McGeown v Gallaher

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: McGEOWN -v- GALLAHER [2009] WADC 118

CORAM: KEEN DCJ

HEARD: 15-18 JUNE 2009

DELIVERED : 11 AUGUST 2009

FILE NO/S: CIV 431 of 2007

BETWEEN: SHEILA IRENE McGEOWN
Plaintiff
AND
JADE GALLAHER
Defendant

Catchwords:

Damages - Personal injury - Motor vehicle accident - Turns on own facts

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943

Result:

Plaintiff succeeds - damages awarded

Representation:

Counsel:

Plaintiff: Mr T H Offer
Defendant: Mr J Brooksby

Solicitors:

Plaintiff: Vertannes Georgiou
Defendant: Williams Handcock

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

Black v Motor Vehicle Insurance [1986] WAR 32
Bresatz v Przibilla (1962) 108 CLR 541
Graham v Baker (1961) 106 CLR 340
Henville v Walker (2001) 206 CLR 459
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Naxakis v Western General Hospital (1999) 197 CLR 269
Shorey v PT Ltd [2003] HCA 27
State of New South Wales v Moss (2000) 54 NSWLR 536
Villasevil v Pickering [2001] WASCA 143
Watts v Rake (1960) 108 CLR 158

KEEN DCJ: In this matter the plaintiff claims damages arising out of a motor vehicle accident sustained by her on 8 September 2002. The accident appears to have been of some severity and liability is not in dispute.
In the plaintiff's statement of claim she claims that her injuries comprised:-
"8.As a result of the accident, the Plaintiff sustained injuries.
PARTICULARS OF INJURY
8.1Temporary loss of consciousness immediately following the accident;
8.2Nervous shock;
8.3Neck injury;
8.4Bruising over the lower abdominal region consistent with seatbelt injury;
8.5Bruising to the right eyelid;
8.6Seatbelt burn to right neck and right shoulder;
8.7Nausea immediately following the accident;
8.8Headaches;
8.9Left shoulder injury;
8.10Post-traumatic stress disorder;
8.11Ulcer to left lower leg;
8.12Damage to teeth 11 and 21."
As a result of those injuries the plaintiff claims to suffer a range of disabilities and residual disabilities set out in par 11 of the statement of claim:-
"11.As a result of the accident, the Plaintiff has sustained permanent residual disabilities.
PARTICULARS OF RESIDUAL/PERMANENT DISABILITIES
11.1Permanent disability of the left shoulder;
11.2Psychiatric disability;
11.3Neck disability;
11.4Sexual dysfunction."
The real issues in this case can be found from par 3 of the defence filed 22 March 2007 which is:
"3.If the Plaintiff suffered loss, injury or damage pleaded (which is denied) this was caused or contributed to by pre‑existing and/or subsequent injuries and medical conditions.
PARTICULARS
(a)pre-existing obesity and unfitness;
(b)pre-existing degeneration affecting her spine and shoulders;
(c)pre-existing chronic low back pain;
(d)pre-existing chronic right shoulder pain;
(e)pre-existing diabetes;
(f)pre-existing hypertension;
(g)pre-existing migraines;
(h)pre-existing irritable bowel syndrome;
(i)the onset of left shoulder pain several weeks after the accident which is not related to the accident."
Further, the issues can be further refined to a principal issue whether the plaintiff's incapacity arising from the left shoulder pain and discomfort that she experiences is as a result of this motor vehicle accident. That is not to say that there are not subsidiary issues which I will deal with in due course.
The plaintiff was born on 21 October 1948. She was 53 years old at the time of her accident.
Having had a somewhat chequered work history in a variety of jobs which one might describe as being the sort of jobs that one would expect from a person having left school at a fairly early age, as the plaintiff did, she decided to better herself and in July 1999 she recommenced studies with a view to completing her TEE which she achieved in 2001. Following that she enrolled at Curtin University in February 2002 with a view to qualifying as a teacher.
It was whilst she was at university that she sustained the accident for which she now claims damages. Nevertheless she did go on to obtain a double degree in Bachelor of Social Science and Bachelor of Secondary Education.
Prior to the motor vehicle accident the plaintiff had had a number of medical conditions for which she had sought treatment and in respect of which she was on a number of medications. Those conditions included hypertension, epilepsy, Type‑2 diabetes, irritable bowel syndrome and elevated cholesterol. Her evidence was that her medications control these conditions and, for example, since being placed on medication in 1996 she has not had any seizures as a result of her epilepsy.
In addition the plaintiff also suffered headaches in the 1980s and was placed on medication which again has controlled these problems.
She experienced right shoulder problems some two to three years before the current accident. She had pain and catching in the shoulder. She came to surgery in respect of that shoulder in March 2005 and, according to her, since that time the shoulder has been fine.
In about 1993, whilst working as a kitchen hand in a nursing home in Perth, the plaintiff injured her lower back. She described it as a repetitive strain injury from constant bending and twisting and loading the dishwasher at the home which gave her chronic back ache. She had problems and in about July 1996 she was off work and had a prolapse operation on her back. She did not return to the nursing home. She had a worker's compensation claim in respect of her back injury which was settled about 1998.
It was after this that she became, as she described it, a "couch potato" and at the instigation of her daughter went back to school to study as I have previously described.
The plaintiff said that prior to her current accident she played tennis with friends, went ten pin bowling, did knitting, read and socialised a lot.
The plaintiff was taken to Royal Perth Hospital after the accident where she was an inpatient for two days. She said that she hurt all over. She was black and blue from neck to knees. She described a burn type injury to the right side of her neck where the seatbelt had been. Her two front teeth were chipped.
She also said that she had a wound in her left leg above the ankle, but she did not notice this until later.
She also said that her left shoulder hurt, but did not remark on it because at the time she hurt all over.
After her discharge from hospital on 10 September 2002 the plaintiff went to see her general practitioner, Dr Thambiran on 16 September. She went with her daughter. She said that she told her doctor that her left shoulder was hurting.
The Royal Perth Hospital medical notes were in evidence as Exhibit 17. The only reference to the plaintiff's left shoulder is one in the inpatient case notes under the date of 9 September 2002 that the plaintiff complained of "weakness in L shoulder".
Emergency department case notes on her admission on 8 September 2002 record:
"Headache at present; back of head; pain in neck and lower abdo (abdomen), mild nausea, pain in jaw."
On examination it was noted that the plaintiff was moving all four limbs, had normal power and distal pulses were palpable. The plan for her was that there should be a review of her cervical spine which was tender on palpitation.
Historically the case notes reveal that the plaintiff remembered neck pain at the scene of the accident but no other pain and at the hospital had complained of neck and abdomen pain. They also reveal that she was able to move her arms and legs and no abnormality was detected in the upper limbs. A note was made of a superficial ulceration/graze on the left shin and right upper shin.
Also within those notes there is a report from the Royal Perth Hospital dated 17 January 2003 addressed to the Insurance Commission of Western Australia (ICWA) which reveals the plaintiff complaining of headache, neck pain, low abdominal pain, jaw pain and mild nausea. There is a reference to bruising on the right eyelid, a seatbelt burn on the right neck and shoulder and a tender cervical spine on palpation. There is no reference to a shoulder injury.
The plaintiff in her evidence said that when she saw Dr Thambiran on 16 September 2002 and on subsequent appointments she told him that her left shoulder was hurting and that it had not hurt before the accident.
The plaintiff's daughter Tracey Priest also gave evidence that she attended Dr Thambiran with her mother and on each occasion her mother mentioned her left shoulder problem. She said that her mother and the doctor were discussing bruises on her side and a "hole" in her leg that started to ulcerate. She said her mother also commented to the doctor that her left shoulder was hurting. She continued to complain of the left shoulder on subsequent appointments. She said:
"Basically he (the doctor) just brushed it off and – said that she was compensating because her other shoulder was a bit sore as well."
Dr Thambiran in his evidence was taken to his medical notes which became Exhibit 3. He said that according to his notes the first mention of problems with the plaintiff's arms was on 1 November 2002 when it was reported:
"Still getting pain tops of both arms specially trying to reach up for items. Felt it started day after accident."
That entry was also confirmed in a report that he gave on 9 September 2006 which became part of Exhibit 2.
He said that he had no recollection of any mention of the shoulder problem before that date. He said that it was his usual practice to write something in his notes if anything had been mentioned to him. When it was reported he sent the plaintiff for radiological investigation. That investigation revealed that the plaintiff had a Type‑3 acromion process and a subacute bursa. His evidence was that the normal cause of a bursitis was overuse if lifting the arms above the head.
The plaintiff's evidence was that about a month after the accident she was on a field trip when she noticed that her leg was weeping and bleeding. She visited the doctor for treatment. The wound was ulcerated. She saw Dr Fatovich. The progress notes reveal that that occurred on 13 October 2002; five weeks after the accident.
The plaintiff said that that injury has now resolved and does not bother her further. Similarly the plaintiff's teeth were fixed on 20 December 2002 and she said that these are now fine. The reports of Dr Oh, dental surgeon, were received into evidence as Exhibit 13. He said the teeth were restored with porcelain veneers.
The plaintiff was referred to Mr Alan Prosser, orthopaedic surgeon, in respect of her shoulder problems. The plaintiff said that she was still having problems with her right shoulder which gave a "catching pain" and her left shoulder also ached and the ache would get worse depending upon what she did.
Under cross-examination the plaintiff agreed that she had problems at school as a result of the right shoulder before the accident. She had surgery on the right shoulder for a rotator cuff repair in March 2005 which was successful.
The plaintiff underwent an acromioplasty performed by Mr Prosser on her left shoulder on 19 November 2004 which involved excision of the prominent acromion and assessment of the rotator cuff, which, in a report dated 26 March 2005, Mr Prosser noted "appeared normal".
Prior to that operation the plaintiff said that she had difficulty with her left shoulder in that if she held her left hand at shoulder level it would hurt. She described using the telephone, note taking, reading books and marking of students' work which would cause problems. She said that she had many assignments to mark and turning pages was a problem. In addition, she had problems carrying books or equipment. She said that she could do modified housework, but she could not mop or vacuum or change the beds. She had difficulty getting clothes out of the drier and washing machine. Indeed, she said anything that required two hands caused her problems including shopping.
She said that the operation and subsequent physiotherapy helped a little, but she still has problems with her shoulder. She described it as aching and occasional sharp pain if she tries to stretch or over exerts her shoulder. She said that she cannot scratch her back nor do her hair without it hurting. Her husband assists her. She cannot put on both of her socks.
She also said that she now no longer plays tennis or ten pin bowling. She no longer knits and has to have a stand to hold a book for reading. She says that she is now too tired and moody to socialise.
She has difficulties at work on a daily basis. Using the whiteboard causes problems. She says that her disabilities intrude into her work and that she comes home at the end of the day "shattered". She said that at the end of the day the final bell cannot come quick enough.
She said that her concentration was shot. She has difficulty marking assignments and she finds that her eyes are closing or she is wandering or not focusing. At school she said that her problems affect her in that she finds it hard to control the children in the school.
The plaintiff said that her relationship with her husband had been affected. Their sex life had dried up and she had lost interest. She said that her husband got grumpy with her because she in turn is moody. He assists her but works full-time on shift work. She said that he mops the floors for her, puts clothes in and out of the dryer and goes shopping with her and carries the shopping.
Mr McGeown in his evidence said that the plaintiff's other medical conditions had not interfered with their social activities or their relationship. They were managed by medication.
He said that he did the gardening and helped her with some household duties as she required it, but before the accident she did most of them.
He said that after the accident he had to do more around the house to help her and referred to mopping, washing and household chores. He thought that he probably did about an extra one or two hours per week.
He also assists with her personal care washing her hair, drying her back and assisting her to put on her tops where they have to go over her head and doing up the straps on her shoes.
As to their relationship he said that she is in pain and he gives her space. He remarked that she is pale when she gets home from work and cranky. He said they do not talk like they used to or go out as much.
He said that since the accident they had had three or four separations, the longest being for two nights. Under cross‑examination he said that at the end of the day she was exhausted. He agreed that the left shoulder had caused matrimonial disharmony.
In addition to the physical injuries the plaintiff said that she suffered nightmares after the accident. She was also very jumpy when in a car. It had not been a problem before the accident.
She had discussed these matters with her general practitioner and had been sent to a clinical psychologist in October 2002 and had some 23 sessions with her.
The plaintiff was also seen by Dr Boon Loke, a psychiatrist, who provided a report dated 26 April 2007 (Exhibit 7). In that report Dr Loke diagnosed the plaintiff suffering post-traumatic stress disorder as a result of the accident on 8 September 2006. He was of the opinion that the plaintiff would have mild residual anxiety symptoms in the foreseeable future, but that her post‑traumatic stress disorder did not interfere with her capacity to work as a full‑time teacher and was unlikely to do so in the future.
The plaintiff said that after qualifying as a teacher she worked at Gingin High School. She travelled to school by car, carpooling with other teachers.
She had a lighter load at Gingin. It had a small intake of students. She then moved to Clarkson Community High School where she said that there were a large number of students with high rates of violence and vandalism.
The plaintiff said that she wanted to work until she was 70 years old. She had set this goal when she graduated. She said that she did not see the point of doing six years of education just to work for a couple of years.
After the move to the Clarkson school she carpooled with her daughter Tracey who also works at the school. She said that her daughter drives her home every evening. She said that is because she is nervous of falling asleep at the wheel. On one occasion she allowed her daughter to take over the driving on the way to school because it was raining and she was fearful.
In addition, she said that after the accident her daughter helped her around the house. She said that she "potters" for an hour or so doing vacuuming, dusting, washing, changing the beds.
Her daughter went overseas for six months in June 2003 and arranged for a friend, Helen Aitken, to assist the plaintiff whilst she was out of the country.
Tracey Priest gave evidence that she drove her mother to and from her appointments with the doctor and also assisted her with general cleaning up of the nature described by the plaintiff. She confirmed that whilst she was overseas Ms Aitken took over. She said that she took over from Ms Aitken when she returned and continued with household duties. She thought it was probably about once a week all on weekends and for about four or five hours. She continued with this until June 2006 when she had a hernia operation and again asked Ms Aitken to cover for her for eight weeks. Since February 2007 she has been doing probably two hours per week.
She said that this has now ceased, but she still provides some help if her mother needs it. She described it as "mother/daughter stuff". In cross‑examination she said her mother can manage most things and she now helps her because she is her mum.
Helen Aitken gave evidence and confirmed that she assisted the plaintiff whilst Tracey Priest was overseas. She thought it was two or three times a week and involved washing floors, vacuuming, pegging out washing and taking it down and putting it away. She said it took between one and three hours at a time, about three or four hours a week. She also confirmed that she again assisted when Tracey Priest had her hernia operation in 2006.
After the plaintiff received her degree she worked at Tom Price Senior High School. A letter from the Department of Education and Training dated 3 June 2009 (Exhibit 9) showed that this was for a period from 10 October 2005 until 27 January 2006. The plaintiff confirmed that she went to Tom Price on her own. She said that whilst she was there she had another motor vehicle accident. She lost control of her vehicle which flipped on to its roof and came to a stop on the top of a small hill. She was wearing her seatbelt. She said that she was upside down in the car for about three hours as she could not get out. She sounded her horn until somebody came to assist her. She thought she had gone down an embankment and was nervous that nobody would see her. She was taken to hospital at Newman and suffered no injuries.
In addition to the medical evidence to which I have referred, Dr Thambiran produced a number of reports on the plaintiff (Exhibit 2). In a report of 25 October 2002 he describes the plaintiff as having escaped the (current) accident with soft tissue neck injuries and bruising and subsequently experienced feelings of depression and anxiety and being apprehensive about driving or being in a car. In a report of 10 December 2002 he referred to abrasions to her legs. In relation to her abrasions he noted that on 13 October 2002 she had presented to Dr Fatovich because she had an ulcer on the left lower leg which required regular dressing and antibiotics.

In relation to the psychological aspects Dr Thambiran referred the plaintiff to Ms Dianne Casella who produced a number of reports which became Exhibit 8. By 19 December 2004 she was reporting that the plaintiff had made gains and was largely symptom free and on the whole had returned to her pre‑morbid level of functioning. She noted some residual stress when the plaintiff was a passenger in a vehicle, but it was not debilitating.
In a subsequent report dated 7 February 2005 she expected the plaintiff to maintain these pre-morbid levels of functioning unless further trauma of a life‑threatening nature was experienced. She noted that the plaintiff had met her university demands to that time and expressed the view that at the current time the plaintiff appeared to be stable.
Dr Boon Loke, to whom I have referred, also gave evidence and produced a report dated 26 April 2006. He came to the conclusions to which I have already referred. He expressed the opinion that the plaintiff was suffering from post‑traumatic stress disorder in partial remission. In evidence he said that if another traumatic event occurred her anxiety and traumatic emotions may come up again. In cross-examination he said that that vulnerability was an increased vulnerability compared to the time before her accident in 2002 and that he had not been aware of the subsequent accident sustained by the plaintiff in November 2005 when her car rolled over at Tom Price. However, before he could make use of that he would need to know her experiences at the time of that accident.
Orthopaedic evidence was given by Mr Prosser who produced reports (Exhibit 5).
In those reports Mr Prosser described moderately limited movement in the neck causing pain across the shoulder and tenderness in the acromioclavicular joint on the left side. He described the acromion as Type‑3. The plaintiff had ultrasound controlled injections of the subacromial bursa. She had ongoing symptoms.
In his report of 6 October 2004 Mr Prosser noted the range of movements and in his evidence said it became apparent that the range of movements was, generally speaking, below normal.
Mr Prosser operated on the plaintiff's left shoulder on 19 November 2004. In his report of that day he noted that the subacromial bursa and anterior acromion were very prominent. He said that the glenohumeral joint at the rotator cuff, joint surfaces, labarum and biceps tendon appeared normal.
In evidence he said that post-operatively she had a reduction in movement but this improved. He noted that there was an increase in movement but with some restriction. He described her as having reasonable results in terms of relief of pain and improvement in undertaking her daily activities.
His report of 26 March 2005 set out a detailed chronology relating to the plaintiff. In that report he expressed the opinion that the motor vehicle accident contributed to the plaintiff's left shoulder complaints. He noted that she had reported no prior symptoms but continuing symptoms subsequent to the accident. He noted a predisposition to rotator cuff impingement due to her previous prominent acromion and the accident should be viewed as having precipitated the onset of her symptomatic rotator cuff impingement. He further opined that there was no evidence that the accident had accelerated degenerative or arthritic changes in the left shoulder and that he had made no assessment of the plaintiff's neck, back, left foot or left leg.
In that report Mr Prosser did not consider that the plaintiff's condition with the left shoulder would adversely affect her chosen career as a secondary teacher.
In a report of 22 August 2005 he further noted that the left shoulder should not cause any long term restrictions to the plaintiff in relation to her career as a teacher, the prognosis was for further improvement in movement and strength without increased risk of problems in the future and at that time he assessed the disability of the arm above the elbow at 8 per cent but with further improvements to be expected.
On 19 November 2005 he noted the plaintiff could do her chores, could dress and in the classroom was able to do most things, although noted tenderness over the acromion and an improvement in a range of movements. He noted that rotator cuff impingement signs were negative and rotator cuff strength was normal.
His last report is dated 30 May 2009 in which he said:
"My opinion is that the motor vehicle accident of 8/09/02 is likely to have contributed to the onset of the left shoulder symptoms. I accept that there are predisposing factors including appropriate age, right shoulder rotator cuff symptoms, and a Type‑3 acromion. However, in relation to the accident and timing, Mrs McGeown had no past history of left shoulder symptoms. Symptoms were present early after the accident and were persistent. Often the onset of rotator cuff problems does have an initiating event. The hypothesis could be that there was an accident and some local injury, with loss of muscle condition around the shoulder, bringing on impingement symptoms which then did not improve with rehabilitation, until the bony contributing factors were addressed at surgery." (emphasis added)
In cross-examination on his report of 30 May 2009 Mr Prosser was asked about the onset of symptoms and when they occurred relative to the trauma. He was asked if that was an important consideration in terms of causation and he agreed.
In re-examination as to his report of 19 December 2005 that the plaintiff was able to do her chores etc, he said that the consultation was merely a "how's it going?" type of meeting and he did not go into detailed questioning.
The plaintiff was seen by Mr Ratan Edibam and two reports from him were tendered as Exhibit 15 pursuant to s 79C Evidence Act. Apparently, and it was accepted, Mr Edibam was too ill to attend court. These reports were dated 19 December 2005 and 18 December 2006.
In the first of those reports Mr Edibam noted that the plaintiff was admitted to Royal Perth Hospital where she said she experienced left shoulder pain. That pain became worse over time leading ultimately to the surgery performed by Mr Prosser.
Mr Edibam examined the cervical spine, lumbar spine and left shoulder joint.
In relation to the cervical spine he noted that the range of movements was markedly restricted. He described it as a significant loss of movement of more than half the range of movements that one sees in a cervical spine.
In the lumbar spine he noted a normal lordosis and no tenderness but no movement in the lumbar spine whatsoever.
As to the left shoulder, the plaintiff was tender over the acromioclavicular joint and greater tuberosity accompanied by some pain.
He noted that the plaintiff had had a markedly curved acromion but ultrasound had shown no evidence of injury to the rotator cuff. However, there was impingement occurring in the subacromial bursal area. He said:
"The left shoulder symptoms were due to the variation in the anatomy of the acromion which predisposes to impingement of the rotator."
He went on to say:
"She may not have noticed symptoms prior to the accident, but subsequent to that she has experienced ongoing symptoms in her left shoulder which had improved to a certain extent following surgery, but she has not regained full movement of that shoulder joint."
As to the cervical spine he was of the view that stiffness would have been present prior to the accident, but since the plaintiff has become aware of it or noticed the feeling of stiffness.
His opinion was that the plaintiff had developed symptoms due to impingement of the rotator cuff after the accident possibly triggered by some injury to the left shoulder.
In his view the stiffness to the cervical spine and lumbar spine were pre‑existing.
At that time Mr Edibam did not consider the plaintiff's working capacity as a teacher to be affected either then or in the future.
In his second report, having noted that the plaintiff had not complained of pain in her left shoulder to the Royal Perth Hospital but had given a history of ongoing problems in her right shoulder and having noted the reports by Dr Thambiran failed to mention any problem with the left shoulder till a much later date, he thought it unlikely that the left shoulder was in fact injured as the length of time from the accident to the symptom presentation was considerable.
He thought that given that the plaintiff had virtually the same operation on the right shoulder she was probably more likely predisposed to these problems and that problems with the shoulder could have occurred spontaneously if the pathology was consistent with degeneration. If the left shoulder had been injured by trauma he would have expected the left shoulder to become symptomatic immediately.
The defence called Mr Michael Alexeeff, orthopaedic surgeon specialising in (inter alia) reconstructive shoulder surgery. He produced two reports dated 5 November 2007 and 27 October 2008 (Exhibit 16).
In his evidence Mr Alexeeff said that the acromion is graded. Type‑1 is when there is no hook on the acromion, Type‑2 is a moderate hook that most people have, Type‑3 is one where there is a marked hook and Type‑4 is virtually never seen. He said that a Type‑3 almost certainly will irritate the lining of the bursa which protects the tendons from rubbing on the bone. He said that the evidence in the American literature is that a Type‑3 acromion will lead to problems.
In his first report Mr Alexeeff also examined the plaintiff's cervical spine. He also noted that she exhibited gross restriction of activity. In evidence he was taken to a CT scan of the plaintiff dated 9 September 2008 forming part of Exhibit 17. He said that that was consistent with his findings. He said that these problems were not post-accident, but had taken years to develop.
His diagnosis in his first report was of soft tissue strain to the cervical spine/exacerbation of pre-existing degenerative cervical spondylopathy, mechanical low back pain and (inter alia) left shoulder subacromial bursitis/impingement syndrome.
Upon the basis that the plaintiff had not complained of a left shoulder symptom until 1 November 2002 he was of the opinion that the left shoulder problems were unrelated to the accident. He suggested that where there was a note of a complaint of weakness in relation to the left shoulder when she was at Royal Perth Hospital that may simply have been related to soft tissue injury.
As to her ability to work he did not think that she was restricted in teaching. However, there was restriction in prolonged overhead activity or heavy lifting.
He said that it appears that the rotator cuff in the left shoulder may be torn, but that could be confirmed by a simple reinvestigation. Whether or not the plaintiff has a permanent disability would depend upon those investigations. He thought that it appeared to be of a degenerative nature, but "the accident may well have exacerbated this. A contribution from the accident to any impairment is therefore the most appropriate assessment".
Mr Alexeeff thought the plaintiff could work through to retirement age.
His second report insofar as it related to the left shoulder again raised the possibility that there was rotator cuff disease which may be progressive with the possibility of a rotator cuff tear, however he said:
"Given the degenerative nature of this pathology, it is in my view unrelated to the accident of 2002."
In his evidence Mr Alexeeff said that bursitis in the shoulder is usually related to activity. It is more likely to occur in a Type‑3 acromion. He said that it can occur traumatically, but if the bone which protects it is not broken the bursa is unlikely to be injured.
If symptoms came on "in the order of eight weeks after the accident" he thought that there would be no relationship between them and the accident. He said that if it were a traumatic bursitis there would be associated bony injury almost immediately, but even with the bones being intact acute bursitis is exquisitely painful, "If you develop that tonight, you wouldn't be here tomorrow".
In his second report he said that he agreed with the opinion expressed by Mr Edibam that given the delay it was unlikely that the left shoulder symptom was directly related to the accident. Further, given the bilateral nature of the shoulder pathology he thought it could be argued that the left shoulder symptoms would have developed irrespective of the accident. He went on to say:
"This in my view raises concerns as to whether there indeed was any accident effect. Overall I am of the view that if there was an effect, it was minor. I believe this is one reason why symptoms were not immediately noted. The said progression of rotator cuff disease may well explain why she has remained symptomatic."
Earlier in that report he said that it may be that the rotator cuff disease found had progressed and that was the natural history of that pathology when left untreated.
In his evidence he said that normally where a bursa is treated one sees a good outcome.
His evidence about a possible tear in the rotator cuff gave rise to an objection from the plaintiff's counsel on the basis that any evidence about the tearing of the rotator cuff is not sufficiently dealt with in the pleadings as raising an issue. I note that the pleading sets up the defendant's position that the loss and damage was caused or contributed to by pre‑existing and/or subsequent injuries and medical conditions, one of which is said to be the onset of left shoulder pain several weeks after the accident which is not related to the accident. In those circumstances I am of the view that, whilst the pleading is not expressed in detail, it is wide enough to cover those aspects to which Mr Alexeeff referred and indeed dealt with in his report to some extent.
Mr Alexeeff said that tearing of a rotator cuff is part of the aging process and that what the plaintiff now suffers from in the shoulder would be unrelated to the accident.
On the subject of possible retirement from teaching Mr Alexeeff thought that the plaintiff would not have to retire for reasons related to the motor vehicle accident.
In cross-examination he agreed that he was surprised that the plaintiff's functionability had not improved since the operation on her left shoulder and that was not the normal and natural history of such things.
He was strongly of the view that the plaintiff had a rotator cuff tear but would not be able to say when that tear first occurred. He said that for it to be a traumatic cause there would have to be a decent amount of trauma and if she had torn a tendon it would have been very obvious in the hospital.
Mr Alexeeff was cross-examined on his first report in relation to his comment that the accident may well have exacerbated the degenerative changes and that a contribution from the accident to any impairment was therefore the most appropriate assessment and that he would be of the view that the plaintiff probably already had bursitis in her shoulder simply because of the nature of her acromial morphology. However, he agreed that she had no symptoms. He agreed that this was a serious accident and then went on to say:
"But what generally happens in that situation, of course, is any contribution from the accident diminishes with time. In her circumstances, not only has time been an issue, the natural history has been modified by surgery. Now, we're sitting here today because nearly seven years after the event, the shoulder's no different to what it was seven years ago or six years ago."
The final medical witness who was called was Dr Kim Fong, a specialist physician in rehabilitation medicine. He produced two reports dated 18 July 2006 and 16 May 2009 (Exhibits 6A and 6B).
In his second report he noted that the plaintiff was essentially unchanged from his previous assessments. He noted that she was experiencing significant difficulties with maintaining her full‑time teaching role as a high school English teacher. He thought she would probably be unlikely to continue working as a teacher beyond the next 18 months. He estimated that 50 per cent of her capacity could be attributed to her motor vehicle accident injuries. In evidence he said that other matters would relate to her obesity, diabetes, degeneration in various sites on her body and hypertension.
In his first report he said that based upon the plaintiff's reporting that she had been largely asymptomatic and unrestricted prior to her accident, his view was that the injuries sustained in the accident did result in a destabilisation of degenerative arthritis affecting parts of her body including the neck, lower back and shoulder regions.
He opined that the accident would have a significant effect upon her future work capacity. At that time of reporting she was working at Gingin and he noted that the long drive involved each day caused her to experience discomfort at the end of each trip. He said that if her pain symptoms worsened over time she may have to use greater levels of analgesic medication which could have a negative impact on her performance as a teacher and on her safety to drive.
When cross-examined about her ability to cope with teaching he accepted that she had a whole range of symptoms other than those from the accident. He said that the discomfort that he had identified relating to her work was principally in the shoulders and holding on the steering wheel when driving. If she was required to lift her shoulders up to the horizontal that aggravated the symptoms. Sitting and standing were not a severe restriction to her in her teaching role. It was activities that required repetitive limb movements.
The remaining medical evidence comprised two reports from Mr Michael Lee, neurological surgeon, dated 18 December 2003 and 11 March 2004 (Exhibit 12) and reports from Dr Oh, undated (Exhibit 13).
Mr Lee in his first report saw the plaintiff in relation to headache and neck pain. Whilst noting left shoulder pain he deferred to orthopaedic advice. He said:
"I think as far as her cervical spine is concerned, it is a matter of continued conservative treatment with physical therapy and the reasonable expectation that cervical movements will improve. It's encouraging that her cervical pain has by and large resolved."
He had noted degenerative changes at C4 and C5.
Dr Oh reported that teeth 11 and 21 had uncomplicated crown fractures which were restored by porcelain veneers. He said that because the teeth had been traumatised, future deterioration of the nerves was possible and would require future treatment. He noted that the restoration had limited longevity and would require future maintenance.
Mr Neil Alexander Wilson from the Department of Education was called to give evidence. He is manager of staffing and in that capacity places teachers.
He gave evidence that the plaintiff had been on a fixed term contract as a teacher at Gingin and subsequently at Clarkson. The plaintiff's move to Clarkson was initiated by her request. She required a full-time position. It is a three‑year contract at Clarkson which, with satisfactory performance, can lead to the plaintiff becoming a permanent employee of the Department. The advantages of permanency is that the teachers acquire entitlements towards sick leave, long service leave and the like.
To attain permanency teachers had to do various minimum hours of work per week. Once they achieve permanency they can then vary their work down to a minimum of the equivalent of one day a week.
He also gave evidence that a teacher with difficulties, for example, driving long distances to work or other difficulties, is entitled to approach the Education Department for accommodation. The teacher will then be referred to the Employees Support Bureau. There an occupational physician will consider the teacher and on receiving substantiating medical advice a decision is made to offer to accommodate the person's needs.

Mr Wilson said that there was no retirement age in the current protocols for teaching.

Legal principles

In Henville v Walker (2001) 206 CLR 459 at [60] the court said:
"For the purposes of the law of negligence where two or more events combine to bring about the result in question the issue of causation is resolved on the basis that the act is legally causative if it materially contributes to that result."
In March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 509 Mason CJ said:
"Thus at law a person may be responsible for damage when his or her wrongful conduct is one of a number of conditions sufficient to produce that damage." (citations omitted)
In Naxakis v Western General Hospital (1999) 197 CLR 269 at [31] Gaudron J relevantly stated:
"For the purposes of the allocation of legal responsibility, '[i]f a wrongful act or omission results in an increased risk of injury to the plaintiff and that risk eventuates, the defendant's conduct has materially contributed to the injury that the plaintiff suffers whether or not other factors also contributed to that injury occurring'. The trier of fact … is entitled to conclude that the act or omission caused the injury in question unless the defendant establishes that the conduct has no effect at all or that the risk would have eventuated and resulted in the damage in question in any event." (citations omitted)
Further, in Shorey v PT Ltd [2003] HCA 27 Kirby J restated the well known principle that a plaintiff does not have to prove that the event (caused by the defendant) was "the" cause but it was enough that the complainant show that it was "a" cause of the condition for which damages are claimed and that the negligent defendant must take the victim as he finds him or her and pay damages accordingly. His Honour then went on to deal with the onus of proof as described in Watts v Rake (1960) 108 CLR 158 where Dixon CJ said at 160:
"If the disabilities of the plaintiff can be disentangled and one or more traced to causes in which the injuries he sustained through the accident play no part, it is the defendant who should be required to do the disentangling and to exclude the operation of the accident as a contributory cause. If it be the case that at some future date the plaintiff would in any event have reached his present pitiable state, the defendant should be called upon to prove that satisfactorily and moreover to show the period at the close of which it would have occurred."
This is another way of saying what was expressed in Shorey at [49] that ''to assert that other causative agents have taken over as the sole or the effective cause of the appellant's damages" is a burden of disentangling which the defendant bears.
Accordingly, it is only necessary for the motor vehicle accident to be a cause of the plaintiff's disabilities.
The Motor Vehicle (Third Party Insurance) Act 1943 applies. It provides restrictions on damages for non‑pecuniary loss as set out in s 3C of the Act. 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, to the maximum amount that may be awarded" (s 3C(2)). Also restrictions on damages for the provision of home care services are provided for in s 3D of the Act.
In Australia a plaintiff is compensated for loss of earning capacity not loss of earnings. It is for loss of earning capacity where that diminution in earning capacity is or may be productive of financial loss: Graham v Baker (1961) 106 CLR 340.
In Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 the court considered how one might deal with an event which is alleged would or would not have occurred or might or might not yet occur and the approach to be taken. It considered the probabilities of an event occurring and the court then taking into account the chance in assessing damages. The court said:
"Thus the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts it award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded. The approach is the same whether it is alleged that the event would have occurred before or might occur after the assessment of damages takes place." (citations omitted)
In State of New South Wales v Moss (2000) 54 NSWLR 536 Heydon JA (as he then was) noted that damages to compensate for reduced economic activity were by their very nature incapable of mathematical calculation and very much at large. He said:
"It rests on the hypothesis – that the plaintiff will have undiminished capacity – which has been rendered false by the event. It does not depend on calculating the income from a particular career which is no longer possible, but in calculating the damage to a capacity to earn on various careers. It is an exercise in estimation of possibilities not proof of probabilities. … The court is really being asked to estimate as best it can the future effect of the injuries from which the plaintiff had been proved to be suffering as a result of the defendant's wrongful act." (citations omitted)
When considering loss of earning capacity it is necessary to have regard to discounts for contingencies. In Villasevil v Pickering [2001] WASCA 143 Anderson J noted that the discount for ordinary contingencies is rarely more than 15 per cent and usually between 5 and 10 per cent. He referred to Black v Motor Vehicle Insurance [1986] WAR 32. Also as noted by Windeyer J in Bresatz v Przibilla (1962) 108 CLR 541 it is necessary to have regard to the particular facts in the relevant case and that all contingencies are not adverse and all vicissitudes are not harmful.

Findings of fact

Injuries and disabilities

There is little doubt, leaving aside the alleged injury to the plaintiff's left shoulder, that the plaintiff sustained the physical injuries pleaded in par 8 of the statement of claim and I so find. These injuries are, in the main, well documented in the Royal Perth Hospital notes and those of Dr Thambiran.
Before coming to the remaining injuries alleged by the plaintiff, it is appropriate for me to make some findings as to the medical condition alleged by the defence to be the cause of or contribution towards the plaintiff's loss, injury or damage as pleaded in par 3 of the defence.
There is not much dispute as to those conditions which are set out in pars 3(a) to (h) of the defence. I find that those conditions did exist prior to the motor vehicle accident.
However, I find that at the time of the accident the plaintiff's obesity and general unfitness had not caused her any difficulties in her work or lifestyle. She was not seriously challenged on her activities both physically and socially.
As to the pre-existing chronic low back pain, the plaintiff did suffer injury to her low back but according to her it had settled by about 1998. It did not appear to affect her physical activities, although I accept that she has had treatment for back pain from time to time both before and after the motor vehicle accident.
The plaintiff's diabetes, hypertension, irritable bowel syndrome and, indeed, her epilepsy were well controlled by medication prior to the accident and again did not affect her lifestyle or ability to work.
It is also clear from the evidence that the plaintiff had right shoulder pathology prior to this accident. That pathology has been the subject of successful surgery carried out by Mr Prosser in March 2005. I find that that shoulder problem has not caused the plaintiff problems since and there is no evidence to suggest otherwise.
Mr Lee noted in his report of 18 December 2003 that the plaintiff had degenerative changes in her neck at C4/5 and that by that date her pain had "by and large resolved".
Dr Fong noted in his report of 18 July 2006 that the plaintiff had had no significant neck problems before the motor vehicle accident. He described her as being destabilised as a result of the accident. I find that the plaintiff did have degeneration in her neck prior to the motor vehicle accident but which was, in the main, asymptomatic but which was rendered symptomatic by the accident. However, that neck problem has now, consistent with the report of Dr Fong dated 16 May 2009, settled to being stiff, restricted in movement and occasionally painful.
This brings me to the left shoulder. The plaintiff's position is that she experienced pain in her left shoulder immediately after the motor vehicle accident and made complaint about it. The defendant's position is that there is an absence of early complaint and that the medical evidence is that the absence of complaint would point to the condition being unrelated to the accident.
Consideration of whether or not there was or was not complaint can be assisted by looking at the contemporaneous notes.
The Royal Perth Hospital notes reveal complaint of "weakness in left shoulder" on 9 September 2002 (the day after the accident). The notes of Dr Thambiran do not reveal any complaint being recorded in relation to the left shoulder until 1 November 2002.
I accept the evidence of Dr Thambiran that he had no recollection of a problem being referred to him before that time. However, that is perfectly understandable in the context of a general practitioner seeing patients in his surgery. Most general practitioners are generally very busy in their practices and could not be expected to recall such detail and particularly so when being asked to recall at trial matters occurring (or not occurring) six or seven years previously. I also accept Dr Thambiran's evidence that it is his usual practice to make a note if told something by a patient. However it is equally understandable in the course of a busy practice for a general practitioner not to do so or to omit to do so particularly if dealing with a raft of complaints arising from, as in the present case, a motor vehicle accident.
The plaintiff and her daughter both say that the left shoulder was mentioned as a problem to the doctor. Cynically one could say that, given the way the issues in this case have become refined, they would be bound to make such a statement. However, I accept their evidence in this regard. That there was some existing problem with the left shoulder arising out of the accident and was likely to have been mentioned is supported by the Royal Perth Hospital notes the day after the accident. Further, at the time of Dr Fatovich making his notes he recorded the plaintiff's history as "felt it started the day after the accident". At the time of making that statement to Dr Fatovich it would be unlikely that the plaintiff would have had access to the Royal Perth Hospital notes. There is therefore a consistency in the evidence. Given that there was this problem in hospital, it is likely that the plaintiff did complain to Dr Thambiran as she alleges.
Before leaving this aspect it is necessary for me to make mention of the plaintiff's notice of intention to make a claim under the Motor Vehicle (Third Party Insurance) Act 1943 (Exhibit 1). That notice was dated 19 November 2002. In that notice the plaintiff is asked to describe the "nature of known injuries". She wrote "Severe bruising neck to thighs, ulcerated leg wound, whiplash, post-traumatic stress". It can be seen that she does not make mention of the left shoulder in that notice of intention to make a claim.
The defendant puts that document into evidence in support of its argument that the left shoulder problem was not accident caused. However, as I have noted, the medical notes of the plaintiff's visit to Dr Fatovich on 1 November 2002 record her complaining of pain on the top of both arms commencing the day after the accident. This complaint is 18 days before the notice of intention to make a claim. Accordingly, it could not be suggested that it was an afterthought. The plaintiff's explanation for it not appearing in the notice is that she had mentioned it to the doctor on three separate occasions and he had brushed it off and so she decided not to bother. He had told her it was not a problem.
In my view the notice does not assist the defendant.
The question then arises did the motor vehicle accident cause an injury to the plaintiff's left shoulder. There is no doubt that the plaintiff had developmental issues resulting in a Type‑3 acromion process unrelated to the motor vehicle accident.
As I have noted, Dr Prosser relying on symptoms being present early after the accident thought that the motor vehicle accident was likely to have contributed to the onset of the left shoulder symptoms despite the Type‑3 acromion which was asymptomatic prior to the accident.
In his first report, Dr Edibam noted that the left shoulder symptoms were due to the variation of her anatomy predisposing her to impingement of the rotator. He said that the plaintiff may not have noticed symptoms prior to the motor vehicle accident but the symptoms were possibly triggered by some injury to the left shoulder. In his second report he changed his view and thought the symptoms were consistent with degeneration and if the left shoulder had been injured by trauma he would have expected it to become symptomatic immediately.
In view of my findings above, the first position adopted by Mr Edibam is to be preferred.
Mr Alexeeff speculated that there may be a tear in the rotator cuff. That has not been proved by any radiological or other evidence. Accordingly, I am not able to make any such finding.
Mr Alexeeff said if symptoms came on after the motor vehicle accident they would not be related to it. However, his evidence is that the motor vehicle accident may well have exacerbated the degenerative changes and other conditions arising from her acromial morphology.
Again, in view of my findings and the plaintiff's complaint of injury to the left shoulder the day after the accident, the suggestion from Mr Alexeeff that the accident has exacerbated the plaintiff's condition is the most appropriate and probable reason for her present problems and I so find.
I am satisfied that the plaintiff did sustain injury to her left shoulder in the motor vehicle accident and find that the accident was a cause of the plaintiff's condition becoming symptomatic and developing to the stage where it currently sits.
In his report of 19 December 2005 Mr Prosser noted improvement in the plaintiff's left shoulder and concluded:
"Overall Mrs McGeown has a satisfactory symptomatic outcome, although objectively there is still some limitation through abduction."
As against that there is the evidence of the plaintiff that she still has problems with her left shoulder which I have detailed. In a report of 16 May 2009 Dr Fong noted that increased activity caused flare ups of pain and restriction in joint range. I accept the evidence of the plaintiff and Dr Fong and find that the plaintiff does have ongoing problems in her left shoulder and as described by her.
The plaintiff's psychological condition was addressed by Dr Loke and Ms Casella. That evidence demonstrated that the plaintiff suffered post‑traumatic stress disorder as a result of this motor vehicle accident with flashbacks and nightmares. Counsel for the defendant, in his final address, did not seriously dispute that.
Ms Casella in her report of 7 February 2005 described the plaintiff's recovery as good and, in the main, having returned to her pre‑morbid levels of functioning which she expected to be maintained unless there was some further trauma of a life‑threatening nature that had been experienced.
In his report Dr Loke said the plaintiff was likely to continue to have mild residual anxiety symptoms, but the post-traumatic stress disorder was unlikely to affect her future working capacity.
Neither Ms Casella nor Dr Loke were aware of the subsequent motor vehicle accident at Tom Price. Given the way the plaintiff described that accident, it seems that if the plaintiff was left in a more fragile state after the motor vehicle the subject of this accident it was not to such an extent as to be exacerbated by the motor vehicle accident at Tom Price.
I find that the plaintiff did suffer post-traumatic stress disorder as a result of the accident but that by April 2006 she had largely recovered from this, although still "jumpy" when in a car.

The plaintiff's work

As to the plaintiff's work, I accept her evidence that she intended to work until she was 70 years old. She qualified late in life and it is entirely reasonable that she would wish to exercise her capacity and qualifications until that age. Further, the evidence of Mr Wilson on behalf of the Education Department is to the effect that once the plaintiff obtains permanency there is no retirement age protocol. Indeed, the Education Department has a policy to accommodate teachers who experience difficulties.
I find that with these protocols in place that it is reasonable to expect, and I accept, that the plaintiff would work until she reached the age of 70 years. The question is whether she will now be able to do so.
The plaintiff expressed the difficulties that she has because of her injuries and in particular in relation to the left shoulder. It is not necessary for me to repeat them. I accept that they cause real problems for the plaintiff in performing her work. In his report of 19 May 2009 Dr Fong expressed his opinion that the plaintiff was likely to be unable to continue work as a teacher beyond the next 18 months, i.e. at or around the age of 62 years. When Mr Prosser last saw the plaintiff he thought that she could do most things in the classroom but it is to be noted that that was back in December 2005.
Mr Edibam did not, in December 2005, consider that the plaintiff's working capacity had been or would be affected. Mr Alexeeff in his first report thought the plaintiff could work to retirement, although remain symptomatic. In his report of 27 October 2008 he believed the plaintiff was not restricted in performing duties as a teacher as a result of the injuries sustained in the motor vehicle accident. It will be remembered that he did not consider the left shoulder problem to be motor vehicle accident related.
Whilst the plaintiff is managing to carry out her duties at the present time I accept, to some extent, the evidence of Dr Fong about her future. I prefer his evidence to that of Mr Edibam and Mr Alexeeff whose evidence is largely based upon the proposition that the shoulder which would be the main cause of the plaintiff retiring is not accident related.
Dr Fong expressed the view that the plaintiff's work capacity had been reduced in part by her motor vehicle related injuries. In expressing his opinion Dr Fong was of the view that about 50 per cent of the plaintiff's reduced future work capacity could reasonably be attributable to her accident and the remaining 50 per cent being attributable to other factors. Respectful as I am of the doctor's opinion, these are matters for the trial Judge to determine.
Consistent with the authorities to which I have referred, I find that the accident caused injuries and in particular her left shoulder injury is a cause of the risk that the plaintiff will have to retire early. It matters not that there may be other factors which would come into the equation leading to this eventuality. The defendant has not satisfied me that his conduct had no effect or that the risk would have eventuated in any event. I am satisfied that the risk will eventuate.
Whether the plaintiff will be forced to retire or whether it would be reasonable for her to do so because of her disabilities (see Medlin v State Government Insurance Commission (1995) 182 CLR 1) in 18 months as opined by Dr Fong or some other time is speculative.
The plaintiff has worked hard to get where she is this late in her working life. She did not strike me as a person who would give up easily. She has shown a determination and stoicism which I have no doubt will continue. Her daughter agreed that she was "a bit of a fighter".

Nevertheless I cannot ignore the fact that she has been compromised in her capacity and notwithstanding the accommodating nature of her employer there is the risk that she may lose her earning capacity before the age of 70 years.
The defendant pleads that any loss, injury or damage is caused or contributed by her pre-existing injuries or conditions. The plaintiff having satisfied me as to her loss of earning capacity as I have expressed it, the defendant has not satisfied me that that loss was caused or contributed to by the matters pleaded for by the defendant. As I have found, the motor vehicle accident was a cause of the left shoulder symptoms and disability and the other matters were well controlled and there was no evidence that they would impact upon her earning capacity in the future and indeed the extent of that impact particularly bearing in mind the accommodating nature of the plaintiff's employer.
Of course one cannot entirely disregard these other matters relating to the plaintiff's health and general condition as they are matters to take into account when considering what reductions (if any) to make for contingencies.

Gratuitous services

The plaintiff claims gratuitous services.
The evidence demonstrates the plaintiff has been assisted from time to time by her daughter, husband and Ms Aitken. I have detailed this evidence elsewhere.
One may draw inferences in a case from established facts, but there is no room for speculation or guessing. For example, I could readily infer that on release from hospital or after operative treatment a person may require assistance with domestic chores or with personal care. However before I could go on to award damages for such services, I would need to be satisfied on the evidence that there was a need for such services arising from the plaintiff's disabilities and that but for those services being provided gratuitously they would have had to have been provided at a cost to the plaintiff. The problem with so many cases, and this is one of them, is that the evidence of the assistance is given by the plaintiff and those who provide the assistance. In this case that is the daughter, Ms Aitken and the plaintiff's husband. It is rarely supported by any independent evidence of a medical nature to show that such services were required.
In the present case the closest that the evidence comes to providing a medical basis for the need for services is that of Dr Fong in his report of 16 May 2009 in which he says, at that time, the plaintiff was likely to need approximately six hours per week of domestic support. No basis for that opinion was expressed in his report nor was it canvassed in examination‑in‑chief, nor was it challenged in cross-examination.
The evidence of the plaintiff's daughter Tracey Priest is that she provides help if the plaintiff needs it and describes it as "mother/daughter stuff" and that the plaintiff can do most things. Accordingly, so far as the future is concerned I am unable to be satisfied to the appropriate standard that there is a need for services in the future.
None of the medical evidence addresses the need in the past.
Tracey Priest was cross-examined about the help that she had given to the plaintiff. That cross-examination related to assistance that she gave to her mother in respect of problems that her mother had had with her right arm until she had the operation in 2005, her bad back and particularly when she had injections from a Dr Hanrahan and again when she has had leg and hip problems. It was put to her that she had assisted as a dutiful daughter and she agreed.
Ms Priest agreed that her mother was a fighter and could manage most things now.
In re-examination Ms Priest said that she put in more effort after the accident than she had before. She said she went there a lot more after the accident especially initially straight after the accident before she left to go overseas. In that initial period she described spending something like two to three hours every second or third day whereas before the accident she would probably be at her mother's house only once a week.
As I have noted previously s 3D Motor Vehicle (Third Party Insurance) Act 1943 provides restrictions on the award of damages for provision of home care services. Specifically if the amount of damages to be awarded is Amount D or less, no damages are to be awarded. The current figure for Amount D is $6,000.
The rate for these services has been agreed at $20.
As to the assistance given by the plaintiff's husband, he said that the time that he said that he spent was guesswork. It seemed to me that most of what he did was to be treated as more of the give and take of domestic family life.
Reverting to the assistance given by the daughter and Ms Aitken, again it was vague. I accept that Ms Priest and Ms Aitken did provide assistance to the plaintiff. However, the extent of that assistance and the need for it is not absolutely clear. I could readily accept that Ms Priest provided a lot more assistance initially straight after the accident as she described in re‑examination and before she left to go overseas in December 2002. That comprised 102 hours. At the agreed rate of $20 per hour that would amount to $2,040.
Thereafter Ms Aitken took over doing household chores for the plaintiff. This was until June 2003. She said it was anywhere between one and three hours and in a normal week about three to four hours.
To attain the threshold under the Motor Vehicle (Third Party Insurance) Act at the rate agreed it would be necessary for there to have been, after Ms Priest left for overseas, a total of an additional 200 hours of services. The plaintiff in her submissions on damages says that that period stretched from December 2002 to January 2009. I do not accept that the evidence clearly demonstrates such a volume of gratuitous services or a need for them over the whole period. Indeed, some of the work carried out may well have been carried out by reason of the plaintiff's existing disabilities as was demonstrated in cross-examination. Further for a period of time the plaintiff was working at Tom Price where, presumably, such assistance from family was not required.
Nevertheless I do accept that some gratuitous services were required and provided. Doing the best that I can it seems to me that a global assessment is what is required in this regard.

Loss of earning capacity

This is not a case where I can make any mathematical calculation of loss. I have found that there is a risk in the future that the plaintiff will lose her capacity. It is, having regard to all the evidence, a very real risk. The plaintiff says that I should proceed on the basis that the plaintiff will retire at the end of 2010 in line with the opinion of Dr Fong.
I have made my findings as to this and that in my view that will not necessarily be the case. The damages for the risk are at large. Should the plaintiff cease working then she will also lose her right to receive compulsory superannuation contributions from her employer.
When considering this risk I must also have regard to the contingencies that may arise including the general state of the plaintiff's health and the vicissitudes of life. However, when doing so I also have to take into account the accommodating nature of the employer in this case. In this respect given the plaintiff's numerous medical conditions and including the fact that she did have a left shoulder pathology before the accident, in my view an appropriate rate for contingencies and vicissitudes of life would be 15 per cent.
When considering this aspect of the claim it is necessary for me to have regard to the value of the earning capacity and this is assisted by the evidence of gross annual salaries applicable to the plaintiff in the future and to be found in Exhibit 9.
Doing the best I can to assess the risk it seems to me that it is more likely than not that the plaintiff will be forced to retire at about the age of 65 rather than the age of 70 as she had planned.
The plaintiff has provided a schedule of damages which contains a number of calculations into the future based upon the figures contained in Exhibit 9. Those calculations have allowed for an expense of earning income agreed between the parties at $3,000 per annum. Any calculations of the plaintiff's loss of earning capacity should reflect earnings net of tax which the plaintiff's schedule does not take account of.
The relevant figures, allowing for current rates of taxation, for the period 1 October 2013 to 30 September 2014 (Period 1) would be approximately $1,115 per week and for 1 October 2014 to 21 October 2018 (Period 2), $1,151 per week.

Assessment of damages

General damages for non-pecuniary loss

As I have noted, these damages are to be assessed in accordance with the Motor Vehicle (Third Party Insurance) Act1943.
This is a case where the majority of the injuries sustained by the plaintiff have by and large resolved themselves. Nevertheless they would have been painful and disabling to the plaintiff for a period of time. She is left with a continuing problem with her left arm. This has affected her both in her work, socially and recreationally.
These problems have been continuing now since the accident on 8 September 2002, a period of nearly seven years. They have affected the plaintiff in her domestic life. Her relationships with her husband have altered according to her evidence and have become strained from time to time according to the evidence of her husband.
In my view taking all of these matters into account an appropriate award would be one whereby the plaintiff should be assessed at 15 per cent of the maximum amount that may be awarded. The current maximum under the Act is $327,000. Allowing for the calculations set out in s 3C of that Act and the deductable that would apply the net award for the plaintiff is $32,550.

Loss of earning capacity

As noted in the present case the plaintiff does not claim for any past loss of earning capacity. Her claim is entirely in relation to the future and the possibility that she may not be able to work until retirement age.
Allowing for all of the matters to which I have referred, in my view an appropriate award for future economic loss would (rounded down) amount to $185,000.
Whilst I have noted that the damages are at large and not capable of precise mathematical calculation I arrive at that figure by adopting the two periods and the rates of pay described earlier and adding to the resultant figure an allowance for superannuation and then making a deduction for the contingencies to which I referred earlier. The approximate multiplier for Period 1 is 39.55 and for Period 2, 137.225.
The following results:
Period 1$1,115 x 39.55   $44,098.00
Period 2$1,151 x 137.55  $157,946.00
$202,044.00
Plus loss of superannuation at 9% of gross salary
less 30% to take account of deductions per
Jongen v CRS (1992) Aust Torts Reps 81-192
Period 1($81,662/52 x 39.55) x 9% x 70%          $3,913.00
Period 2($84,863/52 x 137.225) x 9% x 70%    $14,108.00
$18,021.00
Sub-total$220,065.00
Less contingencies at 15% $33,010.00
Total$187.055.00

Domestic services

I have expressed the difficulties in dealing with the claim under this head. It seems to me that this is the sort of case where again no mathematical precision can be applied. In my view an appropriate global amount to cover domestic services would be $10,000. In addition the plaintiff is entitled to interest on that sum which I would allow at 3 per cent over the period from the date of the accident to the present time.

Future treatment

In this case the current regime for the plaintiff is to take analgesics for her pain. There is a suggestion that the plaintiff would be assisted by physiotherapy from time to time when required. There is also evidence from Dr Oh that at some time in the future the dental treatment that she has received to date will require further treatment.
The plaintiff in her schedule of damages claims a global sum of $10,000 for such matters. Given the paucity of evidence, it seems to me that such sum is excessive. In my opinion a global award of $2,500 should be adequate to meet the plaintiff's needs.

Special damages

Special damages in this matter have been agreed in some respects entirely, but in other respects are dependent upon my findings as to the cause of the plaintiff's left shoulder injury. I have found that that left shoulder problem is as a result of the motor vehicle accident and also that the plaintiff has suffered post‑traumatic stress disorder. I am also satisfied that she has suffered some neck pathology as a result of the motor vehicle accident.
I have been provided with a schedule of special damages which has been amended by consent and given my findings now stands at $1,872.70. I would allow this sum. This sum does not include on the travel allowances items 5 and 15 nor in Section B, being the pharmaceutical expenses.

Conclusion

The plaintiff is entitled to damages of $233,947.70 which is made up as to:
General damages for non-pecuniary loss $32,550.00
Future loss of earning capacity  $185,000.00
Domestic services $10,000.00
Interest thereon at 3% per annum for 6¾ years    $2,025.00
Future treatment    $2,500.00
Special damages    $1,872.70
Total$233,947.70

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established