Tracy Lee Longo v Dirk Kroon and Ors [1995] ACTSC 25 (17 March 1995)

SUPREME COURT OF THE ACT

TRACY LEE LONGO v DIRK KROON AND ORS
No. SC 630 of 1993
TRACY LEE LONGO v DIANNE REES
No. SC 70 of 1994
Number of pages - 17
Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MASTER A HOGAN

CATCHWORDS

Damages - Assessment - Cervical whiplash - Consecutive accidents - Effects of first accident still persisting at time of second accident - Apportionment.

Nominal Defendant (Qld) v Nilon (1988) 62 ALJR 302

Barbaro v Gambacorta (1987) 6 MVR 99
SGIC v Oakley (1990) Aust. Torts Reports 80-003
Fishlock v Plummer (1950) SASR 176

HEARING

CANBERRA, 28-29 November 1994
17:3:1995

No. SC 630 of 1993
Counsel for the Plaintiff: Mr C.P. McKeown

Instructing Solicitors: Clayton Utz

Counsel for the Defendant: Mr McDonough

Instructing Solicitors: Abbott Tout Russell Kennedy

No. SC 70 of 1994
Counsel for the Plaintiff: Mr C.P. McKeown

Instructing Solicitors: Clayton Utz

Counsel for the Defendant: Mr Nock

Instructing Solicitors: MacPhillamy Cummins and Gibson

ORDER

No. SC 630 of 1993
THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff for $125,927.00

No. SC 70 of 1994
THE COURT ORDERS THAT:
1. Judgment be entered for the plaintiff for $38,901.00

DECISION

MASTER A HOGAN These are two actions for damages for personal injury, which are being heard together by consent. Liability is not in issue in either case.

2. The plaintiff sustained injury in two successive motor car accidents, the first being on 26 June 1990, the second on 10 March 1991. The action relating to the first accident was commenced in the Magistrate's Court, and was removed into this Court after the other action had commenced. Despite the numbering, I refer in these reasons to the action concerning the first accident as "the first action" and the action relating to the second accident as "the second action".

3. The plaintiff was born on 4 January 1965. She completed secondary school to Year 10, and then commenced a 4 year apprenticeship in hairdressing. It was an activity to which she was well suited, and which she enjoyed.

4. She married in 1984, and she and her husband purchased a home, with the usual mortgage commitments. She finished her apprenticeship in 1985, and began full-time adult employment as a hairdresser.

5. In June 1986 she ceased work, being pregnant with her first child, who was born in August 1986. Her second was born in April 1988. In August 1988 she returned to part-time employment on Saturdays, I think because she enjoyed work, as well as needing the money. Her husband worked hard at two jobs, but they would not have had much money to spare.

6. In April 1989 she ceased work because of pregnancy. Her third child was born on 9 August 1989, and in March 1990 she again began part-time employment, working on Saturdays.

7. Against that background I accept her evidence that she would have continued in part-time work until her youngest child started at school, which would be about now, when she would have returned to full-time work, or at least to working five or five and a half days a week. There is no evidence about whether she would have worked from 9 to 5 or from 10 to 3, or some other time, each day.

8. At the time of the accident she was receiving a wage of $50.00 a week. Tax was not deducted.

9. On Tuesday 26 June 1990 she was a front seat passenger in a car being driven by her husband in Ashley Drive. They stopped to give way at the roundabout at the intersection with Isabella Drive, and a car driven by the defendant collided with the rear of their car. She was wearing a seat belt. The accident was not particularly violent, and their car was driveable. They proceeded to dinner after exchanging particulars with the defendant.

10. She then began to notice pain down the right side of her neck and across the right side of her shoulder. She experienced discomfort when she went to work the following Saturday.

11. On 2 July 1990 she consulted her general practitioner, Dr Stevenson. He had x-rays taken, which were normal. He prescribed Naprosyn and referred her to Heather Bond, physiotherapist.

12. She began physiotherapy on 5 July 1990. By this time she was holding her head very stiffly, and extension and rotation of the neck were restricted. The muscles were tight, but not in spasm. She was treated with heat, ultrasound and very gentle muscle stretch. As the neck pain decreased with treatment, the physiotherapist noted complaint of lumbar pain.

13. On 23 July 1990 she complained to Dr Stevenson of electric shock-type pains behind her right ear. He referred her to Dr Danta, neurologist.

14. She did not return to work after 4 August 1990, and saw Dr Danta on 6 August. Neck movements were full, but with pain on lateral flexion. He explained to her the principles of managing soft tissue injury to the neck.

15. She became anxious about the slow progress, and on 15 August Dr Stevenson referred her to a counselling unit for relaxation therapy.

16. She continued to receive regular physiotherapy treatment over the rest of 1990 and early 1991. Her last visit before the second accident was on 8 March 1991. Some restriction of movement was noted.

17. By March 1991, although she was not pain-free, she was feeling a lot better, and felt that her condition was stabilising. She was still taking medications for pain relief. She was seeing Dr Stevenson only for prescriptions. But she was continuing to receive fairly regular physiotherapy treatment.

18. In cross-examination she said that she was working when she had the second accident, and had been back maybe five months. This answer must be treated with caution. It is apparent from her evidence in chief and from the medical reports that she is not a good historian.

19. The physiotherapist reported in January 1991, "I believe Mrs Longo will probably continue to suffer episodes of pain for sometime, but especially when she returns to work." When she attended on 22 February 1991 Miss Bond noted that she was having a busy time at home, taking "kids to school, pre-school etc.". There was no mention of return to work.

20. In February 1992 Dr Bye recorded that during the period of 8 months before the second accident she continued her hairdressing activities. There is no record whether she told him of the length of time for which she did so.

21. In May 1991 Dr Danta recorded that after the second accident she gave up hairdressing.

22. Dr McGrath, who is a specialist in rehabilitation, recorded that after the first accident she ceased working as a hairdresser.

23. She told Dr Long in November 1991 that after the first accident she continued to work "for another week or so."

24. The history recorded by Dr Keiller in September 1991 is that after the first accident, "she kept working until the August, when she had to go off and was away for seven months."

25. The history taken by Dr Corry, also a rehabilitation specialist, was that after the first accident, "She attempted to continue in her work as a hairdresser (she was working one day each week), but after six weeks felt unable to continue. She was then away from work for some seven months. She states that she then attempted to resume work Saturday mornings only. She was continuing physiotherapy twice weekly. She was then involved in a second motor vehicle accident on 10 March 1991."

26. The letter from her employer, exhibit F, states that her last Saturday was August 4, 1990. There is no evidence that she went back to work with any employer other than Erindale Cut Company.

27. I think that the independent evidence and the more contemporaneous record of the physiotherapist are safer guides than the understanding that the doctors had of her recollection, or her recollection during evidence. I think that it is unlikely that she had resumed work before the second accident.

28. On 10 March 1991 she was a passenger in the rear seat of a car being driven in Adelaide Avenue, which also was struck by another car from the rear. It was a more violent impact than the first accident had been. She was wearing a seat belt, but there was no head restraint fitted in the rear seat.

29. She immediately felt pain down the right side of her neck, across the right side of her shoulder and all the way down the right arm.

30. She was taken by ambulance to Woden Valley Hospital. It was noted that her discomfort radiated to the upper thoracic region.

31. X-rays were taken at the cervical and upper thoracic spine, which did not reveal any abnormality. Analgesics were prescribed and she was allowed home.

32. She spent a very uncomfortable night, and went to see Dr Stevenson the next day. Neck and right arm movement was restricted by pain. He continued the prescription for analgesics and physiotherapy, and referred the plaintiff back to Dr Danta.

33. On 3 April 1991 she was examined by Dr Andrews, neurologist, who had been asked to report on the effects of the first accident by the solicitors for the defendant responsible for it. Her complaints of pain to him related to the base of the neck and down the right arm in the C7 dermatome distribution.

34. In his opinion the first accident had been a more minor one, causing soft tissue injury, which had been settling with conservative treatment. The second was more severe, and may have damaged a disc at C6/7. He ordered a CT scan. It was normal. He therefore discounted the likelihood of a disc lesion, and advised conservative treatment. If the symptoms failed to resolve he suggested an MRI scan.

35. Dr Danta saw her on 23 May 1991. Symptoms were persisting. He ordered the MRI scan. It was normal. At Dr Danta's suggestion she ceased physiotherapy.

36. About the beginning of September 1991 she went back to Saturday work as a hairdresser. She managed to continue only for a few weeks. Dr Keiller examined her for the second defendant at about this time. The history and symptoms suggested to him the possibility of some nerve root irritation. He also advised conservative treatment, but assessed her condition as not yet stable enough for a secure prognosis.

37. Dr Stevenson prescribed a muscle relaxant, which gave some relief.

38. Dr Long, consultant physician, examined her for the second defendant on 1 November 1991, but the symptoms which had seemed consistent with nerve root irritation to Dr Keiller and Dr Andrews seemed bizarre to him. Nevertheless he did not suggest that her complaints were not genuine.

39. On 7 February 1992 the plaintiff was examined by Dr Bye for the AMP Society, presumably for the purposes of a sickness or accident policy. Her assessment to him was that by the time of the second accident she was about 70% normal. He noted limitation of neck movements in all directions, with tenderness and muscle spasm in the right trapezius. He diagnosed a soft tissue injury of moderate degree, which he expected to resolve over a period of several years. He assessed her as being entitled to total disability benefits.

40. On 1 April 1992 Dr Stevenson referred her to Dr Cassar for thermographic assessment and treatment of her pain. He administered massage and acupuncture, which gave some relief. In his Thermography Reports to Dr Stevenson in May and August 1993, he thought the prognosis favourable. There was no evidence of nerve root entrapment, and surgical intervention would not be necessary. He also referred her to Mr Petroni, clinical psychologist, who also thought the prognosis was encouraging.

41. Dr Long re-examined her on 7 August 1992, but observed nothing to make him alter his previous opinion.

42. On 21 August 1992 she told Dr Keiller her headaches had become less frequent, but the neck was still sore on the right, with discomfort radiating into the shoulder, at times becoming a pain radiating down the arm to the fingers. Right hand grip was weak. Range of neck movement was almost full. He said that treatment should remain conservative and supportive.

43. Commenting on the two accidents, he said that the earlier trauma would have made her more liable to further injury at a lower level of force, but in general the ongoing complaints were at least 80% due to the second incident.

44. He thought that her condition was stable, with hope for eventual resolution, but with more likelihood of continuing discomfort. She should be encouraged, he said, to begin to return to work on a part-time basis, even though it would be accompanied by discomfort.

45. She was continuing treatment at the hands of Dr Cassar, which in September 1992 she reported to Dr Stevenson was causing her distress. In November 1992 she complained of numbness and other symptoms in the right arm. Dr Stevenson prescribed Naprosyn and asked Dr Danta to review her. In December the arm became more painful, stopping her from sleeping, and causing her difficulty in driving a manual car with unassisted steering. He prescribed Mersyndol Forte.

46. Dr Danta recommended a TENS machine, but it did not help.

47. Dr Keiller saw her for a medico-legal update on 9 February 1993. He thought she still had genuine neck discomfort, extending into the right arm, but no true neurological deficit. Nevertheless, returning to work as a hairdresser would be difficult.

48. She did in fact try some hairdressing at home for family members, and when Dr Stevenson noted swelling of the muscle of the right upper arm on 19 February 1993 he wondered whether it may not have been aggravating her condition.

49. Dr Danta saw her for a medico-legal report shortly afterwards, on 25 March 1993. There was no difference in the clinical findings from those in December, but he thought the prognosis was quite poor because of the chronicity of the complaints. It was difficult for him to envisage a job that she would be able to hold down in view of the pain she experienced in the right arm with virtually any activity involving its use.

50. Asked to apportion the effect of each accident on her employment he commented that it is well known that subsequent accidents have a much greater deleterious effect on patients' symptoms than initial ones, and he would put a figure of 20% to 30% on the first accident and 70% to 80% on the second.

51. I do not regard the arithmetical analysis as being more than a general impression, because the law requires a more sophisticated analysis, as will be discussed later, but the general comment about the effect of subsequent accidents is one that I accept.

52. Her solicitors referred her to Dr McGrath, consultant in occupational medicine, who examined her on 8 June 1993. She told him that at the time of the second accident she was 80% recovered from the first accident. He also reported that the first accident was responsible for 20% of her symptoms.

53. His examination indicated the presence of a segmental disturbance at the C5/6 level of the neck with a corresponding pain pattern. He commented that, although imaging investigations including CT and MRI scans were essentially normal, a negative scan does not indicate the absence of pathology. The pattern of her pain was consistent with his physical examinations, indicating a non-specific injury at the C5/6 level. He advised more active remedial exercises to strengthen relevant muscle groups. He agreed that work as a hairdresser would be difficult for her.

54. Dr McGrath gave evidence and was cross-examined. When it was demonstrated by counsel for the defendant in the second case that the plaintiff was still receiving active physiotherapy treatment only days before the second accident, he agreed that the apportionment should be different from 80/20. He later agreed with Dr Stevenson's comment that it was difficult to give a firm assessment because the injuries due to the first accident might have cleared earlier if not due to the second accident, while the injuries of the second accident might not have been as bad had she not had the first accident. I also agree with that comment.

55. He thought the injury she had was one from which she could recover, if she had more appropriate treatment, over a period of two or three years.

56. In October 1993 Dr Andrews suggested that she be referred by Dr Stevenson to Dr Galloway, a radiologist, for a cervical facet-joint block. She found that procedure painful, and the relief that it gave was only temporary.

57. Further examinations by Dr Long in July 1993 and March 1994 added little to his view of the clinical picture.

58. She continued to see Dr Stevenson from time to time for prescriptions.

59. In March 1994, in an updating medico-legal report, Dr Keiller said that he believed that there was some continuing exaggeration in her complaints, though not necessarily for financial gain. He thought she should be advised to get back to some form of light work, although she remained unfit for hairdressing. He also commented, having seen the records of treatment by the physiotherapist, that she had not recovered 80% from the first accident at the time of the second.

60. The solicitors for the defendant in the second action sought an opinion from Dr Corry, rehabilitation consultant, who saw her on 16 May 1994. He also thought that the plaintiff was not 80% or near fully recovered when the second accident occurred. The first accident may have made her more susceptible to the psychological effects of the second injury. He thought that the causation of her disabilities could be distributed equally between the two accidents. He was also concerned that her deconditioning responses were aggravating her incapacities. He recommended, as had Dr McGrath, a more intensive rehabilitation program, involving both physical reconditioning and psychological counselling. Her employment opportunities were still quite restricted.

61. Dr Stevenson became concerned that the plaintiff might be suffering a post traumatic stress disorder, and referred her to Dr White, consultant psychiatrist. He saw her first on 18 July 1994 and reviewed her on 11 August 1994. His diagnosis was that she suffered from chronic pain and depression, but did not have significant post traumatic stress disorder. Her prognosis depended on her physical condition, but he did recommend five to ten psychiatric counselling sessions for a year, and then less frequently. In her evidence the plaintiff did not say whether she had received, or intended to receive, any treatment from Dr White.

62. In September 1994 Dr Cassar reported to the AMP Society. She had ceased treatment by him in September 1992. He reported that cervical fusion might be needed, though not in the foreseeable future. I think that the weight of expert opinion in this case, and indeed his own opinion in his 1993 thermography reports, is quite clearly to the contrary. His opinion about her capacity for work was not of much assistance to me, either.

63. Finally, Dr Danta reviewed her condition on 7 November 1994. Although in cross-examination she did not agree with all his comments, I think his summary of her present condition is probably as close to being accurate as any succinct statement could be. He wrote,

"Her symptoms have not changed and she complains of a persistent
pain in the neck, largely on the right side, with also pain in
various parts of the right arm. She has not returned to work
since elevating the right arm in the course of her hairdresser's
work makes it worse. At home she is helped out by her husband
and is coping with everything, albeit more slowly. The kids are
no 8, 6 and 5 and they are easier physically to cope with and she
is thus less disabled than last time. She also has power steering
now which makes driving easier and in that sense she has improved.
She has not worked for two years. The improvement is reflected in
the physical findings. Neck movements were full. As previously,
there was tenderness in the deep neck structures postero-laterally
on the right side and slightly over the right trapezius. There
was no tenderness this time over the epicondyles. Muscle power
was now normal and reflexes were symmetrical in the arms. There
was numbness to pinprick over all digits in the right hand but not
in the arm as previously."

64. Nevertheless, his prognosis for further improvement was very poor, and treatment should remain conservative. He thought her chronic pain would continue indefinitely.

65. I do not think that justice would be best served by approaching these cases on the basis of fixing a global figure for her total damage and then attempting to apportion that figure between the two accidents. Yet, to judge from the questions posed to the doctors, and the lack of questions directed towards what I now think to be the real issues, that was the basis on which these cases were prepared for hearing. At the actual hearing counsel for the defendants did attempt to address the real issues.

66. I think it is necessary to attempt to assess her damages in respect of each accident separately, in accordance with principle, while attempting to ensure that she is neither compensated twice over for any element nor under-compensated in the total of the awards.

67. I use the word "attempt" advisedly, and refer to principle with some misgiving. There is poignancy for me in the words used by Mason CJ in refusing special leave to appeal in Nominal Defendant (Qld) v Nilon (1988) 62 ALJR 302, when he said,

"Underlying the assessment of damages for personal injury in
cases of this kind where the plaintiff has suffered successive
and related injuries at the hands of different tortfeasors is a
question of law of fundamental importance. The question is the
subject of continuing debate, no settled principle having
yet emerged: see Baker v Willoughby [1969] UKHL 8; (1970) AC 467; Jobling v
Associated Dairies Ltd [1981] UKHL 3; (1982) AC 794 and Faulkner v Keffalinos
(1970) 45 ALJR 80 at 85. So the question sought to be raised
would attract the grant of special leave in an appropriate case.
But it seems to us that this is not such a case."

68. Whether the present cases are to be suitable vehicles for the elucidation of the relevant principles, or whether they also would be thought to be unsuitable because of the way they were conducted at first instance, as was Nominal Defendant (Qld) v Nilon (supra), I will leave to others to judge. From the way they were argued, also, I did not gain the impression that counsel were anticipating that I would produce, in the course of my reasons, an academic essay elucidating and reconciling the authorities to which Mason CJ referred. I do not propose to attempt that task, therefore.

69. In their addresses, counsel for the two defendants seemed to me to accept the manner in which I proposed to decide the case. I am indebted to Mr Nock for the references that indicate that it is not inappropriate.

70. In Barbaro v Gambacorta (1987) 6 MVR 99 the judge at first instance had assessed the total of the damages suffered by the plaintiff at $134,318. He thought that if the plaintiff had not suffered the second accident his damages would have been 20% less. He entered judgment against the defendant in the first action for $107,454 and against the defendant in the second action for $26,864.

71. The New South Wales Court of Appeal was not persuaded that the issues raised by the cases referred to by Mason CJ in Nominal Defendant (Qld) v Nilon (supra) really arose for determination in the appeal.

72. The first issue raised in the appeal has no relevance to this case.

73. At 6 MVR p.103 Priestley JA, with whom McHugh JA and Clarke JA agreed, said,

"The second issue does not seem to me to arise either. The premise
necessary to be made out before this issue could require
consideration is that the second accident would have produced the
same damage as that caused by the first accident; but the evidence
rises no higher at best than that such a result might have come
about, and further, the fact is that it did not. The question
which counsel sought to raise would truly call for debate if, for
example, in the first accident the plaintiff had lost his right
hand at the wrist and then in the second accident lost his right
arm at the elbow. The situation in the appeal was not one of
that kind. There was no challenge to his Honour's basic finding
of fact that the plaintiff's back symptoms were caused by the
first accident and that the second accident caused an aggravation
of them, which subsided after some months but still contributed to
the plaintiff's ongoing loss of capacity and his ongoing symptoms.
The contention advanced by counsel was that the expert medical
evidence required the conclusion that if the plaintiff had not
suffered the first accident, then the second accident would have
produced the same back symptoms which had been caused by the first
accident. I do not think the medical evidence established this
inherently improbable position."

74. At p.104 he continued,

"A final point relied upon by counsel for Mr Barbaro was that it
was wrong for the trial judge to approach the question of damages
by first asking what was the overall result in money terms of the
consequences to the plaintiff of the two accidents and then to
divide that total figure in the way that he did. Clearly, no
criticism could be made of an approach which looked separately at
all times at the consequences of the two accidents to the
plaintiff. It does not follow that that is the only acceptable
method of dealing with a situation such as arose in the present
cases. The method used by his Honour may well be more likely to
lead to error, if incautiously used, than the obviously
unimpeachable method that I have mentioned. On the other hand,
carefully used, his Honour's method may be appropriate in
particular cases. However that may be, I do not think that his
Honour's use of the method he adopted in the present case led to
any result requiring intervention by this court."

75. This present case is not, on my view of the evidence, one of mere exacerbation by the second accident of an injury caused by the first, nor is it clear that the second accident would have produced the same damage as the first.

76. in SGIC v Oakley (1990) Aust. Torts Reports 80-003 the plaintiff, a nurse, was injured in a motor vehicle accident, which caused soft tissue injury to the cervical spine, resulting in pain in her right shoulder and right arm. There was expert evidence that the disability was permanent, but she was still able to work.

77. Three years after the motor car accident she suffered injury at work, when a patient slipped and pulled on her left arm, aggravating the symptoms of the initial injury.

78. The trial judge accepted an orthopaedic surgeon's opinion that the plaintiff's residual disability was due partly to the first accident and partly to the second in equal proportions, the initial injury having left her predisposed to subsequent neck injury. The trial judge awarded damages on the basis that half the consequences of the second accident were attributable to the first.

79. The Full Court of the Supreme Court of Western Australia upheld that finding.

80. On the evidence in this present case I am not prepared to make a confident finding apportioning responsibility on the basis of the various figures used by the various doctors.

81. Malcolm CJ, however, examined the relevant authorities, and at p.67,577 set out a statement of general principle which I respectfully adopt. He said,

"In my opinion, where the negligence of a defendant causes an
injury and the plaintiff subsequently suffers a further injury
the position is as follows:
(1) where the further injury results from a subsequent accident,
which would not have occurred had the plaintiff not been in the
physical condition caused by the defendant's negligence, the added
damage should be treated as caused by that negligence;
(2) where the further injury results from a subsequent accident,
which would have occurred had the plaintiff been in normal health,
but the damage sustained is greater because of aggravation of the
earlier injury, the additional damage resulting from the aggravated
injury should be treated as caused by the defendant's negligence;
and
(3) where the further injury results from a subsequent accident
which would have occurred had the plaintiff been in normal health
and the damage sustained includes no element of aggravation of the
earlier injury, the subsequent accident and further injury should
be regarded as causally independent of the first.

82. The application of these principles may operate differently in particular cases with respect to general damages, special damages, and economic loss, depending on the nature of the injuries and their consequences.

83. In this case the subsequent accident was not causally related to the plaintiff's condition, as had happened in Fishlock v Plummer (1950) SASR 176.

84. The second accident would have happened, and in my opinion would have caused significant cervical soft tissue damage, even if the plaintiff had been uninjured by the first accident.

85. The second accident, however, not only aggravated the damage caused by the first. It caused additional damage as well. The difficulty is in deciding what was aggravation and what was damage attributable to the second accident only. But, despite the difficulty, the defendant in the first action is responsible only for the aggravation, not for the total effect caused by the second accident.

86. On the evidence I find that in the first accident the plaintiff suffered a moderately severe soft tissue injury in the region of the cervical spine. As a result she was obliged to give up her part-time work as a hairdresser.

87. The second accident happened about eight and a half months later. Shortly before that second accident her condition was that she had improved to some extent, but she had still not returned to work, and she was still receiving physiotherapy treatment. The course of her convalescence had not been smooth, but overall it had been progressive. Had the second accident not happened I think she would have continued to improve to the stage of practically complete recovery. How long that process would have taken the evidence does not enable me to say, but, in the absence of assistance from the experts, I think it would have been of the order of at least one year, and possibly three years.

88. While the effects of that first accident were still subsisting, however, she was at risk. The risk was twofold. The first was that some event, which in ordinary circumstances would not have injured her significantly at all, would cause damage. Since there is no evidence of structural damage, such as a prolapsed disc, that risk was slight. The second was that an incident from which she was going to suffer harm would cause greater injury than it would otherwise have done.

89. If a court had been assessing her damages at the beginning of March 1991 it would have been obliged to take those risks into account as contingencies. The second accident translated contingency into fact. It was the second risk which eventuated. The second accident would have caused harm to her neck even had she been uninjured by the first. Because of the state of her neck which resulted from the first accident, the second accident caused her more harm than it otherwise would have done. That increase is, in my opinion, attributable to the first accident.

90. But what is the extent of that increase?

91. The first aspect is that the psychological effect of the second accident was greater because she had suffered, and was still suffering, the effects of the first. She volunteered in evidence that when she heard the noise of the collision behind she said, "Oh no, not again", and then the impact took place. Dr Corry noted that the first accident may have made her more susceptible to the psychological effects of the second injury. I think that it did, to a significant, but not objectively measurable, extent.

92. The second aspect is that the effect of the second accident upon the tissues of her neck was the greater because of the damage that had already been done. This is not a case where the particular tissue or organ can be identified, and its state before and after the second accident demonstrated. Dr Corry examined the relevant medical records carefully. There had been right-sided neck pain, and her arm had been affected after the first accident. She was recovering. I agree with Dr Corry's assessment that her recovery was much less than 80% at the time of the second accident. But her continuing symptoms before the second accident were not particularly referred to her right arm.

93. I think it is significant that immediately after the second accident she felt pain down the right side of her neck, across the right side of her shoulder and all the way down the right arm. Dr Andrews assessed the right arm pain as being in the C7 dermatome distribution, and suspected C6/7 disc damage. The radiological investigations did not support that hypothesis, but, as Dr McGrath commented, they did not indicate the absence of pathology. I think that the history of her complaints indicates that more probably than not the damage that caused the persisting right arm symptoms was done in the second accident. The affected tissues may have been more susceptible to that damage because of the first accident, but the evidence, indeed, the state of medical knowledge, is such that the extent of that susceptibility, or even its mechanism, cannot be demonstrated.

94. I think that the effects of the first accident, had the second not happened, would by now be minimal. Its effect in making the results of the second accident more severe are also largely spent by now.

95. For the pain and suffering and loss of amenity caused by the first accident I award $30,000, of which no part relates to the future.

96. The bulk of the pain and suffering attributable to the first accident occurred before March 1991. I allow $4,500 for interest on general damages in the first action.

97. The out of pocket expenses incurred before 10 March total $2,126, which I also allow in that action. They are unpaid, and interest is not claimed on them.

98. Although the award for pain and suffering is greater than it would have been had the second accident not happened, it is not possible to identify any out of pocket expense which was incurred because the effects of the second accident were more severe than they would have been had the plaintiff not been injured in the first. I will therefore allow the balance of the out of pocket expenses in the second action.

99. A different result may be reached when considering the question of economic loss. It must be borne in mind that what is being valued or estimated is a diminution in income-earning capacity, in so far as it has resulted in economic loss to the plaintiff.

100. If a court had been assessing her damages on 9 March 1991, it would have awarded her a past loss to that date at $50 a week, and a loss for the future at the same rate for a period between one and three years. The possibility that she might be otherwise injured in that future period would be a contingency tending to discount the amount that would be awarded. That discount would have been minimal, because of the shortness of the time and the nature of the injury. but in the events which have happened, the contingency has become reality. The assessment must be made in the light of the events which are known to have happened.

101. The second accident, and the fact that it destroyed her income-earning capacity, was not causally related to the first accident, in the sense of the first paragraph of the statement of principle by Malcolm CJ set out above.

102. Neither was the diminution in income-earning capacity after 10 March 1991 greater because of aggravation of the earlier injury. She was unable to work at all both before and after the second accident. Had she not been injured at all she would have continued to work only on Saturdays until this year. Had she not been injured in the second accident she would have returned to work, on Saturdays only, at some time, probably not before early 1992. There was therefore a probability of economic loss continuing for a time after March 1991. But that last probability is subject to the contingency that became fact, namely the second accident.

103. I think that in the particular circumstances of this case, the economic loss attributable to the first accident is that which occurred up to the date of the second accident, and all the economic loss since then, and into the future, is attributable to the second accident.

104. In the first action, therefore, I allow a loss of $50 a week from 11 August 1990 to 11 March 1991, which is $1,500. Interest on that sum, calculated from 11 March 1991 to date in accordance with the practice directions, is $775. The total award in the first action is therefore made up as follows:

Pain and suffering $30,000.00
Interest 4,500.00
Out of pocket expenses 2,126.00
Economic loss 1,500.00
Interest 775.00
_________
$38,901.00
_________

105. In the second accident the plaintiff suffered a more severe impact, resulting in a more severe injury to the soft tissues of the neck, and resulting in pain extending into her right arm.

106. Although she has wanted to return to hairdressing, and has attempted to do so, she is not yet fit to do so, principally because of the effect of the second accident on her arm.

107. She has been upset and depressed by the continuing pain and her inability to return to work. It is now four years since the accident. There has been some improvement in her condition. If she receives appropriate treatment, as suggested by Drs McGrath, Corry and White, she may well become fit for at least part-time work. If that improvement takes place it will do so gradually. At best she will always have some discomfort, becoming painful after exertion of her right arm. At worst, her condition will not improve, and she will always be disabled by pain.

108. When assessing damages for her pain and suffering in the second action I bear in mind that her condition was initially, at least partly, an exacerbation of a pre-existing condition, in respect of which she has already been awarded compensation. I bear in mind also that she has already been compensated for the extent to which her injuries were the greater because of the first accident.

109. I award $30,000 for pain and suffering in the second action.

110. Interest on that component, on the conventional basis, is, in round figures, $2,400.

111. The out of pocket expenses since 10 March 1991 total $6,327.

112. A calculation of past economic loss on the basis of $50 a week to the present seems to me to be just as between the parties, as wage increases and possible full-time work are offset by contingencies. I allow $10,500 for past economic loss.

113. Interest calculated on one half of that amount in accordance with the practice direction is $2,700.

114. It was reasonable for the plaintiff to change over from a manual to an automatic car with power steering, and the need to do so resulted from the condition of her arm. I award the cost of the changeover in the second action at $9,000.

115. I am satisfied that the plaintiff will incur some cost of medical treatment for some time in the future, and may well be incurring expense for medication for the rest of her life. An award for this item is more a matter of judgment than calculation. I award $5,000 for the cost of future treatment.

116. The plaintiff said in evidence that she intended to work part-time during 1994, as her son was in pre-school, and then in 1995 to work longer hours to pay off the mortgage. Asked when she would have retired she said "I don't know, maybe 50, 55." She is now 30.

117. If she were working 20 hours a week she would earn about $147 a week. If she worked full-time the award rate would be $281 a week.

118. I am not persuaded that she would have worked full-time until she was 55. There is no evidence about when the mortgage would have been paid off. She nevertheless enjoyed the occupation, and may well have continued in it part-time into her fifties.

119. The present value of $150 a week for 20 years at 3% is $118,147. For 10 years it is $67,741.

120. I take into account the fact that she may improve to a state where she will be able to return to work. She is obviously motivated to do so. That may happen within ten years. It may not happen at all, though I think it probably will. I do not think that her future loss should be discounted because of any injury she received in the first accident. The normal contingencies of life are also to be taken into account.

121. I allow $60,000 for future economic loss.

122. The total award in the second action is therefore made up as follows:

Pain and suffering $30,000.00
Interest 2,400.00
Out of pocket expenses 6,327.00
Past economic loss 10,500.00
Interest 2,700.00
Motor vehicle 9,000.00
Future treatment 5,000.00
Future economic loss 60,000.00
_________
$125,927.00
_________

123. Looking at the total of the two awards as a global sum, and at the proportion between the awards in each action, there does not seem to me to be any disproportion, double counting or under-compensation.

124. In action No.SC 70 of 1994, Longo v Rees, I direct the entry of judgment for the plaintiff for $38,901.

125. In action No.SC 630 of 1993, Longo v Kroon and ors, I direct the entry of judgment for the plaintiff for $125,927.