Bao v Haynes

[2023] NSWDC 364

District Court

New South Wales

Medium Neutral Citation:

Bao v Haynes & Anor [2023] NSWDC 364

Hearing dates:

26 and 27 July 2023, 15 and 29 August 2023 (further submissions 30 August 2023 and 5 September 2023)

Date of orders:

13 September 2023

Decision date:

13 September 2023

Jurisdiction:

Civil

Before:

Acting Judge Levy SC

Decision:

See paragraph [566] for orders

Catchwords:

TORTS – motor vehicle accidents - plaintiff injured in two motor vehicle accidents – liability admitted for each accident

DAMAGES – assessment of claimed heads of damage – consideration of conflicting medical opinions in medical reports without explanatory oral evidence – credit issues – factual issues – causation issues – mitigation issues – consideration of insurer’s role on a mitigation issue – delayed surgery because CTP insurer declined to pay for operation recommended by treating surgeon – contested claims for economic loss, domestic care, and claim for future treatment expenses

Legislation Cited:

Civil Liability Act 2002 (NSW), s 5D, s 13

Evidence Act 1995 (NSW), s 60

Motor Accidents Compensation Act 1999 (NSW), s 70(1), s 83, s 126, s 131, s 136

Cases Cited:

Arnott v Choy [2010] NSWCA 25

Boral Bricks Pty Ltd v Cosmidis; Boral Bricks Pty Ltd v DM & BP Wiskich Pty Ltd [2013] NSWCA 443

Brogan v Geary (1995) Aust Torts Reps 81-342

Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25

Fazlic v Milingimbi Community Inc (1982) 150 CLR 345; [1982] HCA 3

Fox v Percy [2003] HCA 22; (2002) 214 CLR 118

Glen v Sullivan [2015] NSWCA 191

Graham v Baker (1961) 106 CLR 340; [1961] HCA 48

Husher v Husher [1999] HCA 47; (1999) 197 CLR 138

Mahony v Watson [2003] NSWCA 259

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305

Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5

Munce v Vinidex Tubemakers Pty Ltd [1974] 2 NSWLR 235

Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58

Pham v Shui [2006] NSWCA 373

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

Sampco Pty Ltd v Wurth [2015] NSWCA 117

Strinic v Singh [2009] NSWCA 15

Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442

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

Category:

Principal judgment

Parties:

Plaintiff: Jennifer Bao
First Defendant: Cullen Haynes
Second Defendant: Kevin Khalil

Representation:

Counsel:

Plaintiff: Mr J Sleight
Defendants: J Turnbull SC

Solicitors:
Plaintiff: Neville Hourn & Borg Legal
Defendants: Moray & Agnew

File Number(s):

2023/51599

Publication restriction:

None

Judgment

Nature of the case and parties

1. The plaintiff, Ms Jennifer Bao, brings these personal injury damages proceedings arising out of two motor vehicle accidents that respectively occurred on 14 December 2014 and 9 August 2016. The proceedings are governed by the provisions of the Motor Accidents Compensation Act 1999 (NSW) (“the MAC Act”) and the Civil Liability Act 2002 (NSW) (“the CL Act”).

2. Mr Cullen Haynes is the first defendant. He is sued in respect of injuries sustained by the plaintiff in the first accident. Mr Kevin Khalil is the second defendant. He is sued in respect of injuries sustained by the plaintiff in the second accident.

3. In each instance the plaintiff was a faultless passenger. In each of those accidents the plaintiff sustained soft tissue injuries. Medical records show that after the first accident, the plaintiff complained of injuries to her neck and left shoulder, and following the second accident, she complained of injuries to her neck, right knee, and lumbar spine.

4. In 2019, after a period of conservative management, which proved ineffective in managing the plaintiff’s symptoms, she underwent a major neurosurgical procedure involving the removal of her L5/S1 intervertebral disc and a replacement of that disc with an implanted prosthetic space maintenance device.

5. The defendants have admitted liability to the plaintiff for both accidents but argued that the need for lumbar disc replacement surgery was not caused by either of those accidents. Although the plaintiff claims damages for each of those events, it is agreed that in these proceedings, only a single combined damages assessment is required.

6. The following radiological image extracted from the documentary evidence provides a graphic perspective of the result of the plaintiff’s disc replacement surgery.
    

   
   (Exhibit “A”, Volume 1, p 774)

7. The plaintiff makes the claim, disputed by the defendants, that because of the injuries she sustained in those accidents, and despite treatment, she has suffered a total loss of her earning capacity. The defendants assert that the plaintiff has failed to mitigate her damages.

Issues for determination

8. The issues to be determined in these proceedings concern the resolution of disputed matters relating to the plaintiff’s entitlement to damages. Those matters may be conveniently summarised as follows:

1. The credibility and the reliability of the testimony of the plaintiff and her husband. My findings on those matters, which draw conclusions adverse to the plaintiff’s credit and reliability as a witness, appear below between paragraphs [283] to [339] of these reasons;

2. The reliability conclusions to be drawn from the array of assembled medical and allied reports in evidence which are influential to the required factual findings to base a damages assessment. My findings on those matters, and on a series of related sub-issues, appear below between paragraphs [340] to [419] of these reasons;

3. Factual findings on matters of contentious facts and causation relevant to the assessment of damages. My findings on those matters appear below between paragraphs [420] to [441] of these reasons;

4. Whether the evidence justifies a finding sought by the defendants to the effect that the plaintiff has failed to take reasonable steps to mitigate her damages as was required of her by s 136 of the MAC Act. My findings on that question appear below between paragraphs [427] to [441] of these reasons;

5. The assessment of the plaintiff’s claim for damages. My findings on those matters appear below between paragraphs [442] to [564] of these reasons.

Ambit of claim for damages

9. The outcome of the regulated medical assessment scheme governing the formulaic processes of the Medical Assessment Service for identifying the residual level of the plaintiff’s whole person impairment was that she did not achieve a certified level of impairment assessment greater than 10 percent. Therefore, she is not entitled to claim damages for non-economic loss: s 131 of the MAC Act. The parameters of her remaining claims must therefore be confined to economic damages, damages for domestic assistance, past and future treatment expenses.

10. The ambit of the respective schedules of damages provided by the parties was widely divergent. The plaintiff’s initial damages schedule was in the amount of $4,112,217. A subsequent amended version of the plaintiff’s schedule of damages reduced her claim to $3,812,217. In written submissions, the plaintiff’s damages schedule was further reduced to a claim for $1,816,657.

11. In contrast, the damages schedule initially submitted by the defendants was in the amount of $8,000. In oral submissions the defendants fairly conceded there was scope in the evidence to base a finding for a higher amount which incorporated an allowance for a “modest” economic cushion in the form of a buffer sum of the order of $200,000 to $300,000. In making that concession during argument, the defendants did not concede that the plaintiff was entitled to any damages for past economic loss or damages for the cost of past and future domestic assistance.

12. The plaintiff’s claim for economic loss was complicated because, at the time of the first accident she was employed by her husband, Dr Zion Chan, a cosmetic surgeon. He employed her through his corporate entity as a beautician and manager in his cosmetic surgery business. He too was injured in that accident, and ultimately found that he had to close that business, including the department in which the plaintiff was employed.

13. At present, the plaintiff and her husband are living separately, with the plaintiff living in Sydney, with Australian permanent residency status, whilst her husband, an Australian citizen, is living in Shanghai, in China.

14. Those circumstances must necessarily influence the scope for the quantification of the plaintiff’s claim for past lost earnings and future loss of earning capacity.

Summary of outcome

15. In summary, for reasons that will be made clear in the appropriate context, I have found the plaintiff to be an unsatisfactory witness whose evidence was revealed to be untruthful and unreliable on some critical matters of credit. I have not accepted her evidence on matters in contention unless objectively corroborated by unchallenged evidence that was not otherwise improbable.

16. I have not accepted the plaintiff’s submission that she has incurred an injury-related total loss of her earning capacity. I have assessed the plaintiff’s entitlement to damages in the total amount of $576,272. She is therefore entitled to a verdict and judgment in that sum, less adjustments for statutory for offsets, plus costs.

Structure of these reasons

17. As a prelude to the consideration and the findings concerning the above issues and the related sub-issues identified at paragraph [8] above, to reach the required findings, the structure of these reasons involves an evidence overview, the identification of facts not in dispute, a review of the documentary evidence which includes a crash analysis report, a chronological review of the array of medical and allied evidence, a review of the plaintiff’s income tax returns, and the review of two forensic accountant’s reports relating to the former business of the plaintiff’s employer, her husband, in his cosmetic surgery business.

Evidence overview

18. The evidence relied upon by the parties comprised both documents oral evidence.

Documentary evidence

19. The parties produced a two volume Court Book: Exhibit “A”, pp 1 – 2007. On close examination of the array of the incorporated medical and allied reports and notes, some of which were incompletely copied which required that the court book be augmented: p 153A; pp 238A-J; Exhibit “B”; Exhibit “C”. Unhelpfully, the court book was sparingly indexed. It was structured in a non-chronological order and included randomly duplicated documents. It contained a sparse chronology without cross-reference to the compendious documentary evidence. In these reasons, specific pages of the court book will be referred to where it becomes relevant to do so.

Oral evidence

20. At the outset of the hearing, during opening addresses, it was indicated that the plaintiff and her husband Dr Chan would be giving oral evidence to supplement their written evidentiary statements. At the time of the hearing, he was in Shanghai. The plaintiff gave oral evidence to augment her written evidentiary statements. Ultimately, despite several earlier indications that Dr Chan would be giving evidence by means of an AVL link, he was not called to give oral evidence. His only evidence comprised his evidentiary witness statements: Exhibit A, Volume 1, pp 136 – 147. He was not required for cross-examination on the content of those statements. The absence of his oral testimony left significant matters of historical and contextual detail unexplained concerning the corroboration of the plaintiff’s injuries and disabilities, his role in her medical referrals, and her claim for economic loss.

Plaintiff

21. The plaintiff gave her evidence mostly in the English language. She occasionally invoked the assistance of a Mandarin interpreter.

22. The plaintiff’s oral evidence in chief was in relatively brief terms (T10 – T17) because her evidence was largely contained in her evidentiary statements which formed part of the court book: Exhibit A, Volume 1, pp 118 – 135. Those statements, which were prepared on her instructions by her former solicitors, had problematic factual deficiencies and inconsistencies that were not fully resolved during her oral evidence, or by agreement reached in the course of argument. She was extensively cross-examined (T17 – T86), and she was briefly re-examined: T86 – T87.

23. The plaintiff was challenged on multiple topics in cross-examination. The topics of material significance to the outcome of the proceedings will be identified and considered when identifying my credit findings, and my findings on key matters of fact in dispute.

24. It was obvious to the observer that the plaintiff found the process of giving oral evidence significantly discomforting, both physically and emotionally. She was occasionally tearful, and she needed to have breaks from giving evidence. She frequently changed her physical position and posture in the witness box, including by occasionally standing, apparently to relieve her physical discomfort.

25. A relevant context of the circumstances in which the plaintiff gave her evidence was that she said that she had taken strong pain killing medication. She said she was sleep deprived. At times she displayed overtly distressed emotional reactions, and at other times she remained silent and seemed remote when cross-examined. At other times she needed to take breaks to regain her composure.

26. It was not suggested, either directly to the plaintiff, or in submissions, that those instances involved either exaggeration or false claims on her part. When giving oral evidence, she seemed to be in a very fragile emotional state. No psychological or psychiatric evidence was introduced to provide an explanatory context for her apparent emotional responses.

27. At this point it should be stated that, in my view, the cross-examination of the plaintiff by Senior Counsel for the defendants on matters of fact and credit was properly conducted with due consideration and sensitivity to the plaintiff’s circumstances.

Dr Chan - not called to give oral evidence

28. Although Dr Chan was scheduled to give evidence via an AVL link from Shanghai with due regard to time zone differences, and although pre-arrangements were made for this to occur, during the cross-examination of the plaintiff, without explanation, it was indicated that Dr Chan would not be called as a witness in the proceedings, whereas at one stage it was proposed that his evidence be interposed during a break in the plaintiff’s evidence: T51.3. In the absence of material challenges to his evidentiary statements, the content of those statements will be considered and drawn upon where it might be probative on particular matters involving credit, reliability of testimony, and fact.

Domicile

29. The couple presently live separately. The plaintiff lives in a rented apartment in Sydney with their 9-year-old daughter who attends an eastern suburbs private school in Sydney. The plaintiff’s mother, who lives in China, pays for the rent of that apartment, and for those school fees.

30. Dr Chan presently lives in Shanghai with the plaintiff’s parents. His supplementary statement dated 1 August 2022 suggests he moved there in December 2019 following a decline in his economic circumstances, including the sale of his investment properties: Exhibit “A”, Volume 1, p 146.

31. Although Dr Chan’s supplementary statement expresses his intention to return to Australia when his economic circumstances improve, the evidence of the plaintiff is ambiguous as to whether their separation is of a temporary geographic nature, or whether it comprises a formal marital separation: T44.47 – T45.4.

32. The tenor of the plaintiff’s evidence concerning their limited communications of late, her vague deflective answers, and a pre-accident history of marital conflict after just months into their marriage, suggest that the separation might not be just geographic, but that is not a concluded view.

33. On the evidence it is difficult to form a concluded view on this question because of the plaintiff’s documented pattern of travel where, between 26 December 2014 and 11 April 2023, she has made 16 return trips between Sydney and Shanghai, the longest period away from Sydney being 18 weeks between 30 November 2019 to 11 April 2023: Exhibit “D”. Those trips were undertaken in business class: T77.38.

34. The domicile question arises because there is evidence of a pre-accident history of some marital difficulties between them (Exhibit “A”, Volume 1, p 204; pp 594 – 595; Exhibit “A’, Volume 2, p 1235) and the vagueness of the plaintiff’s evidence on whether she and Dr Chan are separated: T44.15.

Background facts not in dispute

35. The facts set out in the ensuing paragraphs are not in dispute. Where such facts relate to other facts that were in dispute those matters in contention will be identified in the relevant context for subsequent consideration.

36. In order to identify an appropriate factual baseline for assessing damages, it is convenient to first review the pre-accident circumstances of the plaintiff and her husband, Dr Chan.

Plaintiff’s pre-accident circumstances

37. The plaintiff was born in China in 1990. She is presently aged 33 years. In China she completed her secondary education to the HSC equivalent level. As an adult, she came to Australia on a student visa and embarked upon tertiary studies. Since her marriage here 10 months before the first accident, she now has an Australian permanent residency visa which is subject to renewal.

38. The plaintiff’s credit was substantially challenged in these proceedings. In addition to challenges on what may be considered to be peripheral issues, her credit was specifically challenged on the content of some factual misrepresentations she made to the Australian Government when she last applied to have her permanent residency visa renewed.

39. In Australia, the plaintiff completed a year of studies towards a Diploma of Accounting. She then switched courses and went on to complete a 3-year Bachelor of Business degree. She and Dr Chan married in Australia in January 2014. They have a daughter who was born in Sydney in April 2014. At the time of her first accident, their daughter was aged 8 months. She is an Australian citizen.

40. About 2 to 3 months before the first accident, the plaintiff commenced working in her husband’s cosmetic surgery business in addition to managing their home and undertaking childcare responsibilities. These circumstances have been contemporaneously described by an assessing psychologist as being an onerous struggle for her.

Dr Chan’s pre-accident employment of the plaintiff

41. Dr Chan and his parents came to Australia when he was a child. He was educated in Australia. He is an Australian citizen. Before the first accident, in which he too was injured, he operated a busy cosmetic surgery business in Sydney. In 2006, he entered into a prior marriage which was followed by a separation in 2010. That marriage ended with a formal divorce in November 2013.

42. Pre-accident, Dr Chan’s cosmetic surgery business included a Beauty Department which, from a date about 2 months before the first accident, was managed by the plaintiff, as his employee.

43. Dr Chan’s business arrangements involved a series of complex corporate and trust structures. These were apparently complicated by the financial arrangements he had made following the divorce which ended his first marriage. His cosmetic surgery business traded through a discretionary trust structure called Zion Trading Pty Ltd. The plaintiff’s employment in that business commenced about 2 months before the first accident.

44. In addition to the plaintiff’s administrative role in that business, which involved her making and supervising bookings by patients and customers, and dealing with financial matters, she also she provided some clients of the business with a range of beauty treatments. Those procedures included facials, skin treatments, eyebrow tattooing, injections, and a variety of other services that were complementary to her husband’s cosmetic surgery business.

41. The plaintiff’s work in the beauty department of that business was “hands on”. Her physical tasks included adopting and maintaining a sustained forward bending or forward leaning posture over customers whilst providing them with various forms of beauty treatment, including eyebrow tattoos, and administering injections. Her working hours in that role were generally between 10am and 6pm, and sometimes up to 7 pm Monday to Friday, on five, and sometimes six, days per week.

42. The plaintiff said she was paid about $190,000 per annum gross for that work. In fact, the financial records show that in the financial year ending June 30^th, 2015, she was paid the gross sum of $200,198,

43. The plaintiff had only commenced employment in her husband’s business in the second half of 2014. It appears this was in about September 2014, which was some months after the commencement of the financial year ended June 30^th, 2015. Following the accident on 14 December 2014 she did not carry out full duties for the remainder of that financial year. It therefore remained unclear as to whether the payment of that sum of $200,198 represented the plaintiff’s actual earnings from personal exertion, or whether that sum included a component of sick leave.

44. The evidence was left unclear as to whether the amounts disclosed in the employer’s financial records as the plaintiff’s salary represented the market value of the work she performed, or whether those amounts were simply allocated as discretionary distributions of trust income as a means of income splitting.

45. The plaintiff’s evidence on the economic loss claim was somewhat limited. This was surprising, given her financial qualifications and her own corporate role in her husband’s business. The consideration of her economic loss claim requires a review of the financial results of that business and her own tax returns.

Plaintiff’s pre-accident health

50. The plaintiff stated that pre-accident, she had been in excellent health. In her first evidentiary statement, she said she had not suffered any significant pre-accident injuries or illnesses. She also stated that pre-accident she was able to perform all her work tasks, domestic chores, childcare activities, leisure activities, and activities of daily living without restriction or hindrance, and without the need to engage domestic assistance: Exhibit “A”, p 120, paragraphs 20 – 22. The defendants challenged the factual accuracy of aspects of that evidence.

51. The plaintiff’s statement by which she claimed to have had pre-accident good health stands to be evaluated for factual accuracy in light of an aspect of unchallenged contrary medical and psychological evidence as to her pre-accident psychological well-being.

52. Although the plaintiff was not specifically challenged on the content of the historical matters extracted from her medical records as now follows, in my view, her claim of being an excellent pre-accident state of health needs to be significantly qualified and read down.

53. This is because of a pre-accident historical entry found in the records of her treating general practitioner, and a related letter from a psychologist to whom she had been referred for assistance regarding some pre-accident mental health problems, as summarised below.

54. On 9 October 2014, which was just two months before the first accident and shortly after the plaintiff commenced employment in her husband’s business, the progress notes of the plaintiff’s general practitioner, Dr Denise Huang, noted that a consultation with the plaintiff had taken place that day. Those notes recorded a queried diagnosis of the plaintiff suffering from depression in the context of a recent suicide attempt, which had resulted in a hospital admission.

55. Dr Huang’s handwritten notes on this subject are difficult to interpret in their entirety. However, it appears that following a long discussion with the plaintiff at that time, Dr Huang noted the plaintiff had issues of concern regarding her work, and in coping with the care needs of her baby. She was prescribed Zoloft, and she was referred to Ms Ming Sze, a psychologist: Exhibit “A’, Volume 1, p 612.

56. On 9 October 2014, which was on the same day as Dr Huang’s referral, the plaintiff was seen by Ms Ming Sze in a psychological consultation. The plaintiff had only one session with Ms Sze, without any follow up arrangements being made to be seen again. Ms Sze wrote a report of that consultation on 24 November 2014: Exhibit “A”, Volume 1, pp 594 – 595; Volume 2, p1235.

57. In her report of that consultation, Ms Sze noted that she had seen the plaintiff on that day following a suicide attempt in August 2014, which was 4 months before the first accident. The history was that the plaintiff had overdosed herself with paracetamol and had been admitted to St Vincent’s Hospital in Sydney for 48 hours, where she was observed and received counselling.

58. The recorded background to the plaintiff’s suicide attempt was described as marital distress in the context of having a 6-month-old infant to care for, and a background of frequently occurring conflicts with her husband over family finance issues, and conflict over her limited social support. She reportedly felt unsupported by her husband concerning childcare issues.

59. In Ms Sze’s pre-accident report on those matters to Dr Huang, she recorded the range of the plaintiff’s complaints at that time to be sleep problems, loss of appetite, social withdrawal, loss of concentration which affected her studies, and reduced memory function.

60. In light of the above matters, the plaintiff’s evidence, in which she appeared to have glossed over those matters and claimed that she was in an excellent pre-accident state of health, must be seen to be unreliable because of objectively demonstrated inaccuracy.

61. Ms Sze’s report on her consultation with the plaintiff concluded that the plaintiff no longer felt suicidal, and that the marital relationship had improved. Ms Sze’s impression was that the plaintiff was feeling overwhelmed at the time because of a need for her to run the new business within the Beauty Department which had commenced about 3 months earlier, being a new mother, and pursuing her studies, all of this having occurred in circumstances where she was getting only limited support from her husband. The dates were loosely described in that history.

62. Ms Sze suggested the plaintiff would benefit from cognitive behavioural therapy focussing on stress management skills, relaxation training, problem solving skills, and cognitive restructuring. The evidence was silent on the question of whether the plaintiff had in fact obtained any psychological assistance along the lines Ms Sze had suggested.

63. In oral submissions, Counsel for the plaintiff sought to downplay the significance of the above-cited events, characterising them as being within the range of the normal incidents of a marriage. He argued that the plaintiff’s history of psychological problems, as cited above, which had in the past overwhelmed her, should be seen as being a past adverse health event which was no longer of relevance in the context of her injuries and her case. There was no medical or allied evidence to support that submission. On the state of the evidence, I do not accept the aptness the submissions made on the plaintiff’s behalf along those lines.

64. In making that submission, Counsel for the plaintiff went on to cite the well settled damages principle that the defendants must take the plaintiff as she was found, including any underlying vulnerabilities that might be at play in her pre-accident circumstances. That submission needs to be evaluated in the context of the onus of proof borne by the plaintiff regarding such matters, and the absence of medical evidence of any underlying vulnerabilities that might perhaps have been affected or aggravated by the effects of the accident.

65. In my assessment, whilst observing the conventional caution against demeanour-based assessments of the credibility of testimony, the determinative weight of the above-cited submission should be discounted insofar as it is suggested that there was an aggravation of an underlying condition.

66. I have come to that view because there was no medical or allied evidence which might have explained the plaintiff’s reactions and emotional presentation in the witness box, where, at times in her presentation, she appeared overwhelmed, distressed, weeping, and she needed to have a number of breaks from questioning to regain her composure, where at times she appeared to be emotionally labile, she appeared remote, and she was silent and unresponsive to some questions: T42.42; T48.17; T54.30; T58.40 – T59.16; T86.45.

67. In my view, those episodes have some contextual relevance to a consideration of the credibility and the reliably of the plaintiff’s evidence regarding the reliability of her responses to questions, where such reactions arose in the context of specific challenges that the defendants made to aspects of her evidence.

68. Counsel for the plaintiff argued that those reactions were in effect due to the plaintiff’s situational stress during cross-examination, which, it was argued, resulted in her having trouble recollecting significant matters of detail long after the events. There were literally scores of such instances where the plaintiff could not recall significant matters of detail about which she was questioned. Those matters will be identified at a later point in these reasons when recording findings on the credibility and the reliability of her testimony.

69. At this point it is pertinent to observe that the objective records show that the plaintiff was experiencing difficulties with memory function before the first accident, albeit in a different context, as identified at paragraph [59] above.

70. Against the above background it is relevant to review the evidence as to Dr Chan’s pre-accident situation.

Dr Chan’s pre-accident situation

71. The factual matters relating to the plaintiff’s husband, Dr Chan, as summarised below, are taken from his evidentiary witness statement tendered in evidence (Exhibit “A”, Volume 1, pp 136 – 147) and the forensic accountancy reports obtained by the defendants which revealed background factual matters.

72. Dr Chan’s evidentiary statement was prepared for the purpose of him presenting evidence in own substantial personal injuries damages claim arising from the accident on 14 December 2014. The detail, the course, and the outcome of that claim did not feature in the evidence in this case,

73. Dr Chan was born in China in 1977. In 1989, when aged 12 years, he migrated to Australia with his family. He completed his secondary education in South Australia. In 2001 he obtained the degrees of Bachelor of Medicine and Bachelor of Surgery from the University of Adelaide. In 2008 he completed a course of training as a surgeon. He then commenced his own practise as a cosmetic surgeon. He described that practice as being successful.

74. It appears from the financial analysis obtained by the defendants, that Dr Chan’s divorce from his first wife in 2013, some thirteen months before the first accident, had a significant pre-accident impact on his financial position in the lead up to that accident.

75. At the time of the first accident, Dr Chan was aged 37 years. He stated that immediately before the 2014 accident in which both he and the plaintiff sustained injures, he was in excellent health. He was running his clinic in Sydney 5 days per week. He stated that he was structuring his professional time in the business between consultations and performing surgical procedures.

76. A forensic accountant’s report which analysed Dr Chan’s financial arrangements reveals that by using income he generated from his practice, through his corporate and trading entities, he used his practice income to trade on financial markets, an activity which ultimately resulted in him incurring significant financial losses. This raised the imponderable question concerning the long-term viability of his cosmetic surgery business and his ability to provide the plaintiff with continuity of employment in that business.

77. Dr Chan said that when he was operating in his practise, on average, he was performing between 12 and 16 breast augmentation procedures per week, earning fees of about $8,000 per procedure, and performing 1 to 2 rhinoplasty procedures per week, the latter being more time consuming, and earning fees of between $10,000 to $12,000 each for those procedures. Those descriptions suggests that before the 14 December 2014 accident, he not only had the potential to achieve very high earnings, but he was exposed to potentially high trading losses as well because he used his practice income to trade on financial markets.

78. Dr Chan stated that it was his pre-accident intention to expand his cosmetic surgery business, including by engaging other qualified employees and surgeons so that they would take on his overflow of work. His plan was to continue running his business in that manner until the age of at least 70 years.

79. Ultimately, as events turned out, it was suggested that Dr Chan’s ambitions were at least in part thwarted by the effects of the injuries he sustained in the accident on 14 December 2014, where those injuries had an adverse impact upon his ability to work as a surgeon at pre-accident levels, and this affected the viability of his business plan.

80. I will return to a consideration of those circumstances, and to a consideration of the plaintiff’s most likely circumstances but for her injuries, in my analysis and findings concerning the plaintiff’s claim for economic damages: s 126 of the MAC Act; s 13 of the CL Act.

First accident - 14 December 2014 – claimed injuries and aftermath

81. Ms Bao’s stated that the first accident occurred at about 3.30pm on 14 December 2014. At the time she was a seat belt wearing passenger in the front seat of her husband’s vehicle, a Maserati sedan, which at the time, was stationary, in traffic. He was in control of the vehicle at that time.

82. Ms Bao stated that in the collision the vehicle in which she was seated was struck from behind by the first defendant’s vehicle. She described the impact as being “large”. Dr Chan’s statement also described that impact as being “large”.

83. Ms Bao’s evidentiary statement described the force of the impact as causing her body jerk backwards and then forwards. Beforehand, she said that her head was bent forward whilst she was looking at her phone. Prima facie, that description of the sequence of events and the movement to her body seemed unusual when compared to Dr Chan’s description of the events. That said, this issue was not explored in her oral evidence as a matter involving controversy.

84. In making that comparison, I observe that Dr Chan described the impact of the first accident as causing his body to be jerked heavily, backwards, and then forward, resulting in his neck making forceful contact with the seat headrest. He described his own injury as a hyperextension injury. He stated that the collision 2014 had occurred without warning, and without any sound of the screeching of brakes from the vehicle that had struck the rear of his vehicle. After the collision he noticed that the rear bumper bar of his vehicle was damaged. There was no detailed description of that damage in his evidence,

85. Ms Bao stated that after the collision, she initially she felt shocked. From her description of the events, it seems that she was primarily concerned with the welfare of her young daughter who had been on the back seat of the vehicle. She stated that following the journey home she began to feel discomfort in her neck. At the suggestion of her husband, a medical practitioner, she sought out massage therapy from Mr Brad Hughes, a massage therapist who practised from rooms near Dr Chan’s clinic.

86. During oral submissions attention was drawn to the fact that there was no report or document which described the treatment Mr Hughes had provided to the plaintiff, although a document from him was considered by the defendants’ medical expert. By leave granted, the parties forwarded a document from Mr Hughes which became Exhibit “C” in the proceedings.

87. That document shows that the plaintiff received some 15 massage therapy treatments from Mr Hughes between 20 December 2014 and 22 August 2015 at a total cost of $1085. That cost was met by the CTP insurer pursuant to s 83 of the MAC Act, and it will be added to the amount claimed for out-of-pocket expenses.

88. In her evidentiary statement Ms Bao said that in the weeks that followed the first accident, she noticed that in addition to her neck pain, she was also experiencing pain and discomfort in her lower back. The accuracy of that evidence was the subject of challenge. She said that she sought massage therapy which was directed to relieving her increasing levels of neck and back pain. To a degree, Exhibit “C” corroborated that evidence.

89. That claimed history of back pain is an important point of focus for analysing the reliability of her evidence as to the extent of her injuries from the first accident when considering the content of the medical evidence relied upon by the defendants.

90. In early February 2015, which was about a month after the plaintiff’s first accident, according to her evidentiary statement, she said that due to her experience of ongoing and increasing neck and back pain, she and her husband decided to consult a local general practitioner, Dr Danny Cai.

91. Ms Bao stated that Dr Cai had advised her that she had suffered soft tissue injuries in the first accident, and that she should continue the massage treatments she had been receiving, and take anti-inflammatory medication, and rub creams onto her neck and onto her low back. Dr Cai’s records did not confirm her complaints of a low back injury at that time.

92. The timing of onset of the plaintiff’s lower back problems, and the attributability of those problems to the first accident, was a matter of controversy which will be considered in due course when arriving at findings of fact on disputed matters.

93. Regarding the plaintiff’s options for pain management, she stated that she was reluctant to continue taking Panadol and Nurofen for her symptoms because of her concern over the long-term effects of those medications. This was an understandable position for her to take in view of her pre-accident episode of a paracetamol overdose, resulting in hospitalisation, and another notation in her medical records to the effect that Nurofen had caused her to experience stomach problems.

Second accident - 9 August 2016 - claimed injuries and aftermath

94. Ms Bao stated that the second accident occurred at about 10pm on 19 August 2016. At that that time she was a seat belt wearing front seat passenger in an Audi Q3 vehicle being driven by her friend, Yanjiexi Wu, in George Street in Sydney.

95. Ms Bao stated that in the lead up to the second accident, after the vehicle in which she was seated had become stationary, the second defendant’s vehicle had quickly veered into a collision course on entering the same lane in George Street, from the left. This resulted in a forceful collision between the right or driver’s side of that vehicle and the front left or passenger side of the vehicle in which she was seated. As a result of that collision her friend’s vehicle was no longer driveable.

96. Ms Bao described the impact between the vehicles as “pretty heavy”, causing her body to jerk forward and then backwards. She stated that her neck and head had collided with the seat headrest. She said that in those events, at that time, she instantly felt increased levels of pain in her neck and back. She stated that she also noticed her low back had started to swell, and that it was very painful and uncomfortable. She also said that she was also in shock over those events.

97. In summary, in her statement, Ms Bao stated that the injuries she sustained in the second accident involved her neck, both shoulders, lower back and right leg, as well as experiencing shock.

94. My findings on those matters will be identified after setting out in summary form, a review of the crash analysis report of Mr Griffiths, together with a chronological review of the array of medical and allied evidence in the court book, and a review of the financial documents relied upon by the parties.

Review of the documentary evidence

99. In the paragraphs that now follow, I set out my reviews of first, the crash analysis evidence of Mr Griffiths, secondly, the medical and allied evidence, and thirdly, the financial evidence tendered by the parties.

Review of Mr Griffiths’ crash analysis report

100. The first defendant obtained what was described as a “preliminary” expert report dated 13 May 2022 from Mr Michael Griffiths, a biomedical and mechanical engineer. The analytical focus of that report concerned the likely injuries sustained by the plaintiff’s husband, Dr Chan, in the collision on 14 December 2014: Exhibit “A”, Volume 1, pp 185 – 215.

101. On it’s face, that report did not purport to analyse the plaintiff’s injuries in the 14 December 2014 accident. For the reasons that follow, I consider that Mr Griffiths’ report and the opinions therein therefore have very little if any relevance to determining the issues calling for decision in this case.

102. Although Mr Grifffths’ report is dated 13 May 2020, as no letter of instruction was attached or identified, it remains unclear as to when he was briefed.

103. The date on which Mr Griffith was briefed takes on some analytical significance because, by 26 November 2019, or shortly thereafter, the defendants were in possession of a detailed occupational therapy report from Ms Anna Hughan, relating to her assessment of Dr Chan’s complaints of injury related disabilities stemming for the first accident. In that report, Ms Hughan reviewed the historical evidence of the investigation and diagnosis of Dr Chan’s disabilities.

104. Ms Hughan’s assessment was that Dr Chan had suffered a soft tissue injury to his neck and she noted that he had been assessed as having developed a classic frozen shoulder syndrome: Exhibit “A”, Volume 2, pp 1498 – 1532; p1501, at paragraph 9.0.

105. Mr Griffiths did not appear to have had the benefit of that occupational therapy assessment when he constructed his crash analysis opinions, so it appears that he had no counterfactual material available for consideration of the effect of Dr Chan’s injuries when formulating his views. Perhaps this explains why his report bears the significant qualification that it was of a preliminary nature. There is no evidence that the defendants had sought a finalised opinion from Mr Griffiths.

106. In that preliminary report, Mr Griffiths considered the crash dynamics of the first accident and stated his conclusion that it was improbable that the wheels of Dr Chan’s vehicle had been moving in rotation relative to the road surface at the time of the collision. This was the apparent basis for the quantum leap embedded within his opinion that there was “no potential for strain or stretching to cause damage to tissue” to Dr Chan. In giving that opinion, Mr Griffiths’ report did not refer to any medical evidence relating to Ms Bao, nor did he purport to comment on her injuries, or on the dynamic cause of her injuries.

107. The source for some of the assumptions relied upon by Mr Griffiths was in part opaque to analysis, and not readily apparent.

108. Mr Griffiths listed 7 categories of documents that the defendants had supplied to him for his consideration, as follows:

1. A personal injury claim form arising out of the 14 December 2014 accident as it related to the plaintiff, including Dr Cai’s supporting medical certificate relating to the plaintiff. Mr Griffiths’ report did not address the plaintiff’s injuries which were listed in that medical. certificate;

2. A police report relating to the first accident;

3. Smash repairer’s records for the repairs to Dr Chan’s Maserati;

4. Dr Chan’s witness statement dated 18 October 2017;

5. Dr Cai’s clinical records, apparently relating to Dr Chan;

6. Clinical records from Medi Central, apparently relating to Dr Chan;

7. Clinical notes of an orthopaedic nature from Associate Professor Mark Haber, relating to Dr Chan.

109. It appears that items (6) and (7) above have not been copied into Exhibit “A”. Item (1) comprised the plaintiffs personal injury claim form, which included a medical certificate from Dr Cai which diagnosed the plaintiff as having incurred a ligamentous injury to her neck as well as a trapezius muscle injury: Exhibit “A’, Volume 1, p 153A. The evidence does not establish that Mr Griffiths was appropriately qualified to reliably contradict Dr Cai’s medical diagnosis. He made no criticism which impugned that diagnosis.

110. The police report that was provided to Mr Griffiths was of limited utility in analysing the crash dynamics of the first accident.: Exhibit “A’, Volume 1, pp154-159. The report to the police was late and was presumably made to comply with the statutory requirements for making a claim: s 70(1) of the MAC Act.

111. The police report stated that it was received on 25 January 2015, some 42 days after the accident. It identified the occurrence involving a rear end collision with Dr Chan's Maserati vehicle. It referred to the plaintiff as having been injured and having consulted a physiotherapist for her injuries. There was no description of the speed of, or the damage to, either vehicle involved in the collision. However, it noted that that the vehicle’s airbag had not been deployed in the collision.

112. A copy of the smash repairer’s file relating to the repair of Dr Chan’s vehicle was included in the court book: Exhibit “A’, Volume 1, pp 1595-1614.

113. The repairer’s file indicated that the repairs involved six hours of labour to repair the rear of the vehicle, and 4.25 hours for repair of the paint work. It was also noted that the job required a rear bumper repair. The total cost was identified at $2,838.70.

114. It is doubtful that an insurance loss assessor would have approved that amount of work if there was little or no impact damage to the vehicle. The black and white photocopies of the photographs included in the smash repairer’s file were of no assistance to the task of discerning the nature of the damage to the vehicle, or the nature of the injuries to the plaintiff. It was not clear as to whether those photographs had been taken either before or after the repairs were carried out.

115. Mr Griffiths reasoned that the damage to Dr Chan’s vehicle was of “a relatively minor nature” (Exhibit “A’, Volume 1, p197), and he considered the contact between the vehicles amounted to “a scruff” or an “abrasion, on the bumper bar” (Exhibit “A’, Volume 1, p199), and that the energy of the collision (which was not identified in the police report or elsewhere in the evidence) was “not sufficient to result in heavy lateral motion of the vehicle” (Exhibit “A’, Volume 1, p199), those conclusions indicating to him that there was “no potential for strain or stretching to cause damage to tissue” :Exhibit “A’, Volume 1, p 214. In the context of a rear end collision, Mr Griffiths’ reference to lateral motion remains obscure.

116. Those ipse dixit statements are of no assistance to the analysis required in this case: Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305, at [59], [87].

117. It is important to observe that the opinion of Mr Griffiths only related to Dr Chan’s injuries, and not to the plaintiff’s injuries.

118. In coming to his views on the crash dynamics of the first accident, Mr Griffiths seems to have overlooked the significance of Dr Chan’s unchallenged description in his evidentiary statement to the effect that his body was “jerked heavily backwards and then forwards”, with his head then hitting the headrest with some force in the subject accident: (Exhibit “A’, Volume 1, p 201. In that regard, it is also noteworthy that there was no evidence from the first defendant driver as to the speed or motion of his vehicle immediately before the collision, or as to a description of the force of the collision.

119. In my view, the factual basis for the opinions expressed by Mr Griffiths as to the crash dynamics involved in the accident on 14 December 2014 were not sufficiently like the uncontradicted and not otherwise improbable factual evidence given in these proceedings: Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58, at [9].

120. Therefore, and for the above reasons, having assessed the contents of Mr Griffiths’ report, I consider that report to be of little or no probative value to the task of determining the nature and the extent of the injuries sustained by Ms Bao in the accident on 14 December 2014.

121. Whilst the plaintiff’s version of the events of the first accident as recorded by Dr Cai, namely a collision involving the speed of the offending vehicle being of the order of 20-30kph may be discounted, in my view, Dr Chan’s unchallenged version bespeaks a significant if not heavy impact sufficient to cause the plaintiff’s claimed soft tissue injuries.

Chronological review of medical and allied evidence

122. In view of the defendants’ wide-ranging attack on the plaintiff’s credit, and in view of emergent disputes over the nature, extent, and the effect of the plaintiff’s injuries, before identifying and making any findings on those matters it is necessary to review and analyse for reliability, the content of the array of medical and allied reports tendered by the parties.

123. As already observed, the medical evidence in the court book was repetitively duplicated in parts and was assembled in an inconvenient and non-chronological order.

124. A consideration of the factual issues that emerge from the medical and allied evidence requires a sequential detailed chronological exposition in the paragraphs below. This now follows, in the chronological order in which that evidence came into existence, as distinct from the order in which it was assembled in the court book.

125. The initial analysis of the state of the documentary evidence at the close of evidence revealed that the first objective clinical record made by a medical practitioner concerning the plaintiff’s injuries resulting from the accident on 14 December 2014 was on 2 February 2015, when the plaintiff saw Dr Cai, when he made notes of that consultation.

126. Following oral submissions on 29 August 2023, when counsel were asked to clarify whether there was any evidence from Mr Brad Hughes, a massage therapist who had treated the plaintiff, Exhibit “C” was added to the body of the evidence: T123.30. This provided an objective and relatively contemporaneous evidence of the plaintiff’s injuries which flowed from the accident on 14 December 2014.

127. Whilst Exhibit “C” was dated 16 September 2015, it set out in chronological order, an historical summary of the dates on which Mr Hughes, who practised under the business name Medi-Rub Australia, had provided massage therapy to the plaintiff’s neck.

128. The effect of that record was to provide some objective corroborative evidence of the plaintiff’s account of the problems she had experienced after her first accident, where she had first consulted Mr Hughes 6 days after that accident. The material provided by Mr Hughes therefore comprises the first objective and relatively contemporaneous record of those matters.

Mr Brad Hughes – Massage Therapist – 20 December 2014

129. On 20 December 2014, the plaintiff consulted Mr Brad Hughes. He provided her with a 45-minute massage directed at her complaint of neck pain which he considered was due to a mild whiplash injury: Exhibit “C”, p 1.

130. Between 20 December 2014 and 22 August 2015, Mr Hughes saw the plaintiff for massage therapy on a total of 15 occasions.   

Mr Brad Hughes – Massage Therapist – 31 January 2015

131. On 31 January 2015, the plaintiff saw Mr Hughes for a second time. On this occasion he provided her with a 1.25-hour massage therapy treatment to her neck: Exhibit “C”, p1. This record was consistent with the plaintiff’s evidence that she had this treatment (T29.40-T30.6; Exhibit “A”, Volume 1, pp 121-122, paragraphs 36-37), before she went on to seek a consultation with Dr Cai because she felt her pain was increasing and not resolving: Exhibit “A”, Volume 1, p 122, paragraphs 38-40),

132. The plaintiff subsequently saw Mr Hughes on a further 13 occasions in 2015, namely, on 7, 9 and 14 March, 3 and 18 April, 9 and 23 May, 6 and 20 June, 11 and 18 July, and 22 August 2015: Exhibit “C”, pp 1-2.

133. At one of those consultations, on 7 March 2015, some 12 weeks after the accident on 14 December 2015, Mr Hughes noted that he treated the plaintiff for a complaint of lower back pain: Exhibit “C”, p 1.

134. That was the first occasion the objective records are noted to the effect that there was mention of the plaintiff having made a complaint of lower back pain, some 12 weeks after the first accident. Mr Hughes later made further but differently worded notations of his treatment of the plaintiff for back pain. This was on 3 April 2015 (“general back pain”), 6 June 2015 (“upper back pain”), and 22 August 2015 (“general back pain”).

135. The variations in the described locations of the plaintiff’s back pain as described above cannot be resolved based only on the content of Exhibit “C”. Those records will the subject of further consideration leading to findings on the question of the nature and extent of the plaintiff’s injuries which resulted from the first accident.

Dr Danny Cai – General Practitioner – 2 February 2015

136. On 2 February 2015, some 50 days after the first accident, the plaintiff’s general practitioner, Dr Danny Cai, wrote a consultation note in which he recorded the mechanism of the collision on 14 December 2014 as involving a 20-30kph collision from behind resulting in a whipping like action of the head/neck resulting in neck/shoulder soreness with a slow recovery: Exhibit “A’, Volume 1, p 544.

137. It is plain from that note that the plaintiff had perceived the collision to have been forceful. It appears that Mr Griffiths had not considered that account, and its importance to a crash analysis.

138. In contrast to the plaintiff’s first evidentiary statement, Dr Cai’s recorded account of the described speed of the 14 December 2014 had collision was not contradicted by reliable eyewitness evidence or direct evidence from the first defendant, or by any other witness accounts from those who might have been present at the time and who might have been in a reliable position to authoritatively speak about those facts.

139. At that first consultation Dr Cai did not record any reference to the plaintiff having presented with or complaining of a lower back problem, either recently emergent or contemporaneous to the accident on 14 December 2014.

140. The plaintiff explained that she had delayed seeking out earlier medical treatment for the injuries she sustained in the first accident in the unfulfilled expectation that her injuries would resolve with the massage therapy she had sought from Mr Hughes shortly following the first accident.

Dr Danny Cai – General Practitioner - 16 February 2015

141. On 16 February 2015, Dr Cai provided a medical certificate which was incorporated as part of the plaintiff’s motor accident personal injury claim form. By hand, he certified that the accident on 14 December 2014 resulted in the plaintiff incurring ligamentous neck and shoulder injuries, including involvement of the trapezius muscles, with the left being more affected than the right side. His consultation note recorded the plaintiff’s complaints of left shoulder and neck stiffness with tightness of the left trapezius muscle. At that time, Dr Cai’s certificate made no mention of the plaintiff having sustained any form of injury to her lower back: Exhibit “A”, Volume 1, p153A; p 545.

142. The content of this record is of interest because the plaintiff consulted Mr Hughes 4 days later, for treatment of back pain. It appears she did not have back pain when she saw Dr Cai on 16 February 2015. If she had back pain at the time she saw Dr Cai it is more likely than not she would have mentioned this to him and if so, he would have made a clinical note to that effect.

Dr Mathew Giblin – Orthopaedic Surgeon - 25 November 2015

143. On 25 November 2015, Dr Mathew Giblin, a consultant orthopaedic surgeon, examined the plaintiff at the request of her former solicitors and he provided a report on the same date: Exhibit “A”, Volume 1, pp 62 – 64.

144. Dr Giblin’s examination was limited to a consideration of the plaintiff’s claim of having injured her neck in the accident on 14 December 2014.

145. Dr Giblin expressed the unchallenged medical opinion that the plaintiff’s neck injuries, which he described as being of a soft tissue nature, were consistent with the accident she had described, the mechanism being a rear end collision. At that time, he expressed the opinion that she would remain unfit for work involving excessive, repetitive, forward flexion of the cervical spine. There was no mention of the plaintiff having reported an injury to her lumbar spine at the time she was examined by Dr Giblin.

Dr Peter Conrad – Surgeon - 14 December 2015

146. On 14 December 2015, the plaintiff was examined by Dr Peter Conrad, a consultant surgeon, at the request of her former solicitors and provided a report on the same date: Exhibit “A”, Volume 1, pp 65 – 68.

147. Dr Conrad’s examination was restricted to the plaintiff’s neck and left shoulder and related left arm radiculopathy complaints and her related complaint of restricted left shoulder movements following the accident a year earlier, on 14 December 2015. He described the causative mechanism of the plaintiff’s complaints as being a whiplash injury. At the time of that examination, Dr Conrad did not record any history of the plaintiff having complained of injuring her lower back in that first accident.

148. Dr Conrad expressed the opinion that at that time, the plaintiff was unfit for work involving overhead work, and would need to be employed in situations where she could sit or stand at will, not lift weights of more than 5kgs, and she would need to commensurately curtail her computer work because of her symptoms. He also expressed the opinion that her work as a beautician at that time, for 10 – 20 hours per week, was within those curtailed parameters.

149. Dr Conrad also noted that the plaintiff’s complaints were causing her to struggle with housework and home maintenance, which led to his suggestion that she might need some hours per week of home care assistance.

Dr Samuel Gerber – Radiologist - 22 March 2016

150. On 22 March 2016, some 15 months after the first accident, at the request of the plaintiff’s husband, Dr Samuel Gerber, a radiologist, reported upon a CT scan of the plaintiff’s lumbosacral spine. This the first clinical record of the plaintiff having complained of a lumbar spine problem.

151. He reported that there was a small broad based central posterior disc protrusion at the level L4/L5 without neural canal encroachment. He also reported the presence of a slightly larger central posterior disc protrusion at the L5/S1 level also without neural canal encroachment. The clinical history was noted to have been :“Back pain”: Exhibit “A”, Volume 1, pp 104 – 105; pp 551-552.

152. These findings are of interest in view of the reported results of some subsequent scans of the plaintiff’s lumbar spine which attracted the critical attention of Dr Chen, an occupational physician retained by the defendants to examine the plaintiff.

Dr Samuel Gerber – Radiologist - 27 April 2016

153. On 27 April 2016, Dr Samuel Gerber reported directly to the plaintiff on his interpretation of a CT scan of her cervical spine and left shoulder. This appears to have been a self-referral. He reported that there were no abnormalities seen in the imaging of her cervical spine or in respect of her left shoulder. The clinical context was stated to be “MVA”: Exhibit “A”, Volume 1, pp 106 – 107; pp 554-555.

Dr Peter Conrad – Surgeon - 16 May 2016

154. On 16 May 2016, Dr Conrad provided a supplementary letter to the plaintiff’s former solicitors comprising a commentary incorporating his views on Dr Gerber’s’ radiological reports of 27 April 2016 concerning the imaging of the plaintiff’s cervical spine and the left shoulder. Dr Conrad stated that the imaging did not change his earlier expressed views, which he had provided on clinical grounds rather than on radiological grounds: Exhibit “A”, Volume 1, pp 108 – 109. Reading between the lines of Dr Conrad’s report, it appears he was possibly suggesting that clinical complaints and radiological signs do not always align.

Dr Joan Chen – Occupational Physician - 28 June 2016

155. On 28 June 2016, at the request of the CTP insurer, the plaintiff was examined by Dr Joan Chen, an occupational physician. This examination took place some 18 months after the first accident and 2 months before the second accident. Dr Chen issued her very detailed 14 page closely typed report on the same day: Exhibit “A’, Volume 1, pp 216 – 223J; Exhibit “B”.

156. Dr Chen took a history that following the first accident, and at a point about 2 months before the second accident, the plaintiff was experiencing episodic neck pain, left sided upper shoulder girdle pain, and headaches. The plaintiff reported that pain as being often disabling to the point she could not get out of bed. Dr Chen noted that the plaintiff had no neck pain on the day of this assessment.

157. Dr Chen recorded a history of the plaintiff being able to continue her usual work duties and work hours as they were not onerous. This too was an interesting item of history to be considered when assessing her claim for economic damages.

158. Dr Chen also noted the plaintiff’s history of having developed low back pain in about late 2015. The context was that the plaintiff had queried whether this was related to that accident. Dr Chen did not accept that there was a relevant causal connection. She stated that this was “not causally related to the subject accident as there is a significant temporal gap between the accident and the first record of back pain.” That account, at first glance, raises a causation question to be determined following a review of the entire medical evidence.

159. Dr Chen’s above-cited negative opinion on causation did not identify the potential elements of analysis both for and against her above-cited conclusion. Neither did her report did indicate how she had resolved any competing arguments to reach that conclusion. That said, Dr Chen was not required for cross-examination on that opinion.

160. Dr Chen’s report went on to state that the plaintiff’s presentation was consistent with her claim of injury and disability due to a soft tissue strain (to her neck and left shoulder) which had settled to a level where further significant remission was unlikely. Dr Chen assessed the plaintiff as being able to continue with her pre-first accident employment.

161. On the final page of her report, Dr Chen noted the limited background materials she had been given for review. These comprised a police report, a personal injury claim form, a statutory declaration, various medical certificates and notes from Dr Cai, and a report from Mr Hughes, the massage therapist who treated the plaintiff. That report only came into the evidence in this case by leave during submissions.

162. It appears that at the time Dr Chen issued her report dated 28 June 2016, she did not have Dr Gerber’s report of 22 March 2016 which commented on the presence disc protrusions in the plaintiff’s lumbar CT scans taken on that date.

Dr Joan Chen – Occupational Physician - 28 June 2016

163. On 28 June 2016, Dr Chen issued a short supplementary report indicating her assessment that the plaintiff had zero percentage whole person impairment according to the statutory assessment protocols, which she emphasised did not mean the plaintiff had not been injured in the first accident: Exhibit “B”.

Dr Denise Huang – General Practitioner – 22 August 2016

164. On 22 August 2016 Dr Denise Huang’s progress notes record a history of the plaintiff having been involved in a second motor vehicle accident 3 days earlier on 19 August 2016. In that progress note Dr Huang recorded that the plaintiff had sustained injuries to the cervical spine, the head, and to the right knee, with the latter injury causing a large purple bruise and tenderness. She noted the plaintiff had difficulty with standing. She also noted tenderness, and what I interpret to be restriction of movement and difficulty bending and forward flexion of the cervical spine: Exhibit “A”, Volume 1, p 612.

165. Surprisingly, considering the plaintiff’s narrative of having lumbar spine problems, that note made no mention of the plaintiff having sustained a low back injury in that second accident.

166. That omission should be read in conjunction with a subsequent entry in the plaintiff’s medical records made by Dr Yu Feng Huang which refers to this consultation with Dr Denise Huang 3 days after 19 August 2016 accident. In that note Dr Yu Feng Huang recorded that the plaintiff experienced “low back pain straight away” following the second accident. That note refers to the fact that it was the plaintiff’s perception that the consultation with Dr Denise Huang did not go well. The plaintiff’s perception of that earlier consultation was that only analgesia was suggested at that time, and no lumbar CT scan was arranged until this was requested by her in September: Exhibit “A”, Volume 1, p 558.

Dr Denise Huang – General Practitioner – 19 September 2016

167. On 19 September 2015, the plaintiff consulted Dr Huang who noted the history of having pain in her lower back. Dr Huang’s handwritten notes of this consultation are difficult to interpret: Exhibit A, Volume 1, p 659. As best I can discern, she recorded a history of the plaintiff experiencing pain in her lower back for the previous month following the recent, that is, the second motor vehicle accident, with pain radiating to the right leg, with a related inability to sit, bend, and a related complaint of restricted movements of the lumbar spine in all directions. She recorded that the plaintiff had been receiving massage treatment for those problems, the cost of which was being met by the CTP insurer. Based on that history and those findings, Dr Huang ordered a lumbar CT scan.

Dr K Plehwe – Radiologist - 21 September 2016

168. On 21 September 2016, against a background history of right-sided sciatica, the plaintiff underwent a CT scan of her lumbar spine which was reported upon by Dr K Plehwe. He also reported that the scan showed a large central L5/S1 disc protrusion which descended to the upper part of the S1 vertebral body and which impinged upon some nerve roots of the neural structure known as the cauda equina: Exhibit “A’, Volume 1, p 110.

169. Dr Plehwe’s report involved a change of description compared to Dr Gerber’s report on the lumbar CT scans taken on 22 March 2016.

Dr Denise Huang – General Practitioner – 22 September 2016

170. On 22 September 2016, Dr Huang’s progress notes record Dr Plehwe’s CT findings and the plaintiff’s complaints of tenderness in the lumbar region, right buttock, right knee, as well as cervical spine problems following the plaintiff’s previous neck injury in the accident which occurred in December 2014: Exhibit “A’, Volume 1, p 613.

Dr Denise Huang – General Practitioner – 10 October 2016

171. On 10 October 2016, Dr Denise Huang, noted that the recent CT scan of the plaintiff’s lumbar spine revealed that an L5/S1 disc prolapse/protrusion was present, and this was causing the plaintiff right sided sciatic nerve pain with weakness and numbness in the right leg: Exhibit “A”, Volume 1, p 576 – 577.

172. Dr Huang’s clinical note of this consultation recorded that a CT scan taken in early September 2016 demonstrated an L5/S1 disc prolapse as a “new” feature where the previous feature was an L4/L5 disc protrusion. She noted the plaintiff’s presenting symptoms were causing her to experience difficulties with sleep: Exhibit “A”, Volume 1, p 557; p 619; p 635.

173. The reference to the L5/S1 disc protrusion being a new feature was odd because it was referred to by Dr Gerber in his report dated 22 March 2016. Perhaps Dr Huang did not have Dr Gerber’s report because it was obtained at the referral of the plaintiff’s husband, Dr Chan.

Dr Denise Huang – General Practitioner – 24 October 2016

174. On 24 October 2016, Dr Huang signed a medical certificate as part of the plaintiff’s motor accident personal injury claim form. In it he included the plaintiff’s diagnosis of lumbar pain associated with CT evidence of an L5/S1 disc prolapse and nerve compression, and right knee bruising and swelling. The CT evidence to which she referred appears to be a reference to Dr Plehwe’s report of 21 September 2016, which appears to have been arranged at the plaintiff’s insistence. At that time, Dr Huang identified the need for modified sitting and standing activities, and the plaintiff’s need for lifting restrictions: Exhibit “A”, Volume 1, p 563.

Dr Julian Yu – Orthopaedic Surgeon - 25 October 2016

175. On 25 October 2016, at the request of Dr Huang, Dr Julian Yu, a consultant orthopaedic surgeon, examined the plaintiff’s lumbar spine and the related investigatory reports of imaging scans. He expressed his diagnostic impression that the right sided sciatica symptoms corresponded to the motor vehicle accident, which from the context I interpret to be a reference to the second accident. He identified the need for a lumbar MRI scan. He stated that he would refer the plaintiff to Dr Randolf Gray, a specialist spinal surgeon, for further opinion: Exhibit “A’, Volume 1, p111; pp 654 – 655. It was left unclear as to whether the plaintiff ever saw Dr Gray, or whether she saw Dr Mobbs instead.

Dr Denise Huang – General Practitioner – 24 November 2016

176. On 24 November 2016 the plaintiff’s new general practitioner, Dr Yu Fung Huang consulted Dr Denise Huang’s notes and wrote to the CTP insurer to confirm that his predecessor had seen the plaintiff in relation to the plaintiff’s second accident of 19 August 2016. The consultation dates were identified as being 10 and 24 October 2016.

177. In that letter to the CTP insurer, Dr Huang set out the plaintiff’s account of that accident as follows.: “On 19 August 2016, 10pm Friday night, patient was a passenger in the car – in right lane of road. Car on left crashed into left lane suddenly merged lane to right hitting the passenger side where she was sitting. Patient had her seat belt on, no airbag implosion but patient thrusted forward and then back to seat. She had lower back pain straight away.” Hr Huang: Exhibit “A”, Volume 1, pp 574 - 575. The impression from that note is that the collision of the second accident was significantly forceful.

Dr Ralph Mobbs – Neurosurgeon - “late 2016” – 24 November 2016

178. On 24 November 2016, at the referral of Dr Huang, the plaintiff consulted Dr Ralph Mobbs, a consultant neurosurgeon, for “discogenic low back pain emanating from L5/S1”: Exhibit “A”, Volume 1, p 113: pp 650 – 651.

179. Dr Mobbs’ note of that consultation recorded that the plaintiff was seen to walk with an antalgic gait favouring the left leg and preferred to sit rather than stand. He also noted the plaintiff’s straight leg raising on the right was reduced to about 70 degrees.

180. Dr Mobbs diagnosed the plaintiff as having L5/S1 discogenic low back pain with some chemical radiculitis affecting the right S1 nerve. At that stage he did not recommend surgery. He prescribed Lyrica, anti-inflammatories, physiotherapy and an L5/S1 injection, although he did not think she was a great candidate for that injection, He also recommended a reassessment in the new year.

181. The evidence did not indicate whether Dr Mobbs’ identified mechanism of chemical radiculitis was in fact because of chemical irritation from disc exudate following a disc prolapse, or from a protrusion physically affecting adjacent nerve tissue, as identified in the scan reported on by Dr Plehwe on 21 September 2016.

Dr Paul Lowenstein – Radiologist -16 December 2016

182. On 16 December 2016, At the referral of Dr Mobbs, the plaintiff underwent a CT guided injection into the right L5 peri-radicular region without complication: Exhibit “A”, Volume 1, p731.

Dr Peter Conrad – Surgeon - 15 February 2017

183. On 15 February 2017, at the request of her former solicitors, the plaintiff was re-examined by Dr Conrad, who provided a report on the same date: Exhibit “A”, Volume 1, pp 69 – 72.    At the second examination of the plaintiff by Dr Conrad he took a history of the second accident having occurred on 19 August 2016.

184. Dr Conrad reviewed his earlier opinion and noted that the plaintiff’s neck pain continued, associated with headaches, with worsening when standing, the left shoulder and left arm symptoms were no longer current. He noted that the plaintiff had been working for about 10 hours per week as a beautician. This history of the plaintiff’s work some 6 months after the second accident is of interest to the task of assessing her evidence regarding her economic loss claim, and the extent to which her earning capacity has been impaired by the effect of her injuries.

185. Dr Conrad recorded his findings which followed his examination of the plaintiff’s lumbar spine complaints. He examined Dr Gerber’s report dated 22 March 2016 and Dr Plehwe’s report dated 21 September 2016 concerning the plaintiff’s lumbar CT scans which identified a small broad-based central posterior disc protrusion at L4/5 and a larger central posterior at L5/S1, which extended to the upper part of the S1 vertebral body impinging on the nerve roots of the neural structures comprising the cauda equina.

186. With respect to the plaintiff’s first accident, Dr Conrad expressed the opinion that the chronicity of the plaintiff’s ongoing neck symptoms merited an investigatory MRI scan of the neck to rule out any discal injuries. It appears that recommendation was not acted upon as there was no evidence of the plaintiff having ever undergone a cervical MRI scan. Although this suggestion was not explored in the evidence, it appears from Dr Yu’s examination on 25 October 2016, that the reason the plaintiff did not have a MRI scan when it was recommended to her earlier is that she suffered from claustrophobia: Exhibit “A”, Volume 1, p 559.

187. With respect to the plaintiff’s second accident, Dr Conrad expressed the opinion that the two lumbar disc prolapses from that accident required conservative treatment at that time. He reiterated his earlier expressed recommendations for postural, lifting, work, and domestic restrictions. His view that both disc prolapses occurred in the second accident appears to involve an either error of assumption or interpretation when considered alongside Dr Gerber’s 22 March 2016 CT scan report.

Dr Ralph Mobbs – Neurosurgeon - 24 March 2017

188. On 24 March 2017, at the request of her husband, the plaintiff was examined by Dr Ralph Mobbs, a consultant neurosurgeon concerning her right-sided discogenic low back pain emanating from L5/S1: Exhibit “A”, Volume 1, pp 113; p 733.

189. Dr Mobbs referred to a report of a recent MRI scan which revealed a posterior annular tear with a broad-based annular bulge at the level of L5/S1, which he identified as being the likely source of the plaintiff’s back pain. His recommendation at that time was for referral of the plaintiff to a pain management clinic to discuss pain management interventions such as cortisone and other injections., including epidural and inter-foraminal nerve blocks. At that time, he considered the plaintiff’s management should be conservative and non-surgical in nature.

Prince of Wales Private Hospital – Operation report - 12 May 2017

190. On 12 May 2017 the plaintiff underwent bilateral L5/S1 facet joint injections and a trans-foraminal block performed by Dr James Yu for her low back and right leg pain: Exhibit “A”, Volume 1, p 792; p 813.

Dr Mathew Giblin – Orthopaedic Surgeon - 24 May 2017

191. On 24 May 2017, at the request of his former solicitors, the plaintiff was re-examined by Dr Giblin, who provided a report on the same date: Exhibit “A”, Volume 1, pp 73 – 76.

192. In his second examination of the plaintiff, Dr Giblin noted that, contemporaneously, following the second accident, the plaintiff complained of low back pain with intermittent radiation of pain down the right leg. In that regard, the plaintiff reported that she had some related lifting and walking restrictions.

193. Following Dr Giblin’s second examination of the plaintiff, he expressed the opinion that the described accident, which from the context, referred to the second accident, resulted in the plaintiff sustaining a soft tissue injury to the lumbar spine most likely relating to the L5/S1 disc. He expressed the view that as a result, the plaintiff remained unfit for work that involved repetitive bending or heavy lifting. He also noted that Dr Mobbs was giving the plaintiff advice about possible surgical treatment.

Dr Mobbs - Neurosurgeon - 22 November 2017

194. On 22 November 2017, at the request of her husband Dr Chan, the plaintiff was re-examined by Dr Mobbs after an interval of almost a year since his earlier consultation: Exhibit “A”, Volume 1, p 114.

195. Dr Mobbs identified the plaintiff’s post-accident problem as being L5/S1 discogenic and facetogenic pain. He noted she had been receiving treatment targeting L5/S1 with an excellent result. He suggested a repeat MRI scan and a further follow-up consultation after that to discuss longer term options: Exhibit “A”, Volume 1, p 740.

Prince of Wales Private Hospital – L5/S1 injection -24 November 2017

196. On 24 November 2017, the plaintiff was admitted to the Prince of Wales Private Hospital under Dr Mobbs for bilateral L5/S1 facet joint injections: Exhibit “A”, Volume 1, pp 566 – 570; p 647; p 677; p 744; p 827.

Dr Laughlin Dawes – Radiologist – 31 January 2018

197. On 31 January 2018, at the referral of Dr Mobbs, the plaintiff underwent a repeat MRI scan of the lumbar spine which was reported by Dr Laughlin Dawes as showing minimal facet joint arthropathy at the L5/S1 level, with some desiccation and loss of disc height. The diagnosis was focal disc herniation at L5/S1 without evidence of nerve root compression: Exhibit “A”, Volume 1, p 746.

Dr Joan Chen – Occupational Physician - 12 February 2018

198. On 12 February 2018, at the request of the CTP insurer, the plaintiff was reassessed by Dr Chen. She issued her very detailed 17-page second report on the same day: Exhibit “A’, Volume 1, pp 224 – 240.

199. This report from Dr Chen considered the occurrence and effect of the plaintiff’s second accident in which she reportedly suffered a bruised right knee and an injury to the lumbar spine. Dr Chen recorded a history from the plaintiff that her right knee injury had resolved after about a week after the second accident. She also recorded a history that the plaintiff’s lumbar problems had improved by the time of this assessment, but only temporarily, because of intervention by injections. Otherwise, the recorded history was that the plaintiff felt her condition was not stable and was gradually worsening.

200. Dr Chen reviewed the imaging reports by Dr Gerber and Dr Plehwe. She commented that “It would be appropriate for a radiologist who specialises in CT and MRI scan imaging to view and compare it to the CT scan of 22.3.2016 and the MRI scan of March 2017 for an opinion as to whether there is any noticeable difference in findings at the L5/S1 disc before and after the accident”.

201. That comment by Dr Chen is curious because there is no suggestion that either Dr Gerber or Dr Plehwe were not appropriately qualified to interpret those scans either on an individual basis, or comparatively.

202. It appears that Dr Chen made her above-cited comment because she was uncertain as to whether there had been a significant change in the imaging sequences. It appears from her report that she was unaware of the repeat lumbar MRI scan carried out on 31 January 2018 which was reported upon by Dr Dawes as showing loss of disc height, desiccation, and herniation, at L5/S1.

469. In the ensuing paragraphs the two identified elements of the plaintiff’s claim for past economic loss are considered and determined.

Past loss of earnings capacity - 14 December 2014 to the end of 2016

474. As to the initial period of claim between 14 December 2014 and the end of 2016, which was when the beauty department in her husband’s business ceased operating (T 46.44; T 59.44) the plaintiff continued to receive a salary from her husband’s business. Initially, this was without alteration, and subsequently in that period, it seems to have reduced commensurately with the reduced level of work in that business due to Dr Chan’s injuries. In that period in which the second accident occurred on 19 August 2016, she did some limited work in the Beauty Department of that business, which she acknowledged, and which was recorded in the various medical histories which followed the first accident.

475. In light of the fact that there is no explanatory evidence from the plaintiff’s husband as to the actual basis of those payments to the plaintiff in that period, including whether those payments included a component of refundable sick leave, I conclude that although the plaintiff has work restrictions as identified by Dr Giblin and Dr Conrad, this indicated that she had a partially impaired earning capacity. I find that in this particular period, such incapacity did not result in the plaintiff incurring a relevant financial loss, or any loss of superannuation.

476. There was no evidence that whilst in the employ of her husband’s business the plaintiff was being paid superannuation benefits.

477. After the first accident on 14 December 2014, the injuries incurred by Dr Chan himself resulted in a significant decline in his business, along with a commensurate decline in the clientele and work of the Beauty Department of that business.

478. Consequently, in that period in which Dr Chan’s own work declined, ultimately, he was not able to continue to provide the plaintiff with employment and remuneration as he had done beforehand, noting that his employment of his wife in those circumstances had amounted to what I consider to have been sheltered employment where, since 14 December 2014, and until the end of the 2016 financial year, when the business ceased trading and paying salaries, she did not incur any actual loss of income despite having incurred a reduced work capacity and despite working restricted hours and performing restricted duties.

Past loss of earnings capacity –19 August 2016 to 27 July 2023

479. I find that after the plaintiff’s second accident, in which she suffered significant trauma to her lower back, the impairment in her capacity to carry out the work tasks and maintain the postures required of her in her work with customers in the beauty department or in equivalent work, was even more substantially impaired, but not destroyed, as was submitted on her behalf.

480. That conclusion is supported by the history Dr Conrad obtained from the plaintiff when he examined her on 15 February 2017 and recorded that she had been working about 10 hours per week as a beautician some 6 months after the second accident which occurred on 19 August 2016.

481. Any assessment of past economic loss must give effect to the opinions of Dr Giblin and Dr Conrad, each of whom had in effect have identified in the plaintiff a residual capacity to perform restricted work duties for restricted hours. On the evidence, doing the best I can to be fair to the plaintiff and not unfair to the defendants, I consider that those opinions should equate to a residual earning capacity of about 35 per cent, with a guarded prognosis for improvement.

482. Those conclusions beg the question as to the basis upon which the assessment of this second period of claimed loss should be undertaken.

483. In my view, an assessment at the rate which is the net equivalent of $190,000 or $200,198 per annum seems inappropriate and unreasonably excessive because the plaintiff had been favourably employed in that position by her husband and that position no longer existed due to the slow down and the eventual closure of the business. Consequently, I accept the plaintiff’s alternative quantification proposition, which involves an assessment based upon net average weekly earnings for this subsequent period.

484. On that approach, the rate of average weekly earnings have been agreed at $1,297 per week net. A loss of 65 per cent of that capacity is the equivalent of a loss of $843 per week net.

485. The period between 19 August 2016 and 26 July 2023 is the equivalent of 360 weeks.

486. For the reasons that follow, not all that period should be the subject of a monetary assessment for past economic loss.

487. In my view, a series of discounts must necessarily be identified and applied to the process as offsets to reflect, first, the contact restrictions in place which prevented work from continuing during the COVID pandemic, and secondly, the period of 176 weeks between 1 December 2019 and 24 April 2023 during which the plaintiff returned to live in China. The calculation of past economic loss should not apply to the period during which the plaintiff removed herself from this jurisdiction. This yields a discounted balance of 184 weeks for assessment.

488. On that approach, a loss of $843 per week over 184 weeks identifies a calculation in the amount of $155,112, but this amount requires an offset because the plaintiff arrived back in Australia on 24 April 2023 and she has not sought work from that time.

489. Accordingly, as the period between 24 April 2023 and the hearing on 27 July 2023 is 13 weeks, that period should be excised from the past economic loss calculation. The assessment should therefore be for 171 weeks. On that basis, the economic loss calculation should be in the reduced amount of $144,153, subject to a further discount, as follows.

490. On account of imponderable factors, I consider that the sum of $144,153 should be discounted to the rounded down sum of $125,000. An allowance for employer funded superannuation at 11 per cent ($13,750) should be added to this sum to yield the sum of $138,750.

Assessment of past loss of earning capacity

491. I assess the plaintiff’s damages for past economic loss, including superannuation, in the amount of $138,750.

Future economic loss and superannuation thereupon

492. The plaintiff made an initial claim for future economic loss, including superannuation, in the amount of $2,226,529: Exhibit “A”, Volume 1, p 35.

493. In written submissions made on 9 August 2023, the plaintiff’s reduced claim for future economic loss was advanced on two bases, the first being $2,226,529, and the second being $1,106,439.

494. The first basis involved the projection of a claimed loss of $2,610 net per week over 35 years less a 15 per cent discount for vicissitudes plus an allowance of 14.49 percent for employer funded superannuation contributions.

495. In contrast, whilst the primary submission of the defendants was that no such damages should be allows, it was conceded that the evidence provided scope for a lump sum buffer assessment of between $200,000 and $300,000.

496. The difficulty for assessment of the plaintiff’s future loss of earning capacity is that she is yet to test her residual earning capacity to ascertain its limits. In those circumstances, the best guide to assessment is found in the review of the unchallenged medical opinions on that subject, which has led to a finding of a loss of capacity at 65 percent.

497. At age 33 years, the plaintiff has a further 27 years of working life ahead of her to her intended retirement age of 60 years: T16.3 – T16.14. Adopting the measurement of loss of capacity of 65 percent of average weekly earnings as the correct rate for assessment as the salary previously paid by Dr Chan has ceased to be relevant, where the 27 year 5 percent multiplier is 783.0, the projection of a weekly loss of $843 yields the amount of $660,069 before appropriate discounts are applied.

498. In my view, the aggregate of a number of discounting factors should be applied, including some imponderables, which means the discount should be greater than the conventional 15 percent discount. These include the factor of the plaintiff’s previous suicide attempt, and uncertainty over the plaintiff’s future domicile in the longer term. In those circumstances, I consider the appropriate discount to be 40 percent.

499. In my view the uncertainty of the plaintiff’s future domicile should preclude any allowance for the loss of employer funded superannuation contributions in respect of the claim for future economic loss.

500. On that approach to assessment, in round figures, when the sum of $660,069 is discounted by 40 per cent, this yields the rounded sum of $396,000.

501. I assess the plaintiff’s damages for future economic loss, including superannuation, in the amount of $396,000.

Past domestic assistance

502. Initially, the plaintiff made a claim for past domestic assistance in the amount of $141,320: Exhibit “A”, Volume 1, p14. That claim, comprised seven elaborate elements of calculation from the time of the first accident to date. The calculation was later increased to $151,190: Exhibit “A”, Volume 1, p36.

503. In subsequent written submissions delivered on 9 August 2023, the plaintiff’s claim for past domestic assistance, which, based on the same seven elements, was reduced to $78,260.

504. In contrast, the defendants submitted that the evidence disclosed that the plaintiff required no additional care to that which she was receiving prior to the first accident. The defendants further submitted that nothing had resulted from the second accident which changed that position.

505. The defendants supported that submission by pointing to the history obtained from the plaintiff by Dr Chen which confirmed that she had continued to be able to do her domestic chores after the accidents: Exhibiit “A”, Volume 1, p 219.

506. Whilst the defendants submitted that, because of the analysis proffered above, no monetary allowance should be made for past or future domestic assistance, the past and future components of the care claims must nevertheless be considered separately.

507. The defendant’s submissions criticising the plaintiff’s claim for damages for past domestic assistance were also founded upon inconsistencies to be found in the evidence of the plaintiff.

508. The primary inconsistency was revealed when the plaintiff was cross-examined upon the content of paragraph 110 of her first evidentiary statement (Exhibit “A”, Volume 1, p 131), which created the impression that domestic assistance had been engaged because of the deleterious effects of her injuries on her ability to carry out domestic tasks.

509. That impression was traduced in the cross-examination of the plaintiff, where she agreed that a nanny who also did housework was employed before her first accident: T21.31; T22.46; T78.13 – T78.30.

510. In light of that evidence, I found myself unable to accept the plaintiff’s evidence to the effect that she had been carrying out about 3 hours of housework per day prior to the injuries she sustained in the first accident: T18.49; T19.17.

511. The plaintiff’s claim for damages for domestic assistance after her second accident was also the subject of similar confusion within her evidence. A further complication arose from the fact that the family spent time in Shanghai between December 2019 and April 2023.

512. I accept the submissions of the defendants to the effect that the plaintiff gave unreliable evidence on the issue of her claimed need for post-accident domestic assistance from either of the two accidents which are the subject of this litigation. I do not regard Dr Chan’s evidence in his statement to be a reliable source for the corroboration of the plaintiff’s evidence for this element of her claim because the basis of his knowledge for that evidence as not been satisfactorily demonstrated.

513. For the reasons that will be identified in the consideration of the plaintiff’s claim for future domestic assistance it is beyond controversy that the medical opinions estimating the extent of the need for such assistance cannot be considered as being determinative of the issue.

514. Accordingly, I decline to assess any damages in respect of the plaintiff’s claim for the value of past domestic assistance.

Future domestic assistance

515. The plaintiff made an initial claim for future domestic assistance in the amount of $146,118 after discount for vicissitudes. That claim was based on the projected assumption of 6 hours per week of assistance provided gratuitously, costed at $35 per hour, or alternatively, 4 hours of commercial assistance per week at $40 per hour: Exhibit “A’, Volume 1, p 36.

516. In written submissions delivered on 9 August 2023, the plaintiff’s claim for future domestic assistance was quantified in the reduced projected mount of $56,056. That amount was on the assumed basis of a projected need for 2 hours per week of domestic assistance per week at a commercial cost of $40 per hour discounted for potential adverse vicissitudes.

517. In contrast, and consistent with the defendants’ approach to the plaintiff’s claim for damages for past domestic assistance, the defendants maintained their submission that no damages should be awarded for future domestic assistance.

518. The present factual context for that claim is that the plaintiff and her 9 year old daughter presently live in a 3-bedroom rented apartment in Darling Point in Sydney. Her own mother in Shanghai pay the rent. She has lived in that apartment with her daughter since April 2023 so that her daughter can obtain an education at a nearby private school, which she prefers to the education that her daughter was receiving in China, particularly as her daughter is an Australian citizen and because she experienced some personal difficulties when she was being schooled in China.

519. Those living arrangements are in the context where the plaintiff’s husband Dr Chan continues to live in Shanghai and is therefore unavailable to assist with the domestic tasks. Those circumstances appear to be the current and indefinite family plan: T11.50.

520. In the circumstances, the plaintiff said that in view of her disabilities, friends come to her home three times per week to assist her with her household tasks: Exhibit “A”, Volume 1, p 93.

521. The plaintiff’s evidence was not particularly descriptive of the housework tasks she was no longer able to carry out because of the effects of the two accidents in which she sustained injury. The friends who provide her with the assistance she claims to have received were not called to give evidence of the tasks they performed for her.

522. Given the credibility and reliability concerns that arose from the evidence of the plaintiff, it is instructive to refer to the medical opinions which deal with such matters.

523. Dr Chen’s opinions on the issue of domestic assistance were of limited utility in resolving this issue because her overall opinion on the plaintiff’s condition was tentative and inconclusive, as has already been observed.

524. On 9 September 2020, Dr Conrad gave the unchallenged opinion that the plaintiff should not lift weights of between 2 and 5kgs and should not engage in repetitive lifting or bending, which seem to be activities within a range of commonplace domestic tasks. In view of those restrictions, he expressed the view that the plaintiff might need some 6 hours per week of household and childcare assistance in the home: exhibit “A’, Volume 1, p 87. At this point it should be noted that the cost of childcare is outside the scope of the plaintiff’s claim for damages.

525. On 19 July 2023, Dr Giblin noted the plaintiff’s account of domestic assistance being provided by her friends regarding household activities such as vacuuming, mopping, cleaning the bathroom, and making the beds. On that issue, the plaintiff’s solicitor specifically asked Dr Giblin whether the plaintiff’s disabilities would restrict her with any of the activities of daily living, or any household tasks. Properly, Dr Giblin responded to that question with the suggestion that the question would be best addressed by an Occupational Therapist: Exhibit “A”, Volume 1, p 93; p 94.

526. Opinions on the question of time quantification of an injury-related need for domestic assistance is a matter that requires expertise. In this case, whilst Dr Conrad and Dr Giblin are undoubtedly qualified to express medical opinions on the advisability or otherwise of the plaintiff performing certain physical tasks, there is no reliable evidence to suggest that either of those experts are suitably qualified to provide opinions as to the reasonable time estimates for performing specific household tasks.

527. Impermissible guesswork should not replace reasoned and suitably qualified expert evidence on such questions: Sampco Pty Ltd v Wurth[2015] NSWCA 117, at [92(b)]: Boral Bricks Pty Ltd v Cosmidis; Boral Bricks Pty Ltd v DM & BP Wiskich Pty Ltd [2013] NSWCA 443, at [93].

528. In cases such as this, where the state of evidence does not permit a reasoned non-speculative quantification of a claimed and otherwise justifiable need for domestic assistance, the allowance of an economic “cushion” is appropriate: Boral Bricks Pty Ltd v Cosmidis; Boral Bricks Pty Ltd v DM & BP Wiskich Pty Ltd [2013] NSWCA 443, at [100].

529. In this case, the foregoing approach is justified because the above-cited medical opinions have identified certain physical tasks that are contra-indicated for the plaintiff, such as lifting and bending, which are within a foreseeable range of domestic activities, such as when moving furniture, presumably during spring cleaning. In my view, to meet that need, the plaintiff should be compensated in a broad-brush manner for several hours of annual paid assistance over her remaining statistical life span of approximately 53 years, but significantly discounted for the possible impact of imponderables such as the plaintiff’s long term domicile, and potential adverse vicissitudes.

530. In that regard, doing the best I can to be fair to the plaintiff and not unfair to the defendants, I consider an appropriate buffer or cushion to allow for such damages in the sum of $10,000.

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

Future out-of-pocket expenses

532. The plaintiff initially made a claim for future out-of-pocket expenses in the sum of $81,672: That claim was based on a lifetime projection of an assumed recurrent treatment cost of $58 per week ($46,122) plus an estimated deferred cost of $35,550 for future surgical treatment: Exhibit “A”, Volume 1, p 32; p 51.

533. In written submissions on behalf of the plaintiff on 9 August 2023, her claim for future out-of-pocket expenses was identified in the reduced amount of $46,122, thereby abandoning the earlier claim for future surgical treatment.

534. The defendants’ submissions did not address this head of damage, presumably on the basis that it was for the plaintiff to prove this component of her claim.

535. In light of the vagueness and lack of explanatory detail in the plaintiff’s evidence as to her post-surgical treatment and the costs associated with that treatment, I find her evidence alone to be an unreliable and unsatisfactory source for defining and costing her post-accident future treatment needs.

536. In my assessment of the evidence, insight into the plaintiff’s likely future treatment costs is most reliably discerned from a review of the medical reports which post-dated her spinal surgery on 5 July 2019 for discectomy and L5/S1 disc replacement. That review now follows.

537. The post-operative reports of the plaintiff’s treating neurosurgeon, Dr Mobbs are not definitive on the issue of the plaintiff’s future treatment needs. This is because his initial post operative reviews charted the plaintiff’s progress but did not define her future treatment needs.

538. The last report from Dr Mobbs is dated 2 October 2019. That report referred to a proposed “catch up” consultation in six months in the context of proposed fresh radiological studies. Dr Mobbs ended his report by stating that “it is fantastic news that she is doing so well”. He copied that report to an entity referred to and described as Elite Spinal Physio and Pilates in Bondi Junction: Exhibit “A”, Volume 1, pp 785-786.

532. Ultimately, it transpired that the plaintiff did not pursue that referral because she was in China, hence the absence of a report from that entity.

533. In reviewing the range of possible injury-related treatments the plaintiff is likely to have in the future, it seems that the plaintiff has already had the assistance of specialists in pain management. Therefore, absent specific supporting evidence of an ongoing need for that element of management, I do not propose to make any specific allowance for treatment at a pain management centre.

534. There was no recent report from Dr Mobbs following the foreshadowed “catch up” consultation. The state of the evidence of Dr Mobbs is relatively neutral on the issue of future treatment, with the exception that it may be inferred from the fact he sent a copy of his report to Elite Spinal Physiotherapy and Pilates that he intended the plaintiff should have therapy from that entity, at least in the short term, but in view of the time lapse since that recommendation, absent supporting evidence, it seems that recommendation is no longer current.

535. The post-surgical report of Dr Conrad dated 9 September 2020 suggested that the plaintiff needs conservative treatment comprising physiotherapy and medication, and possibly massage therapy: Exhibit “A”, Volume 1, p 87.

536. The post-surgical report of Dr Giblin dated 19 July 2023 stated that no further surgical treatment was anticipated. He did not see the need for the plaintiff to have regular physiotherapy but expected it would be needed once per year involving 4 to 6 treatments on those occasions. He thought she would need to see her general practitioner monthly, presumably for the prescription medications which the plaintiff described in her evidence: Exhibit “A”, Volume 1, p 94.

537. I do not consider the reports of Dr Chen to be reliably informative on the question of the plaintiff’s likely future treatment needs because her final opinion on causation of the plaintiff’s back complaints was left inconclusive.

538. The court book contains a Medicare schedule of payments made for the plaintiff’s past treatment totalling $5,537.70. That amount is more than the submitted claim for past out-of-pocket expenses: Exhibit “A”, Volume 2, pp 1283 – 1300. In my view, in this case, that record of past payments for treatment does not form a reliable guide to assessing the likely cost of the plaintiff’s future treatment needs.

539. Drawing upon those sources of evidence, I am left without useful assistance to assess the plaintiff’s entitlement to damages for future treatment.

540. The plaintiff’s Medicare schedule does not identify the cost of a consultation with a general practitioner. It seems this is so because, unusually, the plaintiff’s husband was noted as being her referring practitioner.

541. The plaintiff is now aged 33 years. She has a submitted estimated statistical median life span of approximately 53 years, which attracts the 5 per cent multiplier of 988.9.

542. Notwithstanding the lack of evidence as to the components of cost the plaintiff is likely to incur in the future, fairness requires that I do the best I can to make a reasonable lump sum buffer allowance for such costs to reflect the evidence of her future needs without undue speculation.

543. In taking that approach, recognising the complexity of the plaintiff’s ongoing complaints, it is likely she would need non-standard consultations with a general practitioner which estimate would involve a cost of the order of $75 per consultation. This is the equivalent of $ 900 per annum or $17.30 per week.

544. Taking a similar broad-brush approach to the cost of the several medications the plaintiff takes, I estimate this would incur a likely cost of about $60 per month. This is the equivalent of $720 per annum or $13.84 per week.

545. Taking a similar broad-brush approach to the cost of annual 6 physiotherapy sessions per annum at an estimated cost of $100 per session, his is the equivalent of $600 per annum or $11.53 per week.

546. The total of these elements is $42.67. The projection of that sum at 5 percent over 53 years (988.9) less 15 percent for vicissitudes yields the sum of $35,866.

547. As the plaintiff has and spinal surgery and progress imaging, I consider it would be reasonable to add allowances for intermittent specialist consultations for review of the stability of the device implanted in her spine, including occasional imaging to check on the position of her prosthetic disc spacer, and pain management assistance. The state of the evidence does not permit a rational assessment of the likely cost of therapies the plaintiff may require in the future.

548. Having regard to those imponderable factors, including taking into account the possibility that the plaintiff may not fully or at all pursue the recommended treatments, and questions of future domicile which would affect costings, and taking a necessarily broad brush approach that is both fair to the plaintiff and not unfair to the defendants, doing the best I can on the state of the evidence, I propose to allow a discounted and rounded down buffer amount to cover unquantifiable possible future treatment expenses in the sum of $25,000.

Past out-of-pocket expenses

556. The plaintiff initially made a claim for past out-of-pocket expenses in the sum of $39,387, $5,537 of which was documented in a Notice of Charge issued by Medicare.

557. On 27 July 2023, at the conclusion of the evidence in the plaintiff’s case, the absence of an agreement on the quantum of past out-of-pocket expense was drawn to the attention of counsel. This was in circumstances where, on medical advice, the plaintiff gave evidence of having had massage therapy over an extended period, both in Australia and in China.

558. On 15 August 2023, on resumption of the hearing for the purpose of submissions, no further evidence was called, or agreements announced on that issue. Ultimately, the plaintiff’s written submissions filed on 9 August 2023, the plaintiff’s claim for past our-of-pocket expenses was identified in the undifferentiated amount of $5,438.

559. That submission claim did not sit well with the plaintiff’s evidence that she had been paying for ongoing medically advised massage treatment of her post-accident problems over a considerable period. It is not clear as to whether that treatment related only to the massage therapy provided by Mr Hughes: Exhibit “C”. Since there was no evidence as to the frequency and cost of those treatments, this element of the claim must be limited to what has been proven or conceded.

560. The defendant’s written submissions filed on 9 August 2023, at paragraph 163, foreshadowed that the plaintiff’s treatments expenses would be dealt with in oral submissions. On the state of the evidence and the limited extent of the claim as described above, understandably, no further submissions on this issue were made on behalf of the defendants.

561. On 29 August 2023, when the hearing resumed for further submissions, the defendants accepted that the plaintiff’s out-of-pocket expenses were the $5,437 that was claimed, plus the sum of $1,085 paid by the CTP insurer as shown in Exhibit “C”. The total of those amounts is $6,522, for which the defendants are entitled to a credit of $1085: s 83 of the MAC Act.

562. Accordingly, I assess the plaintiff’s damages for past out-of-pocket expenses in the amount of $6,522.

Summary of damages assessment

563. In summary, my damages assessment is as follows:

Heads of damages	Assessment
(a) Past economic loss and related superannuation	$138,750
(b) Future economic loss and related superannuation	$396,000
(c) Past domestic assistance	Nil
(d) Future domestic assistance	$10,000
(e) Future out-of-pocket expenses	$25,000
(f) Past out-of-pocket expenses	$6,522
Total	$576,272

Disposition

564. The plaintiff has established her entitlement to a verdict in the amount of $576,272 and a judgment in the amount of $575,187 after allowing a credit to the defendant of $1,085.

Costs

565. The plaintiff has succeeded in her claim against the defendants. It follows that the defendants should pay her costs of the proceedings on the ordinary basis unless a party can show an entitlement to some other costs order.

Orders

566. I make the following orders:

1. Verdict for the plaintiff in the sum of $576,272;

2. Judgment for the plaintiff in the sum of $575,187;

3. The defendants are to pay the plaintiff’s costs of the proceedings on the ordinary basis unless a party can show an entitlement to some other costs order;

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

5. The exhibits may be returned.

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Decision last updated: 13 September 2023