Chau v Danh
[2009] NSWDC 287
•10 November 2009
CITATION: Chau v Danh & Anor [2009] NSWDC 287 HEARING DATE(S): 22 and 23 June 2009
JUDGMENT DATE:
10 November 2009JURISDICTION: Civil JUDGMENT OF: Levy SC DCJ DECISION: 1. Verdict and judgment for the plaintiff in the sum of $582,579.
2. Defendant to pay the plaintiff’s costs.CATCHWORDS: DAMAGES – personal injury – motor vehicle collision – assessment of multiple heads of damage - EVIDENCE – considerations where medical expert makes an allegation of exaggeration and fabrication of symptoms by plaintiff - PRACTICE AND PROCEDURE – Uniform Civil Procedure Rules 2005, Schedule 7 clause 5(c) – obligation of expert witness to give reasons for opinion to comply with requirements of expert witness code LEGISLATION CITED: Motor Accidents Compensation Act 1999
Uniform Civil Procedure Rules 2005, Schedule 7 clause 5(c)CASES CITED: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320
Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 29
Mason v Demasi [2009] NSWCA 227
State of NSW v Moss [2000] NSWCA 13
Stretenovic v Reed [2009] NSWCA 280
Strinich v Singh [2009] NSWCA 15PARTIES: Thi Ngoc Chau (Plaintiff)
Khuong Danh (First Defendant)
Thi Loan Danh (Second Defendant)FILE NUMBER(S): 580 of 2009 COUNSEL: Mr AJ Lidden SC with Mr M Daley (Plaintiff)
Mr P Nolan (Defendants)SOLICITORS: Brydens (Plaintiff)
Sparke Helmore Lawyers (Defendants)
JUDGMENT
A. INTRODUCTION
Nature of case
1. The plaintiff has brought these proceedings claiming damages for serious injuries she received in a high impact motor vehicle collision that occurred on 23 March 2005 when, due to momentary driver inattention, the northbound vehicle being driven by the plaintiff’s husband, in which she was a passenger, left the roadway and collided with a tree on the western side of the Pacific Highway at Halfway Creek near Grafton, NSW. The plaintiff was aged 46 years when injured and was aged 50 years at the trial. The defendants admitted liability but contested the extent of the plaintiff’s entitlement to damages.
2. The parties adopted quite disparate positions concerning the appropriate assessment of damages. On behalf of the plaintiff it was submitted that an appropriate award of damages would be the sum of $1,231,997. On behalf of the defendant it was submitted that the appropriate award of damages would be the sum of $285,229.20. A total of five claimed heads of damage required assessment. These are listed below together with paragraph references:
Head of Damage
Paragraphs (a) Non economic loss [75] - [76] (b) Past domestic assistance [77] - [95] (c) Future domestic assistance [96] - [99] (d) Future treatment [100] - [101] (e) Past out-of-pocket expenses [102]
Summary of findings
3. I have assessed the plaintiff’s entitlement to damages in the sum of $582,579.
B. DAMAGES ISSUES
The Plaintiff
Background
4. The plaintiff was born in Vietnam in 1959. She completed her education to the equivalent of 2nd year of primary school before assisting with the running of the family business in Vietnam. She married in 1975 and then assisted her husband in his fishing business in Vietnam. She left Vietnam in 1984 and travelled to Thailand where she remained until 1987 in a refugee camp awaiting migration approval to travel to Australia. She arrived in Australia in 1987. She had not worked in this country as she had been fully engaged in raising her 7 children. The plaintiff gave evidence through an interpreter, as she was not proficient in communicating in English.
Plaintiff’s prior health
5. The plaintiff’s previous medical history was eventful. In 1997 the plaintiff was diagnosed to have had a large right occipital infective cerebral abscess. She was admitted to Liverpool Hospital for treatment of this condition. On 19 October 1997 and over several days this was drained and the residual abscess wall was surgically excised by Dr McDowell, a neurosurgeon. She was treated with aggressive antibiotic therapy until all signs of infection was eradicated. Over the course of several months the plaintiff’s presenting problem of recurrent lethargy gradually improved. She was however left with a permanent left sided hemianopia or restricted field of vision in at least her left eye as elsewhere this visual defect was stated to involve loss of the left visual field in both eyes.
6. On 5 February 1998 she underwent a surgical procedure whereby Dr McDowell operated to repair the post-operative cranial defect which had resulted from the earlier cranial surgery and he did this by an acrylic cranioplasty procedure.
Plaintiff’s pre-injury level of functioning
7. The plaintiff was initially quite disabled by the effects of the surgery for the removal of the cerebral abscess. The evidence of the plaintiff and her daughters Thi and Thuy was to the effect that after some months following her last cranial surgery in 1998, apart from the residual visual defect, she had improved physically, mentally and emotionally and was performing normal household duties. The claim was that at the time of the collision the plaintiff was fully engaged in the care of her home and her family and looked after the running of the household, including shopping, cleaning, washing, ironing, cooking, gardening and the like.
8. The defendant challenged this evidence and in doing so relied upon Exhibits “3” and “4” which comprised photocopies of some Centrelink forms which emerged from within the subpoenaed records of the treating general practitioner Dr Thomas Diep.
9. There was some contention about the status of these documents which were respectively dated 2 September 2002 and 5 August 2003. There was no evidence that these forms, one of which was only partly completed, had ever been sent to Centrelink and had been acted upon. However, given the evidence that Mr Chau was in receipt of a carer’s pension following the plaintiff’s cranial surgery, I infer from this that the original forms were in fact sent to Centrelink and acted upon and the assessments stated by Dr Diep in these forms formed the basis of the receipt of such pension entitlements. Since these documents were signed by Dr Diep, I infer that these documents were not drafts but in fact reflected Dr Diep’s views on the plaintiff’s post-surgical condition and the restrictions that applied to her situation at the time he signed them.
10. In my view the Centrelink forms signed by Dr Diep provide an accurate and convenient insight into the plaintiff’s pre-injury situation, affected as it was by the aftermath of her surgery. Given that the brain abscess was removed in 1997 and the skull defect was repaired in 1998, some 7 years before the collision, I consider these documents provide a sound and objective insight into the plaintiff’s health prior to the collision. I therefore consider it relevant and necessary to review the notations and representations set out in these forms, as they seem to me to be relevant to the assessment of damages in this case.
11. On 2 September 2002, for Centrelink purposes, Dr Diep assessed the plaintiff’s pre-injury care needs : Exhibit “3”. In that assessment he said the plaintiff had a need for constant care on a daily basis to carry out routine personal activities. He felt that constant care was required on a daily basis because the plaintiff was at risk to herself or to others. He noted that the plaintiff’s condition was permanent and was due to an acquired brain injury. He identified the presence of the visual deficit of hemianopia in the plaintiff. He assessed the plaintiff as needing help with grooming and personal care, minor help transfers and requiring either verbal or physical help with walking. I infer from this that she needed prompting and direction with walking. He also assessed her as needing some help with dressing and with negotiating stairs. He indicated the plaintiff sometimes showed signs of depression, sometimes withdrew from social contact and sometimes displayed disinhibited behaviour. He also noted that she displayed signs of memory loss for most of the time.
12. On 5 August 2003 Dr Diep completed another Centrelink medical assessment form with regard to the plaintiff’s brain impairment. He reiterated the historical diagnosis of cerebral abscess with associated brain damage leading to residual left hemianopia and cognitive dysfunction. It was noted that the plaintiff’s vision was compromised with loss of half of the left-sided visual field in both eyes. It was also noted that she had poor memory, poor concentration and poor cerebral function. He noted this to be a long-term condition.
13. I have to assess the evidence given by the plaintiff and her daughters on the question of the plaintiff’s level of post-operative and pre-injury level of functioning in the domestic setting in the light of the evidence comprising Exhibits “3” and “4”. I also have to consider the significance of the fact that the plaintiff’s husband was not called to give evidence on these issues especially since he was the person who has provided the plaintiff with care and assistance both before and after her injuries.
14. I conclude that the evidence of the plaintiff and her daughters stating that she carried out normal household activity prior to the motor vehicle collision is inaccurate in light of the content of Exhibits “3” and “4”. Further, in my view, it is of significance that no evidence was called from the plaintiff’s husband on the issue of the plaintiff’s level of domestic functioning after her recovery from the surgery in 1998 and before the collision in question. This is despite the fact that it appears that he still provides her with some domestic assistance, which indicates that he would have been available to give evidence if required. These circumstances lead me to infer that his evidence would not have been of assistance to the plaintiff’s case in defining the differences in the plaintiff’s level of personal and domestic functioning before and after the collision : Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 29. These findings have some significance to the assessment of a number of the claimed heads of damage.
The collision
15. After the vehicle in which the plaintiff was a passenger left the roadway, there was a heavy impact with a roadside tree. The plaintiff apparently suffered a loss of consciousness in the collision. Nothing of significance turns on the plaintiff being unable to recall the events of the collision.
Injuries
16. The plaintiff gave only very limited evidence on the nature and extent of her injuries, the detail of which had been gleaned from the report of her treating general practitioner, Dr Thomas Diep, who saw her on 5 April 2005 and subsequently reported to the plaintiff’s solicitor concerning her injuries. Dr Diep summarised seven separate areas of injury.
17. The plaintiff had a whiplash injury to her neck, which caused her mild to moderate pain in her neck. A CT scan of the neck showed degenerative changes but no evidence of acute injury, fracture or dislocation. The posterior muscles of the neck and the sternocleidomastoid muscles were mildly tender on both sides.
18. There were multiple rib fractures and pulmonary contusions. There were comminuted fractures of the right 10th rib and subsequent bone scans revealed multiple fractures involving the lower sternal body, and the 7th, 8th, 9th and 10th ribs at the costochondral junctions and the 7th, 8th, 9th and 10th costochondral junctions on the right side.
19. There was a fracture of the left humerus, which was initially positioned in a cast but later required the insertion of an intramedullary nail under general anaesthetic. This has left some restrictions in movement.
20. There was an intra-abdominal injury which was recorded as showing a duodenal haematoma and contusion with mild intra-peritoneal bleeding, a mesenteric haematoma and pancreatic contusion thought to be due to a seat belt injury. There was extensive bruising to the abdomen, left flank and back due to the seat belt.
21. There was a fracture of the lumbar spine at the superior margin of L1 with pain reported in the back at the levels L1 to L3. A bone scan later detected fractures of L1 and L3 vertebral bodies.
22. There was also a soft tissue injury to the coccygeal area.
23. In addition the plaintiff had reported having difficulty sleeping due to pain, she had excessive nightmares and was very anxious, especially when travelling in a car. There was no evidence of any cranio-cerebral trauma and a cerebral CT scan detected no abnormality apart from the results of the previous surgery to remove the cerebral abscess.
24. In combination, these descriptions indicate that the plaintiff had suffered serious and life threatening injuries.
Treatment and rehabilitation
25. The plaintiff was taken to Grafton Base Hospital where she remained until discharge on 4 April 2005. There she remained under the care of Dr P Claes, a general surgeon. There was no report tendered from him. On her return to Sydney on 5 April 2005 she saw Dr Diep on the same day. Dr Diep has managed her care. Dr Diep had access to a discharge summary from Grafton Base Hospital but this was not tendered.
26. On 3 May 2005 the plaintiff underwent a bone scan that was arranged by Dr Diep. The report on that bone scan comprised Exhibit “D”. This confirmed that the plaintiff had suffered multiple fractures as summarised above.
27. Dr Diep referred the plaintiff for a structured rehabilitation programme at a gymnasium. The plaintiff co-operated with the program and increased her range of movement and functioning. The plaintiff was discharged from the program to continue her exercises at home on a directed basis.
Medical assessments
28. The plaintiff has been examined by a variety of medical and allied practitioners. The resultant reports are within the categories of treating practitioners, experts who examined the plaintiff at the request of her solicitors and experts who examined her at the request of the solicitors for the defendant.
Reports from practitioners who have treated the plaintiff
29. The practitioners who treated the plaintiff were her general practitioner Dr Thomas Diep and Dr Y Kai Lee, an orthopaedic surgeon to whom she had been referred.
Dr Thomas Diep – treating general practitioner – reports dated 25 June 2005, 20 July 2007 and 10 February 2008
30. On 5 April 2005 the plaintiff consulted her general practitioner Dr Diep following her discharge from Grafton Base Hospital on 4 April 2005. He was provided with a discharge summary. Dr Diep treated the plaintiff with medication, physiotherapy and arranging an active exercise programme to improve her physical functioning. Dr Diep referred the plaintiff to Dr Y Kai Lee, an orthopaedic surgeon for further management and in the meantime prescribed anti-depressant medication for the psychological problems that had emerged due to the injuries. In his first report Dr Diep stated that despite the multiple rib and sternal fractures and the intra-abdominal injuries, the plaintiff had no significant damage to the lungs or to intra-abdominal organs. He noticed a steady improvement in her condition over time and he also noted that she suffered from acute anxiety as a result of her injuries. In his first report he stated that the outcome of any residual pain in the injured areas remained uncertain.
31. On 20 May 2006 Dr Diep provided his second report which was an update addressed to the third party insurer. In it he described the plaintiff’s main problems as being delayed or non-union of the left humeral fracture, left shoulder stiffness and low back pain. He noted that her general fitness and left upper limb function had improved significantly with the home exercise programme which he recommended should continue. He described the plaintiff’s most prominent problem as being persistent low back pain, made worse in cold weather. Physiotherapy had not improved the pain and he thought that the pain was discogenic in origin because the fracture to the vertebral body had healed. He noted continuing occasional neck pain and fluctuating mild coccyx pain. He considered that the plaintiff had progressed well in her rehabilitation however the persistent low back pain had become her dominant symptom. He recommended further imaging investigations and a continuation of the home-based exercise programme.
32. On 10 February 2008 Dr Diep issued his third report which was addressed to the solicitor for the plaintiff. Oddly, it referred to the last consultation as having taken place on 1 March 2008 which must have been an error with regard to either the date of the report or the reported date of the consultation.
33. Dr Diep noted that the plaintiff still complained of occasional left sided pain over her sternocleidomastoid muscle. He also noted the complaint of occasional residual pain over the chest particularly on cold days. He noted that the delayed union of the left humerus had eventually healed with the application of a bone stimulator but there was a complaint of residual pain at the fracture site on cold days. He identified problems with the tendons of the left shoulder and related musculature that was revealed on ultrasound study. She was referred to a rheumatologist for steroid injections. Dr Diep noted the presence of occasional abdominal wall pain, persistent low back pain and occasional referred pain to both legs due to compression deformity of the L1 and L3 vertebral bodies, kyphosis at the level T12/L1 and at the point of maximal kyphosis there is a minimal encroachment of the covering of the spinal cord and minimal bulging of the disc annulus at L2/3 with disc desiccation at L4/5. Mild persistent coccygeal pain was also noted together with soft tissue discomfort in the left leg at the site of previous bruising. He also recorded that the plaintiff had recurrent insomnia particularly on cold days involving aggravated pain at night.
34. Dr Diep observed that the plaintiff had progressed well through her rehabilitation and had reached a state of maximal improvement, 3 years post injury. He predicted that the plaintiff’s symptoms will be permanent and will involve intermittent exacerbation requiring pain relief measures.
Dr Mark Liew – treating rheumatologist – report dated 25 July 2008
35. On 30 April 2007, at the request of Dr Diep, the plaintiff consulted Dr Mark Liew, a consultant rheumatologist. He saw the plaintiff on a total of 3 occasions for treatment before preparing his report. Dr Liew noted the presence of some bony deformity of the left humerus and some soft tissue swelling and tenderness in the left arm and shoulder which was also affected by pain and restriction of movements. He considered there was significant pathology in the plaintiff’s left shoulder which involved tendonitis and bursitis. He treated these areas with steroid injections and recommended stretching exercises to improve movement. He expressed the opinion that these problems were related to the injuries received by the plaintiff in the collision in question. At his last examination of the plaintiff which took place on 4 June 2007 he noted that the plaintiff was having problems with her left arm and shoulder, left hip, back and lower extremities. He thought the prognosis of these problems was for slow improvement but he thought it unlikely that the plaintiff would attain a full pre-injury functional capacity or a full resolution of her symptoms.
Dr Y Kai Lee – treating orthopaedic surgeon – reports dated 20 July 2006 and 12 July 2008
36. On 13 May 2005 the plaintiff consulted Dr Y Kai Lee for treatment at the request of Dr Diep. He saw her on a total of 6 occasions between 2005 and 2006 before he prepared his report addressed to the plaintiff’s solicitor. He had applied a bone stimulator to the plaintiff’s humeral fracture to promote healing. After reviewing the plaintiff’s history and her presenting complaints he identified the need for possible removal of the intramedullary humeral nail at a cost of about $3000 to $4000 as well as a possible acromioplasty procedure to the injured shoulder at a cost of about $7000. He also identified the possible need for spinal surgery to insert an interspinous disc spacer to take the load off the intervertebral disc.
37. On 12 June 2008 Dr Y Kai Lee forwarded his second report to the solicitor for the plaintiff after seeing the plaintiff on a further 3 consultations between 2006 and 2008. He noted that the delayed healing of the fractured humerus had finally healed but the plaintiff had been left with stiffness in the left arm and shoulder as well as back pain. He noted that a CT can had revealed a 50 per cent collapse of what I infer to be either an intervertebral disc or the vertebra at L1. He noted the need for ongoing pain killing medication and noted the history of the plaintiff receiving help with her housework. He described the plaintiff’s condition as being stable.
Medical and allied assessments carried out at the request of the plaintiff’s solicitor
38. The solicitor for the plaintiff has arranged medicolegal assessment of the plaintiff by a plastic surgeon, two consultant surgeons, a rehabilitation specialist, a psychiatrist and an occupational therapist. In the following paragraphs I will summarise the opinions of these specialists.
Dr Leonard Lee – consultant psychiatrist – reports dated 16 November 2006 and 17 June 2009
39. On 16 November 2006, at the request of her solicitor, the plaintiff was examined by Dr Leonard Lee, a consultant psychiatrist. His report was of the same date. He noted a history of depression due to pain. He also noted an increased tendency to forgetfulness after the injury. Dr Lee observed marked depression when he examined the plaintiff. He also noted that the plaintiff’s affect was flattened. He considered her to be suffering from a major depression secondary to the effects of the motor vehicle collision. He believed she has become withdrawn and suffered with anxiety as well as depression. He expressed the view that the plaintiff’s altered capacity for the activities of daily living represented a major cause for her depression, the prognosis for which was extremely guarded in his view.
40. On 17 June 2009 the plaintiff was re-examined by Dr Lee. His second report reviewed the presenting history. He observed the plaintiff’s depressed affect and psychomotor retardation with some evidence of cognitive impairment. He felt that the cognitive impairment reflected pre-existing brain damage secondary to the removed tumour. He concluded that the plaintiff suffered from a depressed mood disorder secondary to her injuries and that the pre-existing cognitive impairments did not cause psychological symptoms. He noted that the plaintiff had disabilities in the area of socialisation, travel inability and increased need for assistance from family members. He recommended that she should be referred to a Vietnamese speaking psychiatrist for treatment but also noted that that the plaintiff had expressed reluctance to do so, having earlier noted that there was a cultural resistance for such treatment, due to perceived stigma.
Dr Clive Sun – consultant rehabilitation specialist –reports dated 18 January 2008 and 26 August 2008
41. On 27 October 2006, at the request of her solicitor, the plaintiff was examined by Dr Clive Sun, a consultant rehabilitation specialist. His report was of the same date. Dr Sun thought that the plaintiff should have been referred to rehabilitation at an earlier stage in view of her multi-trauma. I do not regard that as a criticism of the plaintiff. He confirmed the need for ongoing physiotherapy and analgesics, and thought that spinal anaesthetic injections from a pain specialist, some home therapy use and referral to a clinical psychologist were required. He also considered that the plaintiff should have access to domestic assistance, initially for six hours per week to be reviewed after 12 months.
42. On 18 January 2008 the plaintiff was re-examined by Dr Sun. He expressed the opinion that her clinical picture was consistent with a concussion, post-traumatic stress disorder with the anxiety and depression consequent upon her physical problems. He thought that she should be referred to a rehabilitation specialist for management. He reiterated his views on the need for various therapies and levels of assistance and expressed the view that the plaintiff’s condition was likely to continue.
43. On 26 August 2008 Dr Sun provided the plaintiff's solicitor with a commentary letter on his review of a DVD recording dated 30 April 2008, presumably taken of the plaintiff's activities over a period of 10 minutes. That DVD footage was not admitted in evidence however Dr Sun stated that it did not contradict his findings or diagnosis and he confirmed the accuracy of his earlier comments.
Dr Peter Conrad – consultant surgeon – reports dated 3 November 2006 and 8 May 2009
44. On 1 November 2006, at the request of her solicitor, the plaintiff was examined by Dr Peter Conrad, a consultant surgeon. His report was dated 3 November 2006. He expressed the opinion that the plaintiff had a significant neck and back injury with multiple fractures of the L1 and L3 vertebral bodies as well as having sustained a left shoulder injury and a fracture of the left humerus. He thought she needed conservative treatment with physiotherapy from time to time and expressed the view that she would need some 8 to 10 hours per week of home assistance. On 7 May 2009 the plaintiff was re-examined by Dr Conrad. He reiterated his earlier views and noted that prognosis for the plaintiff’s recovery was rather poor.
Dr Richard Deveridge – consultant surgeon – report dated 29 April 2008
45. On 24 April 2008 the plaintiff was examined by Dr Richard Deveridge, a consultant surgeon. His report was dated 29 April 2008. He noted that the plaintiff would be permanently unfit for repetitive bending, heavy lifting, twisting, pushing and dragging activities and that she should avoid prolonged sitting or standing as well as certain arm and shoulder movements. These matters were relevant to the claim for future domestic assistance. He also suggested ongoing analgesic and anti-inflammatory medication, and also outlined a range of other treatments and estimates of the cost of some of those treatments.
Dr Leana Teston – consultant plastic surgeon – report dated 22 May 2008
46. On 13 May 2008, at the request of her solicitor the plaintiff was seen by Dr Leana Teston, a consultant plastic surgeon. She examined the scarring on the posterior lateral aspect of the plaintiff’s left arm and described it as measuring some 10 cms in length and some 5 mm in average in width. Apart from observing it was quite obvious, she did not think it could be improved by revisionary surgery.
Mrs Margaret Kennedy-Gould – consultant occupational therapist – report dated 26 September 2008
47. On 8 September 2008 the plaintiff was assessed by Mrs Margaret Kennedy-Gould, an occupational therapist. Her report is dated 26 September 2008. Mrs Kennedy-Gould identified three periods in which the plaintiff required varying levels of care and assistance from her family during her recuperation from the injuries sustained in the collision. Those periods were the first 12 weeks from 23 March 2005 until 15 June 2005, then the ensuing 7 months between 15 June 2005 and 23 October 2005 and then from 23 October 2005 until the trial.
48. Mrs Kennedy-Gould made specific recommendations of time estimates in respect of each of these periods based on her assessment of the plaintiff’s level of functioning and her ability to carry out tasks in the home. She concluded that the plaintiff was restricted in a variety of household domestic tasks and she made specific recommendations regarding the provision of care and assistance which I will separately analyse in my assessment of the plaintiff’s entitlement to damages for domestic assistance.
Medical assessments carried out at the request of the defendant’s solicitor
49. The solicitor for the defendant arranged for the plaintiff to be examined by an orthopaedic surgeon, a psychiatrist and an occupational therapist. In the paragraphs that follow I summarise their conclusions.
Dr Ian Barrett – consultant orthopaedic surgeon – reports dated 2 April 2007 and 9 May 2008
50. On 27 March 2007, at the request of the solicitor for the defendant, the plaintiff was examined by Dr Ian Barrett, a consultant orthopaedic surgeon. Dr Barrett’s report on that examination was dated 2 April 2007. After reviewing the history, the medical reports and investigations that were provided to him, Dr Barrett stated his view that the plaintiff had been treated appropriately for her injuries. He thought the prognosis was “reasonable” but noted that the plaintiff will continue to experience intermittent episodes of back pain resulting from her significant compression fractures. He also stated that the plaintiff has been left with some permanent restriction of movement of her left shoulder. He expressed the view that the plaintiff has been left with a 24 per cent whole person impairment under the Motor Accident Authority guidelines.
51. Dr Barrett noted the history that in the domestic setting Mr Chau always did most of the cooking and housework. I view that summary with caution because although Dr Barrett had the benefit of an interpreter when he took a history from the plaintiff, in the absence of a relevant insight into the questions and answers that led to that summary, I do not regard that statement as an absolute admission against interest by the plaintiff especially because in a later clarification letter, in answer to a query concerning this issue, Dr Barrett stated that the comment he had made concerning the plaintiff’s husband doing most of the cooking and housework was based on his impression : Mason v Demasi [2009] NSWCA 227; Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320. Dr Barrett confirmed that the plaintiff had been left with disabilities that were partly due to the collision and partly due to the previous cerebral problem. Significantly, he expressed his opinion that the examination of the plaintiff was straightforward and without evidence of exaggeration or embellishment.
Dr Peter Whetton – consultant psychiatrist – report dated 27 March 2007
52. On 27 March 2007, at the request of the solicitor for the defendant, the plaintiff was examined by Dr Peter Whetton, a consultant psychiatrist. Dr Whetton also interviewed the plaintiff’s husband separately. His report was dated 27 March 2007. Dr Whetton was provided with some documentation which he did not identify. He specifically stated that he based his opinion on the evaluation of the objective findings he identified at the time of his examination. In my view that comment provides an explanation for some of the views expressed by Dr Whetton in his report. I refer in particular to his remarks concerning the apparently vacant manner and demeanour with which the plaintiff responded to some of his questions.
53. Dr Whetton erroneously referred to a previous brain tumour and went on to say the degree of the plaintiff’s memory impairment was difficult for him to assess. He was of the view the plaintiff’s cognitive functioning showed what he referred to as significant inconsistencies in pattern so as not to follow the picture of an organic impairment. He thought the memory impairment was more in keeping with a severe depression or severe anxiety.
54. Dr Whetton postulated that the plaintiff either had a severe memory impairment from an assumed previous tumour or the plaintiff was exaggerating or feigning memory impairment. Dr Whetton also stated that, based on his examination, it was difficult to make a diagnosis yet, somewhat inconsistently, he went on to say that he did not agree with the earlier diagnosis of major depression and stated that it was most likely that the plaintiff was exaggerating her symptoms and exaggerating or fabricating any link between the accident and her psychiatric symptoms.
55. Neither party called oral evidence from Dr Whetton to explore or explain his views. It was not clear from his report as to which opinion he was addressing his disagreement on the issue of depression.
Ms Margi McMaster – consultant occupational therapist – report dated 23 April 2008
56. On 22 April 2008, at the request of the solicitor for the defendant, the plaintiff was assessed by Ms Margi McMaster, an occupational therapist. Her report which followed that assessment was dated 23 April 2008. Ms McMaster made recommendations concerning the plaintiff’s past and future domestic assistance needs. Her opinion differed from that of Mrs Kennedy-Gould who provided a similar report to the plaintiff’s solicitor. The basis for the differences will be examined when analysing the evidence in respect of the heads of damage to which their evidence related.
Findings on conflicting medical opinions
57. In my view the only significant areas of difference arising from the medical reports concerned the differing opinions within the reports of the assessing psychiatrists. The differing views of the respective occupational therapists will be examined when dealing with the claim for domestic assistance. In the following paragraphs I set out my analysis of the differing psychiatric opinions.
58. There is a conflict between the psychiatric opinions of Dr Lee and Dr Whetton concerning a relationship between the motor vehicle collision and the plaintiff’s depression. Shortly summarised, Dr Lee thought there was a relationship between the plaintiff’s pain from the effects of her injuries and her withdrawal, anxiety and depression. In contrast, Dr Whetton rejected the diagnosis of major depression and proffered the opinion that it was most likely that the plaintiff was exaggerating her symptoms and fabricating any link between the injury and the psychiatric symptoms. The defendant relies upon Dr Whetton’s stated views.
59. A heavy onus rests with a party seeking a finding of exaggeration and fabrication of symptoms : Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. This is especially so where a party to litigation seeks to do so on the basis of an opinion of an expert witness.
60. In this case I do not accept Dr Whetton’s opinions on alleged exaggeration and fabrication on the plaintiff’s part. I have come to this conclusion for several reasons.
61. First, it is plain on the face of Dr Whetton’s report that he has erroneously assumed the plaintiff had a past history of a brain tumour when in fact the correct history was that of a cerebral abscess. There may or may not be neuro-anatomic, neuro-chemical or neuro-physiological differences resulting from these two entirely different entities that could have an influence on the plaintiff’s complaints. I am not entitled to speculate on the answer to this question and will not do so : Strinich v Singh [2009] NSWCA 15; Stretenovic v Reed [2009] NSWCA 280. However since the question arises and remains unresolved by expert explanation I consider Dr Whetton’s erroneous assumption to significantly detract from the weight of his expressed view, particularly since he seems to have formed his views on the basis of demeanour and, on his own acknowledgment, he has based his assessment on his own objective findings without apparent recourse to clinical records where, in my view, such records would be an important point of reference for the purpose of arriving at a diagnosis and causal connection between psychological problems and an antecedent injury.
62. Secondly, I consider Dr Whetton’s negatively expressed views to have been influenced by his erroneous assumption as to the nature of the plaintiff’s previous cerebral problem so as to mislead his clinical impression.
63. Thirdly, although Dr Whetton’s report contains an acknowledgement of the expert witness code the report nevertheless contains deficiencies in this regard. In particular, it fails to comply with the requirements of clause 5(c) of Schedule 7 to the Uniform Civil Procedure Rules 2005 in that Dr Whetton does not state the reasons for his opinions on alleged exaggeration and fabrication by the plaintiff.
64. Fourthly, a further problem with Dr Whetton’s report is that it is partly opaque to a full analysis in that it does not identify the materials that were provided to him for his consideration in connection with his examination. The tendering party failed to include in the tender of his report the letter of instruction that was given to Dr Whetton which may have identified those materials so as to enable or assist with a full analysis of his views.
65. In the circumstances described above, I find myself unable to rely upon the opinion of Dr Whetton in this case.
66. Instead, I prefer the opinions on the causal connection between the plaintiff’s injuries and her depression and the subsequent psychological difficulties as expressed by Dr Lee. I have come to this view because Dr Lee has identified cogent reasons for such a connection, namely, the presence of a mood disorder secondary to the plaintiff’s injuries, a connection which seems understandable and not glaringly improbable. I also find Dr Lee’s views on the causal connection persuasive, because he has correctly identified the history of the previous cerebral problem and has made the effort to differentiate and distinguish between the residual cognitive effects of the prior condition and cerebral surgery, compared with the emotional consequences for the plaintiff that have resulted from her injuries. This in my view renders his report more reliable than the opinions expressed by Dr Whetton.
Mitigation
67. There was some suggestion that the plaintiff should have been referred to rehabilitation earlier than was the case. That was not her fault. There was also the suggestion that the plaintiff should seek out psychiatric referral to a Vietnamese speaking psychiatrist. She has apparently not done so because of the cultural stigma she perceives to be associated with psychiatric treatment. In these circumstances I do not regard her failure to seek out such treatment as amounting to an unreasonable failure to mitigate and I make no discount of her damages on account of such a suggestion.
Residual disabilities
68. The plaintiff’s remaining disabilities due to the collision are within definite and circumscribed parameters. I consider this to be an appropriate case in which to place reliance on the evidence contained in the medical reports to garner the detail of the plaintiff’s continuing disabilities : Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25. Accordingly, I summarise the plaintiff’s ongoing disabilities in the following paragraphs.
69. The pre-injury effects of the plaintiff’s previous surgery for removal of the cerebral abscess has left the plaintiff with significant residual problems, as has been recorded by Dr Diep in Exhibits “3” and “4”. Although the effects of these pre-injury matters on the plaintiff’s day-to-day life have been understated and downplayed in the plaintiff’s case with regard to her level of domestic functioning, her emotional problems and independence. I nevertheless accept that the lasting effects of the fractures and the associated soft tissue injuries sustained by the plaintiff in the collision have superimposed a significant layer of additional disabilities upon her compared to the residual effects of the removed cerebral abscess.
70. The physical and functional effects of the plaintiff’s injuries has been that the plaintiff has ongoing neck pain, left arm and left shoulder pain with associated restriction of movement in that shoulder. She has occasional chest pain in the region of her sternum and multiple rib fractures as well as lumbar and coccyx pain. These problems are made worse in cold weather conditions and her sleep is adversely affected. She is also occasionally troubled by pain in the abdominal wall which has resulted from the severe abdominal trauma she sustained in the collision. She also has scarring to the left upper arm which is permanent.
71. The psychological effects on the plaintiff of these additional matters has been that the plaintiff has become depressed and anxious, the anxiety becoming especially evident when the plaintiff travels in a motor vehicle. When considering the issue of the plaintiff’s depression that followed her injuries, I do not ignore the fact that Dr Diep had identified some evidence of depression and withdrawal that was evident in the plaintiff in his 2002 assessment of her. Notwithstanding that earlier record of depression, I do not consider it to be contradictory or undermining of Dr Lee’s opinion on the connection between the plaintiff’s injuries and her depression as she would have had very good reason to be depressed following the serious injuries she sustained in the collision. I accept Dr Lee’s opinion on the existence of a connection.
72. In the plaintiff’s post-collision situation, where her previous existence had been overshadowed by the effects of her brain impairment due to the removed cerebral abscess, she could ill-afford to have these additional disabilities imposed upon her as has in fact occurred. The overall effect of this has been that her ability to enjoy the amenity of her life, restricted as it was already due to brain impairment, has meant that her enjoyment of the remaining amenity of her life has been even further diminished. This factor must be influential on the approach to the assessment of damages for non-economic loss in this case.
Plaintiff’s probable life span
73. Since the plaintiff makes a claim for continuing future losses, before assessing those claims it is necessary to first make an assessment of her probable future life span. Although the plaintiff has had previous cranial surgery for the removal of a cerebral abscess which was described as a life threatening condition, there is no evidence that following the successful treatment of that condition that there is any residual decrement to her probable future life span. Having regard to the current prospective life tables, at age 50, this being the plaintiff’s age at trial, I assess the years that probably remain for the plaintiff, which is by definition a statistical estimate or average, to be in a rounded down figure of a remaining 38 years.
C. ASSESSMENT OF DAMAGES
74. I now turn to an assessment of the heads of damage claimed by the plaintiff.
Non-economic loss
75. The parties submitted a disparate range of damages for non-economic loss. On behalf of the defendant, Mr Nolan submitted the appropriate figure to be $125,000. On behalf of the plaintiff, Mr Lidden SC submitted that the range for non-economic loss was between $300,000 to $320,000. I consider that neither of these submissions represents a reasonable approach to the assessment of the plaintiff’s entitlement to damages for non-economic loss in this case.
76. In my view the effect of the plaintiff’s post-injury disabilities which I have earlier summarised from the medical evidence calls for an award of damages for non-economic loss in the sum of $175,000. In coming to this assessment I have not heavily weighted the post-collision factor of depression and have in fact discounted it due to the previous history outlined by Dr Diep in Exhibits “3” and “4”. I therefore assess the plaintiff’s damages for non-economic loss in the sum of $175,000.
Past domestic assistance
77. The defendants submit that the plaintiff’s need for past domestic assistance is fairly met by an allowance of an average of 6 hours per week over 222 weeks from the time of the injury to the commencement of the trial at the rate of $21 per hour in the total sum of $27,972.
78. In contrast, the plaintiff’s submissions concerning the claim for the value of past gratuitous domestic services comprises three components: first, for the initial 1.5 years following the injury the claim is for 40 hours per week, secondly, for the following 2.5 years the claim is for 31 hours per week and thirdly, most recently, for the last period leading to the trial the claim is for 20 hours per week. The submitted calculations revealed a claim in the amount of $153,930.
79. Both sets of submissions proceed upon the erroneous basis of an average hourly rate of the applicable rates required by s 128(4) of the Motor Accidents Compensation Act 1999 and in doing so, technically contravene the terms of s 128(5) which provides that such rates must not exceed the statutory rate. I say erroneously because technically, an average of the applicable rates is necessarily in excess of the prescribed rates.
80. I have formed the view that the claim made on behalf of the plaintiff for damages for past gratuitous domestic assistance provided by family members is significantly exaggerated.
81. The evidence of the plaintiff was that before her injuries she did all the cooking and everything in the household. The effect of the evidence of the plaintiff’s daughters was that within a few months of her final cranial surgery in 1998 and before the collision, the plaintiff had returned to her normal mental and emotional state. I do not accept that evidence because it is contradicted by the import of the 2002 and 2003 assessments as set out in the Centrelink forms completed by Dr Diep. In my view it follows that the claim for the value of past gratuitously provided domestic services has been exaggerated.
82. Notwithstanding this finding, given the plaintiff’s documented significant residual physical problems, I nevertheless consider that an assessment of damages for the value of such services is required. Having rejected the evidence of the plaintiff and her daughters concerning the detail of the incidence of the provision of such services I consider that I must look to other sources from within the evidence to assist with quantification in order to do the best I can with the limited information that is available for analysis : State of NSW v Moss [2000] NSWCA 13.
83. In this regard I consider that the most helpful insight into the plaintiff’s past care needs comes from the expert evidence obtained from the occupational therapists retained by the respective solicitors.
84. The defendant tendered an occupational therapy assessment report dated 23 April 2008 from Ms Margie McMaster. That report suggests that the plaintiff needed additional support from her husband for the first 3 months post injury for one hour per day followed by an additional 12 weeks involving 3 hours per week. In total Ms McMaster assessed the plaintiff’s post injury care needs at 127 hours, such need ceasing in October 2005.
85. In my view Ms McMaster’s assessment is problematic for a number of reasons.
86. First, I consider that her report does not adequately deal with or reflect the significance of the medical opinions which advocated for higher levels of care. In this regard she did not explain why she had disregarded those opinions or considered them to have had no relevance to her assessment.
87. Secondly, this factor is particularly apparent when one compares her assessment of a range of physical activities which she asked the plaintiff to carry out while she observed them, as tabulated on pages 9 to 11 of her report. Of the 15 tasks listed by Ms McMaster, a significant number of them have been the subject of medical review by Dr Deveridge. In his report dated 29 April 2008 which was written within a week of Ms McMaster’s assessment, Dr Deveridge stated that the plaintiff is permanently unfit for repetitive bending, lifting, twisting, pushing and dragging activities, as well as prolonged sitting, standing as well as performing certain arm and shoulder movements. It is clear that Ms McMaster’s opinions are not based on medical opinions and are only based on her own analysis. I prefer Dr Deveridge’s medical opinion to the opinion of Ms McMaster.
88. Thirdly, the apparent precision with which Ms McMaster has approached the task of estimating the required hours of care was based on what she “expected” to have been the plaintiff’s need. That is of course a permissible approach in some cases but only where such an expectation is backed up by reasoned analysis. That was lacking in her report.
89. Fourthly, and of great significance, is the fact that the defendant’s submissions eschew reliance upon Ms McMaster’s assessment which is below the threshold for awarding any damages for such services : s 128(3) of the Act. At best, using the required statutory assessment rate Ms McMaster’s 127 hour estimate costs out at about $2700. It is evident from the defendant’s submissions that a concession is made which exceeds her estimate by a multiplication factor of 10. I consider Ms McMaster’s estimate to be parsimonious and unreasonable and I reject it as being manifestly inadequate.
90. It is instructive to review the medical evidence for insight into the plaintiff’s need for domestic assistance. In my view the appropriate starting point is to consider the views of Dr Deveridge. He suggested she avoid repetitive bending, heavy lifting, carrying, twisting, pushing and dragging movements, many of which are involved in day to day household activities. As to the recommended hours Dr Deveridge deferred to the opinion of an occupational therapist. I consider the approach to this issue as taken by Dr Deveridge to be more reasonable than the estimates of Dr Sun, namely 6 hours per week to be the subject of review, and Dr Conrad, namely some 8 to 10 hours per week. I prefer the approach suggested by Dr Deveridge because it represents a more reasoned and task oriented approach.
91. The plaintiff tendered an occupational therapy assessment report dated 26 September 2008 from Mrs Margaret Kennedy-Gould. I consider her report to represent a reasonable appraisal of the plaintiff’s needs in the three periods she has nominated in her analysis.
92. The first of those periods is from the time of the injury until approximately 15 June 2005, during which time a high level of assistance was required as set out in her detailed reasoning and appraisal. She estimated the need for that assistance to be for 22 hours per week. The second of those periods was for the period between 15 June 2005 until 23 October 2005 in respect of which she estimated the need for assistance to be for 18 hours per week. The third of those periods was for the period between 23 October 2008 and continuing where she estimated the need for assistance to be 11 hours per week. I consider that Mrs Kennedy-Gould’s estimates for these three periods are inherently reasonable and cogently explained as set out at pages 14 to 15 of Exhibit “E’ which comprises her report.
93. I consider that the approach taken by Mrs Kennedy-Gould represents a careful and appropriate analysis that has not ignored the underlying problems and the underlying need for assistance and care for the pre-injury matters outlined by Dr Diep in Exhibits “3” and “4”. The basis for that view is the detail of Mrs Kennedy-Gould’s analysis which plainly does not contain any cross-over of care recommendations that address the plaintiff’s underlying needs that related to the ongoing after effects of the cerebral surgery as distinct from the effects of the motor vehicle collision.
94. On this approach I consider that I can confidently rely on Mrs Kennedy-Gould’s analysis to obtain insight into the plaintiff’s reasonable need for past care and assistance for domestic tasks and services. It therefore remains to achieve a costing of those services.
95. The Tables 1, 2 and 3 annexed to these reasons set out the value of the three periods of claim for past domestic care and assistance at the rates specified by s 128(5) of the Motor Accidents Compensation Act 1999. The amount calculated in those tables represents the statutory rate applied to Mrs Kennedy-Gould’s recommendations, namely $60,488. Given that the evidence which bases the claim is necessarily imprecise and is not based on accurate diaries or records kept by those providing the assistance, I consider that in this case there should be a rounding down of this calculated amount to allow for the possibility of overlap and over-compensation. I therefore assess the plaintiff’s damages for past domestic assistance in the rounded down sum of $55,000.
Future domestic assistance
96. The plaintiff makes a claim for the commercial cost of future domestic assistance of 20 hours per week at the rate of $38 per hour or $760 per week. The Defendant submits that these services are sufficiently allowed at 3 hours per week at the rate of $35 per hour or $105 per week. The resultant submitted calculations were in the respective amounts of $685,520 and $94,710.
97. I do not accept the appropriateness of either of these two submitted approaches.
98. For the reasons already outlined in determining the plaintiff’s need for past domestic assistance I consider that the approach taken by Mrs Kennedy-Gould in identifying the continuing need for 11 hours per week is a reasonable and fair one and I therefore accept it as a proper basis for the assessment of the plaintiff’s future domestic assistance needs. I consider that the defendant’s submission of the appropriate hourly rate for such an assessment is a reasonable one in this case considering the services that are required as outlined by Mrs Kennedy-Gould at page 15 of Exhibit “E”.
99. Accordingly, the projection of $35 per hour for 11 hours per week, namely $385 per week, at 5 per cent over 38 years (x 902) yields the sum of $347,270. I consider that this sum should be adjusted by a 15 per cent discount to reflect the likelihood that the plaintiff’s household may well contract in the ensuing years which will in turn lessen the need for such services to some degree. Applying that percentage discount to the sum of $347,270 this yields the sum of $295,179. I therefore assess the plaintiff’s damages for future domestic assistance in the sum of $295,179.
Future treatment
100. The plaintiff makes a claim for the cost of future medical and other therapies from within a range of suggested treatment modalities. The claim for future treatment costs includes regular consultations with a general practitioner, orthopaedic reviews, psychiatric counselling, possible surgical treatment, physiotherapy treatment, the provision of a TENS machine, access to hydrotherapy and physiotherapy as well as pain killing medication. I will review the claims and evidence concerning these items.
101. The defendant submits that a general allowance of a buffer sum of the order of $15,000 would be reasonable. In contrast the plaintiff suggests that a lump sum assessment in the range of $40,000 to $50,000. Whilst I consider that the general ambit of the items claimed by the plaintiff is reasonable, because of the state of the evidence on these matters, I do not regard this to be a case where a precise analysis of each of the items is possible or appropriate because there are a number of uncertainties and variables involved. I therefore propose to assess a buffer to cover the items claimed as the evidence does not permit a precise calculation of all of the items that arise to be costed. I therefore consider that a buffer amount of $35,000 is a reasonable approach to the assessment of the future treatment needs. I therefore assess the plaintiff’s damages for future treatment in the sum of $35,000.
Out-of-pocket expenses
102. The plaintiff’s claim for out-of-pocket-expenses has been agreed in the amount of $22,400. I therefore assess the plaintiff’s damages for past out-of-pocket expenses in the sum of $22,400.
Summary of damages assessment
103. My assessment of the Plaintiff’s damages is summarised as follows:
(a) Non-economic loss (b) Past domestic assistance (c) Future domestic assistance (d) Future treatment (e) Past out-of-pocket expenses Total
Disposition
104. The plaintiff has established an entitlement to compensatory damages assessed in the amount of $582,579.
Orders
105. I make the following orders:-
(a) Verdict and judgment for the plaintiff in the sum of $582,579;
(b) The defendant is ordered to pay the plaintiff’s costs;
(c) The exhibits may be returned;
(d) Liberty to apply on 7 days notice if further orders are required.
TABLE 1
23 MARCH 2005 TO 15 JUNE 2005
PERIOD WEEKS WEEKLY
RATEHOURLY
RATE1. 23.03.2005 to 20.05.2005 6.14 $828.50 $20.71 2. 21.05.2005 to 15.06.2005 3.57 $836.10 $20.90
TABLE 2
16 JUNE 2005 TO 23 OCTOBER 2005
PERIOD WEEKS WEEKLY
RATEHOURLY
RATE1. 16.06.2005 to 19.08.2005 9.14 $836.10 $20.90 2. 20.08.2005 to 23.10.2005 9.14 $862.70 $21.67
TABLE 3
24 OCTOBER 2005 TO 22 JUNE 2009
PERIOD WEEKS WEEKLY
RATEHOURLY
RATE1. 24.10.2005 to 18.11.2005 3.71 $862.70 $21.67 2. 19.11.2005 to 17.02.2006 12.85 $863.80 $21.59 3. 18.02.2006 to 19.05.2006 12.85 $867.00 $21.67 4. 20.05.2006 to 18.08.2006 12.85 $872.20 $21.80 5. 19.08.2006 to 17.11.2006 12.85 $879.50 $21.98 6. 18.11.2006 to 17.02.2007 13.00 $903.40 $22.58 7. 18.02.2007 to 18.05.2007 12.71 $905.50 $22.63 8. 19.05.2007 to 17.08.2007 12.85 $916.20 $22.90 9. 18.08.2007 to 16.11.2007 12.85 $912.60 $22.81 10. 17.11.2007 to 15.02.2008 12.85 $920.60 $23.01 11. 16.02.2008 to 16.05.2008 12.71 $904.70 $22.61 12. 17.05.2008 to 22.06.2009 57.28 $904.70 $22.61
0
8
2