complained of neck discomfort. Whereas he previously diagnosed "very tender trapezius on both sides" post accident he diagnosed "non tender traps (trapezius)". The plaintiff had a full range of movement of the neck and back. By 6 April 2005 Dr Sader considered that the plaintiff "appeared to have substantially recovered". At no time did he certify her as being unfit for work as a consequence of her injuries. Nor did he prescribe any medication.
From April through to September 2005 the plaintiff took a number of days for either sick leave or annual leave. Some occasions she said were related to back/neck pain but other occasions related to car problems, generally not feeling well and flu symptoms. She saw Dr Lu on 24 August when she had the flu and made no mention of her accident or any neck complaint. On 30 August she attended Dr Kwa for a throat/chest infection and for depression. She said that she told Dr Kwa about the accident. I can draw no inference from this. It does not seem that the accident was the cause for her attending on Dr Kwa on that occasion.
Throughout this time she was able to continue to undertake her work duties under stressful circumstances. Given her predisposition in times of stress and anxiety to tension in the neck and shoulders region her working environment undoubtedly was a causative factor in her suffering pain and consequent headaches. I accept as Dr Harper opined that stressors, eg the work environment, can lead to muscular tension with muscle tightening which can be causative of pain. He felt that her principle disability related to stress and difficulty coping. Similarly Dr De Flice diagnosed "an adjustment disorder" in response to the stressor of her (complained of) ongoing pain and the stresses of her workplace and conflict within her family. Likewise Dr Dare attributed "… the majority of her symptoms at present relate to the type of work she performs and also to a degree of stress and tension as she does appear anxious and was suffering a significant amount of stress and anxiety symptoms associated with her previous employment as a personal assistant".
Between 6 April 2005 and 10 October 2005 when she next saw Dr Sader she did not seek medical advice in respect to her claimed ongoing pain consequent upon her motor vehicle accident. As at 10 October when she returned to Dr Sader it is noteworthy that this was at a time just before she felt she was "under too much stress" at work and took immediate holidays of 2 weeks. She says that she managed using over the counter painkillers. During that time she had resorted to the use of illicit substances. The medical tests ruled out the possibility of any physical disorder. A referral for pain management was not acted upon.

The plaintiff's complaint is that all of her problems since the accident have emanated from the neck injury which she suffered in the motor vehicle accident. Whilst I accept that she sustained a soft tissue strain injury to her cervical spine I am not able to accept on the balance of probabilities that all of her problems post–accident are in fact consequent upon that minor soft tissue strain. In my opinion it is more probable that it was the work environment which was the major contributing factor to any pain and complaints which the plaintiff has continued to experience.
In so concluding I am not able to accept the plaintiff's assertion that all her problems have been as a consequence of the minor injury sustained in the motor vehicle accident. Dr Sader recorded that as at 6 April 2005 she "appeared to have substantially recovered". She did not have the need to return to him for some time. Dr Dare concluded the minor injury completely resolved and that her symptoms at the time he reviewed her were as a consequence of the significant amount of stress and anxiety symptoms associated with her previous employment. She went for some 6 months after her second consultation with Dr Sader without complaint to any medical practitioner of any consequences of her accident related injury. That is suggestive that any accident related neck discomfort had resolved. That is consistent with Professor Mastaglia's opinion that the plaintiff's symptoms would have been worse in the days and weeks following the accident and Dr Hawkins prognosis that after the initial period of pain there would be improvement. If I were accepting of the plaintiff's evidence, I would have to conclude that contrary to that medical evidence her condition (if it were only motor vehicle accident related) deteriorated significantly and became more troubling over that time frame. I cannot accept the proposition in light of the medical evidence. As Dr Dare commented, it is difficult to explain why she would have developed an increase of symptoms with the passage of time rather than a decrease, as would be the usual course of events.
All medical practitioners were reliant on the history which the plaintiff gave. In my opinion the history and reported symptoms given by the plaintiff has been severely coloured by her own belief that all of her problems stem from what was only a minor soft tissue injury. On examination none of the medical practitioners were able to identify any pathological or clinical basis for her symptoms.
Any conclusion therefore, reliant as they are on the history and reported symptoms, to the effect that the plaintiff's level of symptomatology was "very much worse" ( Mr Thomas) as a result of the motor vehicle accident are of little weight in the overall assessment.
Whilst it is clear that the plaintiff had a predisposition to neck soreness and stiffness as a consequence of posture related tension and stress and anxiety before the accident, in my opinion this has not been increased to any identified extent over and above that which she would have possibly expected to suffer as a result of her minor soft tissue injury. If the pre–accident neck condition is worse, it is by reason of a "constellation" of other events in the plaintiff's life and not attributable to the accident.

General damages

The plaintiff claims general damages by reason of the accident injury, including pain and suffering and loss of enjoyment of life and loss of amenities. Any award of damages under this head is governed by the requirements of s 3C of the Motor Vehicle (Third Party Insurance) Amendment Act 1994. This section imposes limitations upon an award of damages for non‑pecuniary loss and it applies to the present case. The maximum amount of damages that may be awarded for non‑pecuniary loss at present, and with effect from 1 July 2007, is $292,000. This amount may be awarded "only in a most extreme case". The proper approach and methodology required to be taken by the Court when applying s 3C of the Act is set out in Den Hoedt & Anor v Barwick [2006] WASCA 196. In that case their Honours adopted the approach described by Gleeson CJ, Kirby P and Meagher JA in Southgate v Waterford (1990) 21 NSWLR 427 at 440 ‑ 441.
"But clearly, because the task in hand is that of awarding damages for 'non-economic loss', it is appropriate for the trial judge to consider and make findings on those elements in the evidence which are relevant to such loss. This will require the judge to consider and make findings on the evidence relevant to those heads of damage formerly considered in the award of general damages. Then it is necessary for the judge to conceive 'a most extreme case'. Only for such a case may the maximum amount provided by s 79(3) be awarded. The use of the indefinite article 'a' has already been noted. Opinions of what constitute 'a most extreme case' will doubtless vary. But clearly quadriplegia would fall into that class. The amount to be awarded must then be apportioned somewhere between nil and $180,000; but in a ratio which the judge fixes keeping in mind the fact that the cap of a statutory maximum is retained for 'a most extreme case'.
If the resulting amount on the scale so conceived is $15,000 or less, no damages are to be awarded by reason of S 79(4). … The only criterion for the apportionment prescribed is the comparison of the severity of the non-economic loss, as disclosed by the evidence, suffered by the injured person in the case before the judge and that suffered in 'a most extreme case'. The statutory maximum may only be awarded in the latter case. The judge must then assign the case as found somewhere along the resulting scale.
… It is likely that, over time, experience will develop in assigning cases on the scale, just as earlier it did in the apportionment required for contributory negligence. But each case will necessarily depend upon its own facts. At least in the first instance, the determination of the 'proportion' is committed by law to the trial judge. He or she has the outside parameters which are fixed by the legislation. The task of determining the 'proportion' which follows may not be scientific or normative; but it is not wholly at large. A wide measure of discretion has always existed in fixing damages for non-economic loss. All that this legislation does is to require that the damages under this head be fixed in harmony with the fact that Parliament has determined that a maximum will be laid down, varied from time to time and reserved for 'a most extreme case'."
Applying this approach and adopting the principles I am required to follow, when I have regard to the evidence and my comments and findings on the evidence generally, in my opinion the plaintiff's injuries and symptoms can not be assessed at more than 7 ½ per cent of a most extreme case, for example quadriplegia, which is clearly a most extreme case. In making my assessment I have considered the various heads of the definition of "non-pecuniary loss" in s 3C of the Act, and the plaintiff's evidence in this regard.
This equates to $21,900. Section 3C(5) provides that if the amount of non-pecuniary loss is assessed to be more than Amount B but not more than Amount C, the amount of damages that is to awarded is the excess of the amount so assessed over Amount B. By notice published in the Government Gazette on 3 April 2007 the amount of Amount B is prescribed to be $14,500 and Amount C, $44,500. Therefore the Act fixes the amount of the plaintiff's award of damages for non‑pecuniary loss as $7,400.

Past economic loss

Following the accident the plaintiff continued in her employment with Leighton Contractors. As indicated earlier, she took days off here and there for sick and annual leave. In light of my findings I am not able to conclude that any of those days off could be said to be attributable to the accident related injury. At no time did Dr Sader certify her as unfit for work.
In November 2005 when he saw her, Mr Thomas was not of the opinion that she could not work full time. When seen by Dr Hawkins on 6 February 2006 he was of the opinion that as long as she took sensible advice she was capable of carrying out her normal work duties.
On 24 February 2006 the plaintiff ceased her employment with Leighton Contractors by mutual agreement. Her performance at work leading up to her departure had been less than satisfactory.
In May 2006 Dr Harper considered that she was capable of full time work with restrictions. Likewise when seen by Dr Dare on 9 June 2006 he was of the opinion that she had recovered from any injury, required no ongoing treatment and had suffered no permanent disability.
In my assessment of the evidence and in light of my findings I am not satisfied that the plaintiff has suffered any loss of earnings as a consequence of her accident related injury.

Future loss of earning capacity

Likewise, for the reasons enunciated, I am not satisfied that the plaintiff will suffer any future loss of earning capacity as a consequence of her accident related injury.

Future medical treatment

I am not satisfied that the plaintiff will incur any costs in the future for medical treatment consequent upon the accident related injury.

Special damages

Counsel informed the court that the parties had agreed a payment of certain special damages. The plaintiff provided a schedule of special damages dated 30 August 2007. The schedule attaches supporting evidence for the amounts claimed. The total amount of the outstanding special damages for which the plaintiff is entitled to an award is $3,000.

Conclusion

The total of the award of damages which the plaintiff is entitled to amounts to $10,400 as follows:
General damages $ 7,400.00
Agreed special damages $ 3,000.00
Total$10,400.00