Thomas v Bass [2003] WADC 134

1 LA JACKSON DCJ: The plaintiff's claim is for damages for personal injury arising out of a motor vehicle accident. The plaintiff was born on 14 February 1957. On 12 October 1997, when aged 40, she was driving a motor vehicle along Safety Bay Road, Safety Bay. She had stopped to turn right into the driveway of her home when she was struck in the rear by a motor vehicle driven by the defendant.

2 Liability is not in issue and this is an assessment of damages.

3 The plaintiff's claim is that she has injured her right shoulder as a result of the accident. The defendant's case is that the right shoulder problems were as a result of a pre-existing condition and that the motor vehicle accident caused no more than a temporary exacerbation.

4 The plaintiff's right to recover damages is limited by s 3C of the Motor Vehicle (Third Party Insurance) Act 1943. Subsections 2, 3 and 4 provide:

"(2) The amount of damages to be awarded for non-pecuniary loss is to be a proportion, determined according to the severity of the non-pecuniary loss, of the maximum amount that may be awarded.

(3) The maximum amount of damages that may be awarded for non-pecuniary loss is amount A, but the maximum amount may only be awarded in a most extreme case.

(4) If the amount of non-pecuniary loss is assessed to be amount B or less, no damages are to be awarded for non-pecuniary loss."

Other subsections provide for the calculation of damages when the award is greater than amount B.

5 The calculations are to be done as at the date of judgment. As at today's date amount A was $240,000. Amount B was $12,000, that is, 5 per cent of amount A.

6 The initial inquiry is as to whether as a result of the accident the plaintiff's non-pecuniary loss as a proportion of a most extreme case is at least 5 per cent.

7 "Non-pecuniary loss" is defined as meaning -

8 Central to cases of this kind is the credibility of the plaintiff. In this case I have no difficulty in accepting the plaintiff as a truthful witness. She gave her evidence in a forthright manner. Indeed, she tended to tell her side of the story without waiting for questions to elicit her evidence but it did not seem to me that detracted from her essential honesty. She is of course most anxious about her condition and perhaps understandably somewhat cautious about her physical capabilities. It may well be, as Professor Alan Skirving commented, that her disability is not as great as she thinks it is. But that does not mean she is other than a witness who honestly believes what she says. In fairness, I should note that the defendant's case is not that the plaintiff is wilfully dishonest but rather as a matter of assessment of the medical evidence available, she has not proved her disability was occasioned by the accident in 1997.

9 It is trite to say that the burden of proof in a civil case such as this is on the plaintiff and on the balance of probabilities.

10 The plaintiff is an education assistant. Such a position used to be and perhaps is still commonly called a teacher's aide. Her job is currently at the Rockingham Lakes Kindergarten assisting a teacher teaching kindergarten or pre-school age children of a range from three to five. She has been doing that job since 1989 when her children started in the education system. Prior to that she had been employed, I gather, since leaving school.

11 Her job entails a degree of physical labour. She is required to assist with the children in personal matters such as toileting. She, under the direction of the teacher, will set us activities such as an adventure playground. She is required to assist by carrying books and moving furniture. She assists in a whole myriad of tasks all of which are hands on.

12 Some time in 1996 the plaintiff experienced problems with her right shoulder. It became stiff and sore. She is unable to identify any event which precipitated those problems.

13 She saw her general practitioner, Dr Ken Withers. During 1996 and, I gather the early part of 1997, she had had a number of injections into the shoulder but none of these was of any assistance.

14 The plaintiff was referred to Mr Peter Bath. Mr Bath referred her to Mr Tony Jefferies, an orthopaedic surgeon with particular specialisation in the shoulder. He had some difficulty in diagnosis and referred her x-rays to a meeting of the Shoulder and Elbow Surgeons Group on 18 March 1997. No definitive diagnosis seems to have been made and Mr Jefferies decided to perform an arthroscopic assessment of the shoulder and for that purpose the plaintiff's name was placed on the waiting list at Fremantle Hospital.

15 Instead of having to wait for Mr Jefferies to be able to operate at Fremantle Hospital, the plaintiff was able to secure earlier attention and for that purpose on 19 May 1997 was referred to Mr David Wright.

16 The plaintiff complained of pain in the shoulder and in particular of it catching when, for example, she lifted her arm up above head height. So when she had to take something off a shelf above head height this would occur. X-rays, an ultrasound, and a CT scan were, it seems, not conclusive. There were obviously some difficulties in precise diagnosis of the plaintiff's problems. Mr Wright in a letter dated 28 May 1997 to Dr Withers (Exhibit 2) said:

"I wondered if there is an element of reflex sympathetic dystrophy involved in her pain which seems much more severe than usual. I have asked her to see Duncan Anderson for his opinion and perhaps treatment of this, and will organise an acromioplasty for her."

17 Mr Wright said reflex sympathetic dystrophy usually referred to changes often consisting of sweating or change in skin colour associated with some underlying problem. There was no evidence of sweating or skin change. If the plaintiff's symptoms are worse because of reflex sympathetic dystrophy that may mean that her ongoing symptoms are worse because of that, or it may mean that the plaintiff by nature is more susceptible to increased symptomology and that this is an "eggshell skull" case. It is, of course, for the plaintiff to prove her case.

18 Dr Anderson is a pain specialist. It seems no benefit was obtained by the plaintiff by her visit to him.

19 On 4 June 1997 Mr Wright performed an acromioplasty. The acromion is part of the scapula. In his report to Mr Wright dated 9 June 1997 (Exhibit 3) Mr Wright advised of an obvious impingement of the rotator cuff of the right shoulder. He bevelled the anterior lip of the acromion to relieve the pressure. The rotator cuff was inflamed but there was no tear.

20 Post-operatively the plaintiff was relieved of the catching in her shoulder and seemingly progressed well. She returned to work in August 1997. In his report to Dr Withers of 11 August 1997 (Exhibit 5) Mr Wright noted:

"Her right shoulder has gone backwards a bit since she resumed work last week, she said it was nowhere near as it was preoperatively but she does have some pain with lifting and she has had to increase her Voltaren intake."

21 Mr Wright noted a range of movement was still restricted but her internal rotation was better. He also noted that her symptoms would take some time to resolve.

22 The plaintiff was cross-examined as to any set back at work in August 1997 but did not admit it had occurred. I have no reason to doubt the accuracy of the note taken by Mr Wright and accept his evidence on that point.

23 On 12 October 1997 the accident occurred. The plaintiff was seated in her car with the seatbelt on. The defendant ran into the back of her. No evidence was given by the plaintiff as to exactly what happened during the course of the accident and in particular whether there was any particular impact directly affecting her right shoulder. She did say the force of the impact dislodged the front seats and the damage to her car was some $4,000.

24 The plaintiff deteriorated following the accident and become progressively worse. I note that in his report of 18 January 1998 (Exhibit 9) Mr Wright said:

"There was an underlying right shoulder problem and Mrs Thomas had been treated with an acromioplasty of the right shoulder on 4 June 1997. After the operation, her shoulder was slowly settling down and I anticipated that by about this time her symptoms would have almost completely resolved. Following the accident, her shoulder symptoms have recurred and steadily deteriorated to the point that when she came to see me on 8 January 1998, Mrs Thomas states that she is in terrible pain."

25 That level of pain seems to be consistent with an early comment made by Mr Wright on 28 May 1997 (Exhibit 2) where he commented:

"Georgina seems to be almost at the end of her tether and broke down during my examination of her."

26 It also seems consistent with reports of Mr Michael Alexeeff to which I will refer later.

27 In Exhibit 9 Mr Wright referred to a recent MRI scan which he described as showing "either a partial thickness tear or focal tendonitis in the right rotator cuff". In a further report dated 9 June 1998 (Exhibit 10) Mr Wright said he doubted very much whether any such tearing was caused by the accident. He said:

"There is no doubt that some of Mrs Thomas' right shoulder pain is as a result of the previous problems which she had prior to the motor vehicle accident. Before the accident her shoulder had been improving and since the accident there was significant deterioration of her symptoms which has not settled despite further treatment. Although Dr Kennedy found some partial thickness tear of the rotator cuff tendon at the time of his operation, I very much doubt that the tearing was caused in the accident. If she had not had the accident, it is more than likely that her shoulder symptoms would have continued to improved and by now she would be symptom free or almost symptom free. On the other hand it is possible that she could have had a recurrence of her shoulder symptoms without the motor vehicle accident."

28 On 11 December 1997 Mr Wright manipulated the plaintiff's right shoulder under general anaesthetic. He was able to obtain a full range of movements. At the end of the day I don't think much turns on that finding. The fact that full movement can be obtained under anaesthetic may mean there is no physical limitation on movement, but of course pain can be a significant inhibitor. Professor Alan Skirving said it was important to be careful before drawing any specific conclusions from the fact that full movement could be obtained because it may well have been obtained against resistance indicating a degree of physical limitation. Mr Wright was not asked about specific findings on the manipulation.

29 As part of her treatment the plaintiff sought the assistance of a chiropractor. I have no evidence of what treatment was administered. It seems the chiropractor referred the plaintiff to Dr David Kennedy. On 27 February 1998 Dr Kennedy performed arthroscopic surgery to the plaintiff's right shoulder. The tendons and the acromion were further debrided to allow movement in the shoulder area. There was some criticism of Dr Kennedy's work and indeed a suggestion that his intervention might have worsened the plaintiff's condition. No third party notice was issued by the defendant, nor was there any pleading as to causation with respect to Dr Kennedy. In the end, not much seems to turn on Dr Kennedy's involvement and I do not take his opinions into account.

30 The plaintiff also had some physiotherapy. It seems that was rather over aggressive. It may be some injury was thereby occasioned, but that has not been pleaded by the defendant.

31 Dr Kennedy referred the plaintiff to Mr Michael Alexeeff, an orthopaedic surgeon with particular expertise in shoulders. He saw her in December 1998. He arranged for a further MRI scan to be performed and saw her again on 24 December 1998. Once again there was some apparent difficulty with diagnosis of the precise pathology and EMG and nerve conduction studies were arranged. These showed no major nerve anomaly. Mr Alexeeff referred the plaintiff to Dr Geoffrey Gee, a pain specialist. The plaintiff saw Dr Gee. Various procedures were tried but to no avail.

32 On 1 April 1999 Mr Alexeeff performed arthroscopic surgery. A further shaving of the joint was performed to endeavour to achieve adequate clearance for the tendons and thus avoid the plaintiff's problems. Although there was some improvement by 30 June 1999 the plaintiff was still having considerable pain. On 1 July 1999 Mr Alexeeff manipulated the plaintiff's shoulder under general anaesthetic and found almost full range of motion but the procedure resulted in great pain to the shoulder. The plaintiff had been referred for physiotherapy but that failed to achieve a reasonable resolution. On 5 August 1999 Mr Alexeeff performed further open surgery on the plaintiff's right shoulder. He again smoothed out the acromion. He excised one centimetre from the end of the clavicle.

33 Mr Alexeeff said the plaintiff's problems were in the acromio clavicular joint. He says these are problems not associated with the motor vehicle accident and accordingly although the accident would have caused a recurrence of symptoms those symptoms would have been most likely to have reappeared anyway because of the underlying pathology.

34 On 18 August 1999 Mr Alexeeff advised of considerable improvement with good active motion. By 28 October 1999 Mr Alexeeff reported a 100 per cent improvement with respect to active motion of the right shoulder. The plaintiff reported no pain at rest.

35 On 13 January 2000 the plaintiff had improved sufficiently to be fit to return to work with the only limitations being a restriction to overhead activity and heavy lifting. But the improvement did not continue. By the middle of 2000 the benefits of Mr Alexeeff's surgery had disappeared. The plaintiff became progressively worse.

36 Because of the continuing problems Dr Withers referred the plaintiff to Professor Alan Skirving. He saw her on 19 October 2001. He said the original diagnosis was rotator cuff tendonitis due to problems with the acromion. He said when the surgery in June 1997 appeared to be successful this confirmed that as being an appropriate diagnosis. He did not agree with Mr Alexeeff that the plaintiff's problems were with the acromio clavicular joint. Professor Skirving said that if that had been the problem he would have expected the plaintiff's symptoms to continue after the acromioplasty in June 1997. He said the claim that it was a problem with the acromio clavicular joint ignores the chronology of the apparent improvement from time to time. Professor Skirving acknowledged he could not precisely identify what was injured in the motor vehicle accident. He was also unable to precisely state the pathology giving rise to the plaintiff's present problems. He said the plaintiff probably has some degree of capsulitis. He said in his opinion she has post traumatic capsulitis or "angry shoulder" but he was unable to precisely explain the pathology behind that opinion.

37 In order to succeed in her claim that her shoulder disability was occasioned by the accident the plaintiff has to produce evidence sufficient to satisfy a court on the balance of probabilities it is so. Whilst I found Professor Skirving a most impressive and persuasive witness, his inability to precisely identify the pathology giving rise to the plaintiff's symptoms is a difficulty for her. Professor Skirving did not perform any surgical procedure on the plaintiff and accordingly all the information he has is from other reports and from the various scans. It seems to me that is not as good a source as the direct information that could be obtained from being involved in the surgery.

38 Mr Alexeeff on two occasions performed surgical procedures. His knowledge of the plaintiff's shoulder workings are first hand. For that reason I would prefer his opinion to that of Professor Skirving. But if he was correct his surgery in August 1999 would have fixed the problem. It only did so for a temporary period and by July 2000 the pain had returned. The plaintiff said she had become progressively worse since that time. This must throw some doubt on Mr Alexeeff's diagnosis. Both he and Professor Skirving considered the conclusion of the litigation would be helpful.

39 It would be possible to simply conclude the plaintiff has failed to prove her case. Professor Skirving suggested the chronology of events is a useful tool where diagnosis is not certain. In 1996 the plaintiff had a painful shoulder which was obviously quite severe. After the original surgery in March 1997 the plaintiff seemed well on the road to recovery despite a small setback when she returned to work. She had the motor vehicle accident in October 1997 which put her back where she started from. Despite extensive treatment nothing seems to do any good until in August 1999 a further area of impingement is located. Surgery had a significant effect, but a year later the plaintiff was back to where she had been.

40 Logically it is open to find her pain was occasioned by the accident because the surgery to correct the two identified problems was successful. Notwithstanding the difficulties of diagnosis I am satisfied on the balance of probabilities that this is a case in which that is the proper approach.

41 I accept the level of pain experienced by the plaintiff is significant. Objectively it has not been sufficient to prevent her continuing to work. It is likely that the conclusion of the litigation will be beneficial.

42 Fixing the proportion of a worst case is never an easy task. In this case I am not persuaded it is a significant proportion. I find it is 8 per cent. Pursuant to s 3C of the Motor Vehicle (Third Party Insurance) Act the amount payable is $7,200.

43 Past loss of earning capacity has been agreed at $3,000. This, I am told, is the value of sick leave taken and therefore no longer available to the plaintiff in the event of disability in the future.

44 The plaintiff is now aged 46. She said she wished to continue working in the future. I have no evidence of how long persons employed as education assistants continue. In any event, the plaintiff is, with some difficulty, coping. Professor Andrew Harper, an occupational physician, described the plaintiff as being incapacitated for a significant proportion of her duties. If that is the case, I would have expected her to be unable to continue. But objectively she has. Many, if not most, of her duties are within the plaintiff's physical capabilities. This is not a case in which there will necessarily be any loss in the future. There probably will be some, but the extent is uncertain. The plaintiff's net income for the year ended 30 June 2002 was about $20,000. I think a reasonable allowance for future loss of earning capacity is one year's net income and would therefore allow $20,000.

45 The plaintiff seeks damages for gratuitous services. Gratuitous services cannot be awarded unless the amount for such damages exceeds $5,000 (Motor Vehicle (Third Party Insurance) Act 1994, s 3D). The evidence of the extent of gratuitous services was somewhat sketchy and is not sufficient to persuade me that its value exceeds that sum. Accordingly no award for gratuitous services can be made.

46 All medical and ancillary expenses incurred by the plaintiff after the motor vehicle accident have been paid by the defendant's insurers and accordingly no claim should be allowed with respect to them. So far as any claim in the future is concerned any award can only be nominal. I would allow $1,000.

47 The plaintiff claims interest. It is only with respect to past loss of earning capacity that interest could be received. The allowance with this head is a reimbursement of sick pay. It does not seem the plaintiff was in reality out of pocket. Accordingly there should be no award of interest.

48 The plaintiff is entitled to judgment as follows: