Owen v Allard [2011] ACTSC 179 (11 November 2011)

DAMAGES – personal injury – whiplash injury to neck – injuries to zygapophysial (facet) joints in cervical spine – efficacy of percutaneous radiofrequency neurotomy treatment – no issue of principle

1. The solicitors for the plaintiff are to provide to the solicitors for the defendant within fourteen days a list of treatment expenses and other out-of-pocket expenses claimed by the plaintiff to date, with a calculation of interest claimed on the total.

2. The solicitors for the defendant are to inform the solicitors for the plaintiff within seven days of receiving the figures whether they are agreed. If not, the solicitors for the defendant are to provide to the solicitors for the plaintiff a brief submission setting out the basis of the disagreement.

3. Each party be at liberty to list the matter for final orders on two days notice to the other party.

1. The plaintiff claims damages for personal injury. On 30 June 2003 she was a front seat passenger in a car driven by her husband. It was a wet day. There had been an accident ahead, and they stopped in a line of traffic. A car ran into them from behind at considerable speed, pushing their car into the rear of the car in front of them. Liability is admitted.

2. The plaintiff was born in July 1981 and is now 30. She has lived in Canberra since the age of about eight. She comes from a musical family and showed early promise as a violinist. She did well generally at school. She was a student at the School of Music at the Australian National University at the time of her accident, and graduated the following year with first class honours.

3. She was very much involved in music whilst at school and at university. She passed the various levels of examinations conducted by the Australian Music Examinations Board on violin, becoming an Associate in 1997 and a Licentiate in 2000. She participated in many choral and orchestral performances. While at university she taught on evenings and Saturday mornings at the Phillip Music Learning Centre, and performed with the Canberra Symphony Orchestra among others. Her studies, lessons and performing work required many hours of practice playing the violin. From time to time the plaintiff performed at weddings and other functions as a member of a string quartet.

4. The plaintiff married in late 2002. Her first marriage did not last. There is a suggestion that her injuries played a part in its failure, but the evidence is insufficient to satisfy me of this. She divorced in 2005 and has since remarried.

5. The major injury suffered by the plaintiff in the motor car accident was to her neck. There was some low back pain in the period after the accident but this seems to have resolved completely.

6. By the time of the accident the plaintiff was giving violin lessons at a Canberra business, Music for Everyone. Because of neck pain she took a couple of weeks off from this work after the accident but then resumed. She put up with neck pain as she got on with her university studies and orchestral performances. By arrangement with her supervisor, a scheduled honours recital for July 2003 was postponed until the following March.

7. The plaintiff was taken to Calvary Hospital by her parents immediately after the accident, and received some treatment in the emergency department. She went home. Her neck pain became increasingly severe. She saw a general practitioner the next day. She also had some physiotherapy treatment. She was prescribed pain killing and anti-inflammatory medication. There were occasions where she was forced to withdraw from concert commitments because of severe neck pain.

8. In late 2004 she went to London with her parents for an audition with the Royal Academy of Music. She was successful, and commenced a graduate diploma course at the Academy in August 2005, graduating with distinction in June 2006. In December 2005 she came home for Christmas. She was referred to a pain management specialist, Dr Wade King, in Newcastle in New South Wales. Her mother had some time earlier been treated by Dr King for a back injury following a fall at work.

9. The plaintiff returned to Australia permanently in July 2006. On a number of occasions she has had treatment by Dr King in the form of percutaneous radiofrequency neurotomy to three of her cervical zygapophysial or facet joints. The plaintiff’s evidence is that these treatments relieve or entirely remove her pain for extensive periods, although ultimately severe neck pain returns and the treatment needs to be repeated.

10. The treatment by Dr King between September 2006 and April 2008 was paid for by the defendant’s insurer. In June 2008 the insurer refused to pay for further treatment by Dr King. The evidence is that the plaintiff on consideration took the view that it was essential for her to continue to have the treatment, and from then on she paid for it with assistance from her parents.

11. The major issues in the case are whether the plaintiff’s present symptoms and complaints of disability are causatively related to the motor accident, and, assuming that they are, whether the mode of treatment offered by Dr King is reasonable and appropriate.

12. The defendant’s insurer had the plaintiff examined for medico-legal purposes by Dr Nicolas Burke, occupational physician, in May 2004, and by Dr Max Wearne, orthopaedic surgeon, in October 2006. Dr Burke and Dr Wearne each saw the plaintiff again in late 2009 and provided refresher reports. The solicitors for the defendant also had the plaintiff seen in November 2008 by Dr Ross Mellick, neurologist.

13. Dr Burke in 2004, less than a year after the car accident, thought that the plaintiff had made a reasonably good recovery from a soft-tissue injury to the neck. By the time he saw her, he thought that her injuries had stabilised and that she was likely to improve further over the next one to two years. She would probably continue to experience some symptoms associated with particularly physically demanding activities such as violin-playing, but he expected such symptoms to diminish with time, and not to cause any significant impediment to her career as a violinist. Her condition was probably due to damage to soft-tissue structures in the neck and shoulders.

14. Dr Wearne in his 2006 report expressed a similar view, although by the time he saw the plaintiff her symptoms had not improved as expected by Dr Burke. She had in July 2006 had two pain blocks into the right side of the neck carried out by Dr King, which had given temporary pain relief. Her first radiofrequency treatment was in contemplation.

15. Dr Wearne thought that her symptoms were consistent with a soft-tissue injury to the neck and upper back. He found no evidence of any significant injury to the cervical spine. Her injuries had taken longer to resolve than would be expected with the average person, probably because of the demands of her profession as a violinist. He was satisfied that she would ultimately be left with no disability affecting her musicianship or earning capacity. He found no evidence of exaggeration and accepted the plaintiff as honest and still in some genuine discomfort.

16. Dr Mellick in his report of December 2008 recorded a history of treatment by Dr King including diagnostic blocks and radiofrequency neurotomies commencing in September 2006, following which the plaintiff reported that her symptoms had worsened. She continued to experience pain in the lower part of the neck extending along the top of the shoulders. Her earlier low back pain had entirely resolved. She continued to complain of headaches, and was also seeing a psychologist because of mood disorder and stress.

17. Dr Mellick expressed the opinion that the cause of the plaintiff’s symptoms had probably been soft-tissue injury at the time of the accident. He found no evidence of any abnormality of the facet joints in the cervical spine. Any soft tissue injury should be regarded as having fully resolved in accordance with the known natural history of injuries of that kind. The plaintiff’s headaches were due to muscle tension.

18. Dr Mellick said that radiofrequency neurotomy was not justified as a reasonable treatment for tension headache. He thought that more appropriate treatment would be directed toward reducing the plaintiff’s stress and related mood disorder. He concluded that the plaintiff had no disabilities resulting from the motor accident by the time he saw her. She had fully recovered from soft-tissue injuries sustained five years earlier.

19. It will be recalled that Dr Burke had seen the plaintiff before she came under Dr King’s care. Following his review in October 2009, Dr Burke confirmed his earlier view that the plaintiff had suffered a soft-tissue injury in the car accident, from which she had effectively recovered. He thought that the neck pain and headaches she continued to suffer were probably constitutional in origin, contributed to by postural factors associated with her prolonged violin work, and aggravated by psychosocial factors. He regarded the probability that the car accident was continuing to contribute to her symptoms as low. He noted that she had suffered from some neck pain prior to the accident associated with her lengthy sessions practising the violin.

20. Dr Burke was invited by the defendant’s solicitors to comment on the treatment provided by Dr King. He located and provided to the solicitors a then-recent paper on treatment of neck pain by EJ Carragee and others, saying that the authors had found no evidence supporting the use of facet joint injections or radiofrequency neurotomy for the treatment of neck pain. He expressed his own opinion that the evidence basis for radiofrequency neorotomy treatment for chronic neck pain was not strong. Accordingly, the treatment undergone by the plaintiff was not and had not been “reasonably necessary to treat any injuries associated with the accident”. Dr Burke is an occupational physician and does not hold himself out as having any particular personal expertise in the area of medicine on which he was commenting. I had the impression that he had simply conducted some personal research, prompted by the request by the solicitors for his opinion on the treatment regime.

21. Dr Wearne provided a refresher report also in October 2009. He recorded continuing complaints by the plaintiff of neck pain and headaches. He was provided by the defendant’s solicitors with copies of reports by Dr King. Dr Wearne was sceptical of Dr King’s findings and noted that the radiofrequency neurotomy method of treatment was not universally accepted.

22. Dr Wearne repeated his earlier opinion that the plaintiff had recovered from soft-tissue injuries suffered in the motor accident, and that her continuing symptoms were similar to symptoms she had had previously. Dr Wearne’s opinion was that the plaintiff should not repeat the radiofrequency blocks, which were based on a questionable premise. He queried whether there might be some unknown organic component to the plaintiff’s complaints on which he was not qualified to comment. He thought that her disabilities were mild and that her neurotomy treatment was “out of proportion to her symptoms and disability”. He thought that she would continue to experience intermittent neck and shoulder discomfort, but this had nothing to do with the car accident, and was related to her pre-accident condition. Her working capacity was hence unaffected by the accident.

23. The research paper provided by Dr Burke to the defendant’s solicitors was tendered and is in evidence. It is a paper by thirteen medical practitioners with specialist and higher academic qualifications, mostly based in the United States of America and Canada. It was published in February 2009. Its abstract states that the objective of the project was to identify, appraise and synthesise literature from 1980 to 2006 on surgery from neck pain. Almost 32,000 articles were screened, identifying 1200 relevant studies, 31 of which dealt with treatment by surgery or injection. Among a number of conclusions was one that radiofrequency neurotomy, cervical facet injections, cervical fusion and cervical arthroplasty for neck pain without radiculopathy were not supported by current evidence. The conclusion to the paper included what was described as an evidence statement that there was no clinical evidence to support the use of radiofrequency neurotomy for suspected zygapophysial pain. It is apparent that the paper is not the result of a research project carried out by its authors at first hand but rather of a review of 26 years of earlier research papers.

24. Before she saw Dr King, the plaintiff was referred by her general practitioner to Dr Garth Eaton at the Canberra Injury Management Centre. He saw her over a period from September 2003, using a team including a physiotherapist and a psychologist. Dr Eaton recorded in a report in April 2004 that the plaintiff had been referred to a neurosurgeon, Dr Chandran, who had suggested a facet joint injection, but this had not proceeded because the insurer refused to pay for it. Dr Eaton thought that the plaintiff’s prognosis for full recovery was excellent.

25. The plaintiff’s general practitioner reported in February 2005 that she had received significant benefit from her course at the Canberra Injury Management Centre, although she continued to complain of neck pain and related symptoms. He thought it reasonably likely that extra wear on the neck as a result of the car accident might result in early osteoarthritis over time, and that it could lead to difficulties in later years, perhaps to early retirement.

26. The plaintiff continued to suffer from some psychological symptoms, in the form of mild depression and stress. A psychologist who saw her, apparently at the request of her solicitors rather than on referral from a treating doctor, thought that whilst she did not meet the criteria for any psychiatric disorder in the Diagnostic and Statistical Manual of Mental Disorders, she was nevertheless suffering from a significant reaction to her persistent pain and consequent stresses arising from her inability to work consistently. She was suffering significant unhappiness and was struggling to cope. She would benefit from a number of sessions of psychological counselling. This opinion was supported by a general practitioner at Hawker seen by the plaintiff in 2007 and 2008.

27. The principal medical witness in the plaintiff’s case was Dr King, who provided a number of reports and gave oral evidence. Dr King has postgraduate qualifications in musculoskeletal medicine and in pain management, and hospital and academic appointments in Newcastle. He first saw the plaintiff in December 2005, two and a half years after her car accident. She was still complaining of pain in the lower neck, shoulders and arms, and occipitofrontal headaches. The pain was deep, dull and aching in quality, and constantly present although varying in intensity. It was aggravated by particular head and neck movements, including movements involved in playing the violin. Previous treatment had included physiotherapy, analgesic and anti-inflammatory medication, and cognitive behavioural therapy as part of a multidisciplinary pain management course. X-rays and CT scans revealed no specific sign of abnormality likely to be relevant to the complaints of pain.

28. Dr King thought it essential to identify the cause of the pain. It was not unusual in cases of chronic pain for the cause never to have been identified. This was quite logical: if the cause was not identified, precise treatment was not possible. Dr King said that there were a limited number of possible causes of pain of the kind the plaintiff complained of. Many of the causes could readily be treated if precisely identified. Treatment which was not directed at the precise source of the pain was unlikely to be effective. Dr King recommended investigation by specific comparative nerve block tests, which had the potential to identify pain sources precisely, with a view to specific treatment. He undertook such tests in accordance with protocol recommended in the scientific literature. The tests involved the insertion of fine spinal needles into the plaintiff’s neck under fluoroscopic guidance, placing their tips at specific target sites on the cervical vertebrae where the cervical medial branch nerves are located. He injected a very small volume of a local anaesthetic agent on each target nerve, using different anaesthetics on different occasions. He performed the procedures under double-blind conditions. If pain was abolished at a particular site, this was a positive outcome and that joint was diagnosed as a source of pain, provided that the same result was achieved on two separate occasions for adequate lengths of time.

29. By using this process, Dr King identified three joints as sources of pain: the right and left C2-3 facet joints, and the right C5-6 facet joint. He noted that this diagnosis was consistent with the pattern of symptoms described by the plaintiff, as well as with his findings on clinical examination, the results of previous imaging investigations, and the known mechanism of injury, namely the rear-end collision of June 2003.

30. Dr King explained that the nature of injury to the facet joints had been demonstrated by pathological studies, based on hundreds of post-mortem examinations, some being of people who had died as a result of accidents involving joint injury, and others of people who had been injured in collisions and suffered chronic spinal pain, and had later died of another cause. The studies showed injuries such as splitting of the cartilages lining the internal surfaces of the facet joints, small indentation fractures of the joint surfaces, and tearing of the capsules holding the parts of the joints in their proper position. The injuries were very minor to observation, generally so small as to be undetectable on x-ray, but having the clinically significant effect of making the joints involved chronically painful. The pain caused, he said, is severe even though the actual injuries are so small, because the intra-articular soft tissues and capsules of the joints are richly innervated and hence very sensitive, with a nerve density and pain sensitivity comparable to the inner tissue of a tooth. When such tissues are damaged even in minor ways they can give rise to excruciating pain.

31. Studies had shown that such injuries do not generally expand or get significantly worse over time. They just stay there indefinitely, causing chronic pain in the distribution of the nerve supplying the injured part. Such injuries are thus not significant structural problems but are essentially pain problems.

32. His prognosis was accordingly that the plaintiff’s pain and associated disability would persist indefinitely. He said that studies showed that the majority of cervical facet joint injuries due to physical trauma healed spontaneously, generally within about three months. However, a substantial minority, about 15%, being presumably the more severe ones, do not heal but go on to cause pain indefinitely. Dr King accordingly concluded that without treatment, on the balance of probabilities, the plaintiff would continue to suffer significant symptoms and associated disabilities indefinitely, probably for the rest of her life.

33. Dr King went on to say that treatment depended on the accuracy of the identification of the source of the pain. There was no known cure for facet joint injury, in the sense that it was not possible to return an injured facet joint to its pre-injury state. Management therefore had to be focused on controlling the symptoms. There were general and specific measures available for that purpose. General measures included modifying activity to minimise the effect of aggravating factors; local application of heat; and analgesic medication. These measures provided only temporary relief, for minutes or hours at a time, and needed to be repeated regularly if pain control was to be achieved. Other general methods often used in the treatment of neck injury had been shown by systematic review of therapeutic studies to lack evidence of efficacy. Such methods included hydrotherapy, traction, manipulative therapy, exercise, neck braces, acupuncture, magnet therapy and transcutaneous electrical nerve stimulation. Such methods were best avoided because they added to the cost of treatment without improving the outcome.

34. The only specific treatment considered rational on the basis of scientific evidence was percutaneous radiofrequency neurotomy, which involved an operation which altered the conductivity of the small sensory nerves supplying the injured facet joints, impeding transmission of pain from those joints to the brain. The treatment had no effect on the underlying injury, but would abolish or at least substantially reduce the chronic pain generated by the injury.

35. The percutaneous radiofrequency neurotomy procedure involves the introduction of an electrode under local anaesthesia at the site of each nerve previously identified as a cause of pain. A radiofrequency generator is then used to apply a controlled amount of radio energy to a small part of the nerve in such a way as to prevent its conduction of chronic pain signals without causing permanent damage to the nerve. Only one joint can be treated on each occasion because of the duration of the procedure (usually about four hours) and the need for the patient to recover from the effects of the treatment.

36. Radiofrequency treatment denatures the targeted nerve chemically, inducing prolonged neural blockade with abolition of pain from the target joint while the effect lasts. The duration is for extended periods, on average about a year. During this time most patients are able to resume previous activities without pain. Eventually the treated neural tissue regenerates chemically. The nerve conduction is then restored and the pain recurs.

37. The treatment can be repeated, approximately once a year, for as long as the problem persists. The effect of the treatment on the nerve is chemical, interrupting conduction of pain signals. It does not damage the nerve anatomically. Other methods have been tried in the past, such as cutting the nerve, but these methods have been found to induce neuroma formation, causing further problems including intractable and more severe pain. Accordingly, although radiofrequency neurotomy involves a complex procedure and has to be done repeatedly over time, it is the treatment of choice for facet joint impairment. Dr King says that it is the only specific treatment for facet joint impairment that has been tested and proven effective by formal randomised controlled clinical trials, and is thus the only treatment for which there is valid evidence of efficacy in the scientific literature. Other attempts at specific treatment such as surgical fusion of the spine are advocated by some but have not been proven effective by controlled clinical trials and are no longer considered a treatment of choice by practitioners who rely on scientific evidence.

38. By the time of his report in February 2008 the plaintiff had been treated twice at C5-6 and once of each side at C2-3. All four treatments had had successful outcomes. Pain had been relieved. The number of painful sites and the intensity of neck pain as a whole had been reduced. Dr King thought at that time that he would need to repeat the treatment at approximately annual intervals to keep the symptoms under control. The likely cost at that time would have been of the order of $6,500.00 per year plus analgesic medication as required, consultations with the general practitioner from time to time and other incidentals.

39. Dr King said that the effect of the plaintiff’s injuries and her capacity for work had been considerable. When her pain was present her ability to perform as a violinist was markedly reduced because of pain. In particular, she had difficulty bending her neck to hold a violin in the correct position for prolonged periods. This had limited her capacity to undertake remunerative employment as a player and teacher. Following treatment, her disability was almost completely removed for the period the neural blockade remained effective.

40. In a report in March 2009, Dr King said that the plaintiff had continued to require treatment of the injured facet joints by radiofrequency neurotomy to control her pain. The treatment had been effective. Treatment of the left C2-3 joint performed in April 2007 had worn off by April 2008. The defendant’s insurer agreed to pay for a repeat of the treatment in that month. In June 2008 the effect of the treatment of the right C2-3 joint carried out a year earlier had worn off. Dr King applied to the insurers in the usual way for funding to repeat the treatment but on that occasion the request was refused. By the end of June 2008 the plaintiff was in severe pain and unable to work. Over the next few months she continued to suffer severe headaches and upper neck pain from that joint. In September 2008 her condition worsened when the effect of the treatment of the right C5-6 joint carried out a year earlier wore off. Her lower right-sided neck pain then returned. Her general practitioner prescribed a strong analgesic medication but this did not help to any significant extent. In November 2008 Dr King was told that the insurer was not prepared to fund any further neurotomy treatment.

41. It was at this time that the plaintiff decided that it was essential to have the treatment, which she paid for with the help of her family. The further treatments were carried out in December 2008 and January 2009. These were successful. The plaintiff was again free of pain and able to return to work and resume her other activities. Dr King concluded that her pain and other symptoms were completely controlled by radiofrequency neurotomy treatment. When all three joints had been treated, she was free of pain and able to enjoy a normal life. The treatment had to be repeated at intervals of about a year, and this would probably remain the case for the rest of the plaintiff’s life.

42. Dr King gave oral evidence in March 2010. He said that he had been performing neurotomies for some fifteen years. His practice was totally devoted to pain management. He had performed neurotomies on some hundreds of patients. His experience was that injuries to the cervical facet joints were invariably caused by trauma. The forces involved had to be sufficient to damage the tissues of the joint. Repetitive limb movements were insufficient to cause such damage.

43. Since his last report he had carried out two more treatments on the plaintiff, in July and October 2009. He explained that the treatment is quite painful. The electrode used is about the size of a knitting needle and is inserted into the patient’s neck under local anaesthetic about a dozen times. The patient would be expected to have a very sore neck after the procedure, requiring analgesics and a cold pack. The patient needs to recover from a single treatment before another can be carried out, and Dr King would generally space treatments out by about three or four weeks.

44. Dr King was extensively cross-examined by counsel for the defendant. He did not accept that injury to the facet joints could arise purely from the process of degeneration. It was put to him that most doctors would disagree with him about that. He accepted this and said that it was a never-ending source of amazement to him that doctors of great experience still held that belief. It was thought to be the case during the 1960s and 1970s, but science had moved on since then, and it was now accepted that degenerative changes in the spine were not in themselves causes of pain. Dr King was asked whether he was familiar with the Carragee study which had been brought to attention by Dr Burke. He was familiar with the paper. He explained that the paper had considered a number of studies which used a totally different technique, although also called percutaneous radiofrequency neurotomy. The procedure used by Dr King, he said, had the approval of the International Spine Intervention Society.

45. Dr King was aware that the treatment he offered was available in Canberra. He nevertheless thought it preferable for the plaintiff to continue with his practice in Newcastle where it was established that the treatment he provided had been successful.

46. The defendant’s doctors were called to give brief evidence by telephone, and were each asked their opinion as to whether a degenerative condition in the cervical spine could cause pain in the absence of trauma. Dr Wearne answered this in the negative. Dr Burke and Dr Mellick both answered in the affirmative. None were specifically asked about pain arising from the cervical facet joints, or about the effect of damage to those joints of the kind described by Dr King.

47. The plaintiff’s case was supported by oral evidence by Ms Barbara Jane Gilby, a violinist who is concertmaster of the Canberra Symphony Orchestra. She taught the plaintiff at the School of Music at the Australian National University for four years, during her undergraduate studies, and performed with her subsequently as a fellow member of that orchestra. Prior to the accident she had every confidence that the plaintiff would be able to become a professional musician, either as a member of an orchestra or in some other capacity. She became aware after the accident that the plaintiff was in pain. Prior to the accident the plaintiff had the potential, in her view, to be a violinist in a full-time professional orchestra, perhaps becoming a principal second violin or possibly an associate concertmaster.

48. Ms Josette Esquedin Morgan also gave evidence. She had trained in violin in Europe, migrating to Australia in 1954. She was a member of the Melbourne Symphony Orchestra for a period of ten years, and then concertmaster of the Canberra Symphony Orchestra for fifteen years. She taught the plaintiff violin for ten years as a schoolgirl, and had no doubt that she had the potential to become a member of a full-time orchestra. She said that the violin is the most physical of all instruments. She had observed after the car accident that the plaintiff appeared in great pain after practising for something less than an hour. As she expressed it, if your body does not function 100% you cannot play the violin. If it had not been for the car accident, Ms Morgan saw the plaintiff’s future as in the top bracket as a musician within Australia.

49. I formed the view that the plaintiff was an honest and genuine person. No suggestion to the contrary was made by counsel for the defendant. I accept the plaintiff’s evidence.

50. On the principal medical issue in the case I prefer the evidence of Dr King to the opinions expressed by the defendant’s doctors. I am convinced that Dr King’s diagnosis of damage to both facet joints at C2-3 and the right facet joint at C5-6 as the cause of the plaintiff’s pain, and the indirect cause of her headaches, is correct. This is established beyond doubt by the results of his treatment, that is the removal of pain for a period of about a year following radiofrequency neurotomy at the three sites. Dr King’s explanation of the diagnostic and treatment procedures I found thorough, intelligible and persuasive.

51. I note in passing that Dr King’s evidence about treatment of this kind has previously been accepted in this court, by then Master Connolly in Zapantis v Gregory [2002] ACTSC 84. His Honour noted at that time that the treatment methodology was valid but still in its emerging stages, following only seven or eight years of experience (at [45]). Dr King of course had a further eight years of experience by the time he gave evidence in the present case.

52. I had the benefit of an extensive curriculum vitae for Dr King, something I did not have for any of the defendant’s doctors. Dr Burke and Dr Wearne both reported as part of a national organisation, MLCOA, which appears to provide medico-legal reporting services to insurance companies. Dr Mellick reports through the Australian Medico-Legal Group. Apparently they are similar organisations. I have no evidence as to whether any of them is in clinical practice. None appeared to have any direct experience of percutaneous radiofrequency neurotomy, and none was specifically engaged in pain management as a specialty.

53. Accordingly I accept that the plaintiff has suffered from severe neck pain and headaches since her car accident, but that she has had extensive periods free from symptoms following percutaneous radiofrequency neurotomy treatment by Dr King in Newcastle. There is no evidence of any other treatment, even on the horizon, which might be capable of achieving the same outcome for her. Therefore I have no doubt that for as long as she can afford it, the plaintiff will continue with treatment by Dr King, approximately annually. Because the three damaged joints cannot be treated together, there will be periods each year when the plaintiff will have neck pain and headaches, though if properly managed, it seems to me that she can expect perhaps nine months or a little longer each year free from pain.

54. I accept Dr King’s evidence that her condition will never improve or recover, and that if it were not for the neurotomy treatments, she would be in severe pain for the rest of her life.

55. The plaintiff is now thirty. There is no reason to suppose that her life expectancy is more or less than the average so she can look forward to more than fifty years of life. It is eight years since the accident, and it must, I think, be accepted that she has lost the opportunity to become a member of a full-time symphony orchestra, although she can expect to continue her work with the part-time Canberra Symphony Orchestra, as well as teaching.

56. The three annual neurotomy procedures, although they will have the beneficial effect of keeping the plaintiff pain-free for the majority of her life, are in themselves unpleasant experiences, and on the evidence will each take the plaintiff, perhaps a week to recover from.

57. I take account of the possibility that advances in medical science over the next fifty years may include some less traumatic and perhaps less frequent form of treatment. I also take account of the fact that Dr King may not himself remain in practice for fifty years, and that ultimately the plaintiff may not need to travel to Newcastle for her treatment three times per year. I am satisfied that in the present circumstances it is entirely reasonable for her to undertake that travel to see the doctor of her choice.

58. For general damages for pain and suffering and loss of enjoyment of life, I award $85,000.00. I apportion $35,000.00 to the past, attracting interest of $6,000.00.

59. The defendant’s insurer has paid treatment expenses of $27,381.92. This should not be included in the award of damages.

60. At the time of trial the plaintiff had paid treatment expenses of $5,300.00 and claimed travelling expenses of $12,500.00. Because of the time since trial, the plaintiff will have incurred further expense for both treatment and travel, and should have the opportunity to have that expense included in her damages. I propose to deliver these reasons and to give the parties an opportunity to reach agreement on treatment and travel expenses and interest thereon prior to the entry of judgment. If agreement cannot be reached it may be necessary for me to give the plaintiff leave to reopen her case to adduce evidence as to this component of the claim.

61. Although the plaintiff’s tax returns are in evidence, the assessment of a figure for loss of earning capacity for the past and future is not a task which lends itself to a mathematical approach. The evidence is that the earnings of orchestral musicians vary widely depending upon the location and standing of the orchestra. For example Ms Gilby, teaching part-time at the Australian National University and playing as concertmaster in the Canberra Symphony Orchestra, with other engagements from time to time, usually earns $60,000.00 to $70,000.00 a year before tax. A recent student of hers obtained a position with the Sydney Symphony Orchestra on a starting salary of $80,000.00 not long before trial. A violinist with one year’s experience with the Adelaide Symphony Orchestra earns about $48,000.00 per year, whereas a principal violinist with the Sydney Symphony Orchestra earns about $135,000.00 per year. Within that broad range, the evidence does not enable me to make a positive finding as to what the plaintiff would probably be doing, and earning, if it had not been for the car accident. The plaintiff, in her counsel’s closing submissions, sought a figure up to trial of $60,000.00 for lost past earnings, continuing at $20,000.00 net per annum. These figures seem to me modest and justified on the evidence. I am comfortably satisfied that the plaintiff would be earning at least $20,000.00 net per annum more than she presently is, if she had not been injured. Accordingly I allow $90,000.00 for past loss of earnings, plus interest of $15,000.00 for the future.

62. I will assume that the plaintiff would have worked to age sixty-five. The present value of a loss of $20,000.00 net per annum to age sixty-five, for a woman aged thirty, adopting an interest rate of 3%, is approximately $430,000.00. I apply a reduction of 20% rather than the conventional 15%, to take account of the fact that employment in the world of music appears to be somewhat less definite and predictable than in more conventional employment. I therefore allow $345,000.00 for loss of earning capacity for the future. This seems to me an appropriate figure to reflect the likely difference in earnings by comparison with the position the plaintiff probably would have been in if she had not been injured, and also the loss of earnings each year while the plaintiff attends for, and recovers from, her neurotomy treatment.

63. Future treatment expenses are claimed at $7,000.00 per annum including travelling expenses. This accords with the evidence. The multiplier for a woman aged thirty for the rest of her life, of a of a weekly loss at 3% interest is 1366.1. I apply that multiplier to a continuing loss of $7,000.00 per year, and reduce the resulting figure by 30% to take account of the usual vicissitudes of life, and also the possibility that some other form of treatment may become available in the future and that the annual cost may be quite different many years into the future. On that basis I allow $130,000.00 for future treatment and other out-of-pocket expenses.

64. The plaintiff claims loss of superannuation benefits for the past and future, at 9% of the amounts allowed for past and future loss of earnings. I am not satisfied that the plaintiff’s past and future lost earnings have fallen or will fall into the category of wages and salary. Some may have been in the nature of self-employment, not attracting an employer contribution. I allow $6,000.00 for the past and $20,000.00 for the future.

65. No claim is made on the plaintiff’s behalf for a Griffiths v Kerkemeyer component.

66. The total of the individual components, other than past out-of-pocket expenses is:

General damages	$85,000.00
Interest thereon	$6,000.00
Past loss of earnings	$90,000.00
Interest thereon	$15,000.00
Loss of earning capacity – future	$345,000.00
Future out-of-pocket expenses	$130,000.00
Loss of superannuation benefits	$26,000.00
	$697,000.00

67. Upon consideration, this figure, with addition of the past out-of-pocket expenses, seems to me to represent a reasonable reflection of the impact of the defendant’s negligence upon the plaintiff.

a. The solicitors for the plaintiff are to provide to the solicitors for the defendant within fourteen days a list of treatment expenses and other out-of-pocket expenses claimed by the plaintiff, with a calculation of interest claimed on the total.

b. The solicitors for the defendant are to inform the solicitors for the plaintiff within seven days of receiving the figures whether they are agreed. If not, the solicitors for the defendant are to provide to the solicitors for the plaintiff a brief submission setting out the basis of the disagreement.

c. Each party is to be at liberty to list the matter for final orders on two days notice to the other party.

69. When the matter is listed for final orders, the parties will be expected to be in a position to make submissions as to costs.

I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Master Harper.

Supreme Court of the ACT

Owen v Allard [2011] ACTSC 179 (11 November 2011)