Avery v Player

[2021] WADC 69

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   AVERY -v- PLAYER [2021] WADC 69

CORAM:   VERNON DCJ

HEARD:   20, 21, 24 & 28 AUGUST 2020

DELIVERED          :   2 JULY 2021

FILE NO/S:   CIV 1269 of 2017

BETWEEN:   ANITA FAY AVERY

Plaintiff

AND

GAIL FRANCES PLAYER

Defendant

Catchwords:

Motor vehicle accident - Personal injuries - Assessment of damages - Basis for calculation of lost income earning capacity - Effect of insurance policy payments on calculation of interest - Turns on own facts

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943 (WA), s 3C, s 3D

Result:

Damages assessed in the amount of $845,449

Representation:

Counsel:

Plaintiff	:	Mr D M Bruns
Defendant	:	Mr D R Clyne

Solicitors:

Plaintiff	:	JDK Legal Services
Defendant	:	Moray & Agnew Lawyers

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

Batchelor v Burke (1981) 148 CLR 448

Den Hoedt v Barwick [2006] WASCA 196

Department of Housing and Works v Smith [No 2] [2010] WASCA 25

Graham v Baker (1961) 106 CLR 340

Husher v Husher [1999] HCA 47

Jones v Dunkel (1959) 101 CLR 298

Medlin v State Government Insurance Commission (1995) 182 CLR 1

Montemaggiori v Wilson [2011] WASCA 177

Newman v Nugent (1995) 12 WAR 119

Province Leader of the Oceania Province of the Congregation of the Christian Brothers v Lawrence [2021] WASCA 77

Purkess v Crittenden (1965) 114 CLR 164

Skelton v Collins [1993] QSC 422

Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402

Van der Velde v Halloran [2011] WASCA 252

Wainwright v Barrick Gold of Australia Ltd [2014] WASCA 15

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

Watts v Turpin [1999] WASCA 216; (1999) 21 WAR 402

VERNON DCJ:

1. The plaintiff, Anita Fay Avery, seeks damages for personal injuries suffered in an accident on 15 November 2014, when the defendant, Gail Francis Player, drove her car through a stop sign and collided with the plaintiff's car, (the accident).  The defendant has admitted that the plaintiff was injured in the accident as a result of the defendant's negligent driving.  Accordingly, the issue for determination is the assessment of damages.

Summary of the issues

1. The plaintiff claimed that, as a result of the accident, she suffered:

   1.injuries requiring treatment, including bilateral lower brachial plexopathy and peripheral nerve injuries (which together will be referred to as the brachial plexus injury),[1] soft tissue injuries to the cervical and lumbar spine, and post‑traumatic stress disorder (PTSD);[2]

   2.permanent residual disabilities requiring treatment, being pain and restricted mobility and loss of strength in the arms, hands and wrists, pain and restricted mobility of the jaw, cervical spine, shoulders, elbows, back, and left hip, a central disc bulge with radial fissure at L4/5, headaches, depression, anxiety disorder, PTSD, and disrupted sleep pattern;[3]

   3.disruption of her social, employment and household duties;[4] and

   4.loss of past and future earning capacity because the plaintiff has been totally, alternatively partially, incapacitated for work in her pre‑accident occupation as a physiotherapist as a result of the injuries and the residual disabilities.[5]

   [1] Nerves emanating from the spine at C5, C6, C7, C8 and T1 pass through an area of the body between the neck and the armpit called the brachial plexus (ts 185, Mr Alexander O'Beirne).

   [2] Statement of Claim, [4] and [5].

   [3] Statement of Claim, [6] and [7].

   [4] Statement of Claim, [6] and [7].

   [5] Statement of Claim, [9].

2. The plaintiff claimed that her loss of earning capacity was a consequence of the brachial plexopathy injury and the psychological injury.  The plaintiff accepted that there was no evidence to support a finding that any other injuries interfered with her capacity to work.[6]

   [6] Plaintiff's closing submissions (ts 466).

3. At trial, the defendant largely conceded that the plaintiff suffered the claimed injuries.  However, the defendant said that the plaintiff had recovered from the majority of these injuries by about the middle of 2017.[7]

   [7] Defendant's opening submissions (ts 24).

4. In particular, the defendant accepted that the brachial plexus injury, and consequential loss of strength in the plaintiff's arms, hands and wrists, prevented the plaintiff from working as a physiotherapist for some time.  However, the defendant said that the plaintiff was fit to return to return to work as a physiotherapist by September 2017, alternatively 1 July 2018 at the latest.[8]

   [8] Defendant's closing submissions (ts 443).

5. Although the defendant did not dispute that the plaintiff suffered PTSD for some period after the accident, the defendant said that, insofar as the plaintiff suffers any ongoing symptoms of depression or anxiety, this is the result of stress caused by the breakdown of the plaintiff's marriage, and its consequences, and not as a result of the accident.[9]

   [9] ts 444.

6. The defendant did not pursue at trial its pleaded claims that the plaintiff's residual disabilities were caused by hypothyroidism and injuries sustained in a horse riding accident on 18 April 2020.[10]

   [10] Defence at [8(a) to (c) and (e)].

7. The defendant submitted that:

   1.the plaintiff's income for the two years before the accident was not a proper basis for assessing the plaintiff's lost income earning capacity, as the plaintiff claimed, to the extent that it was derived from her former husband's endeavours in his practice as a psychologist;[11] and

   2.the plaintiff had some income earning capacity, in an administrative capacity, and had failed to mitigate her loss by seeking such work.[12]

   [11] ts 437.

   [12] Defence at [8(d)].

8. The defendant also disputed the plaintiff's claims for past and future lost superannuation, gratuitous services, travel expenses, and medical expenses, and interest on past loss of income.

9. In light of the matters in [2] - [9] above the particular issues for determination in assessing the quantum of the plaintiff's loss and damages suffered as a result of the accident are:

   1.has the plaintiff recovered from the effects of the brachial plexus injury;

   2.if so when did the plaintiff recover from that injury sufficiently to return to work as a physiotherapist;

   3.if the plaintiff continues to suffer from the brachial plexus injury, does that prevent her from returning to work as a physiotherapist, or limit her capacity to work in that occupation;

   4.does the plaintiff suffer from ongoing psychological injuries as a result of the accident that prevent her from returning to work as a physiotherapist in any event;

   5.if the brachial plexus injury or the psychological injuries prevent the plaintiff from returning to work as a physiotherapist, does the plaintiff have any other capacity for work, and, if so, what capacity; and

   6.on what basis should any loss of earning capacity be calculated, and the assessment of damages for loss of earning capacity; and

   7.the assessment of the plaintiff's claims for past and future lost superannuation, gratuitous services, travel expenses, and medical expenses, and interest on past loss of income.

General legal principles

1. The assessment of damages for personal injuries is not a science and can only be intuitive, and must be governed by considerations of practical common sense in the context of the facts of the particular case.[13]

   [13] Montemaggiori v Wilson [2011] WASCA 177 [28].

2. The plaintiff bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation: that is that she has suffered the harm she alleges as a result of the accident.[14]  Causation will be established if the accident materially contributed to the damage suffered, although it is not the sole cause.[15]

   [14] Section 5C(1)(a) of the Civil Liability Act 2002 (CLA), Department of Housing and Works v Smith [No 2] [2010] WASCA 25 [92] - [94] (Buss JA); Section 5D CLA.

   [15] Van der Velde v Halloran [2011] WASCA 252 [95]; Section 5C(1)(b) has no application in this case.

3. It may be inferred from the facts that a plaintiff was in good health before an accident and is in bad health thereafter, that the change is a consequence of the accident, in the absence of evidence that there is some other explanation.[16]

   [16] Watts v Rake [1960] HCA 58; (1960) 108 CLR 158,164 (Menzies J).

4. The plaintiff bears the overall burden of proving the loss for which compensation is claimed, including loss of earning capacity and the extent to which that loss produces or might produce financial loss, having regard to the established facts of the past and the probabilities of the future.[17]  The assessment of damages for future financial loss can only be an estimate of the present value of the loss.[18]

   [17] Wainwright v Barrick Gold of Australia Ltd [2014] WASCA 15 [92]; Montemaggiori v Wilson [2011] WASCA 177 [30]; Watts v Rake [1960] HCA 58; (1960) 108 CLR 158,159 (Dixon CJ).

   [18] Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402, 413.

5. With respect to issues of income earning capacity and mitigation of loss:

   1.It is for the plaintiff to prove that she has no capacity for her usual pre‑accident employment, or any other occupation for which she was qualified for prior to the accident;

   2.If the plaintiff is unable to satisfy the court that she does not have capacity to engage in an occupation she was qualified to engage in before the accident, albeit it was not her pre‑accident employment, it is for the plaintiff to satisfy the court what income she may have derived from that employment, as part of her obligation to satisfy the court as to the quantification of her lost earning capacity in financial terms;

   3.If, however, the plaintiff does not do that, the court must do what it can to quantify the lost earning capacity;

   4.If the plaintiff is able to satisfy the court that she does not have capacity to engage in any pre‑accident occupation, the burden may shift to the defendant to prove that the plaintiff is fit for some other work and had unreasonably failed to look for that work, which was available to her, and also to prove what income might be derived from that work; and

   5.If the plaintiff has a residual capacity for work and has not made any, or any reasonable, attempts to find work within that capacity, no onus is placed on the defendant to prove some particular employment is available to the plaintiff and what would be earned from that employment.  The issue for the court is to assess the proper quantification of the plaintiff's loss of earning capacity by reference to the income the plaintiff may have been able to generate had she chosen to exploit that residual capacity.[19]

   [19] Both parties accepted this as an accurate summary of the law at ts 416.

Evidence and findings

Background

1. The following facts were not in dispute, and I make findings accordingly:

   1.The plaintiff was born on 24 September 1964 and is 56 years old.  She was 50 years old at the date of the accident.[20]

   2.In 1996 the plaintiff married Nigel Jones[21] and her two daughters were born in 1997 and 1999 respectively.[22]

   3.Prior to the accident the plaintiff worked as a physiotherapist.[23]

   4.On 15 November 2014, whilst the plaintiff was driving her car along Hopkinson Road, through the intersection of Hopkinson Road and Abernethy Road in Byford, the defendant drove through a stop sign at that intersection and collided into the plaintiff's car, pushing it into a bridge and causing it to roll.[24]

   5.The plaintiff and her husband were both injured in the accident.[25]

   6.The plaintiff and her husband separated in April 2016, and are involved in ongoing Family Court proceedings.[26]

   7.The usual retirement age for a woman of the plaintiff's age would be 67 years, and the plaintiff's life expectancy would be 84.25 years.[27]

   [20] ts 27.

   [21] ts 29.

   [22] ts 74 and ts 75.

   [23] ts 27 and ts 75.

   [24] Statement of Claim, [2]; Defence, [2].

   [25] ts 34, ts 42 and ts 153.

   [26] ts 16 and ts143.

   [27] Accepted by the defendant's closing submissions (ts 441 - ts 442 and ts 460).

2. The severity of the accident is relevant when considering the medical opinion evidence.  Statements of Jamie and Amanda Armstrong, who witnessed the accident, were admitted into evidence by consent.[28]  Neither knew the plaintiff.  Jamie Armstrong said that when the plaintiff's car was hit by the defendant's car it spun around, flipped in the air and rolled six or seven times.[29]  Amanda Armstrong said that she saw the plaintiff's car hit the bridge, flip in the air and roll around five times.[30]  She described the accident as 'massive'.[31]

   [28] Exhibits 44 and 45.

   [29] Exhibit 44 [15] (second page).

   [30] Exhibit 45 [22] - [26].

   [31] Exhibit 45 [33].

3. I accept the evidence in [17] above, and find that, after being hit by the defendant's car, the plaintiff's car hit the bridge, flipped in the air and then rolled up to seven times.  I infer from these facts that the plaintiff was subjected to significant forces in the course of the accident.

Physical demands of the plaintiff's work as a physiotherapist

1. Michael Llewellyn Parry is a registered psychologist,[32] and since January 2007 has been a director of a vocational rehabilitation provider agency accredited with WorkCover WA and Medicare.[33]

   [32] Exhibit 48, Plaintiff's Book of Documents, Vol 2, page 299.

   [33] Exhibit 48, Plaintiff's Book of Documents, Vol 2, pages 299 - 300.

2. Mr Parry said that:[34]

   The role of Physical Therapist/Physiotherapist requires providing medical treatment and treatment advice.  Clinical diagnosis and treatment are expected to include massage; manipulation; application of treatment devices/machines; bandaging; and mobilisation as well as providing verbal and written treatment plans.  The role is historically expected to require significant hands on demands.

   [34] Exhibit 48, Plaintiff's Book of Documents, Vol 2, page 310.

3. The defendant accepted the accuracy of this description of a physiotherapist's work, and that it was a manual and physically demanding job.[35]

   [35] ts 459.

4. The plaintiff described sports and manipulative physiotherapy as having 'very heavy' physical demands.[36]  However, her description of the work that was actually involved was lacking in detail, and, in my view, she was evasive in her answers in cross‑examination as to the demands of the physiotherapy work she was performing for clients in the 2013/2014 financial year.[37]

   [36] ts 28.

   [37] See ts 77.

5. Overall I formed the view that the plaintiff overstated the physical demands of her practice as it stood in 2014.  However, in light of the matters referred to in [20] and [21] above, it was not in dispute that the plaintiff's pre‑accident occupation as a physiotherapist was physically demanding, and involved the need for at least normal strength in her hands and wrists, and I find accordingly.

Brachial plexus injury

Medical evidence

Dr Crawford

1. On 22 November 2014 the plaintiff attended her general practitioner, Dr Crawford, complaining of spine and hand problems,[38] and Dr Crawford referred her for an electromyogram (EMG),[39] to assess whether there was any nerve damage in the plaintiff's upper limbs.[40]

Dr Ron Manasseh

[38] Admitted defendant's opening submissions at [2].

[39] An EMG measures electrical discharge from a muscle (Mr Alexander O'Beirne, ts 186).

[40] ts 149; Exhibit 37, Plaintiff's Book of Documents, Vol 1, page 137.

1. Dr Ron Manasseh, a neurologist, performed an EMG and nerve conduction study on 28 January 2015 and reported that:[41]

   The electrophysiologic findings are suggestive of mild neurogenic changes in the bilateral C8/T1 - predominantly innervated muscles (with evidence of ongoing reinnervation changes and without evidence of active denervation).  Such changes may be seen in lower cervical radicular or brachial plexus pathology.

   [41] Exhibit 4(a).

2. Dr Manasseh also undertook a further EMG and nerve conduction study on the plaintiff on 20 March 2015.[42]  In his report of that date, Dr Manasseh said:

   Bilateral median and ulnar sensory and motor, and left radial sensory, distal latencies and amplitudes were normal.  EMG of bilateral upper limb muscles showed normal recruitment (but poor activation) of normal motor unit potentials, without fibrillations.  EMG of left FDI was also assessed by Professor Dunne, who agreed with findings.

   Conclusion

   Essentially normal EMG of bilateral upper limbs.  There was poor activation of normal motor unit potentials (which may be due to pain, poor voluntary activation or a central disorder).

Dr Peter Watson

[42] Exhibit 4B, Plaintiff's Book of Documents, Vol 3, page 423.

1. Dr Peter Watson, a neurosurgeon, saw the plaintiff on 11 February 2015 and said in his report of the same date:[43]

   Current physical examination shows [the plaintiff] capable of a normal range of movement of the neck.  Her neurological function of the upper limbs is normal down to the function of the intrinsics in both hands which were weak to Grade 4/5, symmetrical and bilateral.

   I did not detect any wasting of the hand intrinsics.  [The plaintiff] feels that her hands have shown some evidence of wasting since the accident.

   Lumbar spine and lower limb examination is all normal.

   [43] Exhibit 5, Plaintiff's Book of Documents, Vol 3, pages 459 – 461.

2. Dr Watson concluded that the plaintiff had suffered soft tissue and ligamentous injuries to the cervical spine, trauma to the lower trunk of the brachial plexus, and lower back soft tissue injuries in the accident.[44]  He said that he expected the plaintiff's condition would gradually improve and recommended a continuation of hand therapy and physiotherapy.  Dr Watson did not consider there was any need for surgery.

Dr Philip Finch

[44] Exhibit 5, Plaintiff's Book of Documents, Vol 3, page 460.

1. Dr Philip Finch is a consultant pain management physician.  He first reviewed the plaintiff on 16 February 2016, and noted generalised weakness in the upper limbs and mild sensory blunting over the tips of the fingers and the medial aspect of the left hand.  He considered that the plaintiff's brachial plexus function was recovering slowly.[45]

Dr John Ker

[45] Exhibit 41A, Plaintiff's Book of Documents, Vol 2, page 271.

1. Dr John Ker is a consultant physician in rehabilitation medicine.  He examined the plaintiff on 20 June 2016 and, in relation to the plaintiff's arms and hands, considered there was some modest wasting of the forearms and wasting within the intrinsic musculature of both hands.[46]  Dr Ker said that there was demonstrable weakness in the extensors of the plaintiff's wrists bilaterally, her grip strength was reduced bilaterally, and 'most markedly' her intrinsic muscle strength in the hands was limited.[47]

   [46] Exhibit 43, Plaintiff's Book of Documents Vol 2, page 295.

   [47] Exhibit 43, Plaintiff's Book of Documents Vol 2, page 296.

2. Dr Ker said that he was not able to definitively determine sensory impairment in the plaintiff's hands but noted the plaintiff's complaints of subtle sensory changes that led to a loss of dexterity.[48]  He said that he considered the cause of the upper limb weakness and sensory impairment was the result of traction injury to the brachial plexus bilaterally.[49]  He said that he was hopeful that the plaintiff would recover her upper limb strength and sensory awareness, whilst noting it had been 18 months since the accident.

   [48] Exhibit 43, Plaintiff's Book of Documents Vol 2, page 296.

   [49] Exhibit 43, Plaintiff's Book of Documents Vol 2, page 296.

3. Dr Ker considered that, as at 20 June 2016, the plaintiff was unfit for undertaking work as a physiotherapist because of her ongoing upper limb weakness.[50]

Dr Anthony Robinson

[50] Exhibit 43, Plaintiff's Book of Documents Vol 2, page 298.

1. Dr Anthony Robinson is an orthopaedic and knee surgeon.  In his report dated 16 May 2017, Dr Robinson said, with respect to the plaintiff's hands and arms, that:

   1.The plaintiff complained of weakness in both hands, pins and needles in the ulnar digits as well as the thumb and index finger, worse on the left hand than on the right, and pain in the elbow worse on the left than the right.[51]

   2.On examination he had found that there was decreased power to grade 3 to 4 out of 5 especially in the muscles of the left side innovated by the C6, C8 and T1 nerve roots, and subjectively there was decreased sensation in both hands.[52]

   3.The diagnosis was of a probable brachial plexus injury, and he was of the view that the weakness in the plaintiff's arms was due to the accident.[53]

Dr Peter Silbert

[51] Exhibit 42, Plaintiff's Book of Documents, Vol 2, page 285.

[52] Exhibit 42, Plaintiff's Book of Documents, Vol 2, page 289.

[53] Exhibit 42, Plaintiff's Book of Documents, Vol 2, pages 289 - 290.

1. Dr Peter Silbert is a neurologist.  He reported on 18 May 2017 that an EMG and nerve conduction studies on the right upper limb showed a chronic right C6 and/or C7 radiculopathy.  He concluded that there was no evidence of active denervation and no evidence of any residual brachial plexopathy.[54]

   [54] Exhibits 11A, Plaintiff's Book of Documents, Vol 3, page 430.

2. Dr Silbert reported on 24 May 2017 that an EMG and nerve conduction studies on the left upper limb again showed mild neurogenic changes in the left triceps muscle consistent with a mild chronic left C7 or C6 radiculopathy.  He concluded there was no electrophysiological evidence of any left brachial plexopathy or ulnar neuropathy of the elbow or elsewhere.[55]

Mr Alexander O'Beirne

[55] Exhibits 11B, Plaintiff's Book of Documents, Vol 3, page 431.

1. Mr Alexander O'Beirne was the plaintiff's treating surgeon.  He has specialised in brachial plexus and peripheral nerve injuries since 2003.[56]

   [56] ts 180.

2. Mr O'Beirne first saw the plaintiff on 23 January 2015.  In his report of that date he said:[57]

   Initially, [the plaintiff] reports that she had numbness on the left arm from the medial aspect of the arm, the forearm, and the entire hand, and on the right the entire hand.  She initially had weakness in the shoulder and elbow muscles, she had no movement in her left hand and weakness in her right hand.  Over the last nine weeks everything has improved significantly and the feeling has almost returned to normal, although she still has some subjective altered sensation in the left hand, little, ring and middle fingers, and in the right hand entire thumb and fingers.  She still felt subjective weakness in the hands.

   She has had a full body MRI scan that shows no significant spinal or nerve root injury.

   [57] Exhibit 40A, Plaintiff's Book of Documents, Vol 2, page 240.

3. Mr O'Beirne reviewed the plaintiff again on 6 March, 22 May, 27 July, and 22 September 2015.  In his report of 22 September 2015, Mr O'Beirne said that the plaintiff was frustrated she had not made a full recovery but that this could take up to two years.[58]

   [58] Exhibit 40E, Plaintiff's Book of Documents, Vol 2, page 244.

4. In his report of 2 February 2016, Mr O'Beirne said that the plaintiff was neurovascularly intact, with a normal light touch sensation, full movement in all muscle groups and no muscle wasting.  He said that the plaintiff complained of mild ulna nerve symptoms with numbness, pins and needles, weakness, and pain with activity.[59]  Mr O'Beirne agreed in cross‑examination, in effect, that at that stage there were no clinical findings to support the plaintiff's complaints at that stage.[60]

   [59] Exhibit 40F, Plaintiff's Book of Documents, Vol 2, page 245.

   [60] ts 204.

5. In his report dated 6 February 2017, Mr O'Beirne said that he believed that the plaintiff had reached maximal medical recovery, and that her main concern was that she perceived weakness in both hands and that she had noticed a loss of muscle definition.  Mr O'Beirne observed that the plaintiff had normal light touch sensation, and a full range of motion, but that there was some muscle wasting around the forearm and that the plaintiff still had five on five power, but it was appreciably weaker than before.[61]  Upon being asked about the meaning of 'five on five power', Mr O'Beirne said:

   As I said five on five power means that you can lift a weight against gravity and its functional and strong … But I believe that at that time I had a bit more recollection of how much power she was exerting on the previous visits, and it felt weaker to me at that time.

   [61] Exhibit 40G, Plaintiff's Book of Documents, Vol 2, page 246.

6. In reports dated 11 and 30 May 2017, Mr O'Beirne said he was making further investigations.[62]  In a further letter dated 30 May 2017, Mr O'Beirne expressed the view that the plaintiff was unfit to work as a manipulative therapist in the short to medium term.[63]

   [62] Exhibits 40H, 40I, Plaintiff's Book of Documents, Vol 2, pages 247 - 248.

   [63] Exhibit 40J, Plaintiff's Book of Documents Vol 2, page 249.

7. On 13 June 2017, Mr O'Bierne said that an MRI scan showed minimal change from 2015, that there was foraminal stenosis to the left C3/C4, minimal foraminal stenosis at other levels and generalised degenerative changes.  He said a nerve conduction study showed mild chronic C6/C7 radiculopathy.[64]

   [64] Exhibit 40K, Plaintiff's Book of Documents Vol 2, page 250.

8. On 24 November 2017, Mr O'Beirne reported that he had reviewed the plaintiff again that day, and that she reported a lot of problems with her left arm, with weakness, altered sensation and the inability to do anything above shoulder height.  He said that he believed there may be a small element of 'double crush' from both the brachial plexus injury as well as compression of the ulna nerve at these sites, and that the symptoms might be improved by decompressing the ulna nerve at the level of the elbow and the wrist.[65]

   [65] Exhibit 40L, Plaintiff's Book of Documents Vol 2, page 251.

9. Mr O'Beirne said in evidence that 'double crush' is a broad term that means that a nerve may be compressed at more than one site, for example the neck, the brachial plexus and the elbow.[66]  When asked in cross‑examination whether a compression at the elbow could be the cause of the numbness in the hands, Mr O'Beirne said that the term 'double crush' implies it is the combined effect of both compressions that was responsible for the symptoms.[67]  He said that relieving one of these would relieve the symptoms by restoring the normal axoplasmatic flow and blood supply through the nerve.[68]

   [66] ts 206.

   [67] ts 206; see also ts 214.

   [68] ts 214.

10. In his report of 19 December 2017, Mr O'Beirne said that he had performed the proposed surgery on 12 December 2017 and that the plaintiff felt improved sensation and strength in her hand.[69]  On 28 January 2018, Mr O'Beirne reported that six weeks post‑surgery to the left arm, the plaintiff reported that she had increased sensitivity in her hand, increased strength and manual dexterity, and that she still had some tenderness over the operative site with a full range of motion.[70]

    [69] Exhibit 40M, Plaintiff's Book of Documents Vol 2, page252.

    [70] Exhibit 40N, Plaintiff's Book of Documents, Vol 2, page 253.

11. In his report of 24 April 2018, Mr O'Beirne said that the plaintiff reported an increase in strength and movement in her left hand and a decrease in altered sensation, and that she was proceeding with an ulna nerve decompression at the level of the right elbow and wrist.[71]

    [71] Exhibit 40O, Plaintiff's Book of Documents, Vol 2, page 254.

12. In his report of 15 May 2018, Mr O'Beirne confirmed his view that, as a direct result of the accident, the plaintiff had had a bilateral lower cord brachial plexus injury, which required decompression surgery to the ulnar nerve at the left elbow and wrist.[72]

    [72] Exhibit 40P, Plaintiff's Book of Documents, Vol 2, page 255.

13. Mr O'Beirne performed an ulna nerve decompression at the level of the plaintiff's right elbow and wrist on 6 June 2018.[73]  In his report of 17 July 2018, Mr O'Beirne said that, at review six weeks after surgery, the plaintiff had a full range of movement and minimal pain, and reported improved feeling and strength in her hand.  He considered that the plaintiff was likely to improve for up to six months.[74]

    [73] Exhibit 40P, Plaintiff's Book of Documents, Vol 2, page 255.

    [74] Exhibit 40S, Plaintiff's Book of Documents, Vol 2, page 269.

14. In his last report of 18 August 2020, Mr O'Beirne said that:[75]

    The fact that [the plaintiff] has had such a significant improvement post-surgery to decompress the ulnar nerves at all potential sites of compression, with near complete resolution of reported symptoms would suggest that she had a mild subclinical compression of the ulnar nerve, either at the level of the elbow or the wrist, which in addition to the already identified injury at the level of the brachial plexus has led to ongoing symptoms.

    [75] Exhibit 40T, second page (unnumbered).

15. Mr O'Beirne concluded:[76]

    I strongly believe that there is significant evidence from the initial injury to confirm unequivocally that [the plaintiff] has had a bilateral brachial plexis injury that has made a partial recovery.  Then further surgery in the form of decompression of the ulnar nerve at the level of the elbow and wrist in both arms, which has enabled her to make a complete recovery and return to activities seen on the video, such as working with horses, dressage and the horse floats.  Certainly on my last review in 2018, it was stated that she has improved feeling and strength in her hands.

    [76] Exhibit 40T, second page (unnumbered).

16. Mr O'Beirne said in evidence at trial that the MRI scans and nerve studies identified that the plaintiff had suffered a bilateral brachial plexis injury, which was managed conservatively, on the basis that nerves will reach their maximal healing over about two years.[77]  He said that further investigation led him to conclude that there may be some level of minor compression along the nerve and surgery was performed to decompress the nerve at the elbow and the wrist after which there was significant improvement.[78]

    [77] ts 186.

    [78] ts 186.

17. Mr O'Beirne said, in effect, that reference to brachial plexus injury or cervical radiculopathy referred to the same nerve injury at a slightly different site.  He considered there was enough evidence, however, to say that the nerve injury was somewhere in the brachial plexus region.[79]

    [79] ts 192.

18. When cross‑examined about the results of Dr Silbert's reports, referred to at [34] and [35] above, in which Dr Silbert had reported that there was no evidence of right or left brachial plexopathy, Mr O'Beirne said that these tests were, at best, 60% ‑ 70% sensitive, so that there was a 30% - 40% chance the test was wrong.[80]  Mr O'Beirne said that the reported symptoms of weakness, altered sensation and fatiguability, his clinical observation of weakness, and a hand assessment report prepared by an occupational therapist, Jaslyn Cullen, on 7 April 2017, supported his opinions.  Mr O'Beirne said, in effect, that whilst the testing done by Ms Cullen would always have a subjective element, that testing was structured to limit the effect of the subjective element.[81]

    [80] ts 209.

    [81] ts 210, ts 211.  Jaslyn Cullen's hand assessment report dated 7 April 2017 was tendered by consent.

19. Mr O'Beirne said that his opinion in 2015 was that the plaintiff showed all the signs that she would make a good recovery, that in 2017 she had made a good, but not a full, recovery, and that on his last review in 2018, the plaintiff had made an even better recovery after surgery.[82]  In further cross‑examination, Mr O'Beirne agreed that in his opinion the plaintiff had made a complete recovery from the symptoms in her arms after the surgery.[83]

    [82] ts 195.

    [83] ts 218.

20. Mr O'Beirne said in his evidence in chief that he had seen the video surveillance footage of the plaintiff recorded between 14 and 26 September 2017 (2017 surveillance) and that in his view it did not rule out functional impairment.[84]  He said that the 2017 surveillance did not show the plaintiff attempting to do anything he would deem as heavy, or fatiguing, or doing fine motor tasks, nor did it show her doing prolonged activities.[85]  Mr O'Beirne said that 'although the activities that you do watch her doing, she seems to be doing very well, there's many activities she's not doing.  So I can't really draw the conclusion that she's fine'.[86]  In cross‑examination, Mr O'Beirne said that he had not seen the video surveillance footage of the plaintiff recorded on days in August and September 2018 (2018 surveillance) but that when he saw the plaintiff in 2018 she reported to him that she was 'much, much better and that she could do more things' and that, in effect, that she was better than she appeared in the 2017 surveillance.[87]

Dr Keith Grainger

[84] ts 195.

[85] ts 195.

[86] ts 195.

[87] ts 198.

1. Dr Keith Grainger is a consultant neurologist.  He reviewed the plaintiff on 15 September 2017 at the defendant's request.  In his report of that date, Dr Grainger said that he believed it was possible that there had been some stretching of the brachial plexus in the accident, although he said the description of symptoms immediately after the accident suggested traction on the cervical nerves.  He anticipated that, in the absence of any fractures or other disturbances, this injury would maximal at the time of the injury, and would gradually improve with time.[88]

   [88] Exhibit 56A, Defendant's Book of Medical Reports, pages 36, 37.

2. Dr Grainger concluded that the effect of the injury had resolved, despite the plaintiff's ongoing symptoms and signs.[89]  He said that:[90]

   The very extensive weakness and pain reduction in her fingers would indicate a quite extensive neurological problem with no objective evidence of this and hence indicate a large functional element i.e. a non‑organic problem.

   [89] Exhibit 56A, Defendant's Book of Medical Reports, pages 37.

   [90] Exhibit 56A, Defendant's Book of Medical Reports, pages 39.

3. In a report dated 2 February 2018, Dr Grainger reported on his review of 2017 surveillance).[91]  He said:[92]

   During the recording showing mild to moderate activity there was no suggestion of any disability.

   In particular there was no suggestion of any weakness of wrist or finger movements which had been present on 14 September 2017.  There was no suggestion of any cervical problems with movement although I felt her movements had been virtually normal in the examination with only a little stiffness with lateral movements.

   In the video there was no sign of any back pain with good movements during recording.

   [91] Exhibit 56B, Defendant's Book of Medical Reports, page 42.

   [92] Exhibit 56B, Defendant's Book of Medical Reports, page 44.

4. Dr Grainger reviewed the plaintiff again on 21 June 2019, and said in his report of that date:[93]

   The global reduced pain sensation in the left arm and in the right arm except for the anterior forearm extending onto the chest anteriorly, is not consistent with any anatomical lesion, having this in a forequarter type distribution.

   This can occur with central cord lesions; however, there is no suggestion of such a lesion and the reduced sensation would have added features.

   In addition there are no reflex changes.

   Likewise it is difficult to describe the weakness with the wrist extension which varies particularly on the right side and the weakness of the hand muscles which could occur with severe injuries in the ulnar and median nerves; however there is no muscle wasting to support this and it is difficult to attribute to the accident.

   [93] Exhibit 56C, Defendant's Book of Medical Reports, pages 50 ‑ 51.

5. In answer to the question of whether the plaintiff's symptoms at that time were consistent with the circumstances of the accident, Dr Grainger said in that report:[94]

   I believe that non-organic factors are present, one indicator being the non-organic distribution of her sensory reduction.  I do not have an organic cause for her intrinsic hand weakness.  Given the activities she can perform it would appear that her inability to work has some psychological or other factors.

   [94] Exhibit 56C, Defendant's Book of Medical Reports, page 51.

6. On 24 July 2020, Dr Grainger provided a supplementary report, and said:[95]

   As discussed in my previous reports, one would have anticipated a good functional recovery from the accident.

   The lack of organic findings except some mild neurogenic changes in the left triceps muscle which was not accompanied by any weakness or reflex changes was not a functional problem.

   The evidence of [the plaintiff's] physical activities would again be against any significant disability.

   The history, which alluded to the fact that [the plaintiff] was able to extract herself from the car and that, by the time she left hospital the sensory symptoms she had complained of had recovered, would not indicate any injury likely to cause permanent sequelae.

   [95] Exhibit 56E, Defendant's Book of Medical Reports, pages 60 – 61.

7. In evidence Dr Grainger said, in relation to the possibility of a brachial plexopathy, that it might be hard to decide which nerve injury had occurred, however, cervical injuries were much more common than brachial plexus injuries.[96]  In cross‑examination, Dr Grainger said it was the same nerve, and agreed that it did not really matter whether the symptoms arose from traction on the cervical spine or stretching in the brachial plexus.[97]

   [96] ts 346.

   [97] ts 370.

8. In his report of 15 September 2017, Dr Grainger said that 'the subject of double crush injuries to my mind has no validity'.[98]  Dr Grainger modified his position in evidence saying:[99]

   It's - it's still a controversial sort of - controversial issue and I think it probably does happen really but what it means is that you've got some pressure of - say at the neck level on a nerve, and you've also got some pressure in your carpal tunnel area and the thought is that it might summate and make the situation worse but I still would think to diagnose it you'd have to have some evidence of nerve compression and by that I mean an abnormal nerve conduction study so if there was some change there, and there was some change at the - at the upper level.

   [98] Exhibit 56A, Defendant's Book of Medical Reports, page 37.

   [99] ts 347.

9. Dr Grainger said, in effect, that it could be appropriate to operate without clinical evidence of subjective symptoms.  He appeared to accept the proposition that improvement in a patient's condition after an operation would be some evidence of the injury.[100]

   [100] ts 374.

10. With respect to Mr O'Beirne's reliance on the hand assessment report prepared by Ms Cullen, Dr Grainger said that he had glanced at it but had not attached any weight to it.[101]  He said, in effect, that he considered this type of detailed testing was too subtle to be of particular use in normal clinical practice.[102]

    [101] ts 390.

    [102] ts 388 - ts 390.

11. Dr Grainger accepted, in effect, that he thought that the plaintiff had exaggerated her description of the severity of the accident, saying:[103]

    Well, it's just a bit of hyperbole … in the description of the accident.  I mean, she may truly have believed that the car rolled over seven times.  It may roll over seven times but … you know a 4 wheel drive rolling over seven times, … that's just to me is amazing and also, if it had rolled over seven times, I would have thought she'd have fractures and severe injuries and lots of bruising … That'd be a very, very severe accident … why do I think it's relevant?  Well if people come along and they say they've had this car crash and they've and they've got all these symptoms and they're going on for two years and … I see the photo of the car and there's a small dent in the bumper bar.  Now, you know I have to ... try to make sense of that, okay, whereas this is the reverse situation.  This was a very, very - on the description, it was a very, very serious accident indeed, and one would have thought that she would have been very seriously injured.

    [103] ts 380.

12. In his report of 7 November 2019, Dr Grainger said that the restrictions the plaintiff reported were inconsistent with the function observed in the 2017 and 2018 surveillance.[104]  Dr Grainger said in evidence that the surveillance had not altered his opinion, but rather reinforced the opinion he already held.[105]

Professor Rosenthal

[104] Exhibit 56D, Defendant's Book of Medical Reports, page 59.

[105] ts 381.

1. Professor John Rosenthal is a consultant physician in rehabilitation medicine.  He examined the plaintiff on two occasions on instruction from the defendant.

2. Professor Rosenthal was unable to attend the trial to give evidence, through illness.  The plaintiff accepted that, and did not object to Professor Rosenthal's reports dated 23 April 2015 and 13 October 2015 being admitted into evidence, subject to considerations of the weight to be given to that evidence.  However, the plaintiff submitted that Professor Rosenthal's reports dated 14 September 2017, after a joint examination with Dr Grainger, and on 6 February 2018 and 16 September 2019, which concerned his review of the 2017 and 2018 surveillance, should not be admitted into evidence, on the basis that the prejudicial effect of those reports outweighed their probative value.[106]  I allowed the admission of those reports over the plaintiff's objection, subject to the consideration of the weight I should give the contents of those reports.

   [106] ts 334 - ts 336.

1. Professor Rosenthal first reviewed the plaintiff on 23 April 2015 and assessed, in particular, that plaintiff had suffered, bilateral lower brachial plexopathy as a direct consequence of the accident.  In his report of the same date, Professor Rosenthal said that:[107]

   I would not currently consider [the plaintiff] fit for work as a hands on physiotherapist.  The plaintiff is in the recovery phase of a lower brachial plexopathy on both sides, and I do not foresee her regaining a work capacity as a hands-on physiotherapist for a further 6 months.  One has to be patient with plexoplathy type injuries which can often take up to two years for full recovery.

   [107] Defendant's bundle of medical reports, page 5.  The questions posed in the report have not been repeated.

2. Professor Rosenthal reviewed the plaintiff again on 13 October 2015, at which time he considered that the plaintiff's condition had improved, with respect to opposition and finger abduction and adduction, however, there was persistent muscle wasting and weakness of flexor carpi ulnaris.[108]  He said:[109]

   I would confirm the diagnosis of cervical and thoracolumbar strain injuries, post-traumatic stress disorder and bilateral lower brachial plexopathy.

   [The plaintiff] is not fit for her pre-accident occupation which has a significant hands-on requirement.  She does not have a part or full‑time work capacity in this regard.

   [108] Defendant's bundle of medical reports, page 10.

   [109] Defendant's bundle of medical documents, pages 10 and 11.  The questions posed in the report have not been repeated.

3. Professor Rosenthal's last review of the plaintiff was on 14 September 2017, with Dr Keith Grainger.  In the report of the same date, Professor Rosenthal said that:[110]

   The objective findings on clinical examination were not suggestive of a clinically active C6 or C7 radiculopathy.  Similarly, there is no reliable or reproducible evidence for the diagnosis of bilateral ulnar neuropathy at the elbow.

   There is electrophysiological and clinical evidence that the bilateral lower brachial plexopathy has resolved.

   There is electrophysiological and clinical evidence for a chronic C6 and/or C7 radiculopathy but her symptoms are atypical and there is no objective motor impairment in relation to these myotomes.

   …

   I find no basis to support this diagnosis [of a double crush lesion at the elbow involving both the ulna and the median nerve] which I would regard as speculative.

   [110] Defendant's Book of Medical Reports, pages 16 - 19.

4. At that time Professor Rosenthal said that he considered that the plaintiff was capable of working 15 to 20 hours per week as a self‑employed physiotherapist, and could gradually build up her hours.[111]  He said he considered the plaintiff was also capable of discharging her domestic duties, and other activities of daily living, including social activities.[112]

   [111] Defendant's Book of Medical Reports, page 19.

   [112] Defendant's Book of Medical Reports, page 20.

5. Professor Rosenthal's views of the 2017 and 2018 surveillance, in his reports of 6 February 2018 and 16 September 2019, were to much the same effect as Dr Grainger's, that it reinforced his view concerning the plaintiff's recovery from the brachial plexus injury.  However, I do not afford his views any weight, given he was not available to give evidence at trial and to be cross‑examined.[113]

Dr Andrew Harper

[113] Defendant's Book of Medical Reports, pages 24, 26 and 27.

1. Dr Andrew Harper is a consultant occupational physician, a specialty which included addressing the functional impact of illness on people's ability to work.[114]

   [114] ts 288.

2. Dr Harper first saw the plaintiff on 8 June 2017.  In his report of that date, in relation to the arm and hand symptoms, he noted reduction in sensation in the ulnar distribution on both the plaintiff's right and left side, and at the base of the left thumb and index finger, and there was left triceps weakness.  Dr Harper said that grip strength was markedly compromised with strength being less than 1 kg bilaterally.[115]

   [115] Exhibit 49A, Plaintiff's Book of Documents Vol 2, page 389.

3. In his report of 20 December 2018, Dr Harper said that the plaintiff said there had been a slight improvement since Mr O'Beirne's surgery as she was better able to hold onto objects and the numbness she had been experiencing in the fifth fingers when driving had improved.[116]  Dr Harper said that on examination:[117]

   On examination of the hands grip strength on the right was 6 kg and 4 kg on the left.  Sensation was reduced over the 5^th fingers of both hand relative to the radial side of her hands.  Reduced sensation was more marked distally in these fingers.  Interosseii muscle strength was clinically reduced.

   [116] Exhibit 49B, Plaintiff's Book of Documents Vol 3, page 393.

   [117] Exhibit 49B, Plaintiff's Book of Documents Vol 3, page 395.

4. Dr Harper said in that report that stress in the plaintiff's life was an aggravating factor to her symptoms but was insufficient to explain those symptoms.[118]  Dr Harper expanded on this in his evidence, saying:[119]

   [The plaintiff's] disability was both physical and emotional and her physical disability related to pain in the back, neck but particularly weakness of the hands and lack of endurance of sustained activity with her arms.  Psychologically she has lost confidence, can't cope well with stress, difficulty in decision making and the combination of these two areas of restriction in my opinion preclude her from being an effective person in the workplace.  In other words, the - her ability to function is impeded by these restrictions to the degree that she is incapacitated to work as a manipulative or sports physiotherapist given the physical demand of that work and particularly the involvement of arms and hands.  And also her emotional side makes it difficult for her to cope with - with the stress of work.  So the combination of these two areas led me to that particular opinion.

   …I - I think that her - her - her work incapacity was related to both physical and emotional factors which I really generally attribute 50 ‑ 50 per cent in explaining that.  Her psychological restrictions impede her generally.  Her physical limitations impede her very specifically in terms of physiotherapy.

   [118] Exhibit 49B, Plaintiff's Book of Documents Vol 3, page 395.

   [119] ts 291 - ts 292.

5. When asked in cross‑examination why there had been an increase in grip strength from less than 1 kg to 6 kg between June 2017 and December 2018, Dr Harper said that it was not a highly reliable test, and that a certain amount of variation was to be expected, and that if the person was suffering pain on a given day that would have an effect, as would effort.  Dr Harper agreed that a grip strength of less than 1 kg was very limited, and was towards the end of the spectrum, namely the hand being totally useless.[120]  Dr Harper also agreed that his testing of the sensitivity of the fingers had a fairly significant subjective response element.

   [120] ts 299.

6. Dr Harper said of the 2017 and 2018 surveillance that it did not demonstrate any limitations, but it did not show sustained activities, and he had based his assessment that the plaintiff did not have the physical endurance for sustained activity on what the plaintiff had told him.[121]

Findings in relation to the brachial plexus injury

[121] ts 302 - ts 303.

1. In his evidence, Mr Grainger expressed doubt on the plaintiff having suffered a brachial plexus injury at any stage, despite acknowledging that as a possibility in his report of 15 September 2017, and the defendant having accepted that the plaintiff had suffered a brachial plexus injury in the accident, consistently with Professor Rosenthal's opinion. Dr Grainger appeared to have been significantly influenced in that by what he believed to be the plaintiff's exaggerated description of the seriousness of the accident, contrary to my findings at [18] above. In any event, Dr Grainger's evidence, referred to in [62] above, was ultimately that whether the injury was the result of traction on cervical nerves, or brachial plexopathy, the result in terms of the symptoms would be the same.

2. I find, consistently with the uncontested evidence of Dr Watson, Dr Finch, Dr Ker, and Professor Rosenthal, and the evidence of Mr O'Beirne, and in light of the defendant's concession, that the plaintiff suffered a brachial plexus injury in the accident and was expected to recover with conservative management over a period of about two years; that is by approximately the beginning of 2017, and that that injury prevented her from working as a physiotherapist until that time.  The real dispute between the parties at trial was as to the plaintiff's recover from that injury thereafter.

3. I do not consider that I can place much, if any, weight on Professor Rosenthal's opinion that the plaintiff's reported symptoms in September 2017 were inconsistent, that the brachial plexus injury had resolved by that time, and that the diagnosis of a 'double crush' injury was speculative, given that his particular area of expertise is not neurology and, somewhat unusually, he examined the plaintiff with Dr Grainger.  It may be that he was influenced in arriving at his views by Dr Grainger.  In any event he could not be cross‑examined about the basis for those views, noting that Dr Grainger had resiled from his similar position concerning the possibility of a 'double crush' injury.

4. I prefer Mr O'Beirne's evidence about the cause of the plaintiff's ongoing symptoms in 2017, and the need for the surgeries performed on the plaintiff's left and right arms in December 2017 and June 2018 respectively, over that of Dr Grainger for the following reasons:

   1.Dr Grainger conceded that it was possible that a patient would be offered surgery without underlying clinical evidence such as EMG results, if the surgeon considered the patient's symptoms warranted intervention.[122]  He also accepted that a 'double crush' injury was possible,[123] that Mr O'Beirne may have more experience in that area,[124] and that signs of improvement after surgery might provide evidence of the validity of the diagnosis.[125]

   2.I consider that, on the balance of probabilities, the plaintiff would not have agreed to undergo two separate surgeries on her arms or report improvement thereafter, had she not genuinely been experiencing the symptoms she described to Mr O'Beirne at that time which led him to consider surgery was appropriate.

   [122] [78] above.

   [123] [75] and [76] above.

   [124] [76] above.

   [125] [77] above.

5. Whilst the plaintiff relied on the evidence of Mr O'Beirne, as to the ongoing nature of the brachial plexus injury and symptoms after in 2017 and 2018, it was also Mr O'Beirne's opinion, which he said were based on the plaintiff's reports of improvement in her symptoms, that the plaintiff had made a complete recovery from her symptoms after the surgeries, and consequential period of recovery from those surgeries, which was approximately six months after the surgery on the right arm in June 2018, that is by the end of 2018.

6. In this Mr O'Beirne's opinion was consistent with that of Dr Grainger.

7. The only expert evidence that there was any ongoing incapacity resulting from the brachial plexus injury after the end of 2018 was that of Dr Harper.  Dr Harper's views about the ongoing nature of the brachial plexus injury symptoms were based only on the plaintiff's reporting of those symptoms to him, inconsistently with the reporting to Mr O'Beirne at about the same time.  That reporting was also apparently inconsistent with his observation of significant improvement in the plaintiff's hand grip strength six months after the surgery on 20 December 2018, and that the plaintiff had reported improvement, albeit at that time she described it as 'slight'.

8. I am not prepared to accept Dr Harper's opinion of ongoing incapacity as a result of the brachial plexus injury, over that of Mr O'Beirne, supported in this respect by Dr Grainger.

9. In accepting Mr O'Beirne's evidence I am necessarily rejecting the plaintiff's evidence of the current ongoing nature of her physical symptoms in her hands and arms after December 2018.  The plaintiff's evidence in that respect was inconsistent, in that the plaintiff said in evidence that the first release of the nerves at the wrists and the elbow had made 'so much' difference as did the second.[126]  The plaintiff did not say whether or when, after that improvement, the symptoms in her arms had recurred, despite complaining of ongoing symptoms of a lack of strength and numbness at the time of trial.  Those complaints were also inconsistent with what the plaintiff reported to Mr O'Beirne after her first and second surgery, and the report of improvement in her grip strength after that surgery, neither of which were in dispute.  Additionally, I consider that the plaintiff was somewhat evasive overall in her answers to questions about her symptoms and how they affected her.

   [126] ts 40.

10. Whilst I accept that the 2017 and 2018 surveillance does not show the plaintiff performing any sustained tasks, in my view, consistently with the experts who watched it, apart from Dr Harper, that surveillance shows the plaintiff performing a number of tasks which are apparently inconsistent with the complaints of physical disability at that time, and provides no support for the plaintiff's claims.

11. Based on these matters, I do not accept plaintiff's evidence about the ongoing nature of her physical symptoms after 31 December 2018 as credible. I find further support for that conclusion in the findings I make at [22] - [23] above and [135] ‑ [138] below.

12. Accordingly, I find that the plaintiff suffered a brachial plexus injury in the accident, the symptoms of which included numbness and a loss of grip strength in her hands and a loss of strength in her arms, and those symptoms resulted in her being unable to work as a physiotherapist until, at the latest, 31 December 2018.  I consider that it is more likely than not, however, that the plaintiff would have been required to build up physical capacity for work after a period of inaction of four years.  It is difficult to assess this period with any precision, however, erring on the side of caution, I consider that a period of six months would have been ample.  Accordingly, I find that the brachial plexus injury did not prevent the plaintiff from returning to her occupation as a physiotherapist, working up to four days a week, by 30 June 2019 at the latest.

Psychiatric injury

1. The plaintiff's counsel accepted at trial that the plaintiff had suffered some stress from the marriage breakdown and agreed the picture was complicated.[127]  However, the plaintiff's counsel submitted that, as it was the defendant who raised the issue of the plaintiff's undoubted psychological issues having a cause other than the accident, the onus was on the defendant to disentangle those factors, relying on Watts v Rake[128] and Purkess v Crittenden.[129]

   [127] ts 404.

   [128] Watts v Rake (1960) 108 CLR 158.

   [129] Purkess v Crittenden (1965) 114 CLR 164.

2. Those cases are authority for the proposition that, if the plaintiff establishes a prima facie case that he or she has been wholly disabled from continuing in their pre‑accident employment, the defendant bears an onus to lead evidence, either by substantive evidence, or by evidence extracted in cross‑examining the plaintiff's case, that there is some other cause of the plaintiff's incapacity, and the nature and extent of that.  However, the onus of proving that the incapacity was caused by the injury suffered remains on the plaintiff.

Evidence of the plaintiff's psychiatric condition before the accident

1. Dr Crawford, said, in effect, that the plaintiff suffered anxiety in about 2011 or 2012, because of the health issues of her mother, daughter and husband, which he considered to be quite mild.[130]  He said that he had prescribed the plaintiff Oxazepam on two occasions in May 2012 and September 2014, to help her sleep.  He said that he increased the dose in September 2014 in order to enable the plaintiff to cut them in half to get the same sedation.[131]  That is his evidence was that this increase in dose did not indicate a deterioration in the plaintiff's symptoms at that time.

   [130] ts 162 and ts 166.

   [131] ts 162.

2. When the plaintiff was asked in cross‑examination about evidence she had given that she had not received treatment for any mental health issues before the accident, the plaintiff said that she thought that the only medication she had taken for such issues was Xanax, prescribed when her brother died in 2000.[132]  When asked if Dr Crawford has prescribed her Oxazepam, a benzodiazepine, in May 2012 for anxiety, the plaintiff said that she would have to check but she did not think she took it.[133]  When asked if Dr Crawford had prescribed her Alepam which was increased from 15 mg to 30 mg in September 2014, the plaintiff said she was not sleeping and she probably only took five.[134]  She said that she had thrown them out before the accident, and had 'probably' told Dr Crawford that.[135]  The plaintiff's evidence was that she had said she had not taken medication for her mental health 'because it wasn't daily or consistent'.[136]  The plaintiff accepted that she had been on mental health plans with her GP for about four years, but said that she never missed work.[137]

   [132] ts 81.

   [133] ts 81.

   [134] ts 81.

   [135] ts 83.

   [136] ts 82.

   [137] ts 83.

3. When asked whether she had been seeing a psychologist, Val Kostic for anxiety and depression before the accident, the plaintiff said:[138]

   I saw her.  My interpretation of seeing her was how to manage with people that don't follow a regime.  My mum was difficult, very difficult to manage.  And so my interpretation is that I went to get the skills to deal with the things that were going on in my life and, yes, it was difficult and stressful but I don't ever remember missing a day of work.

   [138] ts 82.

4. The plaintiff agreed that the psychiatrist, Dr Ng, when reviewing her, asked her about whether she had any prior psychological or psychiatric symptoms, and she told him 'no'.  When asked why, the following exchange occurred:[139]

   [139] ts 84.

   Plaintiff:Because I didn't feel that the treatment was really - for me it was for me to manage with the multitude of family members that I had unwell.

   Counsel:Why didn't you tell him the truth?

   Plaintiff:I told him that I'd seen Val Kostic.  Well, it's in the particulars of damage and stuff.  But he thought that it was more to do with my daughter than I was actually treated and I didn't really understand the difference.

   Counsel:And you've seen him on two prior occasions - two subsequent occasions as well, haven't you?

   Plaintiff:Yes.

   Counsel:And again he's asked you the same question, hasn't he?

   Plaintiff:Yes.

   Counsel:And again you've told him you had no prior problems?

   Plaintiff:Well, I didn't think I had.  I'd always managed and worked.

Evidence of the plaintiff's psychiatric condition after the accident

The plaintiff

1. The plaintiff was asked in evidence‑in‑chief to comment on the suggestion that the real problems she was seeking psychological help for were to do with her divorce rather than the accident.  The plaintiff replied, 'Well if we hadn't had the accident, I wouldn't have got divorced.  It was the head injury that my husband sustained in the accident that changed him'. When asked what she would say about the proposition that she saw Dr Allet, a psychiatrist she had seen from November 2018, about her matrimonial situation and not her injuries, the plaintiff said, 'I just can't say anything except living with a head‑injured person so very difficult and that's what she helped me with'.[140]  When asked what she got from the consultations with her treating psychologist, Ms Sharon Elsley, after January 2018 to the time of trial, the plaintiff said 'I'd already been through the PTSD psychology which taught me to control the spinning and rolling at night and the memories of it and Sharon's helped me more with coping with life really'.  When asked 'do you say that they were to do with coping with your injuries or are they to do with coping with other things' the plaintiff said 'Well, injuries and the psychological aspect of what happened from the accident'.[141]

Dr Crawford

[140] ts 43.

[141] ts 42.

1. Dr Crawford said, in effect, that:

   1.he referred the plaintiff to a psychologist, Mr Doug Brewer, on 31 December 2014, because he considered that the plaintiff had symptoms that may be consistent with her suffering PTSD as a result of the accident;[142]

   2.he referred the plaintiff to another psychologist, Ms Sharon Elsley, on 11 January 2018 because he thought that the plaintiff was becoming increasingly depressed following the accident;[143] and

   3.he referred the plaintiff to a psychiatrist, Dr Rachel Allet, on 13 November 2018.[144]  The letter of referral stated that the referral was for an opinion and management of reactive depression.

Dr Ng

[142] ts 150, Exhibit 37, Plaintiff's book of documents Vol 1, page 141.

[143] ts 153, Exhibit 37, Plaintiff's book of documents Vol 1, page 174.

[144] ts 157, Exhibit 38, Plaintiff's book of documents Vol 2, page 222. It is clear from the evidence Ms Elsley also saw the plaintiff in 2015 and 2016.

1. Dr Ng is a consultant psychiatrist who reviewed the plaintiff on instruction from her solicitors.  He said that he had first seen the plaintiff on 22 January 2015, and reviewed her on 22 January 2018 and 8 July 2020.[145]

   [145] ts 125.

2. Dr Ng said in his report dated 22 January 2015 that the plaintiff reported that she woke up every night with bad dreams for about six weeks after the accident, feeling highly anxious, short of breath and with difficulty breathing, and experienced chest pains and panic attacks.[146]  At the time of the report the bad dreams were still persistent but less frequent.[147]  She would wake up every night between 2 am to 5 am and experience difficulties getting back to sleep.[148]  When the plaintiff was awake she would re‑experience the noise of the crash and this intruded into her mind against her wishes, and there were flashbacks to a rolling sensation.[149]  She had become very wary and cautious when driving, and was even more anxious when driving.[150]  She avoided crowded places as they made her particularly anxious and also irritated.[151]  She was easily tearful and flat in her moods.[152]  Her moods could vary significantly.[153]  She had become forgetful with her short‑term memory and had difficulty focusing.[154]

   [146] Exhibit 35A, Plaintiff's Book of Documents Vol 1, page 99.

   [147] Exhibit 35A, Plaintiff's Book of Documents Vol 1, page 100.

   [148] Exhibit 35A, Plaintiff's Book of Documents Vol 1, page 100.

   [149] Exhibit 35A, Plaintiff's Book of Documents Vol 1, page 99.

   [150] Exhibit 35A, Plaintiff's Book of Documents Vol 1, page 99.

   [151] Exhibit 35A, Plaintiff's Book of Documents Vol 1, page 100.

   [152] Exhibit 35A, Plaintiff's Book of Documents Vol 1, page 99.

   [153] Exhibit 35A, Plaintiff's Book of Documents Vol 1, page 100.

   [154] Exhibit 35A, Plaintiff's Book of Documents Vol 1, page 100.

3. Dr Ng concluded that the plaintiff was both physically and emotionally traumatised by the accident, and its effects.  He said:[155]

   Due to her reportedly and pre-morbidly robust personality traits, she has been able to cope (on the face of it) better than she otherwise would have, with the physical and emotional trauma of the accident.

   The reported psychiatric symptoms do indicate the onset of between moderate to moderately severe pathological anxiety symptoms and mild to moderate degrees of pathological depressive symptoms, as alluded to in the body of this report.

   The reported psychiatric symptoms could be categorised either as post‑traumatic stress disorder (DSM 5) with associated depressive symptoms, or in the alternative, some may view that the reported psychiatric symptoms may be categorised as an anxiety disorder unspecified (DSM 5) with some symptoms reported resembling post‑traumatic stress disorder and associated depressive symptoms.

   …

   Given that she did not have a previous personal psychiatric history, given the physically and emotionally traumatic nature of the accident, and its impact on herself, her husband and her children, I am satisfied that the said accident was the most significant contributing factor in precipitating the onset of her current psychiatric condition.

   She may have a very mild inherent vulnerability to the development of pathological anxiety in the face of significant life stress such as the accident given that she disclosed that her daughter did suffer from some degree of anxiety.

   [155] Exhibit 35A, Plaintiff's Book of Documents Vol 1, pages 102 - 104.

4. Dr Ng said that he would expect the psychiatric improvement over 12 to 36 months and that he considered she would benefit from at least 16 sessions of psychotherapy if not more.[156]

   [156] Exhibit 35A, Plaintiff's Book of Documents Vol 1, page 104.

5. When Dr Ng reviewed the plaintiff again, on 22 January 2018, he said that the plaintiff reported some degree of ongoing stress from ongoing family court proceedings, and was under significant financial strain.[157] The plaintiff also reported that the ongoing inability to return to work made her feel frustrated and depressed,[158] and that she felt very stressed, although she did derive some joy from the limited horse riding she did.[159]  The plaintiff said that she was stressed, easily overwhelmed, would cry and experience difficulties making decisions, and coped by withdrawing.  She reported experiencing transient suicidal ideation once per week but there was no planning, and was still anxious as a passenger in a car and hypervigilant as a driver.[160]  The plaintiff reported ongoing significant difficulty with her memory, concentration, that she lacked motivation and drive, she had difficulties with decision making, lacked confidence, her thoughts were pessimistic and she was not enjoying life.  She said that she had been taking an antidepressant from October 2017, and medication to help her sleep twice a week.[161]

   [157] Exhibit 35B, Plaintiff's Book of Documents Vol 1, page 108.

   [158] Exhibit 35B, Plaintiff's Book of Documents Vol 1, page 108.

   [159] Exhibit 35B, Plaintiff's Book of Documents Vol 1, pages 108 - 109.

   [160] Exhibit 35B, Plaintiff's Book of Documents Vol 1, page 111.

   [161] Exhibit 35B, Plaintiff's Book of Documents Vol 1, page 110.

6. Dr Ng said in that report that he considered that the plaintiff was suffering from residual post‑trauma related anxiety symptoms due to the previously diagnosed PTSD, and the depressive component had evolved and deepened since his initial assessment, to that of a current major depressive disorder to a moderate extent, that was then partially treated.[162]  He considered the plaintiff would benefit from ongoing psychotherapy at least once every two to three weeks for the next at least 12 months if not longer.[163]  Dr Ng expected psychiatric improvement to occur with the passage of 12 to 24 months.[164]  He said that he considered the plaintiff unfit for all work, including her pre‑accident work, from a purely psychiatric perspective.[165]

   [162] Exhibit 35B, Plaintiff's Book of Documents Vol 1, pages 114 - 115.

   [163] Exhibit 35B, Plaintiff's Book of Documents Vol 1, page 115.

   [164] Exhibit 35B, Plaintiff's Book of Documents Vol 1, page 115.

   [165] Exhibit 35B, Plaintiff's Book of Documents Vol 1, page 117.

7. At his last review, on 8 July 2020, Dr Ng said that in his opinion the plaintiff continued to experience ongoing residual depressive symptoms also arising from the previously diagnosed major depressive disorder, which had also improved with the passage of time but remained partially treated.[166]  He said that from a purely psychiatric point of view the plaintiff was totally unfit for her pre‑accident work as a physiotherapist, and that her capacity to persist with all tasks, the pace and quality and outcome of the tasks the plaintiff did perform, was at least moderately impaired.[167]

   [166] Exhibit 35C, Plaintiff's Book of Documents Vol 1, page 126.

   [167] Exhibit 35B, Plaintiff's Book of Documents Vol 1, page 127.

8. In a subsequent report dated 31 July 2020, Dr Ng said that the information he had received, being copies of four reports from the psychologist, Val Kostic, from 1 March 2011 to 28 May 2013, had led him to re‑evaluate his findings with respect to causation.  He said that these reports indicated that the plaintiff had suffered pre‑existing anxiety and associated depressed mood, and had been given a 'CBT programme' to address that, and was making progress.[168]  Dr Ng said that it was unclear exactly how depressed and anxious the plaintiff remained at the time of the accident.  Dr Ng concluded that:[169]

   If the prior depressive and anxiety symptoms had largely ameliorated by the time the subject accident occurred, then the subject accident more likely than not would have caused a significant exacerbation of any pre-existing depressive and anxiety symptoms and precipitated the onset of various manifestations of post trauma anxiety and the latter directly arose as a consequence of the subject accident.

   If the prior depressive and anxiety symptoms had not significantly ameliorated by the time the subject accident occurred, then the subject accident more likely than not would have caused some degree of exacerbation of any pre-existing depressive and anxiety symptoms and precipitated the onset of various manifestations of post trauma anxiety and the latter directly arose as a consequence of the subject accident.

   [168] Exhibit 35D, Plaintiff's Book of Documents Vol 1, page 129.

   [169] Exhibit 35D, Plaintiff's Book of Documents Vol 1, page 95.

9. In his evidence, Dr Ng said that when he first saw the plaintiff, she led him to understand that she had contact with Mr Kostic purely as a consequence of her child's psychiatric difficulties and not for her own.[170]

   [170] ts 127; Exhibit 35A, Plaintiff's Book of Documents Vol 1, page 95.

10. Dr Ng said that he considered that the plaintiff did develop PTSD as consequence of the reported physical and emotional trauma of the accident, in association with which she also developed depressive symptoms which initially were not that significant when he saw the plaintiff in 2015, however with the passage of time the depression evolved to become a major depression, which was not unusual with PTSD and given the wide ranging psychosocial disruptions allegedly occurring in her life.  Dr Ng said the PTSD had improved with the passage of time, as had the major depression.[171]

    [171] ts 130.

11. Dr Ng denied that the reports of Dr Allet, which were not in evidence but which he said he had seen, had changed his opinion.  He said that those reports did not play a material or central role in his coming to his diagnosis, however, said they were 'helpful in corroborating', without identifying in what respects.[172]

    [172] ts 133.

12. Dr Ng said in cross‑examination that he was not aware that the plaintiff had been prescribed medication for anxiety and depression before the accident.[173]  He agreed in cross‑examination that, if the plaintiff had been prescribed Alepam at an increased dose from 15 mg to 30 mg on 6 September 2014, that would indicate that she was still having symptoms, and that if that were the case it may follow that the pre‑existing anxiety symptoms were not insignificant and the accident exacerbated the symptoms but were not a significant cause.  However, he said the PTSD symptoms were precipitated by the accident itself, which was a 'slightly different condition'.[174]

    [173] ts 144.

    [174] ts 145 - ts 146.

13. Dr Ng said that the symptoms which were associated with the PTSD related to re‑experiencing aspects of the trauma, nightmares or flashbacks, being easily jumpy, which were quantitatively different to generalised anxiety symptoms which tend to be free floating and not attached to a specific event.[175]

    [175] ts 146.

14. Dr Ng said in his report of 8 July 2020 that the 2017 and 2018 surveillance had not altered his opinions.[176]  However, in his evidence Dr Ng did revise the opinion expressed in that report, saying that, in light of the surveillance he considered the plaintiff's capacity was impaired to a mild to, at times, moderate extent, that he thought that the plaintiff would benefit from a graduated program to see if she was able to function in alternative low level type work, and if she was successful then she may be able to carry out a graduated return to her pre‑injury work, assuming she had no physical problems whatsoever.[177]

    [176] Exhibit 35C, Plaintiff's Book of Documents, Vol 1, page 122.

    [177] ts 134 and ts 135.

15. Dr Ng said that the plaintiff's presentation in the surveillance would be affected by her being on high levels of medication.[178]  I infer from this that Dr Ng considered that the plaintiff's presentation in that footage was consistent with someone who was being successfully treated for her mental health issues.

Dr Victor Cheng

[178] ts 135.

1. Dr Victor Cheng is a consultant psychiatrist and reviewed the plaintiff, on instruction from the defendant, on 3 August 2020.[179]  Dr Chen said in his report of that date that the information that the plaintiff provided was internally consistent and she did appear to be genuine in the information she provided.[180]

   [179] Exhibit 54A, Defendant's Book of Medical Reports, page 65.

   [180] Exhibit 54A, Defendant's Book of Medical Reports, page 66.

2. Dr Chen said that the plaintiff reported that her treating psychiatrist 'had "fiddled" with her medications and had gotten her to the point if she was not doing all the legal stuff she would probably be better'.[181]

   [181] Exhibit 54A, Defendant's Book of Medical Reports, page 72.

3. Dr Cheng said in his report:[182]

   [182] Exhibit 54A, Defendant's Book of Medical Reports, pages 79 - 82.

   I am not of the opinion that [the plaintiff] is suffering from a psychiatric disorder at the present time.

   I am of the opinion that she would have met the criteria for the diagnosis of [PTSD] and a Major Depressive Disorder as pursuant to DSM-5 in the past, however these are currently in remission.  She has some residual mood symptoms at the time of the assessment but in my opinion, to a large degree her emotional symptoms were consistent with the current uncertainty she was facing in her current situation.

   … 

   She did describe an improvement of her symptoms over time.  I am not of the opinion that she met the criteria for the diagnosis of PTSD and it is likely that she ceased meeting the criteria for the diagnosis of PTSD approximately two or three years following the accident.  In my opinion, she would be considered to be in remission at the present time.

   It is likely that [the plaintiff] has met criteria for the diagnosis of a Major Depressive Disorder and although at the present time this is largely in remission, she continues to have some residual mood symptoms.

   …

   In my opinion, [the plaintiff] continued to have some residual symptoms of depression but to a large degree she does appear to have stabilised with regards to her mood symptoms and her current psychological symptoms were consistent with the normal range of emotional experience considering her current stressors and this included the ongoing certainty surrounding the outcome of the claim, the uncertainty surrounding her future work prospects and financial stressors.

   …

   I am of the opinion that at the present time that the ongoing family court processes and the process of the motor vehicle personal injury claim has also been causing stress, although I am not of the opinion that her psychological symptoms would warrant the diagnosis of psychiatric disorder at the present time but were in keeping with the normal range of emotional experience.

   …

   It is likely that her psychological symptoms rendered [the plaintiff] unfit for work in the past, initially as a result of her PTSD symptoms.

   However at the present time, I am not of the opinion that [the plaintiff] was unfit to work as a physiotherapist from the viewpoint of her psychological symptoms and her capacity for work is limited by her physical complaints.

4. Dr Cheng said that he had based his assessment that the plaintiff was most likely to have suffered PTSD and depression at some point after the accident on Dr Ng's opinion and the plaintiff's reported symptoms.[183]  He agreed he was unable to say when the symptoms of PTSD ceased.[184]

   [183] ts 330 - ts 331.

   [184] ts 331.

5. Dr Cheng did not accept that the plaintiff may have impaired concentration and attention, as a result of her psychological stressors, including the accident, and that could affect her ability to run a physiotherapy business.[185]

   [185] ts 332 - ts 333.

6. Dr Cheng said that he considered that it was prudent that the plaintiff have further psychiatric treatment for a further two years, because whilst her symptoms were relatively in remission, a number of stressors in the plaintiff's life were continuing, including financial stress and the Family Court proceedings.[186]

   [186] ts 333.

7. Dr Cheng said in a report dated 18 August 2020, after reviewing the 2017 and 2018 surveillance, that the activities he observed on the surveillance were not inconsistent with the presentation during his examination, and that at the time of his assessment the plaintiff was settled, did not appear to be particularly distressed and did not have any abnormal mental state examination findings.[187]  He said that the surveillance footage did not alter his opinion but reinforced his conclusion that the plaintiff's psychological condition had largely resolved.[188]

Ms Sharon Elsley

[187] Exhibit 54B, pages 3 and 4.

[188] Exhibit 54B, page 5.

1. Ms Sharon Elsley is the plaintiff's treating psychologist.  In her report of 25 February 2016, Ms Elsley said that she had first seen the plaintiff on 6 March 2015.[189]  She said that she continued to treat the plaintiff at the time of trial.[190]

   [189] Exhibit 50A, Plaintiff's Book of Documents, Vol 1, page 68.

   [190] ts 311.

2. In her report of 25 February 2016, Ms Elsley said that the plaintiff's symptoms met the criteria of PTSD, and were directly related to the trauma of the accident and 'subsequent difficulties recovering due to family circumstances'.[191]  She considered she was not fit to work from a psychological perspective.[192]

   [191] Exhibit 50A, Plaintiff's Book of Documents, Vol 1 page 76.

   [192] Exhibit 50A, Plaintiff's Book of Documents, Vol 1 page 78.

3. In a report dated 17 June 2018, Ms Elsley said that:[193]

   The psychological issues are in reaction to environmental problems which are not easily remedied until both the MVA case and the family court issues are resolved.  The latter is also very stressful and the family disintegration is, according to [the plaintiff], directly due to [the plaintiff's husband's] trauma as a result of the MVA and his actions toward, and reactions to his family.

   [193] Exhibit 50C, Plaintiff's Book of Documents, Vol 1 page 84.

4. Ms Elsley said that the plaintiff had suffered from PTSD, particularly anxiety which is now residual to the previous diagnosis of PTSD, and had developed a major depressive disorder, which was severely incapacitating on 29 January 2018, but was responding to psychological therapy and was currently at a moderate level.[194]  She said:

   [The plaintiff's] psychological condition is caused directly by the MVA of 15^th November 2014.  She has also had subsequent trauma due to her husband's physical/neurological/psychological injuries and his trauma‑related behaviours which caused him to want a divorce and eventually and indirectly forced [the plaintiff] to leave the family home to protect her daughters and herself.

   [194] Exhibit 50C, Plaintiff's Book of Documents, Vol 1, page 87.

5. Ms Elsley said that the plaintiff had denied any previous psychological sequelae, describing herself as a happy and problem solving type of individual.[195]  Ms Elsely said in evidence on 26 August 2020 that she had only recently found out about the plaintiff having seen a psychologist on her own account before the accident.[196]  Ms Elsley agreed that her conclusion in her first report, that the plaintiff's psychological symptoms were the result of the accident, was based in part on her being told that the plaintiff did not have any pre‑existing psychological problems.[197]  However, in re‑examination, Ms Elsley said that her opinions had not been altered as result of becoming aware of the earlier psychological treatment, because there had been 18 months between the plaintiff having last seen a psychologist and first seeing Ms Elsley on 6 March 2015, and if there had been any major problems the plaintiff would not have been working.[198]

   [195] Exhibit 50A, Plaintiff's Book of Documents, Vol 1, page 70.

   [196] ts 313.

   [197] ts 315.

   [198] ts 317.

1. I also accept the plaintiff's evidence that her injuries caused her to be unable to drive for three to four weeks and caused her discomfort in driving because her hands would do numb, and that this went on until towards the end of 2018.[333]  However, I do not accept her evidence that this is an ongoing issue.[334]

   [333] ts 54.

   [334] ts 54.

2. I also accept that the plaintiff's injuries caused her difficulty in carrying out household tasks such as mopping, sweeping, vacuuming, and mowing the lawn, and difficulty with manipulating such things as lids and doorknobs, buttons on clothing and typing at a computer, because of weakness in her hands and wrists, until about the end of 2018.

3. In all the circumstances, I assess the plaintiff's case to be at 30% of a most extreme case, which equates to an award for non-pecuniary loss of $131,400.  No statutory deduction applies.

Gratuitous services

Past gratuitous services

1. The plaintiff claims a total of 302 hours for gratuitous services as follows:[335]

   1.four hours a day for four weeks following the accident totalling 112 hours;

   2.two hours per day for three days following each of the seven procedures by Dr Finch on 23 July 2015, 15 March, 10 May, 21 June and 20 December 2016, and 25 July and 21 November 2017 totalling 42 hours;

   3.two hours per day for four weeks following each surgery on 12 December 2017 and 7 June 2018, totalling 112 hours; and

   4.two hours per day for three days following each of the six procedures by Dr Holthouse on 31 October 2018, 28 February, and 13 June 2019, and 14 February and 13 August 2020, totalling 36 hours.

   [335] Plaintiff's closing submissions at ts 427; Plaintiff's updated particulars of damage, Plaintiff's Book of Documents, Vol 1, pages 3 -5.

2. The plaintiff claims these services at a rate of $33.12 per hour pursuant to s 12 of the CLA, the services claimed being under the cap of 40 hours per week.  There is no issue that the loss is to be calculated at that rate.[336]  The total claimed is therefore approximately $10,000.

   [336] Defendant's closing submissions at ts 456 and ts 458.

3. The threshold for payment of any award for past gratuitous services is $6,500.[337]

   [337] Amount D under the Motor Vehicle (Third Party Insurance) Act 1943 s 3D was $6,500 at the time of trial, and currently – see Western Australia, Government Gazette, Gazette No 78 (30 April 2021) 1600.

4. The defendant submitted that the services provided by the plaintiff's daughters for cooking and cleaning for the household were not compensable, on the authority of Newman v Nugent.[338]

   [338] Newman v Nugent (1995) 12 WAR 119.

5. In Newman v Nugent, his Honour Justice Franklyn held that any compensation for past gratuitous services must be compensation for the plaintiff's incapacity to look after herself, that is the compensable loss is the existence of the need for services, and the trial judge had been in error in compensating the respondent for services performed not only for herself but for the household as a whole.[339]  Insofar as the services provided by her family went beyond those necessary to satisfy the respondent's needs, they were not compensable by the appellant.[340]  Justice Franklyn went on to say:[341]

   One can assume, quite fairly, I think, that some part of the household services provided by the family would be meeting a relevant need of the respondent for those services for some period …

   If she could care for herself in some respects, albeit with pain and discomfort, that would not result in the relevant need in those respects, the pain and discomfort being compensable under the headings of Pain and Suffering or Loss of Amenity.  It would be otherwise if the pain and or discomfort were such as to prevent or inhibit her ability to look after herself.

   [339] Newman v Nugent (1995) 12 WAR 119, 122 - 123 (Franklyn J).

   [340] Newman v Nugent (1995) 12 WAR 119, 123 (Franklyn J).

   [341] Newman v Nugent (1995) 12 WAR 119, 124 (Franklyn J).

6. The plaintiff said it was some time before she could get her hands over her shoulders so her daughter washed her hair.  She said she could not do anything in the house for six to eight weeks.[342]  The defendant accepted that the plaintiff needed assistance for feeding, washing, dressing and blow drying her hair, after the accident.[343]

   [342] ts 54.

   [343] Defendant's closing submissions at ts 455.

7. The plaintiff's daughter, Claire Avery‑Jones gave evidence of the assistance she had to provide her mother.  There was no suggestion that Ms Avery‑Jones was anything but a truthful witness and I accept her evidence of what she did for her mother.

8. Ms Avery‑Jones said that when her mother left the hospital Ms Avery‑Jones showered her, and helped put her to bed.  She cooked dinner for her mother, and herself and her sister.  Ms Avery‑Jones said that her mother was unable to lift pans or dishes, could not open jars or grip utensils.  Ms Avery‑Jones did the grocery shopping for the household.  Initially her mother could not shower or dress herself, or wash or blow dry her hair, especially in the early stages.  During that time Ms Avery‑Jones was spending at least four hours per day on these tasks.[344]

   [344] ts 252.

9. Ms Avery-Jones said that, at that time she had a learner's permit and would drive her mother to appointments and to see her friends, and to the horses, where her mother watched her ride.  Ms Avery‑Jones said it was hard to put an exact time on the amount of driving she did.  She said she does this occasionally now, and in the first two years was doing it frequently.[345]

   [345] ts 253.

10. In cross‑examination, Ms Avery‑Jones said that in the year following the accident she would drive to school, and her mother would drive the car home, and this went on for most of 2015.[346]  Ms Avery‑Jones said that she did not start driving the vehicle towing the horse floats until she was on her P‑plates which was 14 November 2015.  Before that her mother drove the horse float.[347]  Ms Avery‑Jones confirmed that both she and her sister competed in horse events at the Royal Show in 2015, and her mother drove the float.[348]

    [346] ts 256.

    [347] ts 258.

    [348] ts 258 and ts 259.

11. Ms Avery‑Jones said that the cleaning lady quit and they could not get a replacement so she and her sister did that work.  The time it took would vary but it would take the two of them a couple of hours.[349]  In cross‑examination, Ms Avery‑Jones conceded that the housework was for the whole household, being housework her mother used to do for them all.[350]

    [349] ts 253.

    [350] ts 256.

12. Ms Avery‑Jones said that she would look after her mother when she had various medical procedures, and drive her there, as well as washing her and cooking food for everyone.[351]  When her mother had a rhizotomy she would only need to look after her a week or two at most depending on how she was feeling.  She looked after her mother for three weeks when she had the surgeries to release the nerves (with Mr O'Beirne), and had to do all the cooking and driving, as well as washing her hair and blow drying it.[352]

    [351] ts 254.

    [352] ts 254 and ts 255.

13. It is clear from Ms Avery‑Jones evidence that the plaintiff required some gratuitous services from her daughters, however, some of those services were also performed for Ms Avery‑Jones and her sister and her father.  It is also clear that the plaintiff was able to drive from an early point, although she may have preferred not to.

14. Assuming some level of gratuitous services since trial of 18 hours,[353] the total claim would be 320 hours.  Making the best estimate I can in the circumstances I would reduce the hours claimed by half and allow the plaintiff 160 hours past gratuitous services, at a rate of $33.12 being $5,299.  As this does not exceed the threshold of $6,500, however, I can make no award for past gratuitous services.

Future gratuitous services

[353] Being the hours claimed in the 12 months prior to trial.

1. The plaintiff claims that she will require assistance with her personal care and domestic chores for one hour per week on average, to be provided by family members, and friends, and claims at a rate of $33.34 per hour for the rest of her life.

2. The plaintiff conceded that she could look after herself, by which I infer she meant she could take care of her personal hygiene needs and dress herself.[354]

   [354] ts 95 and ts 96.

3. I consider that the plaintiff was evasive in her evidence about what she cannot do now by way of housework.  For example, the answer given to a direct question 'you do your own housework?' was 'well I don't have a house'.  Whilst the plaintiff does not own her home, she lives in a home with her father who, she said, did not do his own housework.  I do not accept the plaintiff needs ongoing assistance with her domestic chores.

4. Ms Avery‑Jones said that her mother still cannot straighten her hair, and does not pick up heavy pots and pans and she helps her with that.  I do not consider, however, that warrants any ongoing award for gratuitous services, as these things can be avoided, and are relevant to the award for non-pecuniary loss, and I have taken them into account in that respect.

5. Accordingly, I make no award for future gratuitous services.

Medical expenses

Past medical expenses

1. The defendant conceded that the expenses incurred in attending the practitioners referred to in the table below for the period were as a consequence of injuries suffered by the plaintiff in the accident.  Accordingly I will allow the amounts in accordance with the fourth column of the table.

Practitioner	Date	Service	Total
Dr William Breidahl	01/08/2017	Ultrasound	$   451.25
Dr Crawford and other general practitioners at Joondalup Medical Centre	16/08/2017	Consultation (1)	$   137.10
Dr Malone	24/06/2015 to 03/02/2016	Consultations (6)	$1,200.00
Mosman Park Dental	25/11/2014 to 17/02/2020	Occlusal splints and associated services	$3,520.00
Total	$5,308.35

1. I will also allow the following claims in light of the findings I have made:

   1.$2,378.25 claimed in relation to the 27 consultations with Dr Crawford, and other general practitioners at Joondalup Drive Medical Centre, from 6 December 2017 to 24 June 2020.  I note that of these, the defendant did not dispute 11 consultations from 6 December 2017 to 2 August 2018, totalling $1,067.20;

   2.$4,113.30 claimed in relation to an epidural, and facet joint denervation by radiofrequency cryoprobe, performed by Dr Philip Finch on 27 November 2017 and associated anaesthetic, hospital costs and consultation costs;

   3.$9,326.45 claimed in relation to the cost of surgery performed by Mr O'Beirne on 13 December 2017 and 6 June 2018 and associated anaesthetic, hospital and consultations costs;

   4.$706 claimed in relation to the services provided by Ms Jaslyn Cullen;

   5.$21,129.81 claimed in relation to the epidural injections and other treatments performed by Dr David Holthouse on 31 October 2018, 28 February 2019, 13 June 2019, 29 January 2020, 14 February 2020, and 13 August 2020 and associated anaesthetic, hospital and consultations costs.[355]

   [355] Exhibit 25, Plaintiff's Book of Documents, Vol 1, pages 21 - 22.

2. There is no evidence before me that the plaintiff's attendances on Dr Allet were causally connected to any injury suffered in the accident, and in light of my findings in relation to the psychiatric injury above, they more probably than not are not connected.

3. The plaintiff said that she went to Stirling Massage to get deep massage because the physiotherapist would not do deep massage.[356]  She said she was really stiff after not moving much after the accident.[357]  However, the plaintiff also said that she had had such treatment before the accident.[358]  There is no medical evidence to support a finding, in the balance of probabilities, that this treatment was required as a result of injuries suffered in the accident.

   [356] ts 77.

   [357] ts 79.

   [358] ts 79.

4. No evidence was led to explain why the plaintiff required the services of Woodlands Physiotherapy commencing on 11 December 2017, or Ms James and The Studio, Physiotherapy and Clinical Pilates from 17 December 2019.  There is no direct evidence to support a finding, in the balance of probabilities, that this treatment was required as a result of injuries suffered in the accident.  By the indirect measure of Dr Holthouse's evidence that the plaintiff may require physiotherapy for low and cervical back pain of $3,000 to $4,000 over the next 10 years, or $300 to $400 per annum, the claim for an amount of over $1,300 over just under two years is excessive.  I will, however, allow a proportion of $700, based on Dr Holthouse's assessment. 

5. In light of the findings I have made, I will not allow the following claims:

   1.$6,489.85, for 26 consultations with Ms Sharon Elsley from 12 January 2018 to 12 August 2020;

   2.$5,803.90, for 20 consultations with Dr Rachel Allet from 26 November 2018 to 29 July 2020;

   3.$935, for 11 consultations with Woodlands Physiotherapy from 23 February 2018 to 29 March 2019;

   4.$383.70, for four consultations with The Studio Physiotherapy and Pilates for physiotherapy from 17 December 2019 to 3 February 2020;

   5.$3,465, for 42 consultations with Stirling Health Professionals for remedial massage, from 2 December 2014 to 4 December 2017.

6. Accordingly, I will allow an amount of $43,662 for past medical expenses.

Future medical expenses

1. As a result of my findings I do not accept that the plaintiff's ongoing need for psychiatric or psychological treatment is attributable to the accident.

2. I accept that the plaintiff will have an ongoing, increased need for analgesics and anti‑inflammatory medications.  I also accept that there may be an increased need to see her general practitioner as a result of the ongoing issues I have found.  I would allow a global amount of $5,000 for these.

3. I also accept that the plaintiff will require further dental splints at a rate of $350 per year, to age 84.25, that is, for 27 years.  At the appropriate discount rate of 6% per annum, this would result in an award of $4,778.[359]

   [359] $350 per annum = $6.73 per week x 710 (multiplier for 27 years at 6%) = $4,478. 

4. I also accept that the plaintiff is more likely than not to require procedures to alleviate the pain in her lumbar and cervical spine at a rate of $7,000 per year, and physiotherapy treatment of $350 per year, for the next 10 years.  At the appropriate discount rate of 6% per annum[360] this would result in an award of $51,520 and $2,576 respectively.

   [360] $7,000 per annum x 7.360 (multiplier for 10 years at 6%) = $51,520; $350 per annum x 7.360 = $2,576.

5. The total of [285] to [287] is $63,874.  Again, these are necessarily estimates.  I consider that an appropriate figure of future medical expenses taking into account contingencies at 5%, to be $60,000.

6. Accordingly, I assess future medical expenses at $60,000.

Travel expenses

Past travel expenses

1. The plaintiff has claimed travel expenses at a rate of 46 cents per kilometre, for travel from her home to attend various health professionals for treatment, as set out in exhibit 25.

2. The defendant conceded that the plaintiff was entitled to recover reasonable travel expenses associated with necessary treatment, and accepted the rate as appropriate.[361]  The defendant said, however, that the plaintiff should not be allowed the entire cost of travelling to see her general practitioner, Dr Crawford, her psychologist, Mr Elsley, and to physiotherapists, after the plaintiff had moved from Kallaroo to Halls Head, being round trips of between 166 and 196 km.  The defendant said that plaintiff ought reasonably have transferred to practitioners closer to home, after she moved, relying on Skelton v Collins.[362]

   [361] Defendant's closing submissions at ts 448.

   [362] Skelton v Collins [1993] QSC 422.

3. In my view it was not reasonable for the plaintiff to continue to attend the same general practitioner in Joondalup in relation to injuries suffered in the accident after the plaintiff moved to Halls Head.  Her evidence was that it was her preference to continue to see the same general practitioner that she saw after the accident after she had moved home.  There was no suggestion that the plaintiff would not be able to find a competent general practitioner within the vicinity of Halls Head or its neighbouring suburbs, which might justify travel of nearly 200 km per round trip.

4. In my view, the plaintiff's costs of travel to her GP, currently claimed at 196.6 km, should be limited to a 40 km round trip for each attendance, as a reasonable distance.

5. There was a period when the plaintiff was travelling from Mosman Park to see her GP, when she first moved from Kallaroo, a round trip of 67.6 km.  The evidence was that she temporarily moved to Mosman Park after leaving the matrimonial home.  It is in my view reasonable to continue to see the practitioners in Joondalup during that period, and the defendant did not dispute that travel.

6. I will not allow the cost of travel to the physiotherapists, Stirling Health Professionals, or Woodlands Physiotherapy.  As I have found in relation to the former, in [280] above, there is no evidence that these costs are attributable to injuries suffered in the accident.  In relation to the latter in [281], I have allowed only a proportion of the total cost, without reference to individual attendances.  However, even were that not the case, there was no evidence before me that it was reasonable for the plaintiff to attend those particular physiotherapists, despite their distance from her home.  The plaintiff had, in fact, already moved to Halls Head before she began attending Woodlands Physiotherapy.

7. I do, however, consider that it was reasonable for the plaintiff to continue to see Ms Elsley, the psychologist she began seeing on 14 April 2015, after the move to Halls Head, until January 2018, at which time, as I have found in [145] above, the cost of psychological treatment were not attributable to the accident.

8. The table below sets out the travel I have allowed, derived from exhibit 25.  Where the plaintiff has made a trip that is compensable as the same time as one that is not, I have allowed the trip for the distance it appears from the schedule was required for the compensable trip:

Practitioner	Date Range	No of trips x km	Total km
Mr Chris Anastasios (Exercise Physiologist)	06/08/2015 to 21/09/2015	6 x 54, 1 x 73	397
Mr Alex O'Beirne (neurosurgeon)	23/01/2015 to 24/04/2018	5 x 56, 6 x 156.2, 1 x 25	1242.2
Ms Christine Busher (Occupational Therapist)	01/12/2014 to 26/11/2015	18 x 51.4	925.2
Dr Crawford and other general practitioners at Joondalup Medical Centre	22/11/2014 to 24/06/2020	31 x 17, 11 x 67.6, 41 x 40	2910.6
Ms Jaslyn Cullen (Occupational Therapist)	31/03/2017 to 22/02/2019	18 x 153.8, 3 x 148	3212.4
Dr Delcanho (Pain Specialist)	19/01/2015	1 x 48.2	48.2
Ms Sharon Elsley (Psychologist)	14/04/2015 to 19/12/2017	32 x 32, 22 x 40.8, 20 x 170.4	5329.6
Dr Finch	16/02/2016 to 16/04/2018	2 x 54.4, 6 x 30.2, 3 x 148.4, 1 x 140	874
Dr Grainger	15/09/2017	1 x 162.2	162.2
Ms Clare Hannan (Manipulative physiotherapist)	25/11/2014 to 09/12/2015	30 x 18	540
Dr Holthouse	03/07/2018 to 23/06/2020	1 x 12, 4 x 160	652
Dr Ker	06/07/2016	1 x 33.2	33.2
Dr Kostov	11/11/2016	1 x 37.2	37.2
Mr Eamon McCloskey	30/06/2017 to 04/08/2017	2 x 26	52
Dr Quentin Malone	24/06/2015 to 20/01/2016	5 x 50.2	251
Professor Rosenthal	23/04/2015 to 13/10/2015	2 x 40.4	80.8
Bone Scan	01/02/2016	1 x 49	49
EMG	28/01/2015 to 24/05/2017	1 x 14.8, 1 x 152.2,	167
Hand and Upper Limb Centre	24/12/2015 to 21/01/2016	2 x 49	98
Hollywood Private Hospital	31/10/2018 to 13/08/2020	6 x 154	924
Mosman Park Dental	09/12/2014 to 17/02/2020	1 x 5, 3 x 30, 3 x 150	545
Mount Hospital	21/11/2017	1 x 86	86
MRI and Radiograph	21/07/2015	1 x 30	30
Royal Perth Hospital	19/11/2014	1 x 50.8	50.8
St John of God Hospital, Murdoch	13/12/2017 to 06/06/2018	2 x 75	150
Priceline Pharmacy	Various	1,560	1560
Total kms	20407

1. Accordingly, I will allow $9,387 for travel expenses.[363]

Future travel expenses

[363] 20,407 km x 46 cents per kilometre = $9,387.

1. In light of my findings it is not appropriate that I grant the plaintiff's future travel expenses claim in the full amount claimed.  I will, however, allow a global amount of $3,000 for future travel to pain specialists and a general practitioner.

Interest on past loss

1. The plaintiff claims interest from 1 December 2014 at a rate of 3% per annum on past losses, including past economic loss.

2. Since the accident the plaintiff has received approximately $7000 per month, or $84,000 per annum, before tax, from an income protection policy.  It was not in dispute that this payment was not relevant to the calculation of the plaintiff's claim for lost earning capacity.[364]  However, the defendant submitted that these payments are relevant to the plaintiff's claim for interest on any amount awarded for lost earning capacity.  The defendant says that such interest is awarded to compensate the plaintiff for being out of pocket for a period of time, and the plaintiff has not been out of pocket to the extent of the payments received from the income protection policy, relying on Batchelor v Burke.[365]

   [364] See Graham v Baker (1961) 106 CLR 340, 343; Defendant's closing submissions at ts 441.

   [365] Batchelor v Burke (1981) 148 CLR 448.

3. The award of interest is governed by s 32(1) of the Supreme Court Act 1935 (WA) which provides that:

   In any proceedings for the recovery of any money (including any debt or damages or the value of any goods), the Court may order that there shall be included, in the sum for which judgment is given, interest at such rate as it thinks fit on the whole or any part of the money for the whole or any part of the period between the date when the cause of action arose and the date when the judgment takes effect.

4. This section does not apply in relation to any general damages in respect of pain and suffering or the loss of the enjoyment or of the amenities of life awarded in relation to personal injury: s 32(2)(aa) Supreme Court Act.

5. The applicable rate of interest under s 32 of the Supreme Court Act is, and was, 6% per annum.  It is usually appropriate to adopt a rate of half the applicable rate, that is 3% per annum, for the period the notionally losses were accruing, adopting the 'rough and ready' approach in Watts v Turpin.[366]  However, the full rate should apply after the losses are complete, following the approach in Province Leader of the Oceania Province of the Congregation of the Christian Brothers v Lawrence.[367]

   [366] Watts v Turpin [1999] WASCA 216; (1999) 21 WAR 402 [90].

   [367] Province Leader of the Oceania Province of the Congregation of the Christian Brothers v Lawrence [2021] WASCA 77 [241].

6. Batchelorv Burke concerned the effect of workers compensation payments received by the plaintiff on his entitlement to interest on damages awarded for lost income earning capacity in an action brought against someone other than the employer.  Gibbs CJ said that:[368]

   In my opinion it was not possible to say that the workers' compensation received in respect of an injury in respect of which damages have been awarded is completely collateral or too remote to be taken into consideration in deciding whether the plaintiff in being deprived of his wages has suffered a detriment which should be remedied by an award of interest.  It is not necessary to attempt the impossible task of devising a 'principle so general as to be capable of covering the great variety of benefits from one source or another which may come to an injured man after, or because, he has met with an accident … The answer to the question whether compensation should be taken into account in the present case is largely provided by a consideration of the legislation under which the compensation is payable.

   (emphasis added)

   [368] Batchelor v Burke (1981) 148 CLR 448, 453 (Aitkin, Wilson & Brennan JJ agreeing).

7. His Honour went on to refer to the provisions of the relevant workers compensation legislation which tied the payment of compensation to lost wages, including the provision that any such payment was to be repaid to the employer if the worker recover damages from a third‑party.  His Honour then said:[369]

   The intention of the legislation is to provide compensation to take the place of the earnings lost by worker as a result of an injury suffered in certain circumstances, and to enable the employer who pays the compensation to be recouped if the injured workman obtains damages. Clearly the advantage given to a workman by this legislation is not conferred upon him with the intention that he may retain the compensation even if he enforces his right to damages, and since the amount received as compensation is repayable to the extent to which damages are recovered the fact that the injured worker has received compensation will not relieve the tortfeasor who caused the injury of liability.  That however does not mean that any advantage or disadvantage which results to the injured worker, and which is relevant in some other way to the assessment of damages, should be disregarded as collateral or remote.  The legislation has treated the payment of compensation and of damages in respect of any one injury as closely related, and the fact that the lost earnings have been replaced by compensation paid under a statutory scheme whose very purpose is to provide money to take the place of the lost wages should be regarded when the court comes to consider whether a plaintiff has suffered any practical detriment by loss of the earnings.  In the present case it was not suggested that there was any significant lapse of time between the loss of earnings and the payment of the compensation.  In those circumstances, when the plaintiff who has lost earnings has received compensation instead, he has not been out of pocket by reason of the failure to pay him damages, even though the compensation is repayable when the damages have been received.  The circumstance that the compensation was paid by a third person (the employer) obviously does not mean that the payment was irrelevant to the enquiry whether in fact the plaintiff has suffered a practical detriment by the loss of his wages, and it does not provide any reasoning law for disregarding the fact that the plaintiff received the compensation in place of wages.

   In accordance with the principle[370] which has been accepted in this court and in the Privy Council it would therefore not be right to award interest in respect of that portion of the award which represents damages for earnings lost before trial but replaced by payment of workers' compensation.  It would not be consistent with that principle to award interest simply to discourage defendants from delaying the settlement of claims.  The interest is awarded to compensate the plaintiff for the detriment that he has suffered by being kept out of his money, and not to punish the defendant for having been dilatory in settling the plaintiff's claim.

   [369] Batchelor v Burke (1981) 148 CLR 448, 454 (Aitkin, Wilson & Brennan JJ agreeing).

   [370] Referring to the principle that interest should only be awarded amounts which represent compensation for economic losses actually incurred as at the date of judgment, page 451.

8. Essentially then the question of whether the discretion to award interest on the past loss of earnings depends on the level of connection between the payment and the lost income and whether it can be described as too collateral or remote to be taken into account when considering whether the plaintiff has suffered any practical detriment by the loss of earnings.

9. The policy[371] provided relevantly and in summary as follows:

   1.The person entitled to the benefit will be paid a monthly benefit if the person insured (who is usually but not necessarily the same person) is totally disabled through injury or sickness.[372]

   2.The person insured is totally disabled if, because of an injury or sickness, he or she is unable to perform at least one income producing duty of his or her occupation, is not working and is under the regular care and attendance of a medical practitioner.[373]

   3.The monthly benefit payable is based on a percentage (up to 75%) of the person insured's average income when the policy was applied for (increased to reflect the consumer price index and a 'no claims' benefit), and if the information given at that time is correct, the amount will not go down if the person insured's actual income goes down.[374]

   4.The benefit will not be reduced by any amounts which are received from other sources such as worker's compensation, social security, other disability policies or superannuation.[375]

   [371] Exhibit 32.

   [372] Exhibit 32, page 5.

   [373] Exhibit 32, page 7, clause 2.

   [374] Exhibit 32, page 17, clauses 13, 16 and 17.

   [375] Exhibit 32, page 28, clause 14.

10. Accordingly, unlike the statutory provisions considered in Batchelor v Burke there is no requirement under the policy to repay the amount received to the insurer.[376]  Nor is the amount to be paid attached to the policy holder's actual income earning capacity and, on my assessment, did not reflect the plaintiff's income earning capacity as a physiotherapist.

    [376] As the defendant submitted was the case; Defendant's closing submissions at ts 441.

11. In my view, this case does not fall within exception in Batchelor v Burke to the principle that the defendant is not to receive any benefit from the plaintiff's contractual arrangements with her insurer.

12. I consider that it is appropriate that the plaintiff be awarded interest on the amount of damages for lost income earning capacity, being $350,000, at a rate of 3% per annum from 15 November 2014 to 30 June 2019, and thereafter to judgment at a rate of 6% per annum.  This results in a total of $90,531.[377]

    [377] 1,681 days from 15 November 2014 to 30 June 2019 at 3% per annum = $48,358; 733 days from 1 July 2019 to 2 July 2021 at 6% per annum = $42,173.

13. For the same reasons I would calculate interest:

    1.on past medical expenses of $43,662, calculated at 3% per annum, from 6 December 2017, being the earliest date the expenses were incurred, and 13 August 2020, being the last date, and at 6% from 14 August 2020 to judgment.[378]  This totals $5,838.

    2.on the plaintiff's past travel expenses of $9,387, calculated at 3% per annum from 15 November 2014 to 28 August 2020, the last day of trial, and at 6% from 28 August 2020 to 2 July 2021.[379]  This totals $2,106.

    [378] 981 days from 6 December 2017 to 13 August 2020 x 3% per annum = $3,520; 323 days from 14 August 2020 to 2 July 2021x 6% = $2,318.

    [379] 2,114 days at 3% per annum = $1,631; 308 days at 6% per annum = $475.

14. Again, these are necessarily estimates, and I would allow interest in the total sum of $98,000.

Conclusion

1. For these reasons I have determined to award the plaintiff damages in the sum of $845,449, calculated as follows:

1.	Non-pecuniary loss	$131,400
2.	Past loss of earning capacity	$350,000
3.	Past loss of superannuation	Nil
4.	Past medical expenses	$43,662
5.	Past travel expenses	$9,387
6.	Future loss of earning capacity	$150,000
7.	Future loss of superannuation	Nil
8.	Future medical expenses	$60,000
9.	Future travel expenses	$3,000
10.	Interest to date of judgment	$98,000
Total	$845,449

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

JG

Associate to Judge Vernon

1 JULY 2021