Benjamin Peter Fanelli by his next friend Tammy Fanelli v Rebecca Kelly Smith

Case •

[2019] NSWDC 191

•

15 May 2019

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: Benjamin Peter Fanelli by his next friend Tammy Fanelli v Rebecca Kelly Smith [2019] NSWDC 191
Hearing dates: 13 May 2019
Date of orders: 15 May 2019
Decision date: 15 May 2019
Jurisdiction:Civil
Before: Wilson SC DCJ
Decision:

At [126]

Catchwords: CIVIL – liability not in issue – assessment of damages – extent of pre-existing conditions in issue
Legislation Cited: Civil Liability Act
Civil Procedure Act 2005
Motor Accidents Compensation Act 1999
Cases Cited: Purkess v Crittenden (1965) 114 CLR 164
Watts v Rake (1960) 108 CLR 158
Texts Cited: None
Category:Principal judgment
Parties: Benjamin Peter Fanelli by his next friend Tammy Fanelli (Plaintiff)
Rebecca Kelly Smith (Defendant)
Representation:

Counsel:
Mr R de Meyrick (Plaintiff)
Ms R Bianchi (Defendant)

  Solicitors:
CBD Law (Plaintiff)
Moray & Agnew (Defendant)
File Number(s): 2017/56167
Publication restriction: None

Introduction

  1. The Plaintiff suffered injuries as the result of a very serious motor vehicle accident which occurred on 22 July 2015. The photographs tendered in the Plaintiff’s case (Exhibit B) demonstrated that the accident caused substantial damage to both vehicles involved.

  2. Although liability was not in issue at the hearing, it is worth noting that the accident followed the Defendant crossing onto the incorrect side of the road for a lengthy period of time, prior to the collision occurring. During that period, the Plaintiff, aged 11 years of age, was sitting in the front passenger seat of the vehicle driven by his mother. He witnessed the events leading up to the inevitable collision and was, understandably, concerned for his mother’s welfare.

  3. His mother, acting protectively of her children, steered her vehicle to the extreme left hand side of the road, in order for the brunt of the impact be suffered on the driver’s side, in an effort to spare injury to the Plaintiff. Regrettably, injury was, however, suffered.

  4. The Plaintiff was born on 27 November 2003 and is 15 years of age. He was not called to give evidence. In answer to the direct question from the Court, the Defendant conceded that it would not make any adverse comment about the Plaintiff’s failure to give evidence. His mother gave evidence which was compelling.

The Injuries

  1. The Plaintiff suffered the following injuries, which are referred to in the various medical reports and summarised in the Statement of Particulars:

  1. cervicothoracic junction lesion pain, that is, pain in the area of the junction between the cervical and thoracic spine;

  2. cervicothoracic pain, radiating to both shoulders;

  3. pain in his lower back;

  4. back and neck pain, aggravated by certain activities, for example riding a motorbike, which the Plaintiff does frequently, living on an acreage with his family;

  5. restriction in range of motion in back and neck with some muscle tension; and

  6. psychological injury, including post-traumatic stress disorder and anxiety.

The Claim

  1. The Plaintiff was assessed at below 10% for both physical and psychological injuries and is, therefore, not entitled to damages for non-economic loss.

  2. The claim comprises the following heads of damages:

  1. past out of pocket expenses. These have largely been agreed, see below;

  2. future out of pocket expenses. These are disputed by the Defendant; and

  3. a buffer for economic loss, principally as a result of the Plaintiff leaving school aged 14 years old, before the end of Year 9 and also relying on his ongoing psychiatric conditions as giving rise to an impairment which will be productive of loss.

The Medical Evidence

  1. This falls into five categories:

  1. the historical, pre-accident medical evidence;

  2. the medical treatment records following the accident;

  3. the Plaintiff’s Medico-Legal evidence;

  4. the Defendant’s Medico-Legal evidence; and

  5. the reports generated by independent assessments performed at the request of MAS.

Historical Pre-Accident Medical Evidence

  1. The historical pre-accident medical evidence is contained in Exhibit A, behind tabs A, B, C and D.

  2. The Plaintiff’s mother, Tammy Fanelli (also his tutor) gave evidence and was cross-examined about his historical medical conditions. I found her evidence to be frank and persuasive. She readily accepted propositions put to her in cross-examination concerning her son’s pre-existing conditions. What she did not accept was that any of those conditions would have precluded the Plaintiff from completing the School Certificate at the end of Year 10.

  3. The first report relied upon was a report by Jillian Zocher, a Specific Learning Difficulty Specialist. Her report followed an assessment of the Plaintiff on 1 July 2011, when the Plaintiff was just 7 years of age. At the time he was attending St Patrick’s Catholic Primary School at East Gosford. The reason for referral was stated in the first paragraph as follows:

“Mrs Fanelli referred Benjamin for an assessment as she is concerned that he is behind in his learning as he seems to have fallen even further behind. She is also concerned about his anxiety.”

  1. The Plaintiff was subjected to extensive testing. The conclusions reached by Ms Zocher demonstrated that the Plaintiff was mostly performing within the average range for vocabulary, diamonds and verbal analogies for underlying ability. He achieved within the low-average for rapid naming skills and below average for matrices (sequential reasoning), working memory, spelling sight word knowledge and decoding skills. The assessor was satisfied that the Plaintiff’s presentation and results on testing displayed characteristics of a specific learning difficulty, namely dyslexia. Helpful recommendations were made by Ms Zocher, to ameliorate the effects of that condition.

  2. The second pre-existing condition was explained in a report by Dr Joan Brien of the Irlen Diagnostic Clinic in Newcastle. Her report dated 20 October 2011 started by noting that the Plaintiff had been diagnosed as having the visual perception dysfunction called Irlen syndrome. It was described as a problem with the efficient processing of visual information, not an optical problem. Dr Brien stated that the dysfunction principally affects reading, study and writing/spelling activities. The most common symptoms may include poor spelling, slow reading rate, inaccurate reading, inadequate basic reading skills, poor reading comprehension and inability to undertake continuous reading. Again, various recommendations were made to combat the effects of this condition.

  3. The third pre-existing condition was referred to in a report tendered by the Plaintiff (Exhibit A-tab C). In a report by Lana Meggs, Speech Pathologist, dated 11 July 2012, the author of the report identified the following weaknesses which may affect him in the following areas:

  1. difficulty understanding long sentences and obtaining information from long paragraphs, or parent/teacher instructions;

  2. difficulty remembering what he has been told;

  3. disengagement in verbally loaded tasks in the classroom;

  4. difficulty telling about events that have happened in a logical way; and

  5. difficulty with reading spelling.

  1. The last medical report which pre-dates the accident is a report by James Sleeman, Optometrist, dated 4 February 2015. Mr Sleeman undertook a number of tests and concluded that the profile demonstrated by the Plaintiff would suggest that he would struggle reading in a classroom. Again, recommendations including colour precision tinted lenses were made in order to ameliorate the negative effects.

  2. This material was put to the Plaintiff’s mother in the course of giving evidence. She did not shy away from the fact that her son suffered the conditions referred to. I find that, prior to the accident, the Plaintiff suffered from the following medical conditions:

  1. dyslexia;

  2. Irlen syndrome; and

  3. language impairment.

Treatment Records following the accident

  1. Following the accident, the Plaintiff was taken to Royal North Shore Hospital where he was admitted and discharged the same day. His Glasgow Coma Scale score and most other examinations proved to be normal. The Hospital’s Discharge Referral notes referred to the following injuries:

  1. superficial bruising of abdominal wall;

  2. seatbelt pattern grazes and bruising to chest, shoulder and worst over lower abdomen;

  3. sternal tenderness, absent any evidence of haematoma or fracture;

  4. mild back tenderness on deep inspiration but no boney tenderness in mid line; and

  5. sternal pain.

  1. It is obvious from the Hospital notes that the physical injuries suffered by the Plaintiff in the subject accident were assessed as being minor on the day of the accident.

  2. On 14 October 2015, the Plaintiff attended the R.E.A.D. Clinic, where he was assessed by Jennifer Hadden. The following notations in the clinical notes are relevant to the current matter:

  1. the Plaintiff stated that every day he wakes up he worries about being in another car accident;

  2. he worried about his father having an accident;

  3. he worried about his mother driving again and having an accident;

  4. he realised that his mother could have died in the subject accident;

  5. referenced death;

  6. stated that he could not sleep, thinking about the accident and the oncoming car;

  7. he saw the car straight towards them, the bang, the screaming and bleeding to his mother’s face;

  8. he recalled there being smoke everywhere;

  9. he was shaking;

  10. he nearly fainted he was so shocked;

  11. he thought his mother was going to die;

  12. his mother was stuck in the car and he thought that the car would catch on fire;

  13. whenever he drove past the spot on the road he felt sick;

  14. he stills thought about the accident every night;

  15. the other driver was stuck under the dashboard;

  16. he was more careful driving around the farm, as he was scared it was going to happen again; and

  17. he experienced flashbacks.

  1. The Plaintiff also relied on a report by Dr Moreland, General Practitioner, dated 15 October 2015, to which was attached a Mental Health Plan. The presenting issue was identified as being “post-traumatic stress post MVA 4 weeks ago” and the health problems were identified as being “poor sleep and worrying about mothers injuries and risk of another car accident”. Significantly, in terms of the claim as framed for economic loss, the Mental Health Plan refers to the fact that the Plaintiff was “not wanting to attend school”.

  2. The plan referred to the goals as being improved symptoms, by way of cognitive behavioural therapy and counselling.

  3. On 12 April 2016, the Plaintiff was assessed again by Jennifer Hadden. Testing demonstrated that the Plaintiff’s condition was “very elevated”, including emotional distress, upsetting thoughts, worrying, social problems, defiance/aggressive behaviours, academic difficulties, language, math, hyperactivity/impulsivity, separation fears, perfectionist and compulsive behaviours, violent potential indicator and physical symptoms. Having regard to the testing, the author of the report expressed the opinion that the results probably met the indicators for the following DSM-V symptoms:

  1. ADHD, predominantly inattentive presentation;

  2. conduct disorder;

  3. oppositional defiance disorder;

  4. major depressive episode;

  5. manic episode;

  6. generalised anxiety disorder;

  7. separation anxiety disorder;

  8. social anxiety disorder; and

  9. obsessive compulsive disorder.

  1. These conclusions were drawn from testing known as the Connor’s Comprehensive Behaviour Rating Scales-Parents, which is an assessment tool to obtain the parent’s observations about his or her child’s behaviour. The test results clearly indicate that, at least from the perception of the Plaintiff’s parents, he suffered from a number of conditions and disorders, which would have impacted his life, many of which were related to the subject accident.

  2. The Plaintiff also tendered a summary of a document called “Negative Incidents from Ben Fanelli 2016”. They demonstrate a pattern of behaviour throughout the first part of 2016. The incidents demonstrate that the Plaintiff was disruptive and misbehaved at school, showing a lack of respect for both teachers and students.

  3. A report by Dr Bakshi, dated 18 April 2016, was also tendered in the Plaintiff’s case. It indicated that he reviewed the Plaintiff on 18 April 2016 in the company of the Plaintiff’s mother. He had been seen there a week earlier as his mother was concerned “regarding the change in his behaviour”. The result of the assessment was that Dr Bakshi started the Plaintiff on a prescription of short acting Ritalin, on a twice daily dose. That has since been ceased and herbal medication is used.

  4. A further report of Jennifer Hadden, dated 16 May 2016, was tendered. I note that the author of the report recorded that “the feedback provided to me today by Ben’s mum is that Ben’s classroom behaviour has improved significantly”.

  5. She further recorded:

“What has happened for Ben in the last week however is that there was another major car accident in the local area over the weekend which involved five family members from the neighbouring property. Two of the occupants were killed in the accident. Ben was aware of the accident the morning after it occurred as he listened to it on the radio news. Ben rang his mother in a panic as she was driving that same road on her way to watch his brother play football.”

  1. As she continued:

“This follows on from Ben viewing photographs from their own accident which he came across on Instagram. Ben had told his mother that he had photos on his phone of the accident but didn’t want to show her for fear of upsetting her. His mother insisted she see the photos and they were both shocked by the amount of damage to their vehicle.

  1. Ms Hadden expressed the opinion that the two accidents caused significant distress and her letter, addressed to the CTP Insurer, requested funding for additional counselling sessions.

  2. In a report addressed to the Kariong Mountains High School, Andrew Sozomenou, Senior Psychologist, summarised the Plaintiff’s school performance in the period Kindergarten to Year 6 after examining the reports for those years. In respect of the motor vehicle accident, Mr Sozomenou stated the following:

“Ben was involved in a severe motor vehicle accident (his mother was driving, and young brother was in the car), in which the driver in the other car was at fault, and died at the scene. Ben and his mother, both sustained significant injuries. Tammy reported that Ben “freaked out” after the accident, as Tammy was unable to free herself from the vehicle. Ben continued to express concern and distress at the thought that his mother was “trapped”. She noted that throughout the ordeal, Ben continued to scream “get my Mum out!” of the car.

After the accident Ben’s behaviour at school had significantly deteriorated and he had become more aggressive, had reported more concerns with impulse control, poorer concentration in class and his ability to complete schoolwork reduced. Post car accident, Ben had received a number of school suspensions. Prior to the accident, Ben reported that he had never been suspended, even though he struggled in a school environment.”

  1. In expressing his opinion, Mr Sozomenou stated that:

“The traumatic events of the car accident that Ben had been involved in had impacted his ability to cope and manage his emotions, and it made him overly protective of his mother and himself. As a result, Ben’s previous behaviour, oppositional and argumentative, had escalated, and it he had become more aggressive. His ability to manage his emotions, control his impulses, and manage his behaviour and attention in the classroom had also deteriorated.”

  1. Mr Sozomenou diagnosed the following conditions by reference to DSM-V:

  1. attention-deficit hyperactivity disorder-inattentive type (ADHD);

  2. oppositional defiant disorder; and

  3. post-traumatic stress disorder.

  1. In a second report of the same date, but addressed to Dr Bakshi, the consulting paediatrician, Mr Sozomenou provided further information of a clinical nature, pertaining to the conditions from which the Plaintiff suffered following the accident. Whilst at all times acknowledging his pre-accident deficiencies, at the time of testing, the Psychologist considered the mother’s ratings of the Plaintiff’s conditions as “very elevated” in the following categories:

  1. emotional distress;

  2. upsetting thoughts/physical symptoms;

  3. worrying;

  4. social problems;

  5. defiance/aggressive behaviours;

  6. academic difficulties;

  7. language;

  8. math;

  9. hyperactivity/impulsivity;

  10. separation fears;

  11. perfectionist and compulsive behaviour;

  12. violence potential indicator;

  13. physical symptoms;

  14. ADHD, predominately inattentive presentation;

  15. ADHD, predominately hyperactive impulsive presentation;

  16. conduct disorder;

  17. oppositional defiant disorder;

  18. major depressive disorder;

  19. manic episode;

  20. generalised anxiety disorder;

  21. separation anxiety disorder;

  22. social anxiety disorder;

  23. obsessive compulsive disorder; and

  24. autism spectrum disorder.

  1. The report also includes the Plaintiff’s teachers’ ratings in relation to the same categories, many which were also referred to as “very elevated”, “elevated” or “high average”. It is plain that both the Plaintiff’s mother and his teachers recognised a number of symptoms of a psychological nature, which bore upon his capacity to perform and behave at school.

  2. Ms Hadden further reported on 18 September 2016. She confirmed the diagnosis of PTSD, noting flashbacks to the accident and high anxiety when driving along the same road. His sleep was also affected.

  3. Specifically and of relevance to the claim for economic loss, Ms Hadden recorded “anxiety whilst in a car has prevented school attendance” and, later “highly anxious as a passenger particularly on the road to school where accident occurred” and further “some changes in behaviour at school, need more information from school”.

  4. The reference to difficulties attending school was repeated and Ms Hadden identified the aim of treatment to “reduce anxiety regarding car travel to school and regarding safety on roads in general”. She proposed six sessions conducted fortnightly at a total cost of $1,065.00 inclusive of GST.

  5. The Plaintiff also relied upon a report by Merlene Dilger, of Better Health Practices, dated 2 June 2017. Ms Dilger recorded that the accident left the Plaintiff with:

“upper back and neck dysfunction … On examination [he] presented with anterior shoulder posture and forward head carriage secondary to loss of inter-vertebral function in his upper thoracic spine, and also to his cervical spine.”

  1. Chiropractic treatment was requested by the clinic of the insurance company but declined.

  2. In the letter of 2 June 2017, Ms Dilger reported:

“Ben continues to suffer spinal discomfort. He has presented symptomatically since the denial of his treatment plan a number of times. Ben’s spinal dysfunction has become a chronic issue that will need long-term remediation, particularly whilst he is growing. Regular visits will improve Ben’s posture and spinal function.”

  1. She suggested weekly treatment for a period of six to eight weeks and then monthly treatment on an ongoing basis.

  2. The Court was further assisted by a document called a ‘Reflection Booklet’, produced by the Kariong Mountains High School. The Plaintiff filled in the booklet on 3 April 2018, being shortly before he left school permanently. He was asked to fill in the booklet as he had punched another student in the jaw.

  3. The document is relevant for three purposes. It shows anger management issues post-accident. In addition, it confirms that the Plaintiff wished to work as an operator (I assume operator of heavy machinery), following upon leaving school. And finally, the Plaintiff identified his short-term goal as getting through school. He said that he would achieve that by being good and staying out of trouble. I find that as of April 2018 the Plaintiff held the intention of adjusting so as to successfully complete his education.

Plaintiff’s Medico-Legal Reports

  1. Reports from Dr John Davis, Occupation Medicine Specialist and Dr Chris Rikard-Bell, Psychiatrist were relied upon in the Plaintiff’s case.

  2. The Plaintiff was seen by Dr Davis on two occasions, being 9 May 2016 and 11 April 2018.

  3. On the first occasion, the Plaintiff complained of what the doctor identified as cervicothoracic junction regional pain, radiating into both shoulders. There was also a complaint of continuing pain in the lower back. The symptoms were noted to be aggravated by riding his motorcycle and jumping after about ten minutes.

  4. On examination, there was tenderness in the area of C4/C7 and also mid-line tenderness at around L4/5 and over the adjacent right facet. This is an objective finding not challenged by the Defendant in cross-examination of the doctor as he was not required for same.

  5. Dr Davis recommended intermittent chiropractic treatment, the cost of which he estimated to be $800.00. He also suggested counselling, although is a matter outside of his expertise.

  6. On the second consultation, there had been an intervening incident in August 2017, when the Plaintiff fractured his left femur, requiring open reduction and internal fixation with plates and screws. In relation to the injuries arising from the subject accident, the Plaintiff reported continuing pain the cervicothoracic region without radiation. There is also a notation of lower thoracic/lumbar pain, aggravated by any work, needing to change postures and “stretch my back as it aches”. The Plaintiff also described what the doctor referred to as soreness in both posterior thighs with long periods of travel and aggravation with jarring when riding his motorcycle.

  7. On examination, Dr Davis found tenderness and hypo-mobility over the right zygapophyseal joints and most specifically at C5/6 and C6/7. There was also tenderness in the region of T5/6 and L4/5. Again, these are factual findings not challenged in cross-examination of the expert.

  8. Dr Davis diagnosed the following conditions:

  1. mechanical trauma to the cervical region;

  2. mechanical trauma to the lumbar region;

  3. soft tissue injury to the thoracic spine; and

  4. diagnosed post-traumatic stress disorder.

  1. He attributed to those conditions to the subject accident. This was unchallenged by reason of a tactical decision made by the Defendant to not cross-examine the expert.

  2. In terms of future treatment, Dr Davis suggested a core stabilising program at a cost of $2700.00, with ongoing self-monitoring requiring attendance at a gym at an estimated annual expense of $1200.00.

  3. Further, it was suggested that during periods of acute exacerbation he should be referred for physical therapy, which he estimated would run to a cost of $800.00 to $1000.00 per annum.

  4. Dr Davis provided his opinion that the Plaintiff is restricted in the following:

  1. repetitive heavy lifting;

  2. repetitive or sustained bending or semi-bending;

  3. working in confined or awkward spaces;

  4. exposure to jarring or vibration; and

  5. long periods of travel.

  1. Dr Davis was specifically asked to comment on work capacity, although it was not relevant at the time as the Plaintiff remained a student. The Plaintiff told Dr Davis that his goal after leaving school was to work with his father who owns an excavating business. Dr Davis was concerned that he would be required to operate plant equipment, which would expose him to considerable amounts of jarring and is contra-indicated as a result of his injuries. Again, this was disputed but not challenged.

  2. Dr Davis expressed the opinion that the Plaintiff should consider alternative options of a more semi-sedentary or sedentary nature.

  3. Dr Davis assessed the total whole person impairment of 10%, comprising 5% whole person impairment of the cervical spine and a 5% impairment of the lumbar spine.

  4. Although Dr Rikard-Bell saw the Plaintiff on one occasion (27 June 2017), he has produced three reports (15 August 2017, 15 October 2017 and 1 August 2018).

  5. Dr Rikard-Bell described the collision as “severe”. He asked the Plaintiff’s mother as to the impact of the accident upon him and she stated that he had suffered trauma from the accident and that he was highly anxious and hyper-vigilant. The history provided was that the Plaintiff was suffering from dreams and screaming at night. At the time of the examination, he was having flashbacks every week or two. It is recorded that since the accident the Plaintiff had difficulty concentrating and has been poorly focussed at school. His behaviour has deteriorated. Dr Rikard-Bell noted that the Plaintiff began to become irritable and angry and was suspended on a number of occasions at school.

  6. The following appears commencing at the base of page 3 of the report:

“His poor attention and concentration has affected his school performance and his aggression and intolerance led to five suspensions last year of 21 days and two suspensions of 4 days.”

  1. Dr Rikard-Bell further reported that the Plaintiff had been offered a civil engineering apprenticeship to start in Year 10 and to continue beyond that year.

  2. Dr Rikard-Bell found the Plaintiff to be anxious and to be showing signs of post-traumatic stress disorder, which he attributed to the accident. He stated:

“I believe that the condition does have a significant impact on his life particularly at school and Ben has suffered a lot of suspensions and behavioural problems at school.”

  1. In terms of future needs, Dr Rikard-Bell recommended ongoing treatment for two years and suggested that the Plaintiff probably needed another 24 treatments of psychological counselling over the next two years at a cost of approximately $250.00 per session.

  2. He was asked directly to comment upon the connection between the Plaintiff’s condition and his issues at school. Dr Rikard-Bell stated:

“I believe that whilst Ben had an underlying predisposition with dyslexia, following the accident he suffered post-traumatic stress disorder which led to emotional dysregulation and behavioural problems. I believe that this would not have developed if the accident hadn’t occurred. Therefore I believe that his behavioural and school problems were a direct result of the motor vehicle accident.”

  1. This opinion, whilst disputed by the Defendant’s medical evidence, remains unchallenged.

  2. The next two reports by Dr Rikard-Bell were reports commenting upon material provided by the Plaintiff’s solicitor. The report of 15 October 2017 followed Dr Rikard-Bell being provided with the report by Dr Levi, dated 25 June 2017.

  3. Essentially, Dr Rikard-Bell disagreed with the opinion of Dr Levi and maintained his own diagnosis of PTSD.

  4. The third report by Dr Rikard-Bell is dated 1 August 2018 and again is a commentary of additional material to Dr Rikard-Bell. He expressed the opinion that the Plaintiff’s condition had not resolved and assessed whole person impairment at 10%. I accept the unchallenged opinion of Dr Rikard-Bell, notwithstanding the contrary opinions of other experts.

Defendant’s Medico-Legal Evidence

  1. The Defendant relied upon reports by Dr Anthony Smith, Orthopaedic Surgeon and Dr Baron Levi, Paediatric Psychologist.

  2. Dr Smith examined the Plaintiff on two occasions, being 23 May 2017 and 24 July 2018. In the first report, he expressed the opinion that the Plaintiff had completely recovered from the subject motor vehicle accident, however, acknowledged that the question of post-traumatic stress disorder was outside the field of his expertise.

  3. In terms of the Plaintiff’s complaints and disabilities, Dr Smith curiously stated:

“I cannot find anything wrong with him. There have been no investigations of the spine. It is possible that he has some underlying congenital abnormality there. That would not be possible to detect without appropriate investigations. A plain x-ray would be a good start.”

  1. I find it impossible to reconcile the conflicting opinion of Dr Smith. On the one hand, he stated that the Plaintiff had completely recovered from the motor vehicle accident and that he was unable to find anything wrong with him. He then entertained the possibility of an underlying congenital abnormality. It is unclear what part of the Plaintiff’s body Dr Smith is referring to or to what abnormality he had in mind.

  2. Nevertheless, he went on to diagnose soft tissue injury to the neck and chest wall and the chest and abdomen in line with the seat belt and expressed the opinion that the Plaintiff had recovered.

  3. I find that Dr Smith’s opinion as expressed to be unpersuasive and internally inconsistent.

  4. In the second report dated 24 July 2018, Dr Smith recorded that the Plaintiff complained of pain in the neck, upper back and also lower back pain, made worse by activity. He noted that the Plaintiff said that his condition was not improving. Dr Smith found that the Plaintiff had a restriction in his lumbar extension, which he considered unusual for a person in his age group. He also noted a mild thoracic kyphosis. Dr Smith suggested radiological investigations and, nevertheless, repeated his earlier opinion that the Plaintiff had fully recovered and was left with no disability as a result of the subject accident.

  5. Again, I consider the opinion of Dr Smith to be unpersuasive. His finding of lumbar extension restrictions and mild thoracic kyphosis seem to be inconsistent with the finding that the Plaintiff was without any ongoing disability.

  6. Dr Levi assessed the Plaintiff on two occasions, namely 25 May 2017 and 4 October 2018. He is a psychologist. I give greater weight to the opinion of Dr Rikard-Bell who is a psychiatrist. Dr Levi formed the opinion that the Plaintiff did not have an anxiety disorder or post-traumatic stress disorder. He stated that he was of the view that the Plaintiff’s behavioural issues were a normal developmental expression of his dyslexia and learning difficulties. He said that the Plaintiff fitted the profile of a student who experienced prolonged learning difficulties, with low self-esteem and behavioural issues. He found that there was no psychiatric illness as a result of the accident. As a psychologist, he is not qualified to express opinions as to psychiatric conditions.

  7. In his second report following an examination on 4 October 2018, Dr Levi again expressed the opinion that the Plaintiff’s behavioural issues were a “natural consequence” of his prolonged dyslexia and learning difficulties, and not related to the subject accident. Again, Dr Levi expressed the opinion that there was no evidence that the Plaintiff presented with symptomatology that was consistent with a psychological diagnosis. Nevertheless, Dr Levi implicitly accepted that the Plaintiff suffered anxiety, but he related it to the school environment. He stated:

“Once he left that environment, which clearly was a constant ongoing source of anxiety and one in which eroded self-esteem and self-confidence and in fact marginalised him, then Benjamin was able to put his practical skills to succeed in a work environment.”

  1. This finding relating to anxiety is inconsistent with Dr Levi’s earlier findings of no psychiatric injury. It supports the opinion of Dr Rikard-Bell that the Plaintiff suffers from anxiety. Dr Rikard-Bell found that to be due to the accident. The fact that the anxiety was heightened in the “school environment” does not mean that it was not triggered or caused by the accident. I find the opinion of Dr Levi conflicting and unpersuasive. I reject his opinion and prefer the opinion of Dr Rikard-Bell, Psychiatrist.

Reports generated by Independent Assessments performed at MAS

  1. The Plaintiff was assessed was assessed by Dr Tarra Shaw, Psychiatrist, on 20 March 2018, resulting in a Certificate dated 26 March 2018. Dr Shaw noted behavioural problems at school prior to the accident, although recorded his mother’s explanation that those problems were not numerous and that he would only occasionally have a problem every now and then.

  2. After assessing the Plaintiff, Dr Shaw formed the opinion that the Plaintiff did not currently have a psychiatric disorder caused by the subject accident.

  3. She did, however, accept that during the first two years post-accident, the Plaintiff suffered from post-traumatic stress disorder and that he was left with some anxiety when a passenger in a car at times, that could be attributed to PTSD, related to the motor vehicle accident. She stated that the frequency and severity of symptoms was not so severe or frequent and did not impair functioning to any degree that would constitute a diagnosable psychiatric condition.

  4. Concerning his behavioural issues, Dr Shaw expressed the following view:

“I am of the opinion that the behavioural difficulties Ben experienced during Year 7 were multi-factorial in cause. The MVA was one of the causes of the worsening of Ben’s behaviour, the other causes including long-term learning difficulties, not liking school and not being good at academic work, and ADD, the latter which sees a person more impulsive and unable to contain emotions such as anger in social situations, and not being able to plan or think on complex situations well, thus have behavioural problems.”

  1. In this convoluted passage, Dr Shaw accepted that the motor vehicle accident was a causative factor in the Plaintiff’s behavioural difficulties, particularly at school. She does not say that he would have experienced those difficulties in any event and therefore it is open to find that the motor vehicle accident was a causative factor within the meaning of the Civil Liability Act 2002, as I do. Specifically, I find that the negligence of the Defendant was a necessary condition of the occurrence of the harm suffered by the Plaintiff.

  2. In the section of her report headed “Overall”, Dr Shaw stated, amongst things:

“The accident certainly caused a deterioration in Ben’s psychological health, it caused PTSD which has since resolved, worsening anxiety around driving or being a passenger which has since largely resolved, and an oppositional/behavioural exacerbation which has also largely resolved.”

  1. Finally, the Plaintiff was examined by Dr Robert Gertler, Psychiatrist, on 27 November 2018 at the request of the Medical Assessment Service. The history taken by Dr Gertler is generally consistent with the histories provided to other medical professionals.

  2. Dr Gertler expressed the opinion that, as a result of the accident, the Plaintiff has suffered post-traumatic stress disorder, secondary oppositionality, hypo-vigilance and ADHD symptoms exacerbated with anxiety.

  3. Since leaving school however, those symptoms have resolved, to be replaced with a mild adjustment disorder with anxious mood. Dr Gertler assessed a whole person impairment of 4%. I accept the opinion of Dr Gertler as it is consistent with the evidence of the Plaintiff’s mother and common sense.

Evidence of Tammy Fanelli

  1. Mrs Fanelli described the accident in detail. She said that it was a high impact collision. She thought that she was travelling at 81 kilometres per hour in a 100 kilometres per hour zone. She said that her recollection was that she witnessed the oncoming vehicle on the incorrect side of the road for some five minutes prior to the collision. Whilst this is probably excessive, it does demonstrate that the collision was accompanied by a considerable lead up period, during which the Plaintiff, and others, were exposed to the trauma of an inevitable collision. She told the Court that the Plaintiff began screaming.

  2. She said that the car caught on fire and that her foot was jammed under the pedals, with her knee in the dash board. She could not move. The Plaintiff got out of the car, but was understandably stressed by the fact that his mother was trapped in a car on fire. She said that when the Plaintiff was out of the car he was still screaming to get her out of the car.

  3. She was asked to describe the Plaintiff’s injuries caused by the accident. She referred to back pain, chest pain, bruising caused by the seat belt, neck pain and soreness and headaches.

  4. She described the treatment which the Plaintiff received in the early stages as including consulting with the general practitioner, physiotherapy and later chiropractic treatment.

  5. The Plaintiff had physiotherapy every week for a month before switching to fortnightly. The physiotherapist would come to the family house.

  6. In terms of the Plaintiff’s mood, his mother described him as being disorientated, depressed, impatient, horrible and suffering from nightmares. The nightmares were described as recalling the oncoming car, looking at his mother and witnessing the fire with screaming to get her out of the car.

  7. The Plaintiff’s mother was frank as to her son’s pre-accident medical conditions.

  8. In terms of his behaviour post-accident, she referred to him as being aggressive, lashing out and fighting.

  9. She said that the Plaintiff relied upon Nurofen medication and is still undergoing chiropractic treatment every couple of months.

  10. She stated that, prior to the accident, it was intended that the Plaintiff would remain at school until Year 10.

  11. She told the Court that her son currently works in her husband’s business, working 35 hours per week for just $10 per hour, earning $350.00 per week.

  12. Mrs Fanelli rejected the suggestion that her son did not like school from a young age and said it was only after the accident that he expressed a desire to cease attending school.

Analysis of the Evidence

  1. As it may have been gathered from the commentary above, I reject the opinions of Dr Smith and Dr Levi, for the reasons provided. Their reports contained inconsistencies in terms of their opinions and were at odds with the opinions expressed by Dr Davis and Dr Rikard-Bell, whose opinions I prefer.

  2. I consider the opinions of Dr Davis and Dr Rikard-Bell to be well reasoned and not at all internally inconsistent. I also accept the opinion or Dr Gertler, an independent expert appointed by MAS.

  3. It is regrettable that the medical experts for the parties were not called for cross-examination, given their diametrically opposed opinions. That left the Court in a position of having to decide which opinions to prefer, in circumstances where it was not assisted by oral evidence from those experts.

  4. My acceptance of the opinions of Dr Davis and Dr Rikard-Bell are strengthened by my unequivocal acceptance of the evidence of Mrs Fanelli. She impressed as an honest and reliable witness. She made a number of concessions, both in her evidence-in-chief and in her cross-examination, which were not necessarily in the interests of her son. She had the advantage of witnessing first hand the effects that the motor vehicle accident had upon her son.

  5. Having regard to the medical evidence which I prefer and the evidence of the Plaintiff’s mother, I find that as a result of the accident, he suffered the following conditions:

  1. cervical injury;

  2. thoracic injury;

  3. lumbar injury;

  4. bruising and contusions to his chest and abdomen; and

  5. psychological injuries, including post-traumatic stress disorder, anxiety and adjustment disorder.

  1. Whilst it may be that his psychiatric symptoms were exacerbated in the school environment, there is no suggestion that he would have suffered those difficulties had the accident not occurred. That was the Defendant’s ultimate submission which I reject as utter speculation.

  2. Whilst the Plaintiff’s psychiatric condition may have been ameliorated in part by ceasing school, I find that he continues to suffer from spinal pain as described above and suffers from a mild adjustment disorder with anxious mood, consistent with the opinion of the independent assessor Dr Gertler.

Assessment of Damages

Introduction

  1. The Plaintiff claims damages in respect of the following:

  1. past treatment expenses;

  2. future treatment expenses; and

  3. future economic loss by way of buffer.

Past Out of Pocket Expenses

  1. The Plaintiff’s past out of pocket expenses were the subject of evidence (Exhibit C). The Defendant took issue with five items on the Schedule. The Plaintiff did not press those items.

  1. The Plaintiff’s past treatment expenses comprise the following:

  1. payments by the insurer pursuant to s83 in the sum of $2,790.34;

  2. payments made by Medicare as demonstrated by a Notice of Charge in the sum of $3,818.25;

  3. further reimbursement by the insurer to the Plaintiff in the sum of $239.45;

  4. expenses paid by the Plaintiff but not reimbursed to date by the Defendant, comprising the items on the Schedule, which total $847.90.

  1. The total amount allowed for past out of pocket expenses, accordingly is $7,695.94.

Future Treatment Expenses

  1. The Plaintiff’s claim is based upon the opinions of Dr Davis and Dr Rikard-Bell. Their opinions were not the subject of challenge by way of cross-examination and I have no difficulty in accepting them.

  2. I find that the Plaintiff has the reasonable need for a core stabilising program, gym membership, psychological counselling and I allow the sum of $15,000.00 on account of future treatment expenses, after applying appropriate discounts.

Future Economic Loss

  1. The final head of damage in respect of which the Plaintiff claims damages is in respect of an incapacity for work caused by the injuries suffered in the accident. The claim as particularised in the Statement of Particulars:

“As a result of the Plaintiff’s post-traumatic stress disorder and behavioural issues arising therefore, the Plaintiff has suffered various periods of absence from school and an overall affectation on his performance and engagement in the schooling process. It is contended that the schooling issues will result in the Plaintiff’s career options and his future employment would be affected, and this, together with the ongoing psychological effects of the accident, will result in a diminution in the Plaintiff’s ability to obtain and retain employment in the open labour market.”

  1. Section 126 of the Motor Accidents Compensation Act applies to the award of damages for future economic. It is settled law that an allowance for future economic loss can, under s126, be by way of buffer rather than a mathematically calculated sum.

  2. I find that the Plaintiff’s most likely future circumstances, but for the injury, is that he would have completed his schooling to Year 10, undertaken a TAFE course and most probably worked with his father in the excavation business.

  3. Instead, the Plaintiff left school in or about July/August 2018, at the age of 14 and commenced working in the family business for just $10 per hour.

  4. I find that the reason the Plaintiff left school in mid 2018 was due to behavioural and other issues arising from the psychiatric injuries sustained in the accident. The Defendant submitted that he would have left school at that time in any event and had been in the same position as he now is. There is no evidence that supports that conclusion. I find that the Plaintiff has established a prima facie case that he left school at the time he did because of the accident and suffered a reduction is his earning capacity as an adult.

  5. I am mindful of the comments made by the High Court in Purkess v Crittenden (1965) 114 CLR 164, which echo the comments made by the Court in Watts v Rake (1960) 108 CLR 158. In Purkess at [4], the Court stated:

“We understand that case to proceed upon the basis that where a plaintiff has, by direct or circumstantial evidence, made out a prima facie case that incapacity has resulted from the defendant's negligence, the onus of adducing evidence that his incapacity is wholly or partly the result of some pre-existing condition or that incapacity, either total or partial, would, in any event, have resulted from a pre-existing condition, rests upon the defendant. In other words, in the absence of such evidence the plaintiff, if his evidence be accepted, will be entitled to succeed on the issue of damages and no issue will arise as to the existence of any pre-existing abnormality or its prospective results, or as to the relationship of any such abnormality to the disabilities of which he complains at the trial. It was, we think, with the character and quality of the evidence required to displace a plaintiff's prima facie case that Watts v Rake (1960) 108 CLR 158 was essentially concerned. It was, in effect, pointed out that it is not enough for the defendant merely to suggest the existence of a progressive pre-existing condition in the plaintiff or a relationship between any such condition and the plaintiff's present incapacity. On the contrary it was stressed that both the pre-existing condition and its future probable effects or its actual relationship to that incapacity must be the subject of evidence (i.e. either substantive evidence in the defendant's case or evidence extracted by cross-examination in the plaintiff's case) which, if accepted, would establish with some reasonable measure of precision, what the pre-existing condition was and what its future effects, both as to their nature and their future development and progress, were likely to be. That being done, it is for the plaintiff upon the whole of the evidence to satisfy the tribunal of fact of the extent of the injury caused by the defendant's negligence. In the present case the evidence accepted by the learned trial judge by no means established with any reasonable degree of precision the extent of the appellant's pre-existing affliction or what its future effects, apart from the result of the defendant's negligence, were likely to be. That being so we think it was proper for him to deal with the case on the basis that the defendant's negligence was the cause of the appellant's permanent disability and, accordingly, we propose to deal with this appeal on the same basis.”

  1. In the present matter I find that the Plaintiff has made out a prima facie case, which has not been rebutted by either evidence in the Defendant’s case, nor by cross-examination in the Plaintiff’s case. There is no evidence that the Plaintiff suffered from a progressive or previous condition or its probable future effect.

  2. I unhesitatingly find that the Plaintiff left school at the age of 14 by reason of the injuries caused by the negligence of the Defendant.

  3. I further find that as a result of leaving school at a young age without completing Year 10 and without having commenced any tertiary education at TAFE, the Plaintiff is likely to suffer a reduction in the value of his earning capacity. Fortunately, he is presently protected to some extent by the fact that he is employed in the family business. That may not always be the case. If the Plaintiff is faced with the need to secure employment in an open labour market then I find he will be disadvantaged such that he will incur financial and economic loss.

  4. The Plaintiff will be 16 years of age in November of this year. He has an extremely long working life ahead of him. It is not possible to quantify with any degree of precision how the economic loss may manifest itself in the future.

  5. I allow a buffer for future economic loss in the sum of $75,000.00. That allowance incorporates an unspecified percentage reduction to reflect the fact that the most probable circumstance may have been other than as I have found.

Summary of Assessment of Damages

Head of Damage

Amount

Past Out of Pocket Expenses

$7,695.94

Future Treatment Expenses

$15,000.00

Future Economic Loss

$75,000.00

Total

$97,695.94

Orders

  1. I make the following orders:

  1. judgment for the Plaintiff against the Defendant in the sum of $97,695.94;

  2. the Defendant is to pay the Plaintiff’s costs of these proceedings as agreed or assessed;

  3. in accordance with the provisions of s77(3) of the Civil Procedure Act 2005, I order that after payment of the amounts referred to below the balance of the judgment sum be paid to the NSW Trustee and Guardian for management until the Plaintiff attains the age of 18 years:

  1. payment to Medicare ($3,818.25) or such other amount as properly notified by Medicare noting that there is no current Notice of Charge;

  2. credit to the Defendant’s insurer of payments made to or on behalf of the plaintiff under s83 ($2,790.34) or otherwise ($239.45);

  3. payments made by or on behalf of the Plaintiff ($847.90) to be reimbursed to the tutor;

  1. the Exhibits to be returned forthwith.

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Decision last updated: 20 May 2019

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Statutory Material Cited

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Purkess v Crittenden [1965] HCA 34
Watts v Rake [1960] HCA 58
Purkess v Crittenden [1965] HCA 34