JURISDICTION	:	DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION	:	PERTH

CITATION	:	HANSEN -v- MALLIA [1999] WADC 58

CORAM	:	O'BRIEN DCJ

HEARD	:	10, 11, 12 AUGUST 1999

DELIVERED	:	8 SEPTEMBER 1999

FILE NO/S	:	CIV 1670 of 1998

BETWEEN	:	ANTHONY MARK HANSEN
Plaintiff
 
AND
 
DONNA KAREN MALLIA
Defendant

Catchwords:
Personal injuries - Motor vehicle accident - Soft tissue injury to cervical spine - Nature, extent and consequences of injuries considered - Turns on own facts 
Legislation:
Motor Vehicle (Third Party Insurance) Act 1943
Result:
Damages awarded

Representation:
Counsel:
Plaintiff	:	Mr T N Cullity
Defendant	:	Mr J R Brooksby
Solicitors:
Plaintiff	:	Trewin Norman & Co
Defendant	:	Greenland Brooksby

Case(s) referred to in judgment(s):

Andjelic v Marsland (1996) 70 ALJR 435
Coleman v McDougall, unreported; DCt of WA; Library No 4412; 3 May 1995
Fabo v Craig, unreported; DCt of WA; Library No 5023; 12 August 1996
Grubor v Adornetto, unreported; DCt of WA; Library No 5030; 19 August 1996
Southgate v Waterford (1990) NSWLR 427

Case(s) also cited:

Thomas v O'Shea (1989) A Tort Rep 80-251

1	O'BRIEN DCJ:   On 12 June 1996 the plaintiff was a front seat passenger in a car driven by his friend.  The car was stationary in Rockingham Road at traffic lights.  Another car driven by the defendant drove into the back of it and pushed it forward into the car in front.  There was therefore an impact from behind and one in front.  
2		The plaintiff was injured in the accident.  Liability has been admitted.  The issue in this case is the extent of the plaintiff's injuries and the amount of damages.
3		The plaintiff was born on 13 July 1960 and was nearly 36 years old at the time of the accident.  He is now 39 years old.  He said that he has had one other car accident and that was when he was nine years old.  On that occasion he received a cut to the chin and blacked out for a time.  
4		The plaintiff testified that after the impact, he checked whether others were injured, secured the vehicle and went home.  At the time he felt no bodily injuries.  The next morning he said that he awoke in pain with headache and severe neck and shoulder pain.  He consulted his general practitioner, Dr Brad Cooper.   Thereafter, the plaintiff underwent physiotherapy on numerous occasions, saw an orthopaedic surgeon, radiologist and rehabilitation consultant.  He has been treated with medication, heat and massage therapy, undergone a bone scan and undertaken an exercise programme.  
5		The plaintiff claims that he is unfit for work as a result of the injuries received in the accident.  He says that his domestic and social activities have been restricted and he continues to suffer pain.  
Work History
6		The plaintiff left school half way through fourth year high school.  He joined the Army where he was a truck driver.  He was discharged from the Army in 1978 on compassionate grounds due to the illness of his two brothers.  In late 1978 or early 1979, the plaintiff was a cellarman at the Raffles Hotel for six months.  Thereafter he worked in various country towns in Western Australia and around Australia in a variety of jobs.  
7		From 1980 until about 1984, the plaintiff worked as an orderly in hospitals in the metropolitan and country areas.  These jobs involved patient handling, including lifting and bathing patients and, at times, also involved ward cleaning duties.  
8		The plaintiff then worked in Kalgoorlie, managing a liquor store for about 12 months.  
9		It appears from documentation tendered by the plaintiff, that in the three years prior to the accident, he worked for five separate employers for a period of about 50 weeks.  His occupations included factory hand, machine/plant operator and truck driver.  
10		The plaintiff's last job was as a truck driver for about a month in late 1995, early 1996.   The plaintiff has not worked since then.  He lost his driver's licence for nine months in April 1996 for an offence of driving under the influence of alcohol.  Although legally entitled to reinstate his driver's licence he has not done so.
Effects of the Accident
11		The plaintiff testified that for the first year and a half after the accident he tried to carry on as he did before the accident.  However, as his injury got worse, he was able to do less and less.  The plaintiff said that he now spends his days watching television and keeping his son amused.  He lives with his ex partner who does his cooking and washing.  He described her as his "carer".  The plaintiff said that he has not been shopping or visited friends for over a year.
12		The plaintiff's neighbours testified that they help him from time to time with household and other chores, particularly when his carer is on holidays.  These chores have included cleaning up the kitchen, fixing a car door and chasing escaped emus.  
13		Since 1997 the plaintiff has been on a disability pension.
14		The plaintiff testified that in the first six months after the accident he experienced pain in the neck and right shoulder.  When he got used to the neck pain he started to feel the back pain.  He first noticed the back pain in the middle of his back between his shoulder blades.  It has now moved about three inches lower to where his ribs run into his backbone.
15		The plaintiff testified that after physiotherapy, he felt movement was easier but the pain in his bones remained.  The plaintiff testified that his pain is now usually between the shoulder blades and occasionally lower towards the bottom of his ribs.  He experiences stiffness in the morning and wakes feeling as if his chest and shoulders have been pushed into the centre.  He also experiences pins and needles in his legs.  He has headaches three times a week on average.  If the headache persists for more than an hour he takes painkillers.  He said that he used to experience arm pain about three times a week but now it is always present.  The cold weather affects the severity of the pain.
16		The plaintiff testified that writing for any length of time causes pain in his right arm.  He was only able to testify as to one specific instance of this.
17		The plaintiff said that he experiences low back pain a minimum of once a week or fortnight.
18		Even though the plaintiff has not renewed his driver's licence, he has driven to and from various medical appointments.  He said that even travelling short distances in a car causes his shoulder and back to hurt after five to ten minutes.  It also causes headaches.
Medical Evidence
19		The day after the accident, the plaintiff was seen by Dr Cooper, his general practitioner.  Dr Li Green took over Dr Cooper's practice and was the doctor who provided the medical reports in support of the plaintiff's case.  Dr Cooper ordered x-rays of the cervical spine which were taken on 14 June 1996.  These suggested previous trauma to the upper anterior and plate of C4.  
20		Dr Cooper referred the plaintiff to Mr Robert McWilliam, an orthopaedic surgeon.  Dr Li Green saw the plaintiff on a number of occasions from 17 April 1997 until April 1998.  
21		When the plaintiff initially presented to Dr Cooper, his main areas of complaint centred around the neck, although he complained from time to time of pain in the right shoulder.  Dr Li Green's report indicates that the plaintiff's neck and shoulder pain persisted although he reported that he did have his "good and bad days".  Dr Li Green reported that when he saw the plaintiff in April 1998 his general condition had been stable.   The plaintiff told Dr Li Green that he had noticed some improvement in his symptoms with anti-inflammatory gel and when seen on 16 July 1997, he reported as feeling "75 per cent better".   Dr Li Green was of the view that the plaintiff's condition will improve over the next few years.
22		Dr Li Green noted the results of the physical work performance evaluation done by the Commonwealth Rehabilitation Service on 20 October 1997.  That evaluation was not in evidence and I shall make comment about that later.  On the basis of that evaluation, Dr Li Green agreed with the findings that the plaintiff was capable of sustaining a medium level of work for an eight-hour day and that in his view the plaintiff could undertake his pre-accident work as a truck driver.
Mr Robert McWilliam
23		Mr McWilliam first saw the plaintiff on 14 March 1997.  His view of the x-rays was that they showed some evidence of deformity of the upper end plate of C4 and some narrowing at the C5/6 which is the point of maximum movement of the neck.  Most importantly from Mr McWilliam's point of view, the invertebral foramina were patent.  Mr McWilliam noted that when he saw the plaintiff first he had quite a good range of neck movement although with some pain at the extremes of movement.  He had a normal range of shoulder movement with no evidence of wasting in the shoulders.  There was no weakness in the handgrip on either side and he had a good range of thoraco-lumbar without neurological deficit in the lower limbs.  Mr McWilliam recommended a bone scan to determine the extent of any facetal joint arthropathy but doubted at that stage if there was anything further in the way of medical treatment apart from the use of mild analgesics and anti-inflammatory medication as required. 
24		The bone scan ordered by Mr McWilliam indicated "only minimal uptake at multiple levels in the cervical spine".
25		When Mr McWilliam saw the plaintiff in September 1997 he was of the view that the development of symptoms in the mid-dorsal spine may well be related to the accident, even though they developed some months after the original accident.  He recommended a further course of physical therapy and x‑rays of the thoracic spine.  
26		On review of the x-rays of the thoracic spine, Mr McWilliam noted the presence of a lower thoracic scoliosis convex to the right with minor degenerative changes.  His view was that there was some aggravation of underlying degenerative change as a result of the accident.  He reiterated his advice of an exercise and swimming programme.  
27		Mr McWilliam reviewed the plaintiff again in December 1997 and his symptoms had not improved.   However, Mr McWilliam was of the view that the plaintiff's condition was stable and considered that he would be able to return to competitive employment.  However, he noted that given the neck sprain, the plaintiff would be prone to continuing problems and although they may improve, these problems are likely to persist indefinitely in the future and if alternative employment could be arranged then this would be in the plaintiff's interests.  At that stage, the plaintiff was complaining of occasional headaches which Mr McWilliam attributed directly to the accident.  He classified the plaintiff's injury as one of mild to moderate severity.  
28		Mr McWilliam was of the view that working as a truck driver is likely to aggravate the plaintiff's neck and alternative employment which did not expose his neck to repeated jolting would be much more suitable for him.
29		When Mr McWilliam saw the plaintiff in February 1998 it appeared that the plaintiff's symptoms were getting worse rather than better.  At that stage, Mr McWilliam was still of the view that the plaintiff could return to "alternative employment" and would be able to continue with this through to the normal retiring age.  
30		Mr McWilliam was of the view that the complaint of back pain increasing and extending from the dorsal region down into the lumbar region as reported by the plaintiff in February 1998 could not reasonably be related to the accident, if indeed back pain did not develop until about six months after the accident.  
31		In February 1999 Mr McWilliam was of the view that the plaintiff's condition had reached a plateau.  The plaintiff complained of experiencing constant pressure in the back of the neck which becomes pain on certain movements, and especially at the end of the day when he becomes tense and tired.  Again, Mr McWilliam was of the view that the plaintiff's condition was at that time stable.  He expected that the plaintiff would be able to return to duties of an orderly on a full-time basis until the normal retiring age.  However, he repeated his view that any person with a neck injury who has continuing symptoms will find that driving a truck or motor vehicle may exacerbate those symptoms.  
Dr Robert Houston 
32		Dr Houston first saw the plaintiff in May 1998 after he had been referred by his physiotherapist.  Dr Houston said that it would appear that the plaintiff's condition deteriorated towards the end of 1997.  When Dr Houston reviewed the plaintiff in September 1998 he noted that physiotherapy aggravated the plaintiff's headaches.  He discussed with him the possibility of facet joint injections but the plaintiff was not keen to go ahead with that therapy.  The plaintiff requested a soft collar to assist him in driving as he reported that he developed pain after approximately 15 minutes in a vehicle.  
33		Dr Houston reviewed the plaintiff in March 1999 when the plaintiff complained of noticing discomfort increasing after five minutes driving his vehicle.  He also complained of persistent prominent lower thoracic pain which had remained unchanged since Dr Houston saw the plaintiff in November 1998.  
34		Dr Houston was of the view that the plaintiff was fit at that stage for non-labouring duties but driving to and from work would "be a definite problem".  He was of the view that the plaintiff was clearly not fit for his previous occupation in the truck driving industry or as a lifting orderly.  
35		It appears that Dr Houston last reviewed the plaintiff in April 1999 when he referred the plaintiff back to Mr McWilliam.
36		Dr Houston was of the view that given that the plaintiff continued to suffer significant problems three years after his accident, he anticipated that the plaintiff will have prolonged discomfort in both the neck and thoracic area and would require intermittent anti-inflammatory medication, analgesia and possibly physical therapy.  He reiterated his view that the plaintiff will not be capable of any labouring occupations, particularly those involving stretching and lifting, bending and working overhead.
Mr Frank Bell
37		The defendant's insurer arranged for the plaintiff to see Mr Bell, an orthopaedic surgeon, in December 1997.  Mr Bell noted that the posture of the plaintiff's head and neck were normal.  He had some tenderness about the fourth, fifth and sixth cervical spinus processes and about the right C5/6th facet joint.  Movements of the plaintiff's neck were normal.  The plaintiff complained of pain radiating into the right shoulder and arm on pressure over the C5/6th facet joint.  Shoulder movements were also normal.  Reflexes, power and sensation were normal.  
38		Mr Bell was of the view that the plaintiff did not have a great deal in the way of hard physical science to support his complaints.  He considered that the pain in the right shoulder and arm stemmed from the right C5/6th facet joint and most probably injection of that joint under local anaesthetic by a qualified radiologist would resolve the pain.  Mr Bell said the thoracic spine pain which developed some six months following the accident is "almost certainly referred" pain.  Mr Bell was of the view at that stage that the plaintiff could undertake his pre-accident work as a truck driver and if he underwent facet joint injection then he "could return to any job, labouring or otherwise".  
39		Mr Bell saw the plaintiff again in November 1998.  He was complaining of headaches, neck pain, pain radiating into his right shoulder and down the back of his arm to the elbow, occasional pain in the left shoulder, occasional pain in the thoracic spine which had occurred over the last year. 
40		Mr Bell was not able to find a great deal of physical signs to explain the plaintiff's continued symptoms.  He discussed returning to truck driving with the plaintiff but the plaintiff was of the view that because the pain in his head prevented him from turning his head through a normal range of movement he would be unable to do that.  When it was pointed out to the plaintiff that he did have a normal range of movement, the plaintiff complained that it was painful when he turned his head from one side to the other.  Other employment, such as security guard, courier driver, factory work, storeman and so on, were discussed with the plaintiff.  However, the plaintiff replied that he was unable to stand in one spot for long and that his neck troubled him so much that he had to go to bed.  
41		Mr Bell doubted the genuineness of the plaintiff's complaints about his symptoms.  
Mr John Ker
42		The plaintiff was assessed by Mr John Ker, a consultant physician in rehabilitation medicine in June 1999.  The plaintiff complained of painful restriction of neck movements, intermittent headaches, radiation of pain from the neck to both shoulders and more particularly the radiation of pain into the proximal right upper limb.  Mr Ker was of the view that these symptoms appeared to have their origins in the motor vehicle accident of 12 June 1996.  His opinion was that the evidence of pain radiation into the upper limbs in particular would suggest pain of musculo-ligamentous origin.  Given that the plaintiff had intrusive cervical and upper thoracic pain for a period in excess of three years combined with the presence of minor degenerative change, Mr Ker was of the view that the plaintiff was unlikely in the future to get complete resolution of his symptoms.  
43		Mr Ker was also of the view that given the plaintiff had not worked for three years since the accident and that there appeared to be no immediate prospect that he would return to work, there was a very real concern that the plaintiff's working life had been shortened by the accident induced injuries.  However, he was of the view that if suitable light work was found that the plaintiff would have some opportunity of again undertaking useful employment.
44		However, Mr Ker was of the view that the plaintiff was unable to resume any of his pre-accident occupations.
Commonwealth Rehabilitation Service
45		The plaintiff admitted that he had undergone a physical work performance evaluation through the Commonwealth Rehabilitation Service ("CRS").  No report from the CRS was in evidence.  However, Dr Li Green refers to the physical work performance evaluation which was performed by CRS on 20 October 1997.  In his report, Dr Li Green reports the findings of the evaluation, being that the plaintiff was able to complete the three and a half hour evaluation without added rest periods.  It was concluded from the evaluation that the plaintiff was capable of sustaining a medium level of work for an eight hour day.  Dr Li Green said he "would tend to confirm these findings and believed that [the plaintiff] could undertake his pre-accident work as a truck driver".  
Findings as to effects of the accident
46		I have no doubt that the injuries suffered by the plaintiff in the accident have prevented him from engaging in his pre‑accident employment in any of the various occupations he has recently undertaken.  The question is for how long has he been incapacitated?  The CRS did assess his ability to return to work.  That report was available to the plaintiff could have formed part of the plaintiff’s case had it been favourable to him.  The fact that the plaintiff expressly declined to tender the report, causes me to infer that it was not favourable to his case in so far as it relates to his inability to work because of his injuries.
47		The report was prepared in October 1997.  I have some evidence of its findings as outlined in Dr Li Green’s report which also support the inference I have drawn about the results of the CRS’s assessment.  The plaintiff did not directly challenge those findings although he did testify that he is totally unfit to resume his pre‑accident employment even at the date of trial.  Notwithstanding the support for this position in the evidence of Mr Ker and Mr McWilliam, I am of the view that at least by October 1997 the plaintiff was fit for “light duties”.
48		The defendant submitted that the plaintiff has exaggerated his symptoms and the effects of his injuries.  He points to the plaintiff’s evidence about pain when writing, the headaches and the limited drug therapy to combat the pain and his virtually unrestricted neck movement which appears to be inconsistent with the limitations the plaintiff says he now experiences.  To that list, I add the evidence of Mr Bell who suggested a range of occupations with the plaintiff who raised objections to all and who said in evidence that although he would love to return to work, he cannot see himself doing so because of the pain he suffers.
49		I do not find that the plaintiff has deliberately exaggerated his limitations in an attempt to obtain a greater award of damages or to stay on the pension.  However, Mr McWilliam said that he may well have pain but that of itself does not mean that he should not attempt some work.  There is merit in that view.  Further, the longer the plaintiff avoids physical exercise and attempting work, the more entrenched his real and perceived incapacities are likely to be.
Non pecuniary loss
50		I am satisfied that the plaintiff has suffered accident caused pain in his neck and arm.  The thoracic pain which the plaintiff developed six months or so after the accident was in Mr Bell’s view “almost certainly referred” pain.  Mr McWilliam doubted if that pain could be related to the accident.  In any event, the thoracic pain is occasional and not the focus of the plaintiff’s complaints about his physical condition.  The plaintiff says that he still experiences the pain in his neck and arm and that it prevents him not only from working but also from doing various household chores.  For the latter he relies upon the help of his former partner.  On his account, the plaintiff appears to engage in no physical activity and is virtually house‑bound because of the effects of the accident.  This flies in the face of most of the medical evidence which is to the effect that the plaintiff is at the very least fit for light duties and should be making some attempt to exercise and obtain work to mitigate his condition.  The plaintiff will continue to suffer a degree of pain for some time to come.  I cannot predict for how long.  Suffice to say that his condition will improve.
51		Section 3C(2) of the Motor Vehicle (Third Party Insurance) Act 1943 provides that “the amount of damages to be awarded for non‑pecuniary loss is to be a proportion determined according to the security of the non‑pecuniary loss, of the maximum amount that may be awarded”.  The maximum amount is currently $219,000 (s3C(3) see Government Gazette 22 June 1999).
52		To arrive at an award for non‑pecuniary loss, it is necessary in the first instance to determine what proportion (ie percentage) the plaintiff’s claim is of $219,000 rather than making an assessment of a pecuniary amount and treating that as a proportion of the $219,000 (Southgate v Waterford (1990) NSWLR 427 at 440E‑441F approved in Andjelic v Marsland (1996) 70 ALJR 435 and as applied, for example, in Coleman v McDougall, unreported; DCt of WA; Library No 4412; 3 May 1995; Fabo v Craig, unreported; DCt of WA; Library No 5023; 12 August 1996; and Grubor v Adornetto, unreported; DCt of WA; Library No 5030; 19 August 1996).
53		I assess the percentage of the maximum amount payable under the Act for the most extreme case at 6.5 per cent.  The net amount I award for non‑pecuniary loss is therefore $14,235.  As this amount is more than $10,500 (AMOUNT B) but less than $33,000 (AMOUNT C) the plaintiff is entitled to the excess of the amount so assessed over $10,500 (AMOUNT B) (s3C(5)).
54		Accordingly, the net amount of damages for non‑pecuniary loss is $3,735.
Past economic loss
55		The plaintiff claimed the sum of $25,000 for past economic loss being loss of wages for three years less 20 per cent for income tax.  Given the plaintiff’s work history in the three years preceding the accident, it is most unlikely that he would have held down any long term job.  Further, as he had lost his driver’s licence in April 1996 for 9 months, he certainly would not have been able to obtain work as a truck driver (absent the successful application for an extraordinary license).  The plaintiff had not worked as an orderly since 1984.  This seems to have been the occupation he pursued for any length of time since leaving the army.  It is difficult to come to any reasonably certain view as to what, it any, employment the plaintiff would have obtained had he been fit enough to work.  The plaintiff has made no attempt to obtain employment of any form whatsoever since his accident.
56		However, he is a man who has experience working as a truck driver, an orderly and in other occupations.  Given my findings in relation to the effects of his injuries on his capacity to work in these types of occupations; his work history; the fact that he was prevented from working as a driver due to the loss of his licence; the fact that he has not looked for employment of any kind since his accident; and the limited information as to the findings of the CSR evaluation, I am only prepared to award loss of wages for a period of 18 months.  I do not refer to any wages award to fix the sum, as I have no idea what sort of work the plaintiff might have found but for his accident.  Rather, I have averaged the plaintiff’s earnings over the three years prior to the accident to a weekly amount of $128.00 after tax.  Therefore for past economic loss the award is calculated as follows:
72 weeks @ $128 per week	=	$9,216.00
Future loss of earning capacity
57		I have found that from October 1997 the plaintiff was fit for light duties.  The evidence of Mr Bell and Dr Li Green is to the effect that the plaintiff is now fit to return to his pre‑accident employment either as an orderly or as a truck driver.  Even if I were to accept that evidence, in my view it is unrealistic to expect that employment will be readily available to him.  I say this given that the plaintiff still suffers pain, is virtually unskilled, has not worked for nearly three and half years (18 months being directly attributable to the injuries he received in the accident) and will need assistance is assimilating back into the work force.  I cannot predict with any certainty when the plaintiff will obtain employment or what sort of employment he might find given there is no long term established pattern of employment.  The best I can do is to come to a reasonable assessment of his prospects given the above‑mentioned factors.  In all of the circumstances, I am prepared to award damages for loss of future earning capacity in the global sum of $10,000.
58		There is little cogent evidence as to the medical and/or physiotherapy treatment the plaintiff will require in the future for his accident related injuries.  I award a nominal sum of $300.00, calculated as follows:
4 visits to general practitioners for one year at $35 per visit ($140.00)
4 visits to physiotherapist for one year $40 per visit ($160.00)
59		The plaintiff received treatment from a physiotherapist on 37 occasions from 4 May 1998 until 28 October 1998.  The treatment relieved his muscle pain and facilitated movement but otherwise was of no long term benefit.  In my view, the treatment was reasonable as it was recommended by Dr Houston.  I award the plaintiff the sum of $1480 (37 consultations at $40.00 each).
Summary of damages award
Non pecuniary loss				$  3,735.00
Past pecuniary loss				$  9,216.00
Past physiotherapy				$  1,480.00
Future loss of earnings			$10,000.00
Future medical costs			$     300.00
	Total				$24,731.00