Judgment for the plaintiff in the sum of $184 591.90.

DAMAGES - personal injury - motor vehicle accident - injuries to spine - pre-existing degenerative condition in spine - reasonableness of ongoing chiropractic treatment - causation in relation to economic loss and domestic assistance

Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638

Mohammed v Onsite Formwork Pty Ltd [2015] ACTSC 416; (2015) 305 FLR 302

Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164

Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208

Sharman v Evans [1977] HCA 8; (1977) 138 CLR 563

Rendell v Todd [2012] ACTSC 68

Wainwright v Lee [2013] ACTSC 191

Insurance Australia Limited t/as NRMA Insurance (Second Defendant)

1. The plaintiff claims damages for injuries sustained in a motor vehicle accident. On 25 August 2011 the plaintiff was driving to work at the Canberra Hospital. When her vehicle was stationary in Yamba Drive and the plaintiff was preparing to turn left into Hindmarsh Drive, a vehicle driven by Mr Sainsbury collided with the rear of her vehicle, pushing it well into the intersection. Insurance Australia Ltd trading as NRMA Insurance, Mr Sainsbury's compulsory third-party insurer, has admitted liability.

2. Prior to the accident, the plaintiff suffered from degeneration in her spine which was symptomatic at all levels. Periodically, she also experienced tinnitus and vertigo. Since 2009, Mr Barritt, a chiropractor, had provided extensive treatment to the plaintiff.

3. The accident aggravated the plaintiff's pre-existing back condition. After the accident, she was treated by Mr Barritt, as well as other health care providers. Mr Barritt remains the main treatment provider.

In relation to the assessment of damages, the principal issues are:

(a) The extent to which the accident aggravated the plaintiff's pre-existing back problems and the course that her underlying condition would have taken if the accident had not occurred.

(b) The utility of treatment provided by Mr Barritt and whether it has been reasonable for the plaintiff to continue with that treatment.

(c) The extent to which any past and future economic loss can be attributed to the accident.

(d) The extent to which any requirement for domestic assistance can be attributed to the accident and the quantification of domestic assistance.

4. At the time of the accident, the plaintiff was 54 years old. She is now 59 years old. She resides at Queanbeyan with her husband of 35 years. For many years before the accident, the plaintiff worked two days a week as a permanent part-time registered nurse at the Canberra Hospital, working the evening shift. She shouldered the majority of domestic and family responsibilities. Her husband was (and remains) a full-time teacher/librarian. The plaintiff and her husband lived on a 10 hectare hobby farm on which they ran a few cattle.

5. In 2014, the plaintiff and her husband moved to a suburban residence in Queanbeyan where they lived with her mother-in-law until her passing in 2015.

6. The couple has three adult children, the youngest of whom is now 29 years old. From time to time, their adult children have lived with them.

7. The plaintiff was a credible witness. She presented as an intelligent and earnest woman who was genuinely attempting to provide accurate answers to questions. Her demeanour was consistent with someone who was significantly stressed, not only by the litigation but also by pain. She has always acknowledged a significant pre-accident history of back problems.

8. The manner in which the plaintiff was cross-examined was in the nature of an exploration of the plaintiff's evidence and implied an acceptance by the defendants that, in general, the plaintiff's evidence should be accepted.

9. Mr Sutton, a psychologist who provided a medico-legal report for the plaintiff, stated that there was no clinical psychopathology arising from the accident, including no emotional embellishment of pain experience, and no maladaptive behaviours that would reinforce a pain syndrome. He was not cross-examined. His opinion was consistent with my observations of the plaintiff as a witness.

10. I proceed on the basis that the plaintiff gave honest evidence about her experience of back pain and about its impact on her activities before and after the accident.

11. The plaintiff said that, prior to the accident, she had a long history of neck symptoms, which were intermittent and of variable severity. She recalled that the symptoms had been "irritating from time to time".

12. The plaintiff acknowledged a pre-accident history of pain in her thoracic and lumbar spines. At times, an aching back had made her tired. There had been occasions when lumbar pain had caused her to rest for a few days. For example, she would need to rest after a long flight. However, in contrast to the position after the accident, her symptoms were neither constant nor debilitating.

13. In April 2005, the plaintiff consulted Dr Mirpuri, a general practitioner, complaining of several months of neck and shoulder pain, painful joints in her wrist and fingers and stiffness but no other symptoms. She was referred for x-rays of her cervical spine and both wrists. Relevantly, the x-rays revealed degenerative change at the C5/6 and C6/7 disc levels.

14. About once a month, the plaintiff and her husband enjoyed ballroom dancing, an activity that lasted for about four hours, including occasional resting. Several days a week, in the company of her mother, the plaintiff attended a gym for circuit training that was designed to improve her strength and fitness. It also enabled her to socialise regularly with her mother.

15. In 2006, the family was traumatised when a fire destroyed their home at Burra, NSW. The plaintiff assisted her brother to demolish the residence by performing unskilled jobs such as salvaging and stacking timber for future use, sweeping, and placing rubble in skips.

16. In 2009, the plaintiff assisted her brother with renovations to another family home, which was in Duffy. She undertook unskilled work such as stacking bricks and helping others to carry heavier items. The plaintiff and her husband painted the interior of what was a substantial four-bedroom home. After undertaking the preparation work, the plaintiff used a roller to apply paint while her husband focused on the detailed work. The plaintiff recalled that she performed these activities without physical difficulty.

17. From 2008, the plaintiff experienced tinnitus (an annoying, rather than overwhelming, ringing in the ears) and vertigo (an intermittent feeling that she might lose balance, although she never actually fell).

18. From mid-April 2011, the plaintiff and her husband spent about two months in Europe. During that time, they undertook two bus tours, each of which lasted 10 or 11 days, and toured Ireland by car for a week. The plaintiff spent several hours learning to ride a surfboard with apparent enjoyment. As far as the plaintiff recalled, she participated in these activities without physical difficulty.

19. Prior to the accident, the plaintiff undertook the bulk of the domestic work for her husband and family, including heavy work such as cleaning bathrooms and vacuuming. She performed almost all of the kitchen work, undertaking all the cooking and cleaning up.

20. As the plaintiff was more interested in hobby farming than her husband and he suffered from allergies, the plaintiff was responsible for the bulk of the farm work at Burra, including attending to stock and undertaking minor fence repairs.

21. The plaintiff's evidence about the extent of her domestic duties and her capacity to perform them was supported by the evidence of her husband and older daughter Catherine, who also corroborated the plaintiff's evidence that she undertook outdoor work on the family hobby farm, stating that, for example, the plaintiff had helped to build a rock wall and had lifted a pump when required. Catherine described the plaintiff as a particularly strong woman who displayed significant physical endurance.

22. There is no doubt that, prior to the accident, the plaintiff suffered from underlying spinal degeneration which was symptomatic. However, it did not prevent her from performing heavy household work or relatively heavy outdoor work. She was able to fulfil all her family duties while working two days a week and to undertake a busy overseas travel schedule. She enjoyed physically demanding exercise, including regular ballroom dancing, circuit work and learning to ride a surfboard.

23. In May 2009, the plaintiff presented to the Optimal Health Centre, where she was treated by Mr Barritt for the first time. She wanted to address the neck and back pain that was, at times, quite problematic for her. At the commencement of her treatment by Mr Barritt, the plaintiff completed questionnaires in which she described significant and relatively constant symptoms in her neck, shoulders and at all levels of her back, as well as tinnitus and vertigo. She estimated her pain level on a score out of 10. Many of those scores were similar to the scores that the plaintiff attached to her current symptoms.

24. Subsequently, in 2009, the plaintiff attended the Centre on 56 occasions (average of eight a month). By late 2009, the plaintiff was reporting to Mr Barritt that she enjoyed significant periods when she had no neck and back pain. In the first half of 2010, there were seven attendances (average of one month). In the second half of 2010, there were 20 attendances (average of 3 to 4 a month). In the first three months of 2011, there were nine attendances (average of 3 a month).

25. When the plaintiff returned from overseas in June 2011, she attended Mr Barritt on three occasions in that month. At the last attendance on 29 June, Mr Barritt noted:

Generally improved - R side neck, shoulder plus R arm. R ribs below shoulder blade tight painful breathing in. Back in two weeks.

26. However, in the two months between 29 June and the accident, the plaintiff did not return to see Mr Barritt. At that time, she was focused on obtaining treatment for an allergy from which she suffered.

27. I conclude that, from late 2009 until the accident, the plaintiff's neck and back pain fluctuated and there were significant periods during which she was pain-free. The plaintiff did not return to see Mr Barritt during the two month period leading up to the accident because her back symptoms had improved to the extent that she did not feel a need to consult him, presumably because her back had improved as a result of the treatment that he had administered. However, while the plaintiff's symptoms may have improved (particularly in early 2010 and during the last two month period before the accident), there was no time during the two-year period preceding the accident when the plaintiff felt sufficiently pain-free to permanently terminate treatment by Mr Barritt.

28. It is significant that, prior to the accident, the plaintiff's neck and back pain did not restrict her capacity to work two days a week as well as engage in extensive and often physically demanding domestic and leisure activities. Those heavy activities may explain why the plaintiff's neck and back symptoms fluctuated.

The plaintiff's health and treatment after the accident

29. After the accident, the plaintiff did not present at her workplace. She went to her mother's home, which was nearby, and rested. She arranged an appointment with Mr Barritt and attended his office on the afternoon of the accident. At that time, she reported pain in the base of her skull and an altered sensation running down both arms.

30. On the night of the accident, the plaintiff slept poorly. She was woken by pain at the front of her neck, at the base of her skull and mid back.

31. On the day after the accident, 26 August 2011, the plaintiff consulted Dr Mirpuri, her general practitioner. He noted a complaint of neck pain starting on the afternoon of the accident. He referred the plaintiff for physiotherapy.

32. The plaintiff was absent from work for a week. Thereafter, she was able to resume working two days a week until May 2012, although high levels of pain interfered with her concentration and caused her to take painkillers. Despite her profession (or, perhaps, because of it), the plaintiff is reluctant to take medication unless it is strictly necessary.

33. Between 2 September 2011 and 28 October 2011, the plaintiff consulted Mr Barritt for treatment on 16 occasions (an average of eight consultations a month, twice the pre- accident rate).

34. On 19 September 2011, the plaintiff reported to Mr Barritt that her symptoms were:

(a) Pain between her shoulder blades. This symptom had existed in the past, was non-existent at the time of the accident and had been constant since the accident.

(b) Tension in her shoulders and down her arms. This symptom first appeared within hours of the accident.

(c) Tingling and numbness in her fourth and fifth fingers bilaterally. This symptom had existed in the past, but had not reappeared during the 12 months prior to the accident.

(d) Neck and shoulder stiffness, which commenced at the time of the accident.

(e) Pain in the front of the neck, which commenced on the night of the accident.

(f) Bilateral occipital pain, commencing on the morning after the accident.

(g) Pain in the muscles below her elbows. This symptom predated the accident, but had not occurred in the month prior to the accident. It reappeared after the accident and thereafter was more frequent and intense than previously.

(h) Tinnitus, which had increased in frequency since the accident.

35. Between October 2011 and March 2012, the plaintiff continued to consult Mr Barritt for treatment about eight times a month.

36. On 20 October 2011, Mr Barritt wrote to Dr Mirpuri, stating:

On 25th of August this year, [the plaintiff] presented to my office with several new symptoms as well [as] an intensification of some symptoms that had previously reduced markedly after consistent treatment from me. However, after she was involved in a car accident on 25th of August, some of the symptoms returned and had worsened noticeably. She returned to me for treatment that same day which was the first time I had seen her in nearly 2 months ... The event of 25th of August has caused [the plaintiff] to experience a large increase in symptoms and some significant injuries as indicated by her reduced range of motion, pain with range of motion, significant paraspinal tenderness and muscle hypertonicity. She still has reactive tenderness in the cervical and thoracic spine as of today...

37. Following her attendance on Dr Mirpuri on 26 August 2011, the plaintiff's next consultation was on 21 October 2011. On that day, the doctor noted that the plaintiff had tingling in her fingers and was experiencing headaches. He referred her for a MRI scan. He noted that, some years prior to the accident, there had been one episode of tingling but there had been no symptoms for several years before the accident.

38. In evidence, the plaintiff said that the headaches from which she suffered after the accident differed from her pre-accident headaches. After the accident, her headaches seemed to emanate from the neck area.

39. On 1 November 2011, the plaintiff attended the Queanbeyan Physiotherapy Centre for the first time. Thereafter, she attended once a week until December 2011. The plaintiff said that she gained some benefit from physiotherapy.

40. On 4 November 2011, the plaintiff consulted Dr Brown, a general practitioner, who noted that the plaintiff was suffering from fatigue, tinnitus and nausea.

41. On 24 November 2011, the plaintiff saw Dr Mirpuri in relation to another complaint. He noted "neck pain better", "declined to have MRI" and "tin[g]ling in fingers settled?"

42. The plaintiff next attended a general practitioner on 18 April 2012, when she consulted Dr Rajagopal in relation to a knee complaint. She was referred for x-rays, which revealed early osteoarthritis in her knees. In evidence, the plaintiff said that, since childhood, she had experienced minor difficulties with her left knee. It was after the accident that she first experienced intermittent pain in her right knee.

43. X-rays of the plaintiff's cervical and lumbar spines taken on 11 May 2012 disclosed:

Cervical spine:

There has been no significant interval changes since March 2008 with degenerative changes seen at the C5/6 and C6/7 levels, causing some degree of bilateral foraminal stenosis at both levels. The stenosis has progressed since April 2005.... There is straightening of the normal cervical lordosis which may reflect muscle spasm. No other significant abnormality identified...

Lumbar spine and pelvis:

No significant interval change is seen since March 2008. Mild-to-moderate degenerative changes are seen throughout the spine. Mild degenerative changes are seen at the hip joints. No other significant abnormality is detected ...

44. In May 2012, the plaintiff travelled overseas with a close friend who was terminally ill for the purpose of supporting the friend while she sought treatment in Ecuador and Germany. The plaintiff did not return to Australia until December 2012.

45. While in Germany, between mid-August and 7 December 2012 (a period of just under four months), the plaintiff had 22 physiotherapy or massage treatments and nine acupuncture treatments for her back problems, i.e. about six treatments a month. I infer that the plaintiff was experiencing considerable pain, despite the fact that she was neither working nor fulfilling significant domestic responsibilities.

46. Dr Champion, an orthopaedic specialist who reported on behalf of the plaintiff, expressed the view that the plaintiff was predisposed to cervical, thoracic and, to some extent, lumbosacral spinal pain as a consequence of injury, having had a history of recurrent spinal pain over many years. Dr Champion observed that a comparison of the pre-accident and post-accident scans showed no definite pathology associated with the accident. He concluded that the ongoing post-accident disorders were:

(a) A multi-level cervical spinal pain syndrome of the whiplash type. Symptoms were superimposed on pre-existing cervical spondylosis with recurrent pain.

(b) Thoracic and lumbar pain with particular involvement of the L4/5 and L5/S1 areas as well as the mid-thoracic spine. This injury was superimposed on a pre-existing thoracic and lumbar spondylosis which was intermittently symptomatic.

(c) Pain and prominence related to the right sternoclavicular joint, which, in the absence of arthritic change on images, suggested subluxation. He considered that this condition was at least aggravated and was probably caused by the accident.

Looking back I do believe that the increased trajectory of her cervical thoracic and lumbar spinal pain disorders was altered unfavourably by the motor vehicle accident, at least in terms of symptoms and disability, though not necessarily in terms of pathology. This increased trajectory of pain associated disability might well continue for a few more years but will probably eventually equilibrate with the theoretical trajectory of her disorder had she not been involved in such MVA.

48. In other words, as at August 2014, Dr Champion considered it likely that, after "a few more years," the plaintiff's accident related symptoms would be absorbed by the theoretical trajectory of her underlying degenerative condition had she not been involved in the motor vehicle accident.

49. In May 2014 Dr Anthony Smith, an orthopaedic surgeon, examined the plaintiff for the purpose of preparing a medicolegal report for the defendants. He concluded that the accident could have aggravated the plaintiff's spinal degenerative disease but that any such aggravation "would have resolved after itself after a few weeks, two or three months at the very most". He opined that the plaintiff had continuing symptoms because she was continuing to aggravate the underlying degenerative condition from time to time during the course of daily living.

50. Dr Smith offered no explanation for his opinion that any aggravation would have resolved within a very short time. He apparently accepted that, when he saw her, the plaintiff had continuing symptoms. His conclusion that those symptoms were due to periodic aggravation of the underlying degenerative condition is inconsistent with the evidence that, in contrast to the position prior to the accident, after the accident the plaintiff's symptoms improved only gradually over a year or two (not within three months) and thereafter remained more or less constant over a long period of time. Relevant aspects of "daily living" were not identified. Dr Smith failed to compare the circumstances of the plaintiff's "daily living" prior to the accident and after the accident in a manner that supported his thesis of periodic aggravation. I place no weight on Dr Smith's opinion.

51. The plaintiff's husband, and daughter Catherine, gave evidence that contrasted the plaintiff's pre-accident and post-accident physical capacity. Like the plaintiff, these witnesses were credible and there was no suggestion of exaggeration. These witnesses (and the plaintiff herself) gave evidence that the most noticeable impact of the accident was that the plaintiff lost her pre-accident strength and endurance and became easily fatigued, even by household duties.

52. The plaintiff explained that her fatigue was secondary to pain and was the critical limiting factor in relation to her activities. I accept the plaintiff's explanation. I also accept the plaintiff's evidence that, in so far as her current pain levels may be similar to levels recorded in the 2009 pre-treatment questionnaires, the current pain was a different sort of pain and at somewhat different locations (and see [23] above).

53. The defendants submitted that the plaintiff's ongoing spinal symptoms were attributable to the downward trajectory of her underlying degenerative condition, and that the aggravation caused by the accident had long since been overtaken by the underlying condition.

54. A defendant bears the evidential onus of showing that a plaintiff suffered from a pre-existing condition: Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164 at 168. Where it is shown that the plaintiff did suffer from a pre-existing condition, the court is required to evaluate possibilities in order to estimate the likelihood that alleged hypothetical past events and possible future events would have occurred: Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 ('Malec'), discussed by Ipp JA (with whom Mason P agreed) in Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 at [102]-[109] ('Seltsam'). A proper assessment of damages requires judgement as to the consequences that may have flowed from the worsening of a pre-existing condition if the accident had not occurred: Seltsam per Ipp JA at [107].

55. In this case, it is agreed that the plaintiff suffered from a pre-existing symptomatic degenerative condition in her spine. Prior to the accident, the plaintiff experienced only symptomatic pain and the pain interfered with none of her many physically active domestic or leisure activities. There was no impact on her work capacity. After the accident, the plaintiff experienced pain more frequently, more severely and at more locations. Since the accident, the pain has significantly limited her capacity to undertake, and her enjoyment of, domestic, leisure and work activities. I accept the evidence of Dr Champion that, at a time "a few... years" after 2014, the aggravation of the plaintiff's pre-existing condition would be subsumed in the trajectory of her underlying condition. Consistent with that evidence, I proceed on the basis that the underlying condition has overtaken the accident related symptoms or will do so in the near future.

56. In 2013 the plaintiff experienced sternoclavicular pain. When Dr Smith examined the plaintiff in May 2014, she complained of pain in the right sternoclavicular joint over the last 12 months, which had developed into a problem and involved pain with right arm movement.

57. In April 2013 the plaintiff commenced Bowen Therapy to address the sternoclavicular problem, paying a total of $7 363.51. On 7 May 2013, the plaintiff consulted Dr Mirpuri in relation to sternoclavicular pain. He ordered an x-ray of the plaintiff's sternoclavicular joint, which was undertaken in May 2013. No abnormalities were revealed.

58. The sternoclavicular pain developed more than 12 months after the accident. However, Dr Champion opined that, in the absence of arthritic change on images, the pain and prominence related to the right sternoclavicular joint suggested subluxation. He considered that this condition was probably caused by the accident. On the other hand, Dr Smith was somewhat equivocal in his view about the causal relationship between the plaintiff's sternoclavicular pain and the accident, apparently concluding that the accident may have aggravated the underlying osteoarthritic changes in both sternoclavicular joints. However, it is difficult to accept this opinion as investigation of the right sternoclavicular joint (the more problematic joint) indicated no arthritic change (as Dr Smith himself acknowledged in another part of his report) and I have found that Dr Smith's opinions about the plaintiff's back pain are also inadequately explained.

59. With some hesitation (given the delay in reported onset), on the balance of probabilities I accept Dr Champion's opinion about the causal connection between the accident and sternoclavicular pain.

60. The defendants contended that a significant part of the plaintiff's past treatment by Mr Barritt and continuing treatment by Mr Barritt is not justified as it is not affecting an improvement.

61. Following her return from Germany, between late January 2013 and early April 2013, the plaintiff was treated about twice a week by Mr Barritt.

62. For the remainder of 2013, on average she was treated about five times a month. Between February and December 2014, on average she received treatment about five to six times a month.

63. Since early 2015, she has received treatment from Mr Barritt about four times a month, i.e. about once a week. At times, the plaintiff has also received treatment by way of massage treatment or physiotherapy.

64. I accept the plaintiff's evidence that the rate at which she has attended for treatment by Mr Barritt reflects her perception of the level of her pain from time to time.

65. In April 2014, Dr Mirpuri expressed uncertainty about whether chiropractic treatment had any benefit. In his opinion, physiotherapy and supervised rehabilitation by a physiotherapist or exercise physiologist was the appropriate treatment. He gave qualified support to acupuncture and massage therapy as appropriate treatments. He noted that, when he had last seen the plaintiff on 18 October 2013, her symptoms had not fully resolved.

66. In August 2014, Dr Champion stated that passive therapies were less appropriate than graduated active exercises but cautioned against abrupt withdrawal of treatment by Mr Barritt, noting that it provided effective short term relief as well as comfort and support to the plaintiff. It seems that, in April 2014, Dr Mirpuri had a similar opinion.

67. In light of Dr Champion's opinion, counsel for the defendants properly conceded that it would have been psychologically detrimental for the plaintiff if Mr Barritt's services had been suddenly withdrawn from her, and on that basis it was justifiable for Mr Barritt's treatment to continue until, say, the end of 2014. I agree with this submission.

68. Quite apart from the issue of whether Mr Barritt's services were assisting with the plaintiff's pain to any significant extent, there is the undisputed fact that, regardless of the accident, the plaintiff would have suffered intermittent but increasing pain associated with the underlying degenerative condition for which she had in the past sought Mr Barritt's services, and in relation to which she would have continued to consult him.

69. In deciding whether any out-of-pocket expense is reasonable, it is necessary to consider the cost against the health benefits. If the cost is great and the benefit to health is slight or speculative, then the cost of treatment will clearly be unreasonable: Sharman v Evans [1977] HCA 8; (1977) 138 CLR 563 at 573. Usually, a plaintiff will not undergo treatment unless, subjectively, she considers it to be reasonably required. However, it is also necessary to consider whether a reasonable plaintiff would have considered it to be reasonably required, having regard to the health benefits: Mohammed v Onsite Formwork Pty Ltd [2015] ACTSC 416 at [44].

70. I consider that it was reasonable for the plaintiff to have received treatment from Mr Barritt at the level at which she received treatment until the end of 2014. The majority of the treatment between August 2011 and late 2014 was attributable to the accident, which significantly changed the level of the plaintiff's pain and the locations at which it was experienced. I will allow her the whole of the claim in relation to this period. Thereafter, it was reasonable for the plaintiff to receive occasional treatment from Mr Barritt in relation to that part of her pain which was attributable to the accident (rather than to the underlying degenerative condition) because, although there seems to be little long-term benefit from Mr Barritt's treatment, it afforded short-term physical relief as well as psychological support. However, medical opinion does not justify regular ongoing treatment by Mr Barritt. In relation to the costs incurred in consulting Mr Barritt since 1 January 2015, I will allow the plaintiff 50%, but I will allow nothing for the future.

71. In relation to the assessment of general damages, the Court's attention was drawn to the decisions in Rendell v Todd [2012] ACTSC 68 ('Rendell') and Wainwright v Lee [2013] ACTSC 191 ('Wainwright').

72. In Rendell, Sidis AJ awarded general damages of $80,000 ($40,000 for the past and $40,000 for the future) on the basis that the plaintiff suffered spinal symptoms prior to the relevant motor vehicle accident and the accident did not cause a T6/7 disc injury that resulted in surgery. However, her Honour found that the accident did cause neck, shoulder and lower back symptoms that continued to affect the plaintiff's quality of life seven years after the accident. At the time of this assessment, the plaintiff was 42 years old.

73. In Wainwright, Master Harper awarded general damages of $85,000 in relation to a plaintiff who was 49 years old at the time of the accident. Prior to the accident, she experienced sporadic symptoms of neck pain and referred pain attributable to the progressive degenerative condition in her cervical spine. After the accident, her neck pain became virtually continuous and she continued to experience symptoms six years after the accident.

74. I find that the injuries sustained in the accident have substantially aggravated the pain that the plaintiff would have experienced because of her underlying degenerative condition. This aggravation will gradually be overtaken by the underlying condition and is now largely subsumed in the trajectory of the plaintiff's underlying condition (it is almost six years after the accident and the "a few more years" to which Dr Champion referred in his August 2014 report have almost expired). I assess general damages at $65 000, of which $60 000 is attributable to the past.

75. Within the family, the plaintiff has always assumed primary responsibility for domestic work.

76. The parties agreed that the appropriate rate at which to assess services provided gratuitously (both past and future) was $35 per hour.

77. The plaintiff said that, prior to the accident, her back symptoms did not prevent her from engaging in relatively heavy work. Within the house, she undertook all the cooking, most of the laundry and all the household cleaning, including vacuuming and cleaning the bathroom. She was interested in the farming lifestyle and willingly assumed responsibility for stock and minor, unskilled farm work including minor fencing repairs. The plaintiff's husband and daughter confirmed this evidence.

78. The plaintiff's daughter Catherine said that, in 2015 when she was residing with her parents, she felt obliged to assume a significant level of responsibility in the kitchen, and would cook the family meal approximately twice a week and clean up. She also cleaned the bathrooms. She assisted her father with heavy household work, particularly the mopping and vacuuming. As her father suffered from allergies, she assumed primary responsibility for mowing and gardening.

79. Since moving out of her parents' home, she has continued to do the lawns and garden. She mows the lawns about once a fortnight and weeds the garden about once a month. The cleanliness and tidiness of the household has deteriorated in comparison to its pre-accident state. Recently, the plaintiff's other daughter has moved into the house temporarily and she now has responsibility for some housework, but prior to that development, Catherine occasionally cleaned the bathrooms.

80. In August 2014, Dr Champion noted his understanding that, at that stage, the plaintiff did not require domestic assistance. However, in December 2014, Dr Champion observed that domestic assistance could support the plaintiff pursuing an appropriate physiotherapy/exercise regime as well as consistently working one day a week. It is not clear whether Dr Champion was aware of the extent of the plaintiff's pre-accident and post-accident domestic duties.

81. The defendants submitted that the plaintiff's failure to call evidence of the number of hours per week for which gratuitous services had been provided was fatal to her claim to be compensated for those services.

82. According to the plaintiff's evidence (which I accept), the immediate effect of the accident was to make it very difficult to perform the heavier domestic tasks which he had always undertaken for the family. She remains dependent upon others to perform those tasks.

83. While it would have been helpful to have received evidence of the number of hours of work gratuitously undertaken by the plaintiff's family members, there was considerable detail given about the nature of the work and the size of the home. Commonsense enables me to form an opinion about the minimum number of hours' work that must have been performed. In assessing the claim, it is necessary to bear in mind the downward trajectory of the plaintiff's capacity as a result of her pre-existing degenerative condition.

84. In relation to the heaviest aspects of domestic work and gardening, I consider that, in relation to her back symptoms, the plaintiff would have required assistance for at least three hours a week from the date of the accident to December 2014. From 1 January 2015 to date, I will allow her one and a half hours a week to take into account the trajectory of her underlying condition. I will allow nothing for the future.

85. When she was about 17 years old, the plaintiff began to work as a nurse. From about 1974 to 1983, just after her first child was born, she worked full-time. Ever since, she has worked part-time.

86. In 1990, ACT Health employed the plaintiff as a part-time registered nurse. For some years prior to the accident, the plaintiff worked two days a week at the Canberra Hospital. The Hospital is a "no lift" hospital and the plaintiff has never experienced any physical difficulty undertaking her duties. She has always enjoyed social interaction with her work colleagues and been professionally fulfilled by interaction with patients. She has chosen to work part-time because her husband is a dedicated full-time teacher/librarian and part-time work enabled the plaintiff to support the family by assuming primary responsibility for most domestic duties and family affairs.

87. As noted above, following the accident, the plaintiff took one week's sick leave (two days) and then returned to work two days a week until May 2012.

88. The defendant submitted that the injury sustained in the accident did not impact upon the plaintiff's pre-accident income or work capacity.

89. I do not accept this submission. I accept the plaintiff's evidence that, during the period between the accident and May 2012 she continued to work despite experiencing high levels of pain and that she managed her pain by taking medication when necessary and by working evening shifts (in accordance with her previous practice), enabling her to rest at other times. The plaintiff is a stoic individual who loves her work and would have resisted the limitations that her condition placed upon her work capacity.

90. As noted above, the plaintiff was overseas from May to December 2012. For a variety of reasons that do not relate to her injuries, she did not return to work until December 2013. In mid-2013 she ceased being a part-time employee and became a casual employee. This was partly because, having regard to her long work absence, she felt a moral obligation to change from part-time to casual employment.

91. Despite her status as a casual employee, the plaintiff's experience means that she can work whenever she wishes to do so. She can also cancel a shift on two hours notice. A casual employee receives a loading on the base salary rate and there are additional loadings for certain shifts (12.5% for the evening shift, which is no doubt designed to compensate for the loss of benefits associated with permanent employment).

92. After returning to work in December 2013, the plaintiff worked one or two days a week, but she has not been able to maintain two days and, on average, she has worked about one day a week or 16 hours per fortnight. Lower energy levels and fatigue associated with pain mean that it is more difficult for the plaintiff both to work and to fulfil domestic and family responsibilities.

93. In December 2014, Dr Champion accepted that working one day a week was a "reasonable objective" for the plaintiff at the time but that, periodically, the plaintiff might have required weeks off work altogether. He did not foresee her returning to work two days a week on a consistent basis in the near future.

94. In December 2014, the plaintiff took time off work to attend to her mother-in-law's increasing needs. The plaintiff's mother-in-law died in March 2015 and the plaintiff returned to work in June 2015 (the plaintiff gave evidence that it was July, but the pay history indicates June). Since then, she has worked one to two days a week.

95. The evidence clearly establishes that, since December 2013 (excluding the first five months of 2015), the plaintiff has been capable of working only one day per week rather than the two days that she consistently worked prior to the accident. But for the accident, her underlying degenerative condition would have impacted upon her work capacity, but in my view she would have soldiered on, working two days a week until she attained 60 years of age.

96. The plaintiff had no definite plan for retirement. It was understood that her husband would retire at 60, and the plaintiff (who is very similar in age to her husband) may well retire at that time. At 60 years of age, the plaintiff and her husband will be able to access their superannuation. The plaintiff said that she may continue to work on a casual basis once she reaches 60 years of age.

97. I accept the defendants' submission that the evidence does not establish on the balance of probabilities that, but for the accident, the plaintiff would have continued to work beyond 60 years of age, i.e. beyond 1 May 2017. However, proof on the balance of probabilities is not necessary; it is necessary for the court to determine the degree of probability, evaluating the possibilities: Malec [1990] HCA 20; (1990) 169 CLR 638 at 639 (Brennan and Dawson JJ), at 643 (Deane, Gaudron and McHugh JJ); Seltsam [2005] NSWCA 208 at [105] (Ipp JA).

98. Her actual income during the relevant period since December 2013 has been about $48 000. But for the accident, she would have earned roughly twice that amount, and I assess her past loss of wages as $48 000. Interest should be allowed on that sum.

100. In relation to future economic loss, I am satisfied that, but for the accident, the plaintiff would have continued to work two days a week until 1 May 2017. However, given the trajectory of her underlying condition, it is only a small possibility that she would have worked beyond 1 May 2017. I will allow $15 000 for future economic loss, including superannuation.

101. The defendants accepted the mathematics of the plaintiff's claim and accepted the plaintiff's statement that expenses had been paid or incurred.

102. The defendants accepted liability for the amount of $8 391.55 that had actually been paid by the insurer but otherwise did not accept liability for out-of-pocket expenses. The insurer paid pharmaceutical expenses to May 2012, massage expenses to November 2012, some physiotherapy expenses but made no contribution to the expense of Bowen Therapy.

103. In addition to the amount paid by the insurer, Medicare paid $428.05, the plaintiff paid $7 363.51, the Teachers Health Fund paid $448 and a sum of $15 580.25 is still owed to Mr Barritt in relation to treatment provided on and after 8 February 2013. The insurer paid for Mr Barritt's services up to and including 1 February 2013.

104. I allow the amounts paid by the defendants, for which liability was conceded. In addition, I allow all the expenses to 31 December 2014. Thereafter, I allow 50% of the expenses related to Mr Barritt. I have selected the date of 31 December 2014 on the basis that most of the prior expenses related to the accident and many of the subsequent expenses have related to the degenerative condition.

Interest on past general damages $6600 ($60 000 x .02 x 5.5 years)

Domestic assistance $21 059.9 ($35 x 3 hours p/w while in

Australia to 31.12.14 + $35 x 1.5 hours p/w 01.01.15 to 24.02.17)

Interest on past economic loss $7020 (4.5% x 3.25 years)

Past loss of superannuation $5280 (11% of net economic loss)

to 31.12.14 $12 419.8 (including amount owing to Mr

has actually been out of pocket $239.9 (4.5% x $5331)

I certify that the preceding one hundred and five [105] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell.