Brett v Hamilton

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: BRETT -v- HAMILTON & ANOR [2005] WADC 214

CORAM: O'BRIEN DCJ

HEARD: 24-26 OCTOBER & 21 DECEMBER 2005

DELIVERED : 22 DECEMBER 2005

FILE NO/S: CIV 984 of 2004

BETWEEN: JAYNE ELLEN BRETT
Plaintiff
AND
LORRAINE HAMILTON
First Defendant
SHARON DONOVAN NELLA
Second Defendant

Catchwords:

Personal injuries - Assessment of damages - Turns on own facts

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943

Result:

No damages awarded against first defendant
Damages awarded against second defendant

Representation:

Counsel:

Plaintiff:     Mr P J Patterson
First Defendant              :     Mr M A McAuliffe
Second Defendant         :     Mr M A McAuliffe

Solicitors:

Plaintiff:     Taylor Smart
First Defendant              :     Dibbs Abbott Stillman
Second Defendant         :     Dibbs Abbott Stillman

Case(s) referred to in judgment(s):

Graham v Baker (1961) 106 CLR 340
Husher v Husher (1999) 165 ALR 384
Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370
Southgate v Waterford (1990) 21 NSWLR 427
Watts v Rake (1960) 108 CLR 158

Case(s) also cited:

Nil

O'BRIEN DCJ:

The plaintiff claims damages for injuries and depression she suffered in two car accidents.
On 1 July 1999, the plaintiff was driving her car in South Perth through a green light when the car driven by the first defendant turned right across her path and collided with the plaintiff's car ("the first accident").
The plaintiff claims she suffered soft tissue injury to her cervical, upper and lower spine.
On 16 September 1999, the plaintiff was driving a Subaru Imprezza and had just turned left from a side road controlled by a stop sign into Canning Highway. Her car stalled about 10 metres into Canning Highway. The car driven by the second defendant had followed her car from the side road into Canning Highway and collided with the rear of the plaintiff's car ("the accident").
The plaintiff claims that she suffered soft tissue injury to the cervical and upper lumbar spine; aggravation and exacerbation of injuries sustained in the first accident; a bulge and tear on the C5/6 disc; injury to the facet joints in the neck; and depression.
The plaintiff claims as a result of her injuries and depression, she has lost the capacity to work in her pre-accident employment.
She claims damages for loss of work capacity, general and special damages, and damages for past and future medical treatment. Her counsel abandoned her claims for damages for gratuitous services and past paid services during the course of his closing address.
The defendants' insurer admits negligence. However, the defendants deny that the plaintiff suffered any injury or incurred any loss or damage as claimed. In their defence, the defendants also plead that if the plaintiff did suffer the injury or loss as claimed, that it was caused or substantially contributed to by pre-existing and/or co‑morbid medical conditions including, pre-existing recurring headaches, neck and lower back pain, psychological or psychiatric problems before and after the accidents, symptoms associated with the plaintiff's second pregnancy.

The plaintiff's background and work history

The plaintiff was born on 5 November 1966. The plaintiff left school in 1982 when she was 15 years old and started work in a retail business. Her duties included serving customers, merchandising, training junior staff and organising the stockroom.
In 1993, the plaintiff started working in a chiropractic surgery in South Perth. She married the owner of the practice on 9 March 1996. In February 1994, her husband opened another chiropractic practice in Leeming and the plaintiff went there to work.
At Leeming, the plaintiff's duties included organizing the marketing of the practice, preparing wages, some staff training, typing reports and letters and other computer work. She would also attend some of the chiropractic consultations and enter details of the treatment into the computer.
The plaintiff worked about 38 hours a week which she considered to be full time work. She did not work regular hours.
The plaintiff became pregnant with her first child in mid‑1998 and stopped work in December 1998. The plaintiff's first child, Cameron, was born on 22 March 1999. The second child, Cailin, was born on 21 September 2002. Between the births of her two children, the plaintiff was involved in the car accidents. She has not worked since December 1998 apart from a short period in 2003 when she was involved in staff training. Before and after the two accidents, the plaintiff had received medical and chiropractic treatment for neck and back conditions and psychiatric counselling.
The plaintiff testified that she had experienced some conflict with her mother, strained relationships with her two brothers and problems in her marital relationship. Dr Megan Gilbert, a psychiatrist, provided psychiatric counselling for these issues in conjunction with therapy relating to the plaintiff's bulimia (from which she had recovered by the time of the accidents).

Spinal problems before accident

The plaintiff testified that she had a fall in 1992 when she fell onto tiles and hit the wall. She injured the top of her left shoulder and the back. She had treatment which included physiotherapy and a couple of cortisone injections.
In 1996 the plaintiff said that she had trigger point treatment from Dr Whiteside for a broad range of neck problems. The plaintiff testified that she saw Dr Whiteside partly because of the fall and also at the time she had occasional headaches, upper neck stiffness and lower back problems. The treatment helped settle it down and her husband then provided "maintenance" treatment from 1996 until 1999. Her husband testified that he referred her to Dr Whiteside but he said there were only two consultations, one on 30 April 1996 and the other on 9 May 1996.
The plaintiff received chiropractic treatment either from her husband or another chiropractor in his practice over a number of years. According to the treatment sheets, the frequency of such consultations is as follows: 13 times each in 1993 and 1994, twice in 1995, once in 1996, 1997 and 1998, 14 times in 1999, 30 times in 2000, 17 times in 2001.
The plaintiff's husband testified that from 1994 to 1996 the plaintiff had "intermittent problems" (the nature of which was not adduced in evidence) which were ameliorated by further treatment. He then checked her about once a month.
As I understand the evidence, Mr Brett provided maintenance treatment to the plaintiff from 1995 to 1998. As the treatment was often done at home, he did not record this treatment in the notes. The notes reveal that the treatment in 1999 commenced on 17 March 1999. Maintenance treatment in chiropractic has more to do with preventing problems rather than treating existing problems. Dr Warren, Mr Brett's partner, explained that chiropractic treatment could be used as a health intervention as much as pain intervention. Some people seek treatment as a "wellness intervention" to keep themselves functioning well and make sure everything is in alignment.
On 2 March 1993, the plaintiff completed a "tick-the-box" patient symptoms survey at her husband's chiropractic practice wherein she was required to indicate the frequency of a range of symptoms using a rating specified on the form. She indicated that she "constantly" suffered headaches, bladder problems, asthma, allergies, shoulder problems, menstrual disorders, sleeping problems, heart palpitations, bowel problems and low back problems. Further, she indicated that she "frequently" experienced numbness/tingling sensation, chest pain, neck pain/stiffness and stomach problems. Dr Shannon, a psychiatrist, was of the view that it can be "dangerous" to base any conclusions on such forms, as I understand his explanation, because of the subjective nature of self‑assessment.

Findings about the nature and extent of pre-existing spinal problems

In my view, the plaintiff did have neck and back problems before the accident. Some of these could be attributed to the 1992 fall. The evidence concerning the nature and extent of the areas requiring treatment is sketchy to say the least. However, I am satisfied that at the time of the first accident, the plaintiff did not suffer from any neck or back problems that required remedial treatment. Whatever treatment she received from say 1996, after Dr Whiteside treated her, was "maintenance treatment" designed to prevent recurrence of problems and to promote well-being.
I am reinforced in this view, as there is no evidence that the plaintiff was incapacitated or restricted in any way in her work or at home during this period.

Psychological/psychiatric condition before the accident

The plaintiff suffered from anorexia nervosa from the age of 15 years until she was about 17 years old. Thereafter she suffered from bulimia which she said was due to her attempt to eat properly after the anorexia.
She was hospitalized twice for intensive treatment.
Dr Gilbert provided psychiatric treatment in connection with the bulimia. Dr Gilbert treated the plaintiff from 13 March 1995 until September 2001. According to Dr Gilbert, treatment stopped as the plaintiff had a lot of medical and other appointments to attend and was caring for a young child.
When the bulimia settled (it would seem well before the accident), the plaintiff continued to see Dr Gilbert for a range of other issues. She said that she typically saw Dr Gilbert weekly.
In the early period of treatment, the main issues that were discussed were her relationship with her family members. Dr Gilbert said that an eating disorder gets worse when there are other issues that are involved so that stress can make the eating disorder worse. When treating an eating disorder, the focus is not only on the symptoms of the eating disorder, but also other factors which may be exacerbating the problem.
Dr Gilbert said that she was aware of the accidents shortly after they occurred. Further, she received around 30 reports from Dr Walkley outlining his treatment of the plaintiff. She was aware of the neck pain the plaintiff was suffering but that was not the focus of her counselling. She was certainly aware that the neck pain was a stress in the plaintiff's background and it was part of the whole [psychiatric] picture.
Dr Gilbert said that on 11 July 1996 she prescribed antidepressants as the plaintiff was exhibiting signs of a depressive illness. The stresses were her family and marital relationships. Dr Gilbert was unable to say how long the plaintiff took the medication but the drugs typically would be prescribed for six to twelve months.
Dr Gilbert said that in July 2000, the plaintiff's mood deteriorated. She was having marital problems and was trying to cope with a young child. Dr Gilbert again prescribed antidepressants which she said the plaintiff took until September 2001 when the plaintiff stopped coming to see her. There was some improvement in her condition but this was curtailed by new problems in her life concerning her health in general and most especially her neck pain and her relationship with her husband. The plaintiff said that she stopped taking the medication because it made her "groggy" and tired.
In his report dated 17 November 2004, Dr Shannon examined the plaintiff's past and then existing psychiatric history and was of the view that "any psychological distress evident now is not as a result of …previous issues".

Mr Relph

Mr Relph, a clinical psychologist, provided relationship counselling to the plaintiff and her husband on nine occasions between 5 May 1998 and 15 September 1998. Dr Gilbert referred the couple to Mr Relph as there were tensions and difficulties in the marriage. These related to communication problems and other issues which are evident, if not typical, in many relationships at one time or another. In my view, this counselling has no bearing on the plaintiff's psychological state. The evidence from Mr Relph simply completes the picture of the plaintiff's life at that time.

Findings about the nature and extent of a pre-existing mental health problem

I am of the view that the plaintiff did have a pre-existing depressive illness prior to the accident. Dr Gilbert had treated her for six years or so with varying results. All of the psychiatric/psychological evidence points to the plaintiff as being an emotionally fragile and vulnerable woman. The plaintiff described herself as sensitive and emotional. My own impression of her in the witness box accorded with these assessments.
However, the plaintiff was able to work full time as a chiropractic assistant and manage a chiropractic office prior to the accident and six months into her first pregnancy. There is no evidence that her pre‑existing depressive illness and/or psychological problems affected her work.
It is clear from Dr Gilbert's evidence that the plaintiff's neck pain exacerbated her depression, as did a number of other factors in her life.
I outline below my findings in relation to the physical injuries the plaintiff received in the accident. I find that they also contributed to her depression.
However, it is impossible to precisely apportion the extent to which pain, physical injuries and other life stresses contributed to the plaintiff's depression.

The physical consequences of the first accident

The plaintiff said that after the first accident, she suffered pain and stiffness in her neck. She received chiropractic treatment from her husband and these conditions settled within a month. Indeed, the plaintiff told Mr Slinger on 30 September 2004 that she did not believe that her then symptoms related in any way to the first accident.
In his report dated 21 October 2004, Mr Slinger stated that the second accident "is not responsible in any way for [the plaintiff's] present symptoms or situation".
After reviewing the plaintiff initially on 20 February 2003, Dr Rosenthal opined in his report dated 20 February 2003 that he did not consider her current complaints to be directly related to the accident. After another review on 21 July 2004, he stated that the plaintiff suffered no significant injury in the first accident.
In his report dated 17 November 2004, Dr Shannon did "not see that the first motor vehicle accident had any great contribution to …ongoing symptoms".
The chiropractic reports, the reports of Dr Walkley and Dr Finch who both treated the plaintiff's symptoms, refer only to the second accident as causative of the plaintiff's symptoms.
The injuries incurred in the first accident had resolved before the second accident. There is no cogent evidence that any injuries suffered in the first accident were reignited in the second accident. In my view, the evidence establishes that the injuries suffered in the first accident were of a minor nature which had completely resolved within a month or so.

The consequences of the second accident ("the accident")

I refer to the circumstances of the accident outlined above. These are not in dispute.
(1)There is no evidence of the speed of the other car, or of the damage to it.
(2)The plaintiff's car incurred damage in the region of $4000 but there is no evidence of the actual damage to the car.
The plaintiff said that she heard the bang and then felt a "jolt". She said that she was not flung forward by the impact. She was able to drive the car onto the verge. Her baby, who was in a capsule in the back seat, started screaming. The plaintiff testified that she immediately had a headache and "was sore". She then drove her car to a friend's house and applied a heat pack. She said that both sides of her neck felt sore and stiff. She made no mention of any discomfort or hurt to her lower back although she said that her husband treated this area.
However, she said that her husband treated her neck and upper and lower back. As this treatment did not resolve the pain, her husband referred her to Dr Warren for treatment. The plaintiff testified that her pain resolved a little bit when treated by Dr Warren.
At the time she was breast-feeding her baby which she found difficult due to "stress" through the neck and she also had headaches.
When she consulted Dr Cecil Walkley, a specialist physician in rehabilitation medicine, in the beginning of 2000, her problems had not resolved.
She said that the stiffness and pain were now constant. Some days are worse than others. Looking up and down and movement of her neck from left to right causes her pain. This varies according to what she is doing. The plaintiff said that her neck is tender on both sides and at the back and up through the shoulder blades. She now has more movement in her neck.
The plaintiff testified that she has pain and numbness down her left arm. She described the pain as a "heavy ache" which goes down into her fingers. She finds her arm to be heavy and she gets a "burning feeling". The frequency of the pain varies from twice a week to every day.
The plaintiff testified that her right shoulder is not really a problem.
The plaintiff testified that she had a little bit of lower back pain after the accident but this was now under control.
The plaintiff testified that certain movements cause her pain. These include lifting Cailin or bags and chopping vegetables. She gave the example of lying with Cameron in a fixed position this year after he had his tonsils removed and this exacerbated her pain.
The plaintiff testified that she has a headache when she wakes up. This is a dull headache most days which she described as "mild", and lasts most of the day. It becomes worse at the end of the day. She takes medication but this upsets her stomach and she needs other medication to counteract this. Now she does not have as many severe headaches. However, she said that she has severe headaches a couple of times a week at the front and back of her head.
Dr Walkley referred the plaintiff to Ms Diane Bowyer, a clinical psychologist, for assistance in coping with pain.
I note that Ms Bowyer engaged in indirect assessment of the plaintiff's pain by watching her unobserved by the plaintiff. Ms Bowyer noticed that the plaintiff had difficulty from time to time in reading a magazine while in the waiting room and other responses to pain such as a sharp intake of breath if, for example, she went to tend her child during a consultation.
She said although she and her husband were never "big gardeners", her gardening being confined to weeding and general tidying up, she now does no gardening apart from pulling up the occasional weed.
The plaintiff said that she was on antidepressants when Cameron was 9 months old as she was getting down coping with the pain. However, she did not talk to Dr Gilbert about the pain. She said that she also felt "down" during her pregnancy with Cailin.
The plaintiff testified that her memory is affected. She used to have a good memory. She gave the example of having to memorise the names of her husband's patients. She said that the antidepressants helped with the pain a bit.

Activities

Prior to the accident, he plaintiff said that she would catch up with friends, do flower arranging and other "craft things" and go to aerobics. Now her activities are confined to walking to school each day, doing Pilates and shopping. She tries to avoid hills when walking.
The plaintiff testified that she goes to Pilates once a week to help strengthen her muscles and improve her posture. She said Pilates does not help her neck but assists in realigning her shoulders.
She does not go on outings as much as before the accident and was then more outgoing and would see a lot of her friends. Her activities included going on picnics and bike rides. When she found the treatment was not working, she became withdrawn from her friends.
She now finds she is much better due to the help she receives from Ms Bowyer who gives her coping strategies.

She said she is able to carry Cailin but only if necessary. She manages to carry her shopping but has been advised against this.
She said that she has a cleaner twice a week who does most of the heavy household tasks, but she vacuums and sweeps when necessary.

Medication

The plaintiff takes Celebrex three times or more a week and Somac to counteract that drug which causes stomach upset. She also takes Panadol up to ten times a week. She estimated that she takes medication on average three or four times a week.
She said that she goes to her general practitioner every couple of months or more. She receives chiropractic treatment a couple of times a week or more. This helps to relieve the pain initially but does not maintain the relief. Mostly her husband treats her at home.
It is clear from the plaintiff's evidence and that of her treating doctors, that the plaintiff has attempted to relieve and/or cope with the pain with medication, physiotherapy, Pilates, acupuncture, chiropractic treatment, heat packs, "cupping", exercise and psychological counselling.
From time to time she has found relief but overall, she said that "I live with pain every day, I try not to let it get on top of me."

Videotaped surveillance

The defendants tendered three surveillance videotapes taken on 2 and 4 April 2004; the 21, 29 and 30 July 2004; and 16 and 17 October 2005.
The plaintiff is shown doing a variety of activities including carrying a young child on her hip, putting the child into the back seat of a car, driving, lifting the child out of a shopping trolley, carrying bags of shopping, pushing a child in a stroller, eating in a café and trying on shoes. The plaintiff concedes that she is able to perform these day-to-day activities but suffers pain.
Dr Rosenthal was of the view after seeing the videotape taken on 2 and 6 April 2004 that there was certainly no evidence of the plaintiff being functionally impaired to the extent that she could not deal with the requirements of every day living. After viewing the videotape taken on 21 July 2004, he was of the same opinion.
The opinions of the other experts were not altered by the vision of the plaintiff on the videotapes.
On my viewing of the videotapes, the plaintiff does not seem to be in any pain or to demonstrate any restriction in her neck save for one occasion on 17 October 2005 when she paused to rub her neck as if it were stiff or painful.
In my view, these videotapes do not impugn the plaintiff's credibility in relation to the pain and cervical restriction she said she has experienced since the accident. I would not necessarily expect that all the symptoms she described in evidence and to the medical practitioners who treated and reviewed her condition to be apparent from these activities. Common sense and common experience indicate that people can suffer pain without demonstrating or exhibiting it in their every day activities. Videotapes of the plaintiff doing computer or other desk work without apparent pain or restriction might have been more compelling, although I understand the difficulties in filming such an activity in the circumstances of this case.
Overall, I find the videotape evidence to be of little weight in assessing the nature and extent of the plaintiff's physical condition and her experience of pain.

The medical opinions

There are conflicting medical opinions as to the cause, extent and duration of the plaintiff's pain and her capacity to work.
The plaintiff testified that after both accidents, her husband treated her. This treatment did not resolve her problems. Her husband then referred the plaintiff to his partner, Dr Warren, on 1 January 2000.
The plaintiff testified that she did not consult Dr Punyanitya, her general practitioner, about the accident until 11 July 2000. She had seen him many times before then and after the accidents about other medical problems. She said that she did not mention the accident because her husband was treating her.

Radiology reports

Dr Punyanitya ordered an abdominal ultra sound which was performed on 24 October 2000. No evidence was adduced to explain the report of the ultrasound. It was apparently unremarkable.
The report of an MRI performed on 14 July 2000 was not in evidence. One doctor stated that this showed a broad-based central disc bulge at C5/6 which does not cause any canal or foraminal stenosis and there was no facet joint arthropathy.
An MRI of the cervical spine was done on 2 October 2001 revealed unchanged minor broad based central disc bulging at C5/6 and minimal central disc bulging which had developed at C4/5. The report indicated that there was no other change since 14 July 2000.
On 16 March 2004, Dr Bray, a radiologist, reviewed X-rays of the plaintiff's spine and pelvis taken on 29 September 1999 at the South Perth chiropractic clinic. Dr Bray reported that there was "no evidence of bone, disc or paravertebral joint trauma or pathology". He stated that the X-rays "demonstrate normal appearances".

Dr Walkley

On Dr Punyanitya's referral, the plaintiff consulted Dr Walkley, a specialist physician in rehabilitation medicine. Dr Walkley treated the plaintiff on 28 occasions between 25 July 2000 and 27 November 2002. Dr Walkley did not give evidence but his reports of those consultations were tendered by consent.
After his initial consultation with the plaintiff, Dr Walkley noted that the plaintiff continued to suffer an extremely stiff and painful neck 10 months after the accident. He attributed the majority of her symptoms to a "musculo-ligamentous basis" despite the MRI (presumably that done on 14 July 2000) which revealed a mild broad based disc bulge at the C5/6 level. He was of the view that the "more likely explanation for her slow recovery" is the compounding effects of pre-existing injuries arising from the first accident and the recurring strains of caring for a young child.
Over the time that Dr Walkley treated the plaintiff, he noted some improvement as well as some deterioration in her neck mobility and pain level depending on when he saw her and what activities she had undertaken. He noted more pronounced pain after delivery of her second child. In November 2002, he was "surprised" to find that her condition had not deteriorated considering her increased work load (with the second child) and assumed that the treatment provided by her husband was providing temporary relief.

Dr Finch

Dr Walkley referred the plaintiff to Dr Finch, a spinal surgeon. Dr Finch treated the plaintiff with medial blocks 12 times from 13 September 2001. Dr Finch reported in his letter to the plaintiff's solicitors dated 3 February 2003 that the plaintiff's long‑term pain is multi‑focal and diagnosed the condition as a myofascial pain syndrome. He considered that the upper cervical facet joints were primarily involved with a possible contribution from a tear in the disc at C5/6. He considered that the plaintiff's pain was likely to be permanent and that it was unlikely that she could return to work in the foreseeable future. He did express the view that a formal work trial might shed some light on whether the plaintiff could return to work part time.
When Dr Finch reviewed the plaintiff on 29 September 2005, he reported that the plaintiff's condition remained unchanged and that he had not changed his opinion since December 2003 when he last reviewed her.
Dr Finch was of the view that the plaintiff had reached the maximum level of improvement and would continue to experience cervical and to a lesser extent, lumbar symptoms, indefinitely. He reiterated his view that the plaintiff was not fit to work as a receptionist/office manager.

Mr Slinger

Mr Slinger, a spinal surgeon, reviewed the plaintiff on 30 September 2004 and 24 August 2005 for the purpose of preparing medico‑legal reports.
When Mr Slinger examined the plaintiff on 30 September 2004, he found that she had a minor restriction of movement of the cervical spine, which was painful and she also had pain in certain movements of the left shoulder.
He was of the view that it is not unusual to have continuing chronic symptoms from the accident described. Such soft tissue injury is not apparent on X-rays.
Mr Slinger was of the view that if the pre‑existing symptoms had completely resolved and the plaintiff had no further problems, then he would consider that the injury had healed. Further injury, such as sustained in the accident, would not then impact upon the pre‑existing injuries in any way. He said that he was dependent upon the history given by the plaintiff.
As to the disc bulge at C5/6, Mr Slinger said that most disc bulges are degenerative and usually of long‑standing when he gets to see a patient. The only way of knowing whether the disc bulge was caused by the accident would be to take an MRI immediately following the accident and then take one later to ascertain if the bulge had resolved. However, that evidence is rarely available.
Mr Slinger testified that it was more probable that the disc bulge was degenerative. Dr Rosenthal was of the same view. Given that the X-rays taken on 29 September 1999 did not reveal any abnormality, it is most likely that these opinions are correct.
In his report dated 21 October 2004, Mr Slinger stated that in his opinion the plaintiff was fit to return to work, certainly part‑time.
He testified that he would expect there to be a work trial with a graduated return to work, preferably supervised by a rehabilitation provider, with the hours increasing as the plaintiff's symptoms allowed. This work should involve avoiding maintaining the head in one position, changing positions and avoiding prolonged data entry or computer work.
He could not exclude that with work conditioning and "hardening", the plaintiff could increase her hours to fulltime. Under cross‑examination, Mr Slinger testified that the plaintiff would be capable of working 20‑30 hours per week in the chiropractic practice providing she had some education as to the new office systems and engaged in work which would allow her to sit or stand at discretion, without a requirement for her to perform any prolonged writing, typing or data entry. The plaintiff would be able to cope as a receptionist or office manager with multiple tasks.
Mr Slinger reviewed the plaintiff on 24 August 2005. In his follow‑up report dated 6 September 2005, he was of the view that the plaintiff's symptoms are likely to continue but that the accident was unlikely to produce additional problems in the future, or be associated with any premature degeneration or change.
There was no change in the symptoms between the two examinations of the plaintiff. He stated that his assessment was the plaintiff's condition was permanent. He could not exclude that she might improve a little bit, once all of the medico‑legal issues had resolved but was certainly of the view that her condition would not get any worse.
Mr Slinger agreed that in the normal course, the symptoms associated with soft tissue injury tend to be maximal about the time of the accident and then progressively improve over a period of time. He said that some individuals may have recurrences from time to time and that it would be unusual for the symptoms to increase over a period of time.
He stated, under cross‑examination, that the plaintiff had improved in the 12 months between the two consultations in that she had dispensed with the Nanny and was coping better with her second child.

Dr Pearce

Dr Pearce, a consultant occupational physician, reviewed the plaintiff on 8 September 2005 and provided a report dated 13 September 2005.
Dr Pearce considered that the plaintiff has been left with a permanent residual disability. He considered that the plaintiff would require a graded return to work over a period of six to twelve months. As the plaintiff was restricted in looking up and down, Dr Pearce's view was that her ideal work would be a combination of sitting and standing where she can vary her position and walk around and stretch on an 'as required' basis.
On examination, Dr Pearce found the plaintiff demonstrated tenderness to palpation and a globally restricted range of neck movement.
At the request of the defendants' insurer, Dr John Saunders, a rehabilitation physician, also undertook a medico-legal review on 12 October 2000, as did Dr Rosenthal, a rehabilitation specialist, on 20 February 2003 and 21 July 2004.

Dr Saunders

Dr Saunders is a rehabilitation specialist. He only saw the plaintiff once for a medico‑legal review on 12 October 2000 when he was of the view that the plaintiff had displayed evidence of a broad‑based cervical disc prolapse with some thecal flattening. He said it is possible that this is causing irritation. However, he was of the view that the plaintiff is unlikely to suffer any permanent disability, but that her condition had not then stabilized sufficiently for her claim to be settled.

Dr Rosenthal

Dr Rosenthal initially diagnosed the plaintiff's injury as a cervical strain of at least moderate severity. He stated that this possibly involved the C5/6 disc and her left sided facet joints but there was a significant soft tissue component with neurological features.
He was then of the view that there were "psychological sequelae to the crash and the chronic pain situation". He said pain avoidance behaviour was then causing inhibition of cervical movement and this in turn tends to perpetuate symptoms. He found the plaintiff to be significantly symptomatic but not incapacitated in the sense that she is able to discharge a substantial part of her normal daily activities.
When Dr Rosenthal saw the plaintiff again on 21 July 2004, he noted inconsistencies in relation to cervical movement which he considered to be entirely behavioural. He testified there was inhibition of movement but on indirect observation the plaintiff could actually move normally. The inconsistencies comprised the difference between direct, formal and informal methods of assessment or direct and indirect methods of assessment. He put that down to there being an apprehension and fear about movement. His view was that the plaintiff's basic level of function was reasonable and much better than the voluntary range of movement.
Dr Rosenthal considered that the plaintiff would continue to improve with full recovery being the likely outcome. Further, he was of the view that the plaintiff is capable of undertaking the pre‑accident occupation on a full‑time basis without restriction.
He considered that a graduated return to work would be in order and estimated this would be six to eight weeks.

Ms Bowyer

I place considerable weight on the evidence of Ms Bowyer as she has treated the plaintiff for the last four and a half years.
By way of preliminary comment, Ms Bowyer's assessment of the plaintiff is that she is a private person, who does not engage in "overt pain behaviours nor pain complaints". It is important to note that when assessing and reporting on the plaintiff's depression and level of pain, Ms Bowyer confirmed the plaintiff's accounts by psychometric testing. Ms Bowyer's assessment of the plaintiff is that from the beginning she has made excellent use of all of the services provided to her. On 20 September 2001, Ms Bowyer reported the plaintiff as 'motivated to recover'. Throughout the time that Ms Bowyer has provided psychological counselling to the plaintiff, the plaintiff's level of pain and depression has fluctuated. The plaintiff discovered that her second baby was tongue‑tied some months after his birth. He was a difficult feeder and, according to Ms Bowyer, the plaintiff's level of anxiety, depression and pain was exacerbated by having to carry the baby in order to pacify him and by concern over his well-being.
Ms Bowyer reported to ICWA on 22 January 2003 that the plaintiff was reluctant to be within "the compensatory system".
Ms Bowyer said that the complainant is "quite a gutsy person for the background she's had, and she tries not to present as 'not coping' ".
Ms Bowyer testified that, on the plaintiff's account, she was a happy coping mother prior to the accident. Thereafter, her anxiety, depression and fluctuating degrees of pain afflicted her. Ms Bowyer was of the view that the plaintiff tended to compartmentalise her treatment. She did not feel that Dr Gilbert was treating her for consequences of the accident. Indeed, it would appear that there was not much, if any, cross‑referencing between Dr Gilbert and Ms Bowyer.
In her report dated 10 October 2005, Ms Bowyer stated that she saw the plaintiff on 15 September 2005 and her psychometric responses were indicative of symptoms of moderate depression. (I note that Dr Shannon was not of the same view). The McGill Pain Questionnaire responses were indicative of a moderately consistent level of intrusive pain.
Further, she manifested a moderate level of generalised anxiety with specific anxieties related to close traffic and, in particular, "close shaves".
In her last report dated 10 October 2005, Ms Bowyer was of the view that the plaintiff is likely to require continuing "spaced treatment addressing pain management and associated emotional difficulties and problems in handling normal daily activities as a young mother and wife with ongoing pain and concomitant limitations." Further, Ms Bowyer was of the view that the plaintiff "may require treatment for symptoms of depression for up to 9 to 12 months on a monthly basis." However, she is hopeful that the plaintiff's symptoms of depression were settling quite well. Further, Ms Bowyer was of the view that the plaintiff's "level of anxiety" is closely tied to her neck pain and associated difficulties handling various aspects of life, and hence is likely to continue for a longer period of time. She believed this associated treatment might be required at various times over the next two years or so on a three to four weekly basis.
Ms Bowyer was of the view that the plaintiff was not in a position to work either part‑time of full‑time during the time that she had been treating her. However, her caveat was that she would have liked to have seen a work trial to be sure. However, she was of the view that the plaintiff was having difficulty just managing the house and the children and that her pain intensified after the birth of the second child.
In summary, Ms Bowyer was well placed to make an objective assessment based on her clinical consultations with the plaintiff and psychometric testing of the plaintiff's psychological condition. There is no reason to doubt Ms Bowyer's view of the plaintiff as motivated and determined to recover from the pain she was suffering. Further, I accept Ms Bowyer's view of the plaintiff that she was an emotional and sensitive individual and that she had no cause to doubt the plaintiff's veracity concerning her symptoms.

Dr Shannon

At the plaintiff's request, another general practitioner, Dr Eng, referred her to Dr Shannon, a psychiatrist, for medico-legal reports. These were provided on 17 November 2004 and 1 June 2005.
Dr Shannon testified that the psychiatric problems the plaintiff experienced are secondary to the pain and because of that, he did not consider her fit for work.
In his report dated 1 June 2005, Dr Shannon stated that there was no evidence that the plaintiff was suffering from an on-going depression in her mood although there was some evidence of her being somewhat anxious. He considered that this appeared to be a characteristic of her make up more than due to any specific issue that had occurred.
On balance, I prefer the opinion of Ms Bowyer concerning the diagnosis of depression as she had treated the plaintiff over a number of years on a regular basis and was better placed than Dr Shannon to make a diagnosis notwithstanding Dr Shannon's psychiatric speciality.

Dr Terace

Dr Terace, a psychiatrist, reviewed the plaintiff on 25 January 2005 at the request of the defendant's insurer and prepared a medico-legal report. He only saw the plaintiff once. However, he provided supplementary reports on receipt of further information from the insurer's solicitors.

I shall deal with Dr Terace's first report dated 4 February 2005 later. In my view, Dr Terace's report dated 9 September 2005 wherein he varied his opinion in his first report is inadmissible.
The further information to which I refer purported to be summaries of Dr Gilbert's notes of consultations with the plaintiff, letters from Dr Gilbert to various doctors and reports from various doctors and other health care professionals to Dr Gilbert. On the basis of that information, Dr Terace revised his opinion in his first report which he made after reviewing the plaintiff on 25 January 2005. Dr Gilbert's clinical notes and the letters to and from Dr Gilbert as mentioned were not in evidence. Dr Gilbert was not examined in any great detail about her clinical notes. Nor was she examined about the letters. The further information upon which Dr Terace substantially relied to vary his opinion was inadmissible hearsay. In my view, the admissible and inadmissible evidentiary basis on which Dr Terace bases his opinion is so intertwined as to make the whole opinion inadmissible: Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370.
Dr Terace's diagnosis after his consultation with the plaintiff was that she was suffering from major depression in partial remission. In my view, his opinion that the cause of the psychological symptoms was the accident and his doubt that the plaintiff will be left with psychological or psychiatric impairment or disability in five years time cannot be relied upon. This has nothing to do with Dr Terace's expertise (his report was extremely thorough). However, the information on which he based his views was in some respects wrong.
For example, he said that the plaintiff told him that she was not receiving psychiatric treatment at the time of the accident; that there was no family history of suicide; that she last saw Dr Gilbert six years previously; and that her pre-existing [psychiatric] problems had long since resolved when she started to see Ms Bowyer. Not all of this reported information was explored with the plaintiff under cross-examination.
However, Dr Terace entertained the possibility that, in effect, either he or the plaintiff might have misunderstood the other. He said he did not believe that the plaintiff made any deliberate attempt to deceive him. Dr Terace was not specifically asked at trial if his opinion would have been different had he known the true situation relating to the wrong information. However, there is at least a possibility that Dr Terace's opinion may have been different had that been the case.

Economic loss

The plaintiff testified that she had not attempted a return to work. She said that she would not be able to cope with her previous job and that she would have to try part time work.
She said that she could not return to the retail trade as that would involve hanging clothes and computer work and she did not want to aggravate her condition. However, she expressed a desire to return to work.
The plaintiff said that using the computer would mean that her arms would be in a static condition and she would get an ache in her neck.
Dr Gilbert stated in her report dated 14 May 2001 that from "the point of her depression there would be no reason what Ms Brett could not work as an office manager/receptionist or any other from of appropriate employment. However, it would be my assessment that other factors are precluding this at the present time, most importantly that being her ongoing neck problems."
In his report dated 17 November 2004, Dr Shannon stated that the plaintiff was unable to function in her capacity as a receptionist and office manager but that improvement should be gradual and on going and that in the longer term, she will be able to return to these duties. He also was of the view that the plaintiff would profit by having the case settled.
The plaintiff testified that she and her husband did not really discuss children. The sale of the Leeming practice coincided with the birth of Cameron. There was no plan concerning the number of children they would have, but the plaintiff wanted three. However, her husband "won't let me go for a girl because of my neck".
After Cameron was born the plaintiff and her husband discussed her going back to work part time after 8 to 10 months. For the purpose of any assessment of damages, the plaintiff's counsel indicated that I could take it that there would be a 12 month period before the plaintiff returned to work.
Under cross-examination, the plaintiff testified that there would be periods when she was a "part time mother" and a "part time employee". She estimated that she would probably work about 25 to 30 hours a week with most of the work being done from home.
There was no detailed discussion about how the plaintiff would return to work because the accident intervened.
The plaintiff testified that she has "great" parents who would be prepared to look after the children but there was no "set plan" because of the accident. The plaintiff did not consider that this would be a heavy commitment for her were it not for the accident. She was not sure if she could have managed up to 30 hours a week with two or possibly three children as she never got to try it out.
She said that she could do some work at home, attend a "shift" at the clinic totalling about 30 hours a week were it not for the accident.
She said that even though Cailin had some health problems for around the first eight months of his life and that she might have waited a bit longer to return to work, she believed she would have returned to work because of the help from her mother; she lived close to work; and she could do a lot of work from home.
She did not make any formal inquires about work other than with her husband which might be available to her. The plaintiff was adamant that she could not return to work, as she did not want to aggravate her neck and jeopardize the happiness of her family. She testified that she was coping although she experienced daily headaches and fluctuating pain and stiffness in her neck and shoulders. She said that she put her family first. In effect, the plaintiff's evidence was that she was not prepared to risk aggravating her neck by returning to work. She felt that the only person who would employ her was her husband.
The defendants called Mr Brett as a witness. As I understand his evidence, if she wished, the plaintiff could have worked up to 40 hours a week but that would depend on discussions with the plaintiff. However, Mr Brett said she would start off at 30 hours per week including 10 to 15 hours a week at the practice with the balance being done at home.
Mr Brett said that he and his wife did not discuss her returning to work after the birth of Cailin because the plaintiff was not able to cope with the work required, particular the deskwork, because of her pain. He said there would always be a position for his wife at his practice. He referred to her as "an asset".

Findings re plans to return to work

I am satisfied that following the birth of Cameron, the plaintiff intended to return to work after 12 months for 25 to 30 hours a week. Mr Brett said that the work was available and that he would pay her $25 per hour. As mentioned previously in these reasons, there is no evidence that, but for the accident, the plaintiff would have been physically or psychologically impeded from fulfilling this intention. Further, the plaintiff had appropriate and reliable childcare, would work at the clinic which was close to her home and do the majority of work at home.
There is no evidence as to how far into her second pregnancy the plaintiff would have worked. She worked for six months of her first pregnancy and in my view, this is a reasonable period to apply to the second pregnancy.
I am satisfied that had the plaintiff's intention to return to work been fulfilled, she would have worked up to 30 hours a week from March 2000 until say, the end of June 2002 when she was six months into her second pregnancy.
I am not satisfied on the evidence that it is more likely than not that the plaintiff would have returned to work after the birth of Cailin. There is no evidence of the plaintiff's long-term plans in relation to her career. There is no evidence that there was financial need for the plaintiff's income. Mr Brett said that he would have preferred the plaintiff as an employee but there is no evidence that his practice has suffered or will suffer if she does not return to work. The issue of returning to work after Cailin's birth was not discussed with her husband (albeit because it was considered futile due to her neck pain). Also, Cailin had health problems for the first 8 months or so of his life and even given available and supportive child care and the plaintiff's presently stated intention that she would have been able to return to work, I am not satisfied on the balance of probabilities that this would have eventuated. It would be speculating to assess the probability of the plaintiff returning to work after Cailin's birth, especially as the plaintiff stated that as far as she was concerned she wanted to "try for a girl" – she may well have become pregnant with a third child.
Accordingly, insofar as loss of work capacity is concerned, I find that as a result of the accident that the plaintiff was deprived of working 30 hours a week from March 2000 until the end of June 2002 at a rate of $25 per hour.

Findings relevant to the assessment of general damages

Non-pecuniary loss is defined in The Motor Vehicle (Third Party Insurance) Act ("the Act") to include pain and suffering, loss of amenities of life, loss of enjoyment of life, curtailment of expectation of life and bodily or mental harm: s 3C(1).
In my view, the defendant has not proved that before the accident the plaintiff was in a condition that, without the accident, would have led to her post‑accident state of health:
"The fact that the person injured was particularly susceptible to ensuing complications that would not, in a normal person, have followed from the injuries received, or that the person injured already had a disability which made the injury the more disabling – eg. the loss of an only eye – does not mean that damages are not to be assessed according to the circumstances of the particular case." Watts v Rake (1960) 108 CLR 158 at 164 per Menzies J.
I find that the plaintiff has suffered headaches which were initially quite severe but now are generally on a daily basis which she describes as a "dull ache". Since the accident, the plaintiff has suffered pain in her neck which is constant. The plaintiff has managed to live with the pain and manages to perform all her usual day-to-day activities. She has difficulty in doing the heavier household tasks but a cleaner assists in this regard. The plaintiff finds tasks such as hanging out the washing, blow‑drying her hair, keeping her head in a fixed position and looking down painful. She has tried a number of physical therapies, both main stream and alternative with some relief but has not obtained any lasting relief.
The plaintiff continues to consult Ms Bowyer who assists her with pain management techniques which the plaintiff willingly applies. In my view, it is this therapy together with the plaintiff's devotion to her family which assists her to manage to live with her pain.
For reasons outlined above, I find that the plaintiff's pre-existing depressive illness was to some extent exacerbated by the pain of her injuries. For quite a considerable time after the accident, the plaintiff's life was quite miserable due to her pain and depression. Dr Shannon opined in his report dated 17 November 2004 that the plaintiff's anxiety and depression are a result of the ongoing nature of the pain she suffered in the accident. Some of the medical witnesses were of the view that the medico-legal process can prolong symptoms and I agree with this as a matter of common sense (although the plaintiff was not cross-examined on the issue). It is my view, based on all the evidence, that the plaintiff will continue to improve and make every attempt to do so, given the support of her family and Ms Bowyer.

Assessment of general damages

The plaintiff's injuries arose out of a motor vehicle accident which occurred after 1^stJuly 1993. The provisions of s 3C of the Act govern the amount of damages to be awarded to the plaintiff for non-pecuniary loss.
Subsection (2) of s 3C of the Act provides that:
"(2)The amount of damages to be awarded for non-pecuniary loss is to be a proportion, determined according to the severity of the non-pecuniary loss, of the maximum amount that may be awarded."
The maximum amount of damages that may be awarded under the Act for non-pecuniary loss as from 1 July 2005 is set at a figure of $268,000, (Amount "A"). Subsection (3) of s 3C provides as follows:
"(3)The maximum amount of damages that may be awarded for non-pecuniary loss is Amount "A", but the maximum amount may be awarded only in a most extreme case."
After canvassing the evidence relevant to the heads of damage which fall within an award of general damages it is then necessary to consider what might be a most extreme case in which the maximum amount of damages, currently standing at $268,000, may be awarded for non‑pecuniary loss, and then apportion damages by comparing the severity of this plaintiff's non-pecuniary loss with that likely to be suffered in a most extreme case: Southgate v Waterford (1990) 21 NSWLR 427 at 440.
When the plaintiff's injuries and associated symptoms are compared with the examples of what might be regarded as a most extreme case, namely quadriplegia, I find that the plaintiff's injuries and symptoms, their progression and treatment, their current status and the effect that they have had on the plaintiff's enjoyment of life puts this situation at 10 per cent of a most extreme case.
As this amount of $26,800 is more than Amount "B" ($13,500) but less than Amount "C" being $41,000, it is necessary pursuant to s 3C(5) that the amount of damages awarded for non-pecuniary loss be the excess of the amount so assessed over Amount "B". The damages for non-pecuniary loss are therefore assessed at $13,300.

Future medical treatment

Dr Shannon recommended in his report dated 1 June 2005 that the plaintiff continue with psychological counselling at about four‑weekly intervals for approximately six months. He noted that her depression had resolved and that her anxiety diminished and there should be on going improvement over time.
Ms Bowyer recommended monthly consultations for 9 to 12 months. In my view, the plaintiff's consultations with Ms Bowyer are critical to her complete recovery. It is difficult to estimate how long this treatment should continue. However, I would estimate that another nine months counselling at monthly intervals is the best I can do on the evidence.
As to future medical treatment, in my view, no specific treatment is required, certainly not surgical intervention. I am of the view that the plaintiff's husband can provide appropriate chiropractic treatment. If other treatment is required, it is unlikely to be required for the long term. Accordingly, I would make a global award of $3,000 for future medical and psychological treatment.
I find that the counselling which the plaintiff received from Ms Bowyer has provided her with coping strategies to deal with her pain and that the counselling was necessary in assisting the plaintiff to recover from the accident. Accordingly, I would order that the second defendant pay the agreed sum of $3,831.89 to the plaintiff.
The cost of physiotherapy is to be agreed between the parties.

Miscellaneous matters

I have found that the plaintiff has not satisfied me on the balance of probabilities that she would return to work after the birth of her second child. Accordingly, it is not necessary for me to make any assessment of her work capacity from that time, nor to assess damages for future economic loss. However, I think it useful to make some brief findings in relation to that.
The evidence establishes that the plaintiff still suffers pain and some restriction to movements in her neck. Her evidence about her incapacity to fulfil certain tasks, particularly involving lifting her arms and sitting in one spot looking down is undisputed. However, whether or not the plaintiff's condition is permanent, I am of the view that the medical evidence is to the effect that she will continue to improve. Further, the evidence is that with a graduated return to work the plaintiff should be in a position to work to 30 hours a week in her pre‑accident occupation. If the evidence had established that the plaintiff intended to work to the age of 65 years, and it does not, I would make an allowance in the region of 15 to 20 percent for contingencies, as it is far from clear whether the plaintiff would have a third child. Further, her domestic situation, coupled with her personality, not to mention all of the usual contingencies taken into account by the courts in cases such as these, would justify a contingency reduction in the region of 15 to 20 percent.
Counsel for the defendant submitted that Mr Brett's evidence to the effect that the plaintiff would receive a distribution from a trust if she were not earning wages, which would cease if she were to return to work, means that if the plaintiff were incapacitated, such incapacity would not be productive of actual economic loss. (Graham v Baker (1961) 106 CLR 340 at 347.)
The plaintiff's taxation returns from 1996 to 2004 reveal that for the years 1999 until 2004, the plaintiff received for each year a distribution from a trust from between $36,000 to $61,731. The plaintiff was not able to explain the origin of the income. Mr Brett testified that the plaintiff is a beneficiary of a service trust associated with his practice. He said there is also an investment trust which derives rental income from investment properties. Mr Brett testified that the more wages the plaintiff received, the less she would "probably" receive as distribution from the trusts. There was no other evidence relating to the terms of the trusts. It would seem from Mr Brett's evidence that the distribution was discretionary.
In the absence of more detailed evidence about the nature of the trusts, I cannot make a finding about the circumstances in which the plaintiff would derive income from the trusts.
In any event, Graham v Baker (supra) was dealing with the effect of sick pay on the calculation of loss of wages. The case may be distinguishable from the present case, but I do not have sufficient evidence to make a ruling on that issue.

Summary

I have found that the plaintiff did not suffer any significant injuries or mental health conditions as a result of the first accident. Any award of general damages would fall far short of Amount "B" and therefore no damages would be awarded: s 3C(4) of the Act.
At trial, the parties agreed that I make factual findings on the issue of loss and then invite them, if such loss were proved, to submit appropriate schedules of loss (none of which have been provided at trial).
I invited the parties to make submissions on past loss of superannuation, interest and any other head of loss which they consider might arise in view of the factual findings I have made.
On 21 December 2005 counsel made submissions on the quantification of past loss of income and superannuation and special damages.
It was submitted on behalf of the plaintiff that calculating past loss of income I should apply the marginal tax rate which related to that loss of income without taking into account the income the plaintiff derived from the distribution from the trusts. It was submitted that the appropriate tax rate should be based on the premise that the plaintiff would have no other taxable income except for the loss determined by the court and should be calculated on that basis.

The defendants submitted that in making an assessment of damages for past loss of income, the court should take into consideration any income tax which the plaintiff was liable to pay on the earnings she lost as a result of her injuries. In calculating the amount of taxation, counsel for the defendants submitted that the appropriate marginal rates and the Medicare levy must be applied to the gross income: McDonald v Moore [2003] WASCA 21 per Murray, Anderson and Templeman JJ. In view of my inability to make a finding about the circumstances in which the plaintiff would derive income from the trusts, counsel for the defendants submitted that any calculation of past loss of income must be based upon the lost income being added to the income the plaintiff was already receiving from other sources and then applying the appropriate marginal tax rates to this total amount.
I agree with this submission. The plaintiff's reliance on Husher v Husher (1999) 165 ALR 384 to support the plaintiff's submission as to the appropriate tax rate does not apply to the circumstances of this case in my view.
It is agreed that the defendants' calculations of the past loss of income and the application of the appropriate marginal tax rates as set out in the defendants' written submissions dated 16 December 2005 are accurate.
Accordingly, on the basis of those calculations, the plaintiff's past loss of income is $49,988.
As to special damages, the plaintiff's counsel conceded that there was no evidence to support a claim for payment for Botox injections, Dr Ng's account and physiotherapy expenses. Accordingly, the only special damages which are agreed is the HIC recovery.
Counsel did not make any submissions in relation to costs. In the circumstances, it is appropriate in my view that the second defendant pay the plaintiff's costs of the action. In the absence of submissions, I would give liberty to apply in relation to costs.
In summary, I order that the second defendant pay the damages which I outline as follows:
General damages  $13,300.00
Past loss of income  $48,000.00
(as per defendants' calculations agreed as accurate)
2000$9,788.25
2001$20,114.75
2002$20,085.00  $49,988.00
Interest at 3 per cent per annum  $3,499.00
Past loss of superannuation
$750 x 9 per cent x 70 per cent x 120 weeks  $5,670.00
(Jongen)
Interest at 3 per cent per annum  $406.00
Special damages
HIC recovery  $703.00
Ms Bowyer's fees  $3,832.00
Future medical treatment  $3,000.00
Total$80,398.00

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Citations

Brett v Hamilton [2005] WADC 214

Cases Citing This Decision

0

Cases Cited

5

Statutory Material Cited

1

Commissioner for Government Transport v Adamcik [1961] HCA 43

Watts v Rake [1960] HCA 58

[2005] WADC 214

14 NOVEMBER 2005