Cole-Herring v Bourke

[2019] NSWDC 391

District Court

New South Wales

Medium Neutral Citation:

Cole-Herring v Bourke [2019] NSWDC 391

Hearing dates:

8, 9, 10, 11 July 2019

Date of orders:

09 August 2019

Decision date:

09 August 2019

Jurisdiction:

Civil

Before:

Judge Levy SC

Decision:

1. Verdict and judgment for the plaintiff in the sum of $623,032.25;

 

2. The defendant is to pay the plaintiff’s costs on the ordinary basis unless otherwise ordered;

 

3. The exhibits may be returned;

 4. Liberty to apply on 7 days’ notice if further or other orders are required.

Catchwords:

TORTS – negligence – motor vehicle accident; DAMAGES – assessment of claimed heads of damage – assessment of reliability of expert medical opinions

Legislation Cited:

Civil Liability Act 2002 (NSW), s 5D, s 5E, s 15B
Evidence Act 1995 (NSW), s 60, s 128
Motor Accidents Compensation Act 1999 (NSW), s 109, s 126, s 136, s 141B
Uniform Civil Procedure Rules 2005, r 31.23; r 31.27, Sch 7, cl 3(d), Sch 7 cl 5(c)

Cases Cited:

Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13
Avopiling Pty Ltd v Bosevski [2018] NSWCA 146
Boral Bricks Pty Ltd v Cosmidis [2013] NSWCA 443
Coles Supermarkets Australia Pty Limited v Haleluka [2012] NSWCA 343
Cupac v Cannone [2015] NSWCA 114
Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25
ECS Group (Australia) Pty Ltd v Hobby [2014] 8 NSWCA 199
Graham v Baker (1961) 106 CLR 340; [1961] HCA 48
Larson v Commissioner of Police [2004] NSWCA 126
Majkic v Bonnano [2008] NSWCA 253
Manly Municipal Council v Skene [2002] NSWCA 385
Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5
Mt Isa Mines Ltd v Pusey (1970) 125 CLR 383; [1970] HCA 60
Penrith City Council v Parks [2004] NSWCA 201
Sampco Pty Ltd v Wurth [2015] NSWCA 117
State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536
Strinic v Singh [2009] NSWCA 15
White v Benjamin [2015] NSWCA 75
Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485; [1995] HCA 53

Category:

Principal judgment

Parties:

Emily Cole-Herring (Plaintiff)
Joshua Bourke (Defendant)

Representation:

Counsel:
Mr J Beran with Mr Grimes (Plaintiff)
Mr J Guihot (Defendant)

  Solicitors:
CMC Lawyers (Plaintiff)
Moray & Agnew (Defendant)

File Number(s):

2017/361265

Publication restriction:

None

Judgment

Table of Contents

Factual background and nature of case	[1] – [6]
Issues	[7]
Evidence overview	[8] – [9]
Credibility and reliability of testimony	[10] – [59]
The plaintiff	[11] – [31]
Ms Cole	[32] – [35]
Reliability of aspects of defendant’s medical reports	[36] – [59]
Facts	[60] – [183]
(1) Plaintiff’s pre-accident background	[61] – [63]
(2) Pre-accident health	[64] – [80]
(3) Pre-accident work history	[81] – [86]
(4) Circumstances of injury	[87] – [96]
(5) Injuries and initial treatment as documented	[97] – [105]
(6) Subsequent treatment	[106] – [110]
(7) Medical and allied reviews	[111] – [112]
(8) Resolution of conflicting medical opinions	[113] – [121]
(9) Resolution of conflicting occupational therapy opinions	[122] – [130]
(10) Disabilities that remain	[131] – [145]
(11) Work effects	[146] – [157]
(12) Domestic effects	[158] – [171]
(13) Mitigation of damage	[172] – [176]
(14) Most likely circumstances but for injury	[177] – [182]
Assessment of damages	[184] – [264]
Non-economic loss	[186] – [197]
Past economic loss	[198] – [213]
Future economic loss	[214] – [218]
Past domestic assistance	[219] – [235]
Future domestic assistance	[236] – [247]
Future treatment expenses	[248] – [262]
Past out-of-pocket expenses	[263]
Summary of damages assessment	[264]
Disposition	[265]
Costs	[266]
Orders	[267]

Factual background and nature of case

1. At about 6.00am on Thursday 10 April 2014, the plaintiff, Ms Emily Cole-Herring, then aged 26 years, was involved in a motor vehicle accident in which she sustained a 60 per cent compression fracture of the vertebral body of T12 with a displaced fragment, some related soft tissue injuries to her lower back, and possibly, a head injury causing a brief period of loss of consciousness.

2. At that time, the plaintiff was a passenger in her own vehicle which was being driven on the Barrier Highway near Cobar, NSW, when another vehicle displaying high beam headlights and being driven in the opposite direction by the defendant, Mr Joshua Bourke, crossed over onto the incorrect side of the roadway and collided with the plaintiff’s vehicle, thereby causing her vehicle to leave the roadway and roll over several times.

3. As a consequence of that collision, in these proceedings the plaintiff claims damages for personal injury occasioned by the defendant’s now admitted negligent driving, which has caused her to suffer the described injuries.

4. An unusual aspect of this case is that the plaintiff’s injuries were superimposed upon the residual effects of an earlier illness where she had been cured of leukaemia following chemotherapy. That chemotherapy resulted in the need for the plaintiff to have pre-accident joint replacement surgery due to avascular necrosis in both of her knees and in her left hip. This had also resulted in the plaintiff acquiring an iatrogenic addiction to narcotic drugs for pain relief.

5. As a result, the plaintiff’s ability to enjoy the amenity of her life, which had already been significantly affected by those underlying conditions, was further adversely affected by the effects of the subject accident. In that regard the defendant must take the plaintiff as she is found: Mt Isa Mines Ltd v Pusey (1970) 125 CLR 383; [1970] HCA 60, at [18].

6. The proceedings are governed by the Motor Accidents Compensation Act 1999 (NSW) (“MAC Act”) and the Civil Liability Act 2002 (NSW) (“CL Act”).

Issues

7. The defendant’s defence, as filed, initially contested liability, and in the alternative, relied upon allegations of contributory negligence on the part of the plaintiff. At the commencement of the hearing the defendant indicated that defence was abandoned, and liability was admitted orally without filing an amended pleading. The defendant maintained an aspect of the pleaded defence by which the plaintiff was required to prove her claim for damages: s 5D and s 5E of the CL Act.

Evidence overview

8. The plaintiff and her mother were the only witnesses to give oral evidence on factual matters. The plaintiff tendered a compendious folder of medical reports, related certificates and the medical records kept by her former general practitioners: Exhibit “B”. The defendant also tendered a folder of medico-legal reports: Exhibit “1”. Those documents, and the other documentary exhibits, will be referred to where it becomes relevant to do so.

9. On matters of expert opinion in dispute, the occupational physicians retained by the respective parties, namely, Dr Gerard Barold by the plaintiff, and Dr Lewis Pierides by the defendant, gave their evidence concurrently, as did the respective occupational therapists, Ms Trudie Warner and Mr Peter Williamson.

Credibility and reliability of testimony

10. The defendant made substantive challenges to the credibility and reliability of the plaintiff’s testimony, and to that of her mother. Matters also arose concerning the reliability of aspects of the defendant’s medical evidence.

The plaintiff

11. The defendant sought findings that the plaintiff should not be accepted as a witness of truth, and that her evidence should not be accepted at face value. The defendant further submitted that she was an unreliable witness. It was further submitted that as such, her self-reported complaints should not be accepted: MFI “7”, paragraphs 2 – 7. I have not accepted those submissions.

12. It appears that the defendant took that approach notwithstanding that the medical experts retained on behalf of the defendant, had to varying degrees supported aspects of the plaintiff’s case. In that regard, none of the medical and allied experts who had examined the plaintiff made any suggestion that the plaintiff had exaggerated her complaints. The preponderance of the medical evidence was to the effect that the plaintiff’s complaints were reasonably made, without inconsistencies.

13. Having heard and seen the plaintiff’s evidence, especially when cross-examined, I was left with the impression that her evidence concerning the manner in which the accident had adversely affected her, was understated.

14. In cross-examination, the defendant made a series of credit challenges to the plaintiff’s evidence, as follows:

1. When she was interviewed by the police who attended to investigate the accident, she had deliberately lied in her answers by incorrectly telling the police she was the driver of the vehicle: T40.45 – T41.11;

2. She had lied to the attending police officer and later maintained that lie to the effect that she had not taken any illicit drugs before the accident: T42.15 – T43.18;

3. Before the accident she had been addicted to narcotic medication, a matter she acknowledged, but denied buying such drugs “on the street” before the subject accident, but she acknowledged that she had taken some illicit drugs recreationally before the accident: T44.42 – T45.20;

4. She had made up evidence to benefit her case, namely her evidence that before the accident she had been discussing the prospect of undertaking an apprenticeship with her father. She denied having made up that evidence: T57.41;

5. Her evidence that she had not driven a motor vehicle since the accident was untrue and that she had given that evidence deliberately, because she thought it might assist her case, an assertion that she denied: T62.16 – T62.19; T64.42;

6. She had deliberately and incorrectly told examining doctors that she needed to be driven to various appointments because she thought it would assist her case: T64.42 – T65.19;

7. Whilst in Darwin in 2015, she had gone from medical practice to medical practice to seek additional prescriptions for Oxycontin, a narcotic drug: T66.42 – T67.7.

15. Those credit attacks will be considered shortly, after making some relevant observations about the plaintiff.

16. In considering the credibility and the reliability of the plaintiff’s evidence, it is relevant to say something about her demeanour. She gave significant parts of her evidence in a state of emotional upset and physical discomfort. Some of those moments were palpably apparent, and were noted in the transcript: T17.10 – T17.16; T17.45; T29.18; T37.34; T52.8; T66.30; T66.36.

17. Some of the plaintiff’s evidence was given hesitantly, when she sought to take time to find words when she had difficulty in finding the words to express herself: T17.13. This was in circumstances where she felt mentally blunted, or not as sharp as she used to be before she had undergone repeated cycles of chemotherapy, and because she had been taking medication: T30.1 – T30.3; T73.25 – T73.29. The uncontradicted evidence of an oncologist retained by the defendant, was that “chemo brain” or “chemo fog”, or cognitive impairment, was a common consequence of the type of pre-accident chemotherapy the plaintiff had undergone for the treatment of her leukaemia: Exhibit “1”, pp 22 – 23.

18. In this context, it is also relevant to say something about the manner in which the plaintiff was cross-examined by counsel for the defendant, where it was known that the plaintiff was slow in formulating her answers to questions, and where at times, the pace of questions asked in cross-examination was rapid, and had the effect of cutting off the plaintiff’s partly completed answers by introducing a new question: T43.23; T45.24; T46.5; T46.49; T48.22; T49.4; T49.29; T53.49; T54.22; T55.30; T56.44; T57.24; T63.30; T67.22; T68.30; T69.1; T71.7; T73.50; T75.11; T75.32. On several occasions counsel for the defendant was directed to desist from interrupting the plaintiff’s answers: T55.41; T62.23; T74.15.

19. Some of the questions asked of the plaintiff in cross-examination created scope for confusion in the plaintiff, for example, especially where double questions were directed at her under the pressure of the circumstances.

20. The foregoing matters require a cautious approach to evaluating the defendant’s credit-based criticisms of the plaintiff’s evidence.

21. Returning then to the consideration of the credit challenges made to the plaintiff’s evidence as outlined at [14] above, and for convenience, by reference to the same sub-paragraph enumeration of those challenges, my conclusions concerning those attacks are as follows.

22. As to the lies the plaintiff told to the attending police officer as identified in sub-paragraph (1) of [14] above, she had been placed under considerable duress to falsely claim that she had driven the vehicle. The actual driver had applied that pressure to her at a time when she was in significant pain, distressed, and had little resistance to that pressure. Those circumstances are examined in more detail in my fact findings concerning the circumstances of the accident. It is sufficient to here add that at hospital, soon afterwards, she disavowed that lie when the driver of the vehicle was no longer able to keep pressuring her to make that false claim.

23. The plaintiff acknowledged that she had lied to the attending police officer about taking illicit drugs before the accident as identified in sub-paragraph 14(2)(2) of [14] above. Whilst it was discreditable that she did so, her actions must be viewed in the context of having been pressured to claim that she was driving, and the perhaps instinctive response to seek to avoid trouble. Once she had initially lied, she had the dilemma of how to extricate herself from a difficult situation. I am persuaded by her evidence that she addressed this question truthfully in her evidence when she made that cited acknowledgment.

24. The fact that the plaintiff had acknowledged her addiction and had acknowledged that she had bought illicit drugs before the accident, as identified in sub-paragraph (2) of [14] above, does not, as a matter of course, require that the other evidence she gave as to her injuries and disabilities be rejected as untruthful, or that it would otherwise require corroboration. She gave the evidence cited with considerable embarrassment, which I gauged to be genuine.

25. The plaintiff’s denial of having made up evidence about her intention to pursue an apprenticeship with her father in order to advance her case, as identified in sub-paragraph (4) of [14] above, was not the subject of convincing contradiction. Her evidence was not inherently improbable. The evidence relied upon by the defendant to support the asserted criticism, namely Exhibit “2”, was overstated by the defendant.

26. Exhibit “2”, a statutory declaration sworn by the plaintiff on 30 June 2017, was prepared for her by a solicitor as part of her full and satisfactory explanation for the late lodgement of this claim. It was prepared with the focus of explaining the delay in bringing her proceedings, a matter that was examined by another Judge in an interlocutory application: s 109 of the MAC Act.

27. At paragraph 27(b) of Exhibit “2”, the plaintiff stated that she had left employment with her father in 2009 “because I wanted to do other work”. That was after she had contracted leukaemia. The cited statement is not inconsistent with her later expressed desire to pursue an apprenticeship. I do not regard that evidence as impugning the plaintiff’s credit as a witness.

28. The plaintiff’s evidence of not having driven a motor vehicle since the accident, as criticised in sub-paragraphs (5) and (6) of [14] above, has to be viewed in context. That challenge was in the context of a double question asked by the cross-examiner when the plaintiff was trying to answer in the context of over-speaking which was occurring at that time. The plaintiff explained that she had driven “on the odd occasion”, when her mother had not been able to drive her, but this was restricted to her immediate locality: T62.33.

29. In my view, the criticism cited in sub-paragraph (6) of [14] above was unfair because it was in answer to a triple or multi-faceted question: T65.42 – T65.43. The complete sequence of questions and answers on that topic presents a different picture to that which was sought to be painted by the defendant, as the transcript shows, at T64.42 – T65.9:

“Q. When you told the doctors that you hadn't driven since the date of the accident, it was not only wrong, you deliberately gave those answers because you thought it would assist your case. That's right, isn't it?

A. No, no, no

Q. Well, why didn't you tell them you had been driving and you had had your license taken from you from time to time but you had been driving on each of those occasions where you happened to be caught?

A. Well, they were asking me specifically about how I got to the appointments and that and that's how my mother took me to appointments, I don't - I don't feel comfortable travelling. In Bourke we have like a levy bank radius of probably three kilometres that way and four kilometres that way. So, like, pretty much, that's the - where I was driving around, that's bloody in four or five, six times that I've been driving that I've been caught, doesn't mean that I drive everyday, doesn't mean that I frigging travel to Dubbo or travel to Sydney or drive a significant amount of the way and if my mother wasn't able to drive me to the places that I was going then I wasn't able to walk and that's what - that's how come I've been done for so many times driving disqualified.”

30. The criticism of the plaintiff having gone to multiple medical practices in Darwin to seek prescriptions for narcotic medication, as criticised in sub-paragraph (7) of [14] above, also has to be viewed in context. In my view, that challenge became somewhat muted in light of the evidence that at the time the plaintiff went to Darwin, she did so with a letter from her own doctor, yet she did not find it easy to obtain her prescribed medication. The matter was not further explored by the cross-examiner. The reluctance of medical practitioners to prescribe Oxycontin, a restricted narcotic drug, to a new patient they did not know, is not an inherently improbable scenario. The basal fact was that the plaintiff was in pain, which led to her seeking out pain relieving medication. I do not regard that matter as providing a significant basis for criticising her credibility.

31. I find that the challenges the defendant made to the plaintiff’s evidence have not been materially sustained. Overall, I considered the plaintiff to be a generally reliable witness who gave credible evidence, which if anything, was understated as to the effects her post-accident disabilities had upon her. I have rejected the defendant’s attack on her honesty as a witness, as will be further explained in those portions of my reasons that deal with relevant specific matters of contention.

Ms Cole

32. I considered the plaintiff’s mother, Ms Lynette Cole to be an honest, credible and reliable witness. I consider that the attack made by counsel for the defendant to the effect that she had tailored her evidence on certain damages issues in order to advantage her daughter’s case (T99.9 – T99.29), to be unfounded, and unsustained. I reject that attack.

33. Ms Cole stated that after the plaintiff’s pre-accident revisionary or second left hip replacement surgery in 2013, she had recovered after about one to two months. She could not recall the precise period. However, she said that pre-accident, after the plaintiff had moved back to her own premises, and thereafter, until the accident, she no longer needed to assist the plaintiff with domestic tasks such as washing, cleaning, laundry, shopping, or any other type of assistance: T90.18 – T90.46.

34. The defendant challenged the evidence of Ms Cole to the effect that after about one or two months after revision of the plaintiff’s left hip replacement, that the plaintiff had no ongoing problems until 10 April 2014: T96.25 – T96.36. Ms Cole’s evidence to that effect was not inherently improbable. Without expert medical evidence detailing precisely what was involved in that revisionary surgery so as to cast doubt upon Ms Cole’s answer, I accept her evidence.

32. The defendant also attacked Ms Cole’s credit by challenging the honesty and the frankness of her evidence by suggesting that in her evidence she deliberately sought to downplay the extent of the plaintiff’s ongoing problems after one or two months following the plaintiff’s revisionary left hip replacement surgery. In that attack, it was further suggested that she had done so for the purpose of assisting the plaintiff’s claim for compensation in these proceedings: T98.49 – T99.30. I accept Ms Cole’s answer in which she rebutted that assertion.

Reliability of aspects of defendant’s medical reports

36. It is convenient at this point to deal with some curious content that appeared within some of the expert reports that were tendered by the defendant.

37. This is in the context where the parties chose not to call the authors of some of the medico-legal reports to give oral evidence. In those circumstances, a court is nevertheless required to grapple or wrestle with the task of discerning as best can be done in the circumstances, the meaning of the reports tendered and the reliability of the opinions expressed within them when reconciling conflicting medical reports.

38. The difficulties in that approach are well recognised: Cupac v Cannone [2015] NSWCA 114, at [18]; Manly Municipal Council v Skene [2002] NSWCA 385, at [21] – [22]. In such circumstances, the reports must be analysed for acceptability according to the reasoning contained within them and in accordance with who has the onus of proof on particular issues: Majkic v Bonnano [2008] NSWCA 253, at [26], following Larson v Commissioner of Police [2004] NSWCA 126, at [48].

39. The defendant tendered a series of expert medico-legal reports from Dr Graham George, a consultant psychiatrist, Dr Frank Machart, a consultant orthopaedic surgeon, Dr Lewis Pierides, an occupational physician, and Associate Professor Richard Fox, a consultant oncologist. The defendant also tendered an occupational therapy opinion from Mr Peter Williamson.

40. The curious content of the defendant’s reports as referred to in [36] above relates to the reports of Dr Pierides, Dr George and Dr Machart.

Associate Professor Fox – consultant oncologist

41. The 20 December 2018 report of Associate Professor Fox was uncontroversial. He expressed the unchallenged opinion that the plaintiff’s earlier and successfully treated condition of acute lymphoblastic leukaemia had been cured and was unlikely to relapse: Exhibit “1”, pp 21 – 22. Other aspects of Associate Professor Fox’s report will be referred to in connection with the assessment of damages.

Mr Williamson – consultant occupational therapist

42. The 18 April 2019 occupational therapy report of Mr Williamson, as well as the content of his subsequent joint report with the plaintiff’s retained occupational therapist, Ms Warner, the concurrent evidence they both gave in the proceedings, and my related findings concerning the reliability of their respective opinions, will be referred to in my findings of fact on those mattes where it becomes relevant to do so in connection with the assessment of the plaintiff’s damages.

Reports of Dr George, Dr Machart and Dr Pierides – qualifying content

43. A curious qualifying statement appeared within each of the reports containing the respective opinions of Dr George, Dr Machart and Dr Pierides, where only Dr Pierides was called to give evidence.

44. Each of the respective reports of those cited experts acknowledged the Expert Witness Code comprising UCPR Sch 7, but then added the following qualifying statement : “The opinion expressed in this report is based entirely upon the evaluation of objective findings …”: Exhibit “1”, pp 2, 12, 27.

45. Except in the case of Dr Pierides, who quickly distanced himself from that statement when it was raised with him, as will be shortly explained, I am required to evaluate the contextual meaning of that cited statement as best I can where the authors of the respective reports given, were not called to give evidence. On its face, that qualifying statement suggested that in writing their opinions, the authors of the respective reports took the approach of not basing their opinions on the subjective complaints made by the plaintiff when formulating those opinions.

Dr Pierides – consultant occupational physician

46. Dr Pierides was asked for his comment on whether the cited qualifying statement meant that he had not considered the plaintiff’s subjective complaints.

47. In his response, he disavowed the cited statement as being something he had not written. He explained that the comment in question had been added to his opinion (T149.24 – T150.16) by an agency through which his report was obtained for the defendant. The agency described on the letterhead of his report was MSBC. That agency had commissioned his report to be provided to the defendant’s solicitors, Moray & Agnew.

48. Dr Pierides’ claim that the cited comment had been added to his report was a somewhat disturbing revelation. In these reasons, it is not necessary to further explore the circumstances of that inclusion.

49. The balance of the evidence of Dr Pierides, and its reliability, will be evaluated in connection with the concurrent evidence he gave with Dr Gerald Barold, another occupational physician who had been retained by the plaintiff’s solicitors.

50. The reports of Dr George and Dr Machart, which also contained the same cited qualifying statement, were on the letterhead of a different agency, namely, Australian Medico Legal Group.

Dr George – consultant psychiatrist

51. It is difficult to understand the appropriateness of the cited qualifying statement appearing in the report of Dr George’s psychiatric assessment.

52. One would ordinarily expect that the taking of a psychiatric history from a claimant such as the plaintiff would necessarily involve reviewing and considering the subjective presenting complaints, which Dr George appears to have undertaken, as is evident at pages 3 to 5 of his report. Later in his report, at page 7, Dr George described the plaintiff’s symptoms as reasonable, and stated that the plaintiff was quite open in her disclosures, and appeared genuine.

53. Subsequently, in Dr George’s answers to questions that had been posed to him by the defendant’s solicitor, at pages 7 and 8 of his report, he identified the plaintiff as having residual symptoms of a persistent depressive disorder exacerbated by the accident, with predominant symptoms of post-traumatic stress disorder.

54. It is therefore plainly apparent that Dr George had given some significant regard to the plaintiff’s subjective symptoms notwithstanding the content of the cited qualifying statement. In light of that conclusion, it appears that, the cited qualifying statement is an anomalously inconsistent inclusion in his report. The balance of Dr George’s report will be considered in connection with the assessment of the plaintiff’s disabilities and her damages.

Dr Machart – consultant orthopaedic surgeon

55. In the case of Dr Machart, one would also ordinarily expect that the taking of an orthopaedic history from a claimant such as the plaintiff, would necessarily involve reviewing and considering the plaintiff’s subjective symptoms in connection with any findings made on examination. In that regard, Dr Machart included the following text in his report:

“CURRENT SYMPTOMS

Constant lower back pain to a lesser degree the thoracolumbar. Pain was aggravated by bending and by lifting. She was unable to participate in aspects of housework e.g changing nappies, vacuuming or cleaning. She lives with her mother and father in a house.

EXAMINATION

The client conducted all movements in an active manner. Where passive movement has been induced it has been recorded in the examination findings. No passive movements were performed beyond the limits of comfort.

General

Ms Cole-Herring was upset talking about her condition. She appeared to be anxious. She was moderately overweight.

Thoracolumbar Spine

There was a kyphotic deformity in the thoracolumbar region. This area was mildly tender. She was more tender over the lower lumbar spine. She displayed movement diminished by half from expected normal flexion, extension, lateral flexion and rotation. Tension signs were negative FNS, SLR. Reflexes were present and symmetrical in knees and ankles and absent at the hamstrings.

Diminished sensation was reported over the sole of both feet. There was no loss of muscle bulk, to inspection and no weakness.

INVESTIGATIONS

None presented at the time of this consultation.”

56. In his cited report, Dr Machart went on to express the opinion (Exhibit “1”, p 15) that the plaintiff had sustained a thoraco-lumbar fracture at the level of T12, leaving her with chronic lower back pain and narcotic dependence currently on methadone. On the same page, he also stated that:

“She is a chronic pain sufferer. From the orthopaedic point of view there is a fracture which will not be expected to cause the need for narcotic analgesics but it was expected to cause some degree of impact on physical prowess, diminution of ability to bend or lift. While there is chronic pain and narcotic dependence the severity of the symptoms cannot be attributed to the pathology. There is a direct relationship between the chronic back pain and the motor vehicle accident.”

57. Dr Machart stated that there were no inconsistencies evident in the plaintiff’s presentation or history. In expressing his opinions, he said that his prognosis for her situation was “for not much change in the severity of the plaintiff’s symptoms in the future”; that there was “incapacity for physically demanding work” partly attributed to the motor vehicle accident, and that she was fit for sedentary duties. The details of those opinions will be assessed in more detail in connection with the assessment of the plaintiff’s disabilities and her damages.

58. On that analysis, in the case of Dr Machart’s report, as in the case of Dr George’s report as identified at [54] above, where Dr Machart has plainly had regard to the plaintiff’s subjective symptoms, notwithstanding the content of the cited qualifying statement, it also appears that the cited qualifying statement is an anomalously inconsistent inclusion in his report.

59. I now turn to identify my findings of fact.

Facts

60. In the paragraphs that now follow, unless otherwise qualified, my findings of fact are set out on (1) the plaintiff’s pre-accident background; (2) her pre-accident health history; (3) her pre-accident work history; (4) the circumstances of her injury; (5) her injuries as documented; (6) the treatment she received; (7) her subsequent medical and allied reviews; (8) the resolution of conflicting expert medical opinions; (9) the resolution of conflicting occupational therapy opinions; (10) her disabilities; (11) the work effects of her injuries; (12) the domestic effects of her injuries; (13) mitigation of damages; and (14) the plaintiff’s most likely circumstances but for her injuries.

(1) Plaintiff’s pre-accident background

61. The plaintiff is presently aged 30 years. She completed her secondary schooling in Bourke to Year 10 School Certificate standard and left school aged 16 years. She held an early ambition to work and she went on to successfully hold various work positions: T10.35 – T11.50.

62. The plaintiff was in relatively good pre-accident health until late 2009, when she developed a serious illness which considerably interrupted her working life and threatened her longevity. As a result of her pre-accident illness, the plaintiff was in receipt of a disability support pension but was aiming to pursue some kind of remunerative employment.

63. Prior to her illness, the plaintiff was living in a converted caravan. Her father had converted the caravan into a domestic dwelling on land he owned and which was not far from the parental home. At that time she was paying monthly rent: T13.12. She was living independently, managing her own cleaning, cooking, shopping, washing, and running her own motor vehicle.

(2) Pre-accident health

64. Until November 2009, the plaintiff’s pre-accident health records show that she had minimal health issues: Exhibit “B”, Tab 3R pp 134 – 176. In 1993 the plaintiff was diagnosed with infrequent episodic asthma. In 2005 she had an episode of acute sinusitis. There was nothing else of note in those records until 2009.

65. In November 2009 the plaintiff began to feel unwell. She consulted her local doctor and was promptly diagnosed with Acute Lymphocytic Leukaemia (ALL). She was flown to Westmead Hospital that same afternoon where she embarked on a course of 12 months treatment with serial cycles of chemotherapy which required her and her family to relocate to Sydney for a time. Fortunately, she has been in remission from that illness for a critical benchmark period of more than 5 years: T13.41. According to unchallenged expert opinion, she is now regarded as having been cured of her leukaemia: Exhibit “1”, Tab 3, p 21.

66. The treatment for leukaemia undertaken by the plaintiff has unfortunately nevertheless led to her encountering other related health problems. In the past, these included many infections which occurred whilst she was immunosuppressed (T13.48) and she also had orthopaedic problems resulting from the effects of the high steroid doses that were required to treat her leukaemia: T14.20. Those problems led to a need for her to have bilateral knee replacements in 2011, and a left hip replacement in 2012. The left hip joint replacement had to be replaced again in 2013: T14.25; Exhibit “4”.

67. The plaintiff’s medical records show that on 22 June 2011, her treating orthopaedic surgeon prepared a letter outlining the need for her to have bilateral knee replacement due to the development of extensive osteonecrosis at the end of both femora as a consequence of her chemotherapy. He noted that at age 23 years, she was the youngest patient he had seen as needing this procedure, but he saw no alternative in light of the damage, her physical restrictions, and because of her need for large doses of the opioid drug Oxycontin to manage her resultant pain: Exhibit “7”.

68. A further untoward complication from the plaintiff’s orthopaedic complications was that she developed a pre-accident addiction to opioid drugs for pain relief: T16 – T17. The plaintiff had on occasion used illicit drugs before those events: T20.21. However, that was not an addiction.

69. Due to her orthopaedic issues, the plaintiff began to overuse prescription drugs for pain relief. She then began to misuse prescription drugs. She then started to use illicit prescription drugs: T17.18. Subsequently, she sought out illicit methamphetamine. The plaintiff’s evidence concerning her illicit drug use for pain relief was the subject of a Certificate issued pursuant to s 128 of the Evidence Act 1995 (NSW), during the course of the hearing: T20.30. Her evidence on those matters, which was obviously embarrassing to her, was candid. I accept that evidence.

70. The medical records held by the plaintiff’s general practitioners (Exhibit “B”, Tab 3R, pp 134 - 175) shows that pre-accident, in the period between 1993 and 4 April 2014, she had consulted various practitioners in that practice on approximately 185 occasions mainly in relation to the after-effects of her leukaemia.

71. The majority of the post-leukaemia consultations included random health events such as infections, minor common ailments such as respiratory problems, health surveys, health maintenance, treatment for insect bites, contraception, and various minor injuries. No medical expert appears to have undertaken a complete review of those records for relevance to the issues to be determined in this case. It is therefore not necessary in these reasons to undertake a comprehensive or detailed review of the content of these notes except for what now follows.

72. In final submissions, counsel for the defendant made submissions that were critical of the plaintiff’s legal advisors for not obtaining an explanatory report from the plaintiff’s former treating general practitioner, Dr Heather Dalgety, to summarise those medical records and to explain some aspects of them. The absence of such a report was submitted by the defendant to be a failure to obtain relevant evidence on relevant matters where the plaintiff bore the onus of proof.

73. In my view, that criticism by the defendant becomes somewhat muted in light of the plaintiff’s evidence that her former general practitioner is no longer in the practice where she consulted her in Bourke: T77.22.

74. In any event, in my view, the records, which are compendious and comprise typed albeit abbreviated consultation notes, are to a substantial degree, capable of reasonable interpretation on relevant matters of importance to the issues in this case.

75. In my assessment, the defendant’s cited criticisms fade somewhat when it is recognised that the relatively few items in those notes which were the subject of cross-examination of the plaintiff and her mother, were adequately explained by the plaintiff.

76. I do not accept the defendant’s submission that the plaintiff’s evidence on critical matters in dispute requires corroboration. My reasons for rejecting that submission will be made plain in the context of my findings on the circumstances of the plaintiff’s accident, in connection with her concession that she had initially lied to investigating police about the circumstances of the subject accident.

77. The plaintiff’s medical records show that there were many recorded general practitioner consultations at which the plaintiff was given prescriptions for opiates and other pain relieving medication. The details appear in Exhibit “B”, Tab 4, pp 266 – 311, which comprises a chronological print-out from the records of the Pharmaceutical Benefits Scheme. It is not necessary to catalogue those items or to examine the detail of them in these reasons.

78. Some of those occasions included prescriptions for benzodiazepines, for example, on 17 June 2010, 4 November 2010, 21 March 2013, 4 April 2013, 10 May 2013, 21 May 2013, 7 June 2013 and 18 June 2013. On other occasions she was prescribed amitriptyline. Without specific medical evidence as to the reasons for such prescriptions it would be unsafe to draw conclusions as to why and for what conditions those prescriptions were issued at those times as the undisputed expert medical evidence is to the effect that there could be multiple indications for prescribing such drugs: T204.24 – T204.31; Strinic v Singh [2009] NSWCA 15.

79. There are some documented crises and related matters in the plaintiff’s pre-accident medical records, as follows:

1. On 21 October 2013, there was a documented concern that a significant issue had arisen as to the plaintiff’s treatment in that a named doctor from that general practice whom the plaintiff had been consulting had been prescribing doses of narcotics and benzodiazepines in “doses, quantities and timeframes don’t add up”: Exhibit “B”, Tab 3R, pp 174 – 175;

2. On 22 October 2013, the plaintiff was said to have been in crisis and was apparently upset at not being allowed to die when she had ALL (her leukaemia) and had “been depressed and anxious for several weeks”, and it was noted that she was not willing to take antidepressants as they made her fat as before, when she had been on chemotherapy.

3. In that regard, the note made by the general practitioner was : “threatneing (sic) mother with a knife at throat”: Exhibit “B”, Tab 3R, p 175. Ms Cole could not recall this event: T98.38 – T98.40. It is possible that the note was ambiguous as to whose throat was involved in that reported episode. For example, it could have been a threat to self-made by telephone. It is not clear as to whether the note referred to the plaintiff being in her mother’s presence at that time. Without explanatory evidence from the practitioner concerned, I am not prepared to speculate on that subject. I do not accept the submission that this was an essential matter of history that required a further factual or medical explanation especially as it occurred 6 months before the accident. There was no suggestion of the occurrence of any subsequent similar incident;

1. The general practitioner’s records revealed the following historical matters that touched upon the plaintiff’s pre-accident psychological status:

1. On 26 November 2010, the plaintiff was noticed to be “feeling down, mainly due to nausea & not eating very much”: Exhibit “B”, Tab 3R, p 151. On considering the evidence as a whole, this was very likely to be in connection to the recently completed chemotherapy treatment;

2. On 21 December 2010, in the context of the plaintiff having ankle swelling and using a motorised wheelchair she was noted to be “crying feeling very down”: Exhibit “B”, Tab 3R, p 153. On considering the evidence as a whole, this was very likely to be in the context of her chemotherapy-related orthopaedic problems at the time;

3. On 11 April 2011, in the context of the plaintiff feeling very stiff and sore in the morning, she was noted to appear to be “teary and upset”: Exhibit “B”, Tab 3R, p 158;

4. On 21 September 2012, in the context of the plaintiff having ceased painkilling medications, including opiates, she was noted to be “stressed & on the edge all the time” and seeming “close to tears” and being “quite aggressive & unpleasant & pointed” in speaking to her general practitioner: Exhibit “B”, Tab 3R, p 169. An observation of that kind would not the unexpected in the context of drug withdrawal;

5. On 18 July 2013, in the context of the plaintiff’s wound healing from repeat hip replacement surgery, and in the context of changes in her medication regime, including diazepam and opiates, the plaintiff was noted to be “getting panic attacks … panicky, upset and irritable, not like her previous depression”: Exhibit “B”, Tab 3R, p 174;

6. On 22 October 2013, in the context of some controversy that had occurred the previous day over the plaintiff’s medication regime, she was noted to be “in crisis, threatening mother with a knife to throat” and was apparently upset at not being allowed to die when she had leukaemia: Exhibit “B”, Tab 3R, pp 174 – 175. In my interpretation of this note, in conjunction with Ms Cole’s evidence, I do not consider that it was the mother who was being threatened with injury, in person in the manner cited, as the plaintiff’s stated issue at that time was that she had not been allowed to die.

80. In my view, that lastmentioned historical matter is of only limited, if any significance in this case because first, the behaviour occurred whilst the plaintiff was abusing drugs, secondly, the behaviour has not been reported as having been repeated, thirdly, the occurrence of the accident and the plaintiff’s subsequent pregnancy, which I accept as having significantly changed her life and attitudes, have been significant and life-changing supervening events which places that isolated episode into the distant and irrelevant past: T24.48.

(3) Pre-accident work history

81. The plaintiff’s pre-accident work history included three years of carrying out general duties, mail sorting and over the counter banking tasks at Bourke Post Office under the supervision of her mother who had a position there: T11.7 – T11.13. Before her accident she obtained work-relevant qualifications concerning the responsible conduct of gaming and the responsible service of alcohol, as well as a first aid certificate: T10.48.

82. The plaintiff has also worked for her father, a builder handyman in Bourke, between 2005 and 2009. In that employment she did various minor building and maintenance work. She left that work to pursue other opportunities: Exhibit “2”. However, I accept that afterwards she continued to accompany him in his work and assist him from time to time without payment.

83. The plaintiff has worked in over the counter service and packing at a local supermarket in Bourke for about three years. She has worked as a bartender at the Bourke Bowling Club for about eight months doing over the counter serving and packing: T11.15 – T11.37.

84. Some of the plaintiff’s employment positions overlapped. Prior to becoming seriously ill with leukaemia late in 2009, the plaintiff was earning a combined income in excess of $1000 per week net: T12.21.

85. After undergoing a degree of recovery from her leukaemia the plaintiff said that on occasions she did some unpaid general building maintenance because she realised building work was her passion: T14.39 – T15.3. She had decided that she wished to gain an apprenticeship to better equip her in that regard: T19.13 – T19.15; T38.36; T57.35. I accept the plaintiff’s evidence on those matters.

86. At the time of the accident the plaintiff was in receipt of the disability support pension due to the residual effects of her earlier illness. Dr Barold presciently observed that absent a review of the certified reasons for the plaintiff’s receipt of that pension it was difficult to draw definitive conclusions as to the medical reasons for that pension: T197.12 – T197.19.

(4) Circumstances of injury

87. The plaintiff had been a passenger in her own utility vehicle travelling from Dubbo to Cobar. There had been a stop on that journey, at a rest break area, about 30kms from Cobar. After continuing the journey for about 5 minutes after that rest break, at a time when she was seated in the middle front seat of her vehicle, the accident occurred.

88. At that time the plaintiff heard the driver of her vehicle utter an exclamation when confronted with the high beam headlights of an oncoming vehicle. The accident occurred very quickly thereafter. In those events, the defendant’s oncoming vehicle displaying high beam headlights, crossed over onto the incorrect side of the road in a split second. The front of that other vehicle then clipped the plaintiff’s utility, sending it into a series of three or four rolls, whilst the vehicle was both on and off the roadway: T21.12 – T21.34.

89. After the plaintiff’s vehicle came to a stop, her companions had to smash the windscreen to remove her from the vehicle because the doors had become jammed. When she was removed from the vehicle, she slid over the bonnet, ran to the side of the road, and dived straight into the dirt at the side of the road. At that time she was in pain and in shock, having realised that “something was really wrong”: T21.39 – T21.50.

90. The defendant did not challenge the above description of the accident circumstance as given by the plaintiff.

91. Instead, the defendant’s credit challenge focussed on a different and earlier version of the events that the plaintiff had given to an investigating police officer at the scene: T41.6; T41.15 – T42.2. At that time the plaintiff had identified herself as the driver of the vehicle, however, soon afterwards at the hospital and later to her father, and then to her doctor, she stated that she had given a false version: T42.5 – T42.13; T41.45. At the time of the accident, the plaintiff was under the influence of illicit drugs and alcohol: T41.10 – T41.18.

92. Counsel for the plaintiff objected to a line of cross-examination on those matters on grounds of relevance. The questions were allowed because the subject was plainly relevant to the assessment of the credibility and the reliability of the plaintiff’s evidence generally where the defendant had cross-examined the plaintiff about lies, as earlier analysed at [14] to [24] above.

93. The defendant sought to make much out of the plaintiff having initially lied about the circumstances of the accident. In that regard, in my view, the defendant’s submissions were to the effect that the plaintiff’s credit was damaged and that her evidence should not be accepted unless otherwise corroborated or supported. I find that those submissions overstated the position, and I do not accept them for the reasons that follow.

94. The plaintiff had refrained from driving in the events leading to the accident because of her earlier alcohol and drug consumption. In those circumstances, she had allowed the driver, a person named Paul, to drive her vehicle because he had assured her that he was licensed to do so, although, subsequently that claim by him turned out to be incorrect: T41.15 – T41.24.

95. The plaintiff stated that at the scene of the accident, whilst she lay injured by the roadside and in great pain, she had been placed under pressure or duress from the driver of her vehicle. In those circumstances, he had coerced her into giving the investigating police officer an incorrect version of events to say she had been driving the vehicle: T41.25 – T41.41. She explained that she did so at the coercion of the driver Paul because he had told her that he faced imprisonment for driving whilst disqualified, and he was worried as to what might happen to his children in those circumstances, and he wanted to avoid criminal sanctions at that time: T41.30.

96. I have given careful consideration to the plaintiff’s evidence concerning the above matters in light of the defendant’s credit challenges. I am satisfied that her evidence as cited in the preceding two paragraphs was truthful and I accept her evidence on those matters of fact.

(5) Injuries and initial treatment as documented

97. The plaintiff’s first perception of having been injured was that she was screaming in pain, in shock, and she knew something was wrong: T21.48 – T21.50. She was at that time aware of pain in her lower back and when she was laying on the side of the road, she felt she could not move off the ground, and was frightened that she had done something to her pre-existing knee and hip replacements: T22.15 – T22.23.

98. There is some suggestion that the plaintiff had suffered a brief period of loss of consciousness in the accident: Exhibit “B”, Tab 1A, p 1 (the report of Dr Kwong); Exhibit “B”, Tab 3Q, p 132 (the report of Dr Sui).

99. Between 10 April 2014 and 14 April 2014, the plaintiff was an in-patient at Dubbo Base Hospital. The ambulance transport records and the full clinical notes of that admission were not tendered: Exhibit “B”, Tab 3M, pp 118 – 119. In those circumstances, the full array of the usual primary sources of information that would serve to document the extent of the plaintiff’s injuries is not included in the documentary evidence. In those circumstances it is difficult to determine whether the plaintiff in fact suffered some kind of head injury or a loss of consciousness, although she was an unrestrained passenger in the vehicle: Exhibit “5”.

100. The available extracts from the hospital records, the imaging reports and the medical summaries contained in the medico-legal reports sufficiently document the nature and extent of the plaintiff’s other injuries, as summarised below.

101. On 10 April 2014, at 12:45 hours, the plaintiff underwent x-rays of her cervical spine, chest, pelvis and abdomen at Dubbo Base Hospital: Exhibit “4”. The lumbar spine x-ray revealed a slight kyphosis at T12 and a compression or crunch fracture involving the superior aspect of the T12 vertebral body with an approximate loss of height of 33 per cent. There was an apparent disruption of the posterior aspect of the vertebral body with slight posterior displacement of a superior fragment into the spinal canal. Pre-existing bilateral L5 pars defects were noted as was an associated L5-S1 spondylothesis. A CT scan was recommended for further evaluation.

102. On 10 April 2014, at 13:30 hours, the plaintiff also underwent an abdominal and pelvic CT scan at Dubbo Base Hospital: Exhibit “E”. The reported finding of that scan was a compression fracture of the T12 vertebral body with an anterior central loss of height of approximately 60 per cent.

103. That scan was also reported as showing a posterior displacement of an upper posterior vertebral body fragment by 5mm, with an associated narrowing of the adjacent spinal canal. Other incidental findings were noted concerning pre-existing bilateral L5 pars interarticularis defects and only minimal associated spondylothesis.

104. At 22:10 hours on 10 April 2014, the Dubbo Base Hospital notes recorded that it was not possible to fully assess the plaintiff’s injuries because she was agitated, combative, refusing to co-operate, and was in unbearable pain, and it was not possible to obtain a history from her. She had been given ketamine and fentanyl since 16:00 hours that day: Exhibit “5”.

105. The plaintiff’s T12 crush fracture was treated conservatively with a thoraco-lumbar orthosis. The plaintiff remained in hospital for 4 days and was then discharged.

(6) Subsequent treatment

106. Following her discharge from hospital the plaintiff appears to have remained under the care of her general practitioner and she occasionally attended for hospital out-patient review and further imaging studies.

107. On 24 October 2014, the plaintiff underwent a thoraco-lumbar spine and pelvis x-ray which revealed a mild scoliosis concave to the right that was centred at the level T12 and concave to the left centred at the level L4. The crush fracture of the T12 vertebral body was noted and the plaintiff’s left hip prosthesis was noted to be in situ without evidence of complication. The reported finding of a scoliosis had not been evident on previous films: Exhibit “4”.

108. On 24 October 2014, a Dr Stoltz made a single page handwritten abbreviated note in the Dubbo Base Hospital Progress Clinical Noes. That single page was tendered by the defendant: Exhibit “6”. It suggests Dr Stoltz viewed the x-ray taken that day and described in [101] above. Materially, Dr Stoltz interpreted it as showing a 50 per cent loss of vertebral body height at T12, and a healed fracture, and the presence of a kyphotic deformity of less than 30 degrees, and no listhesis. At that time the plan was for the plaintiff to undergo core muscle strengthening and for a pain team review to be organised by the treating general practitioner.

109. A review of the plaintiff’s post-accident records from the plaintiff’s general practitioner reveals that there is no correspondence between that practice and specialists, apart from a letter dated 16 May 2016 from Dr Claire Sui, a pain management and rehabilitation specialist who, via Telehealth, gave the plaintiff advice on pain management and opiate intake reduction in conjunction with her pregnancy which had been diagnosed by that time. She also gave the plaintiff advice as to accessing a pain management website: Exhibit “B”, Tab 3Q, pp 132 – 133.

110. A review of the medico-legal reports that summarise the plaintiff’s history of treatment, shows that the plaintiff received very little in the way of specialist treatment, most probably due to her remote location, difficulty travelling to larger country centres where specialists were more readily available, and because of her impecuniosity, as she explained in her evidence: T71.7 – T71.18.

(7) Medical and allied reviews

111. The plaintiff underwent post-accident medical and allied assessments according to the following chronology:

1. On 1 February 2016, the plaintiff’s general practitioner, Dr Heather Dalgety, referred the plaintiff to Dr Claire Sui, a consultant in rehabilitation medicine. Dr Dalgety noted: “Sadly, Emily remains on oxyxontin (sic) 60mg daily & it has been impossible to wean her down. I strongly suspect she had intercurrent depression but she refuses antidepressants & counselling, which were previously in place during her ALL treatment”. At that time the plaintiff was being prescribed Diazepam 5mg and Oxycontin 20mg Slow Release tablets: Exhibit “B”, Tab 3N, pp 120 – 121;

2. On 18 April 2016, the plaintiff’s general practitioner, Dr Dalgety, referred the plaintiff to Dr Keerthi Perera. Dr Dalgety was seeking to share the plaintiff’s care with Dr Perera and advised her that the plaintiff “has developed addiction to painkillers & a pain specialist review in Orange is pending. Meanwhile I am slowly weaning down her analgesia”. The letter was incompletely copied. The context of the referral was the plaintiff’s pregnancy, which I infer from Dr Dalgety’s reference to “size by dates” on foetal heart sounds and movements: Exhibit “B”, Tab 3O, p 122;

3. On 11 May 2016, the plaintiff’s general practitioner signed a MACA medical certificate: Exhibit “B”, Tab 3P, p 131;

4. On 16 May 2016, the plaintiff was assessed by Dr Sui. Dr Sui assessed the plaintiff in a Telehealth consultation on that day. Dr Sui noted the plaintiff’s pregnancy at 25 weeks gestation and her medical history. From the viewpoint of her specialty, she inferred from the plaintiff’s loss of consciousness and amnesia in the events of the accident that this was “suggestive of a mild traumatic brain injury with some mild problems with memory”. Dr Sui noted a plan to reduce the plaintiff’s Oxycontin dosage to 5mg per week and advised minimal use of Lyrica (an anticonvulsant) due to her pregnancy. Psychologist and physiotherapy consultations via Telehealth were suggested. Dr Sui had assessed the plaintiff’s physical movements via the Telehealth method and noted that the plaintiff’s squatting ability was limited by her pregnancy: Exhibit “B”, Tab 3Q, pp 132 – 134;

5. On 23 January 2018, at the request of the State Insurance Regulatory Authority, Assessor Inglis Synott, a consultant psychiatrist, assessed the plaintiff’s post-traumatic stress disorder and her adjustment disorder with anxiety and depressed mood at no more than 10 per cent: Exhibit “B”, Tab 2B, pp 95 – 103;

6. On 25 January 2018, at the request of the State Insurance Regulatory Authority, Assessor Ian Meakin, a consultant orthopaedic surgeon, issued a MAS Certificate which assessed the plaintiff’s degree of impairments at 15 per cent: Exhibit “B”, Tab 2A, pp 85 – 94;

7. On 9 August 2018, at the request of her solicitor, the plaintiff was assessed by Dr Terry Kwong, a consultant physician and rheumatologist. Dr Kwong noted the plaintiff was independent with self-care, but had difficulty vacuuming, cleaning and ironing, and difficulty lifting and caring for her son. He also noted difficulty with carrying more than small items of shopping. He considered the plaintiff gave a clear history, without exaggeration. After reviewing the clinical records and his findings on examination, Dr Kwong identified his diagnosis (at p 5), to be that of thoracic vertebral fracture at the level T12 with a 60 per cent reduction in vertebral height as documented on CT scan, a lumbar strain, and chronic pain due to vertebral fracture requiring longterm narcotics, the current treatment being with methadone. He considered (at p 6), that the plaintiff was not fit for any duties as a consequence of the accident. His prognosis was guarded after the lapse of 50 months since the accident and he considered the problems were permanent. He also recommended a range of treatments and noted (at p 7), that the plaintiff needed domestic and handyman assistance, the extent of which should be assessed by an occupational therapist: Exhibit “B”, Tab 1A, pp 1 – 9;

8. On 10 August 2018, at the request of her solicitor, the plaintiff was assessed by Associate Professor James Athanasou, a consultant vocational psychologist. He considered (at p 19) that the plaintiff has lost the capacity to cope with a range of skilled and unskilled occupations. His report will be analysed in more detail in the assessment of damages for economic loss: Exhibit “B”, Tab 1B, pp 10 – 23;

9. On 11 September 2018, at the request of her solicitor, the plaintiff was assessed by Dr Gerard Barold, a consultant occupational physician. Dr Barold noted (at p 26), the plaintiff’s then current medication regime of Neurofen and Panadol for pain relief as required, with daily amitriptyline for chronic pain and methadone for management of her opioid addiction “that she reported she developed following the subject accident”. He made (at pp 27 – 28) a comprehensive list of the plaintiff’s complaints of disability. Dr Barold considered (at p 30) that the plaintiff’s prognosis was guarded and that she has reached the point of maximal improvement. He also considered (at p 30), that the plaintiff was unfit to return to any form of work as a labourer, bartender or customer service due to the subject accident, and in that regard, he identified a range of activities she should avoid, including repetitive or sustained neck or back flexion and extension, prolonged static posturing or forward flexing, bending, stooping, kneeling and squatting, with the lifting of weights being limited to 5kgs to waist level only, with the need for sitting and standing and rest breaks as required. He recommended (at pp 30 – 31), that the plaintiff be provided with physical treatments that, although not curative, should be directed at preventing deterioration in her functional capacity and her ability to enjoy the general amenities of life. His specific treatment and domestic assistance recommendations will be followed up in my reasons that deal with the assessment of damages: Exhibit “B”, Tab 1C, pp 24 – 35;

1. On 22 October 2018, at the request of the solicitor for the defendant, the plaintiff was assessed by Dr Graham George, a consultant psychiatrist. Dr George reviewed the plaintiff’s past medical history, including the residual effects of her leukaemia, the residual effects of the accident, and her history of drug abuse. He considered (at p 6) that the plaintiff has a persistent depressive disorder in the context of her leukaemia in 2009, but which was exacerbated after the subject accident. He also considered (at p 7), the plaintiff has an exacerbation of a persistent depressive disorder with predominant symptoms of post-traumatic stress disorder that has not been treated. He therefore considered the prognosis to be guarded. He considered (at p 8), she should be on a Mental Health Plan: Exhibit “1”, Tab 1, pp 1 – 12;

2. On 24 October 2018, at the request of the solicitor for the defendant, the plaintiff was assessed by Dr Frank Machart, a consultant orthopaedic surgeon. Dr Machart considered (at p 15) that the subject accident has left the plaintiff with chronic lower back pain, and narcotic addiction and dependence currently managed with methadone. He considered (at p 15), that there was a direct relationship between the plaintiff’s chronic back pain and the subject accident. He considered (at p 16), that there were no inconsistencies in the plaintiff’s presentation and that the prognosis was for not much change in the future. He also considered (at p 16), that the plaintiff had a permanent incapacity for full physical activities but that she was fit for sedentary duties: Exhibit “1”, Tab 2, pp 13 – 17;

3. On 21 November 2018, a Health Summary was printed out by the general practice in Bourke where the plaintiff sought medical consultations from time to time: Exhibit “B”, Tab 3R, pp 134 – 251;

4. On 28 November 2018, at the request of the solicitor for the defendant, the plaintiff was assessed by Professor Richard Fox, a consultant oncologist. Professor Fox considered (at p 21), that the plaintiff’s leukaemia had been cured, and considered (at p 22), that a relapse or recurrence was unlikely to occur. He also identified (at pp 21 – 22), neurocognitive and neuropsychological effects in longterm survivors of leukaemia and lymphoma due to intense chemotherapy, now recognised as “chemo brain or chemo fog” following treatment of the kind the plaintiff had received. He also identified, but did not quantify (at p 22), a statistically significant increase in mortality amongst surviving leukaemia patients: Exhibit “1”, Tab 3, pp 18 – 26;

5. On 19 February 2019, at the request of her solicitor, the plaintiff was assessed by Ms Trudie Warner, a consultant occupational therapist: Exhibit “B”, Tab 1D, pp 38 – 83;

6. On 28 February 2019, at the request of the solicitor for the defendant, the plaintiff was assessed by Mr Peter Williamson, a consultant occupational therapist. Mr Williamson’s report, and his oral evidence, will be analysed in the context of the findings made in connection with the assessment of damages for past and future domestic assistance: Exhibit “1”, Tab 5, pp 34 – 58;

7. On 12 March 2019, at the request of the solicitor for the defendant, the plaintiff was assessed by Dr Lewis Pierides, a consultant occupational physician. After reviewing (at pp 28 – 30), the plaintiff’s past medical history, her injuries, her subsequent treatment, and his findings on examination, Dr Pierides addressed a series of questions that were presented to him by the solicitor for the defendant. He considered (at p 30), that the plaintiff had chronic pain prior to the accident. He noted (at p 31), that he did not take a psychiatric history. He stated (at p 31), that the plaintiff’s healed T12 vertebral body fracture “might” cause her to experience “some mid to low back pain at times but the pain should not restrict her physical capacity in any significant way”. That opinion was not the subject of explanatory reasons as required by UCPR r 31.23; r 31.27, Sch 7, cl 3(d). Dr Pierides made other comments (at p 31), that served to downplay the significance of the plaintiff’s ongoing symptoms and stated that her prognosis from a purely physical perspective was good. Those comments, and other comments he made (at pp 31 – 33), and his opinions as set out in his joint report with Dr Barold, will be analysed in connection with the assessment of damages: Exhibit “1”, Tab 4, pp 27 – 33;

8. On 3 July 2019, Dr Barold and Dr Pierides met and prepared a joint report which addressed a series of 9 questions in which they identified matters relating to the plaintiff upon which they agreed and disagreed. The analysis of their conflicting opinions will shortly follow and those matters will be analysed in connection with the assessment of damages: Exhibit “C”;

9. On 3 July 2019, Ms Warner and Mr Williamson met and prepared a joint report which addressed a series of 9 questions in which they identified matters relating to the plaintiff upon which they agreed and disagreed: Exhibit “D”. Their report will be analysed after the analysis of the competing medical opinions.

112. The numerous consultations in the Medicare Schedule (Exhibit “B”, Tab 4A, pp 262 – 265) and the numerous prescriptions in the Pharmaceuticals Benefits Schedule (Exhibit “B”, Tab 4A, pp 262 – 303) were not referred to in detail either in evidence or in submissions, so it is unnecessary to seek to analyse those records in these reasons.

(8) Resolution of conflicting medical opinions

113. The respective opinions of Dr Barold and Dr Pierides have evolved from their primary reports, through to their joint report, and as explored and explained in their concurrent oral evidence.

Primary reports by Dr Barold and Dr Pierides

114. The essence of the primary reports of Dr Barold and Dr Pierides have already been summarised at sub-paragraphs (10) and (16) of [111] above.

Joint report of Dr Barold and Dr Pierides

115. In their joint report (Exhibit “C”), Dr Barold and Dr Pierides expressed their respective opinions on the following matters of agreement and disagreement:

1. The plaintiff had a T12 vertebral fracture. Dr Pierides stated the qualified view that this was “possibly” 60 per cent when the available imaging had confirmed that it was in fact a 60 per cent crush injury. Dr Pierides did not initially extend his agreement to Dr Barold’s formulation to the effect that the severity of the plaintiff’s injury had also caused a mechanical straining injury to the plaintiff’s lumbar spine;

2. On the subject of the healing of the fracture, Dr Pierides stated that the fracture had healed whereas Dr Barold referred to the concept of bony healing, but noticed that the anatomical disruption from the injury at T12 was expected to deteriorate over time;

3. Dr Pierides stated that the plaintiff’s past treatment was appropriate, whereas Dr Barold gave qualified evidence in which he stated that the treatment had been reasonable but was limited because there had been limited physical treatments provided, and there had been no formal pain management programme;

4. Dr Pierides and Dr Barold agreed that the plaintiff would benefit from a formal pain management programme. However, Dr Pierides did not extend his agreement to include the other treatment modalities which Dr Barold had recommended;

5. Dr Pierides considered the plaintiff’s pre-accident work prospects were minimal due to her prior medical history, whereas Dr Barold gave weight to the plaintiff’s stated intention in returning to the workforce after treatment;

6. Whilst Dr Pierides ultimately acknowledged that the plaintiff had an incapacity directly related to the accident, Dr Barold thought the plaintiff’s incapacity due to the accident precluded labouring work, bar work, or customer service positions. However, Dr Pierides considered the plaintiff had a significant incapacity due to her earlier leukaemia;

7. Both experts agreed the plaintiff’s work incapacity was ongoing. Dr Barold went further, and identified an expected worsening of the plaintiff’s condition over time due to accelerated degeneration of the condition of her spine at the level T12;

8. Whereas Dr Pierides thought the plaintiff was fit for work involving regular lifting of 10kg weights, and lifting 15kg weights occasionally, Dr Barold considered the plaintiff has a permanent unfitness for any form of employment resulting from her collapsed T12 vertebra, which required that she should avoid a significant range of physical activities;

9. Whereas Dr Pierides considered the plaintiff did not need any domestic assistance of any kind, Dr Barold offered a more reasoned view to the contrary.

116. In their concurrent evidence, the areas of disagreement became narrowed, and the basis of the stated disagreements between the opinions of Dr Barold and Dr Pierides became clearer, and more amenable to analysis.

Dr Barold’s concurrent evidence

117. It was notable that, without hesitation or argument, Dr Barold identified and stated the limits of his expertise on matters that were raised during the course of questions: T168.25. I found Dr Barold’s explanations on the matters that were within his expertise to be balanced and cogently stated on a number of important questions. These included matters such as:

1. Dr Barold’s explanation for the mechanism whereby the plaintiff’s T12 compression fracture would have caused injury to the surrounding soft tissues was clear and concise, a matter Dr Pierides did not initially accept until he was asked to comment on that view at T155.7 – T155.30:

“WITNESS BAROLD: A compression fracture at any level in the vertebral spine including the T12 vertebrae basically has part of the body of the vertebrae fall upon itself due to the external forces that have been placed upon that part of the body and in normal circumstances with accidents such as been described by the - patient, the plaintiff, it tends to be an anterior compression and in some instances, people may call this a wedge fracture but in essence, it means part of the body falls upon itself more than another part and that creates a - instability within the spine and puts extra stressors and forces over time on surrounding tissues.

BERAN: Thank you, your Honour.

HIS HONOUR: In light of that explanation provided by Dr Barold, Dr Pierides, looking at the - your answer to question 1, you conclude that the only injury that was sustained in the accident was the T12 vertebral fracture?

WITNESS PIERIDES: Correct.

HIS HONOUR: Dr Barold has gone - gone further and said that there was - the injury was sufficiently severe to cause a mechanical straining of the lumbar spine. Do you agree with that opinion and if not, why not?

WITNESS PIERIDES: You can't have a fracture like that without having a soft tissue injury surrounding it, number one. So that's at the initial phase.”

2. Dr Barold cogently explained that after bony healing of a vertebral fracture occurs it was inevitable the condition is likely to deteriorate due to degenerative changes surrounding the fracture site: T164.9 – T165.3;

3. Dr Barold gave cogent reasons for giving diminished weight to Dr Pierides’ reliance on some articles Dr Pierides had produced in the course of his evidence where he identified a simple case study to support his opinion on the plaintiff’s prognosis. Dr Barold described the articles as lacking statistical validity: T170.22. Dr Pierides did not respond to that analysis to show that the articles comprised a reliable comparison to the plaintiff’s situation;

4. Dr Pierides ultimately agreed with Dr Barold’s explanation of the effect of the distortion and possible deterioration in the mechanical function of the plaintiff’s spine, but his agreement was limited, and qualified by notions of expectant optimism: T174.22 – T175.27. In that regard, Dr Barold’s cogent explanation, at T174.22 – T174.30, was as follows:

“WITNESS BAROLD: Basically the whole mechanical situation is distorted because of the malalignment of the vertebra in that region, so that causes extra stresses and forces on the surrounding bones and soft tissues, and as I've already mentioned in previous notes, essentially that will continue to create extra pressures and further degeneration in an accelerated fashion, increasing the symptomatology of the individual, but it's impossible to determine the speed at which all of that will happen but again, a 60% compression fracture is significant and therefore, my expectation would be that it - there would be increasing disability and impairment sooner rather than later.”

5. Dr Barold gave a cogent explanation of the inter-relationship between the physical and the psychological factors that come into play with an individual’s experience of pain, and Dr Pierides accepted that explanation as valid: T176.30 – T177.6;

6. Dr Barold gave a cogent explanation of how the displaced bony fragment in the plaintiff’s spine could impinge on her spinal cord at some point in the future. Dr Pierides did not seem to accept the radiological report showing a 5mm encroachment into the spinal canal, which Dr Barold thought increased the likelihood of a more severe disability developing: T179.16 – T181.42;

7. Dr Barold considered that the development of a scoliosis in the plaintiff’s spine due to muscle spasm in October 2014 was significant, and Dr Pierides ultimately conceded that the plaintiff’s scoliosis was accident-related: T184.5 – T184.29;

8. Dr Barold’s explanation for a prognosis of increasing deterioration in the plaintiff’s spine was convincing, and Dr Pierides’ answers casting doubt on that scenario were based on what I interpret to be understatement and undue optimism, as cited from T184.45 – T185.16, as follows:

“WITNESS BAROLD: And with that the basic reaction is that it will continue to be an issue because there's no marching backwards. The degree of compression is permanent. The forces that are associated with that anatomical abnormality are persistent, and therefore, over time, there’s going to be more and more reaction and the patient’s condition will deteriorate.

BERAN: That’s in addition to the deterioration you’ve previously referred to as to this increased risk of osteoarthritis and the like.

WITNESS BAROLD: Post traumatic arthritis. Essentially, it’s a combination of all of those factors.

BERAN: Dr Pierides, do you have anything to say about that?

WITNESS PIERIDES: What Dr Barold says is a potential and a possibility. As I said earlier, I’m more optimistic that with appropriate strengthening program that her back will stabilise and it will be much less likely to have any ongoing long term problems now. As you said earlier, she hasn’t had her exercise program and I think that that would be very helpful in stabilising the back and preventing the other stresses and strains on the joints and the discs that occur. And that’s the whole point about having a – a strong back is that you minimise the likelihood of long term..(not transcribable)..minimising pain.”

9. Dr Barold’s opinions were supported by comprehensive notes of his examination and his record of the plaintiff’s history of complaints: T192.30. In contrast, Dr Pierides’ opinions did not have a foundation based on such a detailed record of complaints;

10. Dr Barold’s evidence did not raise any concerns as to its cogency, or its reliability.

Concurrent evidence of Dr Pierides

118. On hearing and reviewing the evidence of Dr Pierides I have concluded that his evidence on matters in contention was unreliable on multiple levels. In my view, the genesis of that view was that Dr Pierides’ evidence was based on doubtful foundations because unlike Dr Barold, he had admittedly omitted or failed to record the plaintiff’s presenting complaints: T187.30 – T187.43. In my view, this omission has led him to adopt an incomplete baseline understanding of the plaintiff’s ongoing problems.

119. Dr Pierides did not initially include in his analysis any consideration of the soft tissue injuries that accompanied the plaintiff’s compression fracture of T12, a matter that he later accepted, but not as to degree. He also appeared not to give sufficient weight to the plaintiff’s complaints of chronic pain. He relied upon evidence comprising epidemiologically low level published articles to seek to support his argument and in doing so, raised specious and untenable arguments that bore little if any valid comparison to the plaintiff’s injury, as those articles did not study any populations that had undergone chemotherapy. He was argumentative in his oral evidence to the extent of over-speaking in the face of questions he was being asked to address: T153.21; T155.34; T165.25.

120. I therefore found Dr Pierides to be an unimpressive witness. I consider his evidence to be less reliable than that of Dr Barold whose evidence I accept, for the reasons that follow:

1. When asked to explain the basis of his opinions he retreated to his “experience” as the basis for his views rather than providing cogent rational support for his difference of opinion compared to Dr Barold’s explanations for his views: T165.19; T165.41; T174.48 – T174.49; T204.8; T209.23.

2. His explanation for limiting the plaintiff’s claim for domestic assistance needs to 24 weeks, which was below the statutory threshold that attracted compensation, and which he “calculated [24 weeks] as a reasonable amount of time”, was artificial, and appeared to have been based on a limited theoretical consideration that was not counter-balanced with scope for variation, and it was focussed on a narrow interpretation of x-ray evidence that suggested healing: T150.24 – T151.4;

3. As already identified, he adopted what appeared to be an unjustified and understated qualification of a “possibly 60 per cent” loss of vertebral height from the plaintiff’s T12 fracture where there was undisputed radiological opinion evidence of an actual 60 per cent loss of height: T152.15 – T152.21;

4. He seemed reluctant to readily make an appropriate concession that x-ray signs did not necessarily equate to symptoms: T153.13 – T153.27;

5. He was belated in his ultimate concession that the plaintiff had a soft tissue injury to her spine in the area surrounding her T12 fracture: T155.30;

6. He abandoned his disagreement with Dr Barold on a question relating to the description of the plaintiff’s injury when he was asked to explain why he was in disagreement, and he answered “No, I agree then” without giving reasons for that changed view: T157.14;

7. His argument in which he sought to make a distinction between a healed and a stable fracture became diluted during questioning: T175.17 – T158.45;

8. He gave apparently inconsistent answers about the x-ray evidence he had viewed when he gave his initial opinion. At one point he said he “didn’t see the x-rays as such” (T152.19) yet he sought to make a comparison of such evidence with a later x-ray taken on 24 October 2014: T158.17;

9. He avoided a direct answer to a question about the appropriateness of the plaintiff’s treatment when asked to comment on Dr Barold’s more expansive evidence on that topic: T160.23 – T161.7;

10. He sought to rely on articles containing case studies of limited relevance to confirm his arguments, and in doing so, used low level evidence that he had not included in his report: T167.12; T167.36;

11. In the context of the articles he belatedly produced, without prior notice, he introduced a confounding factor into the discussion of the plaintiff’s injury by stating that a burst fracture was the same as a wedge fracture or crush fracture in circumstances where Dr Barold had not been given the opportunity to consider that matter beforehand: T168.4 – T168.31;

12. Without adequate explanatory reasons, and in my view unconvincingly, he downplayed the prospect of future deterioration in the plaintiff’s spine as first, being unlikely, and then being more likely, but not involving a significantly greater likelihood: T169.10 – T169.26;

13. Initially, he incorrectly argued that the plaintiff’s T12 fracture did not involve a posterior displacement of a fragment of bone when that description by him was plainly inconsistent with radiological evidence that the plaintiff had a posterior displacement of the upper vertebral body, which involved the related fragment being displaced by 5mm, and with an associated narrowing of the spinal cord. Once he was taken to that radiological finding (Exhibit “E”), he agreed there was such displacement (T172.33) yet he sought to argue that because there were no neurological findings, it was not a more serious case: T172.35 – T172.45. In my view, that answer seemed inconsistent with the plaintiff’s recorded complaint of her experience of occasional tingling in both feet, as was recorded by Dr Barold (Exhibit “B”, Tab 1C, p 27), this being a matter Dr Pierides did not note in his own report. In fact he made no note of the plaintiff’s current complaints at the time he examined her;

198. I am satisfied that the effects of the plaintiff’s injuries have significantly damaged and interfered with her ability to seek out, gain and sustain part-time employment within her pre-accident capabilities. I find that but for the accident, and after the birth of her child in 2016, when she managed to come to grips with, and overcome the deleterious effects of her opiate addiction, she was well placed and well-motivated to work and to earn a living. I am satisfied she had an earning capacity and that her inability to pursue that earning capacity has been productive of financial loss: Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5; Graham v Baker (1961) 106 CLR 340; [1961] HCA 48.

199. That said, some significant discounting factors must be taken into account when assessing damages for past economic loss. First, the plaintiff was domiciled in Bourke, a location with limited work opportunities given the comparatively small population in that place. Weighed against that factor was her intention to move to a larger city such as Grafton, where her sister lived. However, she had previously gone further afield, to Queensland, with her father, to pursue work opportunities. Secondly, it was not until the birth of her son in 2016 that she had managed to overcome and control her opiate addiction. Until that time, the prospect of her obtaining employment would have been unlikely. Thirdly, for a time after the birth of her son, who is now aged almost 3 years, as a result of the responsibilities of parenthood, it seems unlikely that she would have had significant free time available to pursue employment. Against that factor is that the plaintiff’s mother has adopted a childcare role in the family which could have given the plaintiff free time to pursue work. Taking those matters into account, any assessment of the plaintiff’s past loss of earnings would have to be for a reduced period, and at a reduced weekly rate for part-time work.

200. In those circumstances, where a precise monetary assessment is not possible, nevertheless, an attempt must be undertaken at making a monetary assessment, even by way of a buffer: State of NSW v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536, at [72].

201. In evaluating the respective submissions of the parties on the issue of quantification of damages for past economic loss, I consider they are based on unacceptable foundations. In light of the evidence cited, I consider that the defendant’s outright rejection of any scope for a monetary assessment of past economic loss is an extreme, unreasonable and unacceptable position that I do not accept as it ignores the effect of the plaintiff’s evidence, which I accept in that regard. Similarly, the plaintiff’s submission for an assessment of past loss of earning capacity of the order of $100,000 is an overly optimistic one that also cannot be accepted as it does not adequately reflect the factors I have outlined above.

202. In those circumstances, recognising Associate Professor Athanasou’s identified quantum guide that provides a gross range which is the equivalent of between $37,000 and $53,000 in rounded figures, but halving those figures to reflect only part-time work, this yields an approximate gross range of between $18,000 and $26,000.

203. Using those figures as a background yardstick for measuring the plaintiff’s claim for past economic loss and allowing for the incidence of taxation, the fact of part-time work over a limited period starting from a year or so after the birth of the plaintiff’s son, and not necessarily involving continuous employment, given the imponderables, I consider that a reasonable buffer allowance in the circumstances is the sum of $10,000. I therefore assess the plaintiff’s damages for past loss of earning capacity in the buffer amount of $10,000.

Future economic loss

214. The plaintiff submitted that the plaintiff’s damages for future economic loss should be assessed in the sum of $300,000: MFI “1”. The plaintiff’s submission was later reduced to $250,000 in final submissions: MFI “6”. In contrast, the defendant submitted the appropriate sum to be assessed for this head of damage was in the range $25,000 to $40,000: MFI “4”; MFI “7”.

215. In assessing damages for future economic loss, regard must be had to the assumptions made with regard to the plaintiff’s most likely future circumstances but for her injury. My findings on those matters appear at [179] above.

216. Those assumptions necessarily indicate that a mathematical projection of an identified weekly amount is not an appropriate method of assessment in this case. In the plaintiff’s circumstances there are too many imponderables at play that preclude such an assessment. Instead, this is a case where the assessment of a buffer sum would be a more appropriate method of assessing future economic loss: Penrith City Council v Parks [2004] NSWCA 201, at [5]; State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536, at [72]; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13, at [7], [25] – [27].

217. Furthermore, given the plaintiff’s underlying conditions that are not related to the accident, an adjustment must be made for possible adverse vicissitudes, noting that not all vicissitudes should be regarded as being necessarily harmful or adverse to the plaintiff: Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485; [1995] HCA 53, at [19].

218. In that regard I consider that a higher than usual discount, namely of the order of 20 per cent, should be factored into a buffer assessment of future economic loss. In taking those matters into account I consider the appropriate buffer sum to be $150,000. I therefore assess the plaintiff’s damages for future loss of earning capacity at $150,000.

Past domestic assistance

219. The plaintiff submitted that damages for past domestic assistance should be assessed in the sum of $30,000: MFI “1”. In contrast, the defendant initially submitted that the appropriate sum to be assessed for his head of damage was $4680: MFI “4”. The defendant’s final submission retreated from that position and argued that there should be no allowance made for this head of damage.

220. The respective reports of the occupational physicians gave differing opinions on the plaintiff’s need for past domestic assistance because, in their instructions for report, they were required to respond to different questions that had been asked of them. Whilst those experts were better qualified than most other medical specialties to give such opinions, their opinions on that topic must necessarily be given limited weight: Sampco Pty Ltd v Wurth [2015] NSWCA 117, at [83]; Boral Bricks Pty Ltd v Cosmidis [2013] NSWCA 443, at [93].

221. Furthermore, in this case, I do not regard the report or the evidentiary opinions of Dr Pierides to be a reliable guide to assessing the parameters of the plaintiff’s past, or for that matter future need, for domestic assistance. This is because in his oral evidence he was unable to satisfactorily explain why in his assessment he had selected the limiting parameter of 24 weeks for the calculation of damages for past domestic services: T150.24.

222. In this case, I considered that the evidence of the plaintiff and that of her mother provided a more reasonable, fact-based, and acceptably reliable insight into her past domestic care needs when compared to the evidence of Dr Pierides: Coles Supermarkets Australia Pty Limited v Haleluka [2012] NSWCA 343, at [55].

223. In final submissions made on behalf of the plaintiff, it was conceded that the evidence of the respective occupational therapists provided the most appropriate guidance for the assessment of the plaintiff’s claim for past domestic assistance. I accept that concession as having been reasonably made. However, I do not consider that guidance to be either prescriptive or definitive of the plaintiff’s needs.

224. As a baseline for assessment, the occupational therapists relevantly agreed that prior to the subject accident, the plaintiff was able to manage the majority of her domestic tasks independently, apart from when she might be required to carry out repetitive tasks at a low height.

225. In any assessment, regard must be had to the effect of the force of the legislative provisions which preclude the plaintiff from having any entitlement to claim damages for domestic assistance concerning the physical tasks that involved the provision of assistance with the care of her infant child in 2016. This is because her child was born after the subject accident: s 15B of the CL Act.

226. In assessing the evidence of the respective occupational therapists, it must also be recognised that in determining the period of need for past domestic assistance, the occupational therapists took into account an erroneous estimate of a period of 6 months instead of 6 weeks as representing the period during which the plaintiff wore a spinal brace that would have restricted her physical activities. A measure of discount is therefore required to accommodate that factor.

227. However, in this case there is no bright line of demarcation of change in the level or capacity of the plaintiff to carry out domestic tasks after the expiry of 6 weeks post-accident. In that regard, I accept the opinion of Dr Barold: T202.3 – T203.17. Dr Pierides also accepted that there was scope for variation on such matters: T150.50. I have also had regard to the potential deleterious effects for the plaintiff if she engaged in repeated or load-bearing forward flexion postures. I am also guided by what I consider to be the reliable factual evidence of the plaintiff and her mother, which I accept as to the time taken to provide past domestic care and assistance to the plaintiff: Coles Supermarkets Australia Pty Limited v Haleluka [2012] NSWCA 343, at [55].

228. The occupational therapists differed in their estimates of the plaintiff’s need for domestic assistance in the first 26 weeks post-accident with regard to the degree of personal care, transportation, meal preparation, domestic tasks, and shopping assistance that the plaintiff had required. Ms Warner totalled the time for those tasks at 11.5 hours per week and Mr Williamson totalled that time as being 8.25 hours per week.

229. In this case I consider that those estimates proffered by the occupational therapists must be the subject of some discount to account for an imprecisely quantifiable but progressively modest increase in the plaintiff’s capacity to carry out some limited domestic tasks after the first 6 weeks, which was the time she ceased to wear her spinal brace, but still had limitations in her ability to bend and carry out related tasks. I consider the submitted broad brush discount of 1 hour per week to be a reasonable approach to reflect such matters.

230. In the case of each of the opinions of the two occupational therapy experts, after taking into account that discounting factor, in each case, I am satisfied that the plaintiff has exceeded the threshold requirements of 6 hours per week for 26 weeks: s 141B of the MAC Act.

231. The quantification difference between the respective opinions of Ms Warner and Mr Williamson seem to be largely based on the premise argued by Mr Williamson that the plaintiff’s need for shopping and domestic tasks whilst she was recuperating and living in her parent’s home did not relevantly increase the carer’s workload. To a small degree that may be so. However, in other respects, I consider Mr Williamson’s opinions on the plaintiff’s need for domestic assistance, including his repeated rejection, expressed as a repeated word processing function in his report (T127.39 – T127.42), to be inadequately reasoned and therefore unreliable. Instead, I prefer the effect of the plaintiff’s evidence, and that of her mother, to Mr Williamson’s theoretical evidence.

232. I also accept the submission made on behalf of the plaintiff that Mr Williamson’s opinion on quantification of past domestic assistance should not be accepted because it was not based upon the correct test, namely, whether the additional services that were provided to the plaintiff were necessary as a result of an accident-related incapacity, and would have otherwise needed to have been obtained at a cost: White v Benjamin [2015] NSWCA 75, at [63].

233. In those circumstances, I consider that Ms Warner’s evidence provides a more reliable guide to the assessment of this head of damage. It is common ground that in her assessment, she has used the correct hourly rates as required by s 141B of the MAC Act. That assessment follows, along the lines as was ultimately submitted on behalf of the plaintiff.

234. For the first 6 weeks, between 10 April 2014 and 21 May 2014, the resultant calculation is for 11.5 hours per week at $27.96 per hour, yielding $1929.24. For the subsequent 20 weeks, between 22 May 2014 and 8 October 2014, the resultant calculation is for 10.5 hours at $28.24 per hour, yielding: $5930.40. The aggregate of these two amounts is $7859.64.

235. However, it must be recognised that the domestic assistance provided to the plaintiff for the tasks identified in the evidence in that overall period probably fluctuated in terms of time spent although still within the statutory threshold. It is plain from the evidence that precise calculations are not possible beyond recognising that the threshold has been satisfied. Reasonable estimates must suffice in these circumstances. To reflect that view, I propose to round down the submitted calculation. I therefore assess the plaintiff’s damages for past domestic assistance to the amount of $7000.

Future domestic assistance

236. The plaintiff initially submitted that damages for future domestic assistance should be assessed in the sum of $175,000: MFI “1”. In contrast, the defendant submitted the appropriate sum to be assessed for his head of damage was $25,000: MFI “4”. In final submissions the plaintiff submitted that the assessment should be in the sum of $120,875 (MFI “6”) whereas the defendant’s primary submission was that there should be no allowance for damages for future domestic assistance: MFI “7”.

237. I accept the submission that the plaintiff’s damages for future domestic care should be assessed on a paid basis at the acknowledged commercial rate of $54.45 per hour: Exhibit “D”, p 15. I consider that approach to be just and reasonable in the circumstances because the evidence discloses that it cannot be reasonably assumed that the care hitherto, principally provided by her mother, would continue to be available: ECS Group (Australia) Pty Ltd v Hobby [2014] 8 NSWCA 199, at [63].

238. This is in circumstances where Ms Cole already has significant care responsibilities for one of her grandchildren who has a disability, and also because she is not in good health: T38.1. Furthermore, the plaintiff anticipates moving away from where she presently lives in Bourke, and when that occurs, in the very near future, she will most probably engage domestic assistance services on a paid basis when she lives alone and has the funds to do so: T37.27 – T37.43.

239. Dr Barold considered that the plaintiff would have difficulties performing cleaning activities and heavy maintenance type activity: Exhibit “B”, pp 32 – 33. Forward flexion is and will continue to be a problem for her. That position is likely to worsen when the plaintiff’s back condition deteriorates, which I accept will be the case according to medical opinion, some of which was unchallenged. I do not regard the opinions of Dr Pierides to be a reliable source of contradiction to that opinion, for the reasons already identified.

240. Mr Williamson conceded that the plaintiff would require assistance with the heavier aspects of cleaning for 16 hours per year: T125. He further conceded that should the plaintiff move to a house with a garden, she would require assistance with the heavier tasks of maintaining same: T127. Allowances must also be made for assistance with hanging out heavier items of washing.

241. Ms Warner considered that the plaintiff would need some 3 hours per week for meal preparation (1.5 hours) and domestic tasks (1.5 hours) plus some allowance for home delivery of bulky items of shopping. It would be reasonable to round off those tasks at 3.5 hours per week.

242. On the other hand, Mr Williamson considered that the plaintiff’s future need for domestic assistance should be limited to 10 minutes per week for changing bed linen and 5 minutes per week for car washing: Exhibit “D”, p 17. I consider that analysis to be artificial and fundamentally inadequate.

243. In my assessment, taking an overview of the factual and expert evidence for the identified range of activities, I consider that an average rounded down allowance of 3 hours per week for paid domestic assistance to be a reasonable assessment.

244. At the age of 30 years, the plaintiff has an expected statistical median life span of 55 years. For the purpose of assessment of damages, she must be considered as having been cured of her pre-accident leukaemia: Exhibit “1”, Tab 3, p 21. However, the effects of her previous leukaemia have left her with physical limitations that are due to her joint replacement surgeries. There is also the seemingly remote risk of a relapse of her leukaemia in the future.

245. In view of those matters, I consider that the plaintiff’s damages for future domestic assistance should be the subject of two discounting factors, the first being the possibility of her leukaemia recurring, and the second being the distinct possibility that the effect of her pre-existing joint replacements, that are unrelated to her accident, may cause an increased level of physical limitation that might increase the extent of her ongoing need for domestic assistance on account of non-accident-related factors.

246. The required balancing exercise is necessarily imprecise. In my view a reasonable way of allowing for such matters without excessive double discounting, that is fair to the plaintiff and not unfair to the defendant, is to adopt a lesser projection period of 50 years using the 5 per cent multiplier of 976.2, and applying a higher than usual discount of 22.5 per cent on account of the potential adverse vicissitudes that have been identified and for which allowance must be made: Avopiling Pty Ltd v Bosevski [2018] NSWCA 146, at [153] – [154].

247. The resultant calculation is $123,583 ($54.45 x 3 hours per week x 976.2 less 22.5 per cent for vicissitudes) which I propose to further round down in light of the inherent imprecision of the task. I therefore assess the plaintiff’s damages for future domestic assistance at paid commercial rates in the rounded down amount of $120,000.

Future treatment expenses

248. The plaintiff makes a claim for future treatment expenses. This includes allowances for medical consultations and treatment with a pain clinic, general practitioners, orthopaedic surgeons, x-ray examinations, physiotherapists and palliative massage treatment, a psychologist, gymnasium costs and pharmaceutical expenses. The plaintiff’s claim in that regard was for the total amount of $150,000: MFI “6”. In contrast, the defendant submitted that such damages should be assessed at $10,000: MFI “7”.

249. The assessment of the plaintiff’s claim for future treatment expenses must proceed on the basis that, in accordance with her obligation to mitigate her damages, she will pursue reasonable treatment recommendations if she is awarded funds for that purpose. I consider that she is well motivated to do so, and that she will most probably do so when she moves to a location where the required services are more likely to be reliably available to her than is the case where she presently resides.

250. The assessment of the elements of the claim for future treatment expenses now follows, along with my consideration of the evidence in support of that claim. In that assessment, I have preferred the reasoned approaches of Dr Barold and Ms Warner to those of Dr Pierides and Mr Williamson for the reasons already identified. I have also drawn upon other unchallenged aspects of the medical opinions that have been tendered.

Pain Clinic

251. I consider that Dr Barold’s recommendation for the plaintiff to attend a pain management clinic is a reasonable one: Exhibit “B”, Tab 1C, p 30. That recommendation is supported by Dr Kwong: Exhibit “B”, Tab 1A, p 7. I accept Dr Barold’s estimate of an up-front cost of $10,000 for that treatment in view of the entrenched nature and complexity of the plaintiff’s pain management problems when viewed against her past addiction and the pre-disposition she has for lapsing back into addiction if her pain increases. In light of the potential for her back condition to worsen, she should be equipped with the knowledge and means by which to approach the management of that problem. I therefore allow $10,000 for the plaintiff’s attendance at a pain clinic: Exhibit “B”, Tab 1C, p 30.

General practitioner consultations

252. I accept Dr Barold‘s estimate of the need for 4 to 6 consultations per year with a general practitioner at the rate of $85 per consultation. Taking the mid-range estimate of 5 consultations per year, this is the equivalent of a recurring weekly expenditure of $8.17 per week: Exhibit “B”, Tab 1C, p 31. That recommendation should also be seen in the context that the plaintiff is expected to develop accelerated degenerative changes in her thoracic and lumbar spines: Exhibit “B”, Tab 1C, p 30. The projection of $8.17 per week at 5 per cent over 55 years (x 996.4) yields $8140. I therefore consider an allowance for future general practitioner consultations in the amount of $8140 is reasonable.

Orthopaedic consultations

253. I accept Dr Barold‘s estimate of the need for one consultation per year with an orthopaedic surgeon at the rate of $250 per consultation: Exhibit “B”, Tab 1C, p 31. This is the equivalent of a recurring weekly expenditure of $4.80 per week. The projection of $4.80 per week at 5 per cent over 55 years (x 996.4) yields $4782. I therefore consider an allowance for future orthopaedic consultations in the amount of $4782 is reasonable.

Physiotherapy and palliative massage

254. I accept Dr Barold‘s estimate of the need for 5 to 10 sessions per year for maintenance physiotherapy and palliative massage treatments to treat exacerbations or possible deterioration of the plaintiff’s back condition. In view of the chronicity of the plaintiff’s back problems and the likelihood of deterioration, I consider an allowance at the upper range suggested would be reasonable: Exhibit “B”, Tab 1C, p 30. Dr Barold estimates the cost of each session to be $95. Taking the upper-range estimate of 10 sessions, this is the equivalent of a recurring weekly expenditure of $18.26 per week. The projection of $18.26 per week at 5 per cent over 55 years (x 996.4) yields $18,194. I therefore consider that an allowance for future physiotherapy and palliative massage in the amount of $18,194 is reasonable.

Psychologist

255. In the plaintiff’s initial damages outline, a claim was made for the cost of psychological assistance. In final submissions that claim was not further developed. Dr George’s psychiatric assessment was that the plaintiff’s residual symptoms of a significant depressive disorder and an exacerbation of post-traumatic stress disorder indicate that she should be on a Mental Health Plan rather than having specific treatment for those conditions: Exhibit “B”, Tab 1, p 8. He did not offer any cost estimate for such a plan. I find it difficult to accept the view that the plaintiff does not need reviews by a psychiatrist or a psychologist because she continues to take prescribed psychotropic medication from time to time, and needs intermittent professional review if not supervision of her methadone treatment. However, absent evidence and argument on that aspect of the matter I am compelled to find the quantified cost of this specific component of the plaintiff’s need for treatment to remain unproven and should be regarded as being covered by the allowance made for consultations with a general practitioner.

X-ray scans

256. I accept Dr Barold‘s estimate of the need and provision for the cost of x-ray scans at between $400 and $500. I accept the mid-range estimate of $450. I therefore consider an allowance for the likely incidence of future x-ray investigations in the up-front amount of $450 is reasonable.

Gymnasium costs

257. I accept Dr Barold‘s estimate of the need for gymnasium membership for a year including a 3 month pool membership for hydrotherapy: Exhibit “B”, Tab 1C, p 30. I therefore consider an allowance for a lump sum of $2300 for this likely head of expenditure is reasonable.

Pharmaceutical expenses

258. I accept Dr Barold‘s estimate of the need for pharmaceutical costs for analgesic, anti-inflammatory and anti-depressant medication estimated at $1000 per annum: Exhibit “B”, Tab 1C, p 31. This is the equivalent of a recurring weekly expenditure of $19.23 per week. The projection of $19.23 per week at 5 per cent over 55 years (x 996.4) yields $19,160. I therefore consider an allowance for pharmaceutical expenses in the amount of $19,160 to be reasonable.

Summary and conclusion on future treatment expenses

259. I have considered whether there should be a discount applied to the plaintiff’s damages for future treatment expenses. The conventional sources of discount are for the possibility of earlier than average mortality, fluctuations in the need for treatment, and the possibility that potential adverse vicissitudes may impact on the plaintiff’s longevity, and there is the possibility that other supervening events might occur, thus reducing the need for future treatment.

260. As to possible earlier mortality, there is no reliable medical evidence to suggest that any of the plaintiff’s pre-existing conditions of health including her past renal impairment (T44.23) or her leukaemia now in remission, would, on the balance of probabilities, foreshorten her life. Furthermore, in that regard, the median life tables already factor in a general allowance for the factor of possible earlier mortality.

261. As to the other discounting factors identified in the preceding paragraph, the prospect of possible deterioration in the plaintiff’s condition, as she ages and acquires an increasing kyphosis, as explained by Dr Barold (at T164.33; T184.49), which would increase the need for treatment, counter-balances those other factors so that only conventional vicissitudes of 15 per cent need be taken into account with respect to continuing treatment expenses.

262. The aggregate of the above elements is in the total sum of $60,726, which I further round down to $60,000. I therefore assess the plaintiff’s damages for future treatment expenses in the sum of $60,000.

Past out-of-pocket expenses

263. Past out-of-pocket expenses have been agreed. I therefore assess the plaintiff’s damages in the agreed amount of $1032.25.

Summary of damages assessment

264. My assessment of the plaintiff’s damages is summarised as follows:

(a) Non-economic loss	$275,000
(b) Past economic loss	$10,000
(c) Future economic loss	$150,000
(d) Past domestic assistance	$7,000
(e) Future domestic assistance	$120,000
(f) Future treatment expenses	$60,000
(g) Past out-of-pocket expenses	$1,032.25
Total	$623,032.25

Disposition

265. The plaintiff has established her entitlement to a damages award for $623,032.25 and she should have a judgment for that amount.

Costs

266. As the plaintiff has succeeded in obtaining a judgment in her favour, she should also have an order that the defendant pay her costs of the proceedings on the ordinary basis unless a party can show an entitlement to some other costs order, for which there should be liberty to apply.

Orders

267. I make the following orders:

1. Verdict and judgment for the plaintiff in the sum of $623,032.25;

2. The defendant is to pay the plaintiff’s costs on the ordinary basis unless otherwise ordered;

3. The exhibits may be returned;

4. Liberty to apply on 7 days’ notice if further or other orders are required.

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Decision last updated: 09 August 2019