Biscontri v El Haj
[2014] NSWDC 23
•01 April 2014
District Court
New South Wales
Medium Neutral Citation: Biscontri v El Haj [2014] NSWDC 23 Hearing dates: 13 & 14/02/2014 Decision date: 01 April 2014 Jurisdiction: Civil Before: Levy SC DCJ Decision: 1.Verdict and judgment for the plaintiff in the sum of $129,704.55;
2.The defendant is to pay the plaintiff's costs on the ordinary basis unless otherwise ordered;
3.The exhibits may be returned;
4.Liberty to apply on 7 days notice if further orders are required.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: TORTS - plaintiff injured in motor vehicle accident - breach of duty of care admitted - consideration of compensable extent of plaintiff's claimed physical and psychiatric problems in view of plaintiff's pre-accident history - onus of proof on plaintiff to prove extent of accident-related material difference to pre-accident condition; DAMAGES - assessment of claimed heads of damage Legislation Cited: Civil Liability Act 2002, s 5D, s 5E
Motor Accidents Compensation Act 1999, s 83, s 131, s 136Cases Cited: Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352
Mt Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383
Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164
Watts v Rake [1960] HCA 58; (1960) 108 CLR 158Category: Principal judgment Parties: Sandra Biscontri (Plaintiff)
El Fatah Yacub El Haj (Defendant)Representation: Ms H Wall (Plaintiff)
Mr J Ryan (Defendant)
Shine Lawyers (Plaintiff)
Curwoods Lawyers (Defendant)
File Number(s): 2013/209702 Publication restriction: None
Judgment
Table of Contents
Nature of case
[1] - [2]
Evidence overview
[3]
Credit and issues
[4] - [5]
Facts
[6] - [108]
Accident circumstances
[7] - [8]
Injuries and initial treatment
[9] - [13]
Plaintiff's background circumstances
[14] - [28]
Pre-accident medical and related records
[29] - [34]
Post-accident medical and allied assessments
[35] - [78]
Dr Nigro's oral evidence
[79] - [86]
Findings on accident-related injuries & disabilities
[87] - [107]
Mitigation
[108]
Assessment of damages
[109] - [141]
Probable life span of plaintiff
[110]
Non-economic loss
[111] - [117]
Future paid domestic assistance
[118] - [128]
Future treatment
[129] - [135]
Past out-of-pocket expenses
[136] - [140]
Summary of damages assessment
[141]
Disposition
[142]
Costs
[143]
Orders
[144]
Nature of case
In these proceedings the plaintiff, Sandra Biscontri, claims damages from the defendant, El Fatah Yabub El Haj, for personal injury she sustained in a motor vehicle accident that occurred on 7 January 2009. On that date, the defendant's vehicle struck the plaintiff's almost stationary vehicle from behind, causing her to suffer a number of musculo-ligamentous injuries, with related disabilities and psychological symptoms.
The defendant has admitted there had been a relevant breach of the duty of care owed in those circumstances. These proceedings are governed by the provisions of the Motor Accidents Compensation Act 1999 ["MAC Act"] and the causation requirements of s 5D of the Civil Liability Act 2002.
Evidence overview
Oral evidence was given by the plaintiff and by her treating general practitioner, Dr Anthony Nigro. The parties also tendered and relied upon voluminous medical records and medico-legal reports.
Credit and issues
I am satisfied that the plaintiff did her best to give her evidence honestly and truthfully. Nevertheless, I am also satisfied that by reason of her admittedly deficient memory for past events, in her evidence, she has tended to understate if not overlook the significance of her pre-accident history of health problems and issues arising from her pre-accident social circumstances.
Those matters will be analysed in the course of my reasons on particular damages issues in the context in which they arise for assessment.
Facts
Unless otherwise qualified, in the paragraphs that follow, I set out my findings on matters of fact relevant to the assessment of the plaintiff's entitlement to damages.
Accident circumstances
At about 4.00pm on Wednesday 7 January 2009 the plaintiff was driving her motor vehicle in a westerly direction along Court Road, Fairfield NSW, towards a set of traffic lights. The plaintiff was in the process of stopping her vehicle in accordance with the direction of a red light displayed by a traffic control signal when the defendant's vehicle collided with the rear of her vehicle.
At that time the road surface was wet because it had been raining. The defendant had applied his brakes, which caused the screech of tyres, but he was unable to avoid the ensuing collision, which was of sufficient force to cause his vehicle to bounce into the rear of the plaintiff's vehicle a number of times, and to twist and break off the tow bar fitting at the rear of the plaintiff's vehicle.
Injuries and initial treatment
In the events leading to the collision the plaintiff had started to turn her head at the sound of the screech of the defendant's tyres. When the impact occurred she initially felt that she had injured her neck and her right knee.
Soon afterwards, the plaintiff felt discomfort in her neck, her left hip and severe pain in her lower back. She also felt shocked by those events. The plaintiff's evidence on those matters was not the subject of challenge.
The plaintiff reported ongoing neck pain, often associated with headaches and pain extending into both shoulders, with limitation of neck movements. She also reported ongoing pain and restriction of movement in her lower back, which radiated down into her left buttock, as well as radiated left leg pain. In addition she reported pain in her right hip, as well as pain and restriction of movement in her right knee, with associated difficulty kneeling and squatting.
In her personal injury claim form, the plaintiff also claimed a loss of consciousness and dizziness, but these matters did not feature in the ensuing medical certificate issued by her treating general practitioner.
The plaintiff subsequently complained of depression and anxiety. These are matters that have to be assessed in the context of her pre-existing medical conditions and the stated impressions of her treating general practitioner.
Plaintiff's background circumstances
The plaintiff was born in Lebanon in 1961. She came to live in Australia when she was aged 10 years. In 1977 she left school after completing her schooling to Year 10 level. In 1978 she completed a hairdressing apprenticeship.
At the time of the accident the plaintiff was aged 47 years. She is presently aged 52 years. Since about 2008, she has been in receipt of Centrelink benefits in the form of a disability support pension.
The plaintiff last worked in a hair salon between July 2003 and December 2006. In July 2008, the plaintiff undertook a medical terminology course. At that time she had been hoping to find some kind of sedentary work.
She has not worked in her trade or in any other capacity for many years, including up until the time of the accident.
She has been married and divorced twice. She has a son aged 36 years from her first marriage and twin sons aged 20 years from her second marriage. Her twin sons are still university students and they live with her in public housing accommodation.
The plaintiff had a long and significant history of adverse health issues, as is chronologically documented in the clinical notes and records of Dr Anthony Nigro, who has been her general practitioner since 1988.
The effect that the plaintiff's injuries had upon her must be assessed in light of her pre-accident background circumstances.
The plaintiff's pre-accident health problems included historical problems with neck pain, back pain, right knee pain, anxiety and depression. In these proceedings, to varying extents, she claimed ongoing problems in those same areas, which she claimed were related to the subject accident.
The plaintiff had been prescribed anti-depressant medication before the subject motor vehicle accident. The plaintiff had physiotherapy and chiropractic referrals for treatment of her neck and back pains before the motor vehicle accident.
The plaintiff lives a socially isolated existence. This had been the case for some time before the subject accident. She has had a history of gambling on poker machines in clubs for many years. She had been addicted to gambling prior to the accident. Those activities had led to her being declared bankrupt. She was not a bankrupt at the time of the accident.
Following her two marriages that ended in divorce, the plaintiff had another relationship that ended in 2010. She is still on good terms with that former partner. She does not get on with her children: T25.10; T26.32.
At T18.8 to T18.17, the plaintiff described herself before the subject accident in the following terms:
"A. I was a very happy, bubbly person, I had a lot of friends. I did normal things, you know, spend time with the family, go to the beach, go out, I used to even sing in public. I sang in clubs where there would have been, you know, 500 people. I was happy. I used to wake up with a smile, I used to run, I used to - just everything that a happy person, I remember, I used to smile.
Q. Were you particular about your appearances and how you presented?
A. I looked like a princess on a daily basis. See, even in my photos, I would look after myself. I would dress, I would have make up on, my hair, my nails, my clothes. Everything."
In view of the plaintiff's poor memory, a matter she acknowledged several times, including at T17.11, the defendant submitted that it was significant in this case that no corroborative evidence had been called from the plaintiff's former partner, or her sons. In my view, that submission overstates the position as to the requirements for proof. The plaintiff's evidence has not been shown to require corroboration and it is capable of being assessed on its own. However, whether that evidence is entirely reliable is another matter.
The plaintiff's social outlet is to go to a local club to gamble. She uses this as a mechanism to "run away from stress ... sitting there like a zombie on medication, press the button." She now considers herself to be like a vegetable: T24.26 - T24.34.
The plaintiff claimed that before the accident she used to go to a local club occasionally, to play poker machines, whereas now she is out of control, and goes on a daily basis: T29.10. In view of the evidence as to the plaintiff's pre-accident gambling problems and her bankruptcy on that account, I do not accept her evidence in that regard as to the picture she seeks to paint as to her existence before and after the accident when she gambled in the 1990's leading to her bankruptcy. In that period she played poker machines at the Revesby Workers' Club. Now she goes to a place called Club Rivers, which was formerly called the Riverwood Legion Club: T28 - T30.
Pre-accident medical and related records
The defendant tendered voluminous materials relating to the plaintiff's pre-accident situation. What follows is a summary of some salient facts drawn from those materials.
From 1998 onwards, within Dr Nigro's records there was evidence of numerous referrals to a variety of different specialist medical practitioners and allied community health workers in respect of multiple medical problems, including ophthalmic, ENT, orthopaedic, cardiological gastroenterological, dermatological, and psychiatric conditions: Exhibit "1", Tab [3ii], pages 82 - 118.
The printout of Dr Nigro's extensive typed clinical records was also tendered: Exhibit "1", Tab [3i], pages 17 - 103. Those records contained relevant pre-accident historical information about the plaintiff, which also requires consideration in the context of the plaintiff's pre-accident and post-accident chronologies.
The detail of those referrals, consultations, notations and correspondence appears in the following chronological summary drawn from the clinical records and correspondence files produced by Dr Nigro:
(1) On 23 September 1999, Dr Nigro referred the plaintiff to the Physiotherapy Department at Bankstown Hospital for an opinion and management of "neck and upper back soft tissue injuries": Exhibit "1", Tab [3ii], p 118. The precise cause and the circumstances of those injuries were not identified in the evidence but they could have been due to a motor vehicle accident that involved the plaintiff in 1994.
(2) On 10 April 2000, Dr Nigro made an entry in his notes for back and neck pain, and a reference to a communication to Gergis solicitors on 18 April 2000: Exhibit "1", Tab [3ii], p 43. This was in response to a letter of request from that firm: Exhibit "1", Tab [3ii], p 112. The inference is that the plaintiff needed some assistance from Dr Nigro relating to legal issues, possibly litigation.
(3) On 12 May 2000, Dr Fred Nasser, a cardiologist, conducted a cardiological review of the plaintiff noting she had a long history of intermittent episodes of low pulse and atypical chest pain: Exhibit "1", Tab [3ii], pages 110 - 111.
(4) On 29 November 2000, Dr Nigro made an entry in his notes relating to palpitations and the plaintiff being stressed out, with neck pain and spasms of the spinal muscles, amongst other things: Exhibit "1", Tab [3ii], p 44.
(5) On 12 January 2001, Dr Nigro made an entry in his notes concerning a notation of mood swings: Exhibit "1", Tab [3ii], p 45. Dr Nigro also referred the plaintiff to the Peakhurst Community Centre for physiotherapy treatment of recurrent neck and lower back pains which were stated to have been worsening of late: Exhibit "1", Tab [3i], p 110.
(6) On 16 January 2001, Gergis solicitors requested Dr Nigro to provide a medical report: Exhibit "1", Tab [3ii], p 108. No copy was available for review in the evidence.
(7) On 20 March 2001, Dr Nigro made an entry in his notes concerning a notation of severe lower back pain over the previous 2 months for which physiotherapy has had no effect: Exhibit "1", Tab [3ii], p 45.
(8) On 27 March 2001, Dr Drew Dixon prepared a report for Gergis solicitors in relation to a motor vehicle accident involving the plaintiff on 20 April 1994, in which she suffered neck, back and right wrist injuries: Exhibit "1", Tab [3ii], pages 103 - 105.
(9) On 29 March 2001, Dr Nigro made an entry in his notes requesting an MRI scan of the lumbar spine and including a reference to an orthopaedic surgeon, Dr Dixon: Exhibit "1", Tab [3ii], p 46.
(10) In April and May 2001, Dr Nigro issued a certificate with a stated diagnosis of severe back pain (Exhibit "1", Tab [3i], pages 107 - 109) and a referral to Dr Andreas Loefler on 15 August 2001, for recurrent back pain: Exhibit "1", Tab [3i], p 106. Also of significance was the referral of the plaintiff to Dr A Samad for an opinion and management of panic attacks and hyperventilation: Exhibit "1", Tab [3i], p 116;
(11) On 3 May 2001, the plaintiff underwent an MRI of her lumbar spine which was reported as being normal: Exhibit "1", Tab [3ii], pages 101 - 102.
(12) On 20 June 2001, Dr Nigro made an entry in his notes concerning a notation of back pains: Exhibit "1", Tab [3ii], p 46.
(13) On 3 December 2001, the plaintiff underwent an endoscopy which diagnosed gastritis: Exhibit "1", Tab [3ii], p 100.
(14) On 4 February 2002, Dr Nigro made an entry in his notes concerning a notation of panic attacks and depression: Exhibit "1", Tab [3ii], p 48.
(15) On 8 February 2002, Dr Nigro made an entry in his notes relating to an appointment with a psychiatrist in a community centre: Exhibit "1", Tab [3ii], p 48. Standing out amongst those records was a certificate Dr Nigro issued on 8 February 2002, apparently to the Department of Housing, stating that the plaintiff was suffering from anxiety and depression, a panic disorder, palpitations, and back pain: Exhibit "1", Tab [3i], p 102.
(16) On 26 April 2002, Dr Nigro received a subpoena from Vandervords, solicitors, for production of his records in District Court proceedings 7702/2001 between the plaintiff and Salem Taouk: Exhibit "1", Tab [3ii], pages 95 - 98.
(17) On 30 April 2002, Dr Nigro made an entry in his notes concerning correspondence with Vandervords solicitors: Exhibit "1", Tab [3ii], p 49.
(18) On 7 May 2002, a psychiatrist at the Hurstville Community Mental Health Service wrote to Dr Nigro about the plaintiff's 8 year history of anxiety, low mood and gambling addiction: Exhibit "1", Tab [3ii], p 94.
(19) On 13 May 2002, Dr Nigro made an entry in his notes concerning correspondence with what I infer from the recorded text, was the St George Mental Health Team: Exhibit "1", Tab [3ii], p 50.
(20) On 9 September 2002, Dr Nigro made an entry in his notes concerning a notation of back pains: Exhibit "1", Tab [3ii], p 51.
(21) On 11 October 2002, Dr Nigro made an entry concerning stress relating to a neighbour and a violence issue, as well as a reference to the plaintiff having lost a court case which has resulted in her incurring a debt of $40,000 to cover legal costs: Exhibit "1", Tab [3ii], p 51. Also standing out amongst those pre-accident records is the certificate of Dr Nigro dated 11 October 2002, in which he certified that the plaintiff was suffering from major depression, panic disorder, heart arrhythmia and migraine headaches: Exhibit "1", Tab [3i], p 97.
(22) On 17 March 2003, Dr Z Lakhany, a gastroenterologist, wrote to Dr Nigro regarding the results of an endoscopy: Exhibit "1", Tab [3ii], p 88.
(23) On 27 March 2003, Dr Nasser wrote to Dr Nigro regarding his investigation of the plaintiff's atypical left-sided chest pain and intermittent palpitations: Exhibit "1", Tab [3ii], p 87.
(24) On 30 March 2004, Dr Nasser wrote to Dr Nigro regarding his investigation of the plaintiff's atypical left-sided chest pain and intermittent palpitations: Exhibit "1", Tab [3ii], p 84.
(25) On 28 April 2004, the plaintiff was seen by Dr George Kalnins, an orthopaedic surgeon. Dr Kalnins' records show a long history of the plaintiff's complaints of sensory symptoms in both hands leading to carpal tunnel decompression surgery in 1996. In 2004 he had recorded the plaintiff's complaints of numbness in both hands and intermittent pain and numbness on the dorsum of the right wrist, for which she was referred to a neurologist, who in turn thought there was some form of early arthropathy requiring consideration by a rheumatologist.
(26) On 20 May 2004, Dr Presgrove, a neurologist, wrote to Dr Nigro about the plaintiff regarding arranging investigation of symptoms the plaintiff was experiencing in her hands: Exhibit "1", Tab [3ii], p 83.
(27) On 10 June 2004, Dr Presgrove wrote to Dr Nigro suggesting a rheumatologist review the plaintiff's weakness, discomfort and cramping in her hands: Exhibit "1", Tab [3ii], p 82.
(28) On 10 September 2004, Dr Flax, an ophthalmologist, wrote to Dr Nigro regarding her condition of vitreous degeneration: Exhibit "1", Tab [3ii], p 81.
(29) On 15 December 2004, the plaintiff underwent a CT investigation of her thyroid glands in connection with her complaints of hoarseness: Exhibit "1", Tab [3ii], p 80.
(30) On 14 January 2005, Dr Howison wrote to Dr Nigro regarding a possible laryngocoele: Exhibit "1", Tab [3ii], pages 78 - 79.
(31) On 16 February 2005, the plaintiff underwent an ophthalmic investigation because of her perception of increased floaters: Exhibit "1", Tab [3ii], p 77.
(32) On 28 December 2005, the plaintiff underwent gynaecological investigations for fibroids: Exhibit "1", Tab [3ii], p 76.
(33) On 7 February 2006, Dr Nigro referred the plaintiff to Dr Edward Clark for an opinion and management of her chronic back pain which was noted to have been resulting in much discomfort.
(34) On 10 February 2006, Dr Nigro prepared a general practice chronic disease management plan for the plaintiff in respect of a number of unspecified conditions.
(35) On 26 February 2006, Dr Nigro referred the plaintiff to the Peakhurst Community Physiotherapy Centre for physiotherapy treatment of severe back pain.
(36) Between 13 March 2006 and 13 July 2006, the plaintiff underwent a series of 10 physiotherapy treatments for "constant back pain": Exhibit "1", Tab [3ii], p 75.
(37) On 11 April 2006, the plaintiff underwent CT imaging of the cervical, thoracic and lumbar spines. The scans were reported as showing a left-sided C6/7 disc bulge and minor insignificant disc bulges at C3/3 and C3/4, and the thoracic scan was reported as being normal: Exhibit "1", Tab [3ii], pages 55 and 56.
(38) On 18 January 2007, the plaintiff attended Bankstown Hospital Emergency Department for an assessment of anxiety mediated chest tightness: Exhibit "1", Tab [3ii], p 73.
(39) On 30 January 2007, Dr Nigro referred the plaintiff to Dr Kenneth Howison for an opinion and management of recurrent hoarseness of her voice and hyperacusis.
(40) On 6 February 2007, Dr Nigro prepared a general practice chronic disease management plan relating to the plaintiff in respect of a number of unspecified conditions. On the same date he referred the plaintiff to Dr Cathy Tiernan for an opinion and management of LIF pains.
(41) On 9 February 2007, Dr Howison advised Dr Nigro that the plaintiff was investigated for hyperacusis, and it was noted she was "under great stress and has considerable anxiety": Exhibit "1", Tab [3ii], p 71.
(42) On 2 June 2007, Dr Nigro made an entry in his notes concerning a notation of panic attacks and depression: Exhibit "1", Tab [3ii], p 59.
(43) On 6 July 2007, Dr Nigro made an entry in his notes concerning a notation of panic attacks and depression: Exhibit "1", Tab [3ii], p 59.
(44) On 27 July 2007, Dr Nigro made an entry in his notes concerning a notation of severe neck torticollis needing chiropractic treatment: Exhibit "1", Tab [3ii], p 60.
(45) On 27 July 2007, the plaintiff began seeing Ms Sabena Najim, a chiropractor, for acute neck pain. The chiropractor made a CT scan diagnosis of a disc bulge at C6/7. The condition was described as chronic with a prognosis of permanent cervical dysfunction. The condition was stated as not allowing her to lift and carry heavy objects and long standing sitting (sic): Exhibit "1", Tab Misc, p 23.
(46) On 23 October 2007, Dr Nigro made an entry in his notes concerning a notation of cervical disc problems, depression, panic and palpitations: Exhibit "1", Tab [3ii], p 61.
(47) On 24 October 2007, in the capacity of being her treating doctor since 1988, Dr Nigro completed a Centrelink form for the plaintiff in which he certified that the plaintiff had one or more medical conditions that had an adverse impact on her ability to function. The particular conditions that were certified by Dr Nigro in that regard included first, cervical disc protrusions at the levels C2/3; C3/4 and C6/7, characterised by recurrent neck pains, spasms and reduced movements and torticollis, which prevented her from working, and secondly, a laryngocoele and recurrent laryngitis, which he also certified the plaintiff from working: Exhibit "1", Tab Misc, pages 16 - 22.
(48) On 25 October 2007, Centrelink accepted a referral of the plaintiff to that organisation for consideration of a grant of a disability support pension: Exhibit "1", Tab Misc, p 6.
(49) Shortly afterwards, and following an assessment by Centrelink, the plaintiff's permanent medical conditions of neck disorder, tracheostamy (sic), a gastroenterological condition, as well as anxiety and depression were noted to be present: Exhibit "1", Tab Misc, pages 7 - 8.
(50) On 12 November 2007, Dr Nigro referred the plaintiff to Dr Claude Hakim, for gynaecological management. On the same date she was referred to Dr Ken Ho for an opinion and management of a lesion on her right chin.
(51) On 21 November 2007, the plaintiff was assessed for dermatological issues: Exhibit "1", Tab [3ii], p 68.
(52) On 22 November 2007, Dr Nigro made an entry in his notes concerning a notation of bilateral knee pains and burning feeling in the lower legs: Exhibit "1", Tab [3ii], p 62.
(53) On 30 November 2007, Dr Hakim advised Dr Nigro that the plaintiff had pelvic inflammatory disease: Exhibit "1", Tab [3ii], p 68.
(54) On 3 December 2007, the plaintiff underwent x-ray examination of her knees. Small amounts of fluid were noted: Exhibit "1", Tab [3ii], p 65.
(55) On 12 December 2007, Dr Nigro made an entry in his notes concerning a notation of an x-ray and ultrasound of the right knee: Exhibit "1", Tab [3ii], p 63. Dr Nigro also referred the plaintiff to Bankstown Hospital gynaecology clinic for an opinion and management of an unspecified condition.
(56) On 17 January 2008, Dr Nigro referred the plaintiff to Dr Nasser for cardiological management. On the same date, Dr Nigro referred the plaintiff to Dr RJ Macaulay, for an opinion and management of her atrial fibrillation condition.
(57) On 22 January 2008, the plaintiff underwent cardiological investigation by Dr RJ Macauley for panic attacks, palpitations and related symptoms: Exhibit "1", Tab [3ii], p 52. On the same date Dr Nasser carried out investigations for atypical left-sided chest pain and intermittent palpitations: Exhibit "1", Tab [3ii], p 50.
(58) On 12 February 2008, Dr Macauley advised Dr Nigro that the plaintiff had idiopathic atrial fibrillation: Exhibit "1", Tab [3ii], p 49.
(59) On 31 July 2008, Dr Nigro made an entry concerning a notation of an x-ray of the right hand and wrist, for soreness, but which was reported as being normal: Exhibit "1", Tab [3ii], p 65. Dr Nigro certified the plaintiff to be suffering from recurrent and severe dental pain due to impacted molars and recurrent gum infections. Dr Nigro also made an entry concerning a notation of anxiety counselling, controlled breathing and relaxation techniques and cognitive behavioural therapy, as well as a notation concerning a long discussion with the plaintiff on chemical imbalances to, and treatment options for, depression aimed at elevating mood and improving memory, and in order to promote amenability to psychological review and psychotherapy: Exhibit "1", Tab [3ii], pages 65 and 66.
(60) On 27 August 2008, the plaintiff was investigated for right wrist problems secondary to previous surgery for carpal tunnel release: Exhibit "1", Tab [3ii], p 46.
(61) On 5 December 2008, Dr Nigro made an entry in his notes concerning a notation of the plaintiff having recurrent lower back pains and neck pains, and that the plaintiff was referred to a chiropractor: Exhibit "1", Tab [3ii], p 66. On that date, Dr Nigro again referred the plaintiff to Dr Nasser for cardiological management.
The above history of the plaintiff's health problems forms the relevant background to the assessment of the nature, extent and effect of the injuries she received in the accident which is the subject of this claim.
Before reviewing the chronology of the plaintiff's post-accident medical attendances, it is relevant to observe that the medical reports tendered by the plaintiff in these proceedings have only sparsely defined the nature and extent of her pre-existing or baseline medical conditions. The oral evidence did not add much more detail.
Post-accident medical and allied assessments
Before setting out my findings on the plaintiff's accident-related injuries and disabilities at paragraphs [87] - [107] below, it is necessary to review in chronological order, the details of the plaintiff's post-accident medical attendances between 8 January 2009 and the hearing on 13 and 14 February 2014.
Before setting out that chronological summary, for contextual and comparative purposes relevant to the assessment of the plaintiff's claim for damages for the loss of the amenity of her life, it is relevant to also set out some details of her medical referrals and attendances that are unrelated to the accident. These are as follows:
(1) On 4 May 2009, Dr Nigro referred the plaintiff to Dr Alan Flax for an eye examination. On 21 May 2009, the plaintiff was investigated for ophthalmic floaters: Exhibit "1", Tab [3ii], p 43.
(2) On 4 October 2009, Dr Nigro referred the plaintiff to Dr Alan Flax for an eye examination. On the same date, he referred the plaintiff to Dr Themos Gourlas for an opinion and management of an unspecified condition.
(3) On 29 October 2009, the plaintiff was investigated for urogynaecological problems: Exhibit "1", Tab [3ii], p 42.
(4) On 25 February 2010, Dr Nigro referred the plaintiff to Dr Kenneth Howison for an opinion and management of recurrent hoarseness of her voice.
(5) On 28 June 2010, the plaintiff was referred to Dr Nasser for a cardiological opinion and management of paroxysmal atrial fibrillation, a longstanding condition for which Dr Nasser had been treating her.
(6) On 1 July 2010, Dr Nasser investigated the plaintiff for atypical left-sided chest pain and atrial fibrillation: Exhibit "1", Tab [3ii], p 40.
(7) On 2 September 2010, Dr Nigro referred the plaintiff to Dr Howison for an opinion and management of recurrent hoarseness of her voice.
(8) On 7 September 2010, Dr Nigro referred the plaintiff to Dr Ronald Binetter for an unspecified condition requiring an opinion and management.
(9) On 20 September 2010, Dr Nigro referred the plaintiff to Dr Peter Aslan for an opinion and management of her condition of left renal calculus.
(10) On 27 September 2010, Dr Aslan advised Dr Nigro that the plaintiff had a small renal calculus causing her left flank pain: Exhibit "1", Tab [3ii], p 19.
(11) On 7 October 2010, the plaintiff was further investigated for her laryngocoele: Exhibit "1", Tab [3ii], p 20.
(12) On 8 October 2010, Dr Nasser carried out further investigations of the plaintiff's problem with atypical left-sided chest pain and atrial fibrillation: Exhibit "1", Tab [3ii], p 17.
(13) On 15 October 2010, Dr Nigro again referred the plaintiff to Dr Binetter for an unspecified condition requiring an opinion and management.
(14) On 22 November 2010, Dr Nigro referred the plaintiff to Dr Cole at St Vincent's Hospital for an opinion and management of her complaints of hoarseness and a recurrent sore throat in the context of the plaintiff being a heavy smoker, and following laryngoscopic diagnosis of a laryngocoele.
(15) On 8 December 2010, the plaintiff was noted to be depressed in connection with investigations recommended for the possibility that she may have some form of oropharyngeal cancer: Exhibit "1", Tab [3ii], p 14.
(16) On 8 February 2011, Dr Nigro referred the plaintiff to Dr Peter Papantaniou for an opinion and management of unspecified conditions.
The following chronological summary of the post-accident medical and allied assessments of the plaintiff has been extracted from the reports tendered by both parties and it appears in the paragraphs that follow. It sets out the plaintiff's extensive post-accident medical and allied referrals and attendances as mentioned in the documentary evidence.
On 8 January 2009, Dr Nigro noted that the plaintiff had been in a motor vehicle accident in which she had been struck from behind whilst in her stationary vehicle. Dr Nigro's notes indicate that he recorded a post-accident history of neck, lower back, left hip and right knee pains. Dr Nigro's notes revealed that on examination of the plaintiff, he found that she had spasms in her neck and in her lumbar muscles.
Dr Nigro issued a report stating that on that occasion, the plaintiff had reported pains in her neck, her lower back, her left hip and her right knee. The plaintiff has continued to see Dr Nigro for those problems ever since, on an approximately monthly basis. Dr Nigro reported that the plaintiff's psychiatric condition has deteriorated since the occurrence of the accident. Dr Nigro has suggested the plaintiff needs ongoing consultations with a general practitioner, psychological and psychiatric treatment, psychotropic medications and physiotherapy: Exhibit "1", Tab [3i], p 67.
Dr Nigro also gave oral evidence at the trial. I shall return to describe the substance of his evidence after considering the chronology of the post-accident medical reports and notes.
On 16 January 2009, at the request of Dr Nigro, the plaintiff underwent CT investigations of her cervical and lumbar spines. These were reported as showing the presence of posterior degenerative bulging of the C3/4 and C6/7 discs, more marked in the latter, with degenerative changes in the right C4/5 apophyseal joint. No significant abnormality or bony injury was found in the lumbar spine: Exhibit "1", Tab [3ii], p 44.
On 4 August 2009, Dr Nigro certified that the plaintiff needed an MRI examination of her right knee. On the same date he certified she needed more visits to an osteopath for treatment of her neck and back. On the same date, he referred her to Dr John Moses for an opinion and management of her chronic smoker's cough.
On 28 June 2010, Dr Nigro arranged a team care management plan for the plaintiff to have physiotherapy and possible chiropractic and orthopaedic treatment for her neck and back.
On 11 August 2010, at the request of Dr Nigro, the plaintiff underwent multiple MRI scans. These were of her cervical and lumbar spines, and her left hip and her right knee. These were reported as showing mild degenerative disc disease at C5/6 and C6/7 levels, no evidence of lumbar disc protrusions, normal findings in the left hip and a small area of post-traumatic bone oedema in the infero-lateral patella: Exhibit "1", Tab [3ii], pages 26 - 27.
On 29 September 2010, at the request of her solicitors and for medico-legal purposes, the plaintiff was assessed by Dr Robin Higgs, a consultant orthopaedic surgeon. Dr Higgs diagnosed the plaintiff as having suffered soft tissue musculo-ligamentous straining injuries to her cervico-thoracic and lumbar spines, each causing asymmetric restriction of movement, as well as left loin pain, and pain and crepitus in the right knee. He considered the prognosis for these conditions as having no significant improvement or deterioration in the foreseeable future.
On 1 October 2010, Dr Nigro prepared a general practice mental health plan for the plaintiff aimed at reducing her depression and melancholia, and preventing suicidal ideation.
On 15 December 2010, at the request of the solicitor for defendant in these proceedings, the plaintiff was examined by Dr Ian Barrett, a consultant orthopaedic surgeon. Dr Barrett examined the plaintiff and took a history of her physical injuries and their sequelae. He concluded that the plaintiff sustained relatively minor soft tissue injuries to cervical and lumbar spines against a background of pre-existing degenerative changes, as well as having sustained a direct blow to the tight knee.
Dr Barrett concluded that in the normal course of events, he would have expected the plaintiff's symptoms from those injuries to have cleared up in a matter of a week or two after the accident. In expressing that view, Dr Barrett did not seek to give consideration to matters outside of his specialty, namely psychiatric issues.
On 25 January 2011 at the request of her solicitor, the plaintiff underwent an assessment by Ms Elizabeth Allan, a consultant occupational therapist, who made a number of therapeutic recommendations, which will be analysed in connection with the assessment of damages.
On the same date, Dr Nigro referred the plaintiff to Dr Neville Rowden, an orthopaedic surgeon, for an opinion and management of her recurrent right knee pains.
On 22 March 2011, Dr Nigro referred the plaintiff to Dr P Empson, for an opinion and management of her psychological problems. At the same time, Dr Nigro referred the plaintiff for physiotherapy treatment to a clinic in Hurstville.
On 25 March 2011, Dr Nigro referred the plaintiff to Dr Peter Papantaniou for an opinion and management of her recurrent post-accident neck and low back pains.
On the same day, Dr Nigro again referred the plaintiff to Dr Rowden for an opinion and management of her recurring post-accident right knee pains.
On 7 May 2011, the plaintiff was assessed by Dr William Bye, a consultant orthopaedic surgeon in his capacity as a MAS assessor in these proceedings. Dr Bye considered that the accident had caused the plaintiff to suffer soft tissue injuries to the cervico-thoracic and lumbar spines in the presence of pre-existing degenerative changes in those areas, and a patella-femoral pain syndrome in the right knee. The purpose of Dr Bye's report was to determine whether, for the purposes of s 131 of the MAC Act, the plaintiff meets the whole person impairment assessment threshold for an entitlement to damages for non-economic loss.
Between June and September 2011, Dr Nigro prepared a general practice mental health plan for the plaintiff aimed at reducing her depression and melancholia, and preventing suicidal ideation.
On 15 November 2011, at the request of the Motor Accidents Authority, the plaintiff was assessed by Dr Enrico Parmegiani, a consultant psychiatrist and MAS assessor, whose report of that assessment was dated 6 December 2011. Dr Parmegiani considered that the plaintiff had major depression caused by the accident which was the subject of these proceedings.
On 12 January 2012, at the request of the solicitor for the defendant, the plaintiff was assessed by Dr Paul Friend, a consultant psychiatrist. Whilst Dr Friend reported that the plaintiff's condition satisfied the criteria for the diagnosis of major depressive disorder and adjustment disorder with anxious mood, he also pointed out that it appeared the plaintiff had symptoms of both anxiety and depression before the accident, and had been prescribed medications for both of these conditions before the accident, along with attendances upon psychiatrists and psychologists before the accident.
Dr Friend pointed to the sparseness of the pre-accident medical notes regarding her pre-accident symptoms of anxiety and depression. Dr Friend also noted that in 2008 the plaintiff had been awarded a disability support pension for symptoms that included heart palpitations, anxiousness, and stomach problems.
Dr Friend concluded that the plaintiff's pre-accident symptoms indicated that the plaintiff had at least a significant anxiety disorder which included panic attacks and possibly a depressive disorder prior to the accident. He also concluded on the basis of those matters, that the major depression which he also diagnosed, was not caused by the motor vehicle accident.
In expressing that opinion, Dr Friend emphasised that it was important to establish the plaintiff's pre-existing mental state and limitations before recommending treatment because of the likelihood that she had pre-accident anxiety and depressive symptoms sufficient to have had an adverse impact upon her day-to-day functioning.
These summarised views of Dr Friend were expressed in tentative terms because he considered that it was necessary to review further pre-accident medical information concerning the plaintiff's psychological state.
On 16 January 2012, the plaintiff was re-examined by Dr Barrett at the request of the solicitor for the defendant. Dr Barrett reviewed and reiterated his previous opinion and added that there were also "soft" signs of post-traumatic chondromalacia patella of the right knee.
On 24 May 2012, Dr Nigro sent the plaintiff for physiotherapy to her neck, back and right knee at the Peakhurst Community Centre. This treatment could not proceed, apparently because it was no longer available at that place.
On 5 June 2012, at the request of the solicitor for the defendant, Dr Friend prepared a supplementary report following the review of materials that had been sent to him for his consideration. That review was not based on any further consultation with the plaintiff.
Dr Friend's review of that material led him to conclude that the plaintiff had pre-existing diagnoses of major depression and panic disorder which had appeared to have developed in the 1990's, related to the separation from her husband, and her inability to cope with the increasing demands placed upon her at home and financially since her separation.
In his supplementary report following that review, Dr Friend made reference to material from a clinical psychologist with the Hurstville Mental Health team and dated 7 May 2002, which was some 7 years before the subject accident. That material indicated the plaintiff had a gambling addiction, and that she had no social network, and felt lonely. Dr Friend also made reference to a history of the plaintiff having been on the disability support pension since 15 October 1987 in connection with the permanent conditions of anxiety and depression, and of having been declared bankrupt in 1988.
Dr Friend also concluded that there was no evidence that the subject accident had caused an exacerbation or aggravation of those pre-existing conditions, or any additional psychiatric injury in the plaintiff.
Dr Friend was not required for cross-examination in respect of that view, and there was no expert evidence called on behalf of the plaintiff to contradict that view, which must therefore be examined for appropriateness in the context of the review of the evidence as a whole.
On 1 July 2012, at the request of her solicitor, the plaintiff was assessed by Dr Anthony Dinnen, a consultant psychiatrist. Dr Dinnen took a detailed history from the plaintiff, and he recorded that the plaintiff had denied any previous personal history of depression. Also, there was nothing disclosed in the history recorded by Dr Dinnen concerning the plaintiff's past addiction to gambling and her bankruptcy, all of which were relevant matters to a consideration of the nature and extent of her post-accident psychiatric condition.
Dr Dinnen expressed some doubt about the accuracy of the plaintiff's history of the absence of pre-accident depression in view of the previous low dosages of anti-depressant medication the plaintiff had been taking, and in view of the fact that she was in receipt of a disability pension.
Nevertheless, Dr Dinnen noted the plaintiff had a depressive (dysthymic) disorder . This was based upon a history of self-neglect, social isolation, poor inter-personal relationships in the family, and poor memory and concentration. He considered the plaintiff's reaction to her injuries had been disproportionate, and he suspected the existence of a significant amount of pre-accident health problems. He recommended the plaintiff obtain psychiatric treatment.
On 21 September 2012, at the request of the Motor Accidents Authority, the plaintiff was re-assessed by Dr Parmegiani, whose report of that assessment was dated 17 October 2012. Dr Parmegiani considered that the plaintiff had a permanent depressive disorder with chronic symptoms that acted as perpetuating factors for her psychiatric illness. In his final opinion, Dr Parmegiani stated:
"Following the accident itself, and following the onset of symptoms of chronic pain, she had experienced a relapse of her previously stabilised Major Depressive Illness. Persistent symptoms of chronic pain had acted as perpetuating factors, and her response to ongoing treatment had been limited. I am therefore of the opinion that the subject motor vehicle accident caused a recurrence of a previously recovered and stabilised psychiatric condition."
That opinion, and in particular the notion that there had been a recovery from a previous psychiatric condition, is a factual matter that requires evaluation in the context of the entire evidence.
On 27 November 2012, the plaintiff attended the emergency department of St George Hospital, where she was treated for chest pain, anxiety and stress.
On 28 August 2013, at the request of her solicitor, the plaintiff underwent a further occupational therapy assessment, this time by Ms Lee-Anne Wilson, a consultant occupational therapist. She assessed the plaintiff's needs concerning her activities of daily living and she made a number of therapeutic recommendations which will be analysed in connection with the assessment of the plaintiff's entitlement to damages for domestic assistance.
On 8 October 2013, at the request of her solicitors, the plaintiff was assessed by Dr John Davis, a consultant in occupational medicine. In addition to noting that the plaintiff had suffered mechanical injuries to the upper and lower spine with probable aggravation of some pre-existing asymptomatic degenerative changes in the neck, and trauma to the right knee, with a possible referred pain problem in the left hip, Dr Davis considered the plaintiff received a significant degree of psychological trauma, for which she needed psychiatric treatment. He stated that the plaintiff's prognosis was extremely guarded.
On 23 October 2013, Dr Nigro referred the plaintiff to Ms Martin Smith for an opinion and management of her post-accident symptoms of depression and anxiety. There is no report of the result of that referral.
It is necessary to analyse the detail and sequence of the preceding medical evidence in terms of the onus of proof borne by the plaintiff to establish the matters she seeks to prove as a foundation for her claim for damages in this case: s 5D and s 5E of the Civil Liability Act 2002.
Dr Nigro's oral evidence
Dr Nigro was called to give oral evidence in the plaintiff's case: T56 - T92. His clinical notes concerning the many individual consultations he had with the plaintiff over time, in the short form of an aide memoire, were in evidence.
When Dr Nigro was taken to his notes he could not recall the details of the causes, or the extent of various matters, of which the plaintiff had complained over time. This included matters such as her complaints of neck and back problems: T56.9; T73.19; T73.29; T73.44; T78.19; T80.45; T81.4. This also extended to aspects of the plaintiff's previous history of social distress; T77.13.
Dr Nigro considered it was possible the plaintiff's back problems were related to a 1994 motor vehicle accident, although he had not written that view down in his notes: T74.34. When he was taken to an orthopaedic opinion provided by Dr Dixon in 2008, which was to the effect that the plaintiff's back problems at that time were permanent, and due to a previous accident, Dr Nigro conceded that could have been the case: T77.36.
In the context of the 2009 accident, Dr Nigro commented on the plaintiff's post-accident complaints of neck and back pains compared to the pre-accident position, and he stated that those problems, on his impression, had become a lot worse since the 2009 accident: T65.49. In that context, he also added that the plaintiff's right knee problems had become a lot worse as well; T66.2
In relation to the plaintiff's psychological condition, when comparing the plaintiff's situation before and after the 2009 accident, at T68.1 - T68.15, Dr Nigro gave the following evidence:
"Q. Doctor, can you tell the court if you have noticed any change in the demeanour of the person who presents to you, Ms Biscontri, from the date of the accident up to now, compare that with the Ms Biscontri you knew from 1998 up to 2009. Have you noticed any change?
A. Yes. Quite a different person psychologically because we've been trying with our own counselling, and she needs more professional, more specialised help. Much more depressed now than before. Anxiety is more pronounced, and the recurrent pain, it doesn't help. But perhaps in the future with various therapies and treatment - it's hard to say what could happen in the future.
Q. It's over five years since the accident. Has time any input to treatment and its effectiveness?
A. It complicates the psychological treatment. It means it would be needed for much longer, and as time goes on any physical injuries tend to get - there's more degradation to the joints, et cetera, so that you tend to see it worsening."
The plaintiff's post-accident condition was complicated to a degree due to the fact that the CTP insurer declined to pay for some of the treatments that had been suggested for her: T23.31. As a result, her treatment for her psychological condition has been limited to medication and counselling provided to her by Dr Nigro.
Dr Nigro recognised that there were a number of stressors in the plaintiff's life that contributed to her present psychological condition, the present litigation being one such stressor. He agreed that once the present proceedings had been determined, that particular stressor would be removed: T68 - T69.
Dr Nigro's evidence of his impressions as outlined above provides some relevant background to the reading of the expert opinions dealing with the plaintiff's physical and psychiatric matters raised for consideration in these proceedings.
Findings on accident-related injuries and disabilities
It is clear from the medical evidence tendered that before the accident the plaintiff had longstanding pre-existing disabilities relating to her neck, her low back and her right knee, as well as psychological problems with anxiety. Those pre-accident problems seem to have been in part due to a previous motor vehicle accident in 1994, in part due to some altercations with neighbours, and in part due to other circumstances that have not been explained in the evidence.
It is also clear that before the subject accident the plaintiff had a series of other unrelated medical conditions, not all of which have been identified, but some of which were sufficiently debilitating to justify the plaintiff being granted a disability support pension by Centrelink.
That is the relevant background against which the subject accident occurred. In that regard, the defendant must take the plaintiff as she is found: Mt Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383, per Windeyer J, at [18], p 406.
I accept that in the accident in question, the plaintiff suffered injuries to her neck, her low back, her left hip and right knee. I find that those injuries, which were of a musculo-ligamentous nature, aggravated the plaintiff's underlying conditions concerning those affected parts, and caused the plaintiff to suffer an additional level of physical symptoms, although the expert evidence does not permit a reasoned analysis of the extent or duration of those additional symptoms.
I also accept that the effect of such aggravation injuries was to exacerbate, to some degree that has not been precisely defined in the expert evidence or the factual evidence, the plaintiff's previously existing problems with anxiety, panic attacks and depression.
Having considered the chronology of the plaintiff's pre-accident problems as documented in paragraphs [32(1)] to [32(61)] above, it is plain that the plaintiff did not enjoy robust good health before the subject accident, and she could therefore ill-afford to suffer those additional physical and psychological aggravations. She was a vulnerable person who was, on her medical history, pre-disposed to react poorly to the occurrence of such aggravating injuries. In that regard, the defendant must take the plaintiff as she is found: Mt Isa Mines Ltd v Pusey.
Accepting the foregoing matters, it nevertheless remains unclear on the medical evidence as to the degree and the duration of any lasting aggravating effects from those physical and psychological aggravations. This is an issue upon which the plaintiff bears the onus of proof: s 5D of the Civil Liability Act 2002.
In respect of the physical injuries, I have had regard to the unchallenged evidence of Dr Barrett to the effect that the injuries sustained by the plaintiff would have been expected to have resolved within a matter of weeks. However, that view must be tempered to a degree by the psychological effects the aggravation injuries have had upon the plaintiff and the impressions related by Dr Nigro. Properly, Dr Barrett did not express any views on that topic because it was outside his specialty.
However, the position with regard to the aggravation of the plaintiff's psychiatric condition also needs to be assessed.
The nature and extent of that aggravation is difficult to discern because, although there was extensive mention in the documentary evidence of the plaintiff having existing psychiatric problems, there was no comprehensive pre-accident psychiatric assessment report that could provide a reasonable baseline for assessment.
In my view, a reliable baseline must be established in order to enable a proper understanding of the plaintiff's level of pre-accident functioning in order to then achieve a reliable understanding of any changes in that position due to the accident.
Although Dr Dinnen did his best to address that issue, his report is of limited assistance in that regard because of the limited, and in parts, incorrect history given to him by the plaintiff. In view of Dr Nigro's records, it could not reasonably be said the plaintiff had no relevant pre-accident psychiatric history, which he had obviously obtained from her and from treating her over time. For that reason, in my view Dr Dinnen's opinion does not assist the plaintiff's case in identifying the extent to which the accident is responsible for her present psychiatric state.
Similarly, the psychiatric opinion of Dr Parmegiani also has to be viewed with some caution in light of the very sparse and limited psychiatric history he obtained from the plaintiff, which led to him concluding the plaintiff had recovered from her pre-accident psychiatric problems. That view was based on the plaintiff's account, which I consider to be of diminished reliability in view of her documented medical history.
Bearing in mind that the plaintiff carries the onus of proof in establishing the extent to which the accident in question materially aggravated her pre-accident condition, the position on the evidence in this case is the reverse of the position defendants usually face: Watts v Rake [1960] HCA 58; (1960) 108 CLR 158; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164.
Taking an overview of the medical evidence, when read with the evidence of the plaintiff and Dr Nigro, there are many unexplained gaps in the orthopaedic and psychiatric opinions. This indicates that a cautious approach should be taken to the assessment of damages in this case, insofar as the drawing of inferences as to causation of disability is concerned.
In coming to that view, I have not overlooked the oral evidence given by Dr Nigro as cited at paragraphs [79] to [86] above. Although Dr Nigro has observed that since the subject accident the plaintiff is quite a different person psychologically, with a greater degree of depression and more anxiety, not helped by recurrent pain, that opinion was in the nature of a "before and after observation", albeit a trained observation, not the subject of a rules compliant expert report. In my view, it is only soft evidence in terms of the causation analysis required by s 5D and s 5E of the Civil Liability Act 2002.
I consider that the reports of Dr Friend tendered by the defendant more accurately sum up the true position, namely, that the evidence does not reasonably permit a definitive assessment of the cause and extent of the plaintiff's ongoing accident-related psychological disabilities, as distinct from her pre-existing psychological problems. This state of the evidence must have a limiting influence on the task of assessing damages.
With regard to the plaintiff's claim of physical injuries, I accept the opinions of Dr Bye, Dr Higgs and Dr Barrett to the effect that there was an aggravation of the plaintiff's pre-accident problems in the areas of the plaintiff's neck, low back and right knee.
I have some reservation about the extent of the aggravation to the plaintiff's right knee problems, which were first noted by Dr Nigro in November and December 2007, see paragraphs [32(52)-(53)] above, and because the orthopaedic examinations arranged in respect of the plaintiff's right knee on 25 January 2011 and 25 March 2011, were not the subject of reports, notwithstanding that Dr Nigro had expressly sent the plaintiff to see Dr Rowden on those occasions for an orthopaedic opinion and management of her right knee problem. This is a matter upon which the plaintiff bears the onus of proof. I do not consider that the evidence of the plaintiff is itself reliably probative on this issue.
Insofar as the plaintiff's neck, low back and related problems are concerned, given the longstanding pre-existing problems the plaintiff had in those areas, the evidence in support of a conclusion that there has been a lasting and material aggravating effect on those pre-existing problems, is meagre. The same comment applies to the aggravation of the plaintiff's pre-existing psychiatric problems.
The findings outlined above have a significant bearing on the extent to which an assessment of monetary damages can be justified on the evidence adduced in this case.
Mitigation
The plaintiff has a duty to mitigate her damages: s 136 of the MAC Act. The defendant did not argue that there had been a relevant failure on the part of the plaintiff to do so: T50.
Assessment of damages
In the paragraphs that follow, after identifying the plaintiff's probable statistical life span, I set out my assessment of the plaintiff's entitlement to damages on the heads of damage that she is entitled to claim.
Probable life span of plaintiff
In approaching the assessment of the plaintiff's entitlement to damages, there is nothing that reasonably arises from the evidence to suggest that the usual statistical median life span would not apply to the plaintiff's circumstances. At the age of about 52 years, the plaintiff has a rounded down probable median statistical life span of a remaining 36 years.
Non-economic loss
On behalf of the plaintiff it was submitted that the detail disclosed in her evidence, and in the medical evidence she has relied upon supports an award of damages for non-economic loss in the amount of $250,000. In contrast, on behalf of the defendant, it was submitted that any award of damages for non-economic loss should not exceed $100,000.
My assessment of the plaintiff's entitlement to damages for non-economic loss must be guided by giving due recognition to the plaintiff's pre-accident health situation, as set out at paragraphs [32(1) to 32(61)] above, as aggravated by the subject accident.
I have set out my analysis on those matters between paragraphs [87] to [107] above.
In my view, the evidence adduced does not clearly or reliably define the extent of the material difference between the plaintiff's pre-accident disabilities concerning her neck, back, right knee and psychiatric conditions, and any lasting aggravating effects caused by the accident. This is a matter upon which the plaintiff carries the onus of proof, and where the inferences sought by the plaintiff, must be based on firm evidentiary foundations. Such inferences should not be mediated by unsupported speculation: Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352. The impressions of Dr Nigro are of limited weight in discerning the aggravating effects of the accident, as those views were not the subject of an expert opinion, and were offered in passing.
In the circumstances described, in my view, the plaintiff's entitlement to damages for non-economic loss must be seen to be somewhat circumscribed. In assessing damages for non-economic loss for ongoing loss of amenity of life I have been influenced by the defendant's concession that the plaintiff should have some damages for future treatment expenses. That said, such a concession is of no real assistance in defining the extent to which the plaintiff's pre-existing conditions have been materially aggravated by the subject accident. As a result of the foregoing analysis, doing the best I can on the evidence adduced, I have concluded that the plaintiff's damages for non-economic loss should be assessed in the amount of $110,000.
I therefore award the plaintiff damages for non-economic loss in the amount of $110,000.
Future paid domestic assistance
On behalf of the plaintiff it was submitted that an allowance should be made for future domestic assistance in respect of 4 hours per week at the rate of $40 per hour or $160 per week, which, over the plaintiff's remaining statistical life span projected at 5 per cent (x 884.8) is the equivalent of $141,568.
In contrast, on behalf of the defendant, it was submitted that at best, if any such allowance were to be made for this head of damage, it should not exceed the projected value of 1 to 2 hours per week. At the defendant's submitted hourly rate of $37.50, on the above basis, that projection equates to a range of damages for future domestic assistance of between $33,180 and $66,360.
The defendant's submission in that regard makes no allowance for discounting factors for potential adverse vicissitudes, which I consider to be highly relevant in this case in view of the plaintiff's extensively documented and significant pre-existing problems which I consider would have likely had a deleterious impact upon the plaintiff's future capacity, uninjured, to carry out the tasks for which a claim is now made.
Bearing those pre-existing matters in mind, and having due regard to the plaintiff's obligation to discharge the burden of proof for a contrary position to prevail, I consider that a substantial discount for adverse vicissitudes should apply to damages of this kind if they are to be awarded. In my view, on the evidence, that discount should be 60 per cent to reflect those very significant pre-existing problems. This would have the effect of reducing the defendant's submitted range for future domestic assistance from $33,180 to $66,360 down to a discounted range of between $16,500 and $33,180.
However, notwithstanding the above analysis and the defendant's submitted concession of between 1 to 2 hours of assistance, for the reasons that follow, I consider that no such allowance should be made in favour of the plaintiff in respect of this claimed head of damage.
I consider that the range of inabilities of the plaintiff to perform housework and domestic activities as outlined in the Centrelink documents indicates that the plaintiff had a substantial pre-accident inability to carry out such activities. That view is also supported by the pre-accident medical evidence of extensive pre-existing adverse health issues, as summarised at paragraph [32(1) to 32(61)] above.
The evidence adduced in this case does not reasonably define the material accident-related difference between the plaintiff's pre-accident abilities and inabilities to perform domestic tasks and her claimed post-accident need for such assistance.
The relevant pre-accident conditions of the plaintiff's neck and back were chronic, as was the plaintiff's pre-accident depression, anxiety, and her predisposition to panic attacks.
The evidence does not reasonably permit a cogent non-speculative means by which to differentiate the level of assistance that would have been at some stage required by reason of the pre-accident condition, and any additional level of assistance that might be due to the effects of the subject accident.
That is a matter upon which the plaintiff carries the burden of proof. In that regard, given the plaintiff's deficient memory for events, I am not prepared to accept as probative, her own evidence on this aspect of her claim insofar as she asserts or implies that she was fully able to carry out those domestic tasks before the subject accident.
I consider that the occupational therapy recommendations made by Ms Allan and Ms Wilson in favour of providing the plaintiff with such assistance were made on the basis of incomplete and unsatisfactory histories of the plaintiff's pre-accident physical, psychiatric and medical situation. Accordingly, any recommendations made on the basis of those histories are flawed and should not be accepted.
I therefore make no allowance for damages for claimed future domestic assistance.
Future treatment
On behalf of the plaintiff, a claim is made for future treatment expenses in the amount of $27,544. On behalf of the defendant, it was submitted that it would be reasonable to allow an amount of $10,000 in respect of this head of damage.
The plaintiff has claimed the ongoing cost of monthly visits to a general practitioner, fortnightly psychological and psychiatric services, monthly physiotherapy treatment, anti-depressant and anti-inflammatory medication costs, and other physical therapies.
I consider that the amount claimed on behalf of the plaintiff is excessive having regard to the extent of her pre-accident medical history demonstrating an array of medical problems, including problems of the kind she claims in these proceedings. Those pre-accident issues must be seen as representing an ongoing need that would have prevailed irrespective of whether or not the accident had occurred and it would have given rise to a need for a pattern of consultations of the kind now claimed by the plaintiff.
In my assessment, having regard to the pattern of pre-accident consultations the plaintiff had for neck, back and psychological problems, the limited histories and insufficiently informed basis upon which the plaintiff's experts have provided opinions on the need for future medical treatment, I consider that the plaintiff has not discharged the onus of demonstrating that all the claimed future expenses would relate to the effects of the accident, as distinct from being due to the ongoing effects of her longstanding pre-existing conditions.
That said, given the aggravating effects of the accident on the plaintiff's underlying conditions as found at paragraphs [87] to [107] above, I consider that some allowance should be made in favour of the plaintiff for future treatment expenses.
In the circumstances, I consider that the buffer concession made within the defendant's submissions on this issue is a reasonable one and it should be accepted as representing fair compensation for the plaintiff in respect of this head of damage.
I therefore award the plaintiff damages for non-economic loss in the amount of $10,000.
Past out-of-pocket expenses
On behalf of the plaintiff it was submitted that the plaintiff's claim for past out-of-pocket expenses should be assessed in the sum of $9704.55, comprising the following elements:
(a) An amount of $2715.40 being amounts paid by the CTP insurer pursuant to s 83 of the MAC Act;
(b) An amount of $1409.15 being amounts paid on behalf of the plaintiff by Medicare;
(c) An amount of $5580 odd for an MRI scan payable to Macquarie Radiology.
The defendant argued that the fee charged by Macquarie Radiology was excessive and unreasonable, and it should be assumed that the amount has been unreasonably calculated to include an element of uplift which the defendant should not be required to pay as damages for out-of-pocket expenses.
There was no evidence called by the defendant to support the contention of an uplift component or with regard to argument as to the asserted excessiveness of the fees charged for the MRI scans in question. The Court has no way of ascertaining, without evidence, that the said fee in question is excessive as alleged.
The MRI scans in question covered multiple areas of the plaintiff's spine. It is therefore apparent that there was more than one scan or series of scans involved. It can be further assumed, reasonably, that such scans are expensive. Furthermore, the scans in question were in fact ordered by the plaintiff's treating doctor. In those circumstances, the Court has no reasonable way of arriving at the asserted conclusion that the claimed expense is excessive, or if so, to what degree. In those circumstances, I consider that the disputed element of the claim for MRI scans should be allowed.
I therefore award the plaintiff damages for past out-of-pocket expenses in the amount of $9704.55.
Summary of damages assessment
My assessment of the Plaintiff's damages is summarised as follows:
(a) Non-economic loss
$110,000
(b) Future domestic assistance
Nil
(c) Future out-of-pocket expenses
$10,000
(d) Past out-of-pocket expenses
$9,704.55
Total
$129,704.55
Disposition
The plaintiff has established an entitlement to damages assessed in the amount of $129,704.55.
Costs
As the plaintiff has succeeded in securing an entitlement to a verdict and judgment in her favour, she is therefore entitled to an order that the defendant pay her costs of the proceedings on the ordinary basis unless a party is able to show an entitlement to some other order for costs.
Orders
I make the following orders:
(1) Verdict and judgment for the plaintiff in the sum of $129,704.55;
(2) The defendant is to pay the plaintiff's costs of the proceedings on the ordinary basis, unless a party can show an entitlement to some other order for costs;
(3) The exhibits may be returned;
(4) Liberty to apply on 7 days notice if further orders are required.
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Decision last updated: 01 April 2014
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