DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an action for damages for personal injuries arising out of a motor vehicle accident on 31 March 1997, when the plaintiff was injured. Liability is not in issue, but there was a substantial dispute on quantum, particularly in relation to the effect of the plaintiff’s injuries on her ability to earn income.

2. [2]
   The plaintiff was born on 29 July 1968 (Exhibit 22). She was therefore 28 years of age at the date of the accident. She was driving her vehicle south along the Bruce Highway a little to the south of the junction of the highway with the Landsborough-Caloundra Highway, in heavy traffic: p.11. The traffic came to a halt fairly abruptly, and the plaintiff was able to stop before striking the car in front, but was then struck by the first defendant’s vehicle from behind, with considerable force. The plaintiff’s vehicle was knocked forward on to the median strip and was unable to be driven away: p.12.

3. [3]
   The plaintiff was able to get out after the accident and stand up, but she felt odd feelings in the spine and in her head, and some pain: p.38. She was driven by friends back to Brisbane. The following day she had pain and saw a general practitioner, and by the day after she had severe pain in the neck. She spent most of the next few days lying down. The pain was at the base of her skull and neck area, although after a few days it progressed to the top part of her back. The plaintiff was initially treated with anti-inflammatory gel, and ice: Exhibit 22. An x-ray of her spine revealed no abnormality: Exhibit 1. On 4 April 1997 a CT brain scan revealed no significant abnormality: Exhibit 2. About one week after the accident the plaintiff was referred by her general practitioner for physiotherapy. On 27 November 1999, the plaintiff underwent an MRI examination of the cervical spine, which was considered normal: Exhibit 11.

Medical Evidence

4. [4]
   The plaintiff has seen a number of specialists who provided reports. The first seen was Dr. Pentis, orthopaedic surgeon, who first examined her on 11 August 1997, about four and a half months after the accident, for the purposes of a report: Exhibit 3. At that time the plaintiff was taking Brufen for pain relief when needed, and physiotherapy was continuing. There was a tenderness in the muscle of the spine, and Dr. Pentis was of the opinion that the plaintiff had suffered soft tissue injury of the spine which was still in the acute stage, although she was improving and was expected to improve slowly over a period of some months. For the time being she should minimise any activity which would strain the area, and change her position at frequent intervals when driving or working.

5. [5]
   Dr. Pentis saw the plaintiff again on 16 March 1998, almost one year after the accident. There were still some difficulties from time to time when the plaintiff had had flare-ups, with difficulty driving and sleeping, lifting and stretching, bending and twisting. She was still working, but doing little about the house and had given up various recreations. She was taking anti-inflammatories when necessary. On examination there was some loss of movement to the neck, but good range of movements elsewhere in the spine, and Dr. Pentis thought she would eventually recover, with some continuing weakness in the neck which would cause problems from time to time and required her to limit strenuous activity and to change her position at frequent intervals. At that stage he assessed her residual incapacity as a 7.5% loss of effective function of the spine as a whole. In cross-examination Dr. Pentis said that there could be a soft tissue injury notwithstanding that nothing showed up on an MRI scan: p.106. Dr. Pentis thought that there might well be an improvement over a period of about 5 years, although it was a matter of the body adjusting to the disability and working around it rather than a real physical improvement: p.108. He made it clear however that there would be a long term problem which would need care and careful management: p.109.

6. [6]
   The plaintiff was seen by Dr. Weidmann, a neurosurgeon, on 17 August 1998 for the purposes of a report: Exhibit 8. At that stage the plaintiff was complaining of continuing neck stiffness, aggravated by working at her desk, stress and physical activity. There was a mild headache present most of the time but on occasions it became severe. There was also some lower back pain, some tenderness of the cervical spine and some restriction in neck movement, otherwise the examination was essentially normal. The examination was consistent with a soft tissue injury, as was the failure to detect any abnormality in an MRI: p.155. Dr. Weidmann had thought there had been a whiplash injury to the neck. He thought that the condition was stable, and the plaintiff had suffered a 7% partial permanent impairment of the whole person. This assessment was not in accordance with the fourth edition of the American AMA guidelines: p.157. She needed some continuing medical care and periodic physiotherapy, but did not require assistance with her day to day activities or around the home. Dr. Weidmann thought that by 18 months after the accident most patients’ condition would be essentially stable, although a few might improve slowly over a period of years: p.158. Most patients who make a good long term recovery do so within 12 months: p.159.

7. [7]
   The plaintiff saw Dr. Campbell, a neurosurgeon, on 6 November 1999 for the purposes of a report: Exhibit 9. At that stage the plaintiff was complaining of neck pain, headaches and lower back pain, visual disturbances, earache, intermittent problems with the right jaw locking, and depression. She was taking Voltaren regularly.  The pain interfered with heavier housework and recreational activities, and there were problems with sleep disturbance.  On examination there was some reduction in movement of the neck, although otherwise the examination was normal.  The reference on p.4 of Exhibit 9 to a decrease by 50 degrees should be to a decrease by 50%: p.137. Dr. Campbell thought the plaintiff had suffered whiplash injury to the neck which had left long term disability, producing in her case a 5% impairment of the whole body. There was also a soft tissue injury to the lower spine producing a 2% impairment.  He also thought the plaintiff was suffering a mild post concussional disorder, to which he attributed the various other symptoms, and assessed 4% whole person impairment.  He thought all of these were likely to be permanent. 

8. [8]
   Dr. Campbell saw the plaintiff again on 22 May 2001 and provided an updated report: Exhibit 10. The symptoms were similar to her complaints on the previous occasion, as was the result of the examination. Dr. Campbell thought there was chronic soft tissue injury to the cervical and lumbar spine; the other symptoms were non-specific but were apparently attributable to the accident. Although most patients with soft tissue injuries do recover, about one quarter have persisting symptoms in 6 months and many of these become chronic in the long term. That was the situation with this plaintiff. He then assessed whole person impairment of 5% which was likely to be permanent. The plaintiff remained at risk of secondary problems; there was no treatment which was likely to be of substantial benefit.

9. [9]
   Dr. Campbell said the existence of a post-concussional disorder depended on the plaintiff having suffered concussion, so that if that did not happen she was not suffering from that disorder: p.129. The non-specific symptoms were not symptoms usually seen with whiplash patients, but a wide range of symptoms could be seen in such patients: p.130. On the balance of probabilities, he thought they were associated with the accident. Dr. Campbell would not expect to see any indication on an MRI of a condition of this nature: p.141. Dr. Campbell thought the plaintiff’s lifestyle was significantly impaired by the accident: p.142.

10. [10]
    The plaintiff was seen on 30 September 1999 by Dr. Dickinson, an orthopaedic surgeon, for the purposes of a report for the solicitors for the defendant: Exhibit 20. The plaintiff was complaining of continuing problems with her neck, particularly on the right hand side, but to some extent running down the right side of the body. There was also some lower back pain, and various other pains from time to time. At that stage her impression was that her symptoms were getting better and she had reduced the physiotherapy she was receiving. On examination, the plaintiff was essentially normal, although there was a little tenderness of the cervical spine, and a little discomfort at full extension. He thought the plaintiff would continue to improve, and that she had not suffered any significant structural damage to the spine, and would not be left with any residual problems which would require medical or surgical intervention. He did not think she would be left with any permanent impairment of the spine, although the symptoms were likely to continue for about another year before they became trivial. However, under cross-examination, Dr. Dickinson conceded that sometimes a whiplash would produce a soft tissue injury which would just not go away: p.165. Some people did continue to complain of pain, even though there was no obvious indication of structural damage, and there might be all sorts of reasons why pain might persist in such circumstances: p.166.

11. [11]
    The plaintiff was seen by Dr. Reid, a neurologist, on 22 January 2001 for the purposes of a report to the defendant’s solicitors: p.21. The plaintiff complained particularly of pain in the neck and headaches, the latter being triggered by various and fairly ordinary activities. On examination no abnormality was detected. Dr. Reid accepted that the plaintiff presumably suffered a soft tissue injury to the neck, but in her opinion the continuing symptoms were attributable to lifestyle pressures and stresses rather than a consequence of the accident. Dr. Reid did not accept that a significant proportion of whiplash sufferers went on to develop chronic symptoms, that not being consistent with her clinical experience apart from people involved in litigation: p.149. She expressed the view that it was not appropriate to focus on what she described as one trivial event or injury and not to focus on everything else that has happened in subsequent years: p.150. There was an apparent temporal relationship with the accident, but there was no objective evidence of a causal relationship: p.151.

12. [12]
    The plaintiff saw Dr. Wiltshire, a psychologist, on 21 April 1998 for the purposes of a report to solicitors: Exhibit 7. She told of physical symptoms in similar terms to her accounts to the other doctors, but also complained of difficulties in coping with traffic, feeling of being depressed a couple of times a week, and some frustration and irritability because her boyfriend, who had also been in the car, was also injured in the accident, but had recovered more quickly than she had. She was subjected to a range of psychological testing, which revealed an unusual degree of concern about physical functioning and health matters and probable impairment arising from somatic symptoms. Dr. Wiltshire expressed the opinion that there was a mild to increasing post-concussional disorder, and considerable somatization of anxiety which is tending to prolong the experience of physical symptoms. He thought resolution of the legal proceedings would be likely to aid recovery. He assessed her intelligence as above average, her memory function was well above average: p.95. Dr. Wiltshire expected the plaintiff would make a good recovery from her psychological problems: p.99. That could reduce the somatization, and hence the subjective bodily symptoms. The situation could be worse however if she was in a more stressful occupation that could provoke greater anxiety.

Treatment

13. [13]
    The plaintiff was referred for physiotherapy on 7 April 1997 by her general practitioner following complaints of pain and headaches, more particularly at the end of the day, and sufficient to wake her at night: Exhibit 5. In February 1998 there were still intermittent headaches, painful and stiff thoracic spine at times, some lower back ache, but overall a slow improvement and slowly increased endurance with exercise. The physiotherapist described her progress as slow, the healing being delayed by her stressful and busy work and part time study. By early 2000 there were similar complaints, although there were said to be still gradual improvement occurring. She was coping with work and her daily routine (with assistance with heavier housework), but sport was very limited. There had been a series of treatments for acute exacerbation, and apart from this, maintenance treatment was being provided from time to time.

14. [14]
    From December 1997 to March 1998 the plaintiff attended a different physiotherapist, with similar complaints, and on examination fairly extensive tenderness or stiffness: Exhibit 6. The physiotherapist thought that the treatment provided was moderately successful, improving the plaintiff to a full range of movement and able to cope with greater loads of the joints, and improved endurance. She thought that there would be likely to be some continuing improvement but flare-ups from time to time. As at May 2000, the plaintiff was receiving 30 sessions of physiotherapy a year, with the prospect of reducing this to 20, based on 12 maintenance sessions and 6 sessions to deal with the exacerbations: Exhibit 13. The plaintiff finds this sort of physiotherapy treatment helpful (p.13) and feels that she needs it, although she was vague about just how much she was currently receiving: p.29. However the medical evidence does not support a need for continuing “maintenance” treatments as being reasonable.

15. [15]
    The plaintiff said that the pain and particularly headaches were very severe during the first two years, although there was some improvement during this period, and to some extent the pattern of symptoms changed during this period: p.31,33. There has been some improvement since then (p.32) particularly associated with the change in her medication in early 2000 which produced significant lifting of the headaches: p.30. This had reduced the pain associated with them, and also reduced the extent to which they interfere with her ability to concentrate at work: p.19. This was also reflected in an improvement in the performance of her work perceived by her supervisor: Exhibit 31, p.90.

16. [16]
    The medication provided is commonly used for treatment of migraine (p.144), and the plaintiff has at times described her headaches as being migraine headaches, but the specialists said that what she described were not migraine headaches, Dr. Weidmann thought the headaches were more associated with neck problems and stress than migraine type headaches: p.161. Dr. Dickinson did not think the headaches were migraine, but he thought they might be related to tension. Dr. Reid was also of the opinion that the headaches described by the plaintiff were not migraine headaches: p.146. Her impression was that they were muscle contraction headaches, which could also be eased by that medication. The fact that there has been some success in treating the headaches with this medication suggests there is a significant muscle contraction component in the headaches, which would be consistent with the evidence of Dr. Wiltshire that the plaintiff is affected by stress and anxiety. However, the medication did not remove the headaches completely; the plaintiff still has some headache and neck pain all the time (p.13) and she still gets a bad headache about once every two weeks: p.55. I accept the plaintiff had no problems with her health of this nature prior to the accident: p.16.

Analysis

17. [17]
    Apart from the headaches and the stiffness associated with the spine, the plaintiff also complains of earache, locking of the jaw, some interference with vision and interference with balance: p.35, 38. The plaintiff had complained to Dr. Weidmann of having fallen on a couple of occasions, because of the imbalance: p.161. Some of these problems are not easy to relate to the accident: for example, the plaintiff was diagnosed as suffering from a left lazy eye, and now wears spectacles. Dr. Weidmann did not think that the problem the plaintiff had developed, a lazy eye, was related to the accident (p.153) and had some difficulty relating to the accident complaints of some problems with the ears. He also thought it was unlikely that any problem of imbalance was related to the injury: p.154. She did not develop the lazy eye condition because of the accident, but probably became more aware of it as a result of the accident and a resultant tendency to focus on her physical well-being, and because of her somatization and anxiety. The practical effect is that the accident and the symptoms associated with it made it more difficult to cope with this pre-existing problem. The same may be true of some of the other problems, or they may involve somatization. I am not persuaded that the plaintiff had concussion, as a result of this accident.

18. [18]
    I do not think the plaintiff is someone who is inventing or exaggerating symptoms. There was some attack on her credibility, based on her having described some university studies commenced in July 1997 as a Master of Business Administration course (p.13) when in fact she was studying for a Graduate Certificate of Management, a course which might eventually have led on to an MBA: p.60. She withdrew from this course in early 1999 because she felt she was unable to keep up her studies as a result of her symptoms and the pressure of work (p.17), and was subsequently excluded from it. She said that she had passed all of her subjects when in fact one of them she had not passed (because, she said, she had withdrawn from the subject). Subsequently when completing a CV, she indicated that she was currently engaging in studies towards an MBA, which is not the case: p.63. These do not cause me to have any significant doubts as to the reliability of the plaintiff’s evidence. She was quite articulate and voluble about her complaints and problems, and she was certainly not trying to minimise the extent of the pain or her incapacity.

19. [19]
    She may have been particularly conscious about the consequences of the injury because she had been quite active physically prior to the accident: p.123. She enjoyed a range of physical activities, including aerobics, running, bike riding and swimming, and at the time she was in training for a triathlon: p.11. She also led an active social life. This has been largely abandoned. By 1998 she was doing some walking and some swimming, or exercises in a swimming pool (p.33) and a bit more in 1999. Eventually she worked up to some light jogging but this aggravated her pain and she had to cut it out: p.34. As someone who was previously physically quite active, she is probably more conscious of such difficulties that she now has, and is more frustrated and upset by them. She may also be frustrated because her husband, whom she married on 11 November 2000 (p.11), was also travelling in the car at the time of the accident, and was also injured, but has made a better recovery. There is also the consideration that she has persevered with her work as much as possible notwithstanding the various symptoms that she has had, and that has probably aggravated the symptoms and also made it more difficult for her to cope with other things, and produced more stress and anxiety which had led to more somatization.

20. [20]
    Nevertheless, I do not accept Dr. Reid’s assessment that the plaintiff’s current symptoms are really the product of the difficulty she has in coping with the pressure of her work. The plaintiff undoubtedly suffered severe whiplash in the accident, not a trivial event but a forceful collision from behind, and she has suffered a range of symptoms which are commonly experienced in such circumstances. I accept the evidence of the other doctors that it is not uncommon for some patients so affected to have chronic symptoms, and that the plaintiff falls into this category, although I accept that her symptoms are made worse by stress and anxiety, both by their contribution to tension headaches, and by somatization. This essentially is a product of her personality, and is compensable in the same way as symptoms which are caused directly by a physical injury. Dr. Weidmann agreed that personality could effect the subjective response to a soft tissue injury of the neck: p.159.

21. [21]
    The significance of this however is that, to the extent that there is a psychological component in the plaintiff’s problem, Dr. Wiltshire holds out more hope for improvement than the other specialists hold out in relation to her physical injuries. I do not think that her problems are all psychological, but I think there is a psychological component, and because of this there is likely to be some improvement in the future. I also accept Dr. Pentis’ assessment that it is likely that as time passes the plaintiff will learn to live with the continuing physical disabilities, and adapt her life to them, they will be less subjectively intrusive, and she will be better able to avoid triggering flare-ups. Nevertheless, it is likely that these will continue from time to time. For example, the plaintiff may well want to have a family at some point (p.75-7, p.124) and that could well stir up her neck. I suspect that a good deal with also depend on the plaintiff’s future employment: if she is engaged in a stressful and demanding full time job she will have more pain and suffering than if she is, for example, working part time from home, although there will be corresponding differences in the extent of economic loss. My assessment assumes that in general in the future the plaintiff will continue to make the effort to stay in work.

22. [22]
    Overall, the plaintiff is relatively young and has suffered a significant whiplash injury which has produced chronic symptoms, which are worse for her than is commonly the case in such a situation, because of her history prior to the accident of physical activity, her personality and her employment pattern in a relatively stressful work environment. I am wary about percentages when talking about a disability of this nature, but accept the assessment of 5% whole body overall for the physical injuries, taking into account pain^[1].  There is a prospect of some improvement, but the plaintiff will have significant problems, and occasionally severe flare-ups, indefinitely.  In all the circumstances I assess damages for pain and suffering and loss of amenities in the sum of $30,000, of which I attribute $12,000 to past loss.  The award for past loss will carry interest at 2% per annum for 4.67 years, $1,120.00.

Economic Loss

23. [23]
    At the time of the accident the plaintiff was working in the marketing department of a large firm of solicitors. She had commenced employment with that firm in May 1995 (Exhibit 22) although she worked initially as a legal secretary and then as a personal assistant before the opportunity to join the marketing branch came up: p.10. Over the years, her salary and her responsibility improved (Exhibit 27, p.48) and she received favourable employment assessments, including after the accident: Exhibit 28, 29. She had two weeks off work with sick leave following the accident (p.40), and some other time on sick leave, and ultimately lost about three days holidays because of time off sick: p.26. She was able to manage the work, although on occasions she had to lie down in the sick room for a while to let her back or neck recover: p.14. This was particularly the case if the neck flared up. She needed the rest breaks at least weekly, although frequency varied a good deal: p.171.

24. [24]
    In October 1997 she hit her head on a concrete beam in the car park which aggravated her neck (p.12) for the next few days. She made greater use of the sick room, but otherwise persevered with work: p.13. In addition, the employer provided some assistance in making ergonomic improvements to her workplace so as to make it easier for her to cope: p.167. The employer was aware of her problems following the motor vehicle accident, and her complaints of headaches: p.167, 169.

25. [25]
    There was some conflict between the plaintiff and another employee at the firm of solicitors, Ms. Butler, as to whether the plaintiff reported “brain swelling” as one of the consequences of the blow to the head in October 1997. That is a term used by Ms. Butler when reporting to a superior about the need for a workstation change for the plaintiff (Exhibit 34), and she said that that reflected the plaintiff’s words: p.170. The plaintiff on the other hand denied complaining in these terms: p.44. Exhibit 34 is not a contemporaneous note of the plaintiff’s complaint to Ms. Butler, and it is likely that it reflects some interpretation on her part of what the plaintiff actually said. Apart from everything else, on the basis of my assessment of the plaintiff in the witness box, it is likely that the plaintiff’s complaints were a good deal fuller. I was impressed by the plaintiff’s denial of having used this term, and on the balance of probabilities prefer her evidence on this point, although it seems to me frankly that it is of no real significance.

26. [26]
    In September 1998, the plaintiff was offered a position with a different firm of solicitors as a marketing co-ordinator, and accepted it: Exhibit 22, p.18. Initially this involved some reduction in income, but the plaintiff was subsequently promoted to positions with higher income levels than at the other firm: Exhibit 27. This work may have been more demanding; it was after this change that the plaintiff gave up the university studies. The marketing section in that firm was smaller than at the other firm, and consisted of two positions of which the plaintiff filled the more junior: Exhibit 15. The plaintiff’s superior at that firm was particularly impressed with the plaintiff’s work, and thought she had the potential to progress to a management level position: Exhibit 16. In June 1999 she received a favourable performance appraisal: Exhibit 30. This occurred although the firm was aware of her difficulties with her health, and she was provided with a specially designed chair and some time off work to attend rehabilitation sessions: Exhibit 15, Exhibit 16. There were periods where her episodes of neck pain and headaches did interfere with her efficiency at work: Exhibit 16. Her superior thought that her health problems were preventing her from fully demonstrating her abilities: Exhibit 16.

27. [27]
    In October 2000 there was a restructuring of the marketing section, and the position she had held became redundant as from 1 January 2001: Exhibit 33. There were three new positions, one which had a national and strategic role which was ultimately filled by the person who had been the plaintiff’s superior, a local position of marketing manager (a salaried position), and a third position which was essentially a secretarial role: Exhibit 15. The plaintiff was invited to apply for the position of marketing manager: Exhibit 33. Ultimately she decided not to do so: p.23^[2].  In 2001 she looked for other positions, and found one with another firm (p.25) at a salary comparable to that of her former position: Exhibit 27.  Her case was that but for her continuing symptoms as a result of the accident she would have applied (p.24) and if she had applied she would have received the position. It carried a salary of $60,000 including superannuation (p.26), a figure recently increased to $65,000: Exhibit 16.  

28. [28]
    The staff partner of the firm gave evidence. In his evidence in chief, Exhibit 15, he said that the plaintiff’s track record, her intellectual capacity and her commitment would have stood her in good stead in the candidate selection process, although he was concerned about her capacity to meet the demands of the position in terms of the time and effort because of her health issues. He also advised her to complete her Masters of Business Administration as soon as possible. The position description of the position in question listed as qualifications “Tertiary qualifications in marketing, business or a commercial degree and minimum 7 years marketing experience”: Exhibit 17. However, he said this would not necessarily have been a bar to her employment in that position: p.83.

29. [29]
    Under cross-examination he said that the firm would have seriously considered her for the position had she applied (p.83) and he referred to particular advantages she would have had: her proven experience in successfully managing an important tender (p.85), and her advantage of incumbency, in that she was used to the partners and good at obtaining co-operation from them, and they knew that: p.86. Nevertheless, his evidence did not go so far as to say that, had the plaintiff not been hampered by health considerations (that is, the consequences of her injuries) and had she applied for the position she would definitely have obtained it. The person who obtained the position had a similar amount of experience, and a tertiary degree in law: Exhibit 16, p.92.

30. [30]
    Her former superior at that firm was also called, and expressed the opinion that it was reasonable to expect but for the accident limitations the plaintiff could have suitably filled the position of Brisbane marketing manager: Exhibit 16. She did not think that the difference in tertiary qualification would have made a difference in selection: p.92. Again however she did not say that if it had not been for the plaintiff’s health problems, if she had applied she would definitely have obtained the position.

31. [31]
    The plaintiff was assessed by Mr. Siebel, an occupational therapist in April 2000 for the purposes of a report on her functional capacity and the effect of her injuries on her day to day living: Exhibit 14. His assessment was that the prospects of the future were at best an ability to continue with full time work made possible by regular postural breaks and ergonomically suitable work environment, with the slow completion of post graduate studies; at worst she would suffer decreased functional capacities and impaired concentration which would prevent her from resuming studies and force her to reduce her work hours to part time. He was of the opinion that the plaintiff needed further physiotherapy treatment aimed at increasing core stability and a self managed program of exercise to be performed at home, otherwise she would require treatment from a physiotherapist on occasions when there was a particular need. He gave figures for the cost of a suitable chair, adjustable height desk and a device to hold things being read.

32. [32]
    He identified a number of day to day tasks which the plaintiff was unable to perform on her own, most of which are irrelevant to the present time because she is living in a home unit. However, if some time in the future she moved to a house with a yard (particularly with a pool) there would be certainly some heavier work, particularly external work, where her ability to do such work would be impaired as a result of the injury. He was of the opinion the plaintiff was suited only to sedentary work, although that would be consistent with her experience and area of interest. The significance of this is that it may reduce the plaintiff’s capacity to go into alternative fields of employment, although I think it very likely that any such alternative field would be much less remunerative to the plaintiff anyway, possibly even less enumerative than part time work in the marketing area.

33. [33]
    What would have happened to the plaintiff in relation to her employment with this firm is a past hypothetical fact, and is therefore properly assessed by reference to the loss of her chance of obtaining that employment: Sellars v. Adelaide Petroleum NL (1994) 179 CLR 332. If the plaintiff had either not applied for the position anyway, or had applied but not been given the job, it is difficult to see that her earnings since the end of 2000 would have been any different what they have been, although her future economic loss would probably have been greater, because it is likely that in the long term her difficulties would continue to impact on her performance, and her ability to obtain tertiary qualifications which would be of importance in obtaining significant promotion, and in that way adversely impact on her future career.  On the other hand, if she would have applied and been appointed to that position, her economic loss at least in the short, and perhaps medium, term, would be the difference between what she would have made in that position and what she is going to make otherwise. 

34. [34]
    In that situation, the plaintiff’s assessment in respect of past economic loss^[3], and indeed assessment of economic loss in the immediate future would be appropriate, but even if the plaintiff had been appointed as marketing manager to that firm, it is unlikely that she would have spent the rest of her working life in that position.  There has already been some change in her employment, and there was reference to restructuring of marketing efforts within solicitors’ firms, and in addition it was apparent from the evidence of Ms. Barron (Exhibit 16) that she had experienced some changes in the course of her career as well.  The real significance of this particular position is that it gave the plaintiff the opportunity to achieve a significant salary increase by reaching a managerial level, something which will otherwise be difficult for her in the absence of tertiary qualifications.  The plaintiff’s case is that she missed this wonderful opportunity because of her injury.

35. [35]
    There is also the consideration that the plaintiff’s future career may well have been affected to some extent by her prospects of successfully completing further tertiary education. I am prepared to accept that has been significantly impaired by this accident, but she did achieve some success with it after the accident while working, and I do not think her capacity to engage in tertiary study has been destroyed. An alternative future course for the plaintiff would be to take some two or three years off work and complete a suitable tertiary qualification. She would then have the prospect of achieving a higher position, although there would be a loss of income while studying and still some economic loss thereafter. I expect this approach would produce a larger award. On the other hand, even if the accident had not intervened, I do not think I should take it for granted that she would necessarily have been able to obtain the tertiary qualification which the employers seemed to regard as of some significance in achieving advancement in the managerial field: p.63 and Exhibit 15 para 20. This is a further area of uncertainty in relation to her future career if the accident had not intervened. It is however likely that she would have been successful. Dr. Wiltshire thought the plaintiff capable of undertaking university studies, apart from the difficulty associated with the injuries: p.100.

36. [36]
    Doing the best I can on the basis of the evidence available, I think that if the accident had not occurred the plaintiff would probably have applied for the position of marketing manager and would probably have been appointed to that position, although that outcome was not certain. I would assess her chance of success in the matter at 80%, bearing in mind the advantages that she held as outlined by the staff partner. In relation to assessing her residual earning capacity, it is also important to bear in mind that her capacity is likely to increase over time, although it will always be less than it would have been if she had not been injured. This is because of the prospect of her improving her capacity to live with the pain and the prospect of improvement of the psychological involvement referred to by Dr. Wiltshire.

37. [37]
    Past economic loss can therefore, in the light of these considerations, be assessed by reference to the calculation prepared on behalf of the plaintiff: Exhibit 24. The plaintiff conceded that the figure in Exhibit 24 should be reduced to take into account the six weeks redundancy payment made to the plaintiff: p.79, Exhibit 33, Exhibit 18. The payment was $5,076.92 (Exhibit 18) so the figure in Exhibit 24 becomes $4,533.24. Allowance for the possibility referred to earlier, that had she not been injured she would not have been appointed marketing manager anyway, requires a deduction of 20% from this amount apart from the first figure in Exhibit 24, producing a total of $3,680^[4].  I will allow a further 7% for loss of past superannuation benefits, $257.  I will allow interest at 4% payable on the total of these two figures for .9 of a year, a total of $142. 

38. [38]
    With regard to future economic loss, the plaintiff submitted that this should be assessed on the basis of a net weekly loss based on the difference between the plaintiff’s current employment and what the plaintiff would have earned as marketing manager for that firm had she applied for and obtained the position, over a period of 20 years (which would take the plaintiff to her early 50’s), although a significant discount for contingencies was conceded. In my opinion, the future loss depends on whether but for the accident the plaintiff would have been working in that position. If so, various uncertainties associated with the future to which I have referred are probably adequately reflected in the relevantly short period of future employment contemplated, and a discount for contingencies. There is the consideration that the plaintiff is not necessarily going to be confined indefinitely to her current level of earnings even with her disability. There is some prospect for advancement for her in any event, particularly if the symptoms become less disabling in the future. On the other hand, but for the accident her career might well in time have advanced even further. Bearing all this in mind, the plaintiff’s calculation is reasonable on the assumption that she would have received that appointment in January 2001.

39. [39]
    However, for reasons I have given it is necessary to assess future economic loss on the basis of a lost chance of obtaining that employment. Had she not obtained it, she would now be worse off to the extent that her disabilities impair her prospects of obtaining better work and obtaining advancement because of their interference with her ability to work efficiently, and interference with her ability to pursue further studies which will be of assistance in obtaining promotions in the future. It is very difficult to quantify that, but it is not difficult to justify a global assessment on this basis of $20,000: that would be the equivalent of the loss of one year’s earnings some years in the future, which is a reasonable allowance for the prospect of some increased difficulty in obtaining employment when that was necessary, and the prospect of diminished salary because of an inability to do more demanding work, or work requiring higher qualifications.

40. [40]
    On that basis future economic loss is to be assessed at $74,763.20^[5], which I will round off to $75,000.  I will allow 8% of this figure, $6,000 for future loss of superannuation.

Gratuitous assistance

41. [41]
    At the time of the accident the plaintiff was sharing a house with two friends: p.37. She did little around the house for some time after the accident, with the others helping out. She was vague about how long this lasted. At some later stage (I do not think the date made this in the evidence) her present husband took over the provision of domestic assistance. He said that the figures given in Exhibit 25 were a conservative estimate: p.124. I am prepared to accept this evidence subject to one matter: the figures do not show a further reduction as a result of the improvement achieved in early 2000 with the use of different drugs prescribed by Dr. Lander. The plaintiff acknowledged there had been improvement since that period, and at this time she was no longer studying. It may be that there was additional pressure from the new employers, but on the whole I would have expected that the amount of assistance required would have gone down to some extent in about early 2000.

42. [42]
    That would be consistent with the claim for future gratuitous assistance, which is calculated at the rate of a quarter of an hour per day rather than half an hour per day: Exhibit 25. But unless this is based on a significant improvement to the plaintiff once the litigation is behind her, there is no other particular reason why the amount of assistance the plaintiff would need would go down by half at about the time of the trial. No doubt these calculations always involve some degree of rounding off, because the assistance provided will vary from week to week, and any improvement would be gradual and irregular. Nevertheless, there ought to be some further reduction in the amounts claimed to reflect further improvements early in 2000, and that be taken into account by reducing the total number of hours to trial by 100. There also appears to be an error in relation to the first period of three months; on my calculations gratuitous care at the agreed rate^[6] of $10.28 per hour for that period at one hour per day comes to $935.48.  Accordingly, past gratuitous care totals $7,749.  Interest will be allowed on this figure at 4% per annum for 4.67 years. 

43. [43]
    At the present time there is not a great deal the plaintiff cannot do that needs to be done: the only clear evidence was as to vacuuming: p.27. There are various other things that her husband helps her with if she is tired after a hard day’s work, but that I think is more a consequence of her working in a demanding job than the injury. At the present time they are living in a home unit, so that the more vigorous outside jobs do not need to be done by anyone, but it is quite possible that at some time in the future they will move into a house; they do plan to have children at some point: p.75-7, p.124. If they are living in a house, then heavier work would need to be done which the plaintiff would be unable to do because of her condition: Exhibit 14. On the other hand, there is some prospect of further improvement, as indicated earlier, and these two features may be regarded as cancelling out.

44. [44]
    The plaintiff sought future care at the rate of a quarter of an hour per day; I think it would be more realistic to speak of 1½ hours per week, which would cover vacuuming and make some allowance for the possibility of other assistance being required, particularly during flare ups and in a future house. There should also be some allowance for contingencies; something might happen to the plaintiff at some point in the future which will overtake the consequences of this injury. In view of these considerations, I will allow $35,000 for future care.

Special Damages

45. [45]
    The plaintiff’s special damages were detailed in a schedule, Exhibit 23. A large part of these related to physiotherapy treatment, which was the only controversial part of this schedule. The plaintiff went to the City Centre Physiotherapy Centre 53 times from 7 April 1997 to 10 December 1997, there was also one visit to the All Sports Physiotherapy on 16 April 1997. Between 11 December 1997 and 16 February 1999, the plaintiff went to South City Physiotherapy Centre 34 times. There was another visit to City Centre Physiotherapy Centre on 12 February 1998, and the plaintiff started at Agilitas Physiotherapy on 3 March 1999, where there were 19 visits until 19 August 1999. On 12 October 1999 the plaintiff started again at City Centre Physiotherapy Centre where there were 12 visits to 1 February 2000. From 4 March 2000 to 15 May 2001 there were 14 visits to the Milton Physiotherapy Centre.

46. [46]
    In the light of the medical evidence, it seems to me that not all of this is recoverable. Dr. Pentis thought that physiotherapy was principally of assistance in an acute stage, or in treating a flare-up, but did not consider that it was necessary to have continuing physiotherapy, rather than exercise, because ultimately it became simply a matter of pain relief or making the patient feel better, and was not efficient for that purpose: p.107. He did not consider that continuing physiotherapy was appropriate apart from the acute stage and following flare-ups: p.12-13. Dr. Campbell thought it appropriate for the plaintiff to have physiotherapy to deal with flare-ups, but he was not enthusiastic about regular physiotherapy which he felt would not make any difference to the long term outcome: p.131. All that physiotherapy would do for her condition would be provide some pain relief: p.132. I prefer this to the evidence of Mr. Siebel.

47. [47]
    Physiotherapy is important at the acute stage of injury, and where there has been some particular flare-up, but generally the doctors do not support the use of continuing physiotherapy on a maintenance basis, which is little more than expensive pain relief. I think there has been some excessive use of physiotherapy in a way which is not justified in the light of the medical evidence, and I will reduce the total in Exhibit 23 by $2,000 to accommodate this. Special damages are therefore $6,152.64, of which $733.55 is refundable, so that there are out of pocket expenses of $5,419.90, on which I will allow interest at 4% per annum for 4.67 years.

Future expenses

48. [48]
    The plaintiff’s claim in this respect is set out in Exhibit 26 and falls into three categories: there is a list of ergonomic equipment which the plaintiff requires to minimise the extent to which her work aggravates the symptoms. Ordinarily the furnishing of the workplace would be a matter for the employer, and indeed some employers may be unhappy about introducing furniture the property of the employee into the workplace. I suspect that this is likely to be necessary only if the plaintiff comes to practice as a consultant from her home (which is possible: p.28) or if she comes to be working with an employer who will not provide this equipment but would allow her to provide her own. The plaintiff conceded a 50% discount on these costs, and I think that was reasonable. If the plaintiff were working from home, there would have been some costs in setting up a home office anyway. Particularly if the plaintiff and her husband start a family, working from home is a distinct possibility, so on the whole I think this approach is reasonable.

49. [49]
    The next heading is for future pharmaceuticals, which was not controversial, and I will allow this amount. The next heading was for physiotherapy based on 18 sessions per annum for the rest of the plaintiff’s life. That is unjustified by the medical evidence, and in my opinion, a more reasonable allowance for physiotherapy is 6 sessions per year, and there should also be some discount for contingencies on this, so for future physiotherapy I will allow $4,200. The plaintiff also claimed for hydrotherapy sessions. This was something the plaintiff finds helpful, essentially as a form of exercise which is not putting stress on her neck, but I think this claim should be substantially discounted, and indeed the plaintiff would concede a 30% discount. There is little evidence to justify the need for this. There is also the consideration that but for the accident the plaintiff would undoubtedly have been spending money on other things to keep fit, and I think some allowance should be made for the fact that to some extent money spent in this way is simply replacing money which would otherwise be spent on other physical activities. Nevertheless, I think some allowance should be made for this aspect, and I will allow $5,000. Total amount for future expenses therefore comes to $11,277.

Summary

50. [50]
    Damages are therefore assessed as follows:

51. [51]
    There will therefore be judgment that the second defendant pay the plaintiff $178,839 which includes $3,722 by way of interest. I will circulate these reasons and invite submissions in relation to costs, but unless some other order is appropriate there will be an order that the second defendant pay the plaintiff’s costs of and incidental to the action to be assessed.