DISTRICT COURT OF QUEENSLAND

1. [1]
   The plaintiff, through her mother and litigation guardian, claims damages for personal injuries arising from a motor vehicle collision which occurred on 26 March 2010. Only quantum is in issue.

Background

2. [2]
   The plaintiff was born on 22 August 2000. She attended grades 1 to 7 at Woodcrest State College before undertaking grade 8 and part of grade 9 at Springfield Central State High School.  She has recently moved to New Zealand with her mother and brother and is continuing her education there.

The accident

3. [3]
   The plaintiff was a front seat, seat-belted passenger in the family’s Holden Commodore when it was struck from behind, whilst stationary, by the first defendant’s car. The plaintiff had no warning of the impending collision and was looking straight ahead at the time of impact. Her upper body moved forward and back as a result of the impact.^[1]  The first defendant’s vehicle had been travelling at 40 to 50 km/h although she braked heavily prior to impact.  The first defendant’s vehicle suffered some radiator damage, but both cars were able to be driven away after the collision.^[2]

Aftermath

4. [4]
   The plaintiff had “a bit of a sore neck and a headache” after the accident and said that she was “just not very well”.^[3]  She was taken to a doctor that day by her father and examined.  She said that on a scale of 0 to 10, she felt a level of pain at “about a 4” and that it was “not too bad, but still pain”.^[4]

What injury was suffered by the plaintiff in the accident?

5. [5]
   In her statement of claim, the plaintiff pleads that she suffered the following injuries:

1. (a)
   back injury;

2. (b)
   shoulder injuries;

3. (c)
   neck injury;

4. (d)
   headaches.

6. [6]
   There is no evidence (medical or otherwise) to support a finding that the plaintiff suffered a back injury or shoulder injuries.

7. [7]
   Insofar as the plaintiff’s claim for damages for headaches, the medical records make it clear that the plaintiff had regular headaches for three years prior to the accident, which were at one stage investigated by a CT scan. The plaintiff’s own evidence was that her headaches were unchanged as a consequence of the motor vehicle accident.^[5]

8. [8]
   The only remaining injury is a cervical spine injury. The defendants concede that the plaintiff suffered a soft tissue injury to the cervical spine as a result of the subject motor vehicle accident. The duration of that injury, and the extent of any residual accident-related symptoms, are in dispute.

Duration of cervical spine injury

9. [9]
   The plaintiff relied on the evidence of Dr John Pentis, Orthopaedic Surgeon, who saw and examined her in May 2012 and July 2014.^[6]

10. [10]
    The defendants relied on the evidence of Dr Simon Journeaux, Orthopaedic Surgeon, who saw and examined the plaintiff in August 2012 and July 2014.^[7]

11. [11]
    Both orthopaedic surgeons accept that there was an initial musculo-skeletal soft‑tissue injury to the cervical spine.  Their opinions differ however as to whether the plaintiff continues to suffer the ongoing effects of such an injury.  Dr Pentis is of the opinion that the plaintiff suffered a permanent injury, causing ongoing symptoms that will restrict her from the performance of heavy work involving heavy lifting and repetitive straining above shoulder level.^[8]

12. [12]
    Dr Journeaux is of the opinion that the plaintiff does not suffer ongoing effects of a soft-tissue injury.

The history of symptoms

13. [13]
    The plaintiff attended her general practitioner on the day of the accident and it was recorded that she had full range of motion of the neck and no muscle spasm. She was advised to return if her condition deteriorated.^[9]

14. [14]
    She attended that same surgery on four further occasions over the next few months for issues such as headaches, abdominal pain and a sore throat. No mention was made during any of those visits of any ongoing neck symptoms. There was no request for treatment of any ongoing condition or referral for investigations as to the cause of any ongoing symptoms.

15. [15]
    The plaintiff’s evidence was that, during this period of time, her symptoms were at a level of occasional discomfort (she rated this as 4 out of 10, which she described as “not too bad, but still pain”).^[10] Her symptoms were not sufficiently severe to warrant her (or her parents) mentioning them to the doctor when she attended for those other complaints.^[11]

16. [16]
    She did not have any days off school immediately after the accident; in fact her next day off school was 16 May 2010, when her GP records show she was suffering a sore throat.^[12] 

17. [17]
    It seems the plaintiff told Ms Ah Sam, her physical education teacher, about the motor vehicle accident, but did not present a note to excuse her from participation in physical education classes until August 2010, which in fact was said to relate to hip pain at that time.^[13]  The plaintiff participated in hip hop dance lessons for the rest of the year and said in evidence that she had no problems in that activity.^[14]

18. [18]
    The plaintiff’s mother, Mrs Lewin, prepared a Notice of Accident Claim Form to notify the CTP insurer of the claim in November 2010. In that document she stated that the plaintiff had been complaining of only intermittent discomfort, but “recently” had been complaining and crying daily with pain.^[15]

19. [19]
    That is consistent with the history recorded in the physiotherapy consultation of “neck was sore after accident; then got better but then got worse again over last few months”. That history came from Mr Lewin, who acknowledged that it was true.^[16]

20. [20]
    It is also consistent with the plaintiff’s recollection that her pain started to get worse at a later time, which she recalled as being at the start of grade 6.^[17] In fact, her GP and physiotherapy consultations would suggest that this occurred at the end of grade 5. 

21. [21]
    On the day of trial, the plaintiff’s pain was said to be at a level of 5 out of 10. She said it can go higher or lower, depending on activity, and sometimes it is at zero. She said that it is usually not bad at the start of the day when she is fresh. She also said that she relieves the pain by rolling her head, stretching, taking Panadol, Nurofen, applying heat packs and ice gel.^[18]

22. [22]
    The plaintiff said that in the last month the pain has become worse^[19] and that it has never completely gone away.^[20]

23. [23]
    The plaintiff also said that she does not notice a big difference turning her head left or right but notes that it is tense when she turns right. She also said that looking up can hurt but looking down causes no problems.^[21]

24. [24]
    The plaintiff said that she gets pain from running, sitting, prolonged looking down, writing and typing, and lifting and carrying items.^[22]  She also said that it hurts to vacuum, mow and do the laundry.^[23]  She said that bending and twisting do not cause problems.^[24]

25. [25]
    As already indicated, the plaintiff’s mother took the plaintiff to various medical appointments between April and October 2010. Mrs Lewin said that her daughter was complaining about a sore neck during that period^[25] and that she continues to complain to the present day.^[26]  Mrs Lewin said that she did not take her daughter to see a doctor because her husband had also been injured in the same accident and he ultimately required a back operation and that he was the focus of her attention during that time.  She also said that she herself had previously suffered a whiplash injury some years earlier and she knew from that experience that it can take months to settle.^[27]

26. [26]
    Mrs Lewin lodged a notice of claim form^[28] after the suggestion to do so was made to her by a doctor.

27. [27]
    The plaintiff’s father said that his daughter complained of neck pain after the accident on and off, depending on the activity she was undertaking.^[29]  He said that between March and October of 2010 the pain seemed to worsen.  He noted that she was using heat packs and medication and that she was ultimately taken to the doctor. He said that his daughter had put up with a certain amount of pain before it became intolerable.^[30]

Dr Pentis

28. [28]
    Dr Pentis assessed a 5% total impairment of the neck. In his report of 22 July 2014^[31] on page 3 he said that:

“[Britney] will be left with a weakness in her cervical region and it will affect specifically heavy lifting and repetitive straining above shoulder level, that is use of the upper limb girdle musculature.  It will affect strenuous sports to a degree and it will be trial and error for these long-term.  Work, it is probably best that she does sedentary work or light to moderate manual work.  No heavy work as she will have further problems.”

29. [29]
    Dr Pentis gave the following evidence:

1. (a)
   to diagnose a musculo-skeletal injury, one must examine the history of pain to determine whether it is consistent or inconsistent with that type of injury;^[32]

2. (b)
   a musculo-skeletal injury typically causes the most intense pain in the initial days or weeks after the injury, unless that pain is masked in the acute stages by another injury;^[33]

3. (c)
   most of the problems are in the first month or two, then the pain improves and “tends to oscillate”;^[34]

4. (d)
   it is possible that the plaintiff had done something to aggravate her neck to cause an escalation in her pain late in 2010.^[35]

30. [30]
    It is apparent from his reports that Dr Pentis had the impression that:

1. (a)
   the plaintiff had one to two weeks off school after the accident.  He agreed that this was important in forming his view about how serious the injury was, and that an absence from school for one to two weeks would indicate a more significant injury than one following which a person went straight back to school;^[36]

2. (b)
   the plaintiff had headaches, which he assumed were associated with her neck pain;^[37]

3. (c)
   the plaintiff returned to “some limited” participation in physical education classes^[38] and “decreased” her involvement in dance lessons in 2014;^[39]

4. (d)
   the plaintiff had x-rays and physiotherapy shortly after the accident for acute pain.^[40]

31. [31]
    Each of those assumptions was incorrect. The plaintiff in fact took no time off school following the accident. Her headaches were present for years before the accident and she did not limit her activities in PE classes after the accident nor did she decrease her involvement in dance lessons in 2014. Finally, she did not have x‑rays and physiotherapy until October 2010 and November 2010 respectively.

32. [32]
    It is also of relevance to note that Dr Pentis has not practiced orthopaedics since the early 1990s and he had no particular specialty in paediatric orthopaedics when he did practice.^[41]

Dr Journeaux

33. [33]
    Based upon the information provided to him Dr Journeaux categorised the impact as a “low velocity motor vehicle accident”, which he explained in evidence as contemplating a number of factors, including the acceptance that the first defendant’s vehicle was travelling at something less than 30-40kph at the time of impact.^[42]  I accept that this is an accurate categorisation given that:

1. (a)
   the first defendant was driving at a speed of 40-50kph but she applied the brakes of her vehicle “very hard” before impact;

2. (b)
   the plaintiff’s vehicle was not forced into the bus in front of it;

3. (c)
   both vehicles were driven away from the accident; and

4. (d)
   police were not called to the accident scene.

34. [34]
    Dr Journeaux considered that the plaintiff’s soft-tissue injury only lasted two to three months.^[43] 

35. [35]
    He said that 90% of whiplash injuries resolve in that time^[44] and that he believed that the plaintiff’s injury fell within that category.^[45]

36. [36]
    He considered that there were bio-psychosocial aspects at play.^[46]  He agreed that whiplash conditions fluctuate from day to day^[47] and that there is a difference between impairment and disability.^[48]

37. [37]
    The relevant factors for Dr Journeaux in formulating his opinion were the low velocity collision, the absence of medical treatment being required after the accident, the very little medical documentation of ongoing significant symptomology, physiotherapy records indicating that the pain went away and came back, a similar entry in the GP records and the high prevalence of neck and back pain in schoolchildren often being related to poor posture and the carrying of heavy backpacks in a non-ergonomic way.^[49]

38. [38]
    Insofar as the relevance of the carrying of a backpack is concerned, Dr Journeaux could not say that the plaintiff’s pain was caused by such an activity, but he said that it could be cause.^[50]  He agreed however, that it was possible that the initial cause was the impact and that wearing a backpack aggravated the injury.^[51]

39. [39]
    I note that Dr Journeaux is an experienced orthopaedic surgeon in both public and private practice at the Mater Health Services working at both the adult and children’s hospitals.

The plaintiff’s parents

40. [40]
    Mrs Lewin took the plaintiff to their GP in relation to neck pain in October 2010. This was the first medical appointment the plaintiff had regarding that issue since the visit to the doctor on the day of the accident. As has already been indicated, the plaintiff had other appointments with her GP during that time, but those appointments related to other health issues.

41. [41]
    Mrs Lewin said that her daughter was nevertheless complaining about a sore neck during the period from April to October 2010^[52] and that she continues to complain to the present day.^[53]  Mrs Lewin did not take the plaintiff to see a doctor about this issue during that time as her attention was more focussed on her husband (who had suffered a back injury in the accident) and because she knew from a prior whiplash injury that she had suffered many years earlier that such injuries can take months to heal and settle.^[54]

42. [42]
    She finally took her daughter to see a doctor in October because she was complaining more frequently of neck pain.

43. [43]
    On 12 November 2010 Mrs Lewin completed a Notice of Accident Claim Form in which she said:

“Brittney has shown some discomfort since the date of the accident – with a child at the age of 10 she carried on with life and complained only occasionally that she was sore – it has only been recently that she has been crying and complaining of a sore neck every day … .”^[55]

44. [44]
    Mrs Lewin confirmed in evidence that this was an accurate statement and that it was “probably around about August” when her daughter’s complaints became more frequent.^[56] 

45. [45]
    Mr Lewin described the impact to the rear of his vehicle as massive and unexpected.^[57]  He said that his daughter has complained of a sore neck “off and on” since the time of the accident until the present.  He said that the plaintiff’s neck was sore after the accident, then it “got better” before “getting worse again” some months later.^[58]  He cold not say whether the pain ever went away completely.^[59]

Medical records

46. [46]
    At the attendance on the day of the accident the GP (Dr Rahman) found a full range of movement and advised the plaintiff and her father to return if her condition deteriorated.^[60]  The next relevant consultation did not occur until 22 October 2010.^[61]  In the meantime, the plaintiff had attended for a number of unrelated conditions on 29 April 2010, 14 May 2010, 19 May 2010 and 26 July 2010.

47. [47]
    The plaintiff has not sought any medical treatment for her neck complaint since early 2012.

Conclusion

48. [48]
    Given the apparent improvement in the neck pain experienced by the plaintiff following the accident before a deterioration some five months later, the expert evidence of Doctors Pentis and Journeaux are of particular importance.

49. [49]
    Dr Pentis’ evidence however, demonstrated that he, at least in part, formed his opinions based on some factual inaccuracies, which were of significance.

50. [50]
    Those incorrect factual assumptions seriously erode the reliance that can be placed on Dr Pentis’ evidence. When that fact is considered together with Dr Journeaux’s more relevant expertise as a paediatric trauma surgeon, I have little hesitation in preferring Dr Journeaux’s evidence. Of course, his evidence must be considered in light of all other evidence. Most importantly in that regard is the evidence that the plaintiff allegedly continued to suffer some periodic discomfort from the neck injury for the months following the accident before it worsened. Whilst there is no evidence of any further trauma during that intervening period, I note that Dr Journeaux could not discount the possibility that simply carrying a school backpack may have caused an aggravation of the injury. However, in Dr Journeaux’s opinion, he considered it more likely than not that any continuing pain is the result of the combination of poor posture and non-ergonomic lifting and carrying of school books etcetera.  He said in his report of 10 July 2014:

“Britney Lewin, on the medical evidence, was involved in a motor vehicle accident on 26 March 2010.  The contemporaneous records do support an injury to the cervical spine which in my view was minor.  Clearly there was no requirement for emergency services.  In my view the claimant more likely than not made a significant recovery in respect of this injury and although one could make a case for ongoing symptoms being related to this motor vehicle accident, in my view and my experience of dealing with paediatric trauma this would be highly unlikely.

It should be noted that the claimant does demonstrate poor posture and interestingly on my review of her today she indicates that carrying school books, etcetera, aggravates her symptoms in relation to the cervical spine.  It is more likely than not that a combination of poor posture and non-ergonomic lifting and carrying by the claimant would be the contributing factor to current symptoms rather than the motor vehicle accident in March 2010.

I have reviewed the claimant’s school reports both at Woodcrest and Springfield Central State High School, and it would appear that she has been participating in HPE without any significant restriction.

In summary it is my view that the claimant’s current symptomatology is unrelated to the motor vehicle accident and more likely has a basis in constitutional factors and lifting school books etcetera.  She in my view has no functional incapacity related to this motor vehicle accident and nor will she in the future.”^[62]

51. [51]
    Evidence has been placed before the court as to the plaintiff’s level of participation in physical education and dance since the time of the accident to the present. I agree with Dr Journeaux’s assessment that material suggests that she has been able to participate in health and physical education without any significant restriction.

52. [52]
    In my view Dr Journeaux has taken all relevant considerations into account. Accordingly, I am not satisfied, on balance of probabilities, that the plaintiff’s current symptomatology is related to the motor vehicle accident. I accept Dr Journeaux’s evidence that the symptoms the plaintiff experienced arising from the accident settled within a period of two to three months and that she has no functional incapacity related to it and nor will she in the future.

Quantum

General damages

53. [53]
    Section 61 of the Civil Liability Act 2003 requires the court to assess an Injury Scale Value (“ISV”) for the injury.

54. [54]
    The Civil Liability Regulations 2014 prescribed rules for the court to assess the ISV for a particular injury, according to the table in Schedule 4.

55. [55]
    In my view the plaintiff’s injury most appropriately falls within Item 89 of Schedule 4, as a soft tissue or whiplash injury from which the injured person recovers. The ISV range under this category is 0-4, with an ISV “at or near the bottom of the range … appropriate if the injury will resolve without any ongoing symptoms within months after the injury is caused.”

56. [56]
    The defendant has submitted that if Dr Journeaux’s opinion is accepted then an ISV of 1 would be appropriate. I agree with that submission.

57. [57]
    This equates to general damages of $1,000.00.

Special damages

58. [58]
    The following special damages are admitted:

1. (a)
   travelling expenses $56.00;

2. (b)
   Medicare refund $249.60;

3. (c)
   treatment paid by the second defendant $1,065.00

59. [59]
    The defendants have also submitted that a modest additional amount should be allowed for several months of medication use and have suggested that such a sum should not exceed $100.00. Once again I agree with that submission.

60. [60]
    Total special damages should therefore be $1,470.60.

61. [61]
    The out of pocket amount is $156.00. The appropriate rate for interest is 1.8%.^[63]  Interest for 4.5 years is $12.64.

62. [62]
    The plaintiff should therefore be awarded damages totalling $2,483.24.

Damages that would have been awarded if the plaintiff’s ongoing symptoms were accident related

63. [63]
    Notwithstanding my conclusions above, it would nevertheless be prudent if I also assessed the damages which would otherwise have been awarded if it had been accepted that the plaintiff’s ongoing symptoms are accident related.

64. [64]
    The defendants have submitted that the evidence establishes that the ongoing symptoms suffered by the plaintiff are minor and are likely to improve as she ages. Reference was made to the following evidence of Dr Pentis on this point:

“In Brittney’s case, there is a prospect of further improvement in her pain as she approaches skeletal maturity and adult strength, isn’t there?‑‑ Well, you would hope, with time, you will improve.  Usually, most soft tissue injuries improve, one because they do, two, because as you get older, you’re brain realises there are certain things you shouldn’t do, so you tend to shy away subconsciously from doing those to aggravate the neck, and three, as you get really old, you do less silly things, and therefore, you are less likely to strain the region.“^[64]

65. [65]
    A short time later Dr Pentis gave the following evidence:

“You’ve said that, in your opinion, looking into the future, in Ms Lewin’s case, she should exercise common sense, use some gentle exercises, and occasionally, when needed, access simple analgesia?‑‑ Yes.  That’s probably the best treatment for her, unless you start having increasing problems and you do show signs of impingement on a nerve root, which I don’t think will appear in this case.”^[65]

66. [66]
    I note that the plaintiff has not consulted a doctor relevant to her neck pain since February 2012.^[66]

67. [67]
    She takes only occasional simple analgesia, once every one to two weeks, when her pain is severe^[67] and the medication relieves her symptoms within half an hour.^[68]

68. [68]
    I note that she chose to study the elective subject Dance, and participated in that during 2014 without her teacher noticing any impairment or restriction.^[69]

69. [69]
    She also participated in Physical Education this year, although she did present notes from time to time to the effect that she was unable to participate in certain lessons but there was nothing to suggest to her teacher that “there was serious injury there”.^[70] That teacher, Mr Bozhoff, observed however that the plaintiff performed at a substandard level insofar as her skill level was concerned,^[71] but otherwise had no significant limitations.^[72]

70. [70]
    I note also that the plaintiff joined a basketball team in 2012 and played all four games with her team. She said that on some occasions she felt some neck pain at half time but she nevertheless played the second half of every game. She acknowledged that she wouldn’t have played the second half of a game if she had been experiencing any significant problems with her neck.^[73]  Significantly, I note that the plaintiff gave no evidence of having avoided any particular activity as a consequence of her neck complaint.

71. [71]
    The defendants have submitted that the injury would therefore properly be classified as falling within Item 89 of the Civil Liability Regulations 2003, being a “whiplash injury with no ongoing symptoms, other than symptoms that are merely a nuisance.”  That item states that “an ISV at or near the top of the range will be appropriate if the injury, despite improvement, causes headaches and some ongoing pain.”

72. [72]
    Item 89 has a range of ISV’s from 0-4. The defendants have submitted that a rating at the top of that range that is an ISV of 4 would have been appropriate in the circumstances.

73. [73]
    On the other hand the plaintiff has submitted that she reduced her Health and Physical Education (‘HPE’) participation after the accident, that her pain is ongoing and prevents her full participation in sport and dancing activities and the probable explanation for a good result in dancing as opposed to health and physical education is her explanation is that she has difficulty with more strenuous activities, as she is a person who puts in full effort.

74. [74]
    The submission that the plaintiff reduced her HPE participation after the accident appears to be based on the evidence of her physical education teacher at the time, Ms Ah Sam, and the comments in her report card for that relevant period. Examination of that evidence however does not support the contention that she reduced her HPE participation.

75. [75]
    Ms Ah Sam gave the following evidence:

“Can I get you to compare for us the difference between pre-injury and post-injury in terms of participation?  And I’m talking about, well, the 2010 date you’ve just given?‑‑  Yes.  I think the participation declined over those years or over that period of time.  I think that can also be seen on her report card, from early 2010 to – what was it – semester 2 2011, where her participation dropped off a fair bit.

Do you have special recollections of her participating in sports during the course of those two years that you can tell us about now?‑‑  Not – in fact, in physical education lessons, I don’t have a huge recollection of her participation, no.“^[74]

76. [76]
    In cross-examination Ms Ah Sam said:

“Now, to your observations within your classes for the rest of 2010 and all of 2011, Brittney tended to participate in class fully, didn’t she?‑‑ When you say “fully”, what would you mean there?

Well, did she participate to the same extent as other children in the class who were of a similar physical aptitude to her?‑‑ Yes, she did partake in – in most lessons.

OK.  The occasions when she couldn’t participate, she generally gave you a note?‑‑  Yes, that is correct.

And those are the notes you’ve produced?‑‑  Yes, they are.“^[75]

77. [77]
    The plaintiff herself gave evidence that to the best of her recollection her participation in health and physical education after the accident was the same as it had been before the accident.^[76]

78. [78]
    Examination of the plaintiff’s school reports show that for HPE she consistently achieved grades of A or B for effort both prior to and subsequent to the accident date with the exception of the second semester 2011. In that semester she received a C for effort in that subject. I note though that in the following year she received As for effort in that subject in both semesters. Contrary to the evidence of Ms Ah Sam however the report cards^[77] do not in any way refer to the plaintiff’s frequency of participation in HPE classes.

79. [79]
    The only other evidence relevant to this topic were notes prepared by the plaintiff’s grandmother seeking the plaintiff’s excusal from physical education classes at different times. One dated 29 August 2011^[78] seeks the plaintiff’s excusal from PE classes as “she currently part of a CTP claim and has been receiving physico [sic]”.  That note sought her exclusion from PE classes “for a while at this stage”.

80. [80]
    Another note dated 4 October 2011 sought the plaintiff’s excusal from physical education and sports for the term “due to a neck injury which is still undergoing treatment”.^[79]  I note however that at that time the plaintiff was receiving treatment for an unrelated left-sided lump in her neck.  There is no evidence as to whether this note related to that issue or the neck complaint that is the subject of this trial.

81. [81]
    The plaintiff did say that grade 7 (2012) was the year during which she most frequently missed physical education classes or had the most breaks (inferentially as a consequence of her neck injury).^[80]

82. [82]
    Her physical education teacher for that year, Mr Kranen, did not however support that evidence. He graded her in each semester with an “A” for effort although he noted that her skill level in the context of team strategy and team awareness was poor.^[81]

83. [83]
    The effect of all this evidence is that any reduction in participation in health and physical education classes by the plaintiff after the accident was minimal at best.

84. [84]
    Insofar as sport and dance are concerned the plaintiff gave evidence that such activities can cause her neck pain to flare. She said that on some occasions she may need to sit out to allow the symptoms to settle.

85. [85]
    Taking all matters into account, the plaintiff has submitted that an ISV of 10 under Item 88 should be allowed.

86. [86]
    In my view, applying the principles set out in the regulations to the Civil Liability Act 2003, Item 89 most accurately reflects the plaintiff’s position and I agree with the defendant’s submission that an ISV of 4 would have been most appropriate.  That would have equated to an award for general damages of $4,000.00.

Expenses

87. [87]
    The defendants submitted that an amount of $702.30 plus interest of $14.70 would have been appropriate. The particulars of the amount are detailed in submissions and I need not repeat them here. I agree that these amounts would have been appropriate.

Future economic loss

88. [88]
    Even if I had accepted that the plaintiff’s current symptoms were accident related, I am not satisfied that she would be likely to suffer any future economic loss as a consequence. My reasons are:

1. (a)
   the likelihood of improvement in the plaintiff’s vocational capacity as she ages;^[82]

2. (b)
   the plaintiff anticipates undertaking tertiary studies and Mr Siebel, Occupational Therapist, felt that her academic performance was “on track” to gain tertiary entrance;^[83]

3. (c)
   the plaintiff is young enough to be able to direct her future career into an occupation that is physically suitable for her;

4. (d)
   Dr Pentis was of the opinion that the plaintiff will be able to undertake occupations such as teaching, journalism or graphic design.^[84]  He said that lighter work would be suitable and that she should follow the same advice as is apt for the general population – to take periodic breaks, stretch, and pay attention to her posture;^[85]

5. (e)
   though Dr Pentis considered the plaintiff might have difficulty working as a PE teacher, the plaintiff seemed to have no interest in that area; and

6. (f)
   Mr Siebel did not maintain in oral evidence the suggestion in his report that the plaintiff could not work as a teacher.  He said that she “could potentially”^[86] but went on to agree that, for an adult with the plaintiff’s level of symptomatology, “the restrictions can be accommodated in a fairly straightforward manner in the majority of schools”.^[87]

He stated that primary school teaching is more physically demanding than high school teaching.^[88]

89. [89]
    In my view, given her ambitions and academic potential, the plaintiff is unlikely to engage in manual employment of the type that Dr Pentis considered to be unsuitable. She is an academic student who is achieving well and aspires to undertake university studies after her schooling. There is no reason to think that she will be unable to realise that goal. Therefore, the only potential problem that could arise would be from prolonged sitting, and history has already shown that those symptoms can be alleviated by appropriate and simple measures, such as taking breaks, stretching, good posture and simple analgesia. Accordingly, in my view she is unlikely to suffer economic loss in any of the fields of employment she is likely to choose.

90. [90]
    Accordingly, the plaintiff has not satisfied the test in s 55 of the Civil Liability Act 2003 and no award would have been made for future economic loss.

Refunds

91. [91]
    The Medicare amount of $249.60 and the physiotherapy treatment amount of $1,065.00 is admitted.

Future paid care

92. [92]
    The plaintiff has submitted that an award for future paid care would have been appropriate. Mr Siebel assessed the current need for one to two hours of assistance per week. Of course, as the plaintiff acknowledged, that does not meet the threshold. The plaintiff submits however that courts have on occasions allowed a global amount for future paid care.^[89]  Accordingly, the plaintiff claims $2,100.00 which is said to represent 70 hours of assistance at $30.00 per hour, or about one hour per year.

93. [93]
    Given that the requirement for future paid care does not meet the threshold and the evidence of Mr Siebel that the plaintiff will likely be able to manage domestic tasks simply by pacing herself^[90] or exercising commonsense, an award for future care in this case would be inappropriate.

Future expenses

94. [94]
    The plaintiff has submitted that as Mr Siebel has recommended six to ten sessions with a paediatric exercise physiologist at $120.00 per session, then award in the range of $720.00 to $1,120.00 would be appropriate. Mr Siebel also recommended that the plaintiff be assessed by an occupational therapist at a cost of $1,500.00.

95. [95]
    I note however, that neither Dr Pentis nor Dr Journeaux recommended that the plaintiff undergo treatment by a paediatric exercise physiologist. In the absence of such a recommendation from either of those experts I am not satisfied that such treatment is necessary.

96. [96]
    Insofar as the need for an evaluation by an occupational therapist is concerned, given the plaintiff’s likelihood of achieving a university education, and the minimal impediment that her injury would occasion to her in any field of endeavour that she is likely to pursue, I am again not persuaded that such an evaluation is needed.

97. [97]
    Mr Siebel has also recommended that the plaintiff use an ergonomic chair, which is estimated will cost $550.00 and will need to be replaced every five years. The plaintiff, after discounting, claims $1,000.00 in that regard. She also claims a reading slope in the amount of $140.00 based upon Mr Siebel’s recommendation. That claim does not however take into account the fact that the plaintiff will require a desk chair irrespective of her injury. Given that she has managed with a non-ergonomic chair to the present time and that her symptoms, even on Dr Pentis’ evidence are likely to improve as she ages and that her symptoms can be alleviated with simple measures, I am not satisfied that an award for such a future cost is appropriate. The same reasoning applies to the claim relating to a reading slope.

98. [98]
    Finally the plaintiff claims a global allowance for future heat packs, hot water bottles, medication and treatment and travelling. She claims this at $5.00 per week for the next 70 years which totals $5,170.00 using the multiplier of 1,034.

99. [99]
    Precise calculation under this category is impossible, particularly given Dr Pentis’ evidence that the plaintiff’s symptoms should improve as she ages. Nevertheless, $5,170.00 seems extraordinarily excessive. In my view, doing the best I can, I would have allowed a sum of $1,000.00.

Summary

100. [100]
     Damages are assessed as follows:

1. (a)
   General damages - $1,000.00;

2. (b)
   Special damages - $1,470.60;

3. (c)
   Interest on $156.00 at 1.8% for 4.5 years - $12.64

Total $2,483.24

Order

1. I order judgment for the plaintiff in the amount of $2,483.24.

2. I will hear the parties as to costs.