Alfaro v Brokesova - [2012] WADC 122

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: ALFARO -v- BROKESOVA [2012] WADC 122

CORAM: WISBEY DCJ

HEARD: 20-24, 27 & 28 FEBRUARY & 4 APRIL 2012

DELIVERED : 3 AUGUST 2012

FILE NO/S: CIV 3311 of 2010

BETWEEN: KALI ALFARO
Plaintiff
AND
SANDRA BROKESOVA
Defendant

Catchwords:

Damages - Personal injury sustained in motor vehicle accident - Physical and psychiatric symptoms - Economic loss - Gratuitous services

Legislation:

Nil

Result:

Damages assessed at $37,739.72

Representation:

Counsel:

Plaintiff: Mr G T Stubbs
Defendant: Ms B A Mangan

Solicitors:

Plaintiff: Dwyer Durack
Defendant: Brian C Sierakowski

Case(s) referred to in judgment(s):

Nil

WISBEY DCJ: The plaintiff, a psychologist, was involved in an accident on 13 January 2009 when her vehicle which was stationary near the intersection of John and Fitzgerald Streets Northbridge, was struck from behind by the defendant's vehicle. Liability is not in issue and the matter comes before the court for assessment of damages.
The statement of claim is extravagant, and in part inappropriate. For example the particularised injuries in par 4 are in the main alleged symptoms rather than injuries. Insofar as injuries are identified they are:
(i)severe neck injury;
(ii)slight cervical disc herniation;
(iii)bilateral anterior displacement and recapture of the temporomandibular joints;
(iv)depression;
(v)post‑traumatic stress disorder; and
(vi)gum laceration.
There are numerous examples of duplication of symptoms, variously described. In addition some of the pleaded symptoms such as bruxism, short‑term memory and comprehension difficulties, oral infection including ulcerations, burning sensation down the spine and legs, suicidal ideation, severe mouth breathing, sinus problems, halitosis, shortness of temper, and constipation, are some of the symptoms not identified by the plaintiff in evidence.
The pleading contains 116 subparagraphs relating to pain, suffering and loss of enjoyment of life; although as already indicated, there is substantial duplication.
The defence is a brief denial of injury, loss and damage; and an allegation that any loss of earning capacity, and necessity for gratuitous services, result from a pre‑existing psychological or psychiatric condition.

The evidence

Kali Alfaro

The plaintiff is 31 years old having been born on 5 June 1980 in Chile. Her family immigrated to Western Australia in February 1986, although at the end of that year the plaintiff, her mother, and brother, returned to Chile for 12 months because of her mother's health problems of breast cancer and depression. Thereafter it appears that there was fairly regular movement between Chile and Perth.
The plaintiff's parents separated when she was about 8 years old, and thereafter she lived either with her mother or father until the age of 14 when she commenced living permanently with her father and brother. She spent a short period of time attending a college in El Salvador.
Having graduated from Churchlands High School she went to El Salvador for about six months before returning to Perth to do a human services course at TAFE, subsequently undertaking an industrial design course for about 12 months.
At age 19 the plaintiff enrolled in Edith Cowan University studying communications, majoring in photomedia; and arts, majoring in psychology. She graduated in August 2004 with a Bachelor of Arts in Psychology, and a Bachelor of Communications in Photomedia. She obtained a postgraduate diploma in psychology in January 2005. Having obtained the degrees referred to, the plaintiff completed a Master of Psychology (Health) at the University of Southern Queensland, necessitating residence in Queensland for a period two years. She obtained her Masters degree on 8 September 2007 and returned to Perth to live with her father and brother.
The plaintiff began what has been described as an 'associateship' with Jennifer Wright & Associates doing clinical psychology, specialising in hypnotherapy. She stated that Ms Wright had a set consultation fee of which the plaintiff was entitled to receive 60%, and would invoice Ms Wright for her proportion of the consulting fee. She continued working in association with Ms Wright until 2010, and has worked at her rooms from February to April 2011, and from December 2011 until trial, in each case having returned from Chile.
In July 2007 the plaintiff began work with a company 'Konekt' doing employment rehabilitation work with a multi‑disciplinary team. She claimed to have been working for approximately 37 1/2 hours per week 'if I remember correctly'. That incidentally was an expression that she used regularly during her evidence, and I formed the impression that it was to leave her some flexibility if her answer was subsequently demonstrated to be incorrect. She worked with Konekt for about three months, and then obtained employment with the Community Arts Network working four days a week in charge of a project dealing with indigenous health. The project was based in Kellerberrin, requiring the plaintiff to undertake a three hour each way drive weekly or fortnightly. It appears that she would undertake the return journey in a day. Her recollection was that the normal salary for full‑time work was about $55,000 per annum and she was getting paid on a pro rata basis for a four‑day week. The project had a three month duration. She stated that while working for Community Arts Network her private work was steadily increasing, and after termination of the contract she focused on private consulting. She obtained a position as a psychologist with the Department of Child Protection on 3 September 2008 in charge of Darlington, and Mundaring residences. The work involved liaising with other team members on child management projects. The work was primarily at Darlington and she was unable to recall whether she was working 2 or 3 days a week. She remained in that employment up until the accident, but as it involved considerable driving, was unable to continue thereafter. She stated that she experienced considerable difficulty obtaining that job because she was qualified as a health psychologist and it was difficult to get employment if not qualified as a clinical or counselling psychologist. She claimed that employers were now more flexible in respect to the qualifications required. In respect to her private work she stated that in 2008 the consultation fee was either $150 or $160 per patient.
Prior to the accident the plaintiff stated that she was playing squash, swimming, attending gym classes, walking, backpacking and dancing. She also travelled regularly, and stated that she had visited Cambodia, 'if I remember correctly three times, I think'. It is difficult to accept that she would not be able to accurately recall the number of times she visited Cambodia.
In 2008 the plaintiff's mother was suffering depression, and the plaintiff consulted a general practitioner Dr Atkinson and several psychologists, although she could only recall the name of one of them, Noranda van der Burg. She stated that she saw Dr Atkinson for general checkups, and occasionally when she was having difficulty coping with her mother's illness or some personal relationship issues; although in her assessment none of those matters impinged upon her work or personal life. She stated that she had a very active and social family life, and in late 2008 was in a casual relationship.
The plaintiff stated that her vehicle was 'written‑off'; a term incidentally used by a number of the people she consulted, and which is meaningless without regard to the type and age of the vehicle, and the nature of the damage. The vehicle was an 'elderly' 18‑year‑old Ford Laser. She was taken by ambulance to the Royal Perth Hospital Emergency Department, and said she was experiencing shooting pain down one of her legs, although unable to remember which. She had a lot of neck pain, a burning sensation at the back of her head, and was generally sore. She was discharged after a couple of hours and attended her general practitioner Dr Atkinson several days later. By that time she was suffering from pain at the back of the head, facial and jaw pain, neck pain, pain going down her shoulders, and soreness over her whole body. In addition she was anxious and shaken up. Dr Atkinson referred her to a rheumatologist Dr Edelman, and she also saw a physiotherapist Doug Joyce who gave her ultrasound and other therapy, resulting in some slow improvement.
Shortly after the accident the plaintiff consulted her psychologist Ms van der Burg who she was seeing immediately before the accident, and told her that she was experiencing a lot of head and neck pain extending into the shoulders and arms, having trouble with personal hygiene and sleep, and was anxious, teary and irritable.
She claimed that as a result of her inability to drive, her contract with the Department of Child Protection was not renewed. Her recollection was that the contract was to be reviewed at the end of January, although she seemed vague as to what was to happen. Eventually she settled on the position that the Department of Child Protection was not able to give her a non‑driving job, and consequently she could not go back to work. She confirmed that when the contract came to an end she did not apply for another job with the department, nor was one offered.
As regards her private work, she stated that following the accident she was in a great deal of pain, wearing a neck brace, and needed to take breaks between clients so that she could rest on a couch. As a consequence the number of consultations diminished significantly for a period of time. She experienced pain down the right arm aggravating neck pain and causing a lot of muscle spasm and headaches. She was also experiencing difficulty coping with her day‑to‑day personal activities, including such things as bending down to tie her shoe laces, or fastening her bra - anything that involved bending or excessive neck movement. She also had difficulty with aspects of personal hygiene such as shaving her underarms, showering, brushing her teeth, and washing and drying her hair. She was experiencing difficulty sleeping, having a lot of distressing dreams, sometimes about the accident, and difficulty finding a comfortable resting position. As a consequence she experienced tiredness, irritability, lack of concentration, and was frequently distressed.
The plaintiff stated that it was necessary for her father to drive her to and from work, the journey from their residence to her place of employment taking between 30 and 40 minutes. That requirement continued for two to three months post accident, and then became less frequent. Her father also drove her to medical consultations, social gatherings, shopping and the like - 'pretty much anywhere I needed to go'. The transportation requirement was due to the fact that driving caused her too much pain, and she was very anxious and nervous in a car. She mentioned that her father was engaged for about an hour and a half when he took her to her appointments with Dr Atkinson. She claimed that she still required driving assistance from time to time as she tried to avoid driving so as not to aggravate her pain or anxiety. The pain to which she referred was muscle pain in her neck and shoulders, radiating down into her right arm. Presently her father is apparently driving her once or twice a week involving 'maybe a few hours, two, three hours a week if necessary'.
In respect to personal hygiene, she stated that her father assisted drying her hair, doing up her bra, and the like, and that continued for the first couple of months, occupying him for probably an hour a day.
When she saw Dr Edelman the plaintiff relayed details of all her symptoms including migraneous headaches causing nausea and dizziness which she initially experienced two or three times a week. She stated she was prescribed painkillers, anti‑inflammatories, and sleeping tablets. The analgesic medication prescribed by Dr Edelman caused distressing side effects including numbness of the arms.
The plaintiff saw a Michael Ponchard who implemented a pain management programme involving massage, therapy, and exercise, which she thought she undertook for a month or two, although without much benefit.
The plaintiff stated that in the immediate post‑accident period she was in so much pain that she was not sleeping well and did not have the energy or inclination to socialise, and as a result did not participate in a lot of family activities. She made the interesting comment that 'I became someone that revolved around my pain and my exhaustion instead of the things that I enjoyed doing' (ts 139). To an extent that is eloquent of her situation.
The plaintiff recounted her various symptoms to Ms van der Burg; in particular that she no longer had patience for anyone, was unable to cope with her mother's illness, and did not have a desire to socialise.
Prior to the accident the household tasks were shared between her father, brother and herself, although her father did more of the cooking. After the accident much of these activities had to be undertaken by the others. She claimed that she was unable to do the shopping, and that some of the difficulties still persisted. For instance she avoided vacuuming, and if possible shopping, because of the pain caused carrying shopping bags.
The plaintiff travelled to Cambodia within days of the accident, and whilst there attended upon a dentist. She claimed that the flight to Cambodia was terrible, but seemed to have difficulty remembering whether there was a stopover in Bangkok. She stated that the in‑flight vibration of the plane caused neck pain, and that it was necessary for her to get a flight attendant to help her by carrying a small bag, and assisting with a wheelchair transfer from the plane to the luggage pickup and through customs. She stated that her pain got very bad whilst in Cambodia causing her to leave early, but was unable to recall how many days she spent in Cambodia, thinking that it was 'maybe a week'. For a lot of that time she rested in the hotel where her friends attended upon her and helped her get dressed. The return flight to Australia was again productive of increased pain, and she required assistance on disembarking.
The plaintiff saw a Mr Delcanho because of jaw pain (temporomandibular joint dysfunction) and was provided with an occlusal splint which she claimed was very painful. She stated that the temporomandibular joint dysfunction persists and causes pain when she yawns, eats things like muesli, or engages in kissing.
In respect of intimacy she has experienced loss of libido, and is irritable, emotional, not very outgoing, and has difficulty with some sexual positions.
The general practitioner Dr Atkinson referred the plaintiff to a psychiatrist Dr Tannenbaum who she has continued to consult. She was reluctant to concede that he assisted her, and that is confirmed by Dr Tannenbaum who reports that her situation is essentially unchanged.
At the beginning of 2010 the plaintiff applied for and obtained a position with Therapy Focus, an organisation that provides support for children with behavioural and developmental problems. She undertook that work for about 10 weeks 'if I recall correctly', and ceased it because her symptoms, particularly neck and arm pain, began to increase after about a month as a result of computer activities and driving. Her recollection was that she was working 2 1/2 days a week and receiving pro rata payment based on a full‑time salary of about $60,000.
She returned to Chile in April 2010.
In cross‑examination the plaintiff was asked to address her email (exhibit P69) in which she referred to obtaining airline assistance for the trip to Cambodia and also made reference to cancelling client appointments. She stated that the sentence in the email 'fingers crossed we'll get more than what we lost' was a reference to loss of integrity. I find that difficult to accept.
She stated that she was referred to Graham Guest who specialised in post‑traumatic stress disorder (a referral that appears to have been arranged by her solicitors). At the time of seeing him she had the various symptoms already described, including neck pain going into her shoulders and radiating down her arms, with a tingling sensation in her hands. She also made reference to some pain in her ribs on the right hand side. At that time she was having side effects from the anti‑depressants and sleeping tablets.
The plaintiff also saw Dr Gee, a pain management specialist.
Apart from the Department of Child Protection contract, the plaintiff only did private consulting work during 2009. She stated that she was having a lot of difficulty coping with note‑taking and prolonged sitting, had a lack of energy and concentration, and was more sensitive to severe psychological cases. She had difficulty writing reports, and often had to cancel scheduled consultations because of medical appointments. One would have thought that some organisation would have addressed that.
In 2010, apart from private consulting, the plaintiff began employment with Therapy Focus, stating that she was trying to get back to a normal working life, but the increase in hours resulted in a corresponding increase in her symptoms.
The work with Therapy Focus was part‑time for approximately 10 weeks, and involved peer supervision and planning behaviour management strategies for children with developmental delay. It necessitated home visits. The work aggravated her symptoms and Dr Edelman and Dr Tannenbaum recommended that she cease work. As a result of the medical advice she also took steps in about April 2010 to cease her private work. The invoices rendered by the plaintiff for private work were tendered (exhibit P15).
The plaintiff's solicitors arranged an ergonomic assessment of her workplace, and she explained to the occupational therapist the difficulties that she was experiencing taking notes, with prolonged sitting, lacking concentration, and emotional issues.
Upon ceasing work the plaintiff travelled to Chile, claiming it was to get some support from and respite with her extended family. The flight to Chile took about 24 hours. The plaintiff was pretty sure that she had a stopover in Melbourne for a couple of days, but was unsure whether she then went to Auckland via Sydney, or straight to Auckland. From Auckland she flew to Santiago. Again the plaintiff stated that the air travel caused her considerable discomfort because of vibration and the necessity to sit for a prolonged period of time. Again she was provided with wheelchair assistance.
In Chile the plaintiff stayed with relatives in Santiago for the first few months during which time she stated that she was having panic attacks, difficulties sleeping, and was in a lot of pain. Her relatives had a housekeeper, and consequently she was not called upon to do anything. Immediately prior to going to Chile the plaintiff was able to undertake most of her personal hygiene, and undertake shopping and some domestic chores, although she experienced difficulty doing the washing and hanging out of clothes, and vacuuming.
In June 2010 the plaintiff began taking steps to obtain psychological accreditation in Chile which required having her thesis translated, and studying and sitting an exam in December. Having obtained accreditation she was able to work in the public sector. Accreditation was not required in the private sector. In September 2010 she began working for the Israeli Medical Centre in Santiago. The job with the Israeli Medical Centre was as a psychologist working two afternoons a week for approximately 6 or 7 hours. She stated that her father, who had also gone to Chile, and/or her uncle, would drive her to work, or she would catch public transport. At the Israeli Medical Centre she was being paid 7,000 pesos or approximately $14 an hour, and she would spend between 50 to 60 minutes per patient. She commenced work with the Centre of Clinical Hypnosis in October 2010, working two days a week seeing approximately three to six patients a day. She was paid 25,000 pesos or $50 per consultation. Apart from return trips to Western Australia, she has continued in that employment, but ceased working at the Israeli Medical Centre in about August 2011, apparently because of the pain she was experiencing operating the gearshift in the car she was using to get to and from work, although it seems from her evidence she could have used public transport.

Whilst in Santiago she was seeing a psychiatrist, a psychologist and an orthopaedic surgeon. She was also taking Prozac, a muscle relaxant, paracetamol, sleeping tablets, and anxiolytics.
After several months with her relatives she shifted in about June 2010 to an apartment that she and her brother owned, and her brother joined her for a short time to help her settle in. She stated that she was struggling with the housework and shopping, but got assistance from her extended family with the washing and the vacuuming. At this time she stated she was in a lot of pain, emotional with panic attacks, irritable and tired. She engaged the services of a housekeeper for one day a week in about April or May 2011. The housekeeper cleans the floors, the bathrooms and bedrooms, and does most of the domestic necessities, much of which the plaintiff said she was unable to do. The housekeeper works one full day, and the plaintiff claimed that for most of that time she was undertaking work the plaintiff was not capable of doing. The housekeeper receives 15,000 pesos per visit.
The plaintiff returned to Western Australia for a short period between February and April 2011, and again in December 2011.
When she returned to Perth in February 2011 she resumed consulting at Ms Wright's business premises, paying her $20 per consultation for the use of the room. She was charging $160 per consultation, and direct billing. During the two months in Perth the plaintiff was either staying at her brother's or with a friend, and if she did any washing, arranged for them to hang out the clothes. She did not have a car, having sold it in April 2010 prior to going to Chile.
On returning to Chile in early April 2011 the plaintiff stated that she resided at the apartment, initially on her own, but joined by a cousin after about a month.
The plaintiff stated that she tends to avoid family gatherings and that when she does attend, if she picks up a baby she goes home in a lot of pain. She puts in an hour at the gym doing classes, treadmill and light weights 'not every day, some days'.
The plaintiff tendered her tax returns for the years ended 30 June 2005 to 2010 (exhibits P9 to P14).
The plaintiff described her current symptoms as neck pain extending into both shoulders and radiating into her arms, muscle spasm, numbness and heaviness primarily in her right arm, facial pain, temporomandibular joint pain, migraines, insomnia and psychological symptoms. She stated that she had not been able to return to full‑time work and was struggling with the amount of work that she was doing, which was approximately three days a week. The accident had dramatically changed everything in her personal and social life, and significantly reduced her recreational activities. She stated that she was currently in a long distance relationship with a male who lives in Los Angeles, but her libido had been significantly affected and she was limited in the sexual positions she could adopt.
In cross‑examination the plaintiff confirmed that the family arrived in Western Australia in early 1986 but that she returned to Chile with her mother for the whole of 1987, returning in 1988. She returned to Chile with her mother for the year 1991 because of her mother's ill health.
The plaintiff recalled injuring her hand requiring a hospital visit in 1993 when she had an emotional outburst and punched a brick wall. She stated that the first time she could recall taking anti‑depressants was at about the age of 18. She agreed that she was referred to a psychiatrist, Dr Mendis, in about October 1993 and was referred to the Selby Clinic. When it was put to her that the referral was because of depressive symptoms, she stated that it was because she was having difficulty with what was happening in her family life, her grandparents having just died, and difficulty with the issues her parents were facing. She agreed, I thought reluctantly, that she had been seeing Dr Mendis for between one and two years, but had difficulty recalling the symptoms she was experiencing at that time, simply saying that she recalled having a lot of issues at home, including her parent's separation, and that she would get frustrated and emotional. She was reluctant to address the issue as to whether or not she was depressed. She agreed that she was experiencing sleep disturbance, which she related to a back injury, and having difficulties with concentration and comprehension because of grief. She also agreed that she was emotional, tired and lacking in energy, which she related to back problems. When it was put to her that during this period she was irritable and short tempered, she agreed, stating that she was having a lot of difficulty with her mother. She agreed that she was also attending the Andrew Relph School for children with behavioural difficulties, and this following a psychological assessment. She attended the school for a couple of months.
There were a number of occasions during cross‑examination when I thought that the plaintiff engaged in prevarication and an example appears at (ts 208):
And do you recall Dr Roz White referring you to a specialist regarding lumbar pain back then?
MS ALFARO:    I don't remember her specifically recommending me to a specialist, but I imagine she would have because I had a back injury around about that time.
WISBEY DCJ:    When you say you imagine she would did you go to see a specialist?
MS ALFARO:    Yes I did.
She was unable to recall the name of the specialist.
She agreed that she was treated as an inpatient in the psychiatric ward of Princess Margaret Hospital in February 1994, but had difficulty remembering the period of hospitalisation.
Her recollection was that she began experiencing back pain in 1993, and that she attended Royal Perth Hospital for back pain and related symptoms in December 1994. She had no recollection of being on anti‑depressants in 1996. She agreed that at about that time she had a lot of abdominal pain. Her low back pain was ongoing in 1998, causing particular problems when ascending stairs or standing or sitting for long periods of time. She was still struggling with low back pain in 2000, and agreed that as at that time it was a fair description to say that she had been experiencing joint pain symptoms for years. Her recollection was that she first commenced anti‑depressant medication when she was about 18 when her mother was hospitalised in the Sir Charles Gairdner psychiatric unit. She stated that she began consulting Dr Atkinson in about 1998, at which time she was experiencing low back pain. When asked whether Dr Atkinson referred to her a physiotherapist in 2005 she responded 'she may have'. She then agreed that she did see a physiotherapist, Mr Chan, in respect to her low back problems. She could not recall having persistent problems with insomnia prior to the accident, stating that she sometimes had difficulties sleeping, but did not recall it being consistent or constant. When asked whether Dr Atkinson had prescribed a sleeping tablet Stilnox for her in 2003 she responded 'I don't recall that specific prescription. She may have. Whether I took it or not is another thing'. Her response was one of many strongly suggestive of prevarication and selective memory.
The plaintiff agreed that in June 2008 she consulted Dr Atkinson who prepared a mental health care plan for her, which the plaintiff stated was as a result of difficulties she was experiencing dealing with her mother's illness. She stated that she told Dr Atkinson she would like to see a counsellor, and that Dr Atkinson prepared a mental health care plan so that she would be eligible for Medicare rebate. (Apparently the position was that there was an entitlement to a Medicare contribution for psychological counselling for someone who had a mental health care plan in place). As a result of the implementation of the plan she saw a psychologist for one session only as she did not build a good relationship with him. She was unable to recall his name, or where it was she went to see him, other than Joondalup. That is difficult to accept, particularly in light of the evidence subsequently given by Ms van der Burg. Her recollection was that she saw the unnamed psychologist sometime after 13 June 2008 and then did not seek further counselling until she saw Ms van der Burg in December 2008. She then said that she saw the first psychologist one or two times. When it was put to her that Dr Atkinson prescribed anti‑depressants, she again stated 'she may have prescribed it but I did not take them'. She agreed that she had an emergency presentation at Sir Charles Gairdner Hospital in August 2004 as a result of central and lower abdominal pain which she said was gynaecologically related.
The plaintiff agreed that she completed her secondary education in 1997 and then went with her father to El Salvador for 7 months, returning in 1998. She recalled struggling with her mother's illness in 1998, stating that was when she was first given anti‑depressants which she took for a couple of weeks. She did a human services course at TAFE in 1998, was unemployed during 1999, and returned to Chile during the summer. In the year 2000 she worked part‑time at Market Equity, and went backpacking in Europe for several months in the middle of the year. Upon her return she commenced her Bachelor of Communications in Photomedia. She went to Spain for several months in the middle of the year 2001 and when she returned commenced her psychology degree. She returned to Spain in June 2003 on an exchange programme at the Madrid University. She also visited Chile. She returned about 22 February 2004. She financed the trip from savings and her youth allowance.
Having completed her TAFE certificate in 1998 the plaintiff did some casual work for a marketing firm, but apart from that was unemployed before commencing her degree in Bachelor of Communications in Photomedia. She stated that she worked with Market Equity throughout her course, but was unable to recall her daily commitment, stating that it was shiftwork and depended on the number of shifts provided. Although she could not recall the exact period, she stated that 'it may have been approximately 5 years from either 1999 or 2000' until she moved to Queensland to do her Masters degree. She identified an amount of $1,255 in her tax return for the year ended 30 June 2005 (exhibit P9) as her earnings from Market Equity in that year. She stated however that as she moved to Queensland at the beginning of 2005, it represented approximately 6 months earnings. She agreed that she commenced the Bachelor of Communications degree in July 2000 which she completed in March 2004, but denied that she was a part‑time student. She agreed that on 21 July 2000, shortly after commencing her Bachelor of Communications, she went backpacking to Spain for three weeks.
The plaintiff agreed that she had been in an unsatisfactory physically violent 3‑year relationship with a male who stalked her for about a year after the relationship ended, as a result of which it was necessary for her to obtain a restraining order. She stated that she may have commenced the relationship around 1999.
In late 2003 the plaintiff applied for admission to do a post‑graduate diploma in psychology at Edith Cowan University but apparently did not complete the course, instead moving to Queensland to do a Masters degree in psychology (health) because she was 'passionate about health and health promotion'. She visited Cambodia and Thailand in January 2006, and was away for approximately 42 days. She travelled to Nepal and Cambodia in 2007, and when it was put to her that was between 7 January and 9 March 2007 she stated that she was unable to recall the dates but was away that summer. She had finished her course work in Queensland by the end of 2006, although she still had to attend to revision of her thesis.
The plaintiff obtained employment with Konekt from about August until the end of September 2007, and also between March and July 2008. She stated that she ceased the job in September 2007 because although the position had been represented to her as having a significant health promotion and psychology component, she ended up doing mainly administrative work. Having contacted Jennifer Wright following full registration, she commenced a working association, initially working Saturday mornings. Following consultations the plaintiff would email invoice Ms Wright, and she agreed that the days worked were recorded on the invoices. Having commenced with Jennifer Wright the plaintiff left on a holiday to Thailand and Cambodia between 20 December 2007 and 10 January 2008 stating that during this period the clinic would be closed. She left with her father and brother on another holiday to Chile on 4 April 2008, also visiting Argentina, and was away for about a month.
She apparently applied for the position with the Department of Child Protection in or about September 2008, but was unable to recall whether it was a 3 or 6 month contract. She took that job because she stated she had a passion for working with children. It was part‑time employment. She then went on a holiday to Chile, also visiting Bolivia, from 22 September to 15 October 2008. It was put to the plaintiff that at about this time she was suffering depression and consulted Dr Atkinson, and she responded that she was struggling with her mother's illness. She consulted Ms van der Burg in December 2008.
The accident occurred at about 8.00/8.20 am on 13 January 2009. The plaintiff's attention was directed to invoice 56 dated 16 February 2009 being a part of exhibit P15, which indicated that she performed 4 hours of consultations on 13 January 2009. She stated that she did not recall going into work that day, and the recorded date was probably an error.
She left for Cambodia on 17 January 2009, four days post accident. She agreed that she arrived in Cambodia on 19 January 2009 and stayed until 24 January before going to Thailand where she remained until returning home on 5 February 2009. When it was put to her that was inconsistent with what she said during her evidence‑in‑chief she explained it on the basis that she was asked if she had cut her time in Cambodia short, which was in fact the case, and she was struggling so much with pain that her friends took her to Thailand so she could relax. I do not accept that explanation, as the suggested truncation of the trip was volunteered by the plaintiff. I consider it was a deliberate attempt to misrepresent the position for advantage. She agreed that she returned from Thailand on 5 February 2009 and conducted three hours of consultation the following day.
In respect to the cessation of employment with the Department of Child Protection, the plaintiff stated that it came to an end because she was in too much pain to drive, and was told by the department to return when she recovered and was fully capable of doing her duties. She claimed that she spoke to a Ms Loney who told her there were no office jobs available at the Department of Child Protection. This was inconsistent with what she had said in evidence‑in‑chief.
When it was again put to the plaintiff that she was seeing Dr Atkinson for depression prior to the motor vehicle accident she denied it saying:
I was struggling with my mother's illness which was getting worse and worse. In order for me to get Medicare rebates Dr Atkinson made a GP mental health care plan so that I could see a psychologist. I was not missing any work. I was not in any way limited. I was struggling with the emotions of my mother's deteriorating illness and the taxing impact that that had on my life.
She accepted that the employment contract with the Department of Child Protection was for a three month term as a part‑time psychologist at Darlington, working 30 hours a fortnight. She agreed that she made application for leave without pay to take an emergency family trip, and stated that was because a relative in Chile had been diagnosed with cancer. She went from Chile to Bolivia to be witness at a friend's wedding.
The job with Therapy Focus which commenced in January 2010 involved working with children with developmental retardation, but the plaintiff claimed that the major thrust of the job was training peers. She resigned in March 2010.
The plaintiff's lawyers arranged for an occupational therapist to assess the plaintiff's work situation, and make appropriate ergonomic recommendations. The engagement and resulting report was of no benefit because the plaintiff did not seek to implement any of the recommendations. When questioned as to this she indicated that there were financial constraints, but stated 'if there were postural recommendations in terms of how I was to sit which did not require a new chair or something new in the office, then I did take it on board'. It is apparent that she did not take steps to cost the implementation of any of the recommendations, and I am drawn to the conclusion that the primary purpose was forensic.
On 29 April 2010 the plaintiff left Australia to go to Chile, and in September of that year commenced working in Santiago. She stated that the delay in obtaining work was because she did not feel capable of working, although it appears that during that period she was studying to achieve registration. She obtained work at the Israeli Medical Centre in September, and at the Centre of Clinical Hypnosis in or about October 2010.
The plaintiff was questioned concerning her membership since October 2005 of a traveller's internet social network 'Couch Surfing'. Her couch information profile (exhibit D136) entered in 2010 informed that she had moved to Santiago and lived in Providencia. It referred to the easy accessibility by public transport, and described her group as 'a healthy arty non‑smoking but party‑loving bunch'. Her site contained references from several people who had stayed with her. One Javier Rojas indicated that he had spent a few days with her in a warm home filled with joy, and was introduced to her amazing friends and family enabling him to experience parties, dinners and long interesting conversations. The plaintiff stated that he only stayed with her for one night, and gave specific detail of the time he spent with her. Another couch surfer, Christina E, described her experience with the plaintiff in Santiago as awesome, stating that she was genuine, fun, energetic, generous and the like. When it was put to her that again this was a person who had a very positive experience with her, she stated it did not mean that she was not having panic attacks and struggling with pain. Another couch surfer Pablo Ortenberg indicated that he had spent four days with her, and described her as an exceptional person. Maui Chilean, in a posting on 12 September 2010, described the plaintiff as a beautiful spontaneous person who was always smiling. The statements or references above are not on oath and only establish that they were made; not the truth of that which is asserted. Having said that, the plaintiff has placed references on the couch surfing profiles of Javier Rojas and Christina E which provide support for the truth of the statements.
It was put to the plaintiff that in respect to her consultation with Ms van der Burg one of the issues she required addressed was relationship problems following a breakup with a male friend Tim, and her response was 'that may be possible yes'. She agreed that she told Ms van der Burg of the purchase of an apartment in Chile, which she stated was an investment property for her brother and herself. She denied that it was purchased with a view to her living in Santiago, stating that she was very happy living in Australia. When it was suggested to her that she told Ms van der Burg that she suffered from bulimia four years earlier, she stated she recalled having eating and weight difficulties for a period of time, but was not vomiting or using laxatives. When she said she felt isolated in Perth, that was in respect of her mother's illness. She was emphatic that she did not have any plan to leave Western Australia and go to Chile to live, but I reject that.

In March 2009 the plaintiff travelled to Brisbane to do a mindfulness psychology course, and when asked how many days were involved, she stated she could not remember, but then said three or four days.
In June 2009 the plaintiff went to Bali for eight days to attend a wedding. On 13 July 2009 she went to Malaysia, which she said was to spend some time with her brother who had moved there. She said Dr Atkinson recommended it. She left Malaysia on 19 July and travelled to Thailand, returning to Perth on 4 August 2009.
She went on a four day trip to Bali on 13 September 2009.
When the plaintiff's attention was drawn to a note made by Ms van der Burg on 13 August 2009 that she had neck pain when she used her 10 kg backpack she stated that must be a mistake, as she only had a small backpack. She agreed that in October 2009 she was thinking of doing 'bridging to clinical psychology' which involved undertaking further study and professional development. In December 2009 she told Ms van der Burg that she had begun a kayaking course, and that her relationship with her new male friend was going well. She went on a 10‑day camping excursion with him on 7 January 2010 and although she agreed that it went well, stated that she was in a lot of pain. It appears that in April 2010 she went to Broome where she said she took some 'great photos', but had a panic attack, and because she was in a lot of pain her stay was truncated. She agreed that on 22 April 2010 she told Ms van der Burg that she was very crampy with spasms, but had a great going away party and played her last game of squash. She stated however that the game of squash probably lasted about 10 minutes and she had to have her back strapped afterwards.
At a late stage in her evidence, although she had not demonstrated any difficulty while sitting for a number of hours during her evidence, she asked could she stand.
Because of a complaint of jaw pain, the plaintiff was provided with an occlusal splint by Dr Delcanho. She stated that it was of no assistance and increased her pain, and she did not return to Dr Delcanho because she had decided to focus on the treatment of her neck pain. She stated that she was not prevented from dancing, but suffered with pain afterwards. She would rise at about 8.00 am and on some days go to the gym for an hour, doing classes, treadmill and light weights.
The plaintiff stated that she works for the Centre of Clinical Hypnosis in Santiago from 2.00 pm to 8.00 pm three days a week. She ceased working for the Israeli Medical Centre in August 2011 because driving increased pain in her neck and arm, increased headaches, and her symptoms were getting worse. She denied that the reason she left the Israeli Medical Centre was because of the pay, insisting that it was because of difficulty brought about by driving, and an inability to cope working four days a week. She stated that it was not possible to use public transport because the journey took over an hour, although in evidence‑in‑chief she had indicated that she was using public transport.
In October/November 2010 the plaintiff attended a psychology conference in La Serena, Northern Chile. Again she had difficulty remembering the duration of the conference, suggesting that it was 'maybe three or four days'.
She agreed that her work at the Israeli Medical Centre and the Centre of Clinical Hypnosis continued until 11 February 2011 when she returned to Perth for the pre‑trial conference. Having returned, she resumed psychological consultations at Ms Wright's rooms, and continued doing so until she returned to Chile on 12 April 2011. On returning to Chile she resumed her former work. She stated that her hours at the Centre of Clinical Hypnosis fluctuated between 12 hours and 16 hours a week.
The Plaintiff left Santiago on 24 November 2011 to return to Perth to prepare for the trial, going via Mexico and Los Angeles to see her boyfriend. She stated she took the opportunity to breakup the trip, and to spend some time with her boyfriend. From Los Angeles she flew to Brisbane and on to Perth arriving at 11 December 2011. She resumed consulting at Ms Wright's rooms on 14 December 2011.
The plaintiff confirmed that after the accident her father drove her to and from work, and when it was put to her that was because she no longer had a car she stated the primary reason was that she was in too much shock and pain. She was unable to say how long it took her to acquire a new vehicle, speculating that it was a couple of months. She stated that because she was anxious and in pain, the activity of driving would not have placed her in an appropriate frame of mind to attend to clients. She stated that her father was able to drive her as he was retired.
The plaintiff advised that she had worked in disability services at the University of Southern Queensland.
She claimed to be getting financial assistance from her father, brother and uncle whilst in Chile, although it is to be noted that she told Ms van der Burg in December 2008 that she and her brother had been providing her father with financial assistance.
In re‑examination the plaintiff referred to an occasion when her symptoms became so distressing that she simply wanted to die, but did not suggest that she ever contemplated suicide.
In reference to pre‑accident back problems the plaintiff stated the condition developed at about the age of 13 or 14 and that she attended Princess Margaret Hospital. She stated that the problem was at the L4/5 level and provided her with a lot of pain for a number of years, but that by the time of the accident the back pain was well managed through exercise. She claimed that symptoms reoccurred after the accident.
The plaintiff's attention was directed in re‑examination to her couch surfing profile. She stated that Javier Rojas only stayed at her house for a night, and that her father was also staying there because she was having a lot of panic attacks. Christina also only stayed a night. Pablo Ortenberg stayed four days, and she maintained that on third and fourth day she had a full blown panic attack and would not come out of her bedroom. When Maui Chilean was with her there was a dinner organised at a friend's place, and the plaintiff said she spent a lot of time in the bathroom crying.
Her attention was addressed to invoice 56 (exhibit P15) and she confirmed that the date at the top of the invoice indicated the date it was sent. She suggested that the reference to consultations on 13 January 2009 was a mistake as she did not work on that day having been taken from the accident scene to the hospital by ambulance, and then home by her father. If she did not work on that day it is difficult to comprehend how Ms Wright would have the capacity to relate the consultations to the relevant clients for billing purposes (ts 249).

Royal Perth Hospital

In a report dated 22 June 2009 Dr Ron Hirsch (an orthopaedic surgeon) stated that the plaintiff was admitted to casualty at 9.07 am on the day of the accident, having arrived by ambulance. She did not lose consciousness, and was able to ambulate. She complained of some relatively minor discomfort in the neck and low back, was neurologically intact, and no other clinical abnormality was elicited. There was no radiological evidence of abnormality. Her symptoms were considered to be minor, and soft tissue in origin.

Jocelyn Juliette Atkinson

Dr Atkinson, the plaintiff's general practitioner, confirmed from her records that she saw the plaintiff on 15 January 2009, prescribed medication for 'anxiety pain', and issued a certificate of unfitness from 13 to 17 January. On 17 January she provided a letter to help the plaintiff obtain wheelchair assistance at the airport. On 11 May she wrote a letter to Mr Ponchard asking him to see the plaintiff who she said was suffering physical pain and deconditioning, as well as post‑traumatic stress disorder. She continued to treat the plaintiff for pain and depression/anxiety up until 23 March 2011.
When Dr Atkinson saw her on 23 March 2011 the plaintiff was walking well, although complaining of continuing neck pain, and weakness particularly of the right arm. Dr Atkinson stated that she referred the plaintiff to the neurosurgeon Peter Watson because of continuing neck and right arm pain and panic attacks resulting in exhaustion and difficulty writing reports. It appears to have been Dr Atkinson's view that if she had the type of neck pain of which the plaintiff complained, she would find it very hard to travel.
Dr Atkinson provided the following pre‑accident medical history:
(i)On 4 September 1998 the plaintiff required medication for muscular pain;
(ii)In March 2003 she was seen because of insomnia, and had been prescribed antidepressants;
(iii)She was seen on 29 April 2004, having had a motor vehicle accident several days earlier when she ran into the car in front, causing her seat belt to press against her chest. A chest x‑ray was taken, and the plaintiff was not seen again in respect of that accident. (The plaintiff described it as a minor bump and was 'unable to recall the exact symptoms' although as indicated, radiological examination was considered appropriate).
(iv)On 13 May 2004 she was noted to have depression, to be receiving counselling, and to have been prescribed antidepressants;
(v)On 14 January 2005 Dr Atkinson noted that the plaintiff had experienced back pain since she was aged 14, and referred her for physiotherapy. The plaintiff gave a self‑diagnosis of fibromyalgia; and
(vi)Dr Atkinson diagnosed depression on 13 June 2008 and did a general practitioner management and team care arrangement plan so that the plaintiff could receive 12 sessions of psychological counselling. The plan was necessary to obtain a substantial Medicare subsidy. The plan referred to depression which had been present for some months, and aimed to help develop strategies to deal with life's stresses.
The plaintiff indicated to Dr Atkinson that subsequent to the accident she was just able to get to Claremont (her consulting room) three times a week. As a result of the plaintiff's initiative, and her specific request to see him, she was referred to Dr Ecker.

Jack Edelman

Dr Atkinson referred the plaintiff to a rheumatologist, Dr Edelman, in February 2009, and his various reports were tendered in evidence.
In the first report dated 17 February 2009 he referred to the accident and the plaintiff's complaint of significant symptoms down both sides of her neck, with recurrent headaches and tingling in her hands. He reported that the muscles were tight down both sets of trapezius and cervical musculature, and neck movements were hesitant because of pain. He noted that the plaintiff had suggested an MRI, which he thought was reasonable, although he doubted there had been any structural injury. He prognosticated that she would improve with time.
On 25 February 2009 Dr Edelman reported that the MRI did not show any disc protrusion, canal stenosis or facet joint abnormality, saying 'hopefully I have put her mind at ease'. He reported that the injury was muscular in nature, would be slow in resolving, and that the plaintiff needed to continue to exercise and stay as active as possible.
In a report of 24 March 2009 to the plaintiff's solicitors, Dr Edelman advised that he had seen the plaintiff on 17 and 25 February 2009 and that she had told him that following the accident she was in quite severe pain but that it had improved to some extent, although she still had headaches, constant neck pain extending to the shoulders, and tingling in her hands. All movements produced discomfort. He reported the major finding on examination was that her muscles were very tight along both shoulders, the cervical musculature was tight, and neck movements were hesitant, although the plaintiff could gain a reasonable range of movement. He accepted that she was restricted in her work, and expected that position to remain for at least three months, although he felt she would slowly improve enough to allow a return to full-time work. He reported:
In general the prognosis is good but it is likely to take some 18 months – 2 years before she improves to any great extent.
He recommended physiotherapy.
On 24 June 2009 Dr Edelman reported that the plaintiff felt she was slowly improving.
On 14 January 2010 Dr Edelman reported that he had seen the plaintiff that day and that she was quite tearful during interview, complaining of the same symptomatology with worsening headaches, shoulder and neck discomfort. He stated that rotation of her neck to the right was quite limited because of discomfort, and there was some global restriction of movement with tenderness to palpation along the cervical and shoulder musculature. He questioned whether there was a significant element of depression and anxiety, and stated:
I doubt whether tablets are going to make any difference or any direct intervention by any one of us. Hopefully time will bring about improvement.
On 15 February 2010 Dr Edelman reported that he had seen the plaintiff that day when she seemed markedly depressed and not coping with her paid employment. He thought that she should cease her paid employment, undertake private consultations at her leisure, and concentrate on getting herself better.
On 22 February 2010 Dr Edelman reported to the plaintiff's solicitors confirming his diagnosis of muscular pain, and noting that treatment had not really made any difference. He stated that it was difficult to know how long the problem was going to last, but thought that it would be for a long time.
On 8 March 2010 he issued a note stating that the plaintiff had been advised to cease work. Coincidentally this was shortly before she left Perth to live in Chile.
As at 25 March 2010 Dr Edelman felt that a gym programme costing something in the order of $1,200 would be appropriate. He felt that it was unlikely that there would be much improvement over the next two to three years.
Dr Edelman reviewed the plaintiff on 17 February 2011 and in a report bearing that date stated her symptomatology had not altered, noting:
She has a whole host of symptoms, namely that her eyes feel heavy, headaches are still occurring, muscle spasms still occur, her trapezius muscles are sore, her neck is sore, her right arm feels heavy with paresthesia and there is tingling and pulling. She tells me that she cannot drive a car properly; household duties are difficult and even drying her hair is difficult for her. She's sore if she lifts anything and she still does not sleep well at night.
He stated that on examination she was extremely tender to even light palpation across her trapezius muscles in her neck, and that all movements were quite reluctant and limited. He reported:
She tells me that she is not working at this point of time and has been in Chile being looked after by her family. She again stated that she is unable to do her domestic and household tasks. By her symptoms she is not able to return back to work.
He postulated that there seemed to be a lot of psychological overlay for many reasons, and strongly recommended settlement of the claim.
Dr Edelman carried out a pre‑trial review on 14 December 2011 and in a report bearing that date recounted that the plaintiff had been living most of the time in Chile, with support from her extended family. She was working three days a week at the Centre of Clinical Hypnosis doing psychological counselling and could just manage four clients a day, although finding it harder to do so. He considered that there had been no change in her symptoms, although it appears that clinical examination revealed quite good movement of the cervical spine.
During his evidence-in-chief Dr Edelman stated that when a period of three years had elapsed since the soft tissue injury, any form of physical treatment, save for an exercise regime, was not likely to be beneficial.
In cross‑examination Dr Edelman readily accepted that his diagnosis, prognosis and the various conclusions expressed by him in his reports, were very much dependent upon the validity of the history of symptoms.
It was put to Dr Edelman that a soft tissue injury was similar to any other muscle strain and his response was:
Nobody can answer your question, because whiplash seems to be totally different than anything else that is called soft tissue. It's called soft tissue because nobody knows where it comes from, it's muscle and soft tissue, it's variable in how long it lasts and I don't think I'd dare compare it to somebody who injures themselves, otherwise it will be over in four weeks. Why isn't it in the majority of people that have a whiplash? Can't answer your question.

Douglas Vincent Joyce

Mr Joyce has a postgraduate degree in manipulative physiotherapy, and has practised that discipline for about 35 years. At the relevant time he carried on practice from rooms contiguous with those of Ms Wright. His report of 7 February 2009 was received in evidence (exhibit P25). He reported that the plaintiff consulted him two days post-accident complaining of severe neck pain, particularly on flexion. Her other ranges of movement, whilst producing sharp pain, were quite good until three‑quarter range. He stated that palpation seemed to indicate stressed ligaments and grossly tender posterior spinal structures; and severe pain could be elicited with gentle explorative palpation. He concluded that there had been overstretching of the facet joints, their restraining structures, and the interspinous ligaments. He informed the plaintiff that the initial stage of soft tissue damage would become less symptomatic over a period of 21 to 30 days whereupon the acute muscle spasm could be assisted, and progress would be quite good. Although the plaintiff was very concerned over the first few weeks, when physiological changes for the better began to show through, her confidence returned. He commented that because of the severity of the palpation signs, ultrasound was initially the only tolerable course of treatment.
Following treatment, Mr Joyce was able to mobilise the facet joints with a resultant greater range of pain-free movement, especially in flexion of the neck. He stated that the plaintiff was incapacitated from work for two weeks, but at the date of the report was still unable to drive a vehicle or undertake her work with the Department of Child Protection. She was having difficulty finding a comfortable position in which to write reports, and needed to take frequent breaks. She also complained of low back pain. He reported that the likelihood of permanent disability was low, and that judging by her performance she should have a reasonable recovery over the next couple of months, it being likely that she would require occasional treatment over the following few years.
In evidence-in-chief he stated that he made the assumption that the plaintiff had been through quite a deal of cervical trauma, and he was able to validate that on palpation. He stated that his conclusion that the likelihood of permanent disability was low, was based on his experience treating thousands of other people, and from the normal timing of the physiological healing that he experienced over the time that he was treating the plaintiff, who seemed to be physiologically healing at the rate he would have expected.
In cross-examination he confirmed that based on the progress the plaintiff had made in the course of treatment, he felt that she would have a reasonable recovery within several months. The plaintiff last consulted him on 8 May 2009.

Cambridge Pain Management Centre

Dr Atkinson referred the plaintiff to the Cambridge Pain Management Centre, and in a report dated 25 May 2009 Mr Ponchard a clinical exercise psychologist recorded that the plaintiff had been required to decrease her workload by a third to cope more effectively with her pain. He stated the aim of their proposed pain management programme was to improve her cardiovascular endurance, flexibility, muscular endurance and eventually muscular strength.

Any of the matters to which I have referred, taken in isolation, might not justify a conclusion unfavourable to the plaintiff, but their combined weight left me with a lack of confidence in her as a witness of truth, or a person whose account and history of symptoms could be relied upon for diagnostic purposes.

The specialist evidence

As already indicated, Ms Wright appeared to be uncomfortable when giving evidence, and to have apparent difficulty addressing issues which I thought would have been within her capacity to address. Her evidence concerning the plaintiff's post‑accident physical and psychological capacity is difficult to reconcile with her reference of 27 October 2009 (exhibit P21) which she provided to the plaintiff for the purpose of supporting an employment application. As she confirmed the contents of that reference in her evidence, it would seem that her statements concerning any perceived incapacity must be referable to the plaintiff's situation in the post‑accident period prior to October.
I did not find Ms van der Burg a convincing witness. Her evidence concerning the plaintiff's psychological state immediately pre‑accident is inconsistent with the requirement for pre‑accident psychological consultations pursuant to the mental health plan initiated by Dr Atkinson. If the plaintiff was 'an attractive, positive, determined, happy person' such that there was no need for any psychological testing, the kindest thing one could say about the imposition upon Medicare is that it was inappropriate.
Dr Tannenbaum was dependent upon the accuracy of the plaintiff's history for his diagnosis and prognosis. It is clear that he was not provided with an accurate description of the plaintiff's pre‑accident psychological state, nor does it appear that he sought to be so informed. Coincidentally he certified the plaintiff unfit to work on the eve of her departure to reside in Chile. He was unable to separate the psychiatric and physical aspects of the plaintiff's condition, but was of the view that the physical symptoms constituted the dominant disorder, giving rise to the psychological issues. As I have already observed, the plaintiff has consulted Dr Tannenbaum on some 32 occasions, and his prognostication is that there will be an indefinite requirement for psychiatric assistance. Bearing in mind that it is apparent from his reports that there has been little if any amelioration of the plaintiff's claimed symptoms over the period he has been seeing her, it is difficult to understand why he considers it appropriate for the professional relationship to continue. The validity of the plaintiff's claimed physical symptoms is the fundamental foundation of Dr Tannenbaum's diagnosis and prognosis.
Dr Menon's diagnosis of significant post‑traumatic stress disorder and major depressive episode, which she characterised as an adjustment disorder with mixed anxiety and depression, was consequent upon acceptance of the plaintiff's account of the pain and restriction in activity she experienced. Dr Mennon confirmed that her diagnosis was necessarily based on the history given to her by the plaintiff. Her diagnosis differed from that of Dr Tannenbaum in that she was not of the view that the plaintiff had a depressive disorder, but an adjustment disorder, which was a condition brought on by a specific stressor, and which remitted once the stressor and the problems related to it were removed.
Dr Edelman, whose involvement with the plaintiff commenced shortly after the accident, was of the view that she had sustained soft tissue injuries which would improve with time, particularly if the plaintiff was active. He expressed the view within several months of the accident that the prognosis was good although it was likely to take some 18 months to two years for a significant improvement. He noted that in June 2009 the plaintiff felt that she was slowly improving. In January 2010 he was of the view that medical intervention was not likely to be a therapeutic advantage, and strongly recommend settlement of the claim. It was about that time that he expressed the view that it was unlikely there would be much improvement over two to three years.
In his report of 17 February 2011 which followed a review that day, Dr Edelman recorded that the plaintiff had a whole host of symptoms, and that her symptomatology had not altered. In particular she was extremely tender to even light palpation across her trapezius muscles, and movements were reluctant and limited. The plaintiff told him at that time that she was not working and had been in Chile being looked after by her family, which is inconsistent with the fact that she was in employment in Santiago and living in her own apartment. Dr Edelman considered that there was a significant psychological overlay. He accepted that his diagnosis and prognosis were very much dependent upon the validity of the plaintiff's account of her symptomatology and physical restrictions.
Mr Slinger reviewed the plaintiff on two occasions in 2011 for medico‑legal assessment. Accepting the plaintiff's complaints of symptoms, Mr Slinger considered that she was not fit to return to pre‑accident duties on a full‑time or part‑time basis, although of course she had been working part‑time in Chile, of which he appears to have been unaware. At his review on 13 December 2011 Mr Slinger obtained a history that the plaintiff was working four days a week as a clinical psychologist and was able to walk to work three days a week but had to drive on the fourth. Because driving aggravated her symptoms she had to reduce her work commitment to three days a week. His clinical examination at that time revealed gross restriction of cervical movement. As with other specialists, and entirely consistent with soft tissue injuries, Mr Slinger was necessarily reliant on the accuracy of the plaintiff's account of symptoms for the validity of his diagnosis and prognosis.
The occupational physician Dr Suthers did not accept that the plaintiff had sustained any physical injuries which would impact adversely on her working capacity. The plaintiff told him that she walked about 2 km to work, and when one has regard to the fact that she told Mr Slinger that she was walking to work three days a week, it would appear that she was walking about 12 km a week. He suggested that the plaintiff was trapped in 'the medical model' and needed to get out and lead a normal life as the vast majority of soft tissue injuries resolved when the medico‑legal issues were finalised. He considered she should have made a full recovery within months of the accident.
As has been indicated, the plaintiff was reviewed on two occasions in 2011 by a neurosurgeon, Mr Watson, to whom she was referred by her general practitioner. Mr Watson considered that there was a full range of cervical spine movement with no indication of abnormality in the upper limbs. He was prepared to accept that the plaintiff had sustained a soft tissue and ligamentous injury to the cervical spine, but was at a loss to explain her ongoing symptoms, or to conceive why she would not be able to carry out the work for which she was trained. Although he accepted that there would have been some reduction in work capacity immediately following the accident, he was surprised the plaintiff had not been able to return to full‑time work some 18 months post‑accident. He accepted it was difficult to base an opinion solely on one day's clinical examination, but it is to be noted that he was unable to identify any objective clinical evidence of difficulty at either examination.
The views expressed by Mr Watson and Dr Suthers concerning the plaintiff's work capacity (which I accept) find some support in the invoices rendered by her for her psychological consultation activities in conjunction with Ms Wright. The invoices demonstrate that in the calendar year 2008 she averaged approximately 6.19 consultation hours per week although she was averaging approximately 15 hours per week towards the end; between 1 July 2008 and the date of the accident she averaged approximately 12.66 consultation hours per week; from the date of the accident until 30 June 2009 5.68 consultation hours per week; and from 1 July 2009 until 14 April 2010 when she left for Chile, 9.8 hours per week. It is significant that after the accident she appears generally to have consulted three days per week, apparently having between three and seven consultations on any day. It would be expected that if she was having the physical difficulty she alleges, the consultations would have been spread out over six days, particularly as she claimed that she needed to take breaks between consultations. Her consultation hours increased noticeably shortly before she left for Chile, and immediately before being certified unfit for work.
The manipulative physiotherapist Mr Joyce, a practitioner of considerable experience with soft tissue injuries, was at an early stage optimistic that the likelihood of permanent disability was low and that the plaintiff would have a reasonable recovery in a relatively short space of time.
Dr Menon considered as at December 2011 that there was no evidence that psychiatric factors would preclude the plaintiff from work as a psychologist.

Assessment

The plaintiff is required to establish the nature and extent of her injuries and their residual consequences on the balance of probability. Having regard to the view that I have taken of her credibility, that task, and assessment, presents considerable difficulty. I am prepared to accept that she did suffer a soft tissue and ligamentous injury to the cervical spine, and some short term associated jaw problems. I do not accept that they have been productive of psychological or psychiatric sequelae. The alleged psychological or psychiatric difficulties are simply a manifestation of the plaintiff's pre‑accident obsessive personality. I am prepared to accept that the soft tissue injuries would have given rise to residual symptoms including head, neck and arm pain and restriction of movement of a modest nature which would have gradually resolved within a period of no more than 18 months. They would probably have impacted upon the plaintiff's working capacity to a limited extent for approximately six months.
The injuries and their residual consequences amount to no more than 12% of a most extreme case, which quantifies at $25,680.
It is not possible, having regard to the plaintiff's employment history, to give arithmetical precision to a calculation of the reduction in her earnings over the six month post‑accident period. I am satisfied that during that period it is probable that there would have been days when she would have limited her consultations. I would allow $10,000 for past loss, inclusive of interest.
The plaintiff has failed to establish loss of future capacity.
The plaintiff claims allowance for gratuitous services. Although I have no doubt that there would have been occasions in the immediate post‑accident period when her father would have provided her with some assistance in respect to her domestic obligations, it is likely that such assistance as he provided would have been forthcoming had she had not suffered bodily injury. Even if this is not the case, I am unable to conclude on the view I take of the evidence of the plaintiff and her father, that the value of the services provided would exceed the threshold for gratuitous services.
In respect to the claim for special damages, the Insurance Commission has made a substantial payment. I am not prepared to make any allowance for psychological or psychiatric attendances, or in respect of the expenses said to have been incurred for treatment in Chile. Having regard to the views expressed by Ms Wright in her reference of October 2009 I am not prepared to allow expenses incurred subsequent to 12 October 2009; that is beyond nine months post accident. I make the following allowances:
Physiotherapy and massage expenses  $1,323.20
Pharmaceutical expenses  $341.72
Dental$45.00
Travelling     $350.00
$2,059.92

Summary

The plaintiff is entitled to judgment as follows:
General damages  $25,680.00
Past loss of earnings inclusive of interest  $10,000.00
Special damages   $2,059.92
Total$37,739.72