Walker v Durham[2003] QDC 21

DISTRICT COURT OF QUEENSLAND

1. [1]
   The plaintiff was born on 1 July 1982.

2. [2]
   At or about 4.15 pm on 5 June 2001 the plaintiff was the driver of a Hyundai Excel motor vehicle which was stationary at traffic lights in the inside lane of traffic on Stafford Road at the intersection with Webster Road, Stafford.

3. [3]
   While the Hyundai was stationary a Holden Calais motor vehicle being driven by the first defendant collided into the rear of the Hyundai causing a collision (the collision).

4. [4]
   Liability for the collision is admitted.

5. [5]
   The plaintiff claims in these proceedings that the collision caused her personal injuries, loss and damage. The personal injuries alleged are:

1. (a)
   injury to neck;

2. (b)
   injury to upper back;

3. (c)
   injury to shoulders;

4. (d)
   headaches;

5. (e)
   shock and anxiety.

6. [6]
   The plaintiffs evidence regarding the collision was that she heard a big bang and it all happened from there. She was thrashed forward and then she had her seat belt on so she was then pushed backwards. At first she did not feel pain. She was in shock at first. She was shaken, like a mess. She got home and tried to sit and relax and then started to feel gradual pain in her neck and then it slowly started to get worse and then she started to get a headache. By about 7 or 8 o’clock that night she had one of the worst headaches she had ever had in her life. She then went and saw her local GP. The plaintiff had never experienced problems with pain and stiffness in her neck before the collision. Although she had had headaches before the collision she had never experienced a headache like the headache she experienced on this occasion. Describing the progression of the headache the plaintiff said pain in her neck moved up the back of her neck and stayed at the back of her head behind her eyes. Further she said the pain progressed from the top of her shoulders right up through her neck. Occasionally when the pain is bad she gets it across the top of her shoulder. Pain then travels up the back of her head and it sits behind her eyes, at the back of her head. Immediately after the collision she had the headache constantly. Also even if the headache was only minor it was constant. That was for about two weeks.

7. [7]
   The plaintiff underwent physiotherapy treatment. She said the treatment eased her headaches from occurring every day, to possibly four to five times a week. As she presently is, she suffers from headaches two to three days a week.

8. [8]
   At the time of the collision the plaintiff was employed by Adecco. This is a temping agency. She was placed by her employer with Queensland Transport at the time of the collision. Her duties involved doing mail runs and computer work, filing and archiving. She had no trouble doing that work before the collision. However, following the collision the plaintiff said she had difficulty with the work she was required to do. As she did the work she felt pain in her neck. The plaintiff said there was a spot in her back that was very painful to touch. When the pain became extreme it moved to the top of her shoulders and sometimes even down in her shoulder blades. The plaintiff said that she might start with just a little pain in her neck and as the day progressed and she kept working it might move up the neck across the top of her shoulders and by the end of the day she normally had a headache. The plaintiff said she started to take time off work. Further, there were several occasions she woke up and she could hardly get out of bed due to the pain in her neck. There were mornings where she could not get herself dressed because she could not lift her arms up to put her jacket on because of the pain in her shoulder and neck. There were times when she left work in the afternoon because of starting work and then having pain progress throughout the day.

9. [9]
   The plaintiff said that she continues to have problems with her neck and with headaches. Prolonged sitting is a problem for her.

10. [10]
    On 26 July 2001 the plaintiff changed her employer from Adecco to Kelly Services. Nevertheless she remained placed with Queensland Transport. However, in December of 2001 she commenced direct employment with Queensland Transport. The plaintiff was employed with Queensland Transport until July 2002. Her employment ceased because her contract came to an end and the position was offered as a permanent position. The plaintiff applied for that position. However, the plaintiff was unsuccessful. Thereafter, the plaintiff applied to other employers for employment. However, the plaintiff was unsuccessful. The plaintiff remained unemployed until about two and a half weeks ago (about 18 February 2003) when the plaintiff became employed as a reception/switch board operator with Crazy Clark’s head office at Eagle Farm. The plaintiff said this work is extremely busy and involves store stationery orders. The plaintiff said with this work she continues to suffer from symptoms in her neck and recurring headaches. This position is a temporary position. Whether it becomes a permanent position may depend upon whether the person who currently has the position will return to work. Regarding her capacity to do this work the plaintiff said if she continues to do the work then she does not think she would go very well at all. This is because this employer is not very flexible in letting her walk around and she is required to stay at her desk at all times unless she is relieved for lunch, and this causes her problems. She said by 11 o’clock she has extreme pain in her neck area. On an occasion she could not even touch where her neck reaches her shoulder. She had a severe pain right up her neck and that is how it was every day. The plaintiff said she takes a lot of Panadol at the present time.

11. [11]
    The plaintiff attended for physiotherapy treatment on 28 occasions between 8 August 2001 and 21 January 2003. The plaintiff said the physiotherapy did relieve her symptoms for a couple of days. Her symptoms have affected her enjoyment of socialising and reading. Her symptoms have also disturbed her sleep. The plaintiff said that she received assistance from her partner with whom she resides. The plaintiff said that when she was off work in the period between July 2002 and commencing with Crazy Clarks in mid February of this year, her symptoms in her neck and the recurring headaches were not as extreme because they were not aggravated as much.

12. [12]
    The plaintiff said in her evidence that the assistance she has received from her partner since the collision would have averaged about three hours per week.

13. [13]
    The plaintiff has been examined by a number of medical specialists who have provided reports and given evidence in these proceedings. Further, the plaintiff has been examined by Mr Cameron Fraser, an occupational therapist. He too has provided a report and given evidence in these proceedings.

14. [14]
    Dr White, an Orthopaedic Surgeon saw the plaintiff on 3 December 2001. In his opinion the plaintiff suffered a flexion/extension injury to the cervical spine and a soft tissue injury to the thoraco-lumbar spine consistent with the history given. In his opinion plain x-rays of the plaintiff’s cervical spine performed on 3 December indicated further investigation by means of an MRI scan. When Dr White saw the plaintiff he thought she was likely to remain unfit for work which involved heavy physical labour or maintenance of the head and neck in fixed positions for extended periods of time.

15. [15]
    The MRI scan was performed on 14 January 2002. Dr White reviewed the scan. In his report dated 18 January 2002, Dr White states the MRI scan demonstrated mild desiccation at C3/4. In his opinion this finding was consistent with the plain radiological investigations performed earlier and appeared to confirm significant intradiscal disruption at this level as a consequence of the collision. In his opinion it seemed more probable than not that the plaintiff’s impairment would approach ten percent whole person. Further, the long-term development of cervical spondylosis appeared certain. Dr White did not think the plaintiff’s condition could be materially improved in the long term as a consequence of any particular form of conservative therapy.

16. [16]
    Dr White saw the plaintiff again on 9 September 2002. In his report dated 10 September 2002 he states, in view of the elapsed time since injury, the persistence of the plaintiff’s complaints and the radiological evidence the statistical probability of the plaintiff being left with a permanent impairment of the order of ten percent whole person had significantly increased. Dr White also considered the contents of reports obtained by the solicitors for the defendants from Dr Burke, a consultant occupational physician and Dr Fraser an orthopaedic surgeon. Dr Fraser and Dr Burke had in their reports expressed the view that the mild desiccation of the C3/4 disc reported on the MRI scan was a normal variant and was not related to the injuries suffered. As to this Dr White was unable to accept that the radiological findings, both of the plain x-rays of a cervical spine and MRI scan were a normal variant in a 19 year old female cervical spine which had not been submitted to significant trauma.

17. [17]
    Mr Cameron Fraser, the occupational therapist, saw the plaintiff on 30 January 2002. Mr Fraser considered the plaintiff’s capacity for work in an office administration capacity to be part-time (in the order of 30 hours per week). He did not consider her to be commercially capable of working as a sales assistant (clothing). If the plaintiff continued to work full time as an office administration assistant in the future Mr Fraser thought she would require the support of an empathetic employer allowing her the flexibility to change her posture, take rest breaks and perform stretches on a regular basis. He thought she would continue to experience exacerbation of her symptoms when required to perform activities involving prolonged static posturing of the neck and upper back (desk and computer work station activity). Mr Fraser did not consider the plaintiff to be suited to employment as a hairdresser.

18. [18]
    Dr Fraser saw the plaintiff on 24 May 2002. In his opinion the plaintiff sustained a strain of supporting soft tissue structures of the cervical spine and her symptoms would ultimately resolve. Further, the injury suffered was a category 1 injury and did not give rise to any permanent partial disability. Dr Fraser considered the plaintiff quite capable of resuming normal activities and work. In his opinion the impact was trivial and the plaintiff’s continuing symptoms were in excess of the injuries suffered.

19. [19]
    When Dr Fraser gave evidence he said he thought a 10% whole body impairment from a spine injury would be consistent with a very significant injury, either a fracture or a fractured dislocation or a disc protrusion causing nerve root compression or someone that required surgery to the neck. Although Dr Fraser accepted the plaintiff has some symptoms he said those symptoms did not give rise to any long term, permanent, significant disability or impairment.

20. [20]
    Dr Burke saw the plaintiff on 4 March 2002. In his report dated 7 March 2002 he states the plaintiff’s long term prognosis at that stage was guarded given the limited improvement in her condition since the collision and her persistent symptoms. Subsequently Dr Burke viewed the original x-rays and the MRI scan. He thought it would be prudent to obtain further orthopaedic opinion with a view to assessing whether the changes at the C3/4 level could be attributed to the collision. Dr Burke then considered Dr Fraser’s report about the significance of the MRI scan. Having done so Dr Burke in his report dated 7 August 2002 states that there was likely to be some pre-existing disc degeneration in the plaintiff’s spine but the collision was related to soft tissue damage. Hence, the collision was unlikely to have affected a pre-existing condition nor to have exacerbated the degenerative process. When he gave evidence Dr Burke said that the only relevance of the MRI scan was to exclude serious pathology. Further, he said he would defer to Dr Fraser’s opinion and not Dr White’s because Dr Fraser’s opinion accorded with his interpretation of the evidence available with regard to the interpretation of the MRI.

21. [21]
    The plaintiff’s claim that she required assistance following the collision to the present time was supported by her partner, Mario Morales, who also gave evidence.

22. [22]
    Mr Sky Williams also gave evidence. He is employed by Queensland Transport and worked with the plaintiff prior to June 2001. He noticed after the collision he had to do more lifting than the plaintiff and noticed the plaintiff made more trips with smaller loads of files.

23. [23]
    Jean Buchanan Pedley, a manager with Kelly Services also gave evidence. Mrs Pedley said by December 2001 the Department of Main Roads could no longer keep the plaintiff on due to the amount of sick days she was having. Through Mrs Pedley some records were tendered as exhibits. These showed days in which the plaintiff was off work sick and the purported cause for her being sick in the months of November and December.

24. [24]
    Michelle Anne Teoh also gave evidence. Mrs Teoh is the principal manager acting in the transport planning section of the South East Queensland division of Queensland Transport. Mrs Teoh said that the plaintiff was very keen to assist at work. The plaintiff would come forward with some suggestions about how they could undertake some of the duties allocated to the plaintiff and the plaintiff was very diligent. She also noticed one or two days the plaintiff was obviously unwell in that she looked strained around the face and white and on questioning she said that she had a migraine. The plaintiff tried to proceed to do her work but it became evident to Mrs Teoh that the plaintiff was uncomfortable and she suggested that she needed to go home. She recalled the plaintiff being occasionally off sick. Mrs Teoh also said the plaintiff’s application for appointment on a permanent basis failed because the selection committee considered the plaintiff was unable to effectively communicate either written or orally. Mrs Teoh said in the assessment by the selection committee the issue of physical matters did not come into consideration.

25. [25]
    The physiotherapist who treated the plaintiff, Bridget Madeline Venczel also gave evidence. Mrs Venczel said that when the plaintiff first came to her practice for the initial consultation on 8 August 2001 an assessment was made of the plaintiff and thereafter the plaintiff was given treatment. Mrs Venczel said that by 21 January 2003 when the plaintiff was last treated the plaintiff said she felt much better. However, there was some tenderness over the left shoulder girdle and a little bit of tenderness over the neck. The plaintiff also reported the headaches had decreased generally but that the neck and the left side were still a bit sore. On palpitation the upper cervical joints were tender and the left levator scapulae muscle on the left side was a bit tender.

26. [26]
    The plaintiff’s solicitor Christopher Francis McManus also gave evidence. He said the plaintiff came to his office on 21 June 2001 when the relevant forms to initiate a claim under the Act were completed. He said the plaintiff provided the name of the physiotherapist. He did not refer the plaintiff to the physiotherapist. He said his file showed on 12 July 2001 the plaintiff’s mother requested a referral from a doctor for the plaintiff to receive physiotherapy. On a later date the second defendant wrote to Mr McManus’ firm advising it was prepared to fund the cost of reasonable and appropriate rehabilitation on a without prejudice basis. On 25 July 2001 his office informed the plaintiff of the claim number and that it should be given to her physiotherapist so that they could send a treatment plan to the second defendant and ask them to pay for her treatment. Therefore, Mr McManus thought his client and the physiotherapist would sort out with the second defendant the provision of physiotherapy for the plaintiff.

27. [27]
    There is a significant difference of opinion between Dr White and Mr Fraser on the one hand and Dr Burke and Dr Fraser on the other hand regarding the extent to which the plaintiff suffers from symptoms and the effect of these upon the plaintiff, and in particular the effect upon her capacity to work. In that regard a consideration of the plaintiff’s credit is necessary. That is because apart from the plaintiff’s complaints of ongoing pain and headaches, Dr Fraser found upon physical examination of the plaintiff no abnormalities and except that Dr Burke found on clinical examination a moderate degree of tenderness in the neck, Dr Burke also found no abnormalities. Further, Dr Fraser and Dr Burke do not accept that the MRI scan supports a conclusion the plaintiff suffered permanent impairment or disability as a consequence of the collision. Dr White agreed the plaintiff showed no neurological signs and the extent to which she was suffering pain and unable to move her neck could not be measured as it depended upon what the plaintiff said about her pain and limitations. Therefore, the extent to which the plaintiff is suffering pain and is impaired or disabled from pain depends upon an acceptance of her evidence.

28. [28]
    It was submitted by the second defendant that the circumstances in which the plaintiff received physiotherapy treatment adversely affects her credit. That is because, the plaintiff stated to the second defendant in the forms the plaintiff was already receiving physiotherapy from Ms Venczel whereas the evidence shows that the plaintiff did not commence physiotherapy until 8 August 2001. Further, it was the plaintiff who asked her doctor to be referred to physiotherapy rather than her doctor making that recommendation. In any event if the plaintiff genuinely desired to become well the plaintiff delayed seeking treatment until almost two months later after the collision. Further, the plaintiff’s doctor made the reference without even putting his mind to the need for physiotherapy nor advising the plaintiff to undergo physiotherapy. Further, the plaintiff did not see her doctor after 31 July 2001 until 8 March 2003. In these circumstances it was submitted the plaintiff misrepresented the position with respect to her attendance for physiotherapy and showed an unhealthy interest in her claim for damages and only sought treatment once the cost of the treatment was to be paid by the insurer. That is, the plaintiff it was submitted would not have undergone physiotherapy unless it was going to be paid for by the second defendant. This, it was submitted, supported the contention the plaintiff did not need physiotherapy.

29. [29]
    Further, the plaintiff purported to keep a record of the days she lost work because of the effect of the injuries upon her. This record included dates which were subsequently shown by comparison to medical records to be dates upon which the plaintiff was sick for other reasons than the effect of the injuries upon her. These dates were excised by the plaintiff before the hearing. Further, the reasons for the plaintiff being absent as recorded in the records of Kelly Services showed the plaintiff advanced reasons that were questionable. Therefore, it was submitted these circumstances were adverse to the plaintiff’s credit and cast doubt upon the accuracy of her evidence.

30. [30]
    Further, the plaintiff said that during the period between July 2002 and when she obtained her employment with Crazy Clarks in mid February 2003 she made a number of applications for work but was declined work because, she believed, the disclosure of her injuries counted against her. However, on the evidence the only employer the plaintiff disclosed her injuries to was Centrelink. Further, the plaintiff did not produce job applications nor evidence from potential employers to confirm her claims that her attempts to find employment failed because of her injuries. Hence, when the plaintiff was challenged about her belief her injuries affected her search for work it was submitted the plaintiff’s preparedness to be manipulative so as to support her claim was exposed.

31. [31]
    Further, the plaintiff had expressed to the witnesses who have given reports upon the plaintiff her intention to become a hairdresser. It was submitted the plaintiff in her statements of loss and damage claimed her injuries prevent the plaintiff from becoming a hairdresser. However, the evidence shows the plaintiff expressed herself in a way that shows the plaintiff intended to become a hairdresser before the collision and after the collision still intended to become a hairdresser contrary to her claim in these proceedings.

32. [32]
    Further, with regard to the plaintiff’s Griffiths v Kerkemeyer damages claim she appears to have told Mr Fraser and Dr Burke that she required about four weeks or one month assistance from her partner.  However, that is in conflict with her claim in her evidence that she required an average of three hours per week throughout the period since the collision to the present time.

33. [33]
    It was further submitted the plaintiff has represented in the proceedings that her loss of employment has been because of her injuries, whereas the evidence shows that her loss of employment with the Department of Main Roads was because of absences unrelated to the effects of the injuries upon her and she did not receive the permanent position with Queensland Transport merely because she failed a merit based selection process.

34. [34]
    Further, the plaintiff did not tell the doctors she attended for medical reports that she had a history of headaches. It was submitted the evidence shows that before the collision she had attended upon her general medical practitioner because of headaches on a number of occasions.

35. [35]
    I am satisfied on the evidence before the collision the plaintiff had a good work history and was well motivated towards employment. Further, I consider the evidence revealed independent confirmation of the plaintiff’s good motivation towards work after the collision. Even though the records of Kelly Services show that the Department of Main Roads was concerned about the time off the plaintiff was having, the same note records there was “nothing wrong with her work”. Further, Mrs Teoh’s opinion regarding the plaintiff’s work after the collision was favourable to the plaintiff. Further, I consider Mr Sky Williams supported the plaintiff’s claim that after the collision she had difficulty doing her work.

36. [36]
    Further, I consider the medical reports and the plaintiff’s evidence shows the plaintiff has been consistent about where the pain has been since the collision and how it has affected her. The plaintiff did not claim that her pain and the effect upon her has become worse and has affected other areas. On the contrary the plaintiff told the doctors and said in her evidence that her condition had improved rather than state it had never improved and had become worse.

37. [37]
    Further, Dr White performed a compression test by compressing on the plaintiff’s head which did not produce any complaint of pain. Dr White said that when a person is exaggerating they react. I note the reservations Dr White had regarding the usefulness of such a test. Further, Dr Burke found the plaintiff to be a person who attempted to answer all questions with no apparent embellishment or exaggeration of her symptoms. He also found no evidence of any psychological or psychiatric features.

38. [38]
    Further, there was no suggestion that before the collision the plaintiff had taken an undue amount of time off work or for questionable reasons. I consider the plaintiff made a fair concession that before the collision she had taken some time off work, however, she said it was not a lot.

39. [39]
    I accept the evidence of Mr McManus. I am satisfied there must have been some misunderstanding on the part of the plaintiff when the plaintiff completed the forms. I do not accept the plaintiff deliberately sought to mislead anyone. Despite the criticism of how the physiotherapy was arranged I consider it is relevant on the issue of the plaintiff’s credit to note the doctor did make the referral and the physiotherapist did make an assessment of the plaintiff before the treatment commenced. I am satisfied the plaintiff attended physiotherapy to obtain relief from her symptoms. I am satisfied the plaintiff did not attend physiotherapy motivated by a desire to maximise her claim nor to provide a basis to bolster her credit and create an appearance of genuine injury. I am satisfied the plaintiff’s attendance for physiotherapy was reasonable in all the circumstances. I am satisfied the plaintiff did not fail to mitigate her loss.

40. [40]
    I am satisfied that when the plaintiff produced a schedule of lost time from work she did so without any intention to mislead anyone. I am satisfied the plaintiff made mistakes in the schedule. However, upon obtaining other records took steps to correct the schedule. I am not prepared to draw an adverse inference against the plaintiff because of the changes to her claim.

41. [41]
    I am satisfied the plaintiff’s belief that she did not obtain employment because she disclosed her neck problem was an honest belief genuinely held by her in all the circumstances. It may well have been the case that the plaintiff failed in her application for permanent employment with the Department of Transport on the merits. Nevertheless, I do not consider that this detracts from the plaintiff’s belief that the circumstances surrounding her injuries and related absences from work was for her the real cause.

42. [42]
    Although it appears the plaintiff did say to Mr Cameron Fraser and to Dr Burke that she required four weeks or one month of assistance from her partner and did not say she required more assistance thereafter, I am satisfied that is not adverse to the plaintiff’s credit. I consider it is to be noted that in Dr Burke’s report the plaintiff said:

“At home she described her boyfriend as being particularly helpful, that she is not required to undertake any vacuum cleaning, hanging out clothes, gardening or mowing the lawns.  She assists with cooking, washing and shopping, although carries only light shopping bags.”

I consider this demonstrates that the plaintiff did try to express to Dr Burke that her partner did more for her beyond the period of one month following the collision.  I am satisfied there must have been some misunderstanding on the part of the plaintiff when the plaintiff told Mr Cameron and Dr Burke the extent she required assistance from her partner.

43. [43]
    I am satisfied the plaintiff did not intend to mislead anyone in her statements about her ambition to become a hairdresser. Further, I do not accept her statements should be construed as an admission the plaintiff considers herself capable of doing hairdressing in the future.

44. [44]
    I am satisfied, although the plaintiff did not tell the specialists who examined her for these proceedings that she had suffered from headaches prior to the collision, the plaintiff did not intend to mislead anyone. I consider it is understandable the plaintiff did not tell the specialists about previous headaches. That is because I am satisfied although the plaintiff had headaches in the past these headaches were associated with incidents or circumstances that could have lead the plaintiff to consider those headaches were not relevant. Further, I am satisfied the plaintiff’s headaches in the past appeared to have an association with the medication she was prescribed and once that was altered she did not report another headache to her doctor for a significant period before the collision.

45. [45]
    The plaintiff was almost 19 years of age at the time of the collision and is now 20 years of age. Although the plaintiff in retrospect may have expressed herself on some occasions differently I am satisfied the plaintiff is an honest person. I am satisfied the plaintiff was truthful in the evidence she gave in these proceedings and told the specialists who have provided reports for the purpose of these proceedings the truth. I accept the evidence of the plaintiff.

46. [46]
    Regarding the evidence of Dr Fraser and Dr Burke both were of the view the collision was not significant because of the quoted cost to repairs the plaintiff’s motor vehicle was low. I consider by doing so Dr Fraser and Dr Burke did not give due consideration to the forces that may have been applied to the plaintiff in the collision. Further, Dr Fraser and Dr Burke were of the view following the collision the plaintiff returned to work and that the plaintiff only had a couple of days off sick after the collision. Although the plaintiff did return to work after the collision as I am satisfied thereafter the plaintiff was required to take many days off sick because of the consequences of the collision I consider some more weight would be required to be given to that circumstance by Dr Fraser and Dr Burke than both appeared to me prepared to give when asked to accept the plaintiff had more time off work than they thought. Further, I consider Dr Fraser was prepared to accept that if the plaintiff is genuinely still suffering symptoms in her neck and associated headaches, such a person goes on to develop chronic symptoms. That was consistent with Dr White’s view of the plaintiff. Finally, I was not persuaded by Dr Fraser’s evidence that what was reported by the radiologist on the MRI scan was a normal variant.

47. [47]
    Therefore, as I accept the evidence of the plaintiff and for the reasons I have just expressed, I prefer the evidence of Dr White and Mr Fraser to the evidence of Dr Fraser and Dr Burke.

48. [48]
    I am satisfied the plaintiff as a consequence of the collision suffered an injury to her neck and upper back and will continue to suffer pain and headaches on a permanent basis.

49. [49]
    I am satisfied as a consequence of the collision the plaintiff is at risk of developing cervical spondylosis between the age of 30 and 40 years of age by which time she may have significant neck discomfort with virtually any activity.

50. [50]
    The plaintiff is young and the consequences will be with her therefore for a long time.

51. [51]
    I am satisfied as a consequence of the collision the plaintiff has a reduced capacity for work. I am satisfied that she is unfit for work involving heavy physical labour or maintenance of her head and neck in fixed positions for extended periods of time. I am also satisfied that for the plaintiff to lessen her symptoms she would have to work less hours than she would otherwise have been able to work. I accept the evidence of Mr Fraser that ideally the plaintiff should work only thirty hours a week if that were possible by obtaining employment for four days a week at seven and a half hours per day or five days a week at six hours per day. I accept the evidence of Mrs Pedley that a candidate who has issues with injuries does limit a temping agency’s ability to place them in a relevant role. Further, I accept the evidence of Mr Fraser that because of the plaintiff’s symptoms and associated headaches she would not be suited to employment as a hairdresser and that she would not be commercially capable of working as a sales assistant in the clothing industry. That is not to say that the plaintiff does not have remaining working capacity. I am satisfied that the plaintiff is at significant risk of not being able to maintain her current employment. I am satisfied that in her current employment she suffers the symptoms she described in her evidence. I am satisfied that she is at a disadvantage in the open labour market. I am satisfied the plaintiff would have difficulty in coping with the hours required of her for full time work and therefore is likely sometimes to lose full time work because of absences she may need to take because of her symptoms or take work that is only part time work because of that consideration. The plaintiff has at her age many years ahead of her for her working life.

52. [52]
    In the circumstances I assess damages for pain and suffering and loss of amenities of life at $35,000.

53. [53]
    I allow interest on the sum of $10,000 @ 2% per annum for 1.78 years. This is the sum of $356.00.

54. [54]
    I allow the plaintiff special damages. Firstly, Health Insurance Commission charge of $111.65 comprising $93.80 for the services provided by Dr Dela Cruz in June and July 2001 and the visit by the plaintiff to Dr McArthur on 8 March 2003 in a sum of $17.85 for a standard surgery consultation. Secondly I allow travelling expenses in the sum of $660 for five visits to her general practitioner and 28 visits to the physiotherapist. Thirdly, I allow the plaintiff $97.60 for expenses for medication. I arrive at this figure by allowing the plaintiff Panamax – two per day and Vioxx – five per month. There are 100 in a packet of Panamax and 25 in a packet of Vioxx at a cost of $6.40 and $3.60 respectively. To date there have been 654 days since the collision. Therefore, I estimate the plaintiff has used about 13 packets of Panamax. At a cost of $6.40 that is a sum of $83.20. Further, since the collision there has been 21 months. I estimate the plaintiff has therefore used 105 Vioxx tablets requiring about 4 packets at a cost of $3.60. This is a sum of $14.40. The total therefore is $97.60. Fourthly, I allow the plaintiff the sum of $1,490 for physiotherapy expenses. Therefore, the total for special damages is the sum of $2,359.25.

55. [55]
    I allow the plaintiff interest on the travelling expenses and expenses for medication at 2.8% per annum for 1.78 years. This is the sum of $37.75.

56. [56]
    For past economic loss I allow the plaintiff the sum of $2,461.48. It was submitted that the plaintiff ought to be allowed damages for past economic loss for the period between July 2002 and mid February of this year. However, I would not allow any damages for that period. That is because the plaintiff’s cessation of employment with the Department of Transport was not for reasons associated with her injuries. It was rather because she was required to apply for her position and failed on the merits. Further, I consider the plaintiff whether or not she had suffered her injuries would have been unlikely to have found alternative employment quickly. I consider the period involved is too short a period during which the plaintiff’s prospects of finding employment could be said to have been good. Further, the plaintiff has not been rendered unemployable. That is, it is not the evidence nor the plaintiff’s case that she is totally incapacitated for work but rather that she does not have the capacity to work full time, although she is doing so at the present time, and ideally needs work that would allow her to work lesser hours, has had some occupations closed to her and is disadvantaged on the open labour market. Therefore, any loss during this period would be for the additional earnings she may have earned above her remaining earning capacity. In the circumstances I would value the plaintiff’s chance to earn those additional earnings in this period as so slight as to be negligible.

57. [57]
    I allow the plaintiff interest on the sum of $2,461.48 @ 2.8% per annum for 1.5 years. This is the sum of $103.38.

58. [58]
    I also allow the plaintiff lost superannuation on the past economic loss at 8% which is the sum of $196.91.

59. [59]
    I am satisfied the plaintiff’s partner provided her gratuitous services which were necessary and that the need for those services arose out of the injuries suffered by the plaintiff in the collision. I am satisfied these services were not of the same kind as were being provided for the plaintiff before the date of the collision. I am satisfied the plaintiff ought to be allowed two hours per week at $15.90 which is a sum of $31.80 per week for 93 weeks since the collision. This is a sum of $2,957.40.

60. [60]
    I allow interest on the Griffiths v Kerkemeyer damages for the past at 2.8% per annum for 1.78 years.  This is the sum of $147.39.

61. [61]
    For future economic loss I allow the plaintiff the global sum of $40,000.

62. [62]
    I allow the plaintiff for future loss of superannuation at 9% the sum of $3,600.

63. [63]
    I am satisfied if will be necessary for the plaintiff to receive gratuitous services in the future. I am satisfied the need for these services has arisen out of the injuries suffered by the plaintiff in the collision. I allow the plaintiff $31 per week over 60 years using the 5% interest tables discounted by 30% rounded to $22,000.

64. [64]
    Although I accept to date it has been reasonable for the plaintiff to undergo physiotherapy I do not accept that in the future this will be so. This is because I accept the opinion of Dr White that it is unlikely that the plaintiff’s condition could be materially improved in the long term as a consequence of any particular form of conservative therapy. I consider that with the cessation of the litigation the plaintiff is not likely to continue to undertake physiotherapy if it does not materially improve her symptoms. Further, the plaintiff has been allowed damages for future gratuitous services which is to provide her with some relief for those occasions which may create symptoms for her. Further, I will allow the plaintiff future damages for medication. I will not allow the plaintiff future travel expenses as it is simply unknown whether the plaintiff will incur travel expenses in the future. For medication for the future, the medication the plaintiff has taken to date indicates a loss of about $1 per week since the collision. I allow the plaintiff $1,000 for future medication.

65. [65]
    The total damages therefore is $110,219.56.

66. [66]
    Therefore I give judgment for the plaintiff against the second defendant for the sum of $110,219.56.

67. [67]
    I will hear the parties on the question of costs.