DISTRICT COURT OF QUEENSLAND

1. [1]
   The plaintiff who was born on 20 November 1963 was injured in a motor vehicle accident which happened about 9.50 am on 20 November 2000. (The sad coincidence of dates is “confirmed” by Exhibit 4D and Exhibit 24 at least.) She was a passenger in a rented vehicle being driven by her sister northbound in the right hand lane of the Pacific Highway at Mudgeeraba. The other vehicle in the collision was travelling northbound in the left hand lane. According to the statement of claim (which gives a somewhat clearer version than those attributed to the plaintiff in various reports before the court) an unidentified white van entered the highway at Mudgeeraba from the left hand side of the carriageway, causing the vehicle in the left hand lane to move across to the right, where it came into collision with the vehicle in which the plaintiff was riding. The driver lost control; the vehicle came to rest when it rammed backwards into a tree on the median strip. The first defendant represents the white van, the third defendant was the plaintiff’s sister; the second defendant was the driver of the vehicle which moved across into the right hand lane. Liability has been admitted and the defendants, represented by Mr O'Sullivan, made common cause in the trial, in which the plaintiff was represented by Mr Webb.

2. [2]
   It is a “whiplash” case, in which the plaintiff’s complaint is of soft tissue injury not demonstrated by radiological evidence. There is the usual difference of opinion among medical experts as to whether the conditions of which the plaintiff complains can still, more than four years after the accident, be attributed to it. The defendants acknowledge there was some soft tissue injury, which they say should be treated as resolving relatively quickly, so that the plaintiff’s general damages, entirely referable to the past, would be of the order of $12,000, the plaintiff having no valid claim to any award for past or future economic loss or for gratuitous services provided to her (Griffiths v Kerkemeyer).  The plaintiff asserts that a more appropriate assessment of general damages would be $40,000, that past economic loss (with interest) has been established at $45,000, that future impairment of earning capacity to age 59 comes in at about $150,000, past and future Griffiths v Kerkemeyer more than $50,000 and future medical and related expenses at about half that.

3. [3]
   The plaintiff and her sister were travelling in their rented vehicle to Brisbane, house hunting for the latter. Unsurprisingly, an ambulance was called, but the plaintiff declined the opportunity to avail herself of ambulance transport to a hospital or doctor. She asserted that was because she would have had to pay for transport, and that she felt she did not have the money. I reject that explanation, and consider that the operative belief she had at the time was that she had not been hurt to the extent that an ambulance was required. She says she felt very dazed, felt pain from a lump on the side of her head and in her right knee, also stiffness in her back. Later in the day her “hand and legs began to ache”. The two women abandoned the trip to Brisbane, but on the following day in a replacement rented vehicle successfully went to Brisbane. On that day the plaintiff says:

“During the trip, I felt intense neck pain.  I spoke with a Brisbane physiotherapist who recommended that I see Julie Stewart, Physiotherapist of Cavill Avenue Physiotherapy on the Gold Coast.

2.7.2  I went to my GP, Dr Ken Speed at Broadbeach when I returned from Brisbane. By the time that I got to Dr Speed, I had a large bruise and swelling on my head, bruises all over my body, constant headache and a very sore neck. My sore head and neck were my worst injuries. Dr Speed arranged for me to have x-rays and a head scan. He told me to see the physiotherapist and prescribed valium and pandeine forte medication. I did what he said.”

Delayed onset of symptoms where there is a soft tissue injury seems to be common. 

4. [4]
   To the extent that the plaintiff has sought help, it has been from the physiotherapist, Julie Stewart. There have been at least 100 visits.

5. [5]
   Analysis of Exhibit 20, the record of visits to the physiotherapist, reveals 22 post accident attendances (as recommended by Dr Speed) to 12 March 2001. From 30 May 2001, which may be seen as the first “flare-up” following attempts at bar work shifts, there were 41 further visits to the end of the year 2001, with another on 17 January 2002. Eleven of those visits came in the first four weeks, followed by six in July, seven in August, four, five and six in September, October and November respectively, then only two in December. By July, one finds as long as a week between visits, and that pattern typifies August, except that two additional visits are made between 22 and 29 August. After September, the pattern seems to change to fortnightly visits, subject to what may be “flare-up” visits commencing in late October and late November. On 23 July 2001 (Exhibit 4E) the physiotherapist wrote she was trying to “wean” the plaintiff off physiotherapy “whilst Balance takes over.” Exhibit 4D appears to be a reference from the physiotherapist to “Balance” dated 17 July 2001. It states:

“Donna underwent physiotherapy over a period of 3 months with apparently good results.  She returned to the gym and by 20/02/2001, she appeared to have an almost full recovery.

Donna returned to physiotherapy 30/05/2001, after attempting to return to waitressing.  She appeared to have re-aggravated her cervical spine and thoracic spine pain and hypomobility.  CT scan taken on 05/06/2001 demonstrated C5-6 disc protrusion.

Donna has attended physiotherapy and returned to the gym.  Treatment has consisted of cervical joint and thoracic joint mobilisations, deep cervical flexion re-training, thoracic mobility exercises, scapular pattern correction, traction, neural mobilisations.

I feel that Donna requires functional strengthening, necessary to maintain prolonged postures, lifting and carrying activities.”

The plaintiff says she completed the Balance Rehabilitation Course between August and September 2001:

“At their instruction, I had a number of supervised sessions at Bond University Fitness Centre.  The lady at Balance also instructed me to take up a gym fitness program and between September 2001 and September 2004, I went to the gym between 3 and 4 times each week, except for the occasions when my pain was really bad.  However, since September 2004 I have been going to the gym only 2 times per week because of my limited finances.  At the gym, I only do light weight exercise and do not lift anything overhead.  I find that I benefit from doing this.  It makes my neck feel better.”

(The plaintiff makes no claim for gym membership fees or other charges.  This may well be because participation in gym activities had long been part of her lifestyle.)

6. [6]
   There would appear to have been some improvement. According to Exhibit 20, in 2002 there were as many visits to the physiotherapist in July and August (10) as in the rest of the year put together; those may mark a “flare-up”. In 2003 physiotherapy attendances virtually ceased. There were two in January (after a break of nearly five months), five over 12 days in February (which may be counted a “flare-up”) and a single one in July – a total of eight for 2003.

7. [7]
   2004 saw an increased level of consultations, seven from 18 February to 25 March, and four from 18 November, indicative of two “flare-ups”.

8. [8]
   The causes of the “flare-ups” have been guessed at. Attempts at work activity are held responsible for only the first, at the end of May 2001. The most recent was said to be a case of the plaintiff waking up in bed in the morning, unable to move; there may have been other instances of this. Another cause of trouble identified in the evidence, which may be seen as part of the incidents of life, occurred when the plaintiff’s daughter fell against her neck in the course of play. Work-type activity is not shown to be any more likely to trigger a flare-up than anything else.

9. [9]
   Mr Webb accepted that the plaintiff had a responsibility to act reasonably to mitigate her damages. In particular, she must act reasonably to get herself fit for acceptable employment, so long as she wants the defendant to make up for loss of earnings and/or impairment of earning capacity. An ordinary person of her age and general excellent health would surely exhaust all manner of possibilities rather than accept that he or she will be unproductive (in economic terms) for the rest of his or her days. The court adjourned some time after 6 pm on the second of the two days allotted for trial, before Mr Webb had completed his submissions; this he did by written “Further Submissions” dated 13 December 2004. In them it is said, “If she is accepted, her attempts have been reasonable”. On what proved to be the major issue in the case, for reasons that (hopefully) will be made clear, the plaintiff cannot be accepted.

10. [10]
    While the plaintiff has to rely so heavily on Ms Stewart to verify her allegedly dire plight, it is clear that Ms Stewart does not want to assume that responsibility. Very properly, she exhorts the plaintiff to see medical practitioners. Identical letters were sent by her on 4 February 2002 to Dr McMahon (Exhibit 4G) and on 18 April 2002 to Dr Dobbie (Exhibit 4I) describing the plaintiff as “very well motivated with her home program of neck stretches and postural exercises”, and concluding, “I have advised Donna on several occasions to consult yourself again and I hope that she will be making contact with you in the near future.” Although the plaintiff may have complied eventually with such urgings, she has not persisted with medical practitioners. According to the Health Commission document (Exhibit 16, which runs to 16 December 2003) there was a single visit to Dr Dobbie on 22 April 2002 and a final visit to Dr McMahon on 15 April 2002 following earlier visits (once) in June and July 2001. Visits to Dr Speed (of which there were nine) ceased by 4 June 2001. There were radiology services on 24 November (four days after the accident), 5 January 2001 and 5 June 2001 and monthly attendances for acupuncture in February, March and April 2003. Exhibit 16 does not tell the whole story. The plaintiff has seen Dr Max Williams (a neurologist who wrote a report dated 4 September 2001 made available to Dr Stedman and Dr Campbell, but not to the court). There is no information in evidence regarding assessment or programs involving Balance Physical Rehabilitation and Education Service (about September 2001) which is associated with Bond University. In relation to the capacity of the plaintiff to work, I do not feel justified in finding any impairment beyond that described by Drs Stedman, Campbell and McPhee, all called by the plaintiff. Their assessments vary quite widely, leaving questions for the court. Dr Reid thought there was nothing wrong with the plaintiff that could be attributed to the accident of 20 November 2000.

11. [11]
    A troubling feature of the case is the plaintiff’s reliance on her own self-diagnosis. The court is asked to act on her opinion (which, for the sake of argument, may be taken as genuinely held) that there is no job she can do, and that she requires assistance to attend to some everyday household chores. There is a complete absence of medical support for the plaintiff’s opinion. There is such support for the view that the plaintiff should observe some limitations, avoiding heavy work, ensuring that sedentary work is relieved by moving periodically and so on. If the plaintiff has seen any medical practitioner in the last 15 months, the court did not hear of or from him or her. Mr Webb was forced to rely on the evidence of Ms Stewart, the physiotherapist, who should be accepted when she says the plaintiff attends exhibiting stiffness or spasm which would be difficult or impossible to produce voluntarily. But this is something that occurs infrequently, when there are “flare-ups”. In the last three years, before the one on the eve of the trial, there appear to be three only, in July-August 2002, February 2003 and February-March 2004 – hardly exhibiting a frequency likely to preclude the holding down of employment. Ms Stewart’s reports (Exhibits 4 and 4A to 4I) indicate that “flare-ups” or trouble are in some instances attributed to activities in caring for her daughters.

12. [12]
    The plaintiff obtained a report dated 20 February 2001 (Exhibit 18) from her physiotherapist’s locum which advises:

“Ms Wallace presented for physiotherapy on 23 November 2000, complaining of neck pain and headaches post motor vehicle accident 3 days prior.

When reviewed today Ms Wallace has returned to the gym and states she is pain free.  On examination, she has full range of motion and only very minimal restriction through her right thoracic spine, which loosened with treatment.  I feel that if she continues with her stretches and exercises, she should be able to maintain her present state.

Treatment has consisted of mobilisation, ultrasound, massage, stretches, ice and exercises.

If you have any queries regarding her treatment or likely prognosis, please do not hesitate to contact myself or Julie Stewart on the number above.”

13. [13]
    The writer’s notes of the consultation bear out the report. On 17 July 2001, Ms Stewart confirmed the report: Exhibit 4D, set out in para [5] above.

14. [14]
    Ms Stewart’s principal report dated 2 October 2003, was:

“RE:  DONNA WALLACE

DATE OF BIRTH: 20/11/1963

YOUR REFERENCE: MS: KB: 230857

Further to your request, please find the following account noting that there remains $2745.00 outstanding for treatment of Donna, since the MVA of 20/1/2000.  Monies already paid by the insurer total $1495.00, and Donna has also paid $137.00.

Donna appears to have sustained significant musculo-ligamentous and discal injuries to her cervical and thoracic spines consistent with a high velocity acceleration – deceleration injury to these structures.  Unfortunately to Donna, the proportions of her long, female neck have been contributing factors to the mechanism of her injury and her rehabilitation.

Donna continues to present with episodes of extreme lack of cervical spine mobility, and pain.  Often she presents with paraesthesia of the ulnar borders of her hands, burning pain in her mid back and headaches.

Treatment has included cervical spine and thoracic spine joint mobilisations, massage, electrotherapy, mobility exercises, neural mobilisations, stability re-training and traction, as well as correspondence with her treating general practitioners and specialists.  Since early 2001, Donna has attended physiotherapy as an “as required” basis.  She underwent a programme of functional strengthening during this period, but continued and continues to be beset with episodes of recurrent pain and stiffness.

Donna has had a substantial amount of physiotherapy treatment over the past three years, but her response to treatment remains objectively and subjectively positive and as such can only be viewed as reasonable.

I also suspect that Donna will continue to have periods requiring treatment and viewing her attendance record over the past twenty-four months, it is not unreasonable to suggest that she may require up to 15 treatment sessions of physiotherapy yearly.

I feel that Donna requires functional strengthening, necessary to maintain prolonged postures, lifting and carrying activities.”

15. [15]
    This all bears out the importance Ms Stewart placed on getting the plaintiff accepted by the Balance Program. If duly undertaken, it does not seem to have helped the plaintiff in the result. The sum total of her efforts to rejoin the workforce post-accident is a small amount of modelling work (garnering $766.53 net) and up to four part shifts working in a bar, described in paragraph 4.9 of the plaintiff’s statement, Exhibit 7:

“4.9 In about May 2001 I attempted to work as a bar attendant with Isobar, Marina Mirage, Gold Coast.  I was employed to work 8 hours during the day on each Friday, Saturday and Sunday.  I was to start work at 8 am on Fridays and 9 am on Saturday and Sundays.  I was paid $10 an hour net.  I had arranged for my neighbour to transport the children to and from school on the Friday and the children went to their father for access each weekend.  The job required me to pick up individual glasses and wire trays filled with empty and partially filled drinking glasses.  I was also required to wipe down tables and to stock shelves with full bottles of alcohol.  This required me to bend forward and use my right arm all the time.  I was unable to cope with this work and the pain in my neck that it caused me.  I was only able (to) work 5 hours on the first shift, 5 in the second shift, 3 ½ in the third and 4 hours the last shift before I resigned.  I left work each day in pain.  I spent significant parts of the next two (2) weeks at home resting in bed.”

16. [16]
    The plaintiff’s evidence in chief (page 27) was that the manager was happy for her to start a shift, work as far as she could and then leave. She did not persist. I think the opinion of the defendant’s occupational therapist Ms Sullivan (219-220) that:

“I don’t agree (that the work was beyond her.  It’s not a case of it getting better, it’s a case of it getting worse) because often it can seemingly get worse in the initial stages.  As I said, as your body adjusts to different actions and movements and as the body does get used to it, over some time, one would normally find it easier.”

accords with common sense.

17. [17]
    The plaintiff left school at the end of Year 10. It is convenient to record her own account of her pre-accident employment:

“4.1 At the date of my injury, I was unemployed and had the full-time care of my two (2) children, Talia and India.  I received and still do receive a Centrelink sole parent pension and some child maintenance from my former husband.

4.2 My husband and I married in 1994 and separated in May 2000.  Prior to then, and contrary to his wishes, I worked.  I ran a small business that imported artefacts and other items from Bali.  I then sold these items in Australia using the Internet.  The business made limited income, however it was sufficient to fund 4 to 5 trips a year to Bali to buy stock which I used as a holiday.  I would be away in Bali for 10 days at a time and each trip would cost about $1,500.  The tickets and accommodation were relatively cheap because at that time my husband worked in International reservations with Ansett.

4.3 The separation was acrimonious and emotional for me.  I stopped my business activities completely and I gave my stock (about $8,000 worth of items) to a friend who was in financial need and he sold the items at the Rocklea markets.  I decided to relocate the children and myself from Brisbane to the Gold Coast and I did so on 12 November 2000 (the week before the accident).  It was always my intention to obtain work once my children and I were settled on the Gold Coast.  I had limited income coming in and there were periods when I received no maintenance when Ansett retrenched my husband.

4.4 By the time of the accident, I had not yet started looking for a job.  However it was my intention to find a job as soon as possible.  It was my intention to let the children settle first.  I would have used the Christmas period for that purpose and I expect that I would have started looking for work in January 2001.

4.5 I could not have restarted my former business.  It had no stock and I did not have any money to fund a buying trip or stock.

4.6 The bulk of my training and skills were in hairdressing, gym instructing, and management in hairdressing and hospitality and bar work.  It was my intention to find permanent work as soon as possible in this area.”

There is no evidence of pre-accident earnings.

18. [18]
    Around February 2001 the plaintiff set in train an application to join the Ambulance Service. She failed to pass a written examination by one correct answer and was invited to sit again, but did not take up the invitation. A Dr Petervrakis conducted the necessary medical examination, which she passed. The plaintiff apparently assessed herself as physically incapable of working as an ambulance officer because of her neck condition. She instanced apprehended difficulty in performing CPR. In the same way she has ruled herself out of hairdressing even in a management capacity (which requires ability and willingness to do all hairdressing work), gym instruction, “bar” work (which I take to extend to hospitality generally) and modelling, in which she is experienced, because she considers she would not be sufficiently dependable; further, she says she would be disadvantaged because in her age group, a fuller figure is preferred. She does not appear to have contemplated part time work, or a combination of part time jobs that might make different demands on her physically. The plaintiff says:

“I have recently started a small business from my home in my own name.  I already hold an ABN number because of my work as model and the start up costs were small and I was able to put them on my credit card.  The business purchases wholesale clothing and yoga equipment and sells it to the general public via ‘e-bay’ over the internet.  I started this project in September 2004 and bought a lap top computer which I use lying down on the couch.  I felt that I had to try something.  My mother helps me with the business and I do not pay her.  My mother does all of the posting and packaging of items when sold and drives down to the post office to send them  to the buyer.  I tried this but found that looking down for prolonged period(s) caused me increased neck pain and on top of the looking down that I was doing on the computer, it was too much.  Unfortunately even with my mother’s help, the business is fairly unsuccessful.  I have just completed the first 3 monthly Profit and Loss Statement and recorded a $4,000 loss but this included set-up costs such as the purchase of a laptop computer.  If these losses were to continue then it is unlikely that the business will survive for more than 12 months.  I do not have any large cash reserves to keep funding the losses, my treatment or my living expenses.  Further my mother is aged 65 and I do not expect that I can keep calling on her indefinitely to volunteer her time.”

19. [19]
    The first medical report obtained by the plaintiff’s solicitors was Dr Stedman’s, Exhibit 2, dated 5 June 2002. He wrote to them:

“Summary

Donna Wallace is a 38 year old left handed hairdresser who was involved in a motor vehicle accident.  She has had neck pain since.  Notably she had neck pain before her accident but said she had been relatively symptom free although had had treatment on historical questioning.  She reports that she is not able to return to work.  She is currently on a supporting mother’s pension and maintenance allowance from her husband to look after her children.  She has some asymmetrical loss of range of motion in her neck with no neurological abnormality.  She has had extensive medical care.

With respect to your specific questions:

The injuries sustained by our client in the accident

Your client has had a soft tissue injury to her neck undoubtedly aggravating pre-existing degenerative changes.

Whether you consider our client’s injuries and condition were caused by the accident in question either in whole or in part

Your client’s injuries were caused in part by her accident but some of the osteoarthritis predates her accident.

Your findings on examination of our client

On examination of your client I find that she had a reduction in range of motion in the cervical spine with no neurological abnormality

The prognosis for our client’s future recovery

It is likely that she will have persistent symptoms as she has had since her first accident but these have further deteriorated.

Whether you consider our client suffers any permanent disability

In my opinion according to the AMA Guides she would be considered a DRE group 2 with 5% whole person impairment noting that she has had a pre-existing injury and has degenerative disease in her neck requiring treatment before her accident that would account for 2-3% of that impairment with her pre-existing complaint.

Whether you consider our client’s injuries and condition are due to any pre-existing condition or whether our client’s injuries and condition are an aggravation of any pre-existing condition.

In my opinion she has had a pre-existing condition which has been aggravated. That aggravation is continuing.  It has affected her capacity to work although in my opinion her lack of ability to work is probably related to some motivational aspects.  She probably requires some vocational counselling as she reports she is scared to look for a job.  In my opinion further degeneration will not occur as a result of this accident and the percentage attributable to the pre-existing condition is in the vicinity of 2-3% whole person impairment.

Whether you consider our client’s injuries and condition would prevent our client from working either in whole or in part

I note her training and do not believe that she would have all the difficulties that she states but I accept that with her sore neck she would have difficulty sitting with her neck flexed for extended periods.  I am also of the opinion with her level of non work physical activity currently that she should be able to do bar work.

Whether you consider our client’s injuries would prevent our client from engaging in any social or recreational pursuits either in part or in whole

It has interfered mostly with her non physical activities.  She has resumed gym and walking but does have some difficulty doing the housework. The main impact is in terms of her book writing.

Whether you consider our client would benefit from any further treatment and if so would you detail the nature and costs of that treatment as well as the period within which you could require that treatment to be undertaken?

A self managed exercise program would probably be as much benefit to her as physiotherapy.

Whether you consider our client would benefit from any operative procedures and if so would you detail the nature and estimated cost of these proceedings and when it would be recommended that our client undergo these procedures

Operative surgery is not required.”

20. [20]
    A year later a report was obtained from Dr Campbell, a neurosurgeon. He diagnosed “chronic soft tissue musculo ligamentous injury to the cervical spine” and proceeded:

“Prognosis:

Ms Wallace’s prognosis with regard to returning to her pre-accident (sic) duties as a bartender is poor.  It is likely that any return to these activities would cause aggravation and deterioration of her condition.

Ms Wallace’s prognosis with regard to returning to work in any capacity is poor.

Opinion

Ms Wallace has suffered a chronic soft tissue injury to the cervical spine consistent with the history given.  The accident has caused problems related to work and recreational/domestic pursuits.

The treatment provided to date has been appropriate.  There is no clinical indication to consider further treatment or surgery.  Ongoing management involves the passage of time and avoidance of any aggravating factors.

Ms Wallace has been symptomatic for two years and seven months.  Patients with symptoms  present six months post injury are, on the balance of probability, more likely to suffer a degree of permanent impairment as a consequence of this type of injury.

Ms Wallace is suffering a whole person impairment in the order of 5%.  This impairment is likely to be permanent.”

21. [21]
    The next report the plaintiff obtained was from Dr McPhee, spinal surgeon. He found, according to his report of 26 August 2003 (Exhibit 6):

“EXAMINATION

Ms Wallace is a tall lady with an athletic build.  Her posture and gait were normal.  She had a full range of lumbar spine movements and could flex to touch the floor.  Movements of the cervical spine were generally reduced, particularly on flexion and rotation to the left.  The range of movements was at least 75% of normal.  I could elicit no tenderness around the cervical spine or shoulders.  Examination of the upper limbs showed a full range of movements.  Deep tendon reflexes, power and sensation were normal.  There was no measurable difference in limb circumference.

INVESTIGATIONS

X-rays of the cervical spine done on 24 November 2000 show some minor narrowing of the discs C4 to C7.  These changes are consistent with early degeneration of a constitutional type.  X-rays of the thoracic spine were normal.

An MRI scan of the cervical spine done on 17 January 2002 was within normal limits.  Some minor signal changes consistent with early degeneration were noted in some intervertebral discs.

OPINION

The radiological investigations show only age related changes in the neck and thoracic spines.  There is no evidence of any structural injury.  Based on the history, clinical and radiological examination, it is reasonable to conclude that Ms Wallace has suffered a strain of the cervico-thoracic spine with possible aggravation of pre-existing degeneration of a constitutional type.  The road traffic accident was significant in the causation of her symptoms.  There is a preceding history of a neck injury resulting from a road traffic accident twenty years ago with some ongoing intermittent symptomatology.

All studies indicate that patients destined to recover from such accidents will usually recover within six months.  A few patients will improve up to two years with no study demonstrating any improvement thereafter.  Across all studies 40-70% of patients continue to experience long term symptoms which may include headaches, back pain and paraesthesia.

The efficacy of any treatment to alter the natural history is unproven. Surgery is not indicated and passive physical therapies are not indicated unless in the treatment of acute flare ups.  Basically the ongoing management depends on treating pain using appropriate (non-prescription) analgesia and the use of any other physical modality such as heat.  Ms Wallace would be advised to maintain a regular exercise program to maintain neck mobility, strength and aerobic fitness.

It is reasonable to accept that Ms Wallace might have a functional incapacity when it comes to heavy lifting or lifting at high levels.  On the basis of the examination she should be able to maintain full time employment in any position which is sedentary or includes light manual tasks.  Whether or not she returns to work depends on her ability to tolerate pain.  Psychological and social factors may serve to reinforce invalidity.  There are a number of potential such factors.

As a result of the road traffic accident, Ms Wallace has a disability relating to her cervical spine, headaches and paraesthesia of the arms.  Clinically there is an impairment by way of reduced mobility of the spine.  There is no objective evidence of radiculopathy.  These findings constitute a DRE II impairment of the cervical spine for which the AMA Guides assigns a 5% whole person impairment.  A past history of a neck injury with recurrent symptoms constitutes a small pre-existing impairment (say 1%).  I would therefore attribute a 4% whole person impairment to the road traffic accident on 20 November 2000.  Ms Wallace’s condition is stable and stationary having reached maximum medical improvement.”

22. [22]
    The doctors accepted the difficulty of allocating responsibility for a patient’s present condition as between the most recent incident (for which the defendants have to pay) and the pre-existing situation, which may have been complicated by an earlier accident. As Dr Stedman put it (page 78) “there’s no science to the way we apportion pre-existing disability.” I find Dr Stedman’s approach of adopting a 50-50 apportionment more persuasive than Dr McPhee’s approach. It is essentially only Ms Stewart who has found, on occasions of “flare-up”, objective support for the plaintiff’s claims. Dr McPhee (at 115) responded to the suggestion that “pain’s often said to be invisible so there’s no way of knowing, you just have to rely upon the plaintiff?”:

“It is a very game person that would say that a patient who says they’ve got pain doesn’t have pain.”

The plaintiff says she was forced to bed for a couple of days by her (pre-accident) neck problem not long after her marriage.  (Sexual activity is something she says she now has to avoid.)  She obtained treatment as required over the years, and said   that this was the pattern until “a year ago”.  She said at page 43 she was not suffering neck pain in 2000 prior to the accident in November: “I was fairly sure it subsided a year prior to the accident”, after occasioning “intermittent neck pain” over 11 years from 1989 to 1999.  She sought physiotherapy and chiropractic treatment for a lower back problem in the year 2000.  I am not sure that the plaintiff’s doctors (Dr McPhee in particular) appreciated the extent of prior neck problems.  At page 79, pressed by Mr O'Sullivan to consider allocating greater responsibility to the plaintiff’s pre-accident condition, Dr Stedman at page 79 acknowledged “the capacity in an injury to alter the natural history of the process”.  He spoke of the “line of the natural history” then meeting that of the “injury history”, the intersection being marked by “the occurrence of what would otherwise have been the same situation.”  He said:

“We’re drawing two timelines.  We’ve got a timeline which is the timeline that would have been occurring under any circumstances, and then we’ve got a timeline which is related to the injury and the impact of that injury, and ultimately where those two timelines coincide then reflects the timeframes which, even after the accident, that person would have been in the same position irrespective of the accident.”

He described as “reasonable” a proposition that the plaintiff is probably at that intersection now – “but I think that it would be very hard to be absolute about it.”  He thought there was no reason why the plaintiff should not be able to perform her housework, given the activities she was pursuing at the gym after the accident.  I think that conclusion is inescapable.  However, I do not take from her demonstrated capacity at the gym to do things at her own pace that the plaintiff has demonstrated a capacity to work at the pace demanded of an employee by an employer.  So far as employment is concerned, the medical evidence is contrary to the plaintiff’s assertion she cannot work.  The weight of the medical evidence is against Dr Reid who thought the impacts of the accident were slight and would have been exhausted long ago.  In such circumstances, it is difficult for the Court to accept this opinion and reject the “majority”.  One must wonder, however, whether encouragement ought to be given to the practice of a party presenting to the court, multiple medical reports to broadly similar effect.  It must be found that the accident injury did worsen the plaintiff’s condition, but that situation, if not by now at an end, will shortly be at an end.  Nothing attributable to the accident is now keeping the plaintiff out of the workforce.  (It might be noted that the plaintiff’s long (“swan”) neck and generally tall frame, leading Dr Stedman to query Marfan’s syndrome (excluded by Dr Reid), have had no significance for the plaintiff’s difficulties, on the medical evidence, despite Ms Stewart’s entertaining the possibility.

23. [23]
    It is unfortunate that the experts (claiming different expertise) who saw the plaintiff at the defendant’s behest for “Workplace Solutions”, Ms Sullivan and Mr Millas (the latter in particular) formed an adverse opinion of the plaintiff. In the circumstances, I would rely on the doctors who gave evidence in the plaintiff’s case as the basis of a finding that she has physical capacity to work. Mr Ng of Therapy Solutions Occupational Therapists provided a report for the plaintiff dated 24 June 2003, Exhibit 3. He says:

“20.  Capacity for work

a) At the date of the said accident, Ms Wallace was unemployed.

b) Ms Wallace has since participated in a work trial as a bar attendant.  She apparently suffered severe levels of pain and was unable to continue.

c) Ms Wallace has not worked since this time.  She remains unemployed.

d) Ms Wallace’s self report of occupational difficulties is consistent with my testing at assessment.  In my opinion, she has a functional incapacity for work which involves static posturing of the neck shoulder region.  Her ability to sit for long periods is moderately limited.  Her ability for repetitive lifting, reaching overhead and prolonged or repetitive forward reaching have been moderately compromised as well.

e) I have provided below my opinion as to Ms Wallace’s capacity for jobs in her working history.

f) Without the use of her trade qualification in Hairdressing, Ms Wallace will be forced to search for jobs within the skill level 4 or 5 of the Australian Qualifications Framework.  Occupations for which she is reasonably qualified but now precluded include cleaners, factory process workers & labourers, food preparation workers and labourers, carers and aides, and hospitality workers.

g) Ms Wallace has previously worked as a duty manager in various occupations, however it is unlikely that she will gain commercial employment in this capacity as she has not had any formal qualifications in this field.

h) Further to this, the majority of Ms Wallace’s experience in management has been in the running of her own import/export business.  This does not necessarily mean that her skills are transferable into other management type positions on the commercial market.

i) A work trial should be established.  Work as a telemarketer, service station attendant or courier driver would be appropriate.

j) Suffice is to say here, if Ms Wallace continues to perceive such high levels of pain and associated subjective limitations, then it is unlikely that she will be deployed to durable, commercial employment in the foreseeable future.”

24. [24]
    I find it difficult to accept the unqualified negatives in (e). That aside, Mr Ng does not assess the plaintiff as unemployable. His recommendation in paragraph (i) has not been pursued. Mr Millas’ evidence establishes sufficiently that positions suitable to a person with the restrictions supposedly afflicting the plaintiff have actually been available on the Gold Coast (where she lives) at various times.

25. [25]
    The plaintiff comes to court with the difficulty of having removed herself from the employed workforce, apparently at her former husband’s urging. Her protestations of enthusiasm to re-enter the paid workforce were not reflected in any action taken by her in the six months leading up to the accident. Her efforts since the accident are close to non-existent. It is not possible to find that the plaintiff would have worked but for the injury suffered in the accident. Her capacity to earn was impaired, to about the end of 2001. I think it is reasonable to indulge the plaintiff to the extent of linking the treatment she had from the end of May 2000 with the “work trial” that happened shortly before. Whether the plaintiff, had her capacity to work been unimpaired, would have taken advantage of that by pursuing employment is another question entirely. She may well be wise to pursue her new internet-related sales venture, which probably suits her talents and in which it seems she is showing more application than she has given to anything else since her former importing business.

26. [26]
    The foregoing paragraph was written before the receipt of the Further Submissions, in which Mr Webb has demonstrated by reference to decided cases that whiplash victims may be entitled to very substantial awards for economic loss and past and future Griffiths v Kerkemer damages even though their assessed disability seems relatively modest, say 5% whole person impairment.  In Fail v Hutton [2004] QCA 61, affirming [2003] QSC 077, $85,000 (before interest) and $200,000 were awarded for lost earning capacity past and future.  Mr Fail was assessed as “a credible witness not prone to exaggerating … doing his best to accommodate the restriction caused by the injuries … and to get on with his life”.  It was accepted that uninjured, he would have completed successfully a transition (in progress when he was injured) from installing kitchens as a subcontractor to doing so more profitably as a principal contractor.  He could no longer do overhead work, etc.  Some months before trial, he had taken on employment with a cabinet maker as an estimator.  The trial judge said at [15]-[16]:

“This involves his spending a large part of his day sitting and working at a computer with his cervical spine flexed and it aggravates his headaches.  He deals with this by taking stretch breaks and analgesics.

The plaintiff’s future earning capacity is problematic.  He is obviously disadvantaged on the open labour market.  There must be a question mark over his ability to work a 40 hour or more week over the rest of his working life.”

Other Court of Appeal decisions relied on by Mr Webb were Campbell v Jones [2002] QCA 332, where a $30,000 “global assessment” for future economic loss was seen as “generous” ([17]), “higher than we would have awarded” ([66]), but survived the appeal (as did $27,500 general damages perhaps awarded “generously” – [62]), unlike the Griffiths v Kerkemeyer allowance, which was seen as claimed too late, (effectively in an ambush) and Perez v Holmes [2003] QCA 453, where general damages and economic loss components were reduced, but remained substantial.  Single judge decisions made available by Mr Webb were Taylor v Andersen [2004] QSC 106.  Aarts v Tillack [2004] QDC 321 and Venables v Gould [2001] QDC 320.  Taylor was relied on particularly, for the assessment of $40,000 general damages.  In addition to the whiplash injury to the  cervical spine, Mr Taylor suffered a rotator cuff injury to his right shoulder.  Dr Curtis attributed 3% impairment of the whole person to the former 8-10% to the latter.  In Venables, the judge found that but for his injury, the plaintiff would have successfully applied for a particular management position carrying greater responsibilities and remuneration with the law firm where she worked.  In all of these cases, the plaintiff has had the advantage of placing before the court a record of working successfully until the accident.  (Mr Aarts did not work for a period of three months shortly before, attributable to his relocation from Darwin to the Sunshine Coast.)  Ms Wallace is not in that situation.  Further, these plaintiffs were able to demonstrate a real commitment to continuing in work, having got themselves back to work.

27. [27]
    In Campbell (see [62]) the majority noted the conflicting medical evidence and said that “his Honour (perhaps generously) accepted the respondent’s evidence about his sufferings after the accident”.  It would be generousity to a fault to accept the plaintiff’s claim that there is no work she can realistically do.

28. [28]
    The lengthy written submission dated 13 December 2004 confirms that she is not asserting a complete inability to work, but a reduction in her capacity to undertake paid work, because those fields in which she is well qualified by her experience before she married are closed or difficult for her . As to that (and as to employment generally) the court is presented with her assessment, unsupported by any trial other than the desultory one at “Isobar” in May-June 2001. The notional loss relied on in the plaintiff’s claim is $240 per week, said to be based on net earnings of $10 per hour, when earnings as a full time bar attendant would have been much higher. I do not accept the proposition that bar work “is the one job … leaving aside the accident, she realistically could (and did in fact) obtain” – in light of her age and parental responsibilities. Mr Webb’s $150,000 contemplates working until age 59. To be brutal about it, this plaintiff’s difficulty is in persuading the court that uninjured, she would have begun working. Her apparent lack of application, coupled with her years of separation from the conventional workforce make it inappropriate for the court to embark on the conventional exercise of calculating a sum based on a notional weekly loss.

29. [29]
    The alternative is to make a “global assessment” as happened in some of Mr Webb’s authorities. Despite some misgivings about it, I have concluded the court should acknowledge the modest impairment of the plaintiff’s earning capacity flowing from the condition of her neck by a nominal provision of $5,000.00. This is not greatly out of line with the amount of $30,000 in Campbell which the Court of Appeal in Campbell thought high, if not appellably so.  The Further Submissions on behalf of the plaintiff showed Campbell was a supermarket employee 21 or 22 years old at trial with a 5% impairment.  She lost only a couple of days’ work, but had a “long working life ahead of her which is likely to be impaired by her neck injury ([17])”.  Whether Ms Wallace would have had a working life at all after her injury, had it not occurred, is relatively uncertain.  Ms Wallace’s work history before she married may or may not have been correctly described by Mr Webb as “excellent”. There are no tax returns or the like in evidence to show any particular earning capacity.

30. [30]
    It follows from the foregoing that the plaintiff has established no proper claim for future loss of income, although a nominal award is being made to acknowledge impaired capacity. As to the past, I propose to make an allowance of $10,000 inclusive of interest to reflect what the plaintiff might have lost because of the accident in the year or so immediately following it. I am not persuaded that any future treatment or medication the plaintiff might have can be linked to the accident. In the absence of medical or like opinion that the plaintiff needs it, I am not persuaded that she needs or will get an “orthopaedic chair” for which she has recently obtained a quotation of $1,727.

31. [31]
    As to past special damages, I accept those conceded by Mr O'Sullivan by reference to Exhibit 8 (see his “Quantum Schedule, Exhibit 24):

and also would allow a further $1,344 for 28 further physiotherapy consultations, to the end of November 2001.  By this time the frequency of attendances dropped markedly.  The abovementioned sum of $1495 was paid by the second defendant.  It appears to cover consultations to the end of June 2001.  It seems to me reasonable, given that the plaintiff at that time was embarked upon the protracted course of treatment which followed the “work trial”, and included the “Balance” program which the defendants funded, not to cut off the defendants’ responsibility suddenly at that point.  It appears to me that the only interest bearing special damages are medication, the $40 medical fee and travel.  Those are all the plaintiff has paid.  In 2003, the plaintiff commenced to pay Ms Stewart for physiotherapy services.  Ms Stewart is “carrying” her in respect of considerable outstanding fees for consultations the insurer would not cover.  She expects payment to be made when this proceeding is completed.  The court heard nothing to suggest that interest is being levied.  Other special damages cover amounts paid by the insurer or the HIC.  Interest on past specials is allowed at $200.

32. [32]
    I am not persuaded the Griffiths v Kerkemeyer claim ought to succeed at all.  The gratuitous services on which it is based were provided by the plaintiff’s mother after she moved to Queensland from Victoria, after 4 August 2002.  These were services to assist in keeping the household and family going, including cleaning, driving the children, and the like.  The plaintiff managed without such services for nearly two years following the accident.   I think it was a case of her mother offering help to make things easier for the plaintiff, not a case of provision of services that the plaintiff could not provide for herself.

33. [33]
    General damages for pain and suffering and loss of amenities are assessed at $20,000 which happens to be the same sum as in Windon v Edwards, Southport 381 of 2003, 10 December 2004, in which I had occasion to consider a range of comparable awards including that in Perez.  Interest should be allowed on $16,000, in the amount of $1,280.

34. [34]
    If my arithmetic is correct, of the above amounts the total is $42,190.15, from which must be subtracted $2,239.80 pursuant to s 51(9) of the Motor Accident Insurance Act 1994, leaving a balance of $39,850.35 for which it appears the plaintiff should have judgment against the defendants, with costs to be assessed on the appropriate scale, which may well be the Magistrates Court scale.  The parties will have the opportunity to make submissions before formal orders are made.