Branka Matijevic v Darryl John Taylor and Insurance Australia - [2013] ACTSC 192

BRANKA MATIJEVIC v DARRYL JOHN TAYLOR & INSURANCE AUSTRALIA

[2013] ACTSC 192 (23 September 2013)

NEGLIGENCE – personal injury – motor-vehicle accident – where driver alleged loss of consciousness – cough syncope

DAMAGES – personal injury – back injury – psychiatric condition – no issue of principle

Civil Law (Wrongs) Act 2002 (ACT) s 45

Davis v Bunn (1936) 56 CLR 246
Kalavrouziotis v Howel (1998) 27 MVR 367
Leahy v Beaumont (1981) 27 SASR 290
Macerola v GIO (1990) 11 MVR 575

No. SC 832 of 2010

Judge: Master Mossop
Supreme Court of the ACT

Date: 23 September 2013

IN THE SUPREME COURT OF THE     )
  )          No. SC 832 of 2010
AUSTRALIAN CAPITAL TERRITORY           )

BETWEEN:BRANKA MATIJEVIC
Plaintiff

AND:DARRYL JOHN TAYLOR
First Defendant

AND: INSURANCE AUSTRALIA T/A NRMA INSURANCE
Second Defendant

ORDER

Judge:  Master Mossop
Date:  23 September 2013
Place:  Canberra

THE COURT ORDERS THAT:

There be judgment for the plaintiff against the defendants in the sum of $414,434

The usual order as to interest.

Unless either party notifies my associate by email within 14 days that the party wishes to be heard in relation to the question of costs, the defendants pay the plaintiff’s costs of the proceedings.

This is a claim for damages arising out of a motor vehicle accident on 21 May 2009. The plaintiff’s vehicle was struck by an oncoming vehicle which had crossed over to the wrong side of the road. The first defendant was the driver of the oncoming vehicle. The second defendant is the first defendant’s third party insurer, joined to the proceedings pursuant to s 151(2) of the Road Transport (Third-Party Insurance) Act 1999. The defendants contend that the accident occurred without negligence on the part of the first defendant because he suffered an event of cough syncope.

The plaintiff was born on 16 October 1974 making her 38 years old at the time of the hearing. She completed year 11 at Lyneham High School where she was an average student. She left school to do a beauty therapy course and commenced a one-year diploma course in mid-1993 at the Stephanie Roberts Beauty Academy in North Lyneham. She concluded that course in mid-1994. She hoped to get a job in the beauty industry with her younger sister. In 1992 she commenced a relationship with John O’Rourke whom she ultimately married in 1996. Prior to their marriage she started doing the book work for her husband’s plumbing business, Woden Plumbing and Drainage. In late 1995 she commenced working at Gloria Marshall as a weight loss consultant. She worked 40 hours a week at premises in Phillip. Her job involved weighing customers, assisting them in using the machines at the premises and discussing with them their diet plan.

On 9 February 1996 the plaintiff fell down stairs at work. She hurt her neck and her lower back near her coccyx. Following that injury she suffered from migraines and had physiotherapy for several months before attempting to return to work on a part-time basis. Her employment was terminated. She continued to suffer from headaches and tinnitus. She was divorced from John O’Rourke in 1998.

In 1999 her workers compensation and common law claim against her employer was resolved. In February 1999, shortly prior to the resolution of that claim, the plaintiff was examined by Mr Leigh Nomchong, a clinical psychologist, at the request of her solicitors. Mr Nomchong reported that she complained at that stage of a number of symptoms including pain from the right side of her head, neck and shoulder, constant headaches which fluctuated in intensity, sometimes increasing to a point where her eyes would burn and she would begin vomiting. She also complained of blackouts and dizziness. She described irritability and abuse of alcohol. Mr Nomchong described Post Concussion Syndrome and Agitated Depression as a result of chronic pain. He assessed her as being capable of working up to 20 hours per week. A report from Dr Colin Andrews, consultant neurologist at the same time, recounted his history of treating the plaintiff in 1996, 1998 and 1999. He said:

There has been a fall down stairs. I don’t think there has been any significant head injury but there has been an injury to the neck causing cervicogenic headache. The treatment for that has been unsatisfactory to date and further treatment possibly with a facet joint block may need to be performed. She is currently fit only for part time clerical duties.

In around September 1999 she moved to Perth as she had relatives there. She commenced work in a retail chain store called Westco. For the first eight to ten weeks she was employed as a retail manager and worked full-time. She was then promoted to Area Manager, a position in which she was responsible for the management of more than 20 stores across Perth. After about two months she found this job too much to handle and she ceased work there. In early 2000 she commenced full-time employment at the Goldie Ford dealership in Perth. She was there involved in what is known as “aftermarket sales”. That involves selling accessories or upgrades to persons who have made the decision to purchase a new vehicle. By May or June 2000 she was missing her family and returned to Canberra.

After looking for employment for some months she commenced work in aftermarket sales as an employee of the Motor One Group in about September or October 2000. That involved her working more than 40 hours per week on a salary plus commission basis. Although employed by the Motor One Group she was physically placed at the John McGrath Ford dealership where she sold aftermarket products to purchasers of new cars. In early 2001 she began working with another Ford dealership in the ACT doing the same kind of work. She worked there for about 12 months until John McGrath Ford asked her to return. She returned there in July 2002, initially part time. By September she had the expectation that, after she returned from a holiday, she would be obtaining full time work due to another staff member leaving.

However on 8 September 2002, when holidaying in Melbourne, she was involved in a motor vehicle accident. She had been passenger in the vehicle, sitting behind the front passenger seat, when the driver lost control in wet conditions and collided with a tree. She lost consciousness during the accident. She sustained injuries to the top left of her head and suffered pain in the left hand side of the neck and lower left side of her back. She spent one or two nights in hospital. Following that accident she had flashbacks which she described as like having a video of the accident playing in her head over and over. She was prescribed medication by her GP, Dr Mitar Milosevic. She was referred to a psychologist, Mr David Gorovic.

Following the accident she received payments from the Victorian Transport Accident Commission. In July 2003 she returned to work at John McGrath Ford on a casual basis. She also worked on weekend sales for Gregory Motors. In July 2004 the Transport Accident Commission, which had been paying her loss of earning capacity benefits, wrote to her indicating that, in its view, she had substantially recovered. The medical reports available to the Commission dated April and June 2004 indicated that she was either fit to return to her pre-accident employment or was within three months of being able to achieve full-time work capacity. As a consequence, the Commission indicated that it would continue paying benefits only until 26 November 2004. It offered to refer her to a specialist organisation that could assist her in returning to the workforce.

In early 2005 she moved to Sydney and continued employment in aftermarket sales but this time in a floating role moving between different dealerships. This continued until she ceased work prior to the birth of her son.

In July 2005 the plaintiff filed an application for review of the decision of the Transport Accident Commission to cease paying earning capacity benefits on 26 November 2004. The application asserted that she remained incapacitated for employment due to transport accident injuries. The proceedings were listed for hearing on 21 June 2006. That hearing date was vacated and the matter listed for hearing on 5 February 2007. On 25 January 2007 the application for review was dismissed with no order as to costs.

In March 2006 she saw Dr Michael Epstein, a psychiatrist, for the purposes of her transport accident claim arising out of the Victorian motor vehicle accident. She reported to him that:

(a)she continued to suffer from pain on both sides of her neck into her left shoulder and down her left arm with pins and needles and numbness in the left forearm and hand;
(b)she had low back pain extending into both legs and to her feet;
(c)she could sit for 15-20 minutes and walk for about an hour slowly;
(d)she had difficulty bending and lifting;
(e)she continued to have nightmares about the accident two nights per week;
(f)at times she felt hopeless, helpless, useless and worthless when in pain and during those times became tearful;
(g)she had difficulty with self-esteem and self confidence;
(h)she did very limited house work and avoided bending and lifting;
(i)she rarely socialised and had panic attacks every two or three days.

He diagnosed her as having Post-Traumatic Stress Disorder and mild Adjustment Disorder with depressed mood. He described her as having a psychiatric impairment arising from the accident of 12% and the impairment was permanent and her condition was stable.

On 18 September 2006 her son Daniel was born. She continued for a period to work on weekends in a floating role while her sister minded Daniel. Notwithstanding the situation reported to Dr Epstein, her evidence was that at this stage she had no physical restrictions in caring for her baby. She remained in Sydney for a short period doing some limited work before returning to live with her parents in Canberra.

In April 2007 she was seen by Dr Colin Andrews who recorded her as being tender on the right at L4/5 and in the neck region on the left at C2/3. He indicated that he would treat her with a facet joint block on the right at L4/5 and review her.

From the birth of her son until March 2008 she cared for her son and her income was almost exclusively government benefits.

Between March and May 2008 she returned to John McGrath Ford working at the Motor One Group approximately 30 hours per week. Later in 2008 she moved to Commonwealth Motors in Philip where she worked on a contract basis until February 2009.

In February 2009 she commenced a beauty therapy course with an organisation called Optimum Training and Development. This was a package of courses which could lead to a Certificate IV in Beauty Therapy. It started initially with various Certificate II courses and she completed those courses and was awarded the certificates in June 2009.

In May 2009 she commenced part-time employment with Tarocash, a retail chain store which sold men’s clothes and accessories. She started as a part-time sales person with the intention of working her way up to full-time employment and becoming the manager of one of the stores. When she applied for the position she met with the area manager for Tarocash. She explained that she had finished in the car business and was not intending to return. She said she would like a job in retail. It was her goal to work her way up in retail, to look after her son and to do beauty therapy on the side. She said that the manager listened to what she had to say and gave her the position which was a casual position. The manager said she did not have a full-time position at the moment but she could work around it and get the plaintiff on board. She said that she thought there were people who were going to leave or change hours and that this might give an opportunity for the plaintiff to work full time when that work was available. The plaintiff’s evidence about the circumstances of her employment was corroborated by Lauren Laing, the area manager who interviewed her and offered her the job.

The plaintiff’s evidence was that she had no physical difficulty in doing the job. The documentary evidence in the form of her group certificate indicated that she only earned $191 from Tarocash prior to the accident on 21 May 2009. This was the equivalent of around seven or eight hours work or two of the shifts which casual employees worked.

The plaintiff’s evidence was that the only disability which she suffered at that stage was the occasional migraine. She said she had no problems with her lower back. She said that the flashbacks were not happening because she was seeing Mr Gorovic.

On 21 May 2009 she was involved in the accident which has led to these proceedings to which I will return in some detail below.

She had bruising from the seatbelt, a sore right shoulder down to her arm, a sore right hip, pain in her knee as well is her ankle. She spent about six hours at Calvary Hospital and her sister took her home. The next day she saw a female general practitioner at the practice of her usual GP, Dr Milosevic.

After that she did not return to work at Tarocash. She said she had constant back pain, that her migraine was “1000 times worse” and that it would sometimes stay for days. She said that one of the psychological impacts of the events was that she had what is like a constant video in her mind of the accident, worse than that which occurred after the 2002 accident. The flashback involved trying to make eye contact with the driver of the vehicle before it hit her. She described herself as being unable to sleep and that she “could not find peace”.

In August 2009 she commenced the Diploma in Beauty Therapy. She got credits towards this course as a result of having completed the earlier certificates. She continued doing units as part of this course up until December 2010 but, unlike her sister, Dusanka, who had enrolled at the same time, did not complete the Diploma.

On 21 July 2009 she was reviewed by Professor K Nandana Chandran. At that stage she was sore and suffering from sharp pain in her middle and lower back, squeezing pain in the sacrum area and shooting pain down her leg. Standing or sitting made her pain worse. The only relief that she got was when she was lying down. She had not suffered from pain like that before. Professor Chandran recommended surgery.

On 25 August 2010 she underwent surgery with Professor Chandran which involved an L3/4 disc excision and demcompression of L5/6. Following surgery she had 10 to 12 nights in hospital. The shooting pain was not as severe. The reports of Dr Chandran indicate that her post-operative course was rather slow and coloured by her intolerance to pain. He recorded that she had an extended period in hospital and needed a great deal of encouragement. In October 2010 he recorded “[o]n the whole, she herself admits to considerable improvement but needs a bit of encouragement to get better.”

She returned to live at her parents’ house. Her mother and sister provided assistance to her following surgery. She needed assistance with showering and dressing and had difficulty managing because her parents lived in a two-storey duplex and her bedroom was upstairs. She found getting up and down the stairs difficult.

After the accident she was not able to look after her son very much. That situation continued following surgery. Her mother continues to do most of the household work. Some four years after the accident the plaintiff still suffers from chronic pain. She is on a disability pension. She takes a large variety of medication not only to manage her pain but also to manage her depression.

As at August 2012 she was taking Aspirin, Endep, Fentanyl, Lyrica, Relpax, Stemetil and Valium. In August 2012 she saw Dr Justin Pik in relation to pain in her coccyx. At that stage, surprisingly, she specifically denied any pain in her lumbar region and said that she had a very long history of pain around her coccyx. Dr Pik recorded “the patient pointed out that her pain has always been in the coccyx whereas all of her imaging and surgery have been targeting her lumbar spine”. The doctor recorded that he had not been able to detect any surgically correctable condition as a cause for her symptoms in the coccyx. He said he would review an MRI of the coccyx when it was available.

The plaintiff described her daily routine as follows. She wakes up at about the time that her parents leave for work and takes medication in order to reduce her pain and make it easier to get up. She takes a combination of Oxynorm, Endone, Mersyndol and Nurofen. She varies the combination that she takes because she understands that by varying the combination of drugs she helps to maintain their effectiveness.

On Mondays, Tuesdays and Wednesdays, when her mother is at work, she gets up and makes breakfast for Daniel. Her mother has generally prepared his lunch the night before. Although the school which Daniel attends is only a short walking distance from her house, she drives him to school because she can’t walk because of pain in her back and her hip. Sometimes, because of her levels of pain she is not able to get her son to school until 10 am or 11 am. This is something that her son does not like because he does not like being late for school. On Thursdays and Fridays her mother takes him to school and the plaintiff rests. When the plaintiff returns home she generally watches television on the lounge where she can lie down, which is the position most comfortable for her. She tries to pick her mother up on Monday, Tuesday and Wednesday and then drives to pick up Daniel. She comes home and gives Daniel afternoon tea. Her mother does most of the housework although she tries to help with the cooking. This is possible because it does not take long and she is not in any one position for too long. She said that she would feel guilty if she didn’t attempt to assist in this way. Her mother generally puts Daniel to bed because she has usually dozed off as a consequence of her medication by about 7 pm.

The plaintiff described the 2009 accident as having a significant effect on her life, contrasting her situation prior to that after the accident. She said that she only went out socialising with the encouragement of her mother and sister, who push her to go out, but she doesn’t feel comfortable leaving the house and would prefer to stay home. She described herself as having put on weight since the accident and that is something which upsets her.

She said that she had joined a gym seven or eight weeks before the hearing and she goes to the gym but suffers afterwards for about four or five days. She also did pilates in Braddon but no longer does. She doesn’t do much walking because of pain.

During 2012 there was a time when she was feeling suicidal. She couldn’t handle the pain and the guilt associated with relying on her mother for assistance and not being able to care for her son. She was referred by her GP to Dr May Matias, a psychiatrist. The plaintiff said that she currently saw her GP about once a week and is seeing Dr Matias about once every three weeks although it used to be once a week.

The plaintiff described herself as being unable to resume her past employment in aftermarket sales, retail or beauty because of her pain and her lack of confidence. She also described the anxiety associated with seeing the scene of the accident during the course of the view and the difficulties that she has with going near in order to drop her son at his karate classes.

Liability

The crossing of the first defendant’s vehicle to the wrong side of the road and its collision with the plaintiff’s vehicle would, unless explained, be sufficient to establish negligence. That is because the occurrence of events which did not involve negligence in those circumstances are sufficiently unusual to make it more probable than not that the accident was the result of some negligence on the first defendant’s part: Davis v Bunn (1936) 56 CLR 246 at 260 per Dixon J; see also Kalavrouziotis v Howel (1998) 27 MVR 367 at 369. The reasoning process that can lead to a finding of negligence is neatly illustrated in a slightly different factual context by Clarke JA in Macerola v GIO (1990) 11 MVR 575 at 575: “It is not usual in the ordinary course of human affairs for vehicles to be driven from the road into telegraph poles in the absence of negligence. The inference that should be drawn, prima facie, therefore is that negligence occurred.”

The defendants’ case is that they are not liable because the first defendant’s actions were not negligent. His case is that the accident was a consequence of him suffering, without any warning or history, an episode of cough syncope. That is a condition which involves a loss of consciousness due to coughing, the precise causal mechanism of which is not known to medicine.

Facts relating to accident

Because the defendants have pleaded that the accident was a consequence of the first defendant suffering from cough syncope my findings in relation to the accident are of considerable significance.

On 25 May 2009 the plaintiff was driving south down Nettlefold Street in Belconnen. She was going to pick up her mother from work. Her mother worked at the Calypso Cafe which is located in the Australian Bureau of Statistics building in Belconnen. The plaintiff was travelling at around 60 km per hour down the road in the area near where Oatley Court comes off Nettlefold Street and before the road bends to the left. She noticed a red vehicle coming towards her. She could not recall how far away it was when she first saw it. She observed it to leave its side of the road. Her evidence was that she observed the driver with his right hand on the wheel and his head turned to the left looking down. She recalled trying to make him see her. She tried to veer to the left side of the road but the vehicle struck the driver’s side front door. She heard a bang as his car bounced off hers. She was pushed against the door. Her car stopped on the left hand side of the road between where Park Street and Oatley Court come off Nettlefold Street.

She said she was not able to get out on her own and that someone called Scott helped her get out of the vehicle. She said that she sat on the curb and, even though she didn’t smoke, she needed a cigarette. After the collision, the driver of the other vehicle came down and said “I don’t know what happened”. When the ambulance arrived her evidence was that the driver of the other vehicle said that he had finished doing an appraisal and didn’t know what happened although he had been feeling a bit fluey recently.

I do not accept that the plaintiff’s evidence that the first defendant’s right hand was on the wheel is reliable. There is no record of any description of where the first defendant’s hands were in the contemporaneous police report. That report simply records that the plaintiff observed the first defendant “with his head down just prior to the collision”. That does not indicate that the plaintiff did not see something on that occasion since there is no evidence as to precisely what she was asked by the police officer and what the police officer thought was significant to record at that stage. However, the absence of a record at that time means that the Court is deprived of contemporaneous evidence to corroborate what the plaintiff now says. The first record of the plaintiff saying that she saw the first defendant’s hands on the wheel was in the instructions to Professor Naughton in November 2010, by which time it was clear that the possibility of cough syncope was a live issue and hence her instructions obtained in the context of that issue. The plaintiff’s evidence about what she saw varied over time. The instructions referred to in the letter to Professor Naughton were that she observed both of the first defendant’s hands on the wheel. In oral evidence, she said that she observed the first defendant’s right hand on the wheel and that he appeared to be looking down and to the left.

Having regard to the variations in the plaintiff’s evidence over time, my observations of the plaintiff when giving her evidence and the medical evidence, particularly of Mr Tom Sutton to which I will refer below, I am not satisfied that the oral evidence of the plaintiff that she observed the first defendant’s right hand on the wheel is reliable.

That conclusion is also consistent with the circumstances in which she had the opportunity of making such an observation. She could not recall for how long she observed the first defendant’s car coming towards her and there was no particular reason for her attention to be focused on viewing, through the windscreen, the position of the first defendant’s hands. It is more likely that, consistently with what she told the police, she made an observation of the first defendant’s head because she was, in the moments before the accident, clearly concerned to see whether the first defendant had seen her and was going to alter his trajectory prior to impact.

The result of this finding is that there is no evidence about the position of the first defendant’s hands immediately prior to the impact. The evidence does not establish that they were on the wheel or off the wheel.

In terms of the position of the first defendant’s head, I am satisfied that the first defendant’s head was down and that he was not looking forward in front of him. Having regard to my concerns about the reliability of the plaintiff’s evidence, I cannot find on the balance of probabilities that his head was positioned in a way consistent with him looking at something on the passenger seat to the left of him.

As at May 2009, the first defendant ran his own business as a real estate agent. The first defendant gave evidence that he had been suffering from flu-like symptoms for a couple of days prior to the day of the accident. I treat his evidence as not being evidence of influenza per se but rather of some variety of virus making him feel unwell. He described taking a cough suppressant on the evening before. He was feeling unwell enough to limit the amount of work that he did to his three previously booked appointments. He was travelling home up Nettlefold Street when the accident occurred.

He recalled passing Bob Jane T-Mart and waking up to a bang. He subsequently recalled coughing prior to the accident. He recalled coughing five, six or seven times. He was asked what was the last location that he could recall. His evidence was “Probably the car park, possibly. You know, where the – in between the funeral parlour and the – I think it’s the government depot, I think, on the left hand side”. His evidence on this point appeared to me to be tentative and unreliable. The first defendant was likely to be reconstructing the location based on his familiarity with the street and his recollection of having passed Bob Jane T-Mart. His next memory was of a “[b]ang and darkness”. He managed to get the car to stop. The photographs show that it was stopped in the middle of the lane on the wrong side of the road. It was not neatly parked by the curb of the road. Its front right wheel was severely damaged and had been scraping along the road since the point of impact. The first defendant agreed that he walked back and spoke to the plaintiff. He asked her whether she was alright. She said it brought back bad memories from another accident. He could not recall saying that he did not know what happened. He could not recall saying that he had just finished an appraisal at Emu Bank and that he had been feeling a bit fluey for the last couple of days, even though both of these things were in fact true.

As to what was said by the first defendant at that point, I am satisfied that he said that he did not know what had happened. Because of my concerns about the reliability of the plaintiff’s recollection, I am not satisfied that he made specific reference to having just finished an appraisal or that he was feeling a bit fluey. In the circumstances of the immediate aftermath of the accident comments like that do not appear to me to be comments likely to have been made by the first defendant.

The first defendant said that in the days prior to the accident he had “seen stars” and felt faint when he had coughed. This had occurred more than once but he could not recall how many times. He could not recall whether it had occurred when driving. It did not cause him alarm. He denied looking, in the moments before the accident, at the appraisal which he had just completed and denied failing to pay proper attention to the road. He denied that he was looking to the left. He said he coughed five, six or seven times and that they were long coughs. He couldn’t recall whether the coughs caused his body to shake or whether he had placed his hand over his mouth. He agreed that the coughing was quite different from that he had experienced over the couple of days before the accident. He agreed that he could have stopped his vehicle or slowed down when he was coughing. In cross-examination he at times asserted that he had blacked out. However I do not place any weight on that assertion given his limited recollection of events and the fact that if he had blacked out he would, necessarily, have been unconscious of that fact. In re-examination he said that he had never previously experienced a prolonged coughing fit while driving. There was, however, no report of coughing to police at the time of the accident.

The ACT policing crash report indicates that the accident was reported at either 2.33 or 2.35 pm. On the basis of discussions with both drivers, Constable Damien Quinn recorded:
D1 stated she saw D2 with his head down just prior to collision.
D2 stated to Police that he did not recall anything after driving past the Tyre store (Bob Jane T Mart) and “awoke” due to the collision.
The report also includes:

Police attended Calvary Hospital where both D1 & D2 were transported by ambulance. D1 sustained bruising. D2’s Doctor stated D2 had lost consciousness prior to the accident causing loss of vehicle control. D2 remained in Hospital for further testing to determine cause for his loss of consciousness.

The officer’s notebook includes, in relation to the first defendant, “no recollection of incident.”

A nurse practitioner saw the first defendant at Calvary Hospital and recorded “? Syncopal episode whilst driving”. It is not clear what was said by the first defendant or observed by the nurse practitioner that led to this note. This is the first reference to the possibility of syncope of one sort or another.

The notes of Dr Lindsay Clark who saw the first defendant in the emergency Department of Calvary Hospital record that he had had a cold and cough and had started taking Robitussin two nights previously. He had had a dose at 8 am and 12 noon. He had a “limited recollection of events leading up to accident” and was “unsure about accident”. He knew that he must have sideswiped ongoing traffic and remembered hearing a loud bang of the collision. He “subsequently has recollected having coughing fit”. He was “still vague about events preceding accident”. The notes appear to indicate a tentative diagnosis of “presyncope” rather than syncope.

The discharge summary included:

[d]riving through Belconnen, little recollection of events? why. Sideswiped oncoming car. No obvious injury.… Later recollected had a coughing fit whilst driving, barely aware of events until struck car, then full recollection.

Notwithstanding that the coughing was not immediately reported to police, I am satisfied that the first defendant did cough prior to the impact. His evidence on this was not substantially affected by the cross-examination, it is consistent with the unchallenged evidence that he was sick enough to cut short his work obligations on that day and it is consistent with what he told the hospital shortly after the accident.

Precisely where this coughing fit started was significant because the medical evidence established that it was extremely unlikely that a person suffering from cough syncope would be able to have driven a vehicle around a right-hand bend up a hill over a distance of 300 m from Bob Jane T-Mart to the scene of the accident. It was more possible if the coughing fit had occurred substantially up the hill after a right-hand turn and the uphill portion of Nettlefold Street had been negotiated.

Having regard to the first defendant’s evidence that he coughed severely on five, six or seven occasions, it is likely that the coughing fit occurred over at least 10 seconds.

Medical evidence going to liability

Three doctors gave evidence in relation to cough syncope. Professors David Barnes and Matthew Naughton were called by the plaintiff. Dr Chris Steinfort was called by the defendants.

Associate Professor Barnes is a clinical associate professor at the University of Sydney. He is a member of the Department of Respiratory and Sleep Medicine at Royal Prince Alfred Hospital. Two reports of his were in evidence, a report of 18 August 2011 and a report of 2 July 2013. In the report of 18 August 2011 he noted that cough syncope is an uncommon clinical event but nonetheless well recognised. He said that the literature on the subject was very poor quality with most reports being a description of the clinical scenario rather than a detailed analysis of the underlying mechanisms, prevalence and consequences. The commonest scenario in his clinical experience was that of an individual who develops a paroxysmal cough in association with a viral upper respiratory tract infection. He recognised that his overall assessment of the matter was critically dependent on the veracity or otherwise of the description of events leading up to the collision and events immediately following the collision. There were a number of factual matters which led to his conclusion that it was unlikely that the first defendant blacked out. They were:

(a) the absence of a period of paroxysmal coughing prior to the accident of which the first defendant was aware;

(b) the observation that the first defendant was seen holding the steering wheel prior to the impact because if there had been a loss of consciousness he would not have been able to continue to hold the steering wheel;

(c) the observation that he was looking down rather than slumped over the wheel was also less consistent with a loss of consciousness;

(d) the fact that the first defendant was able to continue driving for a reasonable distance after the collision and then park the car was inconsistent with cough syncope because a capacity to carry out complex motor activities like driving and parking would not be expected to occur in such a short time after recovery from an episode of syncope.

His report of 2 July 2013 was in response to the report of Dr Steinfort dated 30 May 2011. He agreed that the history recorded by Dr Steinfort was, when taken in isolation, consistent with an episode of cough syncope. However, he pointed to the length of time that would have been taken to drive from Bob Jane T-Mart to the site of the accident, the observation of both hands on the steering wheel and that the first defendant’s car was parked were inconsistent with a cough syncope episode. Thus, his difference of opinion was critically dependent upon the facts.

In oral evidence Professor Barnes accepted that cough syncope was a rare but real condition. He described it as extremely rare, seeing a case only every few years. He said that before the loss of consciousness “it’s usually not just one or two quick coughs. It’s usually protracted coughs with no gap in between and usually over a – roughly 30 second period would be an average, in my experience.” He thought it was absolutely implausible that a person suffering from cough syncope could have negotiated the uphill right hand turn in Nettlefold Street if the event had occurred 300m from the scene of the accident. He also said he thought the first defendant would have been unable to park the car after the accident. If the first defendant lost consciousness only 80 m from the scene of the accident, he said it was unlikely that the first defendant would be seen with his right hand on the wheel since the loss of consciousness leads to a complete loss of muscle tone and he could not be holding on to the wheel. On the first defendant’s version of events Professor Barnes considered that if he had had an event of cough syncope then there would have been no hands on the wheel and the first defendant would have fallen to one side, not just his head but his whole body, although it was feasible that a modern seatbelt might have restrained him somewhat. He recognised that his opinion was very much dependent upon the facts saying “[i]f his hands were not on the wheel then that may change the conclusions you could make on this occasion.”

Professor Matthew Naughton is the head of General Respiratory and Sleep Medicine Service at the Alfred Hospital in Melbourne. His first report was based on the fact that the first defendant had no memory after passing Bob Jane T-Mart, travelled 550 m, negotiated a right-hand turn over a period of 30 seconds and, after the collision, drove a further 150 m before stopping. He said there was no evidence from the medical reports that the first defendant had coughing or a seizure which might explain a period of altered conscious state. On that basis he said it was “an extremely unlikely diagnosis” because

(a) there were no reports of the first defendant coughing;

(b) cough syncope is a rare condition usually seen in patients with advanced combined heart and lung disease with vascular disease;

(c) the event described lasted 30 seconds which is in excess of syncope seen with coughing which is less than 10 seconds;

(d) “[p]atients are aware of cough syncope and would have the time to pull over, take their feet off the accelerator or break [sic] and cease driving totally”.

In his report of 10 August 2011 he responded to the report of Dr Steinfort dated 30 May 2011. His opinion remained unchanged. He referred to a number of limitations in the medical literature concerning cough syncope and pointed out: (a) there was no evidence that cough syncope was reproducible with Mr Taylor; (b) coughing has been shown to augment cardiac output and maintain consciousness; (c) the abrupt loss of blood flow to the brain can be achieved but only at pressures that cannot be achieved naturally; (d) a study of 100 drivers over 12 months showed that there were no events of cough syncope but 8295 evasive manoeuvres, 761 near crashes and 69 crashes; (e) he had never actually witnessed a patient experiencing cough syncope. One patient described by colleagues as having cough syncope was a young man in his twenties with cystic fibrosis. He referred to a chapter in a book Older Road Users: Myths and Realities, Guide for Medical and Legal Professionals which includes a short section that he wrote on cough syncope. That makes brief reference to the condition and says:

in clinical practice, cough syncope is extremely rare. When observed, it usually occurs in patients with chronically impaired venous or arterial blood supply to the brain in the setting of advanced end-stage lung disease in a relatively young person (e.g. cystic fibrosis) who is capable of generating sufficiently high pleural pressures to impede venous return.

In his oral evidence Professor Naughton emphasised the rarity of the condition. He said that nobody was aware of the precise mechanism except for the fact that you needed to have a very forceful cough and be able to generate high pressures within the chest. While he recognised that it was a real condition he said that a loss of consciousness was more often reported by patients than demonstrated to exist by doctors. He described the condition as being “very rare” and said that it was necessary to exclude all other possible causes. His opinion was that it was extremely unlikely in a person with no cardiac, pulmonary and neurological symptoms and no asthma. He was not convinced that a cold or bronchial infection was sufficient to cause cough syncope. He said that for it to occur it usually required a permanent cardiac pulmonary or neurological condition. He said there was usually, during the coughing, a gradual alteration in conscious state.

He referred to the 100-car study to which he had made reference in his report which studied 43,000 hours of driving and showed that there were no episodes of syncope. That was consistent with a study that he had conducted of all the patients at the Alfred Hospital presenting over a 12 month period for motor vehicle collisions which demonstrated no cases of cough syncope. He pointed out that he had heard the complaint of syncope but had never seen a patient reproduce it. He described the diagnosis as a diagnosis of exclusion once inattention or cardiac or neurological causes were ruled out. Because the first defendant didn’t suffer from any relevant conditions, he thought that it was very unlikely that he suffered an event of cough syncope. Like Dr Barnes he considered that travelling 300 m after an event of cough syncope was not plausible. On the assumption that the first defendant travelled only 80 m, he agreed that the five second travelling time was becoming consistent with cough syncope but did not think it was likely because of the first defendant’s normal health, that he had no other syncopal episodes and that the condition was such a rare one based upon the “100 car study”. He also thought the timeframe was a bit long for a syncopal episode. He said that the more common event was a pre-syncopal episode where consciousness was maintained. He agreed that if a hand was observed to be gripping the wheel that was not consistent with syncope.

In cross-examination Professor Naughton said that a syncopal episode was usually less than five seconds and he was not aware of it being as long as ten. He said that the very common reason for a head being slumped forward would be because the driver was asleep and that was far more common than cough syncope. When asked to assume the first defendant’s version of events he said:

Look, it is possible that this was cough syncope for the reasons that I have already outlined, I would not be - with cough syncope as my first - as the likely diagnosis would be bad medicine. I don’t think we could - to say that that is a typical case of cough syncope and attribute it to cough syncope is not what we practice in Australia 2013. We would be looking for other causes.

Those other causes were neurological causes or inattention. He said that all cases of cough syncope brought to his attention have had vascular, neurological or cardiology features. He said that to have cough syncope in the setting of normal lungs is extremely uncommon. He said that in his hospital, where approximately 30 doctors saw 10,000 to 15,000 patients a month, only one case had been brought to his attention and that was in somebody suffering from cystic fibrosis. A physiotherapist who had been testing for a particular form of pneumonia amongst HIV patients in a way which induced coughing in young men and had conducted that testing twice a week over a ten-year period and reported no examples of cough syncope. The doctor recognised that sometimes it is never possible to drill down to an exact cause of an accident such as this. He saw the clinical picture disclosed by the hospital records as inconsistent with the kind of respiratory complaint that he saw as consistent with cough syncope. He particularly referred to the clear x-ray and the absence of any fever. He had seen many people with a reported history of cough syncope but had never seen a demonstrated case of cough syncope in the sense of seeing an episode in front of him. At the end of his evidence he said:

[s]o I am sceptical about cough syncope. I’m not sceptical to the point that I’m going to rule it out completely because I think there are patients who do have it and they’ve usually got cardiac or pulmonary or neurological problems.

Dr Steinfort is a thoracic physician and is head of the respiratory unit at the Geelong Hospital. He prepared two reports, one dated 30 May 2011 and one dated 15 July 2013. In his report of 30 May 2011 he said that he has established a database of everyone that he has seen in his private practice over the last 16 years and that there are 24 entries where cough syncope was his diagnosis. Of those, eight had been involved in motor vehicle accidents as a direct consequence of the cough syncope. The total number of patients in his database was over 8000. He examined Mr Taylor in his surgery. The history he took was of a respiratory infection for two days prior to the accident with symptoms of chest tightness, a runny nose and frequent coughing. Paroxysms of coughing occurred at the rate of two to three per hour, generally of between two and four coughs. He had not blacked out or suffered syncope but had noted brief light-headedness and “spots in front of his eyes” lasting a few seconds during the coughing. The last thing he recalled was a prolonged bout of coughing of five or six coughs and then next recalls hearing a loud collision. He refers to the medical literature on cough syncope and says that the description given by Mr Taylor “is entirely in keeping with a clinical diagnosis of cough syncope”. He disagreed with Professor Naughton’s conclusions in his report of 22 November 2010. He said that his estimate of a four or five second loss of consciousness was consistent with the first defendant’s vehicle having travelled 80m as outlined in the police report. He also disagreed with Professor Naughton’ statement that the onset of a syncopal event was gradual being usually preceded by presyncope.

Dr Steinfort’s report of 15 July 2013 is in response to Professor Naughton’s report of 10 August 2011. The tone of Dr Steinfort’s report is rather combative. He identifies that the exact mechanism of cough syncope has not been adequately elucidated although he has a working hypothesis that it results from a pressure pulse into the cranium acting as a water hammer shock to the brain stem. He addresses the issue of reproducibility of cough syncope by patients being observed and notes that in one study referred to by Professor Naughton cough syncope was only a reproducible on a voluntary basis by one in every 20 patients. He attached to his report a draft of the paper submitted to the Medical Journal of Australia which includes two tables outlining various features of patients diagnosed with either single episodes or multiple episodes of cough syncope. In those tables, most patients have chronic obstructive pulmonary disease and only two had bronchitis. Both of those patients also had other conditions, in one case chronic obstructive pulmonary disease and in the other case mild asthma.

In oral evidence, he agreed with Professor Barnes’ evidence that cough syncope was most commonly associated with chronic lung or heart disease but not necessarily so. He described a diagnosis of cough syncope as:

... fundamentally a simple diagnosis. People have a single or multiple episodes of coughing and then they blackout which they cannot remember and they regain consciousness often with a brief period as described in the literature of perhaps some blurred vision or some little bit of confusion lasting split seconds.

He described this case as “a classical case of cough syncope based on the history that Mr Taylor gave to me”. He agreed that it was an uncommon clinical event but disagreed that it was only reached after exclusion of all other causes. He did not agree that it was exceedingly uncommon for cough syncope to occur when all other tests had been normal. He accepted that in his study there were only two people in that study who had bronchitis as opposed to a more chronic condition such as asthma or chronic obstructive pulmonary disease. He agreed that if Mr Taylor lost consciousness after passing Bob Jane T-Mart he would have regained consciousness well before the accident site. He agreed that the symptoms recorded by Mr Taylor of dizziness or light-headedness and spots across his eyes were suggestive of cerebral circulation impairment and that pre-syncope would be a reasonable interpretation of those symptoms.

Conclusions on liability

I am not satisfied that the plaintiff has established on the balance of probabilities that the first defendant was distracted immediately prior to the accident because he was looking down at the appraisal which was on the seat next to him.

The facts as I have found them are that:

(a)    shortly before the accident the first defendant was observed to have his head down;
(b)   the first defendant lost control of the vehicle some time after passing Bob Jane T-Mart;
(c)    the first defendant coughed five, six or seven times prior to the accident over a period of at least 10 seconds but not longer than the 17 seconds that it would have taken to travel the distance from Bob Jane T-Mart to the location of the accident;
(d)   after the accident the first defendant suffered from a period of confusion;
(e)    the first defendant’s vehicle was rendered undriveable from the point of impact and was not parked appropriately but instead left where it stopped in the middle of the road.

In relation to the medical evidence, the facts as I have found them are consistent with the opinion of Dr Steinfort. Although Professor Barnes’ did not ultimately express a concluded opinion on a scenario that corresponds to the facts as I have found them he appeared to accept that they would be consistent with an event of cough syncope.

In terms of the forensic contest over the features of this case and the consistency with cough syncope, the defendants were successful in establishing a version of the facts which was consistent with an episode of cough syncope. However, that still leaves the opinion of Dr Naughton which emphasised the extreme rarity of the condition, particularly where there were no underlying cardiac or pulmonary conditions.

Does the evidence as to cough syncope mean that the plaintiff has failed to establish on the balance of probabilities that the accident arose from the first defendant’s negligence? In my view, it does not. That is because it remains more likely than not that the accident was caused by inattention or other failure to maintain proper control over the vehicle during a period when the first defendant could have had proper control of the vehicle rather than being a consequence of an event of actual unconsciousness over which the first defendant had no control.

I reach that conclusion largely because I accept Professor Naughton’s evidence about the rarity of the condition of cough syncope and the unlikelihood of it having occurred in the absence of any more serious condition than an upper respiratory tract infection which did not warrant attending a doctor. The evidence about the absence of reports of cough syncope at the Alfred Hospital, in the “100 car study” and as reported over a ten-year period by the physiotherapist treating HIV patients satisfies me that it is an extremely rare condition.

On the facts that I have found the alternative scenarios are an event of cough syncope on the one hand, or an occasion of non-specific inattention or distraction associated with an extended bout of coughing, up to and possibly including an event of presyncope, on the other. The latter is a more common event and, save in one respect, consistent with the facts. The one respect is the references in the first defendant’s evidence to “blackness”. This evidence is more consistent with a period of unconsciousness than with the maintenance of consciousness. There was no reference to “blackness” in the contemporaneous hospital records. Having regard to the first defendant’s limited recollection of events prior to the accident I do not think that it is safe to place too much significance on the references to “blackness”. In any event, such references can also be explained by an extended period of coughing including a period during which the first defendant’s head was down leading to his vehicle straying from the left-hand lane so as to strike a glancing blow to the plaintiff’s vehicle. Whether or not the first defendant was unconscious or simply not paying full attention, the occurrence of the collision is likely to have left him in a state of confusion as to what occurred.

In the light of the medical evidence it is clear that cough syncope is a possible explanation for the accident but, having regard to its rarity, I cannot say that it is likely in the sense of more probable than not. The reality is that it is impossible to, as Professor Naughton said, “drill down” to precisely what happened. In those circumstances, I am satisfied that it is more likely than not that the accident was caused by the negligence of the first defendant, namely, a period of non-specific inattention or allowing himself to be distracted from the proper control of the vehicle as a result of an episode of coughing that did not involve a loss of consciousness.

Because I have reached this conclusion it is not necessary to decide the alternative argument put forward by the plaintiff, namely, that the first defendant was negligent in failing to stop driving when he suffered the coughing fit because of its duration and intensity and the fact that, in the days prior to the accident, he had “seen stars” and felt faint as a result of coughing. However I note that it was on that basis that the plaintiffs in Leahy v Beaumont (1981) 27 SASR 290 succeeded. That was a decision of the Full Court of the Supreme Court of South Australia. Having regard to the remarkable similarity to the facts of the present case, it is surprising that neither party referred to it.

In that case a 44-year-old male driver who was suffering from “a cold” or a “bit of bronchitis” crashed into a shop. The claim of negligence was defended on the basis of inevitable accident due to an event of cough syncope. The defendant could recall coughing but could not recall the accident. That coughing fit was a distressing and prolonged coughing fit more severe than any that he had previously experienced. He had suffered some light-headedness from smokers cough on some previous mornings but not leading to unconsciousness or anything like it. He did not expect the coughing to become a coughing fit leading to unconsciousness. The medical evidence given in the case was very similar to that given in the present case. The trial judge found, having regard to the evidence that coughing of eight to ten seconds would proceed any period of unconsciousness, that the defendant was negligent. The trial judge found that it was not necessary to decide whether he actually became unconscious and said:

I find [the defendant] was negligent in that he failed in the circumstances to exercise proper control of his vehicle by continuing to drive east along Halifax Street after suffering a coughing fit which he either knew or should have known was affecting or was likely to affect his capacity to drive. It may well be that he did not know such a fit could lead to unconsciousness but this, in my view, does not matter. His duty, in my opinion, was to moderate his driving as soon as a coughing occurred and this he failed to do.

The Full Court unanimously upheld that decision on appeal. Three separate judgments were delivered. In his reasons Justice White emphasised the high standard of care owed by car drivers, saying (at 294):

The law of negligence requires not only a high standard of care by car drivers, but also uses the objective standard of a reasonable, fit, alert driver. It does not allow for the individual idiosyncrasies or weaknesses of the particular driver nor readily accept any difficulties created for him by ill-health or distraction. This is true to some extent in relation to traffic offences –more so in respect of claims in tort.

Every driver, even a learner driver, an aged and infirm driver, a sick driver, a driver suffering from fear of spiders, bees and moths in the car, a driver suffering a severe coughing fit "must drive in as good a manner as a driver of skill, experience and care, who is sound in wind and limb, who makes no errors of judgment, has good eyesight and hearing and is free from any infirmity:" per Lord Denning MR in Nettleship v Weston [[1971] 2 QB 691 at 699].

Medical evidence going to damages

The consequences of the accident for the plaintiff are complicated by her personality and how she has reacted to the physical result of the accident. The physical and psychological consequences of the accident and their relationship to her earlier injuries are described in the medical evidence which is summarised below. The principle issues agitated at the hearing were:

(a) the extent to which the plaintiff’s complaints of pain had an organic basis;

(b) insofar as they did not have an organic basis, the extent to which they were the result of conscious or unconscious exaggeration;

(c) the prospects of the plaintiff returning to paid employment following the conclusion of these proceedings having regard to the plaintiff’s history of returning to work after past injuries.

Dr Griffith

Dr Graeme Griffith prepared two reports, the first dated 25 February 2010 and the second dated 13 July 2012. The symptoms described in the 2010 report were pain in the cervical region which often goes on to become a frank migraine. He also reported that psychologically she was not coping well and that she had a depressive sleep pattern with early-morning waking and rumination and thus chronic tiredness and lethargy. He said:

In the index injury of 21.5.09, your client suffered:
1. Nervous shock - resolved.
2. Acute muscular ligamentous strain cervical and cervicodorsal soft tissues-resolved.
3. Contusive injury from the seatbelt - resolved.
4. Contusive injury to the right knee - resolved.
5. Contusive injury to the right upper arm/shoulder - resolved.
6. Acute sprain left sacroiliac joint.
Sequelae:
1. Persistent cervical and cervicodorsal myalgia.
2. Cervicogenic occipitofrontal headache going on to migraine (with an up to daily frequency).
3. Persistent lumbar myalgia.
4. Persistent left sacroiliac arthralgia.
5. Probable accelerated degenerative spondylosis of lumbar spine.
6. Now chronic adjustment disorder with elements of depression and anxiety.
7. Probable chronic neuropathic pain state.

His report of 13 July 2012 is an updated assessment. He carefully reviewed the reports with which he was provided and performed another physical examination. He recorded “[y]our client is obviously highly pain focused, and exhibited evidence of embellishment from time to time as specified.” He said “[u]nfortunately she remains significantly symptomatic in multiple regions with persisting psychological sequelae which remains intrusive also, and which account for a large part of her current clinical manifestations.” He considered that while the plaintiff was not in a state of pristine good health prior to the accident, there was no doubt the accident greatly exacerbated her symptoms. He revised his diagnosis of degenerative spondylosis to report a frank protrusion at L3-4 and a disc bulge at L5 and to take into account the surgery that the plaintiff had had. He recorded possible pituitary dysfunction and added a diagnosis of post-traumatic stress disorder. He thought that on the balance of probabilities the bulge at L5-S1 related to the accident rather than spontaneous degenerative change. His prognosis was generally pessimistic having regard to the length of time which the plaintiff was symptomatic. He expressed the view, strictly beyond his area of specialised knowledge or expertise but nevertheless realistic that:

Employers will simply not entertain employing individuals who represent potential ongoing pecuniary liability and whose efficiency in the workplace is almost certainly severely compromised, whether from physical or psychological reasons.

Dr Griffith was not required for cross-examination.

Dr Milosevic

Dr Milosevic was the plaintiff’s general practitioner. He provided a report which was received by the plaintiff’s then solicitors on 3 May 2010. It recorded details of the plaintiff’s treatment by Dr Milosevic. In relation to her pre-existing injuries he recorded “it is my opinion that Ms Matijevic did exhibit minor symptoms related to the above-mentioned medical conditions prior to the accident in May 2009”. He also reported again on 21 December 2010. He expressed the opinion that the injury of 21 May 2009 significantly contributed to the plaintiff’s need for spinal surgery in August 2010. He also expressed the opinion that Ms Matijevic will suffer permanent partial loss of function of her lower back. He said that she was currently suffering from low back pain which had improved since surgery. He said she had persisting weakness in her lower limbs though once again with gradual improvement. He said her post-traumatic stress disorder remained. He described her lower back disability as directly related to and caused by the accident. He recorded that she was at that stage unfit for work because of the accident. He recorded that her lumbar spine is likely to be further affected by degenerative changes.

Mr Gorovic

Mr David Gorovic, a psychologist reported on 12 October 2009. At that stage he had seen the plaintiff on 19 occasions. He diagnosed her with post-traumatic stress disorder. He expressed the opinion that her PTSD symptoms, which he listed, and the resulting emotional restrictions and impairments, were causally related to the motor vehicle accident. He said that she had made very good progress and would continue to do so. She had been able to resume driving but still experienced frequent anxiety and occasional panic. He believed she would be able to make a full psychological recovery. Another report dated 16 November 2009 was in similar terms but with recommendations about future treatment if she suffered relapses in the future.

Mr Gorovic was not required for cross-examination.

Associate Professor Chandran

Associate Professor Chandran reported to the NRMA on 21 July 2010. He reported that the plaintiff had been under his treatment and that she had failed to respond to extensive conservative therapy and was then in need of surgery “in the form of L3/4 decompression, disc excision and insertion of a Wallis device and a look at the L5/S1 possibly, just decompressing the nerve root.” The letter sought approval for that to be done.

His clinical file was also in evidence which described his consultations with the plaintiff and the nature of the operation that he carried out.

Dr Chandran was not required for cross-examination.

Dr Le Leu

Three reports of Dr Leon Le Leu were in evidence dated 16 August 2010, 2 October 2011 and 8 April 2013. Dr Le Leu is an occupational physician. For the purposes of his report of 16 August 2010 he undertook a detailed examination. He supported the recommendation that she undergo surgery. He was of the opinion that there was a direct relationship between the need for surgery and the 2009 accident. He thought it was too early to make an assessment of her permanent disabilities because of the possibility of surgery. His diagnosis of the plaintiff’s condition was:
Exacerbation of pre-existing degeneration of the cervical spine
Possible bicipital tendinitis of the right shoulder (no imaging done)
Disc protrusions at L3/4 (with indentation of the theca) and L5/S1
Possible meniscal tears of both knees (no imaging done).
In Dr Le Leu’s report of 2 October 2011, he reported that he examined her again and made a similar diagnosis of her condition. He said that she was not fit for any work of a moderately to highly physical nature but that she might be now fit consideration for a sedentary position at low hours.

Dr Le Leu reported again on 8 April 2013. He recorded in detail her current symptoms, undertook a detailed physical examination and recorded his conclusions. He recorded the diagnosis as:

· Exacerbation of pre-existing degeneration of the cervical spine with disc protrusion of C3/4 – there has been further slow improvement after two years but it is inevitable she will be left with symptoms in this area.

· Rotator cuff injury to the right shoulder – some significant improvement since last time raising the possibility that further recover may occur.

· Disc protrusion at L5/S1 now operated on with improvement in symptoms but ongoing leg pain.

· Uncertain condition in both knees.

He recorded improvements in her functioning in that she was walking without a crutch or walking stick, her range of neck movement had improved, her right shoulder movement had greatly improved, grip strength was now close to normal range and there was better movement in her lumbar spine. He thought that her condition had stabilised and further improvements would be marginal. He said there was a residual major disability. She remained unfit for work of a moderately to highly physical nature. He said that her main limiting factor on work was her psychiatric state and deferred to the opinions of Dr Matias and Mr Sutton. He said that her right shoulder, lumbar spine and knee conditions were likely to suffer earlier or more rapid degeneration as a consequence of the accident. He said:

On the basis of her three presentations to me I think it is highly unlikely she will ever return to full-time work in any sphere. Nevertheless, there were signs of improvement on this occasion so I think it is possible that, once cleared by her psychiatrist and psychologist, she should be able to return to part-time work. It is unlikely she would ever be able to get beyond half-time because of her levels of pain.

He thought that even if she did return to work then she was unlikely to be able to work beyond the age of 55. Dr Le Leu gave oral evidence and was cross-examined.

There were two issues with Dr Le Leu’s evidence that emerged in cross-examination. Firstly, he was clearly originally not aware of some significant aspects of the plaintiff’s history. He accepted, when it was put to him, that her returns to work in 1999 and 2005 indicated that she had a “significant degree of resilience”. Secondly there were a number of Waddell’s signs which indicated some exaggeration of symptoms.

His opinions about causation were not significantly undermined in so far as he relied upon the two MRI scans which appear to indicate a substantial worsening of the disc bulge at L3/4 over the time following the accident which suggested an acceleration of a process during that period. He had also taken the Waddell’s tests into account which were also consistent with being a product of her psychiatric condition. In relation to the prognosis and recovery his opinion was not significantly qualified by Mr Crowe’s cross-examination about her early return to work after proceedings were concluded because he did say that he accepted that she was actually capable of returning to work from a physical point of view and was really only constrained by her psychiatric condition in relation to which he deferred to the opinion of others. He noticed an improvement in her physical condition on the three occasions on which he reported on her in relation to this accident.

Dr Brooder

Dr Ron Brooder is a consultant neurologist. He reported to the plaintiff’s solicitors on 17 February 2012. He was briefed with a large number of medical reports and undertook an examination of the plaintiff. He said that there was a causal nexus between the need for surgery and the injury that she sustained on 21 May 2009. He said that there was a direct causal nexus between the motor vehicle accident and the need to prescribe morphine opiates but could not determine any causal nexus between the accident and her reduction in cortisol levels. He considered it unlikely that the plaintiff would ever be fit to resume full-time employment. He said that the diagnosis of persistent cervical pain was consistent with muscular-ligamentous injury involving the supporting structures of her cervical spine and particularly the ligamentous support of the cervical facet joints associated with aggravation of the underlying multilevel degenerative changes involving her cervical spine. The diagnosis concerning her right shoulder pain was consistent with a soft tissue and ligamentous injury involving the supporting structures of her right shoulder. The diagnosis concerning her persistent central low back pain is consistent with aggravation of degenerative changes involving her lumbosacral spine, particularly at the L3/4 level associated with a requirement to undergo a lumbar fusion procedure. Her anxiety was consistent with post traumatic stress disorder. He recorded that her prognosis remained guarded and that she was going to have persistent pain and associated disability to some degree indefinitely. His opinion was that her disability was caused by the motor vehicle accident that occurred on 21 May 2009. He thought that her condition had essentially stabilised. His opinion was that she had pre-existing multilevel degenerative changes and that these were aggravated by the accident on 21 May 2009.

Dr Brooder was not required for cross-examination.

Dr Tran

Dr Tuan Tran is a general practitioner who has been the plaintiff’s treating doctor since October 2010. In a letter dated 12 November 2012 Dr Tran recorded her conditions as chronic severe neck and back pain due to exacerbation of pre-existing degeneration of cervical spine and lumbar spine associated with L3/4 disc protrusion, hypogonadism due to prolonged use of narcotics, depression and migraines. Dr Tran thought the prognosis was guarded and said that she should limit the use of Oxynorm and Fentanyl patches.

Dr Tran reported again on 3 July 2013. The diagnosis remained the same. The plaintiff’s medications included Endone, Fentanyl, Lyric, MS Contin, Endep, Seroquel, Zomig, Prednisolone, Temazepam. His recommended treatment included pain management, losing weight, anti-depression medication and psychological counselling. He said the prognosis was poor and that the plaintiff was currently totally incapacitated for work.

Dr Tran was not required for cross-examination.

Mr Sutton

Mr Thomas Sutton, a psychologist prepared a report dated 15 November 2012. That report was based on assessments of the plaintiff undertaken on 11 July, 18 September and 15 November 2012. He administered a number of psychometric tests and his conclusions can be summarised as follows:

(a)    she had impaired memory across all domains worse than 99% of her age group and significantly poorer than 75-84 year-olds;
(b)   reasoning was in the low to average range;
(c)    motivation to perform optimally on cognitive testing varied between sessions meaning that test results of memory and reasoning may not be valid and that her motivation varied between poor and adequate effort to perform well;
(d)   there was poor psychological pain management compared to other patients with constant pain and she has “too many maladaptive beliefs and illness focused behaviours, too few adaptive beliefs and very low levels of belief and confidence that goals can be achieved and activities undertaken despite the pain”;
(e)    no valid measure of her emotional status could be obtained because of extreme negative impression management on both occasions;
(f)    compared to patients with constant pain she was far more preoccupied with her physical health, suggesting a large psychological or emotional component contributing to her condition.

Mr Sutton’s opinion was:

Ms Matijevic has a histrionic personality style, which interacts with her physical ailments and causes them to be debilitating. She has concrete thinking, will vary in her motivations to perform well or exaggerate her conditions, and is reinforcing her pain by a number of maladaptive beliefs and coping techniques. It is like an emotional six year old trying to cope in an adult world. All inabilities to cope with adult responsibilities have been somatised into her body.
a.   This does not mean there is no physical injury and pain, nor does this mean she is simply malingering or consciously exaggerating ailments. It is not a black and white situation.
b.   Her current predicament is a result of her developmental personality history, how previous injuries have been managed, and the 2009 accident and its management consequences.
c.    There is no single cause of her current situation.

He recommended attending a pain management program at the Royal North Shore Hospital and, would have agreed with Dr Stubbs that special care needed to be taken before surgery was contemplated.

He attached details of and results of the psychometric testing that he had undertaken.

He also provided a short report in response to Professor Mattick’s report which I deal with below.

In oral evidence Mr Sutton said he saw the plaintiff on three occasions. He said that various anomalies that he saw in the test results could be explained by conscious or unconscious exaggeration as well as fabrication. He thought that one of the factors at work was that there were a number of conscious and unconscious motives determining the plaintiff’s performance. He did not accept that it was a simple case of malingering but rather that the plaintiff had fallen into patterns of behaviour which led to her current situation and presentation. He did not accept the plaintiff could have ended up in the position that she was in without any aggravation of her pain as a consequence of the accident. He said that the accident must have played “a” part. He said that the histrionic nature of her personality will not resolve. He said that that type of personality will funnel emotional issues and experience genuine pain and disability. He was concerned about the amount of reinforcement that she was receiving from the medicolegal process as well as from her family. He said that her behaviour was very entrenched given that the opportunity for treatment in a structured program such as that at the Royal North Shore Hospital was not taken up prior to surgery. He had a totally gloomy prognosis for the plaintiff. The following appears in the transcript of his cross-examination:

[s]o are you giving us a totally gloomy prognosis for this lady?---Yes. If you asked me to treat her, I’d say no. ...

He did not accept the proposition that once the medicolegal process was concluded that the plaintiff would, as she had done in the past, simply get on with her life. He thought that something would happen:

She falls down, she crashes, she gets injured, something happens. This is a person who is not getting ahead. She’s continually – as I said somewhere in there, it’s like a child who finds itself not coping every now and then and I don’t see why she should cope as an adult in the future fully.

I was impressed with Mr Sutton’s evidence. He answered the criticisms of Professor Mattick, to which I will refer below, fairly and robustly. He had the benefit of substantial contact with the plaintiff which was significant in the formulation of the opinions in his report. His opinions were nuanced. The obvious advantage that he had over Professor Mattick were the lengthy consultations with the plaintiff and a complete understanding of the testing methods which he used. Those advantages as well as my observations of Mr Sutton led me to accept his evidence.

Professor Mattick

A report of Professor Richard Mattick, a clinical psychologist, was tendered by the defendants. Professor Mattick did not have the benefit of having examined the plaintiff and his report was based on a review of the documentation that he was provided, which included Mr Sutton’s report. Notwithstanding the fact that he had not seen the plaintiff and did not know anything of Mr Sutton, his report was very critical of Mr Sutton’s report. He said there was clear evidence of persistent and repeated exaggeration of problems across assessment occasions and across measurement domains. He said that the plaintiff performed repeatedly in a fashion indicative of feigning of cognitive dysfunction. Her cognitive testing results showed a deliberate attempt to perform poorly. He criticised Mr Sutton’s report because he said that the data and his conclusions did not converge. He said that Mr Sutton was less conclusive then he should be that the plaintiff was feigning dysfunction. He said that Mr Sutton’s opinion that she suffered a certain personality style which interacts with physical ailments was misleading. He criticised Mr Sutton’s opinion on the basis that he is not an “endorsed clinical psychologist” and suggested that this was why “there is some confusion in his opinion as he is not clear about the nature of psychological disorders”. He also responded to Mr Sutton’s response to his original report. As will be apparent from what I have said above, I prefer the evidence of Mr Sutton to that of Professor Mattick.

Dr Matias

Dr Matias is a psychiatrist practising in Lyneham. She is the plaintiff’s treating psychiatrist. She reported by letters dated 2 July 2012 and 24 May 2013.

In her report of July 2012 Dr Matias reported that the plaintiff presented with Major Depressive Disorder secondary to the physical morbidity and losses (employment, financial, opportunities, motherhood) she suffered secondary to the accident. She said that she was unable to work in any capacity. Her main obstacle to returning to full-time work would be her physical symptoms. Her physical condition would need to be optimised concurrently with her psychological issues in order to be able to consider any return to work. She said that if her physical condition remains as it was at the date of her report it was likely that she would not be able to return to work and premature retirement due to her injuries may occur. She considered that the current disabilities were caused by the May 2009 accident. Because of the unlikelihood of her pain condition dissipating she considered that the plaintiff had a poor prognosis in relation to her psychological issues. She considered that she would need lifelong ongoing psychiatric treatment.

In her report of May 2013 Dr Matias remained pessimistic. The only consistent improvement that had been achieved was a loss of suicidal thoughts and ideations. She reiterated her initial assessment of the plaintiff, namely that she was fully incapacitated in a psychiatric sense to resume employment. She said despite aggressive ongoing psychiatric treatment and management her mood, pain and anxiety remained disabling.

In her oral evidence she said that she did not think the plaintiff’s capacity to engage in employment would change in the near future. She wasn’t sure whether or not she would be able to undertake some part-time work in the long-term future. She thought it was unlikely that she would be able to undertake even part-time work in the near future.

In cross-examination she said that she was not aware of the matters stated in Mr Nomchong’s report of February 1999. The history of her reasonably early return to work following the cessation of compensation payments or resolution of court proceedings was put to the doctor and she was asked whether it was reasonable to take that history into account in trying to form a prognosis as to possible future events after the 2009 accident. Dr Matias fairly recognised that in those cases the plaintiff did display a capacity to return to work despite quite significant distress and impairment and said that in the long-term future she may be able to return to work but in the near future she was unlikely to be able to. She agreed that being involved in the medicolegal process was a stressor. She agreed that the finalisation of the case would decrease her stress. She nevertheless said that the plaintiff would need ongoing treatment. She said that the focus of her treatment would be trying to make the most of what she could manage in her life including paid or unpaid employment or some meaningful task or study. She recognised that any precise opinion about when she might return to work was speculative.

Dr Stubbs

Dr Geoffrey Stubbs, an orthopaedic surgeon, examined the plaintiff at the request of the solicitors for the defendants in June 2010. He reported that the clinical examination which he undertook was attempted but was unsatisfactory. He recorded the plaintiff’s complaints of pain and stress, her movements during the course of the examination and recorded some observations inconsistent with the plaintiff’s complaints of pain. He noted that the girth of upper and lower limbs was equal between the two sides. He said “[t]he extent of the clinical examination is this: she has normal reflexes and no difference in circumference between the limbs. The rest of the clinical examination is unreliable.” After having reviewed the available imaging he said:

The clinical examination is unsatisfactory. It is hard to form a clear impression of what is physically wrong with Ms Matijevic. All that one can say is that her ability to undress and dress in normal clothes by herself and to get to and from my appointment by herself assumes a much better level of function than she showed in the clinical examination.

On the basis of his examination he would not make a diagnosis or recommend any treatment. He said:

There are many red flags provided in her history and clinical examination. Not only would I not recommend the facet joint injections (which she describes as having made it worse instead of better) I certainly do not think that she should have the surgery as she suggests Dr Chandran has advised.

The evidence of Dr Stubbs deserves some additional comment. In his report of 28 June 2010 he acknowledged that he had read the Code of Conduct for Expert Witnesses and agreed to be bound by that Code. At the conclusion of his report he said “I will write to you separately with some private thoughts.”

He did in fact write separately. On 30 June 2010 he wrote a letter headed “private and confidential” to the solicitor for the defendants. In that letter he said:

Ms Matijevic has more red flags than a May Day Parade. In the course of the clinical examination (with the tears, complaints of pain and general histrionics) I thought she was either as mad as a March Hare or had given the most brauva [sic] acting performance since Gloria Swanson in Sunset Boulevard.
I asked one of my secretaries to follow her after the examination. She reported that she seemed to have no difficulty in walking or getting into the car that came to pick her up.
This is as I expected things to be. She has been coached extensively in the clinical examination. For instance she would hold her left leg tight. The tension in the leg suppresses reflexes. I did catch her out on that one.
She certainly warrants surveillance and I am sure we will see that her actual level of physical performance is way above what she claims.
In terms of your client, they should oppose any intervention that may cause her physical injury. According to Ms Matijevic, Dr Chandran is going to operate on her back. I cannot believe that an experienced surgeon would possibly want to do this. Nevertheless, it might happen. I think that Ms Matijevic is probably too smart to undergo a potentially harmful procedure but I can promise you it will make no change to her condition and she may well understand the system well enough to know by now that she greatly increases the chance of a large payout if she does so.
You may wish to give me a call to discuss her a little more particularly the contents of my report. I have tried to keep that as neutral as possible but you may wish to hear my observations (suitably amended) included in the main report.

The March Hare is a character most famous for appearing in the tea party scene in Lewis Carroll’s Alice’s Adventures in Wonderland where Alice says: “The March Hare will be much the most interesting, and perhaps as this is May it won’t be raving mad -- at least not so mad as it was in March.” The expression “mad as a March hare” is, however, much older than Alice in Wonderland: see Gardner, The Annotated Alice (1960) at 90.

Sunset Boulevard was a movie released in 1950. It was nominated for 11 Academy awards and won three. Gloria Swanson was nominated for the best actress award. Although she had a substantial career in film prior to Sunset Boulevard and a career in television after it, her performance in Sunset Boulevard is the one for which she is best known.

The additional communication from Dr Stubbs was not disclosed to the plaintiff at the time that his report was served by the defendants. It was only disclosed after a request was made by counsel for the plaintiff to see it, having regard to the reference to it at the end of the served report. But for that reference the likelihood is that it would have remained undisclosed to the plaintiff and to the Court. Having regard to the fact that Dr Stubbs was not cross-examined and the submissions of the plaintiff as to his report were relatively limited, this is not the occasion to examine in detail the significance and consequences of the communication having regard to the obligations of an expert witness under the Code of Conduct, the obligations of a party under Division 2.12.3 of the Court Procedure Rules and the obligations of the defendants under the Road Transport (Third-Party Insurance) Act. However I observe that the letter expresses opinions more vigorous than those expressed in the report, discloses investigations undertaken and apparently relied upon which were not disclosed in the report and makes a recommendation of surveillance in order to advance the defendants’ case that suggests a level of partisanship in the approach to the case.

There can be no difficulties with an expert witness holding strong views vigorously expressed so long as those views are based on the witness’ specialist knowledge or experience and are set out in the report along with the basis of, and reasons for, those opinions. One of the reasons for the Code of Conduct is to reinforce the message that the obligations of expert witnesses are to the Court and not the parties. If agreement to be bound by the Code of Conduct is not to be a hollow incantation then it is important that an expert witnesses report is complete, discloses all investigations carried out and explains the basis for the opinions expressed. Ensuring that this occurs will often require that solicitors instructing experts reinforce with them the importance of compliance with the specific obligations contained in the Code. It is inconsistent with the purpose of the Code that there be separate communications with the instructing party on matters of substance relating to the content of the report or investigations undertaken by the expert which are not then disclosed to the other party. Not only does that give rise to, at least, an impression of partisanship on the part of an expert, but it means that, unless the content of those communications (whether oral or in writing) is disclosed voluntarily, there is then the forensic contest that is required in order to extract such communications from the relevant party and overcoming claims to privilege. This is a complex and costly exercise, often not undertaken for that reason, with the result that full details of the substantive communications are not disclosed to the other party or the Court. This leaves more room for the approach of the pre-Code of Conduct days when partisan experts were more common than they are now and where the cynicism about the role of expert evidence tended to bring the administration of justice into disrepute.

Dr Silver

Dr John Silver, a consultant occupational physician and mediator, examined the plaintiff on 11 August 2011 and 7 June 2013. In his report of 13 August 2011 he described the plaintiff as “an emotionally labile, garrulous and irrational historian who became agitated at the end of a consultation”. He recognised that the plaintiff had long-standing back pain. He thought there was no good objective evidence that the plaintiff injured her back or aggravated her previous back injury as a direct result of the subject motor vehicle accident. He said that considering the matter holisticly and in retrospect one might question the appropriateness of proceeding to spinal surgery in an emotionally labile patient who had minimal objective signs and, apparently, no objective evidence of a radiculopathy. Prior to her surgery he said that there was no objective evidence of any musculoskeletal or neurological pathology in the head, neck or right upper limb with the responses to simulated pressure being suggestive of either gross embellishment or fabrication. He considered that she had long since fully recovered from the physical effects of the motor vehicle accident in question. He concluded that her ability to resume normal life was dependent upon her willingness to do so and there was no physical reason why she could not work in ergonomically sound physical activities which allowed her to sit or stand throughout the day and did not involve repeated bending twisting or heavy lifting.

His report of 10 June 2013, which followed another examination of the plaintiff, led him to repeat his previous opinions. He found her to be an unreliable historian and to demonstrate a non-anatomical distribution of pain. He said that the overt demonstration of Waddell’s signs indicated a significant non-organic component to her presentation. He recognised that her presentation was complex, with genuine medical issues but said “for the most part, it is a manifestation of non-organically based and consciously embellished pain syndrome”. He referred to the report of Mr Sutton, saying that:

taken in conjunction with the inconsistencies and lack of cooperation in both the history and examination, leads to and supports the conclusion that [the plaintiff’s] presentation is, for the most part, non-organically based and deliberately embellished.

He expressed the opinion that her hypercortisolism was likely to be secondary to her narcotic dependency. He considered that her current presentation was unrelated to the 2009 accident. Dr Silver was cross-examined over a rather poor telephone line from a cruise ship.

Associate Professor Jones

Associate Professor Richard Jones is a consultant physician in rehabilitation medicine. He saw the plaintiff on 17 October 2012 and reported on her the same day. In contrast to her interactions with some other doctors, the plaintiff related well to Dr Jones. He described her as unusual and having a complex history of physical and psychological dysfunction. On physical examination he found that there was no presentation of serious impairment due to pain and could not find any objective neurological impairment in the lower limbs although there was some restriction in movement of her back. He thought that her continuing treatment would be principally psychological and psychiatric. He thought that she was employable as a sales assistant or as a beauty therapist and could work about 30 hours per week. He could determine no assessable potential for deterioration sufficient to compromise that regimen of work. He thought that had the accident not occurred she would have had headaches and back pain although not in a way that compromised her vocational potential to the extent that it has been compromised more recently. He thought as “a best guess” her current status was 50% attributable to the accident on 21 May 2009 and 50% to her pre-existing conditions.

He was not required for cross-examination.

Conclusions on medical evidence

Based on the reports of Drs Griffith, Brooder and Le Leu, I am satisfied that the plaintiff suffered the injuries listed in items 1-6 in the quote from Dr Griffith’s report at [85] above as well as an aggravation of degenerative changes in her cervical and lumbar spine. She continues to suffer pain in the neck, shoulder, upper and lower back. The pain in her lower back has been partially addressed by spinal surgery. She also suffers from post traumatic stress disorder, depression and anxiety. I am satisfied that these injuries and sequelae were caused by the accident in the sense required by s 45 of the Civil Law (Wrongs) Act 2002. In relation to her current psychiatric state I accept Mr Sutton’s evidence that the accident was “a” cause of that condition and that is sufficient for the purposes of s 45.

While the prudence of surgery, in the absence of further treatment for pain management, is obviously a source of controversy amongst the medical witnesses, I accept that the plaintiff was following Dr Chandran’s and Dr Le Leu’s advice in having that surgery and was acting reasonably in doing so.

Since August 2010 it has become clear that in relation to the plaintiff’s prognosis the picture is complicated by:

(a) her histrionic personality type;
(b) clear evidence that there are non-organic reasons for the current levels of reported pain, making assessment of her current level of physical disability based on her reports of pain unreliable;
(c) the deterioration of the plaintiff's psychiatric state, particularly in 2012;
(d) her previous history of significant injuries and return to employment following the conclusion of her compensation claims.

This means that it is not possible to reliably assess damages based on the plaintiff’s evidence of the extent of pain currently suffered in her neck and back. However based on the reports of Dr Le Leu and Associate Professor Jones, I find that she has the physical capacity to work but that she remains incapable of doing so for psychiatric reasons.

In assessing damages I place the most weight on the reports of Dr Griffith, Mr Sutton, Dr Le Leu and Associate Professor Jones all of whom appear to have been able to establish sufficient rapport with the plaintiff to examine her situation in its complexity rather than focusing largely on the non-organic component to her complaints of pain. While I accept Dr Matias’ evidence about the plaintiff's slow psychiatric progress, the plaintiff has a demonstrated history of recovery after injury and a personality likely to need longer term psychiatric treatment unrelated to this injury in any event.

General damages

Prior to the accident on 21 May 2009 I am satisfied that, notwithstanding, some residual disabilities as a consequence of her earlier accidents, that she was able to lead a relatively normal life. The 2009 accident caused an aggravation of the plaintiff’s pre-existing physical neck and back conditions. She suffered a significant deterioration in her psychiatric state in 2012. Although I am satisfied for the purposes of s 45 of the Civil Law (Wrongs) Act that the 2009 accident is a necessary precondition to her current level of disability, I think that in assessing general damages regard must be had to the nature of her personality and the likelihood that other events would have triggered periods of depression and/or disability. Taking this into account I assess general damages at $90,000, $50,000 of which relates to the past. That gives an interest component of $4300 (4.3 years x .02 x $50,000).

Out of pocket expenses

Past out-of-pocket expenses are agreed at $29,000. In relation to future, the plaintiff is likely to need ongoing psychiatric assistance, physical therapy in order to reduce the impact of ongoing pain on her level of functioning and prescription drugs to manage her pain and psychiatric condition. It is not possible to assess this in any other way than as a buffer for future expenses. I will allow the sum of $20,000.

Loss of earning capacity

In relation to past wage loss the claim is based upon her history as a casual sales assistant and then a manager at Tarocash as well as the prospect of earning additional money from a beauty therapy business of her own. The evidence did establish that although engaged as a casual employee, the manager of the Canberra stores took her on with a view to training her for a permanent position in a store from which she may have progressed to be a manager. The evidence established that a manager would earn between $650 to $850 per week gross. As a recently started casual employee she had, however, no guarantee of advancement to such a position. In assessing the prospects of the plaintiff, regard must also be had to her work history and the fact that she had a small child in need of her care. Exhibits A and C demonstrate that the plaintiff’s gross income for the financial years ending in 2001 through to 2010 did not exceed $34,000 and the most earned from employment or contracting in any one year was $27,179 in the financial year ending in 2009. It also demonstrates a somewhat fragmented employment history. Her experience in Western Australia in 1999 indicated that although she might be able to do a higher level job with greater responsibility for a short period she was temperamentally unable to cope with it in the longer term. That also indicates that it is highly unlikely that the plaintiff would have been able to earn additional income from a beauty therapy business, the profitability of which has not been demonstrated, when she was also working at Tarocash and had parental responsibilities. Balancing the possibility of advancement within the workforce with these vicissitudes I assess past loss on the basis of annual gross earning capacity of $28,000 per annum which gives an after tax loss of between $475 and $500 per week. Adopting a net loss of $500 per week over the 4.3 years since the accident gives a loss of $111,800. That generates interest of $19,956 in accordance with the Court Procedures Rules.

I will allow superannuation on the net loss of earnings at 11% which gives $12,298.

In relation to future earning capacity, the plaintiff’s submission was that she had a complete loss of earning capacity for the balance of her working life. I do not accept that that is the case. In this regard I note the plaintiff’s history of recovery from the 1996 and 2002 accidents, Dr Le Leu’s positive reports as to the progress that she has made over the period during which she has seen him and the report of Professor Jones about her present physical capacity. The evidence of Dr Matias and Mr Sutton is pessimistic in relation to her psychiatric condition in the future. I have had specific regard to Mr Sutton’s evidence that the nature of the plaintiff’s personality is such that she may experience disabilities in the future as a consequence of other life events not causally related in the relevant sense to the 2009 accident which may result in a more extensive loss of earning capacity.

In my view there is a likelihood of the plaintiff’s condition improving over time, particularly following the conclusion of this litigation and the availability of a sum of money, not previously available, to fund rehabilitation. It is impossible, having regard to the complexity of the plaintiff’s psychiatric condition and the unreliability of her reporting (demonstrated by the evidence of doctors engaged by both plaintiff and defendants) to make a precise estimate of when this might be. In those circumstances it is appropriate to deal with the matter by way of a buffer for future loss of earnings. Adopting the earning capacity used in relation to past economic loss, the value of that for a period of four years would be $104,000. I think that this is an appropriate amount to award having regard to the possibility that she may be able to exercise some earning capacity earlier than four years from the date of judgment but, on the other hand, she may suffer some economic loss over a longer period. This approach also takes account of the general vicissitudes of life.

I will also allow superannuation at 11% of the figure of awarded for future loss of earnings which gives a figure of $11,440.

Domestic assistance

The evidence of requirements for domestic assistance is provided by the plaintiff as well as in the reports of two occupational therapists Mr Dwyer and Ms Barbuto. Neither of the occupational therapists gave oral evidence. As to the occupational therapists reports I prefer that of Mr Barbuto, notwithstanding its extreme length. The report takes better account of the plaintiff’s pre-accident level of activity and limitations. It is also consistent with my concerns about the reliability of the plaintiff’s statements about her current level of disability. Based on that report I assess past Griffiths v Kerkemeyer damages of $11,640 and make no award for the future.

Summary and orders

In summary my assessment of damages is:

General damages  $90,000
Interest on past general damages       $4300
Past economic loss  $111,800
Interest on past economic loss           $19,956
Future economic loss  $104,000
Superannuation
Past                $12,298
Future             $11,440

Out of pockets Past $29,000
Future $20,000

Domestic assistance Past $11,640
Future $0

Total $414,434

The orders that I will make are:

1. There be judgment for the plaintiff against the defendants in the sum of $414,434.

2. The usual order as to interest.

3. Unless either party notifies my associate by email within 14 days that the party wishes to be heard in relation to the question of costs, the order of the Court is that the defendants pay the plaintiff’s costs of the proceedings.

I certify that the preceding one hundred and forty-six (146) numbered paragraphs are a true copy of the Reasons for Judgment herein of Master Mossop.
Associate:
Date: 23 September 2013

Counsel for the plaintiff:  Mr S H Pilkinton SC, Mr A R Muller
Solicitors for the plaintiff:  Maurice Blackburn Lawyers
Counsel for the defendants:  Mr R L Crowe SC, Mr B Bradley
Solicitors for the defendants:  Sparke Helmore
Date of hearing:  8, 9, 10, 11, 12, 15, 16, 17 July
Date of judgment:  23 September 2013