Azzam v Al Arabeyyat

[2018] NSWDC 70

District Court

New South Wales

Medium Neutral Citation:

Azzam v Al Arabeyyat [2018] NSWDC 70

Hearing dates:

28 February and 1 March 2018

Date of orders:

29 March 2018

Decision date:

29 March 2018

Jurisdiction:

Civil

Before:

Judge Levy SC

Decision:

1. Verdict and judgment for the plaintiff against the defendant in the sum of $233,270.48;

 

2. The defendant is to pay the plaintiff’s costs on the ordinary basis unless otherwise ordered;

 

3. The exhibits may be returned;

 4. Liberty to apply on 7 days’ notice if further or other orders are required.

Catchwords:

TORTS – negligence – injuries sustained in motor vehicle accident; DAMAGES – assessment of claimed heads of damage for physical and psychological injuries according to the provisions of Motor Accidents Compensation Act 1999

Legislation Cited:

Civil Liability Act 2002, s 5D
Evidence Act 1995, s 60
Motor Accidents Compensation Act 1999, s 83, s 126, s 131

Cases Cited:

Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 538
Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13
Arnott v Choy [2010] NSWCA 259
Brogan v Geary (1995) Aust Torts Reps 81-342
Ceva Logistics (Australia) Pty Ltd v Redbro Investments Pty Ltd [2013] NSWCA 46
Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320
Cupac v Cannone [2015] NSWCA 114
Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588
Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25\ Fazlic v Milingimbi Community Inc [1982] HCA 3; (1982) 150 CLR 345
Glen v Sullivan [2015] NSWCA 191
Larson v Commissioner of Police [2004] NSWCA 126
Mahony v Watson [2003] NSWCA 259
Majkic v Bonnano [2008] NSWCA 253
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Manly Municipal Council v Skene [2002] NSWCA 385
Mason v Demasi [2009] NSWCA 227
Mt Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383
Munce v Vinidex Tubemakers Pty Ltd [1974] 2 NSWLR 235
Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58
Penrith City Council v Parks [2004] NSWCA 201
Pham v Shui [2006] NSWCA 373
Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164
State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536
Watts v Rake [1960] HCA 58; (1960) 108 CLR 158

Category:

Principal judgment

Parties:

Isabella Azzam (Plaintiff)
Rouba Walid Al Arabeyyat (Defendant)

Representation:

Counsel:
Mr CP Locke (Plaintiff)
Mr MA Cleary (Defendant)

  Solicitors:
BPH Legal (Plaintiff)
Curwoods (Defendant)

File Number(s):

2017/178494

Publication restriction:

None

Judgment

Table of Contents

Nature of case	[1]
Factual background	[2]
Issues	[3] – [4]
Credit	[5] – [6]
Facts	[7] – [98]
(1) Plaintiff’s pre-accident circumstances	[8] – [11]
(2) Accident circumstances	[12]
(3) Injuries and initial treatment	[13] – [20]
(4) Subsequent medical and allied reviews	[21] – [22]
(5) Resolution of conflicting medical opinions	[23] – [58]
(6) Disabilities that remain	[59] – [73]
(7) Schooling effects	[74] – [76]
(8) Work effects	[77] – [85]
(9) Domestic effects	[86] – [88]
(10) Mitigation	[89] – [98]
Assessment of damages	[99] – [143]
Life span and actuarial factors	[100]
Past economic loss	[101] – [121]
Future loss of earning capacity	[122] – [131]
Past domestic assistance	[132]
Future domestic assistance	[133] – [136]
Future treatment expenses	[137] – [141]
Past out-of-pocket expenses	[142]
Summary of damages assessment	[143]
Disposition	[144]
Costs	[145]
Orders	[146]

Nature of case

1. The plaintiff, Ms Isabella Azzam, is aged 21 years. She was injured in a motor vehicle collision on 17 April 2015, when she was aged 17 years. She brings these proceedings against the defendant, Ms Rouba Walid Al Arabeyyat, claiming damages for negligence in respect of injuries she sustained in that collision. The proceedings are governed by the Motor Accidents Compensation Act 1999 (“MAC Act”) and the Civil Liability Act 2002 (“CL Act”).

Factual background

2. At about 5.15pm on Friday, 17 April 2015, the plaintiff was injured in a four vehicle collision which occurred at the intersection of North Terrace and Lady Cutler Avenue at Bankstown, NSW. In those events the plaintiff sustained a number of musculo-ligamentous injuries. She has not reacted well to those injuries, or those traumatic circumstances, and this has left her with residual physical and psychological problems.

Issues

3. The defendant has admitted liability for the plaintiff’s damages. Following a series of assessments carried out by the Medical Assessment Service under the prevailing motor accidents compensation scheme, it has been determined that the plaintiff is not entitled to claim damages for non-economic loss: s 131 of the MAC Act.

4. The issues to be determined in the proceedings concern the nature and extent of the plaintiff’s injuries and disabilities; a question concerning mitigation of damage; the nature and extent of her past and future treatment expenses; the extent to which the plaintiff has suffered past economic loss and future loss of earning capacity; and the extent, if any, of the plaintiff’s need for past and future domestic assistance.

Credit

5. The plaintiff gave straightforward, and in my view, understated evidence, in which she described her injuries and her post-accident problems in modest and restrained terms. There was no suggestion that the plaintiff was anything other than genuine in her account of her post-accident complaints. I considered that there were no emergent issues over the credibility or the reliability of her testimony.

6. A consultant psychiatrist retained by the defendant’s third party insurer has assessed the plaintiff as having “self-reported pain related disability and she is reliant on excessive rest and avoidance of activity”: Exhibit “1”, Tab 2, p 17. He stated that future treatment “may reinforce illness behaviour” on her part: Exhibit “1”, Tab 2, p 18. That expert later went on to describe the plaintiff as having “entrenched illness behaviour”: Exhibit “1”, Tab 3, p 26. He described the plaintiff as having adopted an “invalid role”: Exhibit “1”, Tab 2, p 19. There was no suggestion from within those descriptions that the plaintiff was not genuinely experiencing the physical and psychological problems that she described.

Facts

7. I now turn to a more detailed consideration of the facts. Unless otherwise stated, my findings of fact that now follow, concern: (1) the plaintiff’s pre-accident circumstances, (2) the accident circumstances, (3) her injuries and her initial treatment, (4) the subsequent medical and allied reviews that were undertaken of the plaintiff, (5) the resolution of conflicting medical opinions to determine the reliability of those opinions, (6) the plaintiff’s remaining disabilities, (7) the effects of those matters on the plaintiff’s work capacity, (8) the effect on the plaintiff’s schooling, (9) the domestic effects of those matters, and (10) the question of mitigation of damage.

(1) Plaintiff’s pre-accident circumstances

8. The plaintiff was born in 1997. At the time of the subject accident, at age 17 years, she was in Year 12 at High School, and was preparing for her Higher School Certificate examinations. At that time, the plaintiff saw a career for herself caring for children in early childhood.

9. Before the subject accident, the plaintiff had sustained injuries in a prior motor vehicle accident that occurred on 24 April 2012. Those injuries consisted of musculo-ligamentous strains to her neck and low back. In respect of those injuries, on 6 March 2013, at the request of her solicitors, the plaintiff was examined by Dr Raymond Wallace, a consultant orthopaedic surgeon: Exhibit “1”, Tab 18.

10. In his report of that consultation, which was about 11 months after that earlier injury, Dr Wallace considered that the plaintiff’s 24 April 2012 injury consisted of musculo-ligamentous strains to the cervical and lumbar spines in a rear-end motor vehicle collision. At that time, he expressed the view that the plaintiff had a guarded prognosis for further recovery of function of her cervical and lumbar spines.

11. Notwithstanding the guarded nature of Dr Wallace’s 2013 prognosis, the plaintiff said, and I accept, that after about 18 months following that earlier accident, that is, by late 2014, her injuries from that accident had gradually resolved. The plaintiff’s evidence in that regard was not suggested to be glaringly or inherently improbable. The plaintiff’s school reports, which I will consider in more detail later in these reasons in connection with the claim for loss of earning capacity, tend to support her evidence in that regard.

(2) Accident circumstances

12. At the time of the collision the plaintiff’s vehicle entered the intersection pursuant to a green turning arrow signal permitting her to make a right turn. As she executed that turn, the defendant’s vehicle entered the intersection contrary to the direction of a red traffic control signal, and struck her vehicle on the passenger side. The force of that collision was sufficient to push the plaintiff’s vehicle over a nearby traffic island, at which time her vehicle was then struck head-on by another vehicle that was approaching the intersection. At the time, the plaintiff was wearing a seatbelt. Those two collisions involved forceful contact with the plaintiff’s body. I find that the plaintiff was physically traumatised by those circumstances, and also suffered psychologically in those events.

(3) Injuries and initial treatment;

13. At about 5.30pm, an ambulance attended to the plaintiff at the scene of the accident. The ambulance report of those events indicates that at the scene, the attending ambulance personnel were also concerned with the welfare of a number of injured children.

14. The ambulance report stated that the plaintiff’s chief complaint at the scene was generalised back pain. It was also noted that she had sustained a previous injury of that type. The report also stated that the plaintiff had initially declined transportation to hospital for treatment as she was waiting for the arrival of her father, who was delayed in traffic. The report also noted that she would attend hospital later that evening with her father: Exhibit “B”, Tab 11, p 60. Her father attended about 45 minutes later: T13.30. The plaintiff attended at Canterbury Hospital later that evening: Exhibit “1”, p 5. She stayed there overnight: T13.34.

15. The medical notes of the plaintiff’s presentation and assessment at the Canterbury Hospital emergency department on that evening, state:

“Discharge refral (sic) drafted on behalf of primary treating Dr…

C/O: 17 y/o girl presented in ED post MVA

…

HPI:

- involved in a MVA (driver)

- turning right towards bankstown sqaure (sic)

- a car coming from the opposite direction hit the passenger side pushing her car across the island

- in the process fetting (sic for getting out) hit again by another car

- all air bags deployed

- patient wearing seatbelts (sic)

- self extricated

- presented in ED for review

- complainig (sic for complaining) of pain all over her body”

[Exhibit “1”, p 110]

16. I infer and find from the terms of the above note, and from the plaintiff’s evidence, that she had experienced pain all over her body, and had an awareness of the events of those two collisions, and was psychologically affected by those injuries and accident circumstances.

17. Shortly after the subject accident, the plaintiff felt that her heart rate was going up and down. She was experiencing numbness within her legs, and throbbing through her neck, her shoulders and her back: T13.34 – T13.44.

18. The plaintiff said, and I accept, that prior to the subject accident, she had no issues of numbness with her legs, and at that time, she had not been suffering any symptoms in her neck or back: T13.46 – T13.50.

19. Apart from the plaintiff’s experience of the shock of those circumstances, the injuries she sustained in those two collisions consisted of musculo-ligamentous strains of the cervical and the lumbar spines, and an injury to the femoral cutaneous nerve of the left thigh, as well as an injury to the left hip.

20. A subsequent MRI scan of the plaintiff’s left hip and pelvis revealed a partial detachment of the lateral labrum: Exhibit “B”, Tab 13, p 70. This was also described as a labral tear, where one doctor said, in qualified terms, that was not necessarily the cause of her symptoms: Exhibit “1”, Tab 11, p 113. I accept the evidence of the plaintiff that the injured part was not symptomatic beforehand, and that the subject accident has caused her to suffer the described discomfort over the lateral aspect of her left hip: Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 538, at pp 563 – 564.

(4) Subsequent medical and allied reviews

21. The chronological sequence of the post-accident medical and allied reviews of the plaintiff, as emerges from the documents tendered, reveals that there were some instances of consultation, assessment and treatment that were somewhat economically documented, or that were not the subject of documentary evidence at all, notably such as in the form of reports from the plaintiff’s treating general practitioner and from the psychologist who had initially treated her.

22. In the following sub-paragraphs, the chronology of reviews and assessments is as appears from the tendered records:

1. On 17 April 2015, at 21:21 hours, at Canterbury Hospital, the plaintiff underwent x-rays of her cervical, thoracic and lumber spines, and chest, because of reported cervical (C4-5) and thoraco-lumbar (T11 – L2) pains. Those x-rays were reported as being within normal limits: Exhibit “1”, Tab 10, pp 106 – 109;

2. On 17 April 2015, the Discharge notes from Canterbury Hospital, cited at sub-paragraph (1) above, as recorded by the assessing doctor who saw the plaintiff at the time she presented, seem to contradict an assumption made by one of the defendant’s expert witnesses to the effect that the plaintiff could not recall the accident: Exhibit “1”, Tab 10, pp 110 – 111;

3. It appears that the plaintiff was seen by her family doctor, Dr Robert Fasanella, but there were no reports tendered from that doctor;

4. On 20 April 2015, the plaintiff underwent a further series of x-rays of her cervical, thoracic and lumbosacral spines by Dr Lam, a radiologist. Those x-rays revealed no abnormalities: Exhibit “1”, Tab 9, p 100.

5. On 11 August 2015, at the request of Dr David Lewington, a spinal and rehabilitation physician, the plaintiff underwent an MRI scan of her pelvis and left hip for high resolution imaging to investigate her complaint of hip pain: Exhibit “B”, Tab 13, pp 69 – 70. That scan identified a partial detachment of the lateral labrum of the acetabulum of the left hip;

6. On 17 August 2015, Ms Kate Atkins, a non-medical rehabilitation consultant, prepared a rehabilitation progress report on the plaintiff: Exhibit “B”, Tab 8, pp 37 – 44. That report, which was apparently prepared for the defendant’s compulsory third party insurer, appears to have followed an earlier rehabilitation assessment of the plaintiff, that was noted to have been approved by the insurer on 27 May 2015. A report of that earlier rehabilitation assessment was not tendered in evidence. In her report of 17 August 2015, Ms Atkins noted that the plaintiff continued to experience difficulties in maintaining her full hours at school;

7. On 19 August 2015, at the request of her general practitioner, Dr Fasanella, the plaintiff was seen again by Dr Lewington: Exhibit “1”, Tab 12, pp 114 – 117. Dr Lewington assessed the plaintiff as having numbness and intermittent shooting pain in the left thigh indicative of a possible L2 or L3 nerve root problem, and symptoms of post-traumatic stress disorder. Dr Lewington considered most of the plaintiff’s initial symptoms of neck and back pain, were likely to be stress-related. Dr Lewington counselled the plaintiff regarding chronic pain and psychosocial influences. He referred her for psychological treatment, pain management and hydrotherapy.

8. On 9 September 2015, at the request of Dr Lewington, the plaintiff was first assessed by Dr Margaret Tadros, a consultant clinical psychologist: Exhibit “B”, Tab 8, pp 33 – 36. Dr Tadros made reference to the plaintiff’s complaints of persistent back and neck pain, high levels of pain-related disability, symptoms of post-traumatic stress, anxiety and depression, and a loss of interest in her usual activities. Dr Tadros suggested that the plaintiff have cognitive behavioural therapy, but the plaintiff was not particularly keen to proceed with that treatment at that time. In her oral evidence, the plaintiff gave reasons for that decision: T19.3 – T19.6, T24.5 – T24.26, T46.43 – T47.42, T51.2 – T51.3;

9. On 30 September 2015, at the request of her treating general practitioner, the plaintiff was re-assessed by Dr Lewington: Exhibit “1”, Tab 12, pp 18 – 19. Dr Lewington assessed the plaintiff as having moderately severe anxiety, post-traumatic stress disorder, and an evolving chronic pain syndrome. He considered that the plaintiff was at risk of developing a longer term chronic pain problem and related disability. At that time, the plaintiff was reluctant to participate in pain management counselling, and other treatment options. A referral was made to Dr Tadros for pain management counselling. At that time, Dr Lewington responded to a request on behalf of the insurer by Ms Atkins for information on the plaintiff’s diagnosis, prognosis and treatment options. Dr Lewington advised Ms Atkins that the plaintiff’s upper left leg problems were most likely related to a “central pain sensitisation which occurs commonly in chronic musculoskeletal pain syndromes”.

10. On 28 October 2015, at the request of the plaintiff’s general practitioner, the plaintiff was re-examined by Dr Lewington: Exhibit “1”, Tab 12, pp 120 – 121. Dr Lewington noted that the plaintiff complained of neck, thoracic and lumbar spine pain. He also noted the plaintiff had an inverted left ankle gait. He arranged for an MRI scan, a neurological referral, and he noted his increasing concern over the plaintiff’s psychological presentation and the possibility of the potential for family dynamics, albeit well-intentioned, perhaps reinforcing pain and illness behaviour. He considered the psychosocial issues may have the potential to cause longterm disability.

11. On 18 November 2015, at the request of Dr Lewington, the plaintiff underwent MRI scans of her pelvis and left hip by Dr Faisal Rasheed, who described a small partial detachment of the right lateral labrum: Exhibit “B”, Tab 13, pp 69 – 70.

12. On 2 December 2015, at the referral of the plaintiff’s general practitioner, the plaintiff was re-examined by Dr Lewington: Exhibit “1”, Tab 12, pp 122 – 126. He noted that the family dynamics were perhaps unhelpful to the plaintiff’s progress in that parental anxiety was being unwittingly transferred to the plaintiff and reinforcing the plaintiff’s pain issues. He noted the plaintiff’s continued left ankle inverted gait. He referred the plaintiff to Dr Michael Solomon, for an orthopaedic review;

13. On 12 December 2015, Dr Solomon, a consultant surgeon, examined the plaintiff at the request of Dr Lewington, to assess the plaintiff’s left hip and left thigh symptoms: Exhibit “B”, Tab 6, p 32. Dr Solomon reviewed an 18 November 2015 MRI scan of the plaintiff’s left hip, and he expressed the view that the labral tear seen on that imaging, was not necessarily the cause of the plaintiff’s symptoms of hip pain and tenderness over the greater trochanter and posterior hamstring musculature. I consider Dr Solomon’s qualified statement that the tear, more accurately referred to by the radiologist as a partial detachment, was equivocal. In that regard, as stated at paragraph [20] above, I have accepted the plaintiff’s history of pain in that region and I infer a causal relationship between that pain and the subject accident. Relevantly, Dr Solomon considered that the plaintiff’s hip problems were due to soft tissue injuries, including a lateral cutaneous nerve neuropraxia. He recommended physiotherapy treatment for those problems;

1. On 20 January 2016, Dr Lewington again reviewed the plaintiff at the request of her general practitioner: Exhibit “1”, Tab 12, pp 124 – 126. Dr Lewington reported the plaintiff’s affect was improved since he previously reviewed her, she seemed less focussed on her pain, and she was able to be distracted from her pain by other life events. The plaintiff’s problem of altered sensation in her left thigh was reported to have continued, and the plaintiff reported a worsening of symptoms due to hydrotherapy. Dr Lewington considered that the plaintiff was in need of pain management counselling. Dr Lewington referred the plaintiff for physiotherapy;

2. On 7 March 2016, at the request of the compulsory third party insurer, AAMI, the plaintiff was assessed by Dr Graham Vickery, a consultant psychiatrist: Exhibit “1”, Tab 2, pp 9 – 24. Dr Vickery reported on the plaintiff’s psychological symptoms as comprising a disturbed sleep pattern due to pain perception, nightmares, that have substantially resolved, and the occurrence of flashbacks. He stated that there was “no clinically significant anxiety, melancholic depression” or thought disorders. His diagnosis was that of Somatoform Chronic Pain Disorder, with psychological factors consistent with DSM IVTR 301.80, in which pain is reported to cause significant distress and incapacity. Dr Vickery highlighted the fact that Somatoform Chronic Pain Disorder is not an entity that is used in the Motor Accident Authority criteria for assessing permanent impairment. He added:

“The development of Somatoform Chronic Pain Disorder is considered to be multifactorial in nature and has been noted to be associated with dysfunctional personality traits, ineffective coping mechanisms, adverse life experiences, impaired relationships, a negative 'context’ of the circumstances of the injury and where there is the development of incapacitating ‘illness behaviour’ and the adoption of the ‘invalid’ role.”

[Exhibit “1”, Tab 5, p 19]

16. Dr Vickery prepared a second report dated 18 March 2016, which was also based on that 7 March 2016 assessment, this time, by way of response to the insurer’s request for a supplementary report: Exhibit “1”, Tab 3, pp 25 – 26. The question that the insurer had asked of Dr Vickery appears to have been somewhat confusing. In his answer to that question, Dr Vickery indicated that the plaintiff appeared to have entrenched illness behaviour in relation to her inverted gait, resulting in embarrassment and social withdrawal, a significant reduction in motivation, feelings of fatigue. He added that it “is unlikely there is any underlying medical basis for those symptoms”: Exhibit “1”, Tab 3, p 26. Although Dr Vickery was undoubtedly qualified for determining the plaintiff’s inverted gait may have been due to entrenched illness behaviour, he did not at all consider the possibility that Dr Solomon identified, namely, that the plaintiff’s left hip problems were due to soft tissue injuries, including a nerve neuropraxia as identified in sub-paragraph (13) above. Without oral evidence on this point, it is difficult to discern Dr Vickery’s meaning and reasoning in his cited opinion. Dr Vickery also stated (at Exhibit “1”, p 19), that he did not consider the subject accident to be a substantial contributing factor to the plaintiff’s Somatoform Chronic Pain Disorder. The meaning of “substantial” was not explained by him in this context. I therefore find Dr Vickery’s opinion in his first report to be insufficiently reasoned to be a reliable expert opinion on some of the matters he commented upon: UCPR r 31.27(1)(c); Sch 7, cl 5(1)(c): Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, at [60], [82], [85]; Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588, at [93]. I am of that view notwithstanding Dr Vickery’s acknowledgment of the Expert Witness Code of Conduct;

17. On 8 April 2016, also at the request of the third party insurer, the plaintiff was examined by Dr John Bentivoglio, a consultant orthopaedic surgeon: Exhibit “1”, Tab 5, pp 38 – 51. In answer to a series of questions posed to him by the insurer who retained him, Dr Bentivoglio expressed opinions to the effect that the plaintiff’s musculo-ligamentous cervical and lumbar strains had “sufficiently recovered”. That opinion was inherently vague, in that “sufficiently” was not further explained as to its meaning in the context used, and that opinion did not appear to be supported by cogent or transparent reasons. Dr Bentivoglio said he had no reason to doubt that the plaintiff was capable of working in childcare. I do not consider that aspect of Dr Bentivoglio’s opinion to be materially reliable as he did not identify or indicate an awareness of the duties of a childcare worker;

18. On 28 September 2016, at the request of her solicitor, the plaintiff was assessed by Dr Wallace, the consultant orthopaedic surgeon who had assessed her in 2013: Exhibit “B”, Tab 3, pp 13 – 18. Dr Wallace concluded that in the subject accident, the plaintiff had suffered musculo-ligamentous strains to both her cervical and lumbar spines, and an injury to the lateral femoral cutaneous nerve of the left thigh. After considering the plaintiff’s complaints of constant neck pain, stiffness in her cervical spine, and intermittent bilateral upper limb weakness, and pain in the lumbar spine, with weakening in the lower limbs, Dr Wallace considered the plaintiff’s symptoms had reached the state of maximal medical improvement, and expressed the opinion that despite ongoing conservative treatment, the plaintiff had a guarded prognosis for further recovery of function in her cervical and lumbar spines: Exhibit “B”, Tab 3, p 17;

19. On 25 October 2016, at the request of her solicitor, the plaintiff was assessed by Dr Zhen Zhang, a consultant psychiatrist: Exhibit “B”, Tab 1, pp 1 – 9. Dr Zhang diagnosed the plaintiff as meeting the diagnostic criteria of post-traumatic stress disorder, which, he noted, was within the spectrum of anxiety disorders, and which he thought was also complicated with what he considered to be major depression;

20. On 8 November 2016, at the request of her solicitors, the plaintiff was assessed for functional capacity by Ms Melisa Bobanovic, an occupational therapist: Exhibit “B”, Tab 5, pp 20 – 31. Ms Bobanovic took a history of the plaintiff experiencing constant pain in the cervical spine which occasionally spiked, and which could gradually become unbearable. She recorded that the plaintiff’s pain radiated to both shoulders and to the lumbar spine and buttocks. The plaintiff also reported stabbing pain in the left foot, radiating to the medial aspect of the leg, requiring the plaintiff to alter her gait to avoid placing her entire left foot flat on the ground when walking. Ms Bobanovic observed the plaintiff’s altered gait pattern. Ms Bobanovic concluded that the plaintiff did not have the physical capacity to complete the role or duties of a childcare worker, but she was otherwise assessed as fit for other work, such as sedentary or office based receptionist duties. That opinion was supported by the reasoning she set out in sections 5.4.4, 5.5, 5.6, 5.6.6 and 5.6.7 of her report: UCPR r 31.27(1)(c); Sch 7, cl 5(1)(c). Ms Bobanovic also noted that the plaintiff experienced problems lifting in an appropriate position or posture because of the way she kept her left foot inverted, and the way in which she held her posture of the lumbar spine. She identified limits to the plaintiff’s capacity to lift and to carry weights of up to 5 kgs. In my view, those conclusions would have an obviously limiting effect on the plaintiff’s ability to fully carry out the duties of a childcare worker looking after young children;

21. On 17 January 2017, at the request of the third party insurer, the plaintiff was assessed at her home by Ms Ann Hughon, an occupational therapist, to assess her activities of daily living: Exhibit “1”, Tab 7, pp 63 – 97. Ms Hughon’s report was mainly directed at the plaintiff’s claim for damages for domestic assistance. Ms Hughon (at p 74), expressed the view that she saw no reason why the plaintiff would be unable to enter the workforce, citing a view apparently published by the Faculty of Occupational and Environmental Medicine advocating “a return to work programme to avoid reinforcing and perpetuating the development of incapacitating and avoidance behaviour”. It should be observed at this point that the plaintiff’s case is different to Ms Hughon’s viewpoint of analysis. Ms Hughon appears to have confused the two separate and distinct concepts of, first, entering the workforce, and secondly, the entirely separate concept of returning to work. In my view, this limits the reliability of her expressed opinions;

22. On 29 July 2017, at the request of the solicitor for the defendant, the plaintiff was re-examined by Dr Bentivoglio. Dr Bentivoglio’s report of that consultation, dated 4 October 2017, was excluded from evidence after an objection which was taken on behalf of the plaintiff, was upheld: MFI “4”;

23. On 21 August 2017, at the request of the solicitor for the defendant, the plaintiff was examined by Dr Vickery for a second time, and prepared his third report: Exhibit “1”, Tab 4, pp 28 – 37. Dr Vickery stated (at p 32), that the plaintiff displayed “no clinically significant anxiety, melancholic depression”, or thought disorder, and no cognitive or memory impairments. He did not explain what he meant by “significant” in this context. He stated (at p 33), without a supporting reasoned explanation, that the plaintiff’s “complaints are not consistent with the consequences of the accident”. I consider that statement to be an unreliable oracular statement that was insufficiently reasoned, and which did not comply with either UCPR r 31.27(1)(c) and Sch 7, cl 5(1)(c): Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, at [60], [82], [85]; Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588, at [93];

24. In that 21 August 2017 report, Dr Vickery reiterated his earlier expressed view that the plaintiff’s diagnosis was that of Somatoform Chronic Pain Disorder with psychological factors in which the perception of pain is the main cause of significant distress and incapacity where “there is often the lack of significant underlying medical pathology to account for the degree of impaired functioning”;

25. On 7 February 2018, at the request of the solicitor for the plaintiff, Dr Zhang commented upon the defendant’s reports from Dr Vickery dated 21 August 2017, and Dr Bentivoglio dated 4 October 2017: Exhibit “B”, Tab 2, pp 10 – 12. On reviewing those reports, Dr Zhang stood by his earlier report dated 25 October 2016, without changes. Dr Zhang expressed his disagreement with Dr Vickery’s conclusion that the plaintiff was not affected by post-traumatic stress disorder. In doing so, Dr Zhang recorded that his own view was based on the DSM IV criteria he cited in support for his conclusions. He disagreed with Dr Vickery’s formulation of Somatoform Chronic Pain Disorder, and noted that Dr Vickery accepted that the plaintiff’s symptoms were consistent with anxiety and depression. My impression from Dr Zhang’s commentary is that Dr Vickery had used narrowly interpreted nomenclature in stating his opinions. The fact remains, that the plaintiff continues to have symptoms of anxiety and depression, which affect her psychological functioning. The DSM IV nomenclature is of limited importance in the analysis;

26. On 17 January 2018, Dr Wallace prepared a commentary report in reply to comments made by Dr Bentivoglio’s second report. As Dr Bentivoglio’s report did not form part of the evidence, the tender of Dr Wallace’s report of 17 January 2018 was withdrawn, and it was marked MFI “5”: T11.3 – T11.5.

(5) Resolution of conflicting medical opinions

23. Before making findings as to the plaintiff’s ongoing disabilities, it is necessary to resolve some relevant aspects of conflict that have arisen from within the opposing medico-legal opinions.

24. The material areas of conflict concern the nature, the extent and the cause of the plaintiff’s ongoing physical and psychological problems, and the likely long term consequences of those matters.

25. At this point in the consideration it is necessary that I identify the reservations I hold concerning the opinions of Dr Bentivoglio when compared to those of Dr Wallace, Dr Lewington and Dr Solomon, and the opinions of Dr Vickery when compared to those of Dr Zhang. It is convenient to commence with the analysis of the differing views within the reports of Dr Wallace and Dr Bentivoglio.

26. A difficulty with that analysis was that none of the medico-legal experts were either called to give evidence in chief or required for cross-examination. In those circumstances, their reports must be evaluated according to the onus of proof on any issue in dispute, and according to the manner in which they approached their respective analyses to reach their expressed opinions: Majkic v Bonnano [2008] NSWCA 253, at [26], Larson v Commissioner of Police [2004] NSWCA 126, at [48].

27. Dr Wallace based his opinions on a consideration of the plaintiff’s complaints and on his findings on examination. In particular, he recorded his findings of the plaintiff’s complaints of persisting pain at the C2 to C7 spinous process radiating to the superior border of the trapezius muscles, without radiation to the upper limbs. He recorded that the plaintiff’s pain was reported to be constant, and made worse with any range of movement, and was relieved by lying down or applying a heat pack. He also noted the plaintiff’s persisting lumbar spine pain at the L4/5 spinous process radiating into the left buttock and globally about the left thigh to knee level, with intermittent paraesthesia in that region, and weakness in the lower limbs.

28. Dr Wallace noted the history of prior injury on 24 April 2012, which had resolved, and he also conducted a detailed clinical examination and noted a complaint of tenderness at the right para-cervical region of C5/6/7. He also noted a complaint of tenderness from T5 to L5 spinous processes and an altered gait of the left foot. He examined the results of relevant x-rays. At 18 months post-injury, Dr Wallace suggested a review by the plaintiff’s local medical officer and expressed a guarded prognosis for further recovery of function of the plaintiff’s cervical and lumbar spines.

29. In contrast to the opinions of Dr Wallace, which he expressed on the basis described above, the opinions of Dr Bentivoglio were “based entirely upon the evaluation of objective findings”, which absent evidence from him to the contrary, I take to mean that he had put to one side the plaintiff’s history of her subjective complaints.

30. Although that approach might serve to explain why Dr Bentivoglio considered the plaintiff to have “sufficiently recovered” from the effects of the accident, it is an approach that in view, has led to a skewed and unbalanced analysis. Dr Bentivoglio’s analysis reveals that it was a limited one, which did not consider the essential subjective detail of the plaintiff’s complaints, which therefore requires that I undertake a broader consideration of the medical evidence as a whole, and in that process, consider the preponderance of the opinions that emerge from those reports.

31. Dr Bentivoglio’s opinion was that the abnormalities seen in the plaintiff’s left hip were not due to the subject accident because “the mechanism of injury was inappropriate”, although he accepted that the numbness the plaintiff experienced in her thigh could well have been caused by wearing a seatbelt in the accident. He did not refer to the detail of the two collisions as set out in the hospital discharge summary as cited at paragraph [15] above. His reasoning in that regard is obscure, in that he did not explain what he meant by the terms “inappropriate”, and I therefore consider it to be materially unreliable. The difficulty I have in accepting Dr Bentivoglio’s opinions generally is that he set the parameters for his analysis as being “based entirely upon the evaluation of objective findings”. In adopting that approach, he seems to have excluded from his consideration, the plaintiff’s subjective complaints, although he had recorded those symptoms: Exhibit “1”, p 40. In my view, that approach was unreasonably limited in the context of a disability assessment, as it did not seek to evaluate the plaintiff’s self-described symptoms in an appropriately balanced way. I therefore consider Dr Bentivoglio’s report to be of very limited probative value, and an incomplete basis upon which to determine the effects of the accident on the plaintiff.

32. On that analysis, I prefer Dr Wallace’s approach and his opinions as I consider his approach and consideration to be a more reliable one, that takes into account the plaintiff’s relevant objective and subjective complaints, and the signs he identified on his examination of the plaintiff. Dr Bentivoglio’s approach had the effect of closing off from his consideration the plaintiff’s subjective complaints of her symptoms.

33. By August 2015, Dr Lewington, assessed the plaintiff as having signs of post-traumatic stress disorder, which he considered to be influencing her neck and back symptoms, but he also assessed the plaintiff as having a possible L2 or L3 nerve root problem which might explain her left thigh shooting pains. By September 2015, Dr Lewington considered that the plaintiff was developing a longer term chronic pain problem and he noted that her psychological reaction, in the form of pain sensitisation, commonly occurred in chronic musculo-skeletal pain syndromes.

34. Dr Solomon interpreted the plaintiff’s soft tissue hip injury as the possible cause of her left leg pains, and a related cutaneous nerve neurapraxia, which, according to Dorlands Illustrated Medical Dictionary, 28th Ed, WB Saunders, 1994, at p 1127, means a failure of conduction in a nerve in the absence of structural changes, due to blunt injury, compression, or ischemia, where return of function normally ensues.

35. It was against that background that Dr Wallace assessed the plaintiff’s symptoms as comprising the effects of musculo-ligamentous strains to her neck and to her low back, and an injury to her lateral femoral cutaneous nerve.

36. None of the cited opinions of Dr Wallace, Dr Lewington or Dr Solomon were challenged by cross-examination, and when read together, they provide a rational physical explanation for the plaintiff’s ongoing complaints, as stated by her, and which obviously affect her psychological state.

37. I do not consider Dr Bentivoglio’s report and opinions to be a reliable source of contradiction of the assessments made by Dr Lewington, Dr Solomon and Dr Wallace. Dr Bentivoglio’s approach of putting to one side and placing little emphasis on the plaintiff’s subjective complaints was unduly narrow, where those matters required assessment. In my view, Dr Bentivoglio’s opinion was necessarily, incompletely informed.

38. Accordingly, I do not accept his opinions and instead, prefer the more detailed combined reasoning and conclusions of Dr Lewington, Dr Solomon and Dr Wallace. The preponderance of that evidence, which also took into account the plaintiff’s subjective complaints, leads me to conclude that I should prefer those conclusions to the more limited opinions of Dr Bentivoglio.

39. I now turn to an evaluation of the respective reports of the consultant psychiatrists, Dr Vickery and Dr Zhang.

40. It is convenient to commence that analysis with a consideration of the opinions of Dr Zhang.

41. Dr Zhang believed, on reasonable grounds, that the plaintiff’s post-traumatic stress disorder and major depression were caused by the subject motor vehicle accident. Dr Zhang’s opinions were based on a detailed history which formed part of the supporting reasoning for those opinions. He also carried out a detailed mental state examination of the plaintiff and appropriately supported his opinions with adequate reasons, as required by UCPR r 31.27(1)(c); Sch 7, cl 5(1)(c). Dr Zhang acknowledged that it was difficult to ascertain the precise causes for the plaintiff’s bodily pain, but he considered it reasonable to believe that the plaintiff’s depression and anxiety would have contributed negatively to her experience of pain. That opinion plainly accorded with a commonsense analysis, in contradistinction to Dr Vickery’s statement cited at sub-paragraph (23) of paragraph [22] above, where he said that the plaintiff’s complaints are not consistent with the accident. I do not accept his opinion in that regard.

23. In contrast to the opinions of Dr Zhang, Dr Vickery appears not to have accepted the diagnosis of post-traumatic stress disorder on the basis that the plaintiff had not recalled the trauma of the accident: Exhibit “1”, Tab 4, p 35. I consider that assumption is insufficiently like the unchallenged evidence in the form of the summary of the plaintiff’s history, as noted at paragraph [15] above, where it was clearly indicated that the plaintiff recalled relevant details of the accident. The plaintiff’s evidence of such matters is clear and I accept that evidence: T16.4 – T16.9; T20.36 – T20.39: Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58, at [9].

24. I find that the identified dissimilarities between the unchallenged evidence of the plaintiff and the assumption made by Dr Vickery as to the plaintiff’s absent recollection of the accident render his opinion to be unreliable and of little probative value.

25. Dr Vickery’s statement that the plaintiff did not remember the accident was based, in my view, on Dr Vickery’s overly narrow interpretation of Dr Zhang’s report in which Dr Zhang summarised the plaintiff’s history of recalled events. That summary, when viewed in the context of other contemporaneous records, such as is cited at paragraph [15] above, has been shown to be incomplete. It is not appropriate to rely on that summary on such a pivotal matter, Mason v Demasi [2009] NSWCA 227at [2] following Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320, at [8].

26. Another difficulty that underpins and undermines Dr Vickery’s reports from the viewpoint of acceptance in this case, is that he seems to have approached the question of diagnostic labelling of the plaintiff’s psychological injuries in this case (where he focussed on the term Somatoform Chronic Pain Disorder) on a narrow and irrelevant view of the diagnostic nomenclature, and whether or not that term was utilised by the Motor Accident Authority or the Worker’s Compensation Commission: Exhibit “1”, Tab 2, p 19.

27. Dr Vickery’s reference to the Motor Accident Authority diagnostic guidelines raises an irrelevancy because those guidelines are used to assess whether, pursuant to s 131 of the Act, a person’s circumstances are assessed as satisfying the gateway provisions for assessing non-economic loss, and they do not otherwise limit the consideration of matters of diagnosis and the assessment of disability for the purposes of an economic loss assessment: Pham v Shui [2006] NSWCA 373, at [90].

28. Dr Vickery stated that: “Ms Azzam’s motor vehicle accident is not considered to be a substantial contributing factor to the Somatoform Chronic Pain Disorder” which he claimed she had: Exhibit “1”, Tab 2, p 19. In my view, apart from raising the irrelevant matter of diagnostic classification, that statement was oracular and was inadequately reasoned, and should therefore not be accepted as an expert opinion: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, at [60], [82], [85]; Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588, at [93]. It did not comply with the essential pre-requisites for expert evidence: UCPR r 31.27(1)(c); Sch 7, cl 5(1)(c).

29. It became necessary to seek out an understanding of the basis for Dr Vickery’s views. It became apparent that Dr Vickery’s opinion was based on “documentation provided”, where with one exception, the “documentation” he referred to was not otherwise identified, either in the form of a list in a letter of instruction, or in the body of his report: Exhibit “1”, Tab 2, p 1.

30. The exception to that statement was that Dr Vickery had before him the report of the plaintiff’s treating clinical psychologist, Dr Tadros, which he referred to at pp 16 – 17. Surprisingly, Dr Vickery did not engage in a detailed analysis or commentary on Dr Tadros’ specific reference (at Exhibit “B”, Tab 7, p 35), to the plaintiff’s symptoms of waking in a sweat and shaking, flashbacks to, and intrusive thoughts about, the accident, physiological arousal and anxiety, avoidant behaviour, anger and irritability: Exhibit “B”, Tab 7, p 34.

31. Similarly, Dr Vickery did not engage with the description of the plaintiff’s presentation to Dr Tadros, of post-traumatic stress, anxiety and depression: Exhibit “B”, Tab 7, p 35. It appears that in his report he has avoided discussing that formulation, and has instead, opted for the diagnostic label of “Somatoform Chronic Pain Disorder with psychological factors”: Exhibit “1”, Tab 2, p 17. I find that he did so, on the basis of an unduly narrow analysis that did not differentially engage with a reasonable and already identified alternative, namely post-traumatic stress disorder. I therefore find Dr Vickery’s analysis unhelpful to the resolution of disputed expert opinion on the matter of the diagnosis of the plaintiff’s psychological problems.

32. A further matter affecting the acceptability of Dr Vickery’s opinions is his qualifying use of adjectival descriptions. I therefore hold reservations about the reliability of Dr Vickery’s final assessment and report. When asked to state his findings on examination, his findings were notably qualified, in that he said there was “no clinically significant” anxiety, melancholic depression, and he characterised the plaintiff’s nightmares in relatively bland descriptive terms, such as “an occasional dream about the accident”. He similarly minimally characterised the plaintiff’s thoughts about the accident when driving as : “There can be excessive physiological activity with loud banging noises, driving and being a passenger”. In my view, those minimised descriptions have led to Dr Vickery’s opinions being less detailed, less descriptive, and in my view, therefore less reliable than those of Dr Zhang.

33. Dr Vickery stated that in his opinion, the plaintiff “has significantly recovered in relation to her trauma related symptoms” since Dr Zhang saw her in 2016. He then stated “I do not agree with Dr Zhang’s diagnosis and prognosis”. That statement of disagreement in the opinion of Dr Vickery is oracular in its terms, and I consider it was inadequately reasoned so as to make it unreliable: UCPR r 31.27(1)(c); Sch 7, cl 5(1)(c); Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, at [60], [82], [85]; Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588, at [93].

34. In expressing his opinions and disagreements on those matters, it was incumbent upon Dr Vickery to give adequate reasons for his stated views: UCPR r 31.27(1)(c); Sch 7 cl 5(1)(c). He did not do so. It was not clear from his reports whether he was disagreeing with Dr Zhang’s diagnosis given as at October 2016, or whether he was expressing the view that diagnosis and prognosis no longer applied. The defendant has failed to discharge the onus of proof on both of those matters because of the inadequate reasoning contained in Dr Vickery’s reports: Cupac v Cannone [2015] NSWCA 114, at [18], following Manly Municipal Council v Skene [2002] NSWCA 385, at [21] – [22]; Majkic v Bonnano [2008] NSWCA 253, at [26], following Larson v Commissioner of Police [2004] NSWCA 126, at [48].

35. Although Dr Vickery appears to have accepted the plaintiff’s presenting symptoms of pain, numbness, depression, anxiety and distress, as being consistent with Chronic Pain Disorder with psychological factors (Exhibit “1”, Tab 4, p 33), for the above reasons, on the psychiatric issues, I prefer Dr Zhang’s more fully reasoned opinions to those of Dr Vickery.

36. Insofar as his medical analysis of the multifactorial association of those problems with pre-disposing factors of a “dysfunctional personality traits, ineffective coping mechanisms, adverse life experiences, impaired relationships” is concerned, that formulation does not record with the required legal analysis, which requires the defendant to take the plaintiff as she is found, including with any such pre-disposing features, if they truly existed: Mt Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383, at [18], p 406. Accordingly, Dr Vickery’s formulation that the plaintiff’s “motor vehicle accident is not considered to be a substantial contributing factor” to the plaintiff’s diagnosis, whatever the nomenclature, does not proceed upon the correct legal analytical pathway. On that account, I do not accept his opinions in this case.

37. Based on the plaintiff’s evidence, and the evidence of the medical opinions that I have accepted as being reliable, I find that the subject accident has been shown to be the material contributing cause of the plaintiff’s combination of post-accident problems that have been described in the evidence. I find that those matters would not have arisen but for the occurrence of the subject accident: s 5D of the CL Act.

38. If the defendant sought to rely upon some underlying cause for the plaintiff’s problems, such a cause needed to be disentangled from the mix of accident-related factors in a reliable way. The defendant has not discharged its evidentiary burden in that regard, whereas in my view, the plaintiff has provided satisfactory proof of the cause of her problems being accident-related: Watts v Rake [1960] HCA 58; (1960) 108 CLR 158, at [8]; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164, at [4]; Glen v Sullivan [2015] NSWCA 191, at [43] – [47].

39. I now turn to the question of the plaintiff’s ongoing disabilities to identify my findings on those matters.

(6) Disabilities that remain

59. As I have accepted the credit of the plaintiff, and as I have accepted that she gave truthful accounts when she provided histories to the various practitioners who examined her, I consider that in addition to her oral evidence, it is appropriate to draw upon the reports of those practitioners as evidence on relevant factual matters, particularly on matters of background, injuries, treatment and the plaintiff’s ongoing disabilities: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25, per Heydon JA at [70]; Ceva Logistics (Australia) Pty Ltd v Redbro Investments Pty Ltd [2013] NSWCA 46, at [142] – [143]; s 60 of the Evidence Act 1995.

60. In her evidence, the plaintiff stated that the 2012 injury which had caused her to suffer whiplash injuries to her neck and to her back when travelling as a passenger in her father’s vehicle, resulted in a personal injury claim that was settled on 24 April 2013: T31.40; T32.36; T37.23 – T37.50.

61. The injuries sustained in the 2012 accident, and the effects of those injuries, were essentially to the plaintiff’s neck, radiating down to the trapezius muscles (T36.17 – T36.34) and back problems: T37.24. The plaintiff stated that she had recovered from the effects of that accident within a year and half of its occurrence: T35.32. I accept her evidence in that regard.

Physical disabilities from accident on 17 April 2015

62. In her oral evidence, the plaintiff identified her ongoing physical problems from the subject accident as being a feeling of neck strain, like a burning sensation when seated at a desk (T17.28), often experiencing a burning pain in the neck and shoulder (T17.46), a sensation of pins and needles and shooting pains, with some numbness, in both legs, but with improvement from the initial acuteness she experienced from those latter problems: T18.11 – T18.13.

63. The plaintiff is always aware of left thigh pain. It is always painful without improvement: T57.41 – T57.50. Her low back pain has improved: T58.6.

64. The plaintiff described her post-accident altered gait, with shooting pains up the back of her legs, and an inverted or tilted gait of her left leg: T18.10 – T18.27. She has an accident-related reduced walking capacity: T18.40. She has difficulty sitting and standing, and she feels those problems will affect her ability to work: T23.20 – T23.24.

65. The plaintiff explained her experience of pain as follows:

“A. Again, I can give and take with my pain. I can wake up tomorrow and be the happiest person that the pain is not there. Then the next day I come and I can be depressed and not wanting to leave my bed. I can't give you an exact time and day and hours of when the pain - and when I'm feeling good about myself and when I'm not. I do remember the day that my father wasn't there and that was due to a meeting beforehand in which case he asked my father not to come back.”

[T50.38 – T50.44]

66. Rightly or wrongly, the plaintiff obtained the impression from her consultations with Dr Lewington that he considered that her pain was all in her head, and not actually present: T49.20. It was not suggested that her subjective interpretation of her exchanges with Dr Lewington were unreasonably held by her.

67. The plaintiff stopped seeing Dr Lewington and stopped having hydrotherapy because she felt those avenues of treatment were not helping her, and the latter triggered even more pain: T50.46 – T51.12.

68. As a result of those matters, the plaintiff feels unable to pursue her ambition of childcare work because of neck pain and related shoulder and left upper arm pain: T25.15 – T25.20.

69. I also accept as apt, Ms Bobanovic’s descriptions of the plaintiff’s post-accident problems, as summarised at sub-paragraph (20) of paragraph [22] above.

Psychological disabilities from accident on 17 April 2015

70. The plaintiff experiences flashbacks and nightmares which disturb her: T20.31 – T20.39. She experiences constant feelings of anger because she is in pain in the described areas and she feels unhappy with herself: T20.43 – T20.48.

71. The 2015 accident has caused the plaintiff reduced motivation to socialise: T44.27. She spent a lot of time sleeping or just resting in bed, with heat packs, to manage her pain: T44.38.

72. The plaintiff did not find her talking therapies offered by Dr Tadros to be helpful for her psychological problems: T47.36 – T47.42.

73. The plaintiff has been left with post-traumatic stress disorder, depression and anxiety. I accept Dr Zhang’s evidence in that regard.

(7) Schooling effects

74. The plaintiff felt that as a result of the effects of the accident, she did not work to the best of her ability in preparing for her Higher School Certificate examinations, and was restricted in completing her woodwork project for the HSC: T21.1 – T21.7.

75. A review of the plaintiff’s school reports between 2012 and 2015 is informative as to the plaintiff’s interest and abilities in relation to her objective to pursue her Early Childhood Studies and work in that field:

Pre – 17 April 2015 Accident

1. In Semester 2, 2012, the teacher comments noted that the plaintiff had missed a lot of practical lessons due to (the 23 April 2012) injury, and it was noted that her enthusiasm for practical lessons would increase when fully recovered: Exhibit “1”, Tab 12, pp 173 – 174;

2. In Semester 1, 2013, the teacher comments noted that the plaintiff was a steady worker who had worked well, used her time effectively, and had achieved a commendable result in the subject of Personal Development, Health and Physical Education, and she achieved a good result in the subject of Food Technology, having demonstrated outstanding skills in the practical elements of the subject: Exhibit “1”, Tab 12, pp 163 – 164;

3. In Semester 2, 2013, the teacher comments noted the plaintiff had generally made a sincere effort to achieve, having performed exceptionally well in the theoretical component of the personal Development, Health and Physical Education component of the course, especially in Event Management. It was also noted that the plaintiff’s efforts were always to her maximum and to a very good standard. The overall result was described as strong. This report tends to confirm the plaintiff had recovered from the ill-effects of her 2012 accident, 18 months later, as she stated: T41.39 – T41.45;

4. In Semester 2, 2014, the teacher comments in Exploring Early Childhood CEC noted the plaintiff continued to work at a high standard and was successful in the class-setting: Exhibit “1”, Tab 12, p 137. The plaintiff was congratulated “on a fine result this year”, and was described as a friendly and motivated student who had done well and completed quality assignment work: Exhibit “1”, Tab 12, p 141;

Post – 17 April 2015

5. In Semester 1, 2015, the teacher comments noted that after her recent accident, that is, the subject accident, the plaintiff had significant adversity to overcome, and needed to endeavour to catch up (having had absences from school), and ominously, it was suggested that she “should investigate all of her options to best complete her HSC and recover at the same time”: Exhibit “1”, Tab 12, p 127;

6. In Semester 2, 2015, the teacher comments were that: “It is a shame that her progress has been hindered by her medical condition”. It was noted that she needed to catch up on missed work in the context of significant absences: Exhibit “1”, Tab 12, p 187;

7. In Semester 2, 2015, it was also noted that although the plaintiff had been absent from school for medical reasons, she had not caught up with her studies, and had not adequately prepared for her Trial HSC: Exhibit “1”, Tab 12, p 189;

8. In Semester 2, 2015, the teacher comments were that: “Due to her physical injury during Year 12 she was unable to finish her major work and this had hindered her practical mark and this is reflected in her overall effort”: Exhibit “1”, Tab 12, p 193.

76. In light of the above evidence, I accept that the subject accident caused the plaintiff to achieve a result in her HSC that was below the minimum standard that was expected: Exhibit “1”, Tab 12, pp 202 – 205.

(8) Work effects

77. The plaintiff was not in employment at the time of her injury. As a high school student, she had formed the ambition to undertake work as a childcare worker.

78. The plaintiff’s pre-accident school records indicate that she had an interest in the subject of Early Childhood studies. I accept the plaintiff’s evidence that she intended to pursue a career in that field of work after completing her HSC.

79. As a result of the accident the plaintiff has not done as well as she might otherwise have achieved in her HSC results, and she has not felt able to pursue her interest in a career in childcare. This will be taken up in greater detail in connection with assessment of the claim for loss of earning capacity.

80. At present, the plaintiff is unable to contemplate work as she is focussed on recurring pain, and feels unable to do sustained work sitting at a desk without experiencing pain after 10 or 15 minutes: T22.30 – T22.34.

81. The plaintiff doubted she would be able to undertake sedentary duties, such as those of a receptionist. Her evidence in that regard was as follows:

“A. In all respects, what you're saying - I have also said to you several times throughout this course that my pain in my shoulders and my neck is throbbing and it's severe, like, very heated. So it's not as if I've lasted this whole day and not been in pain. I've had breaks every hour or so but the pain in my neck and shoulders is still throbbing and a burning sensation, so no, I don't think I could be qualified for that job.

Q. What is it, do you think, about what you've been doing today which is sitting in a chair that would cause the pain in your neck and shoulders to be increased?

A. Just - that's what I'm saying, just anything. I could be walking and the pain is there. I could be sitting down and the pain is there. It's never going. Just sitting here now it's just burning sensations up my shoulders and neck. The pain doesn't just go. I'm on medication and heat packs the majority of the time just to ease the pain. That's why I can't qualify for a job.

Q. You haven't applied for any jobs, have you?

A. Due to the pain, no.

Q. You told his Honour earlier that you were always angry and you're regularly fighting with your family?

A. That's correct.

Q. Is that something that concerns you?

A. Of course.

Q. You would be, tell me if I'm wrong - you would be worried about that and you would be anxious to have some help to get over those problems, wouldn't you?

A. Correct.

Q. But in the last two years you haven't had any psychological therapy, have you?

A. Because it doesn't help me, otherwise I would have continued it with Margaret Tadros or Patrick Jabour. I would have continued if it helped.”

[T52.16 – T52.50]

82. Relevant to the plaintiff’s ability to undertake commonplace physical activities, she denied the proposition that the occupational therapist’s description of her attempt at lifting on request during the course of an examination involved her not making maximum effort: T55.49 – T56.20; T56.32 – T56.38.

83. The occupational therapist’s opinion is but one factor that influences the question of whether the plaintiff has a capacity for work. The plaintiff has difficulties with posture, as she described. This probably explains why she approached the lifting task in the manner described by the occupational therapist. The circumstances did not reliably equate to work tasks in a work setting so as to render the occupational therapist’s opinion to be informative on the question of the plaintiff’s capacity to carry out work tasks.

84. The plaintiff remains apprehensive about her ability to pursue work because of her pain: T54.44 – T54.47. She is also apprehensive about entering the workforce generally. Her evidence in that regard was as follows:

“Q. I know it might be difficult for you, but can you imagine 12 months from now? You would hope that by then you'd be able to be working as well, wouldn't you?

A. Of course.

Q. And you've got some confidence of entering the workforce in the future, have you?

A. I'd hope so, yes.

HIS HONOUR: I'm sorry, I didn't hear that.

WITNESS: "I'd hope so, yes."

HIS HONOUR

Q. To me, the word "hope" is tentative; that is, qualified. Is that the impression you intended to convey? Why are you being qualified on that front?

A. What was that, sorry?

Q. Why are you being qualified on this? Why don't you just say, "Yes, I'll be in the workforce," for example?

A. Because I don't know my pain - what's it going to be in 12 months' time? It could be worse. It could be less. You never know. I can't see 12 months from now. Like what I do hope for is that, yes, I can go out there and work and have a future that I do want, not always be at home and always in pain, but I can't see what the pain is going to be like in 12 months. It could be completely gone. I could be worse.”

[T58.17 – T58.44]

85. The functional capacity assessment carried out by Ms Bobanovic concluded that the plaintiff was able to maintain described postures for only limited periods, that is, 3 minutes at a time for a limited number of times per hour, with regard to standing, reaching overhead, reaching forward, kneeling, squatting, stooping, and when handling loads. She also identified significant lifting and carrying restrictions in the range 1.25kgs to 5kgs, depending upon the described activity: Exhibit “B”, Tab 5 pp 28 and 29. Ms Bobanovic’s evidence on those matters was not the subject of challenge. It was not expressed in terms that were glaringly improbable, and I accept her opinions and assessments in that regard.

(9) Domestic effects

86. The plaintiff experienced difficulty with basic domestic tasks, such as making her bed, getting dressed, and with chores such as cleaning, vacuuming, dealing with the washing and the like: T26.15 – T26.32. She receives help from her grandmother, her brother and his girlfriend in relation to those activities: T26.45 – T26.50.

87. The plaintiff presently resides at the home of her grandparents: T25.43. She intends to remain living in that situation until she marries: T27.9. After the accident she required assistance from her grandmother, her brother and his girlfriend for tasks such as making her bed, aspects of dressing, cleaning her room, washing, cooking and the like: T26.11 – T26.50; T28.3.

88. Notwithstanding those tasks, and the plaintiff’s estimate that some seven and a half hours per week of such assistance (T29.26) was provided to her after the accident, it was conceded, on instructions, that there was no claim for damages for past domestic assistance because the six hours per week / six month threshold was not met in this case: T26.2. However, there is a claim for such damages in respect of the future: T26.4.

(10) Mitigation

89. During the hearing, without prior notice, the defendant sought, but was refused leave, to amend the defence to plead an alleged failure on the part of the plaintiff to mitigate her damage. To allow for the possibility that ruling might be overturned on appeal, it is necessary to make findings on the mitigation question.

90. The plaintiff explained her decision not to follow the treatment recommendations made by Dr Lewington as follows:

“Q. Why was it that you didn't follow is recommendations?

A. Again, if a doctor is going to sit there and tell me that the pain is all in my head, in which they're not me to feel the pain, I'm not going to stick with the doctor. If a doctor is going to tell me to go to a doctor that I feel myself isn't helping then I'm just wasting her time and I'm wasting my time.

Q. But you'll remember that Dr Lewington wrote that he emphasised to you that the pain was not just in your head?

A. But he did on various occasions in front of my father and just with me.

Q. So he wasn't saying it was all in your head. To the contrary he was saying, no, it's not all in your head. So why do you think he was saying--

A. Because he did say it. That's the whole argument that happened between my father and him, is where he stated to my father, ‘It's all in her head,’ and my dad saying to him - saying, ‘It's not all in her head,’ and then he sent me off to do an MRI on my hip, in which case when it came back, he then stated, ‘It's not all in her head. She actually has an issue.’ ”

[T59.4 – T59.20]

91. On the basis of that evidence, the defendant sought to make an argument that the plaintiff had unreasonably failed to mitigate her damages.

92. In my view, there is no reasonable basis upon which to suggest that the plaintiff has unreasonably failed to mitigate her injury-related damages. The defendant sought to make something of the plaintiff having declined to pursue psychological treatment that had been recommended to her by Dr Lewington and Dr Tadros.

93. It is plain from the plaintiff’s evidence as cited above, and which was not contradicted, that she was not amenable to the treatment suggested by Dr Tadros, as she felt talking therapy and the computer-based treatment was not helping her. It is also plain that the non-pursuit of the treatment suggested by Dr Lewington was based on either an apparent dispute or misperception of what was said by Dr Lewington in the plaintiff’s presence.

94. The defendant needed more evidence than that which was adduced to sustain an argument of unreasonable failure on the part of the plaintiff to mitigate her loss, remembering that for some of that time, the plaintiff was a minor, under parental supervision.

95. I consider that the significant matter of analysis that the defendant has overlooked in the proposed mitigation submission is that subjective factors affecting the plaintiff must also be taken into account: Fazlic v Milingimbi Community Inc [1982] HCA 3; (1982) 150 CLR 345.

96. The evaluation of an argument over whether the plaintiff has unreasonably failed to mitigate, requires a prospective analysis and not an analysis of what a theoretical hindsight analysis might suggest: Arnott v Choy [2010] NSWCA 259, at [161]; Mahony v Watson [2003] NSWCA 259, at [52] – [53], Brogan v Geary (1995) Aust Torts Reps 81-342, at 62,421. In my view, the defendant’s submission on the mitigation point involves an impermissible hindsight analysis.

97. The assessment must take into account the plaintiff’s actual condition, not a hypothetical condition that might have been or could have prevailed if the contended treatment had been followed. The defendant bears the onus of showing that the contended treatment would have made a material difference to the plaintiff’s condition: Munce v Vinidex Tubemakers Pty Ltd [1974] 2 NSWLR 235, at pages 239G - 240A. The defendant has not discharged that onus in this case.

98. Accordingly, I find that there is no reasonable basis upon which to conclude that the plaintiff has unreasonably failed to take appropriate steps to mitigate her damages.

Assessment of damages

99. Following a series of assessments carried out by the Medical Assessment Service of the Motor Accident Authority, it has been determined that the plaintiff’s circumstances did not meet the assessment threshold that would have otherwise entitled her to claim damages for non-economic loss: s 131 of the MAC Act. The plaintiff’s claim for damages is therefore necessarily restricted to claims for damages for past and future economic loss, past and future domestic assistance, and past and future treatment expenses.

Life span and actuarial factors

100. At her present age of 21 years, the actuarial estimate of the plaintiff’s median statistical life span is a further 68 years.

Past economic loss

101. The plaintiff submitted that damages for past loss of earning capacity should be assessed in the amount of $70,105: MFI “1”. That amount was premised upon a calculation which comprised of the following elements:

1. The plaintiff’s most likely future circumstances but for the motor vehicle accident would have been that she would have obtained work in the childcare industry;

2. According to the Pay Guide Children’s Services Award 2010, a first year weekly income in excess of $700 per week rising to more than $1000 per week as an employee, with further possible increases in the role of director;

3. But for the subject accident, at the beginning of 2016, the plaintiff would have sought and obtained employment as a childcare worker at the rate of $35,000 per annum gross;

4. According to the above assumptions, it was very likely that before the hearing, the plaintiff would have earned income of the order of $70,546 net, as the following dissection shows:

1. The first 6 months of income in 2016 would not have exceeded the tax free threshold of $18,200, yielding a tax free income of $17,500;

2. Between 1 July 2016 to the hearing, a period of 86 weeks, at the rate of $35,000 per annum gross, or $31,808 net, which is the equivalent of $611 per week net, the plaintiff’s most probable earnings would have been $52,546;

3. The total of the above elements of calculation identifies a past loss of earnings of $70,546 net.

102. In contrast, the defendant submitted that there should be no damages allowance in respect of past loss of earning capacity because since leaving school the plaintiff has elected not to pursue any form of treatment for her psychological symptoms in the past 2 years.

103. In that regard, it was further argued by the defendant, first, that such a lack of treatment is inconsistent with any significant level of psychological problems, and secondly, that the plaintiff’s capacity for employment remains untested as she has not made any attempt to seek employment since leaving school. Accordingly, the defendant submitted it was difficult to assess a claim for economic loss or loss of earning capacity.

104. In line with that submission, the defendant also argued that any assessment of those matters should be on a global basis rather than assessing a weekly loss.

105. As I read the defendant’s submissions on this point, the defendant argued for a buffer award of $25,000 to cover a “perceived partial diminution of earning capacity”, to cover both past and future loss of earning capacity: MFI “7”, paragraphs 43 to 48.

106. I do not accept the defendant’s submissions relating to either past or future loss of earning capacity. Those submissions are too general in the face of compelling evidence to the contrary, and do not relevantly reflect salient features of the evidence that reasonably point to the conclusion there should be an award of such damages. I consider that submission by the defendant to be overly simplistic, and not in keeping with the effect of the evidence when read as a whole on this topic.

107. The claims for past and future loss of earning capacity involve a continuum. It is therefore necessary to identify my findings as to the plaintiff’s most likely circumstances but for the subject accident: s 126 of the MAC Act.

108. In my view, in addition to what now follows, the matters outlined at paragraph [101] above, represent those most likely circumstances. I now turn to consider the claim for past loss of earning capacity.

109. The plaintiff had recovered from the effects of her 2012 injury. Were it not for the subject accident, I find that it is most probable she would have had a much better result in her HSC examinations as was indicated by the general theme of her teacher’s pre-accident commentaries following her progressive recovery from the effects of the earlier accident.

110. I find it also most probable that the plaintiff would have sought out and obtained work in the area for which she showed interest and aptitude, namely childcare. She was physically able to do that type of work and her school reports confirmed she was suitable to undertake that work. If she obtained that type of work, it is most probable that it would have been remunerated at the identified award rates.

111. It is informative to review the medical evidence that touches upon the plaintiff’s economic loss claim, as follows:

1. Although Dr Wallace considered the plaintiff had a guarded prognosis for further recovery of function of her cervical and lumbar spine problems despite conservative treatment, he expressed no particular views on the plaintiff’s capacity for work: Exhibit “B”, Tab 3, p 17;

2. Dr Zhang considered the plaintiff’s pain and psychological symptoms impaired the plaintiff’s confidence and capability to the extent that prevents her from going out, socialising, and seeking employment, as well as restricting her daily activities: Exhibit “B”, Tab 1, p 6;

3. In Ms Bobanovic’s functional capacity assessment of the plaintiff, she noted that the plaintiff was highly pain focussed, guarded in her movements, and she concluded that the plaintiff was not fit to perform the physical work duties of a childcare worker, although she was fit to carry out office based tasks such as a receptionist: Exhibit “B”, Tab 5, p 29. I read Ms Bobanovic’s views in that regard to refer to the plaintiff’s physical capacities, which does not take into account her psychological problems;

4. Dr Vickery concluded, on the basis of his postulated diagnosis of “Somatoform Chronic Pain Disorder with psychological factors”, that the plaintiff “is psychologically fit to undertake some form of employment”: Exhibit “1”, Tab 2, pp 17 – 18. That description was not particularly helpful or informative on the issue of assessing damages for loss of earning capacity. More relevantly (at Exhibit “1”, Tab 2, p 19), Dr Vickery identified the significant consequences of his diagnostic conclusion to be:

“Somatoform Chronic Pain Disorder is psychologically embedded within abnormal illness behaviour where the symptoms and incapacity are entrenched in the patient’s lifestyle and relationships and are reinforced by continuing with ongoing intensive medical treatment or supportive psychological counselling in the absence of any significant recovery.”

[Exhibit “1”, Tab 2, p 19]

In my assessment of that evidence from Dr Vickery, it also suggests a significant impairment of earning capacity in the plaintiff;

5. In my view, the foregoing conclusion is re-enforced by Dr Vickery’s subsequent commentary to the effect that the plaintiff’s entrenched illness behaviour, evidenced in his view by her inverted gait, resulting in embarrassment and social withdrawal, a reduction in motivation, feeling fatigue and incapacitating neck and back pain after 20 minutes of relatively innocuous activity, has the potential to lead to the development of “helplessness, negativity and invalidity”: Exhibit “1”, Tab 3, p 26. Those negative impacts are clearly influential on the plaintiff’s ability to find and sustain work, especially as she is disinclined to leave the house where she lives;

6. Dr Vickery’s conclusion (at Exhibit “1”, Tab 4, p 34), that : “Ms Azzam’s motor vehicle accident is not considered to be a substantial contributing factor in the Somatoform Chronic Pain Disorder”, is inadequately reasoned, oracular in nature, and cannot be accepted as a reliable expert analysis: UCPR r 31.27(1)(c); Sch 7, cl 5(1)(c); Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, at [60], [82], [85]; Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588, at [93]. It is not a helpful analysis because the matter of what was the “substantial contributing factor” has not been compared with any other identified relevant factors;

7. Dr Bentivoglio’s opinion (at Exhibit “1”, Tab 5, p 45), that the musculo-ligamentous injuries caused in the motor vehicle accident did not render the plaintiff incapable of undertaking childcare work, is not a reliable expert opinion as it does not analyse and discuss the plaintiff’s symptoms in terms of whether or not she could carry out the physical tasks associated with such work. Furthermore, his report did not identify his understanding of the duties involved in such work. His analysis seemed to have put to one side and placed little if any weight on the plaintiff’s subjective experience of pain, which was not suggested to be anything other than genuine. Accordingly, I consider Dr Bentivoglio’s inadequately reasoned opinion to be unreliable: UCPR r 31.27(1)(c); Sch 7, cl 5(1)(c); Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, at [60], [82], [85]; Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588, at [93];

8. Dr Lewington was of the opinion that the plaintiff’s prognosis was guarded due to the strong psychological influences on her experience of pain and the associated risk of developing long-term chronic pain syndrome and related disability: Exhibit “D”, Tab 12, p 119. It is plain from my reading of the whole of the evidence, that his prediction, in 2015, has come to pass, as the plaintiff now seems unamenable to psychological treatment;

9. To the extent that the plaintiff’s unhelpful family dynamics was suggested by Dr Lewington (at Exhibit “D”, Tab 12, p 122), to be a complicating feature that unwittingly undermined treatment of the plaintiff (when she was still a minor) by transferring anxiety on the part of family members to the plaintiff, the defendant did not seek to argue this amounted to the emergence of an unrelated intervening cause, or novus actus interveniens. To the extent that a novus actus interveniens argument could be entertained, possibly on an extension of Dr Vickery’s view that the accident is not a “substantial contributing factor” in the aetiology of the plaintiff’s Somatoform Chronic Pain Disorder, the defendant has not called sufficient cogent evidence to substantiate that potential point of argument: Watts v Rake [1960] HCA 58; (1960) 108 CLR 158, at [8]; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164, at [4]; Glen v Sullivan [2015] NSWCA 191, at [43] – [47]. Even if I were to be found to be wrong in that view, I nevertheless consider that the potential argument as identified, is overwhelmingly quelled on the state of the evidence in this case because the defendant must accept the plaintiff as she is found, in all her vulnerabilities, including the reasonably foreseeable family dynamics that have impacted upon her psychological reactions to the accident, as a natural and probable consequence of the accident: Mt Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383, at [18], p 406;

10. The latter complicating features would not have had any causative effect but for the advent of the subject accident: s 5D of the CL Act.

112. In addition to the foregoing matters on the issue of economic loss, it is also informative in this context to consider the evidence the plaintiff gave on the subject of her capacity for work, as well as considering the extent to which the defendant challenged her evidence in that regard.

112. Before the subject accident, the plaintiff wanted to work in childcare after finishing school, with the ultimate aim of opening her own childcare centre: T15.26; T22.5; T24.33. Her father was self-employed, so this did not seem to be an unreasonable expectation on her part.

113. After the subject accident, the plaintiff has been affected by a lot of pain which restricts her activities and this would adversely affect her ability to carry out simple activities with children in her care, including lifting: T15.36. Her dream job of working in childcare is now ruled out by her experience of pain: T17.26. Even activities like sitting at a desk causes her neck and shoulder problems and she has limited tolerance for such activities for more than 15 minutes: T17.42; T22.34.

114. The “work” she does for her father is minimal. It involves sitting, for an hour, 3 days per week, at a computer doing his publicity to promote his business: T23.3 – T23.15.

115. The plaintiff finds tasks such as sitting and standing problematic: T23.20 – T23.24. She uses heat packs and medication to seek alleviation from her discomforts: T23.35. The plaintiff was asked if she would be able to handle the work of a sales assistant in a women’s clothing shop. She cordially replied she has not tried to work in that field, and her answer was in the context of her experience of pain: T54.18 – T54.47. She is uncertain about her future ability to work, depending on her condition: T58.35 – T58.44.

116. I accept the plaintiff’s evidence as cited above and conclude that the plaintiff has relevantly lost a past and a future earning capacity that should be assessed in monetary terms.

117. Whilst it is true that there were a number of imponderables to be taken into account, there is no evidence of any specific imponderable representing a barrier to a monetary assessment. In my view, those matters fall into the general category of potential adverse vicissitudes, a commonplace consideration in the assessment of damages.

118. Those imponderables include matters such as: the possibility that childcare work might have aggravated any underlying latent and asymptomatic effects from the plaintiff’s 2012 accident so as to lead to a recrudescence of symptoms in her neck and back to some degree, or that the plaintiff may not have found childcare work immediately, or that the plaintiff may have found such work either too difficult, or ultimately, not to her liking.

119. In my view those imponderables can be adequately taken into account by applying a 35 per cent discount to the identified theoretical earnings of $70,546. This yields the rounded down amount of $45,000.

120. I therefore assess the plaintiff’s damages for past loss of earning capacity in the rounded down amount of $45,000.

Future loss of earning capacity

122. The plaintiff submitted that damages for future loss of earning capacity should be assessed in the amount of $245,970 plus a component for loss of employer funded superannuation in the sum of $23,367, totalling $269,337.

123. In contrast, the defendant submitted that damages for future loss of earning capacity should be in the buffer amount of $10,000.

124. In making an assessment of the claim for future loss of earning capacity, I propose to draw upon the findings outlined in paragraphs [118] to [119] above in view of the evident continuum that seems to link the claim for past loss of earning capacity.

125. As the evidence in this case reveals that this is not a case where the plaintiff was in actual employment on a specific weekly wage that could be used to base a projection of future loss using the conventional actuarial tables, and in view of the imponderables to which I have already referred, I consider the preferable approach to the assessment of damages for future loss of earning capacity in this case is by way of a lump sum or buffer award for such damages: Penrith City Council v Parks [2004] NSWCA 201, at [5]; State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536, at [72]; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13, at [7], [25] – [27].

126. The plaintiff’s medical prognosis is for a poor physical recovery from her musculo-ligamentous injuries. In addition she has an entrenched adverse psychological reaction to her injuries, by whatever label is used to describe her condition. On evidence that I have accepted, the prognosis is bleak for a short to medium term recovery from that condition. She will continue to have those problems for an indeterminate period of time, if not permanently, particularly given the non-amenability of her psychological problems to treatment.

127. In my view, that conclusion, in the case of a 21 year old person without other work skills and with the plaintiff’s described limitations, as identified at paragraphs [59] to [73] above, calls for a substantial buffer award for damages for future loss of earning capacity.

128. I consider the buffer approach to be appropriate especially because if the plaintiff’s condition does improve to the extent that she achieves an emergent earning capacity, a matter to be taken into account in the defendant’s favour, the evidence suggests there will be an unlikely development in the short term, and if it does improve, the improvement is likely to evolve slowly.

129. It must be recognised that any such emergent earning capacity may not be a long-lasting earning capacity, or it may not be to the extent of full time work. At the plaintiff’s age of 21 years, the claim has to be viewed against the background of a potential working life of a further 46 years, with due allowance for possible breaks in continuity or full time work, possibly for child-rearing, or times of unemployment due to industry or labour market conditions.

130. Another imponderable to be taken into account is the plaintiff’s stated intention to no longer work beyond the age of 50 or 55 years: T24.32. That factor has to in some way be counter-balanced against an assessment of loss of earning capacity to age 67 years. Those competing parameters make it impossible to arrive at a finely tuned calculation in this case, especially because at age 21 years and not working, it is unlikely that the plaintiff would have by now formed a realistic view of her likely retirement age at this time.

131. On account of those considerations, including an allowance for possible adverse vicissitudes, I consider the appropriate buffer sum to be $150,000, which also includes an allowance for associated loss of future employer funded superannuation contributions. I therefore assess the plaintiff’s damages for future loss of earning capacity in the buffer amount of $150,000.

Past domestic assistance

132. The plaintiff no longer makes a claim for damages for past domestic assistance: T26.2.

Future domestic assistance

133. The plaintiff submitted that damages for future domestic assistance should be assessed in the lump sum buffer amount of $10,000: MFI “1”. In contrast, the defendant submitted that no allowance should be made in respect of this head of damage.

134. At present the plaintiff lives in her grandmother’s home where her domestic needs are provided for her. I consider that it is likely she will continue to do so for an indeterminate number of years until she marries, as she expects will be the case: T27.4 – T27.9. Given the psychological problems which presently keep her at home, it is not clear as to how or when an opportunity of a marriage may arise for her.

135. I accept that the plaintiff cannot carry out a full range of domestic tasks due to her accident-related problems. In those circumstances, it is likely that she will either obtain the anticipated assistance to carry out those tasks: T26.38 T26.39. If she marries, it is likely her husband would provide that assistance. Alternatively, she may well engage outside paid help to carry out such tasks. As the likely timing, incidence, duration and therefore monetary value of those tasks remain as unknown imponderables at this point, as with the approach to assessing future economic loss, I consider that a buffer approach is the preferred method of compensation for this head of damage, rather than the projection of an identified weekly sum. I consider the appropriate buffer to be $10,000.

136. I therefore assess the plaintiff’s damages for future paid domestic assistance in the buffer amount of $10,000.

Future treatment expenses

137. The plaintiff makes a claim for future treatment expenses in the sum of $17,628. That sum was submitted as comprising an element of $7628.50, as was suggested by Dr Bobanovic in her report dated 5 June 2014, together with a buffer sum of $5000 for future medical expenses, and a further buffer sum of $5000 for future pharmaceutical expenses: MFI “1”.

138. In contrast, the defendant submitted that there should be a buffer sum allowed for future treatment expenses in the amount of $5000: MFI “3”.

139. In my assessment, the entrenched nature of the plaintiff’s psychological problems warrants an allowance for treatment expenses to seek to palliate, if not to cure, the full effects of those problems.

140. The evidence does not permit a precise calculation to allow for such expenses, and in this case, the past expenditure on treatment is an unreliable guide to the future incidence and cost of such treatment. In those circumstances, I consider a reasonable but conservative approach indicates that there should be an allowance of $10,000 for this head of damage.

141. I therefore assess the plaintiff’s damages for future treatment expenses in the buffer amount of $10,000.

Past out-of-pocket expenses

142. The plaintiff’s past out-of-pocket expenses have been agreed in the amount paid by the defendant’s insurer pursuant to s 83 of the MAC Act, and I therefore assess those expenses in the agreed total sum of $18,270.48.

Summary of damages assessment

143. My assessment of the plaintiff’s damages is summarised as follows:

(a) Past economic loss	$45,000
(b) Future economic loss	$150,000
(c) Future domestic assistance	$10,000
(d) Future treatment expenses	$10,000
(e) Past out-of-pocket expenses	$18,270.48
Total	$233,270.48

Disposition

144. The plaintiff has established her entitlement to a damages award for $233,270.48 and she should have a judgment for that amount, noting that the insurer is to be credited for the expenses it has paid in the total amount of $18,270.48: s 83 of the MAC Act.

Costs

145. As the plaintiff has succeeded in obtaining a judgment in her favour, she should have an order that the defendant should pay her costs of the proceedings on the ordinary basis unless a party can show an entitlement to some other costs order, for which there should be liberty to apply.

Orders

146. I make the following orders:

1. Verdict and judgment for the plaintiff against the defendant in the sum of $233,270.48;

2. The defendant is to pay the plaintiff’s costs on the ordinary basis unless otherwise ordered;

3. The exhibits may be returned;

4. Liberty to apply on 7 days’ notice if further or other orders are required

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Decision last updated: 29 March 2018