Lelio Falasca v Margaret Morrissy [1997] ACTSC 70 (19 September 1997)

SUPREME COURT OF THE ACT

LELIO FALASCA v. MARGARET MORRISSY
No. SC 637 of 1995
Number of
pages - 10
Damages - Evidence

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

MASTER CONNOLLY

CATCHWORDS

Damages - Assessment - Personal Injury - Motor Vehicle Accident - Whether underlying degenerative condition of cervical spondylosis rendered symptomatic prior to or as a result of the accident - Whether the degenerative condition productive of pain prior to accident - Pre-existing coronary artery disease requiring major heart surgery subsequent to accident.

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

Watts v Rake [1960] HCA 58; (1960) 108 CLR 158

Nominal Defendant v Gardikiotis (1996) 1 CLR 49

Evidence - Expert medical evidence - Reliance on medical reports based on inaccurate history - Weight attached to such opinion evidence.

Ramsay v Watson [1961] HCA 65; (1960) 108 CLR 642

Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; (1985) 59 ALJR 844

Goldsborough v O'Neill (unreported, Full Court, Supreme Court of the ACT, 29 March 1996)

Browne v Dunn (1893) GR 67

Samels, Problems Relating to the Expert Witness in Personal Injury Cases, in Glass (ed) Seminars on Evidence, Law Book Co, 1970

Freckleton & Selby, Expert Evidence, Law Book Co. 1993

R v Perry (1996) 49 A Crim R 243

Forrester v Harris (unreported, Miles CJ, Supreme Court of the ACT, 2 February 1996)

HEARING

CANBERRA, 24 June, 8-9 September 1997 (hearing), 19 September 1997 (decision)

19:9:1997

Counsel for the Plaintiff: Mr R Williams QC

Instructing Solicitors: Scott Sheils & Glover

Counsel for the Defendant: Mr L M Morris QC & Ms C E Adamson

Instructing Solicitors: Abbott Tout Harper Blain

ORDER

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $8,200.

2. Costs be reserved.

DECISION

MASTER CONNOLLY

This is a claim for damages for personal injuries arising from a motor vehicle accident which occurred on 10 June 1993 on Hayden Drive, Bruce, in the Australian Capital Territory. The plaintiff was stationary in a line of traffic near the entrance to the Calvary Hospital, waiting for traffic lights at the intersection of Hayden Drive and Belconnen way to change at around 6.30 in the evening. The defendant collided with the rear of his car, pushing his vehicle across the mouth of the entrance to the hospital. Liability for the accident has been conceded, and the matter proceeded by way of an assessment only.

The plaintiff was born in February 1958 in Italy. His family first came to Australia when the plaintiff was about 18 months old. His father worked for a period on the Snowy Mountains scheme, and then the family returned to Italy. They stayed there for a period, but again migrated to Australia, this time settling in Canberra. The plaintiff did his primary and secondary education in Canberra. He then completed a Bachelor of Education course at the then Canberra College of Advanced Education, and commenced teaching in the ACT teaching service in 1982, as a primary school teacher, where he has remained to the date of trial.

The plaintiff has also been interested in the teaching of the Italian language. He was responsible for running an Italian course at a primary school some time before the accident. In the year of the accident he was not teaching Italian during his duties at Duffy Primary School, but he had commenced that year part time work after school hours teaching Italian to year 11 and 12 students at Hawker College.

The plaintiff has had to take very little time off work from his job as a primary school teacher. His claim for damages is based on the claim that the accident has caused an underlying and asymptomatic degenerative condition of his cervical spine to become symptomatic, and as a result he claims that his promotion prospects are now limited. He also claims that he is unable to perform after hours work. This claim is particularised on the basis of lost earnings for conducting three after hours classes. The plaintiff performed this work for two years only, in 1993 the year of the accident, and in 1994, and then only for one class, but he gave evidence that, but for the accident, he would have increased his part time teaching load. He also particularises a loss of future earnings for private Italian language tuition, but concedes that he had never in fact engaged in this task.

The plaintiff's claim particularised his disabilities as a result of the accident to include aggravation of a pre existing heart and artery condition and injury to the lumbar spine. Both of these particulars of injury were withdrawn at the resumed hearing of this matter on September 8. I note that when the medical reports of the plaintiff's treating general practitioner were tendered, it appeared that one report, dated February 1997, had not been served on the defendant. In this report his treating general practitioner disavowed any link between coronary artery disease and the motor vehicle accident.

Notwithstanding this report in the possession of the plaintiff's solicitors but not served on the defendant, the plaintiff's solicitors twice filed amended statements of claim pleading aggravation of a pre existing heart and artery condition, on 24 June 1997 on the first day of the hearing of the matter, and on 25 August 1997.

The plaintiff has had to undergo major coronary surgery. The unserved report of his general practitioner states

"He first complained of chest pain and shortness of breath on exertion on the 24th August 1994, and this had been present for several weeks prior to that date. Examination of him on the 24th August 1994 revealed a normal blood pressure, normal heart rate and no signs of abnormality. Chest x ray was normal and I referred him to Dr Peter French for a treadmill test and subsequently a coronary arteriogram. The treadmill test gave a positive finding for coronary artery disease and the subsequent coronary arteriogram showed extensive coronary artery disease and he was referred by Dr French to a cardiothoracic surgeon, Dr Julie Mundy, who carried out coronary artery bypass surgery on five major vessels, in November 1994. Following this surgery he has made a good post operative course with no complications and is currently well and not suffering from any coronary artery pain. On the 27/2/1996 he had a post operative treadmill test which gave a normal response. The extent of Lelio's coronary artery disease is disturbing in a man who is not yet 40 and the fact that he has already undergone coronary artery bypass surgery gives a rather alarming picture for the future in respect of possible myocardial infarction. With regard to his motor vehicle accident in 1993, and any possible connection with his coronary artery disease in 1994, it would seem to me that the extensive nature of this disease process in his coronary arteries, would have been present for some time, and possibly even from early childhood and not related to his motor vehicle accident."

The plaintiff took leave from his primary school teaching in October 1994 prior to his major surgery, but was able to resume teaching at the start of the school year for 1995, and continues. He continued with his Italian teaching at Hawker college after he had taken leave from Duffy Primary School. He says that the students in his Italian class were undertaking the course with a view to being examined as part of their tertiary entrance score, and he did not want them to have to change teachers late in the year. This is a commendable attitude of a dedicated teacher. I must however note that the plaintiff started this part time work for the first time in the year of the accident, and continued with it through that year and through the following year. At the end of that year he underwent major coronary surgery for a condition which his general practitioner described as "disturbing for a man who is not yet 40" and which "gives a rather alarming picture for the future in respect of possible myocardial infarction." Although he resumed teaching after this operation, he did not resume his additional, part time load. Given the temporal link between the heart condition and the abandonment of his additional work, I would require compelling medical evidence to establish, to the balance of probabilities, that the plaintiff's accident related disabilities, said to be the emergence of symptoms of a degenerative cervical condition, have been productive of the loss of capacity for out of hours work, rather than the heart condition.

The plaintiff also gave evidence that he continues to engage in fly fishing and shotgun shooting, both clay pigeon shooting and field hunting. He also plays golf and maintains his membership of a Canberra golf club with ongoing fees in excess of $600 per year. Although he says that he engages in all of these activities with less frequency than before the accident, the ability to engage in activities such as shotgun shooting, which involved what his general practitioner agreed would be a significant degree of stress to the neck and shoulders by way of recoil, as well as golf and fly fishing, both of which involve a degree of neck and shoulder strain, does again raise the need for medical evidence to support the view that while he can engage in these hobbies he is medically incapable, as a result of accident caused disabilities, to engage in some hours of evening teaching.

There was a degree of unanimity in the medical reports served and exchanged prior to the hearing of this case in relation to the plaintiff's neck condition and its relationship to the accident. His general practitioner, Dr Black, in a report dated February 1995 referred to an x-ray of January 1995 which reported

"Mild to moderate lower cervical spondylosis"

and said

"It is apparent that Mr Falasca is now suffering from degenerative cervical spondylosis involving the two cervical intervertebral discs mentioned. It is also apparent that the injury in June 1993 was a significant event in the aetiology of this degenerative condition, however it seems likely that the degenerative changes present probably predated June 1993 and the accident acted as an aggravating factor rather than a total causative one, he certainly complained at no time prior to June 1993 of neck pain and incidentally my records go back to 1972 when he was 14 years old."

Dr Adler, a consultant physician, examined the plaintiff for medico legal purposes in February 1996. He took a history which said

"Mr Falasca denies any previous history of injury to the neck. He has no previous history of neck pain or headache symptoms."

Based on this history and the x-ray material and his examination Dr Adler concluded that the plaintiff has a degenerative condition and that

"...there is no evidence to suggest that degenerative changes were present prior to his accident as he had no symptoms of neck pain at that time. It is likely that such changes have arisen as a result of the accident."

This is consistent with another medico legal report obtained for the plaintiff from a psychiatrist, Dr Dent who said in a report of March 1996, after taking a history that

"He is quite clear that before his accident there was no history of painful neck and the symptoms in reference have only emerged since his accident",

and that

"I am unable to comment as to whether the accident has caused the spinal discal lesions and osteophytes, or whether it is considered that there has been a substantial aggravation of a pre existing disability; one would assume the latter is more likely, since there has been the absence of complaint before his injuries; although a formal statement of that again is within the purvue of the specialist orthopaedic surgeon."

Dr Goldrick, a consultant physician, examined the plaintiff for the defendant in September 1996, and his report was tendered as part of the plaintiff's case. He also took a history of no neck injury prior to the accident. He noted evidence of a degenerative condition of the January x-rays and concluded, on the balance of probabilities, that these changes were caused by the motor vehicle accident.

Dr Battlay examined the plaintiff for the defendant in August 1996, and his report was tendered in the defendant's case. His report says that the plaintiff

"...denies any previous neck problems, injuries, accidents or claims."

He concluded that

"The plain x-rays and MRI scan showed degenerative changes, which need not have been caused by the motor car accident, but to which the accident may have contributed."

All of these reports would amply justify a finding that the plaintiff had a pre existing degenerative condition that was asymptomatic, and was rendered symptomatic by the accident, and damages would be assessed accordingly. All of these opinions were premised on a finding that the plaintiff had had no prior complaints of neck pain.

There was a reference in the notes of the treating general practitioner, which were brought before the court on subpoena for the first day of hearing, to a referral in July 1991 to a physiotherapist, Mr Rumore, for an unrelated complaint. The defendant made enquires of Mr Rumore, and he provided a report of 4 September 1997, in which he said

"This patient first attended physiotherapy on the 23rd December 1991. He presented with bilateral cervico-thoracic and interscapulare pain and right posterior shoulder and arm pain of six weeks duration. The patient indicated that the symptoms were insidious in onset and work related. He had been undertaking self management techniques at home and had utilised heat therapy and stretching techniques without success. He had indicated no previous history relevant to the symptoms. Intermittent aspirin medication was also undertaken. The patient at this stage, was working as a teacher and no other relevant subjective history was noted.

On his initial examination an increase in thoracic spine kyphosis was noted and painful restriction of all cervico-thoracic movements to 75 per cent on range was evident."

The report then set out the treatment and manipulation that Mr Rumore applied. He then said

"The patient next attended physiotherapy on the 6th of April 1992 with a recurrence of low grade cervico-thoracic and interscapulare pain of one month's duration. Again, the objective examination signs mentioned above were noted, however on this occasion a marked increase in the severity of the right upper limb tension test was noted."

Similar treatment was given, and Mr Falasca attended again on 9 and 14 April for further treatment. On 14 April

"...intermittent mechanical traction was included in the patient's rehabilitation."

The plaintiff was cross examined on this point. He had denied prior neck complaints. He said of the presentation in December 1991, when it was drawn to his attention

"I don't recall the neck. I believe I had problems with my left arm, it was a pinched nerve or something."

He said that he did not recall telling Mr Rumore of pain of six weeks duration. He claimed to have little recall of the treatment or number of treatments. He denied having only 25% movement in his neck. The reference to "painful restriction of all cervico thoracic movements to 75% of the normal range was noted" was put to the plaintiff. He replied

"I remember that I was impeded in doing - in movement, but I don't remember it was 75%."

As he had previously denied neck pain, and given that history to all doctors, I will set out the exchange that followed

"Well if this - it was a most significant impediment, wasn't it?--It was painful, yes.

And you couldn't move freely at all, could you?--No, for those - those - that period it was painful yes.

And you couldn't move your neck without pain?--I could move - on certain positions, yes, I had pain.

Well, as soon as you tried to move it more than 25 per cent you had pain, didn't you?--Well, I don't know if it was 25 per cent, that was....

Well, when you tried to move it beyond the limit of your restriction you had severe pain didn't you?--Yes, I had a sharp pain down my arm.

It's been necessary for me to remind you of this, has it?--Yes, it, it.."

The plaintiff continued to maintain that his main problem was his arm. He acknowledged that he had "some discomfort" in his neck. He was then asked to recall the traction treatment, which he described. He was asked whether that was uncomfortable, and replied

"Well, putting weights - I don't know. I can't remember because if it was uncomfortable. Certainly, I wouldn't like to go through things like that every day."

I conclude from this material that the plaintiff presented to his physiotherapist in December 1991 and made complaints of pain, including pain in the neck and on movement of the neck. I conclude that he again presented in April 1992 with similar complaints, and that he received treatment for these complaints of pain, including neck pain, which included traction. He described that in such a way that indicates that it would be difficult to forget traction treatment. Yet I find that he had denied to all treating doctors any occurrence of neck pain. He failed to mention this incident, requiring 4 episodes of treatment over a period of 5 months ending some 14 months before the motor vehicle accident the subject of this claim. Given the importance of the history of no complaint of neck pain to the uniform diagnosis of an underlying degenerative condition which was asymptomatic prior to the accident, this failure to reveal a true history to the examining doctors means that I cannot rely on their reports.

Where an expert opinion is formed on the basis of certain facts, and those facts are found to be untrue or not established, that opinion must fail. I take it as established from Ramsay v Watson [1961] HCA 65; (1960) 108 CLR 642 that a finding of fact contrary to the history given to medical experts will mean that the opinions expressed by those experts cannot be relied upon. When a medical report is based on a history which is shown to be wrong, then

"...the physician's opinion may have little or no value, for part of the basis of it has gone."

per Dixon CJ, McTiernan, Kitto and Windeyer JJ at 649. That this is the effect of Ramsay v Watson seems to have been confirmed by the High Court in Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; (1985) 59 ALJR 844 where it was said

"It is a trite law that for an expert medical opinion to be of any value the facts upon which it is based must be proved by admissible evidence: Ramsay v Watson."

(per Mason ACJ, Wilson, Brennan, Deane & Dawson JJ at 844).

There has developed a practice in this Court, particularly in matters within the Master's jurisdiction to permit, and even encourage, the tender of expert medical opinions by both sides without the need to call each expert to give oral evidence and face cross examination. There are obvious savings to the litigants and the medical profession, in both time and money, in such a practice. It has been expressly endorsed by the Chief Justice in Goldsborough v O'Neill (unreported, Full Court, Supreme Court of the ACT, 29 March 1996). In that case His Honour rejected a proposition that, when a party fails to cross examine on a medical report, they should be taken to agree with it. Miles CJ said

"Litigation, particularly personal injury cases, would become more protracted and more expensive if such a rule were to be observed. Professional witnesses whose reports are in evidence should not be brought to Court to be examined in chief or to be cross examined unless the examiner has made an informed decision that something is able to be got from the witness which is not in the report. The party who puts in the report without calling the maker is normally bound by the limitations of the report, if any, and the maker should not be called to be cross examined on the report simply to avoid any imagined breach of the rule in Browne v Dunn (1893) GR 67."

In accordance with this practice, reports are often put in without the expert being present. This normally creates few problems, but when the report is obviously premised on a history shown to be wrong, and found by the decision maker to be wrong, it must follow that the opinion cannot stand.

It is axiomatic that, when an expert is present and is asked to give an opinion on the relationship between a disability and a set of claimed causative events, the facts put to the witness must ultimately be established if the evidence is to have any value at all. (Samels, Problems Relating to the Expert Witness in Personal Injury Cases, in Glass (ed) Seminars on Evidence, Law Book Co, 1970, p143; Freckleton & Selby, Expert Evidence, para 2310).

If the facts were not so proven, the hypothetical questions seeking an opinion relating the proven facts to the disability, could not be put. It follows that, where reliance is placed on written reports of experts, their opinions are of no weight when the facts on which they base that opinion are established to be incorrect.

Gleeson CJ has stated this position clearly in the context of a criminal trial where he said

"Since opinion evidence involves the drawing of inferences and conclusions from facts, the admissibility of such evidence depends upon proof or admission of the facts upon which the opinion is based."

(R v Perry (1996) 49 A Crim R 243 at 249).

I note that in civil proceedings the better view is probably that such material is not inadmissible, but that little or no weight is attached to opinion evidence constructed on the basis of factual material shown to be false (Freckleton & Selby, Expert Evidence, Ch.11, The Basis Rule). As Miles CJ said in Forrester v Harris (unreported, Supreme Court of the ACT, 2 February 1996),

"It is a trite principle of evidence law that the opinion of an expert, whatever the field of expertise, is worthless unless founded upon a substratum of facts, which facts are proved by the evidence in the case exclusive of the evidence of the expert, to the satisfaction of the Court according to the appropriate standard of proof."

My finding that the plaintiff has made complaints of pain to his neck region and had received a course of treatment for that pain fundamentally undermines that evidence which, relying on a history of no neck pain, expresses the view that the plaintiff's underlying degenerative condition was first rendered symptomatic by the motor vehicle accident. It follows that there is no evidence left capable of supporting such a link, and that the evidence is, broadly, limited to those opinions expressed by Dr Black, who was confronted with Mr Rumore's report and treatment notes. Dr Black agreed that the finding by Mr Rumore of an insidious onset of neck pain was consistent with a first manifestation of symptoms of the underlying condition. Dr Black also expressed the view that the treatment that he gave at the time compared with the 1991 treatment indicated that the former event was of greater significance.

The plaintiff first presented to Dr Black some 8 days after the accident complaining of neck pain. He diagnosed what he described in a report to NRMA of September 1993 as

"...minor whiplash injury involving his cervical spine."

Dr Black referred him to a single episode of physiotherapy (at a different physiotherapist, although Dr Black had no knowledge of the 1991-1992 treatment from Mr Rumore) and certified the plaintiff for one day off work.

Counsel for the plaintiff urged that I should approach the question on the basis of a shifting burden of proof - that is to say, in accordance with the authorities of Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164 and Watts v Rake [1960] HCA 58; (1960) 108 CLR 158, that, the plaintiff having presented a prima facie case to link the neck condition to the accident, it was for the defendant to establish, on the balance of probabilities, that the condition was pre existing and not related to the accident. I do not think that this is the appropriate question where evidence emerges which undermines the history upon which expert opinion is based.

It follows from this that I find that the plaintiff had a previous underlying degenerative condition which had, absent any trauma, given rise to neck pain in late 1991 and early 1992, which required physiotherapy. The treatment at this time was greater than that following the accident. I find that after the accident the plaintiff presented to his general practitioner 8 days after the accident complaining of neck pain, and was referred to one incident of physiotherapy. He next complained of neck pain to his general practitioner in May 1994.

The plaintiff maintained that on other visits to his general practitioner through 1993 he had complained of or mentioned his neck pain, and had been told that it was whiplash and would go away. He maintained this during cross examination on the first day of hearing. During the adjournment the plaintiff's solicitors wrote to Dr Black in the following terms:

"We understand that our client has spoken to you to clarify some of the issues that have been raised in cross examination. For example, we understand that although your notes do not necessarily indicate that there were some ongoing discussions regarding the client's neck problems, these in fact were mentioned from time during consultation. Further, we understand that there may have been some fairly mention of neck injury. We also understand that it is not uncommon for this client to be in the same position as so many in that once their neck problem is diagnosed and that there is effectively little that can be done about it it is not uncommon for those persons to seek no further medical treatment regarding their neck. We would be most obliged if you could drop us a short note prior to the next hearing of this matter on 8 and 9 September 1989." [sic]

This note elicited a response which was tendered as a report from Dr Black, in which Dr Black said in reference to a consultation in December 1993

"Although it is not recorded in that consultation undoubtedly he would have mentioned his neck as to whether it was still bothering him or whether there was pain or not."

The defendant, properly in my view, required that the letter from the plaintiff's solicitor form part of the tender of Dr Black's reports. Counsel for the plaintiff resisted this, but acknowledged that the wording of the letter was "unfortunate". I would go further. I am quite disturbed at a letter from a plaintiff's solicitor which quite expressly puts to an expert a line of cross examination going to the credit of the plaintiff, and suggests in very clear terms the response required. I note that Dr Black was careful in his response, and said that the plaintiff would have mentioned his neck if there was still pain. That is, he did not say that there was a discussion, but that it would have been discussed if there was pain. In cross examination he agreed that he was careful and cautious with his clinical notes, and that if there had been a complaint of pain he would have recorded it. He recorded no such complaint. I find that there was no recorded complaint of pain between June 1993 and May 1994. I find that Dr Black is a careful general practitioner and that he would have recorded any complaint of neck pain made to him by the plaintiff.

I conclude that the plaintiff had a degenerative condition which first manifested itself in painful symptoms to the neck and shoulder area in late 1991 and 1992. I would accept that the motor vehicle accident the subject of these proceedings caused a temporary aggravation of that condition which was self limiting. I accept that the plaintiff complained of pain to his general practitioner 8 days after the accident and had one course of physiotherapy. I find that there was no further complaint until May 1994. I do not accept that by that time the motor vehicle accident was still the cause of that pain.

The plaintiff engages in leisure activities which I find would be prone to cause aggravation to his degenerative conditions. Dr Battlay was aware that he played golf and engaged in fly fishing and said in his report

"His leisure time activities have not been compromised, although I would accept the general proposition that he would develop symptoms while playing golf and fly fishing, shortening periods spent at these activities."

His general practitioner was not aware that the plaintiff used a 12 gauge shotgun for clay pigeon target shooting. In cross examination he agreed that such a weapon would have a

"...pretty significant recoil",

and agreed that that was just the sort of thing which would bring about transient aggravation of an underlying degenerative cervical spondylosis. He also agreed that the action of fly fishing might cause aggravation to a degenerative cervical spondylosis.

The principles to be applied in determining compensation in personal injuries cases have recently been summarised by McHugh J in Nominal Defendant v Gardikiotis (1996) 1 CLR 49 where his Honour said (at 54):

"When a defendant has negligently injured a plaintiff, the common law requires the defendant to pay a money sum to the plaintiff to compensate that person for any damage that is causally connected to the defendant's negligence and that ought to have been reasonably foreseen by the defendant when the negligence occurred. The sum of money to be paid to the plaintiff is that sum which will put the plaintiff, so far as is possible, 'in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation'."

In this case I must assess the plaintiff on the basis of a temporary and self limiting aggravation of a pre existing degenerative condition which had previously given rise to a spontaneous onset of symptoms. I find that this period of pain associated with the motor vehicle accident was limited, and involved one visit to his general practitioner and one occasion of physiotherapy. In respect of general damages, this must sound as but a modest award, as I find that the plaintiff had a degenerative condition of cervical spondylosis which had been productive of pain before the accident, and was vulnerable to aggravation from the types of activity, in particular recoil from shotguns, which the plaintiff continues to undertake. The motor vehicle accident produced one period of aggravation, of limited extent and duration. Lay witnesses spoke of limitations on the plaintiff's day to day activities. Both were aware of his heart condition. I accept that he does make ongoing complaint about neck pain, but I do not now attribute this, for the reasons given above, to the accident. I award the sum of $7,500 by way of general damages. As I find that the period of loss is limited to the past, all of this reflects past loss and generates interest of $642, resulting in a general damages award of $8,142.

I am not satisfied that any claim for past or future income loss is made out. The plaintiff has continued his full time teaching job. He continued to work part time as a teacher until the end of the academic year in 1994, some 18 months after the accident, when he underwent major surgery for a heart condition, and he has not resumed part time teaching. He continues to engage in golf, shotgun shooting both at a range and by way of field hunting, and fly fishing, although he says that he undertakes these activities less frequently than before the accident. There is no medical evidence to support the proposition that while he can work full time, and engage in these activities, he is precluded from part time employment as an Italian teacher by his ongoing condition. Nor am I satisfied that this past aggravation is at all relevant to his promotion prospects. In any event, it follows from my findings in respect of his general damages that I find that his ongoing complaints of neck pain, to the extent that they limit his activities, are no longer related to the motor vehicle accident. I decline to make any award by way of damages for economic loss.

I should add that, if I were wrong about the attribution of his degenerative condition, I would still not be satisfied that the particularised economic loss is made out. The medical evidence describing his condition does not satisfy me that the plaintiff can work his present full hours, and engage in the type of leisure activities described, but not engage in part time teaching or be significantly impaired in his promotion prospects.

In respect of out of pocket expenses, I find that the visit to his general practitioner in June 1993 and the occasion of physiotherapy in June 1993 is accident related. This amounts to $58, which I award. No award for future out of pocket expenses is appropriate.

This amounts to a total award of $8,200.

I will hear the parties as to costs.