Cuda v Kolevski

[2018] NSWDC 31

District Court

New South Wales

Medium Neutral Citation:	Cuda v Kolevski [2018] NSWDC 31
Hearing dates:	30-31 January 2018; 1-2 February 2018
Date of orders:	23 February 2018
Decision date:	23 February 2018
Jurisdiction:	Civil
Before:	Dicker SC DCJ
Decision:	(1) Judgment for the plaintiff; (2) The parties are to bring in Short Minutes of Order within seven days reflecting these reasons; (3) The defendant is to pay the plaintiff’s costs as agreed or assessed; (4) Liberty to apply within 14 days in relation to costs; (5) Exhibits to be returned in 28 days.
Catchwords:	Torts – negligence – motor vehicle accident – blameless accident - conflicting medical evidence – disputed out-of-pocket expenses – alleged past economic loss - alleged loss of future earning capacity – question of whether there is a need for future commercial care
Legislation Cited:	Civil Liability Act 2002 (NSW). Motor Accidents Compensation Act 1999 (NSW) The Poisons Standard (February 2018) Therapeutic Goods Act 1989 (Cth)
Cases Cited:	Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 Curtis v Harden Shire Council [2014] NSWCA 314 Graham v Baker (1961) 106 CLR 340 Mason v Demasi [2009] NSWCA 227 Miller v Galderisi [2009] NSWCA 353 New South Wales v Moss (2000) 54 NSWLR 536 Smith v Alone [2017] NSWCA 287 Sretenovic v Reed [2009] NSWCA 280 Strong v Woolworths Ltd [2012] HCA 5 at [18]; (2012) 246 CLR 182 White v Benjamin [2015] NSWCA 75
Category:	Principal judgment
Parties:	Jennifer Ursula Cuda (Plaintiff) Daniel Kolevski (Defendant)
Representation:	Counsel: A Canceri (Plaintiff) J Guihot (Defendant)   Solicitors: CMC Lawyers (Plaintiff) Moray & Agnew (Defendant)
File Number(s):	2016/00104351

Judgment

1. In these proceedings, the plaintiff, Ms Jennifer Cuda, seeks damages under the Motor Accidents Compensation Act 1999 (NSW) (“the Act") as a result of personal injuries alleged to have been suffered by her in a motor vehicle accident which occurred on 13 December 2011.

2. The motor vehicle in which she was travelling as a front seat passenger had a ruptured tyre which caused the defendant driver, the plaintiff’s previous partner, to lose control of the vehicle. The vehicle skidded and in due course rolled a number of times.

3. Responsibility for the accident is not in dispute. It is accepted that although there is no evidence that anyone was negligent, the “blameless accident” provisions of the Act apply to the matter.

4. Accordingly, the case essentially is one for the assessment of damages. The plaintiff has not reached the impairment threshold of greater than 10% which allows for the award of damages to her for non-economic loss under s 131 of the Act.

5. The plaintiff claims damages for:

1. Past and future out-of-pocket expenses;

2. Past loss of earnings;

3. Future loss of earning capacity;

4. A loss of superannuation benefits; and

5. An amount for claimed future commercial care.

The pleadings

6. The Statement of Claim relied upon by the plaintiff is that filed on 6 April 2016. The plaintiff pleads in paragraph 1 that the motor vehicle accident occurred on 13 December 2011 on the F6 freeway at Yallah in the State of New South Wales. At the time, the defendant, the plaintiff's ex-partner, was the driver of a four-wheel drive motor vehicle. In paragraph 8 it is pleaded that the defendant's CTP insurer, Insurance Australia Ltd trading as NRMA Insurance, issued a notice under s 81 of the Act admitting that the accident was a “blameless motor accident” for the purposes of s 7B of the Act. Injuries arising as a result of the accident are particularised. In paragraph 8 the plaintiff refers to various injuries including soft tissue injuries to the cervical spine, thoracic spine and lumbar spine, a left shoulder graze and post-traumatic stress disorder and anxiety.

7. The defendant relies on a Defence filed on 25 May 2016. In the Defence the defendant denies the plaintiff was injured as a result of the accident and suffered or will continue to suffer loss and damage as a result of the accident.

8. The plaintiff relied on an Amended Statement of Particulars filed on 2 January 2018 which repeats in substance the particulars set out in the Statement of Claim and refers to a lengthy list of continuing disabilities including stiffness and restricted movement in the neck, pain and discomfort in the neck and generalised weakness of the back.

9. Particulars of damages claimed are set out under the various heads.

10. At the commencement of the hearing, the plaintiff handed up a slightly altered Schedule of Damages which reduced the amount claimed in the Amended Statement of Particulars for future out of pocket expenses.

11. The central issues in the proceedings are: a) the extent of the plaintiff’s injuries arising from the accident; b) the extent to which those injuries cause continuing disabilities to the plaintiff; c) the implication of any continuing disabilities for the plaintiff’s likely future out of pocket expenses and the need for commercial care; and d) the extent, if any, to which the plaintiff's injuries and/or disabilities caused past economic loss or a loss of future earning capacity.

12. The expert medical evidence served by the parties was heavily conflicting.

Evidence for the plaintiff

The plaintiff’s oral evidence

13. The plaintiff in her evidence in chief confirmed the accuracy of a chronology which became Exhibit C in the proceedings. She gave evidence that she was currently residing with her mother in Berkeley near Wollongong and had been living there since 2007. This had previously been the plaintiff’s grandmother’s house.

14. The plaintiff finished her schooling in 2000 and initially worked as an apprentice hairdresser in Sydney before resigning after six months because of the travel required.

15. The plaintiff gave evidence that in December 2001 she began casual work for Woolworths Limited (“Woolworths”) as a cashier. She worked on the checkout and later moved into the bakery area at the Woolworths’ Dapto store. The plaintiff stated that when working at the checkout this required her to stand and she could not sit down. In working in the bakery department, the plaintiff said she was also on her feet including baking bread and stocking the shelves and generally she could not sit down. Her work in the bakery area continued until she moved back to working as a cashier.

16. In 2005 the plaintiff’s employment with Woolworths changed from casual to permanent part-time as a baking assistant.

17. In December 2007 the plaintiff’s employment with Woolworths changed from permanent part-time back to casual as the plaintiff wanted to study and casual work allowed her greater flexibility.

18. In February 2009 the plaintiff commenced employment with the Everyday Family Dental Clinic as a dental assistant. This included work as both a receptionist and assisting the dentist, a Dr Shalaby, with his dental work. The latter included cleaning the dental instruments by placing them in an autoclave. In this role, the plaintiff gave evidence that she was on her feet for extended times, although she later conceded that part of her work as a dental assistant involved sitting on a stool.

19. In mid-2010 the plaintiff resigned from her position with the Everyday Family Dental Clinic as she was obtaining more hours of work at Woolworths and Dr Shalaby’s practice was fairly quiet.

20. The plaintiff returned to doing more work in the baking department at the Dapto Woolworths branch.

21. In July 2011 the plaintiff commenced work as a dental assistant for the Dapto Primary Medical Centre fulfilling similar duties as in her previous role as a dental assistant for Dr Shalaby. This continued until October 2011 when she left the practice.

22. In November 2011 the plaintiff’s employment at Woolworths changed again from a casual to a permanent part-time position with the plaintiff working a base of 12 hours per week as a service cashier with further work as and when it was required. The plaintiff said that she sought permanent part-time work to secure a base of hours at Woolworths. At the time she had a personal loan for $20,000 and was seeking the stability of having a base 12 hours per week. This role was as a service cashier as a checkout operator. The plaintiff gave evidence that she was on her feet for much of the time and also assisted for some time with packing groceries in the shelves of the branch.

23. The plaintiff gave evidence about the motor vehicle accident in which she was involved which occurred on 13 December 2011. She was travelling with her previous partner at the time, the defendant, who had picked her up from her house and they were proceeding to Shellharbour along the M6 Freeway. The speed limit was 100kph and her ex-partner was driving a four wheel drive vehicle. She had her seatbelt on at the time. The plaintiff said that she began to hear a high pitched sound and the car in which she was travelling began fishtailing and then turned over three times before landing on its wheels off the road. The plaintiff gave evidence that because of the damage to the vehicle she could not exit the vehicle. Soon other drivers arrived at the scene. Her initial reaction was to be pleased to be alive but she noted that the defendant was bleeding. The plaintiff said that she screamed and became hysterical. She said an ambulance officer prised open the door of the four wheel drive vehicle in which she was travelling with some force so that she could exit.

24. The plaintiff stepped out of the car and was not aware immediately of any pain but rather had a sense of relief that she was not seriously injured or killed in the accident.

25. The plaintiff travelled in an ambulance to Wollongong Hospital and remained there overnight. She had been placed in a neck brace whilst in the ambulance by the ambulance officers. Soon after she arrived at the hospital, the plaintiff noted pain which was in her neck. She later added that she felt sore “everywhere”: T36.13. The plaintiff said that her partner, the defendant, was also in Wollongong Hospital and she was very worried in relation to him.

26. The plaintiff gave evidence that she and the defendant were discharged from the Wollongong Hospital late on the afternoon of 14 December 2011 and left together. The plaintiff stated that she proceeded to her home.

27. The plaintiff gave evidence that she did not recall exactly when she returned to work after the accident but it was within a week. She returned to her role at Woolworths as a cashier and felt pain in the days after the accident in her neck and lower back.

28. The plaintiff stated that soon after the accident, in January 2012, she and the defendant broke off their relationship. The plaintiff said that she believed the car crash was the catalyst for the breakup and she had been constantly anxious and in pain and numerous fights had occurred.

29. The plaintiff said that she self-medicated in relation to the pain which she had in her neck and lower back. She stated that she took Nurofen and paracetamol regularly. The medication was taken by her a few times a day being three times a day with two tablets. The plaintiff gave evidence that the cost of a packet of the tablets was between $8 and $10 for 24 tablets. The plaintiff gave further evidence that she continued taking tablets but changed to paracetamol with codeine. She stopped taken Nurofen about six months after the accident as it was not doing what it needed to do to alleviate her pain. The paracetamol with codeine was taken by her usually three times per day with two tablets depending on the pain. Sometimes more tablets were taken. The plaintiff gave evidence that the cost of the paracetamol with codeine was $14-$15 per packet for 24 tablets: T38-39.

30. The plaintiff gave evidence that she had trouble performing her duties as a cashier at Woolworths after the motor vehicle accident. This was because she had to stand for long periods and this caused pain in her lower back. She stated that her boss was sympathetic and allowed her to move around doing other duties.

31. The plaintiff stated that in November 2012 she requested Woolworths to change her employment from permanent part-time to casual as she wanted to see her brother in Queensland and Woolworths would not give her time off to take the trip. The plaintiff stated that in January 2013 she transferred from the Dapto branch to the Unanderra Branch of Woolworths and worked as a casual in the baking department, completing duties similar to those that she had completed at Dapto. In doing this she was on her feet for extended periods with her shift involving commencing early in the morning. Generally, she was not able to sit down in performing these duties. Some bending was required for the job. The plaintiff noted that from January 2013 when she bent down she needed to hold her back when she got back up because of back pain. She said the back pain was always there to some degree but it increased in intensity on and off and sometimes was “excruciating”: T44.22.

32. The plaintiff gave evidence that in October 2013 she returned to working for the Everyday Family Dental Clinic on a casual basis working initially one day and then extending it to two days per week. Her dental assistant duties required her to stand or sit on a stool hunched over and she noted that this caused pain in the lower back. Even when she was sitting on a stool the hunch forward to perform her duties aggravated the back pain which she had. The plaintiff stated that she had trouble standing and after 45 minutes she noted a lot of pain in her lower back. The pain in her neck was pain which came on and off. She confirmed that there was not a week when she did not have some neck pain and discomfort: T45.43.

33. In 2014 the plaintiff commenced studying part-time for an advanced certificate as a dental assistant by correspondence. The course was for one year and she was able to complete her study while she was employed. She noticed that in 2014 her lower back became progressively worse: T46.9.

34. In January 2015 the plaintiff obtained her dental assistant certificate and secured a job as a dental assistant at the Illawarra Aboriginal Medical Service. This job was retained by her for the period 31 March 2015 to December 2015 when the contract expired. She earned $503 per week in this job which was fulltime for three days per week. This included receptionist duties. At the same time, the plaintiff was on the books of Woolworths at Unanderra and worked on occasions in the Woolworths delicatessen. She noticed a lot of problems with her lower back working at the delicatessen because of the requirement for bending down. The plaintiff also worked in the Fairy Meadow branch of Woolworths in the delicatessen which involved cleaning, unpacking, servicing and pricing the products. She was generally on her feet doing these duties and could not sit down. She found that these duties were very painful and aggravated her lower back: T47.31. She had trouble bending, twisting and carrying larger or heavier items.

35. In July 2017 the plaintiff commenced employment as an administration assistant with the Shop, Distributive and Allied Employees Association of NSW (“the Union”). The plaintiff was employed on a casual basis. The plaintiff gave evidence that she remained available on the books of Woolworths and remained also working for the dentist Dr Shalaby as a dental assistant. She works for Dr Shalaby presently one day per week and sometimes once a fortnight and did not have a set roster with sometimes being given short notice for a shift.

36. Prior to the accident, the plaintiff said that her intention for the future was to continue as a dental assistant and seek to obtain fulltime work. She said she did not intend to give away her work with Woolworths but sought to get secure fulltime employment as a dental assistant. The plaintiff said that she did not think she could work now as a dental assistant for five days for eight hours a day because she believed it would aggravate her accident injury in her lower back: T50.5. She also stated that she did not believe she could work fulltime at Woolworths because of the nature of the job.

37. In her present job as a union administration officer her duties included answering phone calls, making appointments for the organiser, answering enquiries in relation to the Union and data entry. This involved mostly sitting down. Although she had some initial problems with the first chair she used, things were now better but she still had some pain: T50.25. The plaintiff said that she worked at present four days per week for seven hours per day.

38. The plaintiff understood that her hours may change in the future as there was a proposal for her to job share her position with somebody else and possibly work from Monday to Wednesday, but this was unclear. The plaintiff gave evidence that she had last worked at the dental surgery for Dr Shalaby approximately two weeks ago. The plaintiff’s offered hours at Woolworths had dropped off in 2016 when she indicated that she was having trouble lifting.

39. The plaintiff gave evidence that she lived at home with her mother in an ex-Housing Commission house which had two bedrooms. This was owned by her brother. The plaintiff gave evidence that prior to the accident she shared the domestic duties with her mother which included vacuuming, washing the floors and dusting. Her mother was now 74 years old and suffered from health issues including spinal stenosis which was diagnosed in 2010.

40. The plaintiff gave evidence that since the motor vehicle accident she had had problems completing domestic duties because of pain in her lower back, including vacuuming, washing the floors and putting the washing on the line. This had resulted in the plaintiff commencing taking her and her mother’s washing to a laundromat to be washed and folded approximately 2 to 3 years ago. This cost her $20 per week.

41. The plaintiff gave evidence that her finances were “not fantastic” and she had limited savings. She stated that in 2012 she had financial difficulties meeting her loan repayments resulting from her reduced hours. At the time she was also receiving a Newstart allowance. She is currently not on that allowance because of her present working hours with the Union. The plaintiff agreed that if she obtained funds as a result of the proceedings she would pay a third party to carry out the domestic chores with which she had difficulties.

42. The plaintiff gave evidence that after the motor vehicle accident she attended a gym with the aim of strengthening her core strength and improving her back. However, she did not now attend a gym and her weight had increased, although she was trying to reduce it. She agreed that if funds were provided as a result of the proceedings she would attend as she would obtain assistance to strengthen her core muscles. She said she did not have sufficient funds to go to the gym presently and her mother was on an aged pension.

43. The plaintiff gave evidence that she had seen a psychologist once or twice because of her nerves while driving which she did not regard as normal. She said she was in possession of an unrestricted licence since 2014, which she later corrected in cross-examination to be only her P plates.

44. The plaintiff gave evidence that prior to the accident she attended a general practitioner medical clinic at Wollongong which she continued to attend for most of her medical visits. She said she had been referred for physiotherapy by her doctor but she had not acted on it because she put her mother before herself, her varied work made it difficult to attend and she was trying to deal with the issues on her own, particularly with pain medication. She also mentioned the cost of the physiotherapy as being a factor. The plaintiff noted that the pain in her back had worsened, particularly in the last year or so. She stated that she had not experienced back or neck pain prior to the accident.

45. In cross-examination, the plaintiff was asked questions about the motor vehicle accident and in particular her evidence in chief that she had to be helped out of the vehicle as she could not get out herself. The plaintiff confirmed that she could not extricate herself from the vehicle and that she was assisted out and was in the vehicle when the ambulance arrived. It was put to the plaintiff that the ambulance records suggested that she was already standing near the vehicle on the ambulance’s arrival. The plaintiff said that she did not recall that.

13. The plaintiff agreed that she was kept overnight at Wollongong Hospital. She did not recall being given two Panadeine Forte tablets for her pain. She remembered that she had x-rays and CT scans but stated that she did not believe that she undertook a CT scan of her lower back.

14. The plaintiff confirmed that after the accident she was due to next work at Woolworths on the Friday (the accident having happened on the Tuesday). The plaintiff also confirmed that she worked on Fridays and Saturdays at Woolworths at the time (see Exhibit A, the claim form, at page 14). The plaintiff said that she did not recall whether she worked on the Friday or whether she called in sick. She agreed that it was a matter of days after the accident before she was back working at Woolworths. She also agreed that she worked after the accident and over the New Year period to early January 2012. The plaintiff agreed that she took long service leave from Woolworths between 9 January 2012 and 22 January 2012.

15. The plaintiff was asked numerous questions about her attendances at doctors in relation to the accident. It was put to the plaintiff that as she was on long service leave in January 2012 there was nothing to stop her going to the doctor if she had pain. The plaintiff disagreed with this and said that at this time she was not in a good state of mind as she had recently broken up with her partner, the defendant.

16. The plaintiff was asked questions about her first consultations at the Wollongong Medical Centre after the accident. It was put to the plaintiff that she did not consult a doctor after the accident prior to 10 February 2012 and she said she did not remember. She claimed that on the first occasion she went to see a doctor after the accident she complained of pain and anxiety and that she had been having nightmares. She denied that when she first went to a doctor after the accident there was no complaint in relation to the accident. It was suggested to the plaintiff that her complaint on seeing a doctor on 10 February 2012 was in relation to abdominal cramps and period pain. The plaintiff said that she definitely spoke to a doctor about her pain arising from the accident shortly after it occurred.

17. A medical certificate signed by Dr Aroney on 10 February 2012 (which became Exhibit 2) made no reference to back or neck pain or an accident. Similarly there is no reference in the notes in evidence to such pains (Exhibit A page 217). The plaintiff denied that she made no mention to Dr Aroney of pain arising from the accident on 10 February 2012.

18. The plaintiff was asked questions about her consultation with Dr Nguyen at the Wollongong Medical Centre on 29 February 2012. It was put to her that she mentioned the car accident and the breakup with her boyfriend but made no complaint about neck or back pain (Exhibit A page 217). The plaintiff denied this and said she did mention her pain arising from the accident. She said that she did not think she was mistaken about this. She did not recall whether she was referred to a specialist. The plaintiff said at the time she was in pain both emotionally and physically, the former because of her breakup. The plaintiff said that she did not recall the precise dates when she complained of pain but recalled doing so to her doctors at this time.

19. The plaintiff did not recall mentioning the accident to one of her preferred doctors, Dr Talic, when she attended her on 23 March 2012. At this time the plaintiff obtained a medical certificate from Dr Talic which became Exhibit 3, and which made no reference to back or neck pain.

20. The plaintiff confirmed that she saw doctors in the Wollongong Medical Centre on a number of occasions from the time of the accident up to mid-2012 but did not recall the dates.

21. The plaintiff was asked questions about a consultation with Dr Talic on 8 June 2012 in which she asked for a medical certificate relating to the motor vehicle accident (Exhibit A page 219). Dr Talic noted in her medical notes that there were no records at the practice in relation to any injury arising from the motor vehicle accident. The notes state: “Has not seen any doctors of this practice about the injury. Injury mainly psychological”. The plaintiff said that she recalled seeing Dr Talic about the pain in her back. The plaintiff denied that she was sent to the doctor to obtain the certificate only because she was told by her solicitors that she had six months to lodge a claim. She said she believed that she had 12 months to lodge the claim and did not recall seeing a solicitor before 8 June 2012.

22. It seems likely from all the evidence, including the signed claim form at Exhibit A pages 1-18 dated 12 June 2012, that the plaintiff had seen her solicitor before that date. The plaintiff was taken to the medical certificate attached to the claim form at Exhibit A page 17 and confirmed that this was filled out by Dr Talic in her presence. The medical certificate makes reference to a “cervical spine injury” and a left “shoulder graze” as well as PTSD and anxiety but there is no mention of lower back injury. The plaintiff denied that she went to Dr Talic to obtain the medical certificate to lodge a claim and not for treatment or advice. She also denied that she made no complaint at the time to Dr Talic in relation to any physical problems arising from the accident. She denied that she did not complain in relation to pain in her lower back. The plaintiff agreed that she was referred by Dr Talic to a psychiatrist but she did not go. It was suggested to the plaintiff that the solicitor asked her to get a referral from Dr Talic for an MRI of her spine. The plaintiff said she did not recall this but found an MRI severely claustrophobic and avoided having them. The plaintiff said that the MRI she had in January 2018 only occurred because she was sedated while she went through the process. The plaintiff said that she did not have an MRI in 2012 because of her claustrophobia, because of financial issues and because she kept putting it off.

23. The plaintiff did not recall the defendant’s insurer admitting liability and being willing to pay all reasonable and necessary medical treatment expenses (cf Exhibit 4, being the s 81 notice). The plaintiff said she was not aware that there were no financial issues for that reason.

24. In relation to the suggestion to the plaintiff that she attended the medical practice on many occasions but made no complaint about her lower back, she denied this and said that she knows that she mentioned it including in 2012. The plaintiff said that she had not seen Exhibit 5 being a letter from the Wollongong Medical Centre to her lawyers where it was stated that the only visits up to August 2012 relating to the accident were on 8 June 2012 and 12 July 2012. She denied that these were the only occasions up to that time on which she had complained about pain arising from the accident.

25. The plaintiff was then asked further questions in relation to her work pattern prior to the motor vehicle accident. She agreed that prior to the motor vehicle accident she was working part-time at Woolworths and had not worked fulltime in any position since 2007, although her hours had varied. The plaintiff agreed that at the time of the motor vehicle accident she was working 12 hours per week and was receiving about $235 net per week as well as receiving Newstart benefits. The plaintiff confirmed her answer in the claim form that at the time of the accident she had not made any firm arrangements to start a new job, stop work, change her work duties, working hours or earnings (Exhibit A page 15).

26. The plaintiff also confirmed that prior to the motor vehicle accident she had consulted a doctor at the Wollongong Medical Centre in May 2011 in relation to stress at work and was referred to a psychologist who she did not attend because she thought she could manage the matter herself and that the stress at work would resolve. She also believed that a psychologist could not assist her in relation to the stresses involving her mother's medical condition.

27. The plaintiff agreed that she had a reduction in her working hours at Woolworths prior to the motor vehicle accident when she had complained to the doctor in May 2011 in relation to stress at work. Further, the plaintiff accepted that her hours at Woolworths had been reduced between July and October 2011 when she secured the work at the Dapto Primary Medical Centre as a dental assistant for about three months. She agreed that for a number of weeks in this period she did not work any hours at Woolworths. She also agreed that from 14 November 2011 until the date of the motor vehicle accident she was not working for any employer other than Woolworths. The plaintiff accepted that leading up to the motor vehicle accident she was working an average of 12 hours per week at Woolworths and received the Newstart allowance.

28. The plaintiff was pressed in relation to the limited records of her seeking medical advice in relation to the alleged pains in her neck and back. The plaintiff said she was taking pain medication for it at the time but accepted that this medication was not beneficial to her in relation to her pains as time went by. She said she did not go back to seek further medical advice as she did not think anything could be done for the pain.

29. It was put to the plaintiff that after the motor vehicle accident she worked her normal hours at Woolworths before taking long service leave and then returned to her standard hours of 12 hours per week. The plaintiff generally accepted this as sounding correct. The records in evidence support this (other than missing her first two days of work after the accident). It was suggested to the plaintiff that from mid-October 2012 she increased her hours at Woolworths until the end of 2012 but the plaintiff did not recall this. The increase in hours is supported by the evidence: Exhibit A page 57.

30. The plaintiff was then asked questions about her medical consultations after 2012. It was put to her that she made no complaints of problems in relation to her back or neck to doctors in the Wollongong Medical Practice in 2013, 2014 and 2015. The plaintiff denied this and said that she recalled mentioning her sore back arising from the motor vehicle accident to the doctors. When it was put to the plaintiff that this would have been a significant matter for her to tell her general practitioners, the plaintiff said that she was managing the issue in her view on pain medication and did not think anything else could be done to help her. She said that she may have been possibly “too self-reliant”: T83.13.

31. The plaintiff was then asked questions about her work history from 2013. She agreed that she started working again for Dr Shalaby at the Everyday Family Dental Clinic in October 2013, whilst at the same time working at Woolworths and receiving the Newstart allowance. She agreed that she undertook a dental assistant course by correspondence in 2014 spending about six hours on an average studying per week including some time online. She completed the course.

32. In March 2015 the plaintiff agreed that she accepted work as a dental assistant for the Illawarra Aboriginal Medical Service and this position continued for about nine months earning her around $503 net per week. At that time, the plaintiff agreed that she was working in three positions: at the Illawarra Aboriginal Medical Service, for Dr Shalaby and at Woolworths. The plaintiff agreed that this was what she told Dr Perla in July 2015 when she saw him. When she saw Dr Harvey in August 2015, the plaintiff agreed that she told him that her dental assistant duties were for about five days a week. This coincided with a reduction in the plaintiff’s hours of work at Woolworths as had occurred when she was working for the Primary Dental Clinic in 2011.

33. The plaintiff accepted that her gross earnings at Woolworths were reasonably consistent in the financial years ending 30 June 2012 to 30 June 2015. The plaintiff accepted that she was earning substantially more money in performing three jobs in 2015 than she was earning at Woolworths immediately prior to the accident.

34. The plaintiff accepted that her work at the Illawarra Aboriginal Medical Centre ceased in 2015 as her fixed contract came to an end. At this time the plaintiff indicated that she would have preferred permanent work as a receptionist rather than as a dental assistant. However, she accepted that she continued working with Dr Shalaby in his practice.

35. The plaintiff was then asked questions about her medical consultations in 2016. It was put to her that she made no complaint to her doctors at the Wollongong Medical Centre in relation to pain in her neck or back in the first seven months of 2016 which she said she did not recall but later denied: T88.45; T89.31. No complaint is recorded in the notes of medical consultations maintained at the Wollongong Medical Centre in this period.

36. The plaintiff was asked questions about a consultation with Dr Al-Salih at the Wollongong Medical Centre on 26 August 2016 where there is recorded in the doctor’s notes a complaint by the plaintiff of a “flare up” in lower back pain post the motor vehicle accident. The plaintiff was apparently referred by Dr Al-Salih for an MRI scan of the cervical and lumbar spine (Exhibit A page 229). The plaintiff was asked whether, as the Statement of Claim in the proceedings was filed in April 2016, the purpose of attending the medical clinic to complain of back pain was to try to bolster her claim for compensation. The plaintiff denied that: T89.3.

37. The plaintiff accepted that she had been referred for an MRI scan by Dr Al-Salih of her neck and back but did not proceed to have it. She said this was due to claustrophobia which she experienced in relation to having an MRI scan: T90.26. Dr Al-Salih had also referred her to a physiotherapist (Mr Le) and a pain specialist (Dr Manohar). The plaintiff agreed that she did not follow up any referrals. One reason was that she thought she could self-manage her problem: T90.46. She accepted that in this respect she had disregarded the medical advice of Dr Al-Salih: T91.7.

38. The plaintiff also emphasised that she wrongly thought at the time that she had to pay for the various medical consultations and she was focusing on her mother's needs. She accepted that she had effectively “spurned” the medical advice she had received from Dr Al-Salih in 2016: T91.33. The plaintiff said that her work life at the time was “chaotic”, she was not sure requesting medical assistance would help her and she had her mother’s medical problems to consider: T92.24. The plaintiff said she did not recall Dr Al-Salih referring her to Dr Manohar.

39. The plaintiff gave evidence that she still worked at the present time on occasions for Dr Shalaby as well as working at the Union office.

40. The plaintiff was asked a number of questions about what she told various medico-legal experts about her working hours. The plaintiff said that she did not recall what she told the doctors but would have disclosed the correct information to them at the time.

41. The plaintiff was then asked questions about a reference in the report of Dr Kwong dated 22 September 2017 to her work at the Union and that “currently, she is under training and she has been offered 14 hours a week” (Exhibit A page 258). The plaintiff accepted that she was currently working substantially more than 14 hours per week at the Union, except in one week when she was sick. She said the reference to 14 hours a week in Dr Kwong’s report was a reference to a future prospect of getting permanent part-time work at the Union. However, she did not recall precisely what she told Dr Kwong. The plaintiff said she believed she explained to him that she was involved in a training period of 28 hours per week with a prospect of a job share for 14 hours a week but it could be more: T100.43; T103.38.

42. The plaintiff was then asked questions about her attendances at a gym. The plaintiff said that she had been a member of a gym on and off for years, including at the time of the accident. She agreed that in early 2017 she had tried to attend a gym a few hours a week to strengthen her lower back but the last time she had attended the gym was in October to November 2017: T106-7.

43. The plaintiff was asked questions about having receipts for her purchases of Nurofen and paracetamol. She said she had some receipts which had faded but she did not retain all receipts. She said she generally purchased her medication at a chemist and was not aware that she could ask for a printout of her purchases.

44. The plaintiff was then asked questions about her living circumstances and domestic duties. She confirmed that at the time of the motor vehicle accident she lived with her mother in her home and that her mother was not an invalid, although she had health problems. She denied that her mother was able to do all normal domestic duties: T110.39-.47. Currently her mother can undertake general cleaning, can make her bed and can attend to dusting and wiping the benches and tables. The plaintiff can currently make her bed, dust, clean the floors, vacuum (with difficulty), share the cooking with her mother, share the cleaning and undertake shopping. The plaintiff said that she drove her vehicle for the purposes of shopping and was able to bring her purchases home: T111.

45. The plaintiff accepted that she had a washing machine in the house which was a top loader. She said she “outsourced” the washing but agreed that she was able to do it with some difficulty: T112.2. She said she had difficulty hanging the washing on the line but had not considered a clothes horse at the waist level. She agreed that she was able to put washing in and out of a washing machine with difficulty. In the period 2012 to 2016 her mother mainly did the washing. The plaintiff said that while she was capable of doing the washing it would cause her extra pain: T112.28. She conceded that she took the washing to the laundromat to be washed in a garbage bag.

46. The plaintiff denied that by the time her long service leave had completed in January 2012, she was physically capable of doing her housework to the same extent as before the motor vehicle accident. However, she conceded she was able to do it with pain and difficulty after about a month: T113.9. The plaintiff said that undertaking certain domestic duties caused her pain in her lower back although she was physically capable of doing them: T113.20. She said she could pace her activities only with difficulty: T113.27.

47. The plaintiff was cross-examined in relation to her suggestion that her need to look after her mother was part of the reason she had not pursued medical advice and treatment in relation to her back. The plaintiff accepted that her mother was able to share in the housework and was left alone when she attended work. She denied that she had made up the reason of her mother's health to explain her failure to take action in relation to her alleged pain. She said she needed to take her mother to doctors’ appointments and to pick her up on occasions as she sometimes used a walker: T114.

48. It was put to the plaintiff that the reason she did not attend the Wollongong Medical Practice and complain to general practitioners about injuries arising from the motor vehicle accident in 2012 other than on 8 June 2012 and 12 July 2012, was that she was not experiencing problems with her neck and back and any physical effects arising from the accident had resolved quickly and within a few weeks: T122. The plaintiff denied this: T122.40. The plaintiff also denied that she had not sought treatment and had put forward as an excuse for not seeking that treatment the care of her mother which was raised by her to explain away her inaction: T123.5: The plaintiff accepted that she had sought referrals from her general practitioners for other specialists relating to other medical problems but said that they were significant such as skin issues T123.10. She also said that she was dealing with her neck and back pain by taking pain medication ‘to keep it at bay”: T123.21. The plaintiff effectively denied that she was making up her evidence about the existence of neck and back problems and her mention of them to her general practitioners after the accident.

13. In re-examination the plaintiff said that in 2015 whilst she had three jobs she only worked three full days for the Illawarra Aboriginal Medical Service and when she worked for Dr Shalaby as a dental assistant this was often for half days. Accordingly, she did not always work a full week at this time.

14. The plaintiff struck me as an intelligent woman who was careful with her answers and often made concessions where appropriate in giving her evidence.

15. The questions asked by counsel for the defendant and the submissions ultimately made, raise real issues about the reliability and veracity of the plaintiff’s oral evidence. In particular, there is a question as to whether the plaintiff has exaggerated the injuries arising from the accident to her neck and lower back, including as to how long the pain in these areas has continued. I will consider these factual issues further below.

Oral evidence of Ms Heidi Cuda

85. Oral evidence was given in the plaintiff's case by Ms Heidi Cuda, the plaintiff's mother, who is 74 years old. Ms Cuda lives with the plaintiff in the house at Berkeley. Ms Cuda confirmed the evidence of the plaintiff in relation to the layout of the house. Ms Cuda said she was on an aged pension and had medical problems including high blood pressure and spinal stenosis, the latter of which she has suffered for between six and eight years. Ms Cuda gave evidence that her condition gave rise to pain including in her back and she could not do all the things which she would like to do.

86. Ms Cuda confirmed that she had been living with the plaintiff at the house at Berkeley since 2007. Ms Cuda also confirmed that prior to the motor vehicle accident there had been a division of domestic duties in the house with the plaintiff cooking, maintaining her room, sharing the vacuuming and sharing in other household duties depending on the plaintiff's work. Ms Cuda said that she washed up and shared the vacuuming and general duties. Presently, Ms Cuda said that she travelled by way of bus as she did not any longer have a car licence.

87. Ms Cuda confirmed that the division of domestic duties had changed since December 2011. At that time, she gave evidence that her condition was not as bad and that she could do more domestic duties. Now, Ms Cuda said that she had her own back problems and her back was deteriorating. She said that it was difficult for both her and the plaintiff: T127.40.

88. After the accident Ms Cuda confirmed that the plaintiff was in “a bit of shock” and was quite upset after she left the hospital. The accident had “really rattled her”: T127.50. She confirmed that the plaintiff made complaints as to her discomfort in the weeks after the accident in relation to backache: T128.6. She said that it appeared to affect the plaintiff’s sleeping and when she got up she was in pain: T128.10.

89. Ms Cuda was asked questions about vacuuming and she confirmed that the plaintiff has done vacuuming and still does it, although she states that it is causing her problems: T128.26.

90. In cross-examination, Ms Cuda was not able to clarify when the plaintiff first returned to work after the accident. She denied that the plaintiff was suffering from other health problems which were causing her pain immediately after the accident: T128.39.

91. Ms Cuda appeared to be an honest and straightforward witness and I generally accept her evidence.

The plaintiff’s tender bundle – Exhibit A

Personal Injury Claim Form

92. The plaintiff was born in November 1982. The motor vehicle accident occurred on 13 December 2011. Accordingly, the plaintiff was 29 at the date of the accident and 35 at the date of trial.

93. The plaintiff executed a Motor Accident Personal Injury Claim Form about six months after the accident: Exhibit A page 1. In the claim form, the plaintiff described her occupation as service cashier. The form is consistent with the plaintiff’s evidence that there was a tyre blowout whilst she was travelling as a passenger on the day of the accident on the F6 freeway and that it caused the vehicle to go out of control. The car rolled several times. Clearly it was a serious accident and was no doubt a horrifying experience for the plaintiff. The plaintiff described the vehicle in which she was travelling as a “write-off” as result of the accident. In the claim form, the plaintiff describes her injuries as:

“Back pain – soft tissue injury to the lumbar spine,

Soft tissue injury to the cervical spine,

Psychological injury → anxiety; PTSD; depression”.

94. The plaintiff said that the injuries affected her through “sleep disturbance” and anxiety in the car with nightmares and a loss of motivation: Exhibit A page 12. There is no reference to the injuries affecting her employment.

95. The plaintiff refers to her receiving ongoing treatment from her general practitioner Dr Talic. The plaintiff claims that she had no pre-existing injuries or disabilities and none is suggested by the defendant in the present case.

96. In the claim form the plaintiff states that she was employed part-time prior to the accident. She claims in the form that she lost income because of the accident. The plaintiff said that she was currently working 12 hours per week and due to the accident she did not attend her work on several occasions. The plaintiff in answer to Question 40 in the claim form also asserts that she was absent from work, because of the accident, from 15 December 2011 to 17 December 2011. The plaintiff states that at the time she worked for Woolworths Limited at Dapto and her usual weekly working hours were 12 hours per week at $235 per week net (and not taxed). The plaintiff states that before the accident she was in receipt of Centrelink/Newstart benefits because she worked only 12 hours per week.

97. Annexed to the claim form was a medical certificate signed by Dr Talic, the plaintiff's general practitioner. This was signed by Dr Talic on 12 June 2012 and listed her medical diagnosis or description of injuries as follows:

“Front seat passenger 90 KM/hr → rolled over 3 times/wearing a seatbelt

Airbag not blown up → cervical spine injury/left shoulder graze/PTSD: → nightmares/anxiety/insomnia/break up of a relationship as result of the accident.” (Exhibit A page 17)

98. In relation to clinical findings, Dr Talic recorded:

“13/12/11 CT cervical spine → no fracture seen

applied cervical collar plus analgesia”.

99. It is noted that the plaintiff attended Wollongong Hospital after the accident and Dr Talic proposed a treatment plan which included psychological counselling for post-traumatic stress disorder. Dr Talic stated that the plaintiff was fit to resume normal duties on 23 December 2011.

Plaintiff's employment records

100. Included in Exhibit A are extensive employment records for the plaintiff.

101. These records indicate, in summary, as follows:

1. The plaintiff commenced employment with Woolworths on 1 December 2001. As at 2 August 2012 the plaintiff was employed on a part-time basis as a service cashier: Exhibit A page 19;

2. No doctors’ certificates were on the file of Woolworths to confirm lost time due to the accident: Exhibit A page 19;

3. There are numerous references to sick leave from July 2012 in Woolworths' employment records. The plaintiff took long service leave commencing 9 January 2012 and ending on 22 January 2012: Exhibit A page 26;

4. In 2011–2012 the plaintiff worked various hours at various times which were generally not consistent. Some overtime was worked in the period up to the accident, but even the plaintiff’s ordinary hours varied. In the weeks immediately prior to the accident the plaintiff usually worked 12 hours in each weekly period at ordinary rates earning $228.93 per week gross but also worked overtime immediately prior to the accident. Immediately after the accident the plaintiff's hours varied but the plaintiff often worked ordinary hours of 12 and sometimes slightly more hours per week: Exhibit A pages 34–36. Throughout 2012 the plaintiff's hours varied again but she often worked the weekly ordinary hours of 12 hours per week;

5. On 31 March 2015 the plaintiff commenced employment as a dental assistant and receptionist with the Illawarra Aboriginal Medical Service. The plaintiff had limited absences from work in 2015. Her last day of employment with the Illawarra Aboriginal Medical Service was 23 December 2015 and the reason stated by the Service for the cessation of the plaintiff's employment was the end of her fixed term contract. The plaintiff’s gross weekly earnings during her employment were $552 with her net weekly earnings being $503: Exhibit A pages 76–77;

6. Commencing 24 July 2017, the plaintiff commenced as a casual administration clerk at the Union. The records show fairly consistent casual employment in that position by the plaintiff in the period from July 2017 to October 2017: Exhibit A pages 159–174.

Plaintiff's annual earnings

102. The records in Exhibit A show the following gross earnings by the plaintiff for the financial years ending 30 June 2008 to 30 June 2016.

Financial Year	Gross Earnings
30 June 2008	$14,014.00
30 June 2009	$21,205.00
30 June 2010	$25,143.00
30 June 2011	$32,861.00
30 June 2012	$21,101.00
30 June 2013	$24,990.00
30 June 2014	$28,126.00
30 June 2015	$29,575.00
30 June 2016	$34,060.00

Plaintiff’s medical evidence

Wollongong Hospital records

103. Following the accident, the plaintiff was transported by ambulance to the Wollongong Hospital. The records of the Ambulance Service of New South Wales include the following:

“PT self-extricated & was standing near vehicle on a/o arrival. … PT alert & oriented. PT well perfused. PT denies LOC. PT has small graze to left shoulder. Nil other injuries. PT denied any pain. Collar applied due to mechanism.”

104. The hospital records show that the plaintiff presented at the Emergency Department of Wollongong Hospital at 9.46pm on 13 December 2011. The triage information referred to a graze on the plaintiff’s left shoulder and a hard collar being in situ but that the plaintiff denied any other pain but was alert. When examined by the hospital registrar the records refer to mild lower neck pain with the plaintiff claiming numbness and weakness of the limbs but without any headache. On examination there was mild lower cervical spinal tenderness. The clinical notes reported that the plaintiff referred to “minimal back pain” and that the plaintiff's neck was pain free with her spine being non-tender on palpation. The upper and lower limbs of the plaintiff were also stated to be pain free.

105. Progress notes referred to the plaintiff complaining about back pain but only upon palpation. The plaintiff was given two Panadeine Forte tablets for her pain and it was indicated that the pain in her back had “settled”. Later notes early in the morning of 14 December 2011 indicate that the plaintiff was complaining of no pain but that she was “just stiff and sore”.

106. The plaintiff had x-rays of her chest and cervical spine as well as her thoracic spine and CT scans of her cervical and thoracic spine. These investigations were all normal with no fractures. In relation to the CT of the plaintiff’s cervical spine, the findings were that there was no pre-vertebral soft tissue swelling. The plaintiff was discharged on the day after the accident to the care of her general practitioner.

General practitioner notes

107. The plaintiff was a patient of the Wollongong Medical Centre in Crown Street Wollongong. She saw various doctors at that practice. The patient records show that the plaintiff commenced attending the practice in 2004. The practice notes indicate that the plaintiff did not attend the practice to seek a medical consultation in the period from 23 August 2011 to 9 February 2012.

108. On 10 February 2012 the plaintiff consulted with Dr Aroney. The records indicate no mention of the motor vehicle accident.

109. The plaintiff consulted with Dr Nguyen on 29 February 2012 complaining of considerable stress. The notes refer to problems with irritable bowel syndrome which were worsening lately. They also state the following: “Had a car accident, breakup with boyfriend”.

110. Despite numerous attendances at the practice in March 2012, there was no reference in the notes to the motor vehicle accident or back or neck pain.

111. The records for a consultation with Dr Talic on 8 June 2012 disclose the following:

“Wants Medical Certificate for Third Party for MVA which happened six months ago. Presented to ED TWH at the time. Nil records here about the injury. Has not seen any doctors at this practice about the injury. Injury mainly psychological. Advised by a solicitor to get Medical Certificate from the doctor. P–Needs to bring at least discharge letter from TWH about MVA. Medical certificate given – see a copy/referral to psychologist.”

112. On 12 July 2012 Dr Talic records the following in her notes:

“Patient’s solicitor advised patient to have MRI of the spine. Complaining of low back pain, nil neck pain, but tingling in fingers.

P – MRI C/T/L spine Actions: Diagnostic imaging requested: MRI cervical, thoracic and lumbar spine.”

113. There do not appear to be any relevant records at the practice between July 2012 and February 2016. Dr Talic records a consultation with the plaintiff on 5 February 2016 and her notes are as follows:

“Patient needs to record consultations related to MVA – I looked through patient's file – consultations on 8/6/2012 and 12/7/12 related to MVA.”

114. The plaintiff attended the practice on 26 August 2016 and the notes recorded by Dr Al-Salih referred to a flare up of lower back pain which is recurrent post the motor vehicle accident four years ago. The note suggests the pain is worse with movement. The notes also referred to “cervical pain and odd tingling R hand, recurrent”. There was a diagnosis of lumbar back pain and an imaging request for an MRI scan is referred to. There is also a reference to ongoing pain in the cervical spine including clicking in the neck, pain in the neck and a tingling right hand. Various letters referring the plaintiff to specialists are mentioned.

115. There are later references to the plaintiff complaining about lower back pain and spine stiffness with tenderness in the lumbar spine on 2 January 2017, 13 February 2017 and 18 January 2018.

Reports of Dr Terry Kwong

116. The plaintiff tendered a number of reports of Dr Terry Kwong, consultant physician and rheumatologist, including reports dated 7 November 2014, 17 June 2016, 22 September 2017 and 17 January 2018.

117. In his 7 November 2014 report, Dr Kwong, in his medical history, refers to the accident and the plaintiff developing neck and back pain after the accident. It states that the plaintiff took over-the-counter pain medications (Panadol or Nurofen) only as she was on Roacutane for a skin disorder. The history states that the plaintiff's neck pain improved but she has residual pain but her low back pain persisted. Post-traumatic psychological symptoms were also referred to. The plaintiff complained of intermittent neck pain with radiation to both shoulders and constant low back pain. The neck and back pain was said to worsen with prolonged sitting or standing. It is noted that the plaintiff stated that she was independent with self-care but had difficulty vacuuming and mopping and could only carry small items of shopping.

118. Dr Kwong stated that the plaintiff gave a clear and consistent history and he did not have the impression of exaggeration. He expressed the opinion that the plaintiff’s cervical spine had a restricted range of motion and she was tender on her left cervical paraspinal muscles with there being increased resting muscular tension. Whilst both shoulders had a good range of movement, her lumbar spine had a restricted range of motion with tenderness over the mid-lumbar paraspinal muscles with increasing resting muscular tension.

119. Dr Kwong looked at the hospital imaging. He diagnosed cervical and lumbar strain consistent with soft tissue injuries. Dr Kwong expressed the opinion that the plaintiff was totally unfit for work for one week after the accident and she was not fit for overtime or extended shifts. He stated that in his view the incident would result in episodic periods off work and the plaintiff had a restricted lifting restriction of 5kg with her needing to avoid duties which involved twisting or bending of her neck or back. He recommended physiotherapy and hydrotherapy followed by gym based exercise and a strengthening programme. His opinion was guarded. He stated that he did not believe the plaintiff needed domestic and handyman assistance in the future. Dr Kwong was of the view that the plaintiff’s condition had stabilised and there was unlikely to be any significant progression of the injury.

120. In his 17 June 2016 report, Dr Kwong noted that the plaintiff's neck and back pain had persisted and she had continued to require pain medication. The plaintiff asserted that she had reduced her working hours because of neck and back pain. The plaintiff complained of intermittent neck pain with radiation to both shoulders with her neck pain worsening when she turned her neck. She also complained of constant low back pain which was worse with prolonged sitting or standing. It was stated that the plaintiff took paracetamol and codeine tablets every day.

121. The plaintiff’s difficulties with vacuuming, mopping and shopping were repeated.

122. Dr Kwong noted restricted range of motion in the cervical and lumbar spine. His diagnosis of cervical strain and lumbar strain was consistent with his first report. He expressed similar opinions in relation to the limitations in the plaintiff’s working ability with her not being fit for overtime or extended shifts. Dr Kwong expressed the opinion that the plaintiff did not need domestic assistance in the future.

123. In his 22 September 2017 report, Dr Kwong refers to a history of the plaintiff complaining of persistent neck and back pain with her continuing to take pain medication. He records the plaintiff complaining of an increase in weight due to chronic pain and inactivity with psychological symptoms. He records the plaintiff complaining of intermittent neck pain with radiation to both shoulders with the neck pain worsening when the plaintiff turned her neck and constant low back pain. Dr Kwong noted that the plaintiff was then working as an administrative assistant for the SDA Union. A restricted range of motion in the cervical and lumbar spine was noted. Dr Kwong reaffirmed his diagnosis of cervical and lumbar strain. His recommendations for physiotherapy and hydrotherapy and continued medication were consistent with his earlier reports.

124. In Dr Kwong's final report dated 17 January 2018 he expressed the opinion that the plaintiff needed domestic handyman and lawn mowing assistance.

Reports of Professor Ghabrial

125. The plaintiff relied on a number of reports of Professor Ghabrial, orthopaedic and spinal surgeon. In his 3 December 2014 report, Professor Ghabrial recorded a history of injury to the plaintiff’s back in the accident with continued upper and lower back pain and increasing pain in her neck. Professor Ghabrial's examination showed moderately decreased spinal movements with pain and moderate tenderness in the thoracic and lumbar spine. Tenderness was also noted in the plaintiff's neck.

126. Professor Ghabrial expressed the opinion that the plaintiff sustained injuries to her neck, upper back and lower back in the motor vehicle accident and that his clinical assessment suggested a severe soft tissue injury to the plaintiff’s cervico/thoracic spine without any neurological implications. However, in the lower back, Professor Ghabrial referred to left S1 radiculopathy with positive tension signs in the left leg consistent with a lower lumbar disc injury most likely at the L5/S1 segment. He expressed the opinion that the plaintiff remained restricted in regard to activities involving heavy lifting, excessive bending and excessive twisting indefinitely. He could see no further prospect of any improvement and regarded the accident as the main contributing factor to the plaintiff’s present symptoms.

125. In a report dated 1 November 2017, Professor Ghabrial referred to the plaintiff complaining of continued neck pain (with some improvement) with neck stiffness and continued low back pain.

126. Professor Ghabrial's examination showed muscle guarding and tenderness in the neck and spasms in the lumbar spine. He also noted tenderness in the plaintiff in the mid thoracic region of a moderate degree with tenderness at the L4/S1 level of the lumbar midline of a moderate degree.

127. He expressed the opinion that the plaintiff sustained injuries to her back and neck in the motor vehicle accident and she continued with residual symptoms consistent with severe soft tissue injuries to her neck and back with some signs of left S1 radiculopathy with positive tension signs consistent with disc injury.

128. In his 25 January 2018 report, Professor Ghabrial maintained his opinions and assessments in his 1 November 2017 report.

Report of Dr J Davis

131. The plaintiff relied on a report of Dr John Davis, occupational medicine specialist, dated 9 August 2016.

132. The history provided to Dr Davis was of the plaintiff having a few days of “lost time” following the accident. He also states as follows: “Over time, Ms Cuda reports that her symptoms have resolved to a large degree, or at least if [sic – at] present are quite tolerable”. The plaintiff complained of continuing variable pain in her lower back which was situated more on the left side. The plaintiff complained of difficulty sitting and standing for long periods and difficulty with lifting and post activity pain after undertaking domestic chores.

133. Dr Davis noted no guarding or spasm in any of the para-vertebral regions, some tenderness in the cervical region, generalised mildly reduced range of movement, a full range of shoulder movements and some tenderness in the lumbar spine.

134. Dr Davis expressed the opinion that the plaintiff presented as suffering with a:

“mechanical injury to her lumbar spine and some soft tissue trauma to the cervical region, and such are consistent with her stated mechanism of injury when the vehicle in which she was travelling rolled a number of times on 13 December 2011”.

135. Dr Davis recommended a gym programme to increase core stability and strength. He stated that the plaintiff's prognosis was for continuing variable symptoms which would “wax and wane” and will impact to some degree on her ability to enjoy life's general amenities. He advised the plaintiff to avoid working in confined or awkward spaces with limited posture. He expressed the opinion that the plaintiff’s work capacity as a dental assistant would not exceed four days per week.

136. He also recommended physiotherapy. He noted that the plaintiff would suffer aggravation of her symptoms with any heavy lifting, repetitive or sustained flexion or semi–flexion and twisting or work at height. He accordingly expressed the opinion that the plaintiff would expect to suffer aggravation with a number of usual domestic activities including vacuuming, sweeping, mopping, ironing and emptying the washing machine as well as cleaning windows, scrubbing the bathroom and stripping/turning and making beds and carrying heavy shopping.

Report of Dr A Aurangabadkar

137. The plaintiff tendered a report of Dr A Aurangabadkar dated 22 January 2018. Dr Aurangabadkar is a radiologist. A MRI was undertaken of the plaintiff’s whole spine following a complaint of extreme back pain. Dr Aurangabadkar found a broad-based disc bulge at C5/C6 level; a broad-based disc bulge at C6/C7 level; a minor disc bulge at L4/L5 level and a minor disc bulge at L5/S1. He described in his conclusion his opinion that there were “small disc bulges at C5/C6 and L4/L1 levels”. He also noted minor facet joint arthropathy in the lower lumbar spine but with no nerve root impingement or canal stenosis at any levels.

Evidence for the defendant

The defendant’s medical evidence

Reports of Dr Sam Perla, occupational health specialist

138. The defendant relied on two reports of Dr Sam Perla, occupational health specialist, dated 24 July 2015 and 7 September 2017.

139. In his first report dated 24 July 2015, Dr Perla set out the history provided to him by the plaintiff. Dr Perla conducted an examination of the plaintiff which revealed, according to the opinion of Dr Perla:

1. A normal active range of movement in the plaintiff’s neck with no muscle spasm or guarding and no tenderness to palpation of the cervical spine or para-cervical muscles;

2. No issues in relation to the plaintiff’s right or left shoulders with normal active range of movement;

3. Normal active range of movement in the plaintiff’s lumbar back with no tenderness to palpation. Dr Perla also found no muscle spasm or guarding.

140. Dr Perla noted that at the time of the accident the plaintiff recalled having some neck pain and bilateral shoulder pain. He also noted the hospital records indicated there was neck pain, low back pain and left shoulder pain. The plaintiff told Dr Perla that she returned to work after a few days and then worked for one to two days before taking two weeks leave prior to returning back to her normal duties.

141. The plaintiff reported to Dr Perla in the consultation intermittent ongoing neck pain with bilateral upper shoulder discomfort and tightness and ongoing low back pain.

142. Dr Perla expressed the opinion that the examination was in essence normal. Dr Perla stated the opinion that Ms Cuda more than likely sustained a whiplash associated disorder of the cervical spine and soft tissue injuries involving her neck, left shoulder and right shoulder. He noted that there was no mention of any back injury in the hospital notes or in the medical certificate by the plaintiff’s general practitioner in 2012. He noted no contemporaneous history of any lumbar spine injury. He agreed that the plaintiff’s restrictions and treatment needs relating to the cervical spine and right shoulder were solely attributable to the motor vehicle accident.

143. Dr Perla said that in his opinion no further treatment was required apart from home based exercise. In particular, there was no requirement for any further specialist intervention. Whilst noting that the plaintiff had difficulty with scrubbing the floors as part of her domestic duties, Dr Perla noted there were no ongoing requirements for any personal or domestic assistance related to the injuries sustained in the accident. Dr Perla expressed the opinion that it would have been reasonable for the first one to two weeks at most for the plaintiff to be provided with limited domestic assistance only with the heavier aspects of cleaning and shopping and cooking.

144. Dr Perla expressed the opinion that the plaintiff was fit as at the date of the report to perform her pre-injury duties as a service cashier with no restrictions in hours as to usual duties. He stated the opinion that it would have been reasonable for the plaintiff to have been off work for some three to four days at most prior to returning to her pre-injury duties.

145. In relation to the plaintiff’s cervical spine, right and left shoulders and lower back, Dr Perla summarised that clinical examination revealed a normal active range of movement with no muscle spasm or guarding or neurological compromise or evidence of radiculopathy.

146. In his report dated 7 September 2017, Dr Perla noted that the plaintiff complained of ongoing chronic low back pain. In relation to her neck, the plaintiff stated that it had improved since she had last seen Dr Perla. However, she still had some mild discomfort. In relation to her shoulders, the plaintiff stated that the discomfort had improved.

147. On examination, Dr Perla noted no tenderness to palpation and active range of normal movements in the plaintiff’s neck and shoulders. In relation to the plaintiff’s lower back, Dr Perla noted there was some mild tenderness reported at the lumbo-sacral junction on palpation. However, there was a normal active range of movement. Dr Perla noted that the plaintiff presented with mild ongoing non-specific mechanical low back pain with no evidence of neurological compromise or radiculopathy.

148. Dr Perla expressed the opinion that given the clinical findings, the plaintiff’s complaints were reasonable and there was a direct relationship between the complaints and the accident. He expressed the opinion that the plaintiff’s prognosis remained reasonably good and that if she was to undertake core based strengthening exercises her back symptoms should improve. Dr Perla expressed the opinion that given his clinical findings the plaintiff was fit for full pre-injury hours and was fit for her normal pre-injury duties. Dr Perla also expressed the opinion that at the present and into the future there was no requirement for any domestic assistance.

149. On the third day of the trial the defendant tendered a report of Dr Perla dated 31 January 2018.

150. Dr Perla noted that he had reviewed the MRI scan performed on 19 January 2018 by Dr Aurangabadkar. Dr Perla stated that those findings would be considered normal in a person of the plaintiff’s age group and the important issue was that there was no evidence of root impingement, canal stenosis or cord compression. He also stated that a reversal of cervical lordosis was a reasonably common finding. He agreed that the prevalence of degenerative changes, bulges and herniation increased with advancing age and to be of diagnostic value, the findings must be consistent with clinical symptoms and signs. He noted that on his clinical findings when he last saw the plaintiff, there was no consistence between any imaging findings and the plaintiff’s clinical presentation. In particular, he saw no muscle spasm or guarding.

151. Dr Perla stated that he disagreed with the opinion of Professor Ghabrial dated 25 January 2018 in which he said the reversal of cervical lordosis indicated muscle guarding as result of muscle spasm. He stated that when he saw the plaintiff there was no evidence of any muscle spasm or guarding.

Reports of Dr F Harvey, orthopaedic surgeon

152. The defendant relied on reports from Dr F Harvey, orthopaedic surgeon, dated 11 August 2015 and 1 September 2017.

153. The plaintiff provided a history to Dr Harvey of the accident and said that when she saw Dr Talic on 8 June 2012, about six months after the accident, she had “psychological problems” but was also having some pain in the neck and back. The plaintiff confirmed that she had not been referred to any specialist by her own doctors and has had no active treatment but took medication as required being Panadol for her back pain.

154. The plaintiff apparently told Dr Harvey that she returned to her work after the accident on Friday 16 December 2011 but only worked for a day and then took two weeks off as leave before returning to her duties. The plaintiff stated that she shared her house with her mother and attempted to avoid heavier tasks such as scrubbing floors as these induced some back pain. The plaintiff said that her main complaint as at 11 August 2015 was pain in the lower back, more marked in the lumbo-sacral region. She also noted that her neck involved pain when she tried to turn her head too far to one direction. The plaintiff revealed no prior back or neck problems.

155. On examination, Dr Harvey noted that the plaintiff had good movement of the lumbar spine and no tenderness in the lower back. There was a complaint of slight discomfort in the upper lumbar region on extension. In relation to the plaintiff’s cervical spine, there was no tenderness and all movements of the cervical spine were full, although the plaintiff complained of some pain on full rotation to the right. Dr Harvey noted that the Wollongong Hospital x-rays and CT scans taken on 13 December 2011 showed no abnormality.

156. Dr Harvey’s diagnosis was that the plaintiff may have suffered some soft tissue injuries to the neck and back but he was of the view that these injuries were not of great magnitude because the plaintiff did not seek any medical attention until over six months later and since then she has received little treatment. Dr Harvey expressed the opinion that the plaintiff did not suffer any musculoskeletal injury in the accident which was going to permanently affect her earning capacity or her capacity to lead a normal life. He also expressed the opinion that the plaintiff did not require any active treatment but her state of physical fitness should be improved by a self-directed exercise programme.

157. Dr Harvey expressed the opinion that the plaintiff did not require any personal or domestic assistance at the time of examination or in the future and could perform her pre-injury duties without restriction.

158. In his report dated 1 September 2017, Dr Harvey noted a history from the plaintiff that she was having problems with her dental assistant job because of low back pain. The plaintiff noted that prolonged standing or sitting in her office job caused her to have low back pain. She claimed to have been seeing a psychologist from April 2017. The plaintiff stated that she took Panadeine for pain on most days and used a heat pack on her back. Dr Harvey noted that the plaintiff claimed difficulty with some domestic duties because of her back pain. The plaintiff complained of continuing pain in the lower back and said that it seemed to be getting worse. She also noted neck pain when she turned her head while driving but did not notice it at any other time.

159. On examination, Dr Harvey noted that the plaintiff complained of pain across the lumbo-sacral region but did not complain of any tenderness in the lower back. He also noted no tenderness about the neck with all movements of the neck being full and painless.

160. In the end, Dr Harvey concluded that there was no significant change since he last examined the plaintiff in August 2015 and his opinions remained the same. In particular, he noted that the plaintiff’s main complaint was of persisting low back pain with only minor complaint in relation to the neck. Dr Harvey expressed the opinion that one would normally expect a more rapid recovery in a healthy young individual following a traffic accident of the magnitude involved and there was little to find on examination as the plaintiff had a good range of movement in her back and neck. He confirmed his opinion that the plaintiff may have suffered soft tissue injuries which precipitated the onset of pain in the accident but he did not believe that the persistence of her pain could be explained on the basis of physical injury.

161. Dr Harvey also expressed the opinion that there was no reason why the plaintiff should be less fit for work as at September 2017 than she was in 2015. In his view the plaintiff had not suffered any musculoskeletal injury which would prevent her from working fulltime as a dental nurse, shop assistant or an administrative assistant in an office. He also noted that there was no evidence of any injury which would create the need for continuing domestic assistance.

162. On the third day of the trial, the defendant tendered two additional reports of Dr Harvey.

163. In his report dated 30 January 2018, Dr Harvey commented on the MRI of the plaintiff’s spine completed on 22 January 2018 which concluded that there were small disc bulges at C5/C6 and L4/S1 levels with minor facet joint arthropathy in the lower lumbar spine. Dr Harvey expressed the opinion that he did not consider that the findings on the MRI scan were of any clinical significance and did not believe that the changes could be attributed to trauma. Dr Harvey said that he saw no reason to alter his previous opinions.

164. In relation to the report of Professor Ghabrial dated 25 January 2018, he noted that Professor Ghabrial appeared to be attaching some significance to the reversal of the plaintiff’s cervical lordosis. Dr Harvey said that he did not consider that that finding was of any clinical significance, particularly when he saw no clinical correlation on his examination of the plaintiff in September 2017. At that time, Dr Harvey found no evidence of neck spasm and all movements of the neck were full and painless.

165. In his report dated 31 January 2018, Dr Harvey provided further comment on the MRI findings in relation to the lumbar spine. Dr Harvey said that he did not consider that the minor pathology noted in the lumbar spine was of any clinical significance as minor disc bulging and other minor degenerative change would be a common finding in the general population and have no relevance if there was no evidence of radiculopathy in the lumbar spine. Dr Harvey said that he agreed with Professor Ghabrial that there was no evidence of radiculopathy.

166. Dr Harvey emphasised again that when he examined the plaintiff on 30 August 2017 he found a good range of back movement and no neurological signs on the lower limbs to suggest radiculopathy. He also noted that the minor abnormalities in the lumbar spine were not stated to have caused any neural compression in the plaintiff.

Submissions of the parties

Submissions on behalf of the defendant

167. The defendant made extensive oral submissions as to why any damages to be awarded to the plaintiff should be extremely limited. The submissions, in general summary, were as follows:

1. The plaintiff's case was based substantially on medico-legal opinions as opposed to the opinions of her treating doctors;

2. The plaintiff’s medico-legal opinions involved an uncritical acceptance of the plaintiff’s physical complaints suggesting severe symptoms arising from the motor vehicle accident, whereas there was an absence of underlying pathology explaining the symptoms claimed;

3. None of the plaintiff’s doctors who provided medico-legal opinions appeared to have been provided with accurate histories in relation to the extent of the plaintiff’s work since the accident. In particular, the plaintiff’s doctors do not appear to have been informed accurately of the extent of the plaintiff’s work in the period 2012-2017 with an increase in the plaintiff’s work from what she was undertaking immediately prior to the accident. The reports of Professor Ghabrial should be rejected as he is the only doctor who claims some form of disc injury in the plaintiff arising from the accident and this is inconsistent with the other medical opinion;

4. The defendant’s reports should be preferred concerning the significance of the MRI scan performed in relation to the plaintiff in 2018;

5. In relation to the inconsistent medico-legal opinions relied on by the plaintiff and the defendant, the opinions of the defendant’s doctors, Drs Perla and Harvey, should be preferred. Those doctors had a greater and more accurate appreciation of the plaintiff’s relevant work history. The defendant’s doctors found no abnormal clinical findings and said there was no objective evidence for the plaintiff’s complaints of pain. The opinions of the defendant’s doctors were consistent with the opinions of the plaintiff’s treating doctors, particularly the opinions of Dr Talic expressed on 8 June 2012 (Exhibit A page 17) and on 6 July 2012 (Exhibit 6) that the plaintiff was fit for work on 23 December 2011 and her neck and lower back were normal.

6. A Jones v Dunkel inference should be drawn as there was no report from Dr Talic who was the plaintiff’s preferred treating doctor. The letter from Dr Talic which became Exhibit 5 confirmed that the only consultations up to 1 August 2012 relating to the motor vehicle accident were on 8 June 2012 and 12 July 2012. The two medical certificates provided by doctors at the Wollongong Medical Practice to the plaintiff in February 2012 did not refer to any back or neck problems;

7. The plaintiff returned to work soon after the accident and in the years after, increased her hours of work from those she was working at the time of the accident. Not only has the plaintiff undertaken the hours of work she was undertaking at Woolworths prior to the accident, but she had substantially increased those hours including at the present time;

Causation

182. I accept the plaintiff’s submissions that resolution of the issues of causation concerning the various injuries in the case is governed by s 5D of the Civil Liability Act 2002 (NSW). See also Strong v Woolworths Ltd [2012] HCA 5 at [18]; (2012) 246 CLR 182 and Curtis v Harden Shire Council [2014] NSWCA 314 at [14]-[22] per Bathurst CJ. The plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation in a negligence case: see s 5D of the Civil Liability Act.

183. As there is no evidence of the plaintiff having any difficulties prior to the accident in relation to her neck or lower back or after the accident due to any other cause, in my view I am able to conclude that any problems which the plaintiff does have, result from the injuries which she received in the accident.

Heads of damage

184. I will now turn to consider the various heads of damage claimed. There is no suggestion of any contributory negligence in the present case and none is pleaded.

Past out-of-pocket expenses

185. In the plaintiff's Schedule of Damages handed up at the beginning of the final hearing, in relation to past out-of-pocket expenses, reference is made to the Amended Statement of Particulars dated 2 January 2018. These seek an amount of $3,921.80 for past out-of-pocket expenses. Counsel for the plaintiff at the commencement of day three of the hearing made clear that the amount of $1,755.60 referred to was not pressed.

186. Therefore, the remaining heads of past out-of-pocket expenses pressed were:

1. General practitioner medical consultations - seven consultations were sought at $35 per consultation;

2. Medication at $5 a week for 319 weeks in the amount of $1,595;

3. An amount for travel.

187. The defendant disputed the relevant medical consultations in issue which were on: 29 February 2012; 8 June 2012; 12 July 2012; 5 February 2016; 26 August 2016; 2 January 2017 and 18 January 2018.

188. I conclude as follows in relation to the consultations claimed:

1. 29 February 2012 - the reference in the medical notes refers to the car accident and stress as a result of it. The plaintiff had complained of psychological issues relating to the accident and in my view this consultation is relevant and reasonable;

2. 8 June 2012 - at this consultation the plaintiff sought a medical certificate from Dr Talic. However, it is clear from Exhibit 6 that there was some examination of the plaintiff at this consultation (it being the only relevant one recorded before Exhibit 6 was prepared). I accordingly allow this consultation;

3. 12 July 2012 - In my view this should be allowed. The plaintiff was complaining of low back pain and an MRI was recommended. It appears to be reasonably connected to the accident;

4. 5 February 2016 - This consultation seems only to have occurred to enable the plaintiff to establish the consultations related to the motor vehicle accident and not treatment. I would not allow this consultation;

5. 26 August 2016 - This involves the plaintiff complaining of a flare up of low back pain. I reject the submission of the defendant that this was purely to bolster the plaintiff’s case. I accept and find that it was for a valid and reasonable purpose and I allow it;

6. 2 January 2017 - This seems to be related to the accident and involved an examination and I allow it;

7. 18 January 2018 - This appears to be related to low back pain and the patient was seeking a prescription for Panadeine Forte. It accordingly seems to be related to the accident. On my above findings I accept the plaintiff has had pain on and off arising from the accident in the lower back.

189. Accordingly, six of the seven consultations are allowed at $35 each as claimed by the plaintiff which appears to be reasonable. This totals $210.

190. In relation to the claim for medication, the plaintiff seeks $1,595 being $5 per week for 319 weeks.

191. The defendant submitted that the plaintiff had produced no independent verification through receipts and that there was no need for the medication because the condition had resolved. The plaintiff also relies on her oral evidence at T39 in relation to the cost of the various medication and the frequency of consumption. Having regard to my factual findings above, in my view the plaintiff’s evidence should be accepted in relation to her use of the medication for the period of about four weeks after the accident. Thereafter, in my view the plaintiff’s evidence should only be accepted to the extent of less frequent use of the medication as and when required. Doing the best I can on the whole of the evidence, I would allow the amount of $500 under this head.

192. I accept the plaintiff’s evidence that pain medication was taken even though no receipts were tendered.

193. An amount is also sought for travel. The evidence on this was very limited and in my view it does not establish any entitlement.

Future out-of-pocket expenses

194. In the plaintiff's Schedule of Damages handed up at the commencement of the trial the plaintiff seeks damages as per the Amended Statement of Particulars as amended by the Schedule in the sum of $53,830.56 made up of the following components:

1. Pharmaceutical, physiotherapy / general practitioner / travel expenses at $28.67 per week for the remainder of the plaintiff's life totalling $28,351.76;

2. A gym programme at the cost of $2,700;

3. An annual gym membership at the cost of $20,138 .80; and

4. Ten to 12 counselling sessions with a psychologist totalling $2,640.

195. In final submissions, counsel for the plaintiff did not press the counselling sessions. In any case, I do not believe there was evidence before the court establishing this amount as appropriate.

196. In relation to the claim for gym membership, I have accepted that the plaintiff has some ongoing problems with her lower back. The medical evidence seems to support the need for a core strengthening programme: Exhibit A pages 237, 247, and 254. See also the report of Dr Perla at Exhibit 1 page 17 (although he did not concede the need for an external programme).

197. In my view, the plaintiff would benefit, having regard to the medical evidence and the findings which I have made, from some guidance and treatment from a physiotherapist followed by a gym programme. The defendant submits that the plaintiff would not proceed with such a programme if damages were awarded because of her failure to follow previous advice. In my view that is unlikely. I accept the submission from counsel for the plaintiff that the plaintiff sought advice from Dr Nguyen on 2 January 2017 in relation to gym strengthening. However, I do not consider that there is an ongoing lifetime need for gym memberships. Once the plaintiff has received appropriate physiotherapy and assistance at the gym, the plaintiff should be able to undertake home based strengthening and exercises as suggested by Dr Perla. Taking into account the costs set out in the various medical reports I would allow $5,000 under this head.

198. In relation to the plaintiff's claim for future medication, I accept the plaintiff’s evidence that she has been taking paracetamol with codeine and it appears that a prescription is now required for this drug which will necessitate visits to her general practitioner: See The Poisons Standard of February 2018 made under the Therapeutic Goods Act 1989 (Cth). I accept that repeats will no doubt be given if the general practitioner thinks that the drug is and remains suitable. I also accept that the plaintiff will need pain relief when there is a recurrence or flare up of her difficulties, particularly in the lower back.

199. Taking into account the fact that the core strengthening programme may well alleviate some of the pain which the plaintiff has experienced, and doing the best I can on all of the evidence, I allow $4,000 under this head. The total I therefore allow for future out-of-pocket expenses is $9,000.

Past loss of earnings

200. I refer to my findings above. As set out, the only loss of past earnings which I have found established on the evidence is the sum of $222.83 for the days missed immediately after the accident. I allow the amount of $20 for loss of superannuation and round up the total to $245. I accept the defendant’s submissions that this is the only loss suffered by the plaintiff having regard to her pattern of employment, her earnings for the period 2008-2016 and her absence of full time work in the relevant period.

Loss of future earning capacity

201. Counsel for the plaintiff submits that the plaintiff has suffered a substantial loss of future earning capacity. See paragraphs 69-81 of the plaintiff’s written submissions.

202. In considering this issue I take into account:

1. All of the evidence;

2. My factual findings which I have set out above;

3. The plaintiff’s past work history: see paragraph 68 of the plaintiff’s written submissions;

4. The comments of Basten JA in Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 at [32]-[36].

203. Counsel for the defendant submits that the reports of the plaintiff’s medico-legal specialists are based on an incorrect factual premise as to the plaintiff's work history, the reason for her cessation of work at the Illawarra Aboriginal Medical Centre and the extent of her work since July 2017 for the Union. Certainly, the full extent of the plaintiff’s work history is more accurately set out in the reports of the defendant’s medico-legal specialists than the plaintiff’s specialists.

204. The award of damages for future loss of earning capacity under the Act is governed by s 126 of the Act. Section 126 of the Act provides as follows:

“126 Future economic loss—claimant’s prospects and adjustments

(1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant’s most likely future circumstances but for the injury.

(2) When a court determines the amount of any such award of damages it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events concerned might have occurred but for the injury.

(3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.”

205. In New South Wales v Moss (2000) 54 NSWLR 536 Heydon JA stated as follows at [70]-[71] and [84]:

[70] First, damages to compensate for that part of reduced economic capacity which will be reflected in the future are sometimes analysed as being one type of “general damages”. Like other types of “general damages”, as Fullagar J said in Paff v Speed at 559, they are “of their very nature, incapable of mathematical calculation and (although the expression is apt to be misleading) commonly very much ‘at large’. They are also at large in the sense that a jury has, in serious cases, a wide discretion in assessing them”. In Russell v J Hargreaves & Sons Pty Ltd [1957] QSR 440 at 445, Taylor J said:

“Since … it is impossible to prescribe fixed or precise standards for the translation into terms of money of physical injuries and pain and suffering and varying degrees of physical incapacity, it is inevitable that individual opinions as to what amount may be said to constitute full compensation in any particular case will vary. Indeed within the bounds of reasonableness they may vary greatly.”

The field is an “uncertain” one: Breska v Lysaghts Works Pty Ltd (1956) 74 WN (NSW) 168 at 169, per Street CJ.

[71] Secondly, strictly the issue does not turn on a comparison between what money the plaintiff would have earned apart from the injury and what money the plaintiff will earn after the injury. The compensable loss is not a loss of income but the loss of capacity to earn income in a manner productive of financial loss: Graham v Baker (1961) 106 CLR 340 at 347. The income earned before the injury is relevant, but only as an evidentiary aid in assessing damages for the loss of capacity to earn income: Paff v Speed at 566, per Windeyer J. Evaluation of the worth of a loss of capacity to earn — of a lost chance to earn — is of its nature a more imprecise inquiry than calculation of a lost income. It rests on the hypothesis — that the plaintiff will have undiminished capacity — which has been rendered false by events. It does not depend on calculating the income from a particular career which is no longer possible, but in calculating the damage to a capacity to carry on various careers. It is an exercise in estimation of possibilities, not proof of probabilities. H Luntz, Assessment of Damages for Personal Injury and Death, 3rd ed, at 91 [1.9.18], said: “it is not necessary for the plaintiff to establish the future loss with the same degree of precision as the present and past loss … The court is really being asked to estimate as best it can the future effect of the injuries from which the plaintiff has been proved to be suffering as a result of the defendant's wrongful act”.

In Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 at 639, Brennan J and Dawson J said: “the ascertainment of earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history”. They approved Lord Diplock's statement in Mallett v McMonagle [1970] AC 166 at 176: “in assessing damages which depend upon its view as to what will happen in the future or would have happened in the future if something had not happened in the past, the court must make an estimate as to what are the chances that a particular thing will or would have happened and reflect those chances, whether they are more or less than even, in the amount of damages …”. The majority (Deane J, Gaudron J and McHugh J) in Malec v J C Hutton Pty Ltd said (at 643) that when the law takes account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring in a range from just above the speculative to just below the certain. The inquiry — the process of estimation of possibilities — is thus an imprecise and indeterminate one to be carried out within very broad parameters. The trier of fact may have to form conclusions on “slender material[s]”: Callaghan v Wm C Lynch Pty Ltd (1962) 79 WN (NSW) 830; [1962] NSWR 871 at 877, per Evatt CJ, Herron J and Sugerman J. That language, unlike the reference to permitting “guess work or speculation” elsewhere in that judgment, was not criticised in Ivkovic v Australian Iron & Steel Ltd (1963) 63 SR (NSW) 598 at 607; 80 WN (NSW) 999 at 1006, per Manning J. However, Menzies J said that sometimes the assessment of damages involves “guess work rather than estimation”: Jones v Schiffmann (1971) 124 CLR 303 at 308; see also Linsell v Robson [1976] 1 NSWLR 249 at 259, per Mahoney JA; Chaplin v Hicks [1911] 2 KB 786 at 792, per Vaughan Williams LJ. Lord Diplock described the factors underlying the assessment of damages for diminished earning capacity as “matters of prophecy or judicial guesses” in Paul v Rendell (1981) 55 ALJR 371 at 376; 34 ALR 569 at 578. The English position was summarised thus by Lloyd LJ in Foster v Tyne and Wear County Council [1986] 1 All ER 567 at 570:

“when it comes to estimating loss of earning capacity, there is no such thing as a conventional approach; there is no rule of thumb which can be applied. It would be so much easier if there were. But there is not. In each case the trial judge has to do his best to assess the plaintiff's handicap, as an existing disability, by reference to what may happen in the future. As has been said so often, that is necessarily a matter of speculation; it is necessarily a matter of weighing up risks and chances in all the circumstances of a particular case. The very fact that the approach must necessarily be so speculative means, of course, that the occasions on which this court will feel justified in interfering with a judge's assessment will be few and far between, for there is no established range or standard against which to measure the judge's award.””

“[84] An illustration of the court's readiness to award damages for diminution of earning capacity arises when very young children are injured. Strictly speaking it would be impossible to prove that the child would have had an earning capacity as an adult or would have exploited it. But it is conventional to rely on the occupations, attitude to life and work histories of parents and other relatives: Taylor v Bristol Omnibus Co Ltd [1975] 1 WLR 1054; [1975] 2 All ER 1107; Gowling v Mercantile Mutual Insurance Co Ltd (1980) 24 SASR 321; Bullock v Miller; Burford v Allan (1993) 60 SASR 428. See also the position in England described in H McGregor, McGregor on Damages, 16th ed (1997) London, Sweet & Maxwell Ltd, at 910 [1381]–[1382].”

206. I also note the comments of Basten JA in Kerr, above, at [24] that s 126 does not appear to depart from or vary the general law principle that the compensable loss is not a loss of income but the loss of capacity to earn income which “is or may be productive of financial loss”: Graham v Baker (1961) 106 CLR 340 at 347 and Moss, above, at [71]. His Honour noted that income earned prior to the accident may well be the best evidential basis to assess the earning capacity of a plaintiff but that income earned between the accident and the trial may also be (but often is not) a good indicator of current capacity. A plaintiff establishing a diminution in earning capacity is not required to identify with precision the value of the loss.

207. As stated in my factual findings:

1. Prior to the accident, the plaintiff had experience and skills working at Woolworths in the cashier and bakery departments and had experience as a dental assistant;

2. Immediately prior to the accident the plaintiff was working as a cashier, her employment as a dental assistant having ceased;

3. In my view, it is likely that the plaintiff would have continued at Woolworths but for the accident but sought other employment as a dental assistant or as a receptionist or clerk when it was available;

4. There is no evidence that in the period immediately after the accident the plaintiff might have obtained promotion or other additional benefits other than what she was receiving from Woolworths. However, it is likely that the plaintiff would have pursued her desire to obtain experience and potentially qualifications as a dental assistant;

5. It was agreed between the parties that the plaintiff’s retirement age was likely to be 65; and

6. The plaintiff had never worked in fulltime employment since ceasing as a hairdressing apprentice. Her work had been varied, was casual or sometimes permanent part-time and she sought work from wherever source it was available. There is no evidence of the plaintiff having been offered a fulltime dental assistant’s job or that it is likely that she would have been but for the accident. The plaintiff herself expressed an interest in receptionist work. The above are the assumptions which I make in looking at the question of future earning capacity.

208. The plaintiff further submits:

1. There is no doubt that the injury to the plaintiff’s lumbar spine, which is said to be getting worse, “is or may be productive of financial loss”. This is reinforced by the plaintiff’s complaints about her cervical spine injury: written submissions paragraph 71;

2. The plaintiff’s most likely future circumstances, but for the injuries in the accident, involved her eventually working as a dental assistant on a fulltime basis and occasionally working as a service cashier for Woolworths: paragraph 72 of the written submissions;

3. The plaintiff has reported difficulties working as a dental assistant because of the bending and twisting: paragraph 73 of the written submissions;

4. The plaintiff’s medical evidence advises her to avoid activities involving heavy lifting, excessive bending and excessive twisting. Aggravation through work as a dental assistant is likely: Exhibit A pages 266 and 254;

1. An amount should be allowed of $170,000 rounded plus $18,700 for superannuation or in the alternative, a buffer of $150,000 plus an amount for superannuation.

209. As I have found, the plaintiff’s condition is not as debilitating and constantly painful as suggested by her. I have found that the condition will continue to cause some pain and some recurrent difficulties. However, on occasions, whilst there may be some limited pain, the plaintiff will sometimes have a good range of movement as occurred when she saw the defendant’s medical experts.

210. The nature of the work which the plaintiff would be likely to undertake, particularly if she does not obtain the same or even more work as she has undertaken recently at the Union, is uncertain. For these reasons I do not think that the precise calculations sought by the plaintiff for future loss of earning capacity in her Schedule of Damages and her outline of written submissions are appropriate. The question therefore arises as to whether the award of a buffer is appropriate.

211. In Sretenovic v Reed [2009] NSWCA 280, McColl JA stated as follows at [79]-[81]:

“[79] I turn then to the issue of future economic loss. The primary judge’s finding in this respect was also tainted by reason of the erroneous findings I have identified. It was also, in my view, inappropriate for his Honour to assess the impairment of the respondent’s future earning capacity over the entire period of his anticipated working life. Rather this was a case where, as the appellants submitted, a buffer should have been awarded.

[80] Compensation for lost earning capacity is awarded because diminution in an injured plaintiff’s earning capacity “is or may be productive of financial loss”: Graham v Baker [1961] HCA 48 ; (1961) 106 CLR 340 (at 347). It is incumbent upon the plaintiff to prove the loss for which compensation is claimed: Todorovic v Waller [1981] HCA 72 ; (1981) 150 CLR 402 (at 412).

[81] It is appropriate to award damages by way of a buffer, including in a case such as this where damages are to be determined pursuant to the Civil Liability Act, when the impact of the injury upon the economic benefit from exercising earning capacity after injury is difficult to determine. In such a case where the plaintiff has an earlier demonstrated earning capacity, the court undertakes a comparison between the economic benefits the plaintiff derived from exercising that earning capacity before injury and the economic benefit derived from exercising earning capacity after injury, although the difference cannot be determined otherwise than by the broad approach of a buffer: Penrith City Council v Parks [2004] NSWCA 201 (at [3]–[5]) per Giles JA; applied K-mart Australia Ltd v McCann [2004] NSWCA 283 (at [62]) per Pearlman AJA (Handley and Ipp JJA agreeing); see also Hornsby Shire Council v King [2005] NSWCA 67 (at [23]) per Ipp JA (Mason P and Brownie AJA agreeing); Leichhardt Municipal Council v Montgomery [2005] NSWCA 432 (at [33]) per Hodgson JA (McColl JA agreeing). In the latter case Mason P (at [2]) opined that “a buffer or cushion award is usually reserved to the situation where there is a smallish risk that otherwise secure employment prospects may come to an end, in consequence of the tort-related injury, at some distant time in the future”.”

212. The reasoning of the Court of Appeal in Stretenovic is that an award of a buffer or cushion is reserved to a situation where the precise loss of the plaintiff is difficult to determine and there is a “smallish risk” that the plaintiff’s existing employment prospects will be limited or the plaintiff’s capacity has been clearly reduced but how that will inhibit his or her earning capacity in the future as a consequence of the injury suffered is uncertain.

213. In Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 McColl JA stated the following at [6]-[9]:

“[6] The circumstances in which damages by way of a buffer are appropriate was summarised in Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99; (2008) 172 IR 453 (at [84]) per McColl JA (Mason P and Beazley JA agreeing), a case in which a challenge to a buffer of $120,000 failed, as follows:

84 As to the future economic loss, it is appropriate to award damages by way of a buffer, including in a case such as this where damages are to be determined pursuant to the Civil Liability Act, when the impact of the injury upon the economic benefit from exercising earning capacity after injury is difficult to determine. In such a case, the Court still undertakes a comparison between the economic benefits the plaintiff derived from exercising earning capacity before injury and the economic benefit derived from exercising earning capacity after injury, although the difference cannot be determined otherwise than by the broad approach of a buffer: Penrith City Council v Parks [2004] NSWCA 201 (at [3]–[5]) per Giles JA; applied K’mart Australia Ltd v McCann [2004] NSWCA 283 (at [62]) per Pearlman AJA (Handley and Ipp JJA agreeing); see also Hornsby Shire Council v King [2005] NSWCA 67 (at [23]) per Ipp JA (Mason P and Brownie AJA agreeing); Leichhardt Municipal Council v Montgomery [2005] NSWCA 432 (at [33]) per Hodgson JA (McColl JA agreeing). In the latter case Mason P (at [2]) opined that “a buffer or cushion award is usually reserved to the situation where there is a smallish risk that otherwise secure employment prospects may come to an end, in consequence of the tort-related injury, at some distant time in the future”, but, with respect, the accepted wisdom appears to be that a buffer can be deployed in circumstances such as the present.

[7] The award of a buffer for future economic loss in circumstances “where earning capacity has unquestionably been reduced but its extent is difficult to assess” reflects the proposition that, to paraphrase, the want of precise evidence “does not necessarily result in non-recovery of damages”: New South Wales v Moss [2000] NSWCA 133 ; (2000) 54 NSWLR 536 (at [87]) per Heydon JA. It must also be taken into account, when considering the appellant’s complaint about the adequacy of the claims assessor’s reasons for quantifying the buffer, that the task of assessing damages for lost earning capacity is “necessarily impressionistic”; Brear v James Hardie & Co Pty Ltd [2000] NSWCA 352 ; (2000) 50 NSWLR 388 (at [49]) per Mason P (Spigelman CJ and Priestley JA agreeing).

[8] While, as Giles JA said in the Nominal Defendant v Lane (at [67]), “s 126 is presumably intended to promote intellectual rigour”, the authorities recognise that, whether in the s 126 context or when applying common law principles of assessment of damages as to future hypothetical scenarios, there is a point at which, even with the application of the requisite degree of intellectual rigour, an element of impression must be involved. The claims assessor properly arrived at this point once he had made the minimum factual assumptions necessary for the s 126 exercise. The appellant has not identified any legal error in the award of the buffer.

[9] The foregoing should not be seen as a licence to award buffers indiscriminately. Where the evidence enables a more certain determination of the difference between the economic benefits the plaintiff derived from exercising earning capacity before injury and the economic benefit derived from exercising that capacity after injury, recourse should not ordinarily be had to the award of damages for future economic loss by way of a buffer. Each case must turn on its own facts.”

214. See also Basten JA at [27]-[30] and Macfarlan JA at paragraphs [66]-[67].

215. The issue for the court is to determine whether there is appropriate evidence establishing a possibility or “smallish risk” that the plaintiff may suffer economic loss in the future as a result of a loss of capacity to earn income.

216. In my view, the plaintiff’s problems with her back which emerge or flare up from time to time and have not fully resolved are likely, on the evidence, to cause the plaintiff to avoid taking certain work at Woolworths and limit her work as a dental assistant because of the standing, twisting and bending required. The plaintiff will seek more sedate work either as an administrative clerk in the Union (where she currently works) or as a receptionist or clerk. This provides a limitation for the plaintiff and involves a reduction in my view in her earning capacity.

217. In my view, there is a clear possibility and risk that the plaintiff will suffer economic loss in the future as the result of her loss of earning capacity within the appellate authorities which I have set out. In this regard I do not accept the evidence of the defendant’s medical experts (no loss of capacity). I accept the substance of the comments of Dr Davis at page 5 (Exhibit A page 254) of his 9 August 2016 report about the difficulties which the plaintiff will face in undertaking potential work including as a dental assistant.

218. The full impact of the plaintiff’s injuries and ongoing problems and loss of capacity is difficult to determine. It is likely, in my view, that the assistance of a physiotherapist and the strengthening program following a period at a gym will assist the plaintiff. However, in the light of the evidence, in my view the economic effect of the plaintiff’s reduced earning capacity cannot be properly compensated other than by adopting the broad approach of a buffer which is of course necessarily impressionistic. Taking all of the evidence into account in my view it is appropriate to allow the amount of $60,000 by way of a buffer. This takes into account the age of the plaintiff, the uncertainty of result of the core strengthening programme and the physiotherapy advice, the fact that discomfort and pain is still being experienced several years after the accident, the plaintiff’s reasonably strong work ethic in seeking work where available, the nature of work as a dental assistant, the plaintiff’s previous difficulties in some parts of her work at Woolworths, the uncertainties relating to the work at the Union and the totality of the medical evidence.

Commercial care

219. The plaintiff makes a claim for commercial care. It was agreed between the parties that the appropriate hourly rate was $35 per hour but the defendant did not concede there was any necessity for commercial care.

220. The matters relied upon by the plaintiff include:

1. Her mother's health and the unlikelihood that the mother will continue to provide gratuitous care to the plaintiff as she did when her health was better;

2. The plaintiff’s claimed difficulties with vacuuming, scrubbing and laundry; and

3. The plaintiff’s evidence about difficulties with hanging washing up and her recent use of a laundromat despite having a washing machine at her house.

221. The defendant claims that the evidence does not warrant any award. It is submitted that the plaintiff could undertake washing in smaller loads, on the evidence she has not tried a clotheshorse as opposed to hanging the washing on the line (the former being at a lower level) and the laundromat expenses are essentially a matter of convenience. The plaintiff seeks $35 an hour for two hours of commercial assistance a week for 53 years, or alternatively a buffer of $50,000. The plaintiff also seeks out-of-pocket expenses relating to the laundromat.

222. The plaintiff’s evidence is that she was able to undertake shopping: T111.34. I take into account the cross-examination of the plaintiff at T110-113. The plaintiff accepted that from about one month after the accident she has been able to do any item of housework but with some pain: T113.4; see also T113.27.

223. The medical evidence is divided. The plaintiff’s experts say that she needs domestic assistance. The defendant’s medical experts say that she does not.

224. In Miller v Galderisi [2009] NSWCA 353, the Court of Appeal said that commercial domestic assistance damages should not be awarded where there was no evidence that the gratuitous assistance being provided to the plaintiff would cease. This was effectively on the basis that there was no evidence that commercial care was necessary. The court referred at [18] to “a need for commercial domestic assistance likely to arise in the future”. See also White v Benjamin [2015] NSWCA 75 at [85]-[88] and Smith v Alone [2017] NSWCA 287 at [72]-[78]. In Smith v Alone Macfarlan JA asked the question whether commercial care was “necessary” (at [73]) and whether commercial care would be “needed in the future”: at [75].

225. Applying those principles to the present case, I do not consider that the plaintiff has established a need for commercial care and thus that damages should be awarded for the provision of commercial care. In reaching this conclusion I am not of the view that it is necessary for a plaintiff to establish a “need” for commercial care where the plaintiff can undertake domestic duties as required with substantial pain or great difficulty”. However, I am not satisfied that the evidence in the present case shows a need as claimed or to the degree alleged.

226. If I am wrong in this conclusion, I would only have allowed commercial care for a closed period of, say, three years for one and a half hours per week, having regard to the evidence.

227. I also do not regard the claim for laundry expenses as maintainable. It seems that the use of the laundromat has coincided with the worsening condition of the plaintiff's mother and is thus more a matter of household convenience.

Disposition

228. Accordingly, I would allow the following as damages:

Past out-of-pocket expenses	$710
Future out-of-pocket expenses	$9,000
Past loss of earnings	$245
Future loss of earning capacity (buffer)	$60,000
Future commercial care	$0
Total	$69,955

229. The parties should undertake a review of my calculations and bring in agreed Short Minutes of Order to reflect the damages awarded.

230. I accordingly make the following orders:

1. Judgment for the plaintiff;

2. The parties are to bring in Short Minutes of Order within seven days reflecting these reasons;

3. The defendant is to pay the plaintiff’s costs as agreed or assessed;

4. Liberty to apply within 14 days in relation to costs;

5. Exhibits to be returned in 28 days.

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Decision last updated: 28 February 2018