Carvajal v Lamba

Plaintiff's version of the accident

1. The plaintiff said that she was driving from her parents' home, towards her own home in the Blue Mountains. The vehicle she was driving was a Mazda sedan. She had her small dog with her in the car. The dog was clipped into a harness in the back seat. The plaintiff was familiar with the area as she had grown up in that locale.
2. As the plaintiff was travelling along The Horsley Drive, she was in the right-hand lane, of two lanes. She was in the lane closest to the middle of the road. It was before 4.00pm so the road was not busy. The plaintiff said that she saw a white car on the opposite side of the road travelling towards her. The car had its right-hand blinker on, and turned in front of her. It then drove into a driveway on the plaintiff's left-hand side of the road. The white car then reversed out of the driveway and drove into the kerbside lane, facing in the same direction as the plaintiff. The plaintiff said that she was travelling at under 60kph.
3. The plaintiff observed the white car to come to a stop in the kerbside lane. She drove past that car, which was then on her left hand side. As she was travelling past the car she saw the movement of a white object on her left-hand side. She blew her horn, but her car was hit by the white car. She said that the white car hit the left-hand side of her car. The plaintiff said that her car "fishtailed" and she lost control and went to the opposite side of the road. Fortunately there was no traffic coming the other way. While still out of control her car then veered back to the left and hit the kerb and mounted it. The bonnet of her car then struck a utility parked on the nature strip, and her car was pinned underneath the tray of the utility.
4. The plaintiff got out of her car and spoke to the driver of the other car, saying: "Why did you hit me?" The other driver said "Why did you hit me from behind?" The plaintiff realised that there was a dispute as to the circumstances of the accident so she took a large number of photos on her mobile phone, showing the location of the accident and the damage to the two cars.
5. On a photograph of the location of the accident on The Horsley Drive, the plaintiff marked the position of her car and the other car before and after the collision (PX 3). The plaintiff tendered a booklet of photographs taken at the scene of the accident (PX 4) and a set of enlargements of those photographs (PX 5). On those enlarged photos, the plaintiff was directed to photograph P1, which showed extensive damage and dents to the left side of her car. She said that they were not there before the accident. The plaintiff said that she kept her car in good condition, and cleaned it once a week.
6. The plaintiff talked to the person who owned the utility. She called the police but they did not come. The fire brigade came and pulled her car out from underneath the tray of the utility. The plaintiff's partner drove her home.
7. In cross-examination the plaintiff was taken to an Accident Notification Form dated 26 August 2016. She was also taken to a Personal Injury Claim Form dated 11 November 2016. The plaintiff was also cross-examined about versions of the accident recorded in the reports of various medico-legal doctors.
8. It was put to the plaintiff that she had given different versions of the accident in the two forms and in a history to doctors. In particular, it was put to the plaintiff that she had not, in those descriptions, talked about the defendant coming in the opposite direction and driving across her path. Nor had she mentioned that her dog was in the car. I do not draw any adverse inference against the plaintiff because those matters were not in the descriptions of the accident about which she cross-examined. In the two forms which the plaintiff signed as true and correct, there was no reason to include those matters, as the forms only requested the description of what happened in the accident, and not the events leading up to it. So far as the histories recorded by doctors were concerned, there was no evidence as to whether those histories came from assumptions which the doctors were asked to make, or from what the plaintiff said to the doctors. In any event, what is recorded in the two forms, and what is recorded in the histories by the doctors, is completely consistent with the version of the accident given by the plaintiff in her sworn evidence.
9. In cross-examination the plaintiff was shown the photograph P10 from PX 5. Her attention was drawn to a black mark on the right-hand side of the rear bumper bar of the defendant's car. It was put to her that she had hit that part of the car from the rear. She denied this. It was also put to the plaintiff that the photograph P4 showed scraping damage to the side of her car, caused when her car contacted a metal fence which was shown in the background of the photograph. The plaintiff denied this and said that she never hit that fence. There was no evidence that she had. Finally, the plaintiff was shown the photograph P1 which demonstrated extensive damage to the passenger side of her car. It was suggested that this damage was pre-existing. The plaintiff denied this. There was no evidence that this damage was pre-existing.
10. The plaintiff's partner Mr Gudaitis gave evidence. He said that he was familiar with the appearance of the plaintiff's Mazda motor vehicle. He saw it daily in the driveway. He was in the habit of hosing both cars every afternoon, so he used to walk around the Mazda and thus he regularly observed it. The plaintiff was the one who washed her own car, but he used to service the car by changing the oil and water. He said that the car was "in perfect condition". He was shown photo P1 in PX 5 and said that those scratch marks were not there before the day of the accident.
11. Mr Gudaitis was not cross-examined about this evidence.

Defendant's version of the accident

1. The defendant said that she was driving a white Toyota Camry on The Horsley Drive at Smithfield heading towards Stimson Street. Stimson Street ran off to her left. When asked where she was coming from, the defendant said she could not recall. The defendant said that there were two lanes in her direction and that she was in the right hand lane. Her version was that she was never driving in an opposite direction to that of the plaintiff.
2. The defendant initially said that she did not see the plaintiff's car before the accident. She said that a car hit her from behind and then ran into a ute. The defendant said she got out of the car and started taking pictures. She called the police and a tow truck. She said the defendant had a puppy with her when she was out of the car. The defendant said that she told the plaintiff "You hit me from the back".
3. The defendant said that she was driving at under 40kph because it was a school zone. She said that her car was hit on the right-hand side at the rear, and that her car was pushed over the kerb and into a tree outside a house.
4. In cross-examination the defendant was asked where she was going on the day. She said that she was going to work in Stimson Street. There was no evidence as to where this workplace was. When asked where she was coming from, the defendant said that she could have been coming from her home in Parramatta, but that she could not recall where she was coming from on the day.
5. The defendant said that she saw the black car hitting her in the mirror. She said that in the mirror she could see the centre of the bonnet of the black car, inside the car, the steering wheel, the seats and the driver.
6. The defendant described the impact of the car running into the back of her as a "very hard hit". She said that the person driving the car was not within the speed limit.
7. The defendant had four photographs which she took at the scene of the accident (DX 4). In photo 4 the defendant identified a black mark at the right-hand rear of her bumper bar as the damage caused by the plaintiff running into her in the collision.
8. The defendant was cross-examined about whether or not she saw the black car before she was hit. She reiterated that she saw the black car in her mirror and that she could see inside the car. She gave evidence that she saw that the plaintiff, while driving the car, had her puppy in her hands. The defendant said that she saw this before the accident happened, presumably by looking in the mirror.
9. The defendant said that she was not preparing to turn left into Stimson Street when the accident occurred. She was still in the right-hand lane and had not moved to the left-hand lane. No evidence was presented about the distance between the site of the accident, and the next street on the left, which was Stimson Street.

Credibility and findings of fact on liability

1. The plaintiff impressed me as a careful and credible witness. Her version of the accident given in her evidence was consistent with all prior versions put forward in the documents, referred to above. The defendant also gave evidence about the accident consistent with the versions she had put forward on earlier occasions. However, there were certain features of her evidence which lead me to the conclusion that she was not a reliable witness. These are dealt with below.
2. The defendant gave evidence-in-chief that she was driving at a speed of under 40kph because she was in a school zone just before 4.00pm on a weekday. This allegation emerged for the first time in the defendant's evidence-in-chief. It was not a matter put to the plaintiff. The plaintiff had said that she was driving at 60kph. If the defendant had given instructions that it was a school zone and the speed limit was 40kph, this would have been put by counsel for the defendant, who ran the case in a very careful and thorough fashion. The fact that it was not put leads me to find that the defendant made that evidence up and that it is not credible.
3. There was no evidence of any school in the vicinity, so that there would be a 40kph school zone along The Horsley Drive in Smithfield. The defendant said that she was familiar with the area, and in fact that she worked in Stimson Street, which was the next side street on the left. She said that she drove to work regularly. When the defendant was asked where the school was, she twice repeated that she was in a school zone, but she could not say where there was a school. This too reflects poorly on the defendant's credibility.
4. The defendant gave evidence that she saw the car which hit her by looking in her rear view mirror just before the collision occurred. She said that she could see the centre of the bonnet of that car, inside the car, the steering wheel, the seats and the driver. In cross-examination she said that the plaintiff was holding her puppy in her hands while she was driving. The defendant said that she saw this in the mirror before the collision occurred. That is an extraordinary allegation, and is something which would have been put to the plaintiff in cross-examination. The fact that it was not put leads me to infer that the defendant made that evidence up during her cross-examination. It is another reason why I find her to be not a credible witness.
5. Most importantly, the objective evidence of the damage to both vehicles is completely consistent with the plaintiff's version of the accident and almost completely inconsistent with the defendant's version of the accident. The defendant said that it was a very hard hit from the rear. In spite of this, there is no evidence of any dent or other damage to the rear of the defendant's vehicle, apart from a small vertical black mark on the driver's side rear corner of the bumper bar of the defendant's car. If the defendant was hit hard in the rear, so as to knock her off her course, over a kerb and into a tree, there would have been much more significant damage to the rear of her car. There is no evidence which leads me to conclude that even the small black mark was caused by the plaintiff.
6. On the other hand, the extensive scratches and dents down the passenger side of the plaintiff's car are completely consistent with the plaintiff passing the defendant, who was stationary or moving slowing in the kerbside lane, but who swung to the right into the plaintiff's lane.
7. In cross-examination it was suggested that such marks were pre-existing. There was no evidence that they were. The plaintiff denied it. The plaintiff's partner denied that there were any pre-existing marks on the car, and his evidence in this regard was not challenged. The defendant of course could give no evidence that there were any pre-existing marks on the plaintiff's car.
8. I acknowledge that many judgments of the Court of Appeal caution trial judges against placing too much emphasis upon their own interpretation of photographs. However, I am of the view that the inferences to be drawn from the photographs are unequivocal. From the photographs of the damage to both vehicles, I conclude that the plaintiff's version was the more probable one. Such a finding is another reason for rejecting the defendant's version of the accident.
9. I make the following findings of fact: 1. Shortly before 4.00pm on 28 July 2016 the plaintiff was driving in the right-hand lane, of two lanes, along The Horsley Drive at Smithfield. 2. Ahead of her was a street which ran off to the left being Stimson Street. 3. The defendant drove her white Toyota Camry along The Horsley Drive at Smithfield in the opposite direction to the plaintiff. 4. The defendant turned across the plaintiff's path into a driveway, then reversed out of the driveway, and drove into the kerbside lane, now facing in the same direction as the plaintiff. 5. As the plaintiff was passing the defendant, travelling at 60kph, the defendant veered her car from the kerbside lane into the plaintiff's lane, nearest the centre of the road. 6. The driver's side of the defendant's car came into contact with the passenger side of the plaintiff's car, causing extensive scrapes and damage on that side of the car. 7. The plaintiff lost control of her car and veered into the oncoming lanes on The Horsley Drive, then swerved back towards the left, mounted the kerb and the front of her vehicle crashed into and underneath the tray of a utility parked on the nature strip. 8. The defendant's vehicle swerved to the left and mounted the kerb, flattening a bus stop sign and coming to rest against a tree.
10. I find that the accident happened in the way in which the plaintiff described the events. I reject the version of the accident put forward by the defendant, for the reasons set out above.
11. In those circumstances there was a breach of duty of care by the defendant, and the plaintiff is entitled to a finding of negligence against the defendant.
12. In the circumstances, where there are two diametrically opposed versions, and I have accepted the plaintiff's version, there is no room for the operation of the doctrine of contributory negligence. I find that there was no contributory negligence on the part of the plaintiff. Once her car was knocked violently off course by the defendant, she had no control and thus no opportunity to take any steps to avoid the collision and its aftermath.
13. There will be a judgment in favour of the plaintiff. I turn to the question of damages.

Plaintiff's evidence on damages

1. The plaintiff was born overseas in 1975 and came to Australia in 1983. She finished Year 12 in high school and worked as a receptionist for one year. From the ages of 21 to 43 she has worked in warehousing. She has driven forklifts, loaded and unloaded trucks, and done picking and packing. The plaintiff has had a forklift licence since 1997.
2. The plaintiff has worked at the same factory since 2002. Much of her work has been driving a forklift, although she has also done process work. The plaintiff worked night shift until she changed to the day shift at the end of 2016. There were fewer night shifts available and the plaintiff changed to the day shift to earn more money.
3. The plaintiff said that in 2012 she suffered an episode of lower back pain which resulted in left leg sciatic pain. She had physiotherapy and she said that her back came good after about six months of being painful. Other than that, the plaintiff said her health has been good although she suffers from endometriosis. The plaintiff lives with her partner and their dogs, in the Blue Mountains. She has a 4-bedroom house. The plaintiff used to mow the lawns before her car accident and she did most of the housework.
4. Objection was taken to this evidence being led. The plaintiff's claim for domestic assistance, as particularised, was for four hours per week, on a gratuitous basis. This is under the six hours per week threshold in s 141B of the Motor Accidents Compensation Act 1999 (NSW) (the Act).
5. The plaintiff said that when she was taken home after the accident, she ached in the front of her left shoulder. She had a constant cramp in her left upper chest area. On the Monday after the accident she went to her regular GP Dr Lee. He recommended physiotherapy and massage, and prescribed Tramadol, which is an opiate pain killer. The plaintiff said that she had taken Tramadol about once a month before the accident, for pain caused by endometriosis. Her consumption of Tramadol had increased and she was now taking four per day. She was also taking Nurofen and Voltaren. She said that she now took between four and six Voltaren tablets every day, particularly on days when she was working on a forklift, which were quite physical days.
6. The plaintiff went for a course of physiotherapy at Springwood which assisted her with the ache in her chest. She then changed to a different physiotherapist, for financial reasons. She still goes to physiotherapy, but not that often. She did go two weeks before the trial, but she had not been for six months before that. The plaintiff has a massage chair at home which she said helped with her pains. The plaintiff said that she felt better after physiotherapy, and that the ache and cramping in her chest went away for about two weeks before it started to cramp again. She said that if she had funds, she would go to physiotherapy every week. The plaintiff still does the exercises recommended by the physiotherapist, although not on a regular basis.
7. The plaintiff has seen a specialist Dr McKechnie, for her shoulder and neck. He sent her for an MRI and a nerve conduction study. He said that Cortisone injections to the shoulder might help, but the plaintiff said that she did not want this treatment as she had read that it was not always effective.
8. The plaintiff said that the pain in the left-hand side of her body had increased over time and caused more issues. When driving the forklift at work she now used her right arm to steer. She used to steer with her left hand, and use her right hand to operate the control levers. She could not extend her left arm as much as she used to. Using her left arm led to an increase in symptoms.
9. As previously recited, the plaintiff had changed to day shift to obtain more hours of work. She was a casual working for a labour hire company, even though she had been at the factory for many years. The plaintiff said that she worked about three to four days per week, but there could be some weeks when she only worked one day or no days. When driving the forklift the plaintiff had had to change her method of driving to use the right arm more. She said that she had not taken much time off work, as she did not want to knock work back.
10. The plaintiff said that on an eight hour shift driving the forklift, she would be operating the vehicle for about five of those hours. The vehicle was quite bouncy to drive. Before the motor vehicle accident she had no restrictions in driving a forklift, but after the accident she had to use her right hand to steer when she was reversing, rather than her left hand. The plaintiff said that she had tried to find other work, but that she wanted to stay at the same factory. She last tried looking for other work five years ago. The pay at her factory was quite good. She said that she was coping with that work, with pain killers. The plaintiff said that if she is offered five shifts a week, she sometimes knocks back a shift. She said that four days a week would be great, as she could manage that with pain killers. She could not do five days per week on the forklift. The plaintiff gave no evidence about how often she said no to a fifth shift per week, or when she had last done so.
11. In cross-examination the plaintiff was taken through a large volume of clinical notes from different practices where she had seen a general practitioner. It turned out that the plaintiff had a long and continuous history of seeking treatment for lower back pain. Further, she had been prescribed the drug Tramadol on a monthly basis for many years prior to the motor vehicle accident.
12. The plaintiff's partner Mr Gudaitis gave some short evidence about the plaintiff before and after the accident. He said that nowadays he could see if the plaintiff was in pain and that she got snappy with him when she was in pain. He massages her daily, and has found that the plaintiff cannot fall asleep when she is suffering with pain. Her pain is worse after being at work. It seems to get worse as the night wears on. When she is in pain the plaintiff does little, simply sitting in front of the TV. Prior to the motor vehicle accident the plaintiff was a very hands-on person around the house.
13. Mr Gudaitis was cross-examined as to whether the pain behaviour of the plaintiff was related to injuries suffered in the motor vehicle accident or the endometriosis. He acknowledged that there were different sites in the body where pain existed, and that when the plaintiff was complaining of pain in the shoulder and neck, that was related to the accident and not to the gynaecological condition. The pain caused by endometriosis was in the lower part of the plaintiff's body.

Medical evidence

1. I do not need to consider the medical evidence tendered by either side in any great detail, because of conclusions which I have reached, expressed below, concerning various heads of damage.
2. The plaintiff tendered the reports of her regular GP Dr Lee. She had been consulting him regularly for lower back pain and the prescription of Tramadol, prior to the accident. The plaintiff first saw Dr Lee after the accident on 1 August 2016 (PX 1, p 42) when the history was complaints of neck pain, back pain and headache. The plaintiff saw Dr Lee five days later on 6 August 2016, when the history was neck pain, shoulders, upper and lower back, knees on both sides and sleep disturbance. The plaintiff complained of a stiff neck and stiff shoulders. Shoulder pain was complained of again on 12 August 2016. There is no recording of shoulder pain at the next consultations on 10 September 2016, 14 October 2016, 4 November 2016 or 16 December 2016. On this last date the plaintiff was referred to Springwood Physiotherapy. The records of that physiotherapist (PX 1, p 117) show that the plaintiff on 2 November 2016 complained of head pain, neck pain, left knee pain, mid-back pain and lumbar pain. The physiotherapist recorded no complaint in relation to the left shoulder or the chest.
3. The records of Dr Lee do not disclose any complaints of shoulder problems prior to the accident.
4. The defendant tendered clinical notes from three other general practitioners who the plaintiff had seen before the accident. As previously recited, the plaintiff had for many years been attending doctors on a regular basis complaining of lumbar pain, for which Tramadol was prescribed.
5. In mid-2018 the plaintiff saw Dr McKechnie, a neurosurgeon. On examination he found a mild loss of range of movements particularly internal rotation of the left shoulder. There were no obvious neurological deficits. He referred the plaintiff for a MRI of the cervical spine and an MRI of the left shoulder.
6. These investigations resulted in the following conclusions (PX 1, p 106): 1. Lateral arch impingement. 2. Mild subacromial-subdeltoid bursal inflammation. 3. Focal severe tendonosis of the posterior supraspinatus and anterior infraspinatus with some bursal surface irregularity of the supraspinatus but no high grade cuff tear.
7. Dr McKechnie saw the plaintiff again on 24 July 2018, with the results of the MRI scans. He advised the plaintiff to continue physiotherapy and suggested that she could try CT guided Cortisone injections into the left shoulder (PX 1, p 108). Dr McKechnie referred the plaintiff to Dr Hassan, a consultant neurologist, for upper limb nerve studies. The study conducted by Dr Hassan (PX 1, p 101) showed: "Very minor abberrance of left ulnar nerve conduction at the elbow". There seems to have been no follow-up in relation to that test.
8. The plaintiff tendered the medico-legal report of Dr Harrison, an orthopaedic surgeon, dated 9 August 2018, (PX 1, p 1). On examination he took a history that the plaintiff was still getting neck, left shoulder and left elbow pain down the left forearm into the ulnar side of the hand. It is to be noted that the plaintiff gave no evidence about this later complaint. On examination Dr Harrison found a mildly positive left brachial stretch test that recreated some pain into the left shoulder from the base of the neck to the left hand. He found the plaintiff tender to touch around the ulnar nerve. Other examinations were essentially normal.
9. Dr Harrison found that the plaintiff had suffered a neck injury and had referred pain from her neck, over her upper chest wall anteriorly and more specifically into her non-dominant left upper limb. He thought that the plaintiff had exacerbated degenerative changes in the neck and back, but that the back had now settled down.
10. Dr Harrison offered the opinion that the plaintiff was likely to have an intermittent need for physical relief of aggravations of discomfort affecting her neck and left arm, by short courses of physiotherapy. This suggestion is dealt with in more detail below in relation to future out-of-pocket expenses.
11. Dr Harrison offered an opinion as to the effect of any injuries upon the plaintiff's work capacity. His opinions are referred to in more detail below in relation to economic loss.
12. The plaintiff also tendered the report of Dr Pierides, an occupational physician, dated 21 February 2019 (PX 1, p 15). Dr Pierides saw the plaintiff in 2017 and again in 2019, but the plaintiff only tendered the second report. Dr Pierides reviewed the MRI scan of the cervical spine and the MRI scan of the left shoulder. He said that "The changes on the MRI scan of the left shoulder are not traumatic". On examination he found a full range of movements in both the left and right shoulders. He noted that there was some discomfort on full elevation, and internal rotation, of the left shoulder. He thought that the early degenerative changes seen on the MRI scan of the left shoulder were "unrelated to the subject accident". Dr Pierides came to the view that: "all her subject accident related injuries have now resolved".
13. I accept the opinions of Dr Harrison and Dr McKechnie in relation to the plaintiff's continuing problems with her left shoulder and the left upper chest. The description of problems given to Dr Harrison and Dr McKechnie is exactly what the plaintiff said in her evidence-in-chief.
14. I reject the opinion of Dr Pierides that by the time he first saw her, and indeed when he saw her for a second time in 2019, all injuries from the accident had resolved. True it is that the MRI scan of the left shoulder showed degenerative changes. However, the contemporaneous medical evidence showed that the plaintiff had made no complaint to her regular GP of left shoulder problems prior to the motor vehicle accident, but made complaints about the left shoulder within a short period of time after the accident. These were soft tissue injuries, and it is unsurprising that she did not complain of the left shoulder on the first occasion she saw the GP, although she complained on subsequent occasions.
15. I am fortified in coming to my conclusion about the left shoulder because I have accepted the evidence of the plaintiff as a witness of truth regarding her complaints concerning the shoulder. I have also accepted the evidence of the plaintiff's partner about her pains and problems, particularly because he was not challenged in cross-examination. Even though the changes in the left shoulder are degenerative, on the evidence I find that the motor vehicle accident has caused those changes to become mildly symptomatic.
16. For reasons discussed below, the ongoing problems with the left shoulder will result in modest awards of damages for past and future out-of-pocket expenses.

Non-Economic loss

1. Pursuant to s 131 of the Act, no damages may be awarded for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%. The plaintiff has not been assessed as having a whole person impairment greater than 10%. An application for adjournment of the hearing, made on the second day of the trial, to enable a medical assessment to take place in July 2019, was refused. That is the subject of a separate judgment.
2. In the circumstances there can be no award for non-economic loss.

Gratuitous attendant care services

1. The plaintiff does not get over the threshold in s 141B of the Act, of six hours per week, for an award for gratuitous attendant care services. There will be no award for this head of damage.

Out-of-pocket expenses

1. The plaintiff put forward a figure of $3,195.36 (PX 6). The defendant submitted that it was not liable to pay any amount, because of the liability issue. I have found that issue against the defendant. As a secondary submission, the defendant submitted that the appropriate figure was $1,399.35 for reasons set out in DX 1. In summary, the defendant's submission was that Dr Pierides thought that the plaintiff had completely recovered by November 2017, so there were no expenses related to the accident after that date.
2. I have already indicated my reasons for rejecting the opinion of Dr Pierides that the plaintiff had completely recovered from her injuries by November 2017. In those circumstances I find that the plaintiff is entitled to damages for past out-of-pocket expenses in the amount of $3,195.36.
3. The plaintiff in submissions made a claim for future out-of-pocket expenses for $37,384.95 (MFI 11). Counsel for the plaintiff sought an award for 12 sessions of physiotherapy per year at $100 per session for the duration of the plaintiff's life expectancy.
4. While I have found that the plaintiff is still suffering from a symptomatic left shoulder and chest as a result of the accident, the medical evidence does not support an award of that magnitude. Dr Harrison (PX 1, p 8) thought that "3 to 6 visit sessions of physiotherapy per year over a couple of years would be reasonable and necessary treatment for her to deal with aggravations of discomfort". He thought that the physiotherapist could give the plaintiff "self-directed exercises". The cost of physiotherapy was said to be about $90 per session. The plaintiff's own evidence was that she went to a physiotherapist two weeks ago, but that it was six months before then that she went to the physiotherapist. The plaintiff said that if she could afford it, she would go every week. That wish is not supported by the medical evidence.
5. I will include in the damages five visits to a physiotherapist per year, at $90 per visit, for the next five years. I will not discount on the 5% tables, as the figures are only broad estimates in any event. The calculation is: $90 x 5 x 5 = $2,250.
6. The evidence shows that the plaintiff has been receiving monthly prescriptions for Tramadol for many years. In the years before the accident, the Tramadol was taken for pain associated with endometriosis. The prescription of Tramadol has not increased greatly since the accident. However, the plaintiff gave evidence which I accept that she has been taking Voltaren tablets on a regular basis, on days when she works on the forklift in her employment. There was no evidence put before the court as to the cost of this medication, which is a non-prescription drug. The claim for medication was put forward in MFI 11 as $10 per month for the duration of the plaintiff's life expectancy. The figure of $10 per month seems reasonable, even though there is no evidence at all on the point. As counsel for the plaintiff pointed out, any award should only be for the period of the plaintiff's working life, another 24 years. The 5% multiplier for 24 years is 737.8. There will have to be a discount for vicissitudes of 15%. The calculation is $2.50 x 737.8 x 0.85 = $1,568. The plaintiff does not need to go to the GP for the purpose of obtaining Voltaren tablets.
7. The award for future out-of-pocket expenses will therefore be $2,250 for physiotherapy and $1,568 for Voltaren tablets, a total of $3,818.

Economic loss

1. The plaintiff tendered a bundle of Notices of Assessment and some tax returns (PX 10). These showed that her gross income was as follows: Year Amount 2013 $18,240 2014 $13,943 2015 $10,151 2016 $21,754 2017 $27,007

1. The plaintiff's claim for past economic loss was confined by particulars (PX 2) to a claim for $330 per week for a period of 20 weeks, being a total of $6,400 (the mathematics is incorrect and that should be $6,600). The basis for such a claim was that the plaintiff said that she used to refuse about one shift a week, for which she earned $300, for the first 20 weeks after the accident.
2. The accident occurred on 28 July 2016. Thus one would expect to see a drop in income in the 2017 tax year. Instead, the plaintiff's gross income increased from $21,754 in the 2016 tax year, to $27,007 in the 2017 tax year.
3. When cross-examined, the plaintiff said that she could bring along records in relation to her shifts and her earnings. Apart from a bundle of payment advices (PX 11) which covered the period 25 March 2019 to 16 June 2019, no such documents were tendered. The documents in PX 11 were, in any event, irrelevant to the claim for past economic loss as particularised.
4. Counsel for the defendant pointed out in submissions that the plaintiff had said in the Accident Notification Form (DX 3, tab 1), the Personal Injury Claim Form (DX 1, tab 30), and to Dr Pierides (DX 1, tab 4) that she had not lost any time from work. Thus there is no evidence of any lost shifts in the 20 weeks after the accident, and indeed the plaintiff said in the documents referred to above that she had not lost any shifts. Given the matters referred to above, there will be no award for past economic loss.
5. For future loss of earning capacity, the claim was particularised as "a loss of earning capacity on the open labour market". The plaintiff's own evidence was that she did not wish to enter the open labour market. She was happy enough working at the factory, where she was paid relatively well for the work that she did. Since moving to day shift, she had been given more work than when she was on the night shift.
6. The claim for a diminution in earning capacity also runs into the problem of the opinion of Dr Harrison, whose report was tendered for the plaintiff. That report (PX 1, pp 8-9) contains the following: "12. Your opinion regarding the plaintiff's future work capacity? If the plaintiff's future work capacity has been diminished, please advise of any restrictions? That is unlikely to be diminished, notwithstanding the problems that have affected her. 13. Your opinion as to whether the plaintiff's working life has been curtailed by the injuries sustained in the subject accident. If so, please advise by how many years In my opinion, that is unlikely to be the case based on this assessment that I have made of her here today."
7. The plaintiff's own claim for diminution of earning capacity is vague in the extreme. Her claim for past economic loss is confined to a period of 20 weeks after the accident. That means that she makes no claim for past economic loss in the years 2017, 2018 or 2019 up to the date of trial. There is no evidence that her condition will deteriorate in the future.
8. The plaintiff's own medical evidence, coming from Dr Harrison, is that she has not suffered a diminution in her earning capacity. I find that there is no such diminution, and there will be no award for future loss of earning capacity, even on a buffer or cushion basis.

Conclusion and Orders

1. The plaintiff succeeds on liability and there is no reduction for contributory negligence. I assess damages as follows: Head of Damage Amount Non-economic loss Nil Gratuitous attendant care services Nil Past out-of-pocket expenses $3,195.36 Future out-of-pocket expenses $3,818.00 Past economic loss Nil Future loss of earning capacity Nil TOTAL $7,013.36

1. My orders are: 1. Judgment for the plaintiff against the defendant for $7,013.36. 2. Order the defendant to pay the plaintiff's costs. 3. Grant leave to the parties to approach my Associate within 7 days if either party seeks a different costs order.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 June 2019