Daw v Cathcart[1998] QDC 162

BETWEEN:

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REASONS FOR JUDGMENT - McGILL D.C.J.

Delivered the 30th day of June 1998

The first plaintiff was injured in a motor vehicle accident on 15 July 1991 when the defendant's vehicle ran into the rear of the vehicle which the plaintiff was then driving (p. 11). Liability was admitted on the pleadings, and only quantum was in issue at the trial. The second plaintiff is the husband of the first plaintiff and claims damages for loss of consortium. The defendant's submissions raised particularly two issues: a) whether the first plaintiff is exaggerating her symptoms; b) whether the first plaintiffs continuing problems are really attributable to the incident of 15 July 1991, rather than the work she was doing for her employer or other medical conditions.

Facts

The first plaintiff had seen the defendant's vehicle approach and taken her foot off the brake before the collision, but was still stationary: p. 11. The plaintiff's head was thrown back and then forward in the accident. She was going to work at the time when the accident occurred, and she did work for most of that day (p. 43), although she did not do anything very strenuous (p. 44). The following day her neck was feeling tight and she had pain down the right arm to the middle finger (p. 11), and she went to see her general practitioner Dr Smith who also noted that she had a contusion to the right hand: Exhibit 19. He treated her with heat packs and Panadol, and had x-rays taken, and she took the rest of the week off work, although on Friday 19 July she saw Dr Smith again and was cleared to return to work on the following Monday, which she did: p. 12.

She worked as an Area Manager with the legal publishing house CCH. Her work largely involved sales, that is calling on lawyers and accountants, visiting their offices in Brisbane or driving or flying to country areas in southern and central Queensland. The job had the advantage that she could work from home: p. 13. The work seems to have been fairly light, although she was commonly required to carry one CCH loose leaf binder of a kind familiar to all lawyers, in order to show them to potential customers. Sometimes more than one such binder had to be transported: p. 58. She said that she enjoyed this work (p. 12), and she had prior to the accident been able to do it without difficulty. After the accident however she found that lifting any significant weight would cause pain in the back, neck and right arm, and this could be brought on even by lifting or carrying these binders, but she persevered with the work because of her interest in it: p. 61-3,209. She would just get on with the job and conceal her distress: p. 27. She did however try to minimize the amount of lifting she did, and would get other people to help her as much as possible.

She treated the neck condition with heat and medication for pain relief (p. 11), taking various pain killers from time to time. This produced a manageable situation, although she did continue to have problems and went back to her GP for problems with the neck on 30 July 1991, 15 January 1992, 10 March 1992 and 30 April 1992 (Exhibit 19) before the neck became significantly worse on 6 May 1992. On that day she was lifting a CCH folder out of the boot of her car and turning to the side when she felt her neck go into spasm: p. 16, 67. She stopped work at once and went back to Dr Smith, and was sent to a physiotherapist Mr Driver. She was off work as a result of this incident for about four months (Exhibit 18), and she attended Mr Driver for treatment on some 24 occasions during the first 2½ months (Exhibit 10). Mr Driver in Exhibit 2 said that the plaintiff's symptoms never settled below a tolerable level, but I think this was not correct, as the plaintiff's condition was not “intolerable”. I expect he meant “never became acceptable”.

Eventually the plaintiff thought that the physiotherapy was not really helping very much (p. 21), and tried swimming instead, which she found helpful: p. 209. In September 1992 she was cleared by Dr Smith to return to work and she resumed full-time work, under the same conditions as before: p. 85. She still experienced pain if she had to carry any significant weight in front of her. Nevertheless she persevered with the work until she was made redundant on 13 December 1996, for reasons not related to the condition of her neck: p. 27.

She then had considerable difficulty in obtaining alternative employment, but had very recently started as a real estate salesperson: p. 29. She receives a retainer and has a right to commission in respect of sales that she is responsible for, and it is as yet unclear what income this will produce for her. Before starting this work she made numerous attempts to obtain what she thought would be suitable employment, but had missed out on them: p. 27. She said that there were some jobs that she did avoid because it sounded as though they would be too much for her in the light of her continuing problems with her neck, but these were not a large proportion of the jobs she considered: p. 28. It did not appear to produce a substantial limitation in the sort of employment that she considered, and she said that she did not disclose her neck condition to potential employers so she did not miss out on employment because of that condition: p. 208.

Medical Evidence

Dr Smith, who has now retired from practice, was called and expressed the opinion that the plaintiff's injury in the accident had caused or aggravated a degenerative condition of her cervical spine (p. 122), which condition was further aggravated by the incident on 6 May 1992 (p. 119), although that incident would not have caused any problems if the previous injury had not occurred: p. 124. He said it was impossible to know if the degeneration had been initiated or accelerated by the injury. He expected that the condition would never go away, but would flare up from time to time and then settle again: p. 121. This had been the pattern during the time he was treating the plaintiff.

His notes Exhibit 19 reveal that in January 1990 and February and April 1991 the plaintiff was suffering from neck pain and stiffness, and occipital headaches: pp. 111, 115, 116. These were treated with Naprosyn. The plaintiff said that the first time the drug gave her speedy relief, to the point where she was able to discontinue it after a few days: p. 46. She said that her current problem was quite different from the symptoms she experienced after the accident (p. 53), and Dr Smith also said that the clinical picture was quite different from the condition he observed following the motor vehicle accident: p. 119-120. This does not now appear to be controversial: p. 280.

Following the incident in May 1992 the plaintiff was referred to a neurosurgeon Dr Coroneos, who undertook extensive testing in June 1992, in the form of a cervical and thoracic CT myelogram, and ENG and nerve conduction studies, and a CSF examination, all of which were normal: Exhibit 23. Dr Coroneos reported in 1996 that his assessment when he saw the plaintiff in 1992 was that she had incurred injury to the upper cervical region consequent on the motor vehicle accident and that the detailed investigations excluded any significant injury to the bony elements or the discs. The complaints of painful restriction of movement and soft tissue tenderness with referred pain suggested some injury to the musculo-ligamentous support structures, a condition which would usually resolve within six to nine months although some 5-10% of the patients went onto experience chronic symptoms. He thought that she had been left with a static condition and a disability of the order of 5% as a result of that injury: Exhibit 23.

In the witness box however Dr Coroneos said that when he gave that opinion he was not aware of the incident on 6 May 1992 (p. 254), and that had he been aware of that incident he would have attributed her complaints to him in June 1992 to that incident, which he said was independent of the motor vehicle accident: p. 262. He said that lifting a CCH binder out of the boot of the car could cause a muscular strain with a normal neck (p. 290), a proposition which seems to me somewhat surprising (and appears to be contrary to the opinion of Dr Sharwood: p. 154), and was quite emphatic that the plaintiff could not have been suffering from any continuing problems arising from the motor vehicle accident because his investigations did not reveal any objective explanation for continuing problems, and the natural course of a musculo-ligamentous injury was to resolve within a few months: p. 262. He did not offer any explanation for any continuing symptoms being suffered by the plaintiff, but expressed a firm view that they were not caused by the motor vehicle accident in 1991. Dr Coroneos was of the view that the injury in May 1992 was a totally different injury not related to the injury of July 1991: p. 262.

Dr Coroneos' new opinion was similar to that of Dr Martin who examined the plaintiff for the purposes of a medico-legal report on 16 January 1996. He expressed the opinion (Exhibit 12) that the first plaintiff did not now suffer any symptoms or disability attributable to the collision in July 1991. She had a normal clinical examination and investigations in 1992 did not reveal any nerve root compression from disc injury. He did not think that she was disabled from work or from domestic or recreational activities. He felt that symptoms of dizziness and headaches and nausea may be side effects from the medication she was taking. Dr Martin said that in the absence of litigation he did not see in the course of clinical practice patients presenting with such complaints so long after such an injury.

In the course of her evidence the first plaintiff was critical of what had occurred during his examination, and claimed that it was superficial, and that in particular Dr Martin did not actually feel her neck: p. 36. Dr Martin referred in Exhibit 12 to an inability to illicit any tenderness with palpation of the cervical or upper dorsal muscularure, and in oral evidence confirmed that notes made by him at the time of the examination indicates that he actually did feel her neck: p. 207. I shall come back to this conflict.

It seemed to me that Dr Martin's approach was based fairly heavily on the absence of any objective indication of a physical cause for the continuing symptoms, and the fact that the plaintiff's complaints were not consistent with the ordinary course of a whiplash injury.

The other medical witness was Dr Sharwood, an orthopaedic surgeon, who examined the plaintiff for the purposes of a report on 5 August 1996, and conducted a further examination on 19 June 1997. He was of the opinion the plaintiff had suffered a soft tissue injury in the accident in July 1991, and he thought that the continuing problems were attributable to the accident: Exhibit 6. He assessed the disability of 5% of the whole body, but with prospects of improvement. In June 1997 his view was essentially the same: Exhibit 8. He said there that the degeneration which was not present prior to 1991 was caused by that accident. In court Dr Sharwood thought that the incident on 6 May 1992 was the sort of thing which was likely to stir up the condition in the neck: p. 154. Dr Sharwood also thought that the indications of neck problems prior to July 1991 were not related to degeneration of the spine: p. 159. When told of Dr Smith's view he supported such an approach: p. 161. He also said that, although dizziness could be a symptom of degeneration in the neck (p. 167), he would not expect the plaintiff to be affected with her degree of degeneration (p. 168) and he thought that her dizziness was more likely to be attributable to the medication she was taking: p. 167. He also thought that the plaintiff was likely to be still getting symptoms from stress or tension: p. 169.

The first plaintiff's credibility

The principal element in the defendant's attack on the credibility of the first plaintiff was her appearance in a video tape (Exhibit 30). The video tape was taken in April 1997, and shows the plaintiff carrying a number of things including boxes, a shoulder bag, a garbage bag, a blanket, a dining room chair on a couple of occasions, and some other items. It generally does not show any sign on the part of the first plaintiff that she was suffering any distress in connection with any of these activities, but on the other hand it does not show her doing anything particularly strenuous. The main difficulty with the video from the defendant's point of view is that it was not taken on an ordinary day; it was taken when the plaintiff's were in the process of moving house, at a time which would, therefore, be likely to prompt more than usual activity from anybody who was not wholly disabled. Indeed in such a context it might be said that the video shows a surprisingly limited involvement on the part of the first plaintiff, although there were other people around who were able to do most of the work.

Dr Martin thought that what he saw on the video was inconsistent with the plaintiff's complaints (p. 189) although he thought it confirmed his opinion that she was not experiencing any disability: p. 188. At one point he said that there were complaints on the part of the plaintiff that she could not pull out weeds, had trouble swimming, and that writing and typing were a problem for any length of time, and that these were not consistent with what was observed in the video (p. 189) although plainly the plaintiff was not shown carrying out those activities or anything like them. Dr Martin's evidence was also not very specific about particular movements or activities seen on the video. Dr Coroneos said that what he saw on the video was inconsistent with a complaint that the plaintiff could not lift anything with her right arm without experiencing severe pain, pins and needles and numbness: p. 256. It was also generally inconsistent with severe incapacitating symptoms. He also thought that there was shown a full range of neck movements, and the ability to pivot and turn rapidly and freely; he thought the video was consistent with a normal neck. He thought there was no continuing impairment whatever: p. 257. There was similar evidence in relation to lifting chairs at p. 263.

Dr Coroneos in his oral evidence said that the appearance of the first plaintiff in the video was inconsistent with severe incapacitating symptoms. That proposition I would accept, but it does not really contradict the plaintiff's evidence. The plaintiff saw Dr Coroneos fairly soon after the incident in May 1992, at a time when she was unable to work. Although she did at one stage seem to be saying that the symptoms had remained unchanged ever since the accident (p. 15), it was clear from her evidence as a whole that the symptoms have actually fluctuated a good deal, that there were periods where they flared up (eg. p. 36 & 178) and other periods where they eased off. What matters for my purposes is whether the appearance of the plaintiff shown in the video tape is inconsistent with her evidence as to her condition around the time when the video tape was taken. For practical purposes that involves comparing her evidence as to her present condition with her appearance in the video tape.

Dr Sharwood had also seen the video, and thought that there were five places in it at which it appeared that the first plaintiff was not turning her head to the right, and when she did turn seemed to turn her whole body, suggesting that she had a stiff neck. He thought that she was keeping her head fairly stiffly to the front; otherwise there was nothing of note in it: Exhibit 32. Dr Smith had seen the video Exhibit 30; he thought that the things that the plaintiff was shown carrying were quite light; otherwise he did not see anything of significance in it: p. 124.

My own impression of the video is that it does not show the plaintiff doing anything very strenuous, but generally she does not show any signs of limitation or distress in what she is doing. Most of the time she appears quite cheerful, although on the second day of the move at about 8.26 when she was carrying an apple carton she looked unhappy. Whether that was because carrying that carton was painful or for some other reason it is not possible for me to tell by looking at the video. The plaintiff seems to move her right arm around readily enough.

I think it is important when assessing the significant of the video tape to compare it with the plaintiff's evidence as to her symptoms and difficulties. The plaintiff said (p. 14) that she was no longer able to do many duties she used to do prior to the motor vehicle accident, anything that involved lifting or things like vacuuming, and she could no longer garden for long periods at all. Her husband has virtually taken over cooking, even things like cutting a pumpkin she found very difficult. She found driving all the way from Brisbane to Gladstone very debilitating, she has some problem with sleeping patterns, not being able to sleep right through the night (p. 15), she feels she has lost a lot of independence and becomes tired and depressed from time to time: p. 16. She has dizziness and headaches, and occasional blurring of vision, she can move her right arm freely, but has difficulty with the application of pressure: p. 22. She also has severe pain down the spine and in the lower back, as well as severe headaches: p. 23. She avoids washing her car or walking a large dog, as well as sail boarding and tennis: p. 26. The reference to lifting is ambiguous, because it obviously depends on what is being lifted or the frequency of the lifting. Apart from that, and apart from cooking, the other activities which are avoided all seem to me to be more strenuous than anything which is shown in the video.

Under cross-examination in relation to lifting she said she was more cautious about how she carried everything (p. 86) but that lifting depended on what it was that had to be lifted; for example she could walk the distance of the court carrying two books: p. 87. The difficulty with washing the car was that it involved lifting her hand particularly above her head: p. 89. She would not carry a suitcase by herself, but said she could lift and carry a box of folders: p. 90. She was asked about carrying chairs and said that she could carry one across the room (p. 91) or out on to the deck: p. 92. That does not seem to me to be really inconsistent with carrying one out to a truck. She said that she would be able to lift a full garbage bag in one hand: p. 93. It seem to me that there was only one clear point in cross-examination where she contradicted what was shown on the video, at page 95 when she was asked whether she could within a space of about 15 minutes lift and carry three to four boxes containing various articles, and carry a loaded carry bag and a garbage bag in each hand, bend over and arrange boxes and articles in the rear of the vehicle, and bend over and lift and carry a medium size suitcase over a distance of 15-20 metres. There were also two questions at page 94 line 42-55 where her answers seem to be inconsistent with what was seen in the video, although the questions are a little unclear.

It was submitted on behalf of the defendant that what was seen in the video was inconsistent with the first plaintiff's statement that “she could not carry things out in front of her without eliciting pain: T85-LL34-36.” What was said at that transcript reference was in fact “You couldn't carry the things out in front of you without eliciting pain; is that right? -- That's right.” The question came after questioning about carrying CCH books in bags, rather than in boxes. Plainly the plaintiff was not saying that she could not carry any things in front of her without eliciting pain.

Overall in my opinion the appearance of the plaintiff in the video is not really inconsistent with her complaints of symptoms in the course of her evidence. It may be that, like most plaintiffs, the first plaintiff when giving evidence is emphasizing her symptoms and the difficulties that they cause her, so that the picture is presented as fully, and as pessimistically, as possible, but consistent with the description being essentially correct. I think this is something different from deliberate, or even unconscious, exaggeration. I do not think that this is a case where a person who is claiming to have serious disabling symptoms is shown to be really unaffected, or not seriously affected. Bearing in mind that it does not show her during a typical day, I do not think that the appearance of the first plaintiff in the video falsifies a general effect of her evidence, although it does I think provide some justification for its being treated with some caution.

There was also some point made about what was said to be a failure to disclose the incident on 6 May 1992 when the first plaintiff saw Dr Sharwood. Dr Sharwood's report Exhibit 6 does not refer to this incident, but he said that he would not have recorded it if he had been told about it because he would have regarded it as simply an exacerbation of the original injury: p. 157. The first plaintiff in her answer to interrogatory No. 15(a) said that she had not since the date of the motor vehicle accident suffered any further bodily injury: Exhibit 28. She confirmed this answer in supplementary answers to interrogatories dated the 31 October 1996: Exhibit 39. The first plaintiff acknowledged that these answers were not accurate: p. 78, 82. She said however that this occurred unintentionally, that the answers were prepared in the solicitor's office and she may have been misled by the question. It may be that the significance of this incident was overlooked.

The matter was not wholly concealed from the defendant. In a report by Dr Smith dated 14 December 1993 (Exhibit 1) he referred to the first plaintiff's having suffered “exacerbation of symptoms caused by the nature of her work which involves lifting and carrying heavy loads of books.” Exhibit 6 also refers to acute exacerbations of pain, prompted by lifting her arm above her head and lifting heavy objects. Notwithstanding Dr Coroneos' evidence that he was not told of the incident on 6 May 1992 (p. 254), when the plaintiff saw him in June 1992 she evidently told him something which caused him to note in Exhibit 23 that “she indicated aggravation with bending and lifting and reported particular exacerbation with lifting of books during the course of her duties at the publishers.” A report of Dr Pentis dated 8 February 1994 which was attached to the first plaintiff's statement of loss and damage received by the defendant's solicitors on 27 October 1994 (Exhibit 33) refers to the plaintiff's developing “quite severe problems at the ten month stage post-accident” which would correspond with the incident in May 1992. That document was put in only as evidence of what was provided with the statement of loss and damage to the defendant's solicitors, not as to the truth of its contents, but it does indicate that the defendant solicitors were at that stage appraised of the proposition that something had aggravated the condition ten months after the accident. Answers to interrogatories also indicated that the plaintiff was unable to work “due to injuries received as a result of the incident on the 15 July 1991” during the period 7 May 1992 to 5 September 1992: Exhibit 33.

Overall I do not regard this as a significant instance of concealment. The first plaintiff's case after all is that the cause of the continuing problems was the motor vehicle accident, and what happened on 6 May 1992 was simply an aggravation of those symptoms during the course of her work. The material from the plaintiff is essentially consistent with that position. It is no doubt not consistent with the defendant's position, that the first plaintiff suffered a separate injury to her neck on that day, which was the cause of later problems, but the defendant can hardly criticize the first plaintiff for not behaving in a manner consistent with that state of affairs in circumstances where it is itself controversial. Incorrect answers to interrogatories can be very significant, but they are not necessarily so; the matter has to be assessed according to the circumstances of the particular case, and in this case I do not think that these incorrect answers are of great significance. Whoever drafted the answers might have been distinguishing between a new injury and the aggravation of the existing injury.

The first plaintiff also said that the accident had diminished her social life, and she gave as examples that she was unable to attend a friend's birthday party because of an attack of giddiness (p. 22,26) and had reduced her visits to friends at Byron Bay because of the difficulty in travelling by car the distance involved: p. 27. In cross-examination she was asked whether prior to the accident she had experienced any similar condition which caused her to stay away from or be fearful of social events and she answered no. The plaintiff had in 1989 been referred by Dr Smith to Dr Spelman, a psychiatrist, because of complaints of some discomfort in social situations with associated depression which was interfering with her work: p. 109. The plaintiff was criticized in argument for not having disclosed this condition in response to that questioning, but it seems to me that the situation then was somewhat different. The problem in 1989 was a psychiatric condition which led to her avoiding socializing, but the problem since the accident was rather that she was prevented from socializing because of pain and discomfort, particularly if that involved a long journey, or because of dizziness which she attributes to the injury. Apart from the superficial proposition that both involved some interference with socializing, it seems to me that the conditions are really quite different.

A number of other matters are set out in the written submissions on behalf of the defendant dealing with the credibility of the first plaintiff. It is I think unnecessary for me to deal with all of these; they revisit essentially the same issues, and having considered them, I am not persuaded that I should have serious doubts about the reliability of the first plaintiff. I think it appropriate to treat her evidence with some caution, as is frequently the case with plaintiffs, but subject to that qualification I think it is in general reliable.

One difficulty which remains is the conflict between the first plaintiff and Dr Martin as to what occurred during his examination of her in January 1996. The plaintiff made notes after seeing Dr Martin (p. 32) and had those notes available when giving evidence, in order to refresh her memory: p. 35. I suspect that from Dr Martin's point of view she was just one of many people he had examined, and no doubt he was relying heavily on his notes prepared at the time. Dr Martin's report Exhibit 12, refers to palpation of the cervical and upper dorsal musculature, and the shoulder girdle muscles: p. 3. His oral evidence at page 201 line 12, after referring to his notes is to the effect that “I found a tenderness to palpation.” That is an error in the transcript; my note was that Dr Martin said that he found “No tenderness to palpation.” When I asked some questions of Dr Martin (p. 207) it emerged that his notes did not record his having felt other than the neck, although he pointed out that he did report more extensive palpation. The report is dated 5 February 1986, the examination having occurred on 16 January. The absence of any notes to support the more extensive references in the report may not be surprising or unusual, but in circumstances where there is a conflict as to what actually occurred in the examination I think this does tend to detract from rather than support the reliability of Dr Martin's evidence.

On the whole I prefer the evidence of the first plaintiff as to this incident. I do not have any serious doubts as to her reliability on any other basis, and, if she is not telling the truth about this, she must be deliberately lying about it, and decided to do so virtually as soon as the examination was over. On the other hand it may be that Dr Martin was simply mistaken.

The incident of 6 May 1992

With regard to the question of whether the incident of 6 May 1992 was a new intervening cause of the plaintiff's subsequent condition, or whether it was simply an aggravation or exacerbation of the injury suffered in the motor vehicle accident, the defendant relies on the evidence of both Dr Coroneos and Dr Martin. I have already referred to the change in position of Dr Coroneos between his report and his oral evidence. It seemed to me that Dr Coroneos' position in the witness box was essentially that, if he could not identify some objective cause of the plaintiff's condition by the various tests that he carried out, the plaintiff did not have anything wrong with her. That is contrary to his acknowledgment in Exhibit 23 that some patients with soft tissue injuries develop chronic symptoms, contrary to the evidence of Dr Sharwood, and indeed contrary to the fairly common experience in courts of plaintiff's who complain of persisting pain where there is no obvious cause for such a condition detectable by tests of this nature.

There is also the consideration that an aspect of the first plaintiff's problem has been the subject of objective demonstration, in that according to Dr Sharwood (Exhibit 6) a comparison of x-rays taken of her cervical spine in July 1991 with further x-rays taken in August 1996 demonstrate some progressive degenerative changes which by the time of the latter x-rays were more severe than would have been expected in someone of that age, and he thought the rate of progression was probably more than one would expect as well. If the plaintiff had no detectable degeneration up until 1991, and then developed some more than usual degeneration at greater than usual speed, that suggests that there has been some change in the condition of the neck. Dr Sharwood thought that such condition could reasonably be attributable to trauma (p. 164), either causing or accelerating the degeneration (p. 157), and if that is correct this changed appearance in the neck over time is objective evidence that something has affected the first plaintiff's neck. Dr Martin when he saw the first plaintiff earlier in the same year did not arrange for further x-rays, because of the comprehensive tests undertaken in 1992, but they would obviously not detect any degeneration progressing thereafter. Dr Coroneos had not seen the x-rays taken in 1996: p. 268.

On the whole I prefer the evidence of Dr Sharwood. It seems to me that his evidence is more logically consistent, and has the advantage of providing a reasonable explanation for the plaintiff's continuing complaints, accepting that they are essentially genuine. Dr Martin, as appears from his report Exhibit 12, seems to have arrived at the conclusion that the plaintiff's complaints are essentially invented, and Dr Coroneos also did not it seemed to me offer any reasonable explanation for any continuing symptoms. If I accept, as I do, that the plaintiff is generally reliable, her evidence supports Dr Sharwood, who also has the support of Dr Smith who saw her on a number of occasions both before and after these incidents.

Under cross-examination Dr Coroneos conceded that it was possible (but unlikely: p. 292) that the May 1992 incident may have been an exacerbation of the original injury: p. 280. Dr Coroneos' position seemed to be that he could not accept the first plaintiff's complaints of severe symptoms: p. 281. I think that the first plaintiff is not, at least ordinarily, as disabled as the doctor seems to think she is claiming to be. If I accept, as I do, that her complaints are essentially genuine, it means that the evidence of Dr Coroneos, which does not provide a reasonable explanation for such continuing complaints, is unlikely to be helpful. However the doctor thought that these symptoms could have emerged irrespective of the accident in July 1991: p. 292. They were consistent with a degenerative condition emerging after May 1992, which could have emerged simply through ageing.

In relation to the question of whether the first plaintiff's problems after 6 May 1992 were caused by that incident rather than the motor vehicle accident, I prefer the evidence of Dr Sharwood and would regard it as being an exacerbation of the earlier injury. I think that the defendant has not shown that anything which occurred after the motor vehicle broke the chain of causation between that accident and the plaintiff's condition, nor has the defendant discharged the onus of proving that, had the motor vehicle accident not occurred, the plaintiff would or might have been in the same condition in any event as a result of the work that she was doing: Watts v. Rake (1960) 108 CLR 158; Malec v. J.C. Hutton Pty Ltd (1990) 169 CLR 638.

The submissions by counsel for the defendant contain a detailed analysis of authorities dealing with the question of causation, apparently in support of the proposition that there is an absence of causal connection between the incident of July 1991 and the degenerative changes observed by Dr Sharwood in the more recent x-rays or her more recent symptoms. Bearing in mind the caution with which the Court of Appeal approached this topic in Ansett Transport Industries (Operations) Pty Ltd v. Lennard (Appeal 8601/97, 16.6.98) I think it would be wise for me to resist the temptation to address those submissions at the length they deserve. I mean no disrespect for these detailed submissions by saying that it seems to me that they are really directed to a different fact situation from that which applies in the present case. They are concerned with a situation where there is an issue as to whether or not an injury or condition the plaintiff has suffered was caused by some act or omission of the defendant. But in the present case there is ample evidence on which to conclude that the motor vehicle accident in July 1991, admittedly caused by the defendant's negligence, caused the first plaintiff to suffer a whiplash injury to the neck; indeed I did not understand that any of the doctors was doubting that there was some such injury caused by the defendant's negligence, the issue being as to the extent and duration of the consequences of that injury.

As to whether that includes the development or acceleration of degeneration in the cervical spine, that proposition is I think supported by the evidence of Dr Sharwood which I accept. The question of whether the incident in May 1992 breaks the chain of causation depends on whether the state of the plaintiff's neck after that date can be said to have been caused in the legal sense by the injury in July 1991, rather than whether the plaintiff's condition after that second incident would be regarded, in medical or scientific terms, as being essentially caused by the second rather than the first incident. There is a difference between scientific and legal causation, which this case may well illustrate. This is not a case where the plaintiff's neck cleared up completely after a few weeks and then, months later, something else happened which one would expect to injure the neck anyway; this is a case where the plaintiff's neck had improved but was still causing some difficulties, and then got worse as a result of a trivial incident which I would not expect would ordinarily cause an injury to a healthy neck. Exhibit 19 shows that on 30 April 1992 the plaintiff was still attending her general practitioner complaining about problems with the neck as a result of the motor vehicle accident. If the issue is whether the incident in May 1992 would have produced the same condition in the plaintiff's neck anyway, that is an issue on which the onus lies on the defendant and I am not satisfied that that onus has been discharged.

Mason CJ said in March v. E. & M.H Stramare Pty Ltd (1991) 171 CLR 506 at 518:

In the present case the defendant's negligence caused the whiplash injury to the plaintiff's neck, which in my opinion put the neck in such a state that doing such ordinary things as lifting a book out of the boot of a car could cause it to become very painful. Dr Sharwood was of the opinion that that was the sort of thing which was likely to stir up the plaintiff's neck: p. 154. In these circumstances any negligence by the plaintiff or her employer in relation to the incident in May 1992 does not amount to a novus actus interveniens.

Assessment

The first plaintiff was born in December 1957 (p. 30) and was 33 at the date of the accident; she is now 40. She married the second plaintiff on 27 September 1986: p. 31, Exhibit 13. At the time of the trial they had no children. The plaintiff has endured a certain amount of pain and suffering; I have referred to her various symptoms earlier, and the effect on her ordinary life. She has given up vigorous recreational activities, and is restricted in what she can do around the house. I think that ordinarily her symptoms are fairly mild, but she needs to be careful because from time to time something happens which causes a flare up, which is more painful. The first plaintiff thought that if anything the symptoms were worsening (p. 41) but Dr Sharwood thought it was very likely that eventually the plaintiff would not require any physiotherapy (p. 153) and he seemed to think that the symptoms would abate to some extent in the future.

He also thought that some of the plaintiff's symptoms, particularly her dizziness, were attributable to excessive medication being taken for pain control, on which point he was inclined to agree with Dr Martin: p. 167. He thought there was a prospect of improving the symptoms if this aspect were better managed: p. 170. I think I should assume that this is likely to occur in the future. He also thought the condition was aggravated by continuing problems with stress: (p. 169), as did Mr. Driver: p. 321.. That was a pre-existing condition of the first plaintiff, but to the extent that the injury is more severe to her because of it, that is not a matter which goes in diminution of the damages.

Nevertheless, the matter has I think been complicated by the first plaintiff's reaction to her problems. I think there is some significance in the circumstance that she was for the first half of 1997 out of work, and that would have been worrying her, and problems with the neck are likely to take on greater significance under those conditions. I think it is of some significance that she persisted with her job with CCH notwithstanding the difficulties that she said she had with it. I think that shows that she is not ordinarily seriously disabled by the condition, and also that she is someone to whom work is important. If she can get herself settled in other employment which will not require strenuous lifting, a job with which she can cope, she is I think likely to be able to manage her symptoms better, so the continuing problems with the neck will be less significant to her. Overall I think the condition is probably going to improve somewhat in the future, although I should allow for the risk that it may not.

The first plaintiff said that she had been deterred from having children by this condition, because of concern about her ability to lift and carry them: p. 41. That does mean in effect that the additional physical pain and suffering associated with caring for young children has been avoided at the expense of some emotional distress, but I do not think it is appropriate to award damages specifically for this. This is not a case where the injuries to the first plaintiff prevent her from having children, and the choice not to have children will not only result in some mitigation of what would otherwise have been the consequences of lifting and carrying them, but also result in a saving of the expense associated with raising them. I think in any objective assessment these factors must outweigh any reasonable compensation for the emotional distress associated with the choice not to have children: c.f. Faehse v. Sawford [1937] SASR 424.

In all the circumstances I assess damages for pain and suffering and loss of amenities in the sum of $20,000, of which I attribute $8,000 to past loss. In making this assessment I have had particular regard to the decisions of Ruff v. Milton (CA 101/95, 8.9.95); Disteldorf v. Davies (Nase DCJ, Mackay Plaint 10/95, 31.5.96); Johnstone v. McDonald (Forde DCJ, Bundaberg Plaint 40/95, 29.11.95) Hulstaert v. Nola (Brabazon DCJ, Plaint 1805/95, 9.8.96) together with my decision in Brown v. Queensland Railways (Plaint 45/95, 24.2.97). I will allow interest on past loss at 2% for 7 years.

The first plaintiff was off work for four days immediately after the accident, and for a much longer period after the incident in May 1992; for both of these periods the plaintiff received workers' compensation. It appears from the copies of the plaintiff's income tax returns that her gross earnings during the 1990/91 tax year were $53,130, from which she had almost $3,000 in deductions. From a taxable income of $50,000 tax and Medicare levy came to $16,437, leaving a nett income per week of about $645. During the 1991/92 tax year the plaintiff had about 9 weeks on workers' compensation, so her earnings for employment of $46,761 gross were achieved over 43 weeks. It is difficult to know whether the deductions should be averaged over the whole year or over 43 weeks, but assuming that they should be averaged over 43 weeks (and they are somewhat lower than in the previous year) that produced a taxable income from employment of $44,229. This is the equivalent of a taxable income $53,486 over a 52 week period, for which the tax and the Medicare levy payable would be $17,621, an average of about $690 nett per week. I think overall the appropriate course is to allow the 4 days loss of earnings in July 1991 at the former rate, which is $516, and the 17 weeks loss of earnings in 1992 at the latter rate, which is $11,730. This means that past economic loss is assessed at $12,246, and interest at 10% per annum should be allowed on the difference between that amount and the workers' compensation payments totalling $4714 (Exhibit 17, 18) for six years.

The first plaintiff's loss of her employment in late 1996 was not attributable to the accident and its consequences, and she said that she did not disclose these consequences to prospective employers when she was seeking employment, although there was some limitation on the sort of work she considered doing; I do not think that this was a substantial limitation. Rather than make some separate small allowance for the possibility that the plaintiff might have obtained replacement employment sooner had it not been for this condition, I think it is better to treat this aspect as part of a global award for future economic loss to accommodate the possibility that the first plaintiff's earnings in the future may be less than they otherwise would have been. The difficulty with that award is that it is impossible to know what the plaintiff's earnings will be now, or what they would have been but for this accident. The plaintiff had just before the trial obtained employment where part of her remuneration depended upon commission on sales, and of course there was no opportunity for her to establish any sort of pattern. In the nature of things it is likely that a person with some intermittent neck problems, and some restriction on the sort of lifting and carrying that can be undertaken, will be to some extent at risk in the labour market. If and when the plaintiff needs to obtain employment, the sort of work she would consider will be reduced to some extent, and the plaintiff may find herself in a particular position which proves to be more than she can cope with, so that she would be forced on to the labour market as a result of the injury. The impossibility of making any sort of calculation, or even informed estimate, of the sort of loss that is involved does not relieve me of the burden of making some allowance for these factors, but I think it will have to be a moderate one, and I will assess a global sum of $20,000.

With regard to gratuitous care, the second plaintiff said that since the accident he did almost all the cooking, general house cleaning, vacuuming, washing floors, cleaning bathrooms and toilets, washing and vacuuming cars and mowing the lawns: p. 236. He gave an estimate of a minimum of 8 hours per week for the time spent doing things previously done by the first plaintiff: p. 238. As I said earlier, I accept the first plaintiff's evidence generally as to her complaints and the difficulty she has, but with some caution and I think that there are probably some of the lighter duties, that on the evidence the second plaintiff has taken over, which the first plaintiff could do if she had to without causing undue distress, that is matters where the first plaintiff has not demonstrated the need for assistance. I think for example that the first plaintiff could probably do at least some of the cooking, and some of the lighter cleaning, and would be able to put through a load of washing, although she might have difficulty in pegging out clothes on a clothes line. It would not be appropriate to allow for washing and vacuuming both cars.

The time estimate was I think qualified somewhat during cross-examination (p. 246) but I think it still involves some over-estimation of the measure of the first plaintiff's need in terms of preparing food, and still seems to incorporate washing both cars. I think in the circumstances it is reasonable on the evidence to allow an average of 5 hours per week for the period since the accident; no doubt there were times when the first plaintiff's condition was particularly bad, when additional care would have been necessary, and other times when the plaintiff was coping rather better, when I suspect there would have been less need for assistance.

A witness from Domicare gave evidence of the commercial cost of domestic assistance in the period from July 1991 to the date of the accident; apparently the appropriate figure to allow is the amount paid to the carer excluding the amount retained by the agency by way of administration costs, when assessing the commercial rate for the purposes of services in fact provided gratuitously: Buckland v. Biggenden Shire Council (Appeal 11/93, CA 4.5.93, unreported). During the period from July 1991 to February 1992, 32 weeks, the cost of 5 hours was on this basis $45; from March 1992 until May 1994 it was $47.50; June 1994 until October 1995 it was $55 per week, and from November 1995 until the date to trial it was $58.50 per week. This comes with a little rounding off to $19,000, and I will allow that sum for past gratuitous care. Interest should be awarded on this at 2% per annum for 7 years: Brown v. Hale [1996] 1 QdR 234.

With regard to future gratuitous care, it is difficult to know how long the plaintiff will continue to have these problems, but the general effect of Dr Sharwood's evidence is that it is likely that they will slowly settle. It may be that, if the condition does not ultimately settle, it will reach a point where the degeneration in the spine is no different from what it would have been anyway because of her age. I took it from Dr Sharwood's evidence that her spine was not greatly worse than he would have expected for someone of the first plaintiff's age, and in these circumstances some allowance should be made for the chance that but for this incident the plaintiff would have developed neck problems anyway as she got older. That is by no means a certainty, but it is something that should be borne in mind. At the current rates the commercial cost of replacement care is running at $58.50 a week. The present value of that amount over 10 years discounted at 5% (see Supreme Court Act 1995 s. 16) is $24,160, which provide some indication but it is necessary to bear in mind that the number of hours required per week is likely to taper off slowly in the future. There is no particular reason to think that any need for gratuitous care will necessarily stop in 10 years time; it may have stopped before then, or it may go beyond then. It is possible that the plaintiff's condition may in time be submerged in the ordinary effects of degeneration. In the circumstances I think the best course is to make a global award of $15,000 for future gratuitous care.

With regard to special damages, the first plaintiff gave evidence that as a result of the injury she had since the accident been purchasing Codis, typically at a cost of $7.95 per month, Stemetils at a rate of $5.50 per month and Mersyndol at a rate of $4 per month: pp. 17-19. This is a total cost of $17.50 per month which for the period up to judgment would be about $1,450. The difficulty with this is that Dr Sharwood thought that part of the plaintiff's problem was that she was taking too much medication: p. 167. It was not clear however that this had been properly explored with the plaintiff by treating medical practitioners prior to the trial, and there is no plea of failure to mitigate, so I think that I should approach this on the basis that these expenses have in fact been incurred as a result of the accident up to the date of trial, but when making allowance of future medication costs I should assume that the plaintiff will be better advised in the future and that these costs will come down significantly. For future medication therefore I will allow $750.

Other special damages include amounts to be paid by the Workers' Compensation Board, $1,833.21: Exhibit 17, 18. There was also a claim for physiotherapy attendances on Mr Driver, a total of $630 excluding visits paid for by the Board. There was some argument about this as well, but I think on the whole that these visits have probably been beneficial, although I was not very impressed by Mr Driver as a witness. The total of special damages therefore is $3,913 and I will allow interest on the out of pocket amounts, $2,080, at 5% per annum for 7 years.

There was a claim for future medical expenses, in the form of future physiotherapy. No doubt there will be some need for this, and some need for future visits to doctors, but it is very difficult to know what this is likely to be. The plaintiff's condition is not one where it is possible to predict in any sort of precise way what the future medical needs are likely to be. It is probable that she will from time to time require further physiotherapy, although the need for it will probably taper off over the years, and I suspect that much the same applies to visits to doctors. In all the circumstances I think the appropriate course is to allow a lump sum of $500 to cover these amounts.

A further matter which is associated with special damages is the amount of tax paid on the Workers' Compensation Board payments, a total of $2,484.30: Exhibit 17, 18. This should also be allowed.

Summary of damages: First plaintiff

In summary the first plaintiff's assessment of damages is as follows:

Because this action is not brought against the first plaintiff's employer it is not appropriate to deduct from the assessment the amount of any workers' compensation payments; they are repaid by the first plaintiff out of the proceeds of the action.

The defendant submitted that the action had taken an unreasonably long time to get to trial, and that the interest payable to the plaintiff should therefore be limited. The written submissions of counsel for the plaintiffs set out the history of the matter and suggest that the only relevant delay on the part of the plaintiffs was for a period of perhaps a little over a year between the completion of interlocutory steps and tendering the certificate of readiness, which the defendant solicitors did not sign and return for about 6 months. The written submissions in reply from the defendant do not complain about delay on the part of the plaintiff prior to February 1996, although there is then said to be some 3 months loss in the first half of 1996. There is some explanation given for the delay in signing and returning the certificate of readiness, and for present purposes it is sufficient to say that this indicates that it was not a situation where the plaintiff was simply allowing the action to drag. The only other period identified as a failure on behalf of the plaintiffs to carry the matter forward was some delay between filing the certificate of readiness on 28 November 1996 and filing entry for trial on 8 January 1997. That is not much of a delay.

Overall it is clear that this action has taken a long time to come to trial, but I do not think that the chronology discloses such a course of delay as justifies judicial reproof in the form of deprivation of an award of interest which is ordinarily made. Interest of this nature is discretionary, but the ordinary practice is to award it unless there is some good reason shown to the contrary. One basis on which it can be refused is if there is unreasonable delay on the part of the plaintiff in pursuing the action, but I do not think that this is a case where it is appropriate on that basis to limit the period in respect of which interest is payable.

Second plaintiff's claim

The second plaintiff was and remains the husband of the first plaintiff, and claims damages for loss of consortium, a claim which is taken to include loss of servitium, which refers to the rendering of assistance in the home for their mutual or his exclusive benefit, consortium referring strictly speaking to loss of company, companionship and sexual relations. See generally Johnson v. Nationwide Field Catering Pty Ltd [1992] 2 Qd R 494 where there is a discussion of a number of authorities, and where the bulk of the award related to loss of services in the form of provision of housekeeping.

When as a result of an accident a wife is injured such that she can no longer do various things she used to do within the home for the mutual benefit of herself and her husband, with the result that he (or someone) takes over the provision of those services, there is the prospect of some overlap between the matters covered in an award to the wife for care, whether gratuitous or otherwise, and an award to the husband for damages for loss of servitium: Thorne v. Strohfeld [1997] 1 QdR 540. As indicated in that case the appropriate course is to assess damages in respect of one plaintiff without regard to the other, and reduce the second to the extent necessary to avoid double recovery: p. 543.

I have therefore assessed the first plaintiff's claim without regard to the second plaintiff's claim. The consequence is that, to the extent that an award would otherwise be appropriate for loss of servitium, it should be disregarded if it falls within the first plaintiff's claim.

The second plaintiff verified an answer to interrogatory which became Exhibit 43, where he said that he had not lost any consortium other than the performance of domestic duties and services. He did however in his evidence in chief claim that the change in the plaintiff's behaviour after the accident had restricted their social life: p. 238. He also said the first plaintiff became depressed at times, and they were unable to enjoy tennis and sail boarding together: p. 236.

I have not identified any particular matter in the evidence where it is said the plaintiff has lost the benefit of services performed by his wife which was not taken into account in assessing the first plaintiff's claim for gratuitous care, but in principle it is likely that there is some amount for which a small allowance should be made. There was also some evidence about loss of consortium directed to interference with social and recreational activities. Some allowance should be made for this, but it should be a modest amount. There is no evidence of interference with sexual relations.

In the present case there was some loss of companionship in more vigorous recreational activities, and some loss of social companionship, and there probably were things that she otherwise did for him (apart from things of mutual benefit covered by the gratuitous care assessment in her case), but overall it seems to me that a very modest award is appropriate and I assess the second plaintiff's damages at $2,500. I will allow $200 by way of interest.

There will therefore be judgment for the first plaintiff against the defendant in the sum of $93,893 together with interest of $9,027, and judgment for the second plaintiff against the defendant in the sum of $2,500 together with interest of $200.