Davies v Nilsen

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PERSONAL INJURIES LIST

S CI 2014 06259

DIANNE DAVIES	Plaintiff
v
JUDITH NILSEN	Defendant

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JUDGE:	MACAULAY J
WHERE HELD:	Melbourne
DATE OF HEARING:	24, 25, 29 February 2016, 1, 2, 4, 7, 8, 9, 10, 11, 16, 17, 18, 21, 22, 23 and 24 March 2016
DATE OF JUDGMENT:	19 September 2016
CASE MAY BE CITED AS:	Davies v Nilsen
MEDIUM NEUTRAL CITATION:	[2016] VSC 557

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DAMAGES — Negligence — Personal Injury — Plaintiff involved in a motor vehicle accident 21 years ago — Defendant admitted liability for having negligently caused some of the plaintiff’s injuries — Court to determine the true extent of the injuries caused and sum of damages to be awarded — Causation.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Ingram with Ms M Pilipasidis	Slater + Gordon Lawyers
For the Defendant	Ms R Annesley QC with Ms R Kaye	Solicitor to the Transport Accident Commission

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

Background......................................................................................................................................... 3

Credit findings.................................................................................................................................... 8

Diane Davies.................................................................................................................................. 8
Mrs Davies (mother)................................................................................................................... 11
Importance of objective evidence............................................................................................. 13

Which injuries were caused by the motor vehicle accident?................................................... 13

Relevant legal principles........................................................................................................... 13
Records made before the 1995 motor accident......................................................................... 19
St Helena’s clinical notes.................................................................................................. 19
Michael Oldmeadow........................................................................................................ 20
St Helena’s notes (continued).......................................................................................... 21

22 November 1995 motor vehicle accident............................................................................. 21
Records made after the 1995 motor accident........................................................................... 24
Authorship of the St Helena’s clinical notes.................................................................. 24
November 1995–July 1996: St Helena’s clinical notes.................................................. 25
27 June 1996: Work stress statement............................................................................... 27
August 1996: 3 medical reports relating to stress......................................................... 30
September 1996: report of Mr Brearley.......................................................................... 35
September 1996–February 1997: St Helena’s clinical notes......................................... 36
February and March 1997: Wilks and McPherson reports.......................................... 37
March – May 1997: McPherson report............................................................................ 39
May 1997 – March 1998: St Helena attendances............................................................ 41

Summary for 1995, 1996 and 1997............................................................................................. 42
March 1998 – November 1999.......................................................................................... 44
19 November 1999: Report of Associate Professor Jeffrey Rosenfeld...................... 49
23 November 1999 – 16 June 2000................................................................................... 50
Dr John Lloyd report 16 June 2000.................................................................................. 51
June 2000 – 23 February 2001........................................................................................... 52
February and March 2001: reports of Dr Stewart and Dr Vivian................................ 53

Analysis and conclusions to 2004............................................................................................. 55
Medical reports after 2004......................................................................................................... 57
Mr Kiellerup....................................................................................................................... 57
Dr John Merory.................................................................................................................. 57
Mr Brazenor........................................................................................................................ 58
Dr Pastore........................................................................................................................... 58
Dr Paul Verrills.................................................................................................................. 59
Dr Ian McPherson.............................................................................................................. 60
Dr Penny Gaskell............................................................................................................... 63
Dr Leonard Rose................................................................................................................ 65
Dr Peter Blombery............................................................................................................. 65
Mr Roger Westh................................................................................................................. 67
Mr Andrew Hardidge....................................................................................................... 67
Mr Ian McLean................................................................................................................... 67
Mr Brownbill...................................................................................................................... 70
Dr Robert Hjorth................................................................................................................ 71
Mr Russell Miller............................................................................................................... 73
Dr Kevin Fraser.................................................................................................................. 79

Evidence of psychiatric injury.................................................................................................. 81
Associate Professor Peter Doherty.................................................................................. 81
Dr Hickingbotham............................................................................................................. 83
Dr Michael Epstein............................................................................................................ 84
Dr Nathan Serry................................................................................................................. 87

Conclusions.................................................................................................................................. 90

Would any pre-existing condition have produced the claimed harm anyway?................... 94

Did the accident-caused injuries result in any loss of earning capacity?.............................. 95

What sum of damages should be awarded?................................................................................ 97

Assessment of damages for accident-caused injuries........................................................... 97
Assessment of damages had the disputed injuries been caused by the accident............ 98

Conclusion......................................................................................................................................... 99

HIS HONOUR:

Introduction

From a motor vehicle collision 21 years ago, Dianne Davies (the plaintiff) claims to have suffered injuries that have robbed her, and for the foreseeable future will continue to rob her, of any work capacity and any meaningful quality of life. Liability for having negligently caused her some injury was admitted by the defendant driver, Judy Nilsen. In this proceeding, the essential questions are: what is the true extent of the injuries caused in the collision and what sum of damages should be awarded for them?

Ms Davies was 24 years old at the date of the collision, 22 November 1995. At the date of trial she was 45 years old. Other than for a period of about seven months immediately following the accident, during which she continued her pre-accident employment as an office administrator, she has not been in any full time employment since. In an endeavour to demonstrate that, despite the accident, Ms Davies has maintained a continuing work capacity, the defendant has emphasised evidence that Ms Davies participated in various clairvoyant reading businesses, and made and sold hand-made jewellery in the years since the accident.

More fundamentally, the defendant launched a sustained challenge to the proposition that Ms Davies’ most debilitating and disabling present-day conditions are the product of the motor vehicle collision. The defendant argued that the only injuries suffered by Ms Davies in the collision were minor, short lived and have had no lasting effect either in terms of impacting her work capacity or enjoyment of life.

According to Ms Davies, her list of accident-caused conditions include an organic left knee injury which will likely require a total knee replacement. In turn, the favouring of her left knee and leg has caused right knee symptoms. A separate complex regional pain syndrome condition (previously known as ‘reflex sympathetic dystrophy’) has evolved in the left knee and lower limb. She says she has continued to suffer intermittent upper thoracic and cervical spine symptoms referring pain to her shoulders as well as causing regular headaches and migrainous pain. She also claims to suffer constant variable lumbar spinal injury with some referred pain. Her chronic pain also forms the basis of a claimed somatic symptom disorder (previously known as ‘chronic pain syndrome’). Additionally, she suffers a major depressive disorder, secondary to her physical symptoms, with anxiety, agoraphobia and traumatisation features. Ongoing use of high dosages of narcotic and other medications prescribed to deal with her physical and psychiatric injuries have led to further problems of chronic nausea and constipation.

Of this array of symptoms and injuries the defendant only concedes some transient cervical and upper thoracic spine and left shoulder injuries as a consequence of the accident. None of those are accepted as having had any ongoing effects from about 18 months or so following the accident.

As for the remaining ‘disputed’ injuries, the defendant’s position is multifaceted. First, she disputes the diagnosis of some of those injuries. Secondly, she argues that some of Ms Davies’ injuries are actually attributable to a pre-existing chronic fatigue syndrome and a personality vulnerability, combined with another event that closely followed the motor vehicle accident. That other event occurred when Ms Davies ceased her employment as an office administrator in June 1996 for which she received psychological treatment and brought a WorkCover claim for the stress it induced. Thirdly, the defendant submits that even without the motor vehicle accident Ms Davies would, at least to some degree, have suffered the same harm for which she now seeks compensation.

The parties agree that the effect of s 93 of the Transport Accident Act 1986 (Vic) is that Ms Davies is not entitled to any damage for pecuniary loss for the first 18 months following the collision. Even so, the ambit of the dispute is revealed by each party’s final position as put to the court. Ms Davies submitted that her pecuniary loss through to the age of 67 is to be assessed in the vicinity of $1.5 million with non-pecuniary damages to be ‘not less than’ $400,000. The defendant submitted that, on the evidence, Ms Davies is not entitled to any damage for pecuniary loss. Further, she submitted that any non-pecuniary damages, being only for minor injuries that have long since ceased to produce any pain or suffering, should be very modest indeed.

So, the questions to be determined are these:

(a) Which if any of Ms Davies’ disputed injuries were caused by the motor vehicle accident (ie. left knee injury, complex regional pain syndrome, lower back injury, somatic symptom disorder, psychiatric illness and the physical effects of the prescribed medication)?

(b) To what extent, if at all, would any pre-existing condition or illness affecting Ms Davies have produced some of the claimed harm regardless of the accident?

(c) Have the injuries caused by the motor vehicle accident caused Ms Davies to suffer any and if so what loss of earning capacity?

(d) What is the appropriate sum of damages to compensate Ms Davies for pecuniary and non-pecuniary loss?

Background

I will state briefly, without elaboration or discussion, the relevant landmark events and periods in Ms Davies’ history. In due course I will return to particular parts of the history in greater detail.

At the age of about eight, Ms Davies contracted infectious mononucleosis (glandular fever).

She left school part way through year 12 (1988), then aged 17, due to fatigue and exhaustion.

For a period of about 18 months/two years after leaving school she worked in a succession of jobs in secretarial and accounts roles: for an accounting firm, a legal firm and then for Colonial Mutual, ceasing her last employment due to fatigue.

In April 1990, her general practitioner gave her a certificate to be off work for four months and referred her to Mr Michael Oldmeadow, a physician who specialised in the treatment of chronic fatigue syndrome. She was apparently diagnosed with that condition.

In October 1990 she was involved in a motor vehicle accident at Bairnsdale when the car in which she was a passenger rolled over.

Sometime in about 1992 or 1993, having only worked for limited hours a day at her father’s petrol station up till then, she resumed various full time employments: first as an integration aide at a primary school, then as an assistant bursar at another primary school, then at a pet shop and then as a nanny.

In mid-1994 she obtained work at Centari Systems, a computer-supply business in Box Hill. She began as a receptionist and, in October 1995, was appointed as office administrator. All the while, she was living with her parents. It was not until later, in December 1998, then aged 22, that she moved out of home into her own accommodation.

On 22 November 1995 she was involved in the motor vehicle collision the subject of this proceeding. She attended her local medical clinic, St Helena Mediplex in Diamond Creek (‘St Helena’s’), on 23, 27 and 29 November and on 5 December 1995, and was referred to physiotherapy. She was off work with medical certificates for approximately two weeks.

She continued working at Centari Systems from December 1995 until Monday 24 June 1996. On that day she had a confrontation with her employer, and left work never to return. She went directly to her doctor with symptoms of stress, fatigue and nausea.

On 27 June 1996 Ms Davies made a statement to a WorkCover investigator, Mr Topp. She later commenced a claim through a solicitor, Mr Cottier, for compensation with respect to the termination of her employment. In the second half of 1996 she saw a Dr Shan (a psychiatrist engaged by WorkCover) for assessment of claimed work-induced stress, and a Mr Wilks, a psychologist, for her own treatment purposes.

In or about May 1997 Ms Davies’ WorkCover claim was settled for a figure of $18,775 being weekly compensation for 44 weeks of salary covering the period from 24 June 1996 to 27 April 1997.

Thereafter, Ms Davies did not return to any form of full time employment other than one two-week attempt as a receptionist for an optometrist. Otherwise, from time to time, she obtained occasional work (as described later in more detail) performing clairvoyant readings and she also made and sold (mostly online) some handmade jewellery.

From 1997 onwards she continued to attend St Helena’s for treatment of illness and injury, was prescribed medication and was referred, from time to time, to various specialist medical practitioners.

Her father died in 2002. In September 2005 she returned to live at home with her mother. She has remained living with her mother ever since, attending doctors, undertaking some casual clairvoyant activities and jewellery making, but otherwise not in any full‑time employment.

In September 2013 she failed in her application before a County Court Judge for leave to make a claim for common law damages in respect of her 1995 motor vehicle accident. In November 2014 the Court of Appeal overturned that decision[1] and the writ in this proceeding was issued a fortnight later.
[1]Davies v Nilsen & Transport Accident Commission [2014] VSCA 278.

On 26 October 2015 J Forrest J allowed an application under s 23A of the Limitation of Actions Act 1958 (Vic) for an extension of time within which to commence the proceeding.[2]
[2]Davies v Nilsen [2015] VSC 584.

At trial, apart from her own evidence, Ms Davies called evidence from her mother, Mrs Jeanette Davies, and from Senior Constable Peter Collyer, a police officer who attended the 1995 motor vehicle accident. In addition, she called the following treating doctors:

(a)Dr Penny Gaskell, a general practitioner at St Helena’s who treated her from 2004 onwards;
(b)Dr Melanie Tait, a general practitioner from St Helena’s who treated her from 2014 onwards;
(c)Dr David Hickingbotham, psychiatrist, who treated Ms Davies between December 2011 and 2016; and
(d)Ms Ava Thorpe, mental health consultant, who has provided community outreach nursing to Ms Davies in liaison with Dr Hickingbotham since 14 August 2012.

Ms Davies also called the following medico-legal specialists:

(a)Dr Peter Blombery, physician, who first saw Ms Davies in June 2010;
(b)Dr Michael Epstein, psychiatrist, who first saw Ms Davies in April 2010;
(c)Dr Robert Hjorth, neurologist, who first saw Ms Davies in October 2012;
(d)Mr Ian McLean, orthopaedic surgeon, who first saw Ms Davies in May 2012;
(e)Mr Russell Miller, orthopaedic surgeon, who first saw Ms Davies in July 2013;
(f)Dr Nathan Serry, psychiatrist, who first saw Ms Davies in August 2013; and
(g)Dr Joseph Slesenger, occupational physician, who first saw Ms Davies in December 2015.

Reports from numerous other treating doctors were tendered without the doctor being called to give evidence. Those doctors were Mr Michael Oldmeadow (physician), reports 1990 and 1991; Mr Robert Wilks (psychologist), reports 1996 and 1997; Dr Ian McPherson (general practitioner at St Helena’s), reports 1996, 1997, 1998 and 2007; Associate Professor Jeffrey Rosenfeld (neurosurgeon), report 1999; Dr John Lloyd (neurologist), report 2000; Ms Mary Stewart (physician), report 2001; Mr David Vivian (musculoskeletal physician), report 2001; Mr A Kiellerup (orthopaedic surgeon), reports 2004 and 2005; Dr John Mellory (neurologist), reports 2005, 2006 and 2007; Dr Tony Pastore (psychologist), reports 2007 and 2010; Dr Paul Verills (pain medicine specialist), reports 2007, 2008 and 2011; Mr Roger West (orthopaedic surgeon) report 2010; and Dr Leonard Rose (pain specialist), reports 2010 and 2013.

It is evident from the above list that there was no oral evidence given by any doctor or health professional who treated Ms Davies before 2004, at least eight years after the accident.

Several of Ms Davies’ treating medical practitioners were neither called nor were any reports from them obtained. The defendant was critical of the plaintiff’s failure to give any explanation why these medical practitioners were not called. They were Dr Gary Rose and Dr Alan McLeary, both general practitioners at St Helena’s who were among the doctors who treated Ms Davies in the first few years after the collision; Ms Moore, the physiotherapist who treated Ms Davies in the days immediately following the collision; and Mr Christopher Thien, a neurosurgeon who is mentioned in clinical notes as having ordered an MRI for Ms Davies in or about November 1998.

Although medical reports from him were obtained, Dr Ian McPherson died before trial. As will be seen, he was Ms Davies’ principal treating general practitioner before and after the accident. His unavailability to explain apparent differences in his reports, and between his reports and his clinical notes, was unfortunate.

The defendant called two medico-legal specialists:

(a)Dr Kevin Fraser, rheumatologist, who saw Ms Davies in January 2016; and
(b)Associate Professor Peter Doherty, psychiatrist, who also saw Ms Davies in January 2016.

Credit findings
Diane Davies

The trial proceeded for some 18 days. I observed Ms Davies closely in the witness box and generally throughout the hearing. She gave evidence over a period of about four days. I watched her walk to and from the witness box on many occasions either at the commencement of a morning or afternoon session or during other breaks in evidence. Ms Davies demonstrated considerable pain and discomfort at times, grimacing and sometimes making audible sounds suggesting pain. Still, on other occasions she could sit for quite lengthy periods of time without too much evident discomfort at all. She varied between being a little disassociated, to being very engaged and animated. She was almost always articulate, and she was generally polite. She seemed to have no real difficulty understanding questions. At times she would give a very long-winded answer to a direct question and needed reminding to come back to the point.

But, contrary to the claimed memory deficits brought about by the high levels of her medication, she purported to be able to recall minute details of the medications she had taken each day over preceding days. She also purported to recall events of pain, visits to shops, visits to particular doctors, etc, over many years. At other times she dismissed questions, saying she was unable to recall. What was most surprising was not the things she could not recall, but the things she could. They almost always related to incidents of pain, or injury, or illness, or a doctor's consultation.

On the whole I found her to be somewhat extravagant in her descriptions of things, particularly her pain. Indeed, she was fond of saying that she tended to 'embellish' when it came to describing anything positive in her life, say on social media, in order to present a positive picture to the world. In my view, when giving evidence about her lifestyle, she also tended to embellish her account in order to present the most negative picture of her injuries. At least, she was not willing to leave any stone unturned when it came to describing her pain and limitations. In fact, I gained the impression on a number of occasions during her evidence that she was most animated and engaged when talking in detail about her daily medications, her pain, those parts of the body that experienced pain, and what she had told doctors about herself and what doctors had said to her.

Sadly, I gained the impression that her illness was her obsession. It had become her life. In many respects this is understandable: someone with the disabilities and pain that she appears to have suffered over such a long time would likely become completely absorbed by the experience and management of it. Even more so while litigation concerning her injuries is pending and occurring. But it raised the question whether she had always been like this. That is, whether, even before the accident as well as since, she has been absorbed by everything and anything to do with her state of health and well-being.

To her tendency to embellish needs to be added her tendency to reconstruct or to give an account based upon what her doctor or a family member recalled rather than what she could recall.[3] It was hard to work out whether her reconstruction was conscious or simply the product of having been absorbed by this illness narrative, and its possible origins, for so long, and having been asked on so many occasions to recount it and describe it.
[3]For example, she told the court the settlement of her WorkCover claim in 1997 was for around $8,000, whereas in fact she believed it to be around $18,000. Her initial evidence, she said, was based upon what her family kept telling her: compare T157 with T446. As described elsewhere in these reasons, she gave evidence of the accident scene according to a version given to her by others. Further, as reported below [194] as at 2000 she took her mother to medical appointments to provide aspects of her own history, which she felt she would have forgotten.

For example, it was quite critical to understand the early symptoms she suffered and reported to her doctors. Apart from Ms Davies’ account, for those things there are the only relatively sparse and difficult-to-read handwritten clinical notes from St Helena’s to go by. Where the notes do not corroborate her present version, she maintains that the doctors must have been mistaken or not comprehensive in their note-taking. That is a possibility, but in some quite important respects those notes, taken over a long period, either did not support or were inconsistent with her account.

For example, Ms Davies insisted that her first consultation after the accident was with Dr Gary Rose and her second was with Dr Ian McPherson. Neither account accords with the handwritten, contemporaneous notes. The first consultation was with neither Dr Rose nor Dr McPherson, but some unidentified doctor, and the second, third and fourth consultations seem to have been with Dr Rose. Dr McPherson appears not to have seen her until March 1996, some 4 months later.

These issues are not merely inconsequential. When so much depends on the accuracy of the timing of when her complaints of particular symptoms emerged, to have mistaken when she first saw a particular doctor to give a complaint tends to shake one’s confidence in her reliability in giving an account of when symptoms first occurred and were reported.

But some aspects of her evidence suggested something more serious than mere reconstruction. One concerned the evidence she gave to the WorkCover investigator, Mr Topp, in a statement made to him on 27 June 1996. It is plain that, for the purpose of her work related stress claim, she gave an account of her recent history at work as one that had been untroubled by any physical limitation due to her car accident in 1995. And, whereas she gave evidence in this proceeding that she had had time off work in about May 1996 for back symptoms arising from her car accident, she told Mr Topp that her time off was for the flu. In cross-examination before me, she admitted that she had been ‘… maybe downplaying the fact that I’d had – I’d been cutting my days short and – and so on …’[4]
[4]T 385.

Further, although Ms Davies first admitted having been in possession of the WorkCover statement and acknowledged that she had made it, she later said in re-examination:

To be honest, I don’t really remember seeing it [the statement] until it was presented to me by the defence last week.[5]

[5]T 607.

Unfortunately, having heard all of her evidence, on the issue of what were her real symptoms at specific times I felt that either Ms Davies had no reliable recollection or she was prepared to say whatever was most helpful for the particular claim at hand whether or not that stemmed from actual recollection. Perhaps that may be explained by a natural desire to pin responsibility for life’s misfortunes on some tangible event. Either way, I treat her account with real caution.

For a combination of reasons, I am sceptical about accepting Ms Davies’ account of matters where it is not corroborated by objective evidence. That combination of reasons includes:

·her tendency to embellish and re-construct,
·the distortions in memory that are likely to have crept in due to lapse of time,
·the distortions in memory from the long term effects of massive pharmacological intake, and
·an inclination to try to attribute her troubles in life to some external event.

Mrs Davies (mother)

I found Mrs Davies to be generally straightforward and candid when giving her evidence. But, I have no doubt that she would like to see her daughter succeed in this claim. Which caring mother would not?

Mrs Davies, herself elderly and not in good health, has given a significant part of her later years to caring for her invalid daughter. They have lived together for a long time. Mrs Davies has attended many of her daughter’s medical appointments. It would be incongruous if Ms Davies and her mother have not discussed at length their individual recollections of significant events relating to the accident and subsequent injuries.

Of course, this reality could be an argument for supporting the consistency and likely reliability of their accounts. But, in my view, it provides a very plausible basis for reinforcement of a false memory about important matters of detail.

One important matter of detail was the timing of an event that Mrs Davies described relative to the occurrence of the accident. Mrs Davies gave evidence of her daughter waking up one night with terrible, shooting pain in her left knee saying it was like ‘electric shocks and pains shooting’.[6] Mrs Davies said her daughter was in so much pain she came into her bedroom and woke her and her husband for assistance. Although Ms Davies did not herself refer specifically to that incident, she described having been woken at night in tears with ‘nerve pain’ and banging her knee against the wall. She said this occurred while she was still working at Centari Systems.
[6]T833.

Mrs Davies insisted that the incident she described occurred within days of the accident. If so, that timing tended to support some serious pathology to the knee as a consequence of the accident. As will be seen, the pathology of the left knee is potentially a pivotal linking factor between the accident and many of the conditions that seemed to account for Ms Davies’ debilitated state years later. But if such a dramatic and serious symptom did commence within days of the accident, it is surprising, to say the least, that it gets no mention in any contemporaneous clinical note or medical report. Nor does any reference to it surface for months if not years after the accident.

I am not satisfied that Mrs Davies retains an independent and reliable recollection, in 2016, of the timing and sequence of events surrounding her daughter’s complaints of specific symptoms back in 1995, 1996, 1997 etc. So, on those critical matters of timing of the occurrence of symptoms, I am not prepared to regard Mrs Davies’ recollection as necessarily corroborative of her daughter’s account where her recollection does not sit comfortably with other objective evidence. In Mrs Davies’ case, my lack of conviction stems not so much from any doubt as to her sincerity, but rather as to the reliability of her recollection of events that took place so long ago.

Importance of objective evidence

It follows that in this case I shall pay particularly close attention to the contemporaneous records of events which are mostly found in medical notes, contemporaneous medical reports of doctors, relevant claim forms and related documents.

Concerning medical notes, I heed the warning sounded by the Court of Appeal in Philippiadis v Transport Accident Commission[7] that courts need to exercise care in relying upon the records of medical practitioners. I accept that, as in this case, records may only contain a selective summary in the doctor’s own words of what a patient tells the doctor and should not be treated as a verbatim transcript of the entire medical attendance. So much is obvious from many of the notes which I will summarise shortly. But as the Court of Appeal said, very often such clinical notes constitute highly probative evidence because they are independent and contemporaneous. Even more so when what is relied upon is not merely a single or only a few attendance notes, but notes taken over a lengthy continuous period of time. As the Court said:

… it would be very unusual for the patient not to mention…[the later claimed] consequences and for the practitioner’s clinical notes not to refer to them over a lengthy continuous period of time.
[7][2016] VSCA 1 [105]-[106].

Which injuries were caused by the motor vehicle accident?
Relevant legal principles

Neither party suggested that questions of causation in this case should be governed by the statutory formulation of the test to be found in Part X of the Wrongs Act 1958. No doubt that is because the accident, and the first occurrence of any damage from it, occurred in 1995 well before the enactment of Part X in 2003. That being so, the question of causation falls to be determined upon common law principles.

A succinct statement of the elements involved in the question of causation in the common law of negligence is to be found in Wallace v Kam[8] in which the High Court explained the law before the introduction of the statutory formulations. The Court (French CJ, Crennan, Kiefel, Gageler and Keane JJ) said:

The common law of negligence requires determination of causation for the purpose of attributing legal responsibility. Such a determination inevitably involves two questions: a question of historical fact as to how particular harm occurred; and a normative question as to whether legal responsibility for that particular harm occurring in that way should be attributed to a particular person. The distinct nature of those two questions has tended, by and large, to be overlooked in the articulation of the common law. In particular, the application of the first question, and the existence of the second, have been obscured by traditional expressions of causation for the purposes of the common law of negligence in the conclusory language of “directness”, “reality”, “effectiveness” and “proximity.” [9]

[8](2013) 250 CLR 375 (‘Wallace’).

[9]Ibid 381 [11] (citations omitted).

If the issue in this case was governed by the statute, one would need to separately consider the elements of factual causation (using the counterfactual ‘but for’ test) and the normative question (referred to in the statute as ‘scope of liability’).[10] As seen in the above passage, those same issues are inherent in the common law. The common law approach to causation was explained by the High Court in March v Stramare (E & MH) Pty Ltd.[11] In March Mason CJ explained the incorporation of the factual and normative elements of causation.[12] I will venture a short summary of that explanation:
[10]See s 51 Wrongs Act 1958 (Vic).
[11](1991) 171 CLR 506 (‘March’).
[12]March (1991) 171 CLR 506, 515-16.

· What is the cause of a particular occurrence is a question of fact that must be determined by applying common sense to the facts of each case.

· Although the but-for test plays an important role as a negative criterion of causation, it is not to be applied as an exclusive criterion: in determining factual causation, its application can give rise to unacceptable outcomes where multiple acts lead to the harm.

· Where the application of the but-for test yields unacceptable results, the test must be tempered by making value judgments and incorporating policy considerations.

The present case is not one in which there are any new or novel circumstances to be considered.[13] Neither is it a case in which the contribution of any one factor amongst the cumulative operation of factors leading to harm is unascertainable, nor is it one where, due to the limits of medical knowledge, it can only be said that the defendant’s negligent conduct materially increased the risk of harm.[14] So, it is neither necessary nor appropriate to consider normative values or policy matters. I add, neither party suggested I should.
[13]Compare Wallace (2013) 250 CLR 375 at [22] and [23].
[14]Strong v Woolworths Ltd (2012) 246 CLR 182, 193-4 [25].

Thus, the question for me in this case is essentially one of factual causation: that is, but for the motor car accident would Ms Davies have suffered the harm which she now claims to have suffered? As I have already identified, the ‘harm’ which Ms Davies claims to have suffered has numerous aspects and facets some of which are interconnected. It will be necessary to look at each element of harm and inquire whether there is any evidence of that particular harm existing before the accident; whether any other factors for which the defendant was not responsible would have brought about that harm without the accident; and, if so, whether the accident might nonetheless have aggravated or accelerated the harm.

Other well-known principles must be borne in mind:

(a) To establish liability, the tortious defendant’s conduct need not be proven to be the sole cause but only to have materially contributed to the harm;[15]

(b) The onus lies upon the plaintiff to prove the counterfactual scenario, namely that ‘but for’ the negligent conduct, the harm would not have occurred;[16] and

(c) As with other elements of proof, the plaintiff need prove factual causation on the balance of probabilities.

[15]March (1991) 171 CLR 506, 514.

[16]I.C.I.A.N.Z. v Murphy (1973) 47 ALJR 122, 127-8 (Menzies J).

The defendant argued that some (in fact most) of Ms Davies’ past and present disabilities are traceable to causes other than the accident-caused injuries, and that Ms Davies would have suffered her disabilities even without the accident. Some of those other causes were said to be pre-existing conditions (CFS, depression and predisposition to knee-joint arthritis) which continued to operate beyond the accident. Another (workplace stress) was an event which came into existence after the motor car accident but it operated in combination with the pre-existing conditions of CFS and depression.

In Watts v Rake[17] Dixon CJ dealt with these kinds of situations saying:

If the disabilities of the plaintiff can be disentangled and one or more traced to causes in which the injuries he sustained through the accident play no part, it is the defendant who should be required to do the disentangling and to exclude the operation of the accident as a contributory cause. If it be the case that at some future date the plaintiff would in any event have reached his present pitiable state, the defendant should be called upon to prove that satisfactorily and moreover to show the period at the close of which it would have occurred.

[17]Watts v Rake (1960) 108 CLR 158, 160 (‘Watts’).

In Purkess v Crittenden[18], the High Court (Barwick CJ, Kitto, Taylor JJ) further explained Watts:

We understand that case to proceed upon the basis that where a plaintiff has, by direct or circumstantial evidence, made out a prima facie case that incapacity has resulted from the defendant's negligence, the onus of adducing evidence that his incapacity is wholly or partly the result of some pre-existing condition or that incapacity, either total or partial, would, in any event, have resulted from a pre-existing condition, rests upon the defendant.

…
It was, in effect, pointed out that it is not enough for the defendant merely to suggest the existence of a progressive pre-existing condition in the plaintiff or a relationship between any such condition and the plaintiff's present incapacity. On the contrary it was stressed that both the pre-existing condition and its future probable effects or its actual relationship to that incapacity must be the subject of evidence (i.e. either substantive evidence in the defendant's case or evidence extracted by cross-examination in the plaintiff's case) which, if accepted, would establish with some reasonable measure of precision, what the pre-existing condition was and what its future effects, both as to their nature and their future development and progress, were likely to be.

[18]Purkess v Crittenden (1965) 114 CLR 164, 168 (‘Purkess’).

In Selstam v Ghaleb,[19] Ipp J (Mason P agreeing) considered the impact of the reasoning expounded in cases such as Malec v JC Hutton Pty Ltd[20] upon these principles. His Honour first summarised the relevant Malec principles at [103]:

Therefore, according to Malec:
(a) In the assessment of damages, the law takes account of hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring.
(b) The court must form an estimate of the likelihood that the alleged hypothetical past situation would have occurred.
(c) The court must form an estimate of the likelihood of the possibility of alleged future events occurring.
(d) These matters require an evaluation of possibilities and are to be distinguished from events that are alleged to have actually occurred in the past, which must be proved on a balance of probabilities.

[19][2005] NSWCA 208.

[20](1990) 169 CLR 638 (‘Malec’).

Having done so, his Honour then considered their application to the Watts and Purkess principles from [104] – [109]:

[104] What was said in Watts v Rake and Purkess v Crittenden now has to be qualified by these principles (cf Commonwealth of Australia v Elliott [2004] NSWCA 360 at [81]). Malec has an important bearing, for example, on the way in which a court must determine whether a defendant has discharged the “disentangling” evidentiary burden on it of showing that part of the plaintiff’s condition was traceable to causes other than the accident and that, had there been no accident, the plaintiff would have suffered disability from his pre-existing condition.
[105] Where a defendant alleges that the plaintiff suffered from a pre-existing condition, the evidential onus as explained in Watts v Rake and Purkess v Crittenden remains on the defendant and must be discharged by it. Nevertheless, to the extent that the issues involve hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring, the exercise of “disentanglement” discussed in those cases is more easily achieved. That is because the court is required to evaluate possibilities in these situations — not proof on a balance of probabilities.
[106] Without intending to give an exhaustive list of possibilities, it may be that, had the defendant’s negligent act not occurred, a pre-existing condition might have given rise to the possibility that the plaintiff’s enjoyment of life and ability to work would have been reduced and to a susceptibility to further injury; in addition, other causes entirely unrelated to the defendant’s negligent act might have contributed to the plaintiff’s ultimate condition.
[107] Appropriate allowances must be made for these contingencies. A proper assessment of damages requires the making of a judgment as to the economic and other consequences which might have been caused by a worsening of a pre-existing condition, had the plaintiff not been injured by the defendant’s negligence. A pre-existing condition proved to have possible ongoing harmful consequences (capable of reasonable definition) to the plaintiff, even without any negligent conduct on the part of the defendant, cannot be disregarded in arriving at proper compensation.
[108] As was pointed out in Newell v Lucas [1964-5] NSWR 1597 (at 1601 per Walsh J, with whose judgment Hardie and Asprey JJ agreed), the court must determine whether a comparison may be made between the plaintiff’s condition prior to the injuries sustained by the defendant’s negligence (including the plaintiff’s economic and other prospects in that condition) and the plaintiff’s condition and prospects after the injuries. Nothing in Watts v Rake and Purkess v Crittenden precludes the judge from carrying out this exercise.
[109] Of course, if the evidence does not adequately establish the pre-existing condition or its possible consequences (as was the case in Purkess v Crittenden), it would not be possible to carry out such a comparison and assessment. In regard to the possible consequences, a scintilla of evidence would not suffice. The evidence must be such that a reasonable person could draw from it the inference that the possible consequences contended for by the defendant existed (see McCormick, Evidence, 5th ed, para 338, p 511).

This reasoning was expressly approved by the Victorian Court of Appeal (Osborn and Beach JJA) in Smith v Gellibrand Support Services Inc.[21]
[21]42 VR 197, 215 [71]–[73].

So, in view of these principles and the issues between the parties, I should approach the evidence with the following purposes in mind, namely to:

(a) decide whether Ms Davies has discharged her onus to satisfy me, on the balance of probabilities, that without the motor vehicle accident she would not have suffered each of the disputed injuries or the financial consequences of her inability to undertake gainful employment due to the disabilities that flow from them;

(b) consider the evidence of any pre-existing illness or condition said to account for some or all of Ms Davies’ disputed injuries;

(c) assess the degree of possibility (ie. the chance) that, due to a pre-existing illness or condition, she was going to suffer the same disabilities and financial harm of which she now complains even without the motor vehicle accident; and

(d) in so far as I am satisfied that but-for the accident Ms Davies would nonetheless have suffered some or all of her disputed injuries due to a pre-existing condition, but not to the same degree or not so soon, assess the extent to which the accident aggravated or accelerated that pre-existing condition.

With these principles and purposes in mind, I turn to the evidence.

Records made before the 1995 motor accident

Because of the caution with which I approach the recollection of Ms Davies and Mrs Davies about the nature of the symptoms and the time they were experienced, and yet the significance of those features in determining what injuries were probably caused by the accident, I propose to closely analyse the chronological records of Ms Davies’ medical history. I will first focus on those made before the accident and for about the first five or six years after the accident. I will then turn to the, mostly, medico-legal reports which were obtained thereafter.

St Helena’s clinical notes[22]

[22]Exhibit 2.

The clinical notes of St Helena’s made prior to the accident show that Ms Davies had protracted glandular fever in 1979 when she was aged 8. Chronic fatigue syndrome is noted at having commenced when she was aged 18 (i.e 1988).

Notes of appointments at the clinic during 1989 and 1990 reveal, variously, that she suffered symptoms of nausea, headaches, throat problems, a cough, and diarrhoea. Specifically, on 17 April 1990 reference was made to ‘back pains’ and ‘immune system problems’. An arrow pointing to the name ‘Michael Oldmeadow’ suggests that Ms Davies was referred to him at about that time. (Mr Oldmeadow’s first report was on 11 October of that same year). Additionally, on 26 April 1990 a note indicates that a certificate was given for Ms Davies to be off work for four months.

On 7 October 1990 a note records the occurrence of a motor vehicle accident where a car rolled, with ‘soft tissue’ noted. Presumably this is the accident which Mr Oldmeadow refers to as the ‘Bairnsdale accident’ in his report of four days later mentioned below.

Michael Oldmeadow

As stated above, Mr Michael Oldmeadow was a physician with a special interest in chronic fatigue syndrome. Although not called to give evidence, two medical reports written by him were admitted in evidence.[23]
[23]Exhibit 26.

His first report was dated 11 October 1990 when Ms Davies was then aged 19, about two years out of school. He referred to the ‘Bairnsdale accident’ which had just occurred, stating that Ms Davies had been ‘shaken ... [but had] come out satisfactorily’. He wrote that, at that stage, she had been suffering nausea but had stopped her medication. He said she was ‘improving’ but slept only five hours a night. Her recovery had been quicker than she expected over the last nine months, he reported. He did note she needed to be pushed to set goals. She had been working at her father’s business. He made a note that she tended to ‘give into things a little’. But he felt she was moving in the right direction and he wished to see her again in two months.

His next report was dated 14 February 1991 when Ms Davies was then aged 20. He thought she needed ‘further firm directions for the coming year’. She was working 2.5 to 3 hours a day at the service station after having had a lengthy holiday. Again, he thought she was ‘giving in’ to symptoms of tiredness and minor discomfort and that it was ‘going to be hard work getting Diane back to a full program’. He reported that ‘whatever element of organic fatigue there may be’ there was an importance in encouraging her activity.

St Helena’s notes (continued)

Returning to the notes of the clinic, on 30 November 1990 Ms Davies was reported as feeling depressed. On 1 February 1991 the notes record that she had been to Lake Tyers, with walks and healthy food. But she was noted as having problems getting out of bed and lacking energy with increasing weight.

On 11 February 1991, ‘pain in back’ was noted and, on 13 March, ‘bilateral hip pain’ with a query whether to refer to Mr Oldmeadow again if necessary.

Overall, between November 1989 and March 1991 (a 16 month period) the notes record 24 attendances. By contrast, in the next 12 month period (April 1991 – March 1992) there were two recorded attendances and only three recorded attendances in the further 12 month period between April 1992 and March 1993 (although there may be some pages missing). It is not clear whether there were any attendances between April 1993 and March 1994 or whether some pages were simply missing. Between April 1994 and March 1995 there were seven attendances and another seven attendances in the further 12 months between April 1995 and March 1996.

If these figures are correct then there was certainly an unusually concentrated period of attendances for the 16 months between November 1989 and March 1991, with comparatively few over the next four and a half years before November 1995. Of those attendances after 1991, in 1992 and 1994 (there being no entry for 1993) the attendances referred to recurrent bowel and vomiting issues, with vomiting sometimes associated with coughing and bronchial symptoms.

There was virtually nothing recorded in 1995, apart from a sprained ankle in March, until the November accident.

22 November 1995 motor vehicle accident

Ms Davies’ account of the circumstances of the accident was not contradicted by evidence from any other witness. Although she prevaricated about the precise location of the collision, little turns on that issue other than it instanced an occasion when she was prepared to give evidence based upon information received from others rather than from her own recollection. The general details of the collision were supported by Senior Constable Collyer and the collision report which he prepared.[24]
[24]Exhibit 8.

Ms Davies’ car had pulled up behind two stationary vehicles waiting to perform a right hand turn at an intersection in Doncaster. The defendant’s car struck Ms Davies’ vehicle from behind and another vehicle struck the rear of the defendant’s car. The force of the collision caused Ms Davies’ car to hit the car in front and, in turn, that car hit a car in front of it. In total, five cars were involved.

Each of the other cars was able to be driven away. Ms Davies’ car required a tow truck. She described the impact as ‘extremely forceful’, saying that her car was ‘written off’. She said she observed cracks between the back doors and back windscreen on both sides of the car and that the chassis was broken (which, I infer, somebody must have told her).

She said that she was wearing a seat belt. The force of the collision threw her forward, and then she was thrown back again, her head hitting the headrest of her seat. With the forward movement she said both her knees struck the air conditioning unit under the dashboard with enough force to take the skin off and to cause bruising.

She said that when she got out of the car she noticed her left shoulder was sore, her neck was sore and skin had been taken off her knees.

No ambulance was called to the scene and Senior Constable Collyer recorded there were no injuries to any person involved. The collision occurred at approximately 5.20 pm.

I accept Ms Davies’ evidence that the collision occurred as she described it and that she also experienced the pain and symptoms she described.

Ms Davies gave evidence to the court about the progress of her injuries after the accident. In summary, she gave the following account:[25]
[25]T 148-153; 248-250.

·When she ‘initially’ returned to work after the collision, she did not experience too much difficulty but then, increasingly, she experienced pain standing up and sitting down located in her low back, upper back, shoulders and neck, and ‘nerve pain’ in her knee at night which woke her up in tears so that she was getting little sleep.
·She had experienced low back pain immediately after the accident but it seemed to dissipate about a week afterwards and then return about a month after the accident. That pain has continued to the present day and it refers pain to both right and left hips and down the left leg.
·The nerve pain in the left knee began within a matter of days after the accident. It was pain which started under the kneecap almost like a tickling sensation and then it built and was almost like electricity and was ‘horrible’.
·The combination of those factors meant she was arriving late and leaving early at and from work, which adversely impacted her relations with management.
·When her employment ceased in late June 1996, it was pain in her lower back and left knee that was causing most difficulty in her ability to remain at work.
·After seeing Mr Wilks about 15 times for counselling for her work-stress, she felt much better and had no ongoing consequences from her Centari Systems termination, and following the settlement of her WorkCover claim the nerve pain in her left knee and the lower back pain which had been continuing became more of an issue.
·Compared with how it had been in 1995 and 1996, in 1997 there was a dramatic increase in the occurrence and severity of her left knee pain and lower back pain.
·In addition to the ‘nerve pain’ in the left knee she experienced another type of pain which began about five to seven years after the accident which was a crunching sensation in the knee with aches and pains which came from her hip into her left leg.
·A third kind of pain in the left leg was ‘hypersensitivity’ which did not emerge until about 2011. The hypersensitivity meant that water on her skin or the brushing of her skin with her skirt caused an experience like ‘a thousand needles or darts’[26] into her leg.
[26]As reported to Professor Doherty, Exhibit 43, p 9.

Records made after the 1995 motor accident
Authorship of the St Helena’s clinical notes

Dr Gaskell, a general practitioner who worked at the clinic from 2004 onwards, was asked to assist in identifying, if possible, the authorship of the clinical notes made in the period of nine or so years before she commenced. Over many hours of evidence, she also endeavoured to assist the court with her interpretation of what the clinical notes meant.

She could not identify the handwriting of the doctor who attended Ms Davies on 23 November 1995 but she was able to say it was not Dr Gary Rose.[27] Contrastingly, Ms Davies gave evidence that it was Dr Rose she saw on the first occasion after the accident.
[27]T 625.

Dr Gaskell was definite that the 27 November 1995 entry, for the second attendance after the accident, was made by Dr Rose.[28] The handwriting on 27 November 1995 is consistent with the author of the notes of 1 March 1995 and of 2 August 1994. Each of those appear to be signed and initialled ‘G.R.’ or ‘G. Rose’.
[28]T 627. I note that the certificate given on the 23^rd of November 1995 (exhibit 3) is on the letterhead of Dr Rose and yet it is clearly not signed by ‘G. Rose’. However, under the printed name of Gary Rose on that letterhead is a handwritten name which is obscured by a hole punch, probably the name of the doctor who actually signed the certificate (possibly, ‘Pamela … ‘). Compare also the certificates dated 28 November and 5 December 1995 in exhibit 3 which clearly are signed by Dr Rose.

Again, contrastingly, Ms Davies said the 27 November 1995 attendance was with Dr McPherson. Dr McPherson’s handwriting is distinctive. He was the treating general practitioner who first referred her to Mr Oldmeadow (cf. entry 17 March 1990 and 24 April 1990) and his handwriting does not seem to appear in the records after the motor car accident until 21 March 1996.[29]
[29]See also exhibit 3 which contains the work certificates of 21 March 1996 which are clearly signed by Dr McPherson.

Accordingly, I find that Ms Davies’ recollection was wrong both in relation to the first appointment after the accident (ie. it was not Dr Rose) and the second appointment (ie. it was not Dr McPherson).

November 1995–July 1996: St Helena’s clinical notes

Because it will be necessary to assess the significance of the lack of mention, as well as the mention, of particular symptoms, in my view it is instructive to observe the level of detail with which complaints and findings were documented in the clinical notes and medical reports following the accident.

The note of the first attendance on 23 November 1995 made by the unknown doctor contains the following:

Last night in middle of five car pile-up — two impacts. Neck V sore. Seat belt and head rest. Hit both knees. Upper back was sore. Now only neck. V tender upper thoracic spine and neck and shoulder especially see X spine. Treatment is RICE 72 hours then heat and massage.

The note of the second attendance, made in the handwriting of Dr Rose, is dated 27 November 1995. Dr Rose recorded that Ms Davies had been having massage on her neck. She had been at work that day (the Monday after the weekend). The note appears to record increased neck pain and stiffness and upper thoracic back-ache. There was left arm pain — that is in the left elbow, shoulder and hands. There was no paraesthesia but she had headaches.

On examination that day, her neck had good range of movement but restricted extension and lateral flexion. She was tender in the right and left trapezius, especially the cervicothoracic area to the left shoulder. She was tender in the distal clavicle and cervico-clavicle ligament. Reflexes, power and sensation were normal. She was sent for an X-ray of the neck, clavicle and right lower ribs. She was given Panadol and referred for physiotherapy.

On 29 November, the doctor recorded that she had concussion symptoms but X-rays were clear. She was given a work certificate to the 1^st of ‘November’ (presumably 1^st of December).[30]
[30]Exhibit 3.

On 5 December, again Dr Rose noted Ms Davies was to see (or had seen) Helen Moore (the physiotherapist). He noted she had intra-scapular pain and left shoulder pain. She was given a work certificate to a date in December, possibly the 9th.[31] On the same day, Dr Gary Rose also signed a Transport Accident Commission (TAC) form[32] referring to his examination of Ms Davies on 27 November. He described her injuries as follows:

1.        Neck pain/stiffness.
2.        Left arm brachialgia.
3.        Tender left coraco-clavicular ligament.
4.        Concussion.

[31]Exhibit 3.

[32]Exhibit 3.

On 5 December 2015 Ms Davies also signed a TAC claim form.[33] She described her injuries in that form as being:

Injuries to neck, back and left shoulder. Bruising to legs.

[33]Exhibit 1.

I here interpose that there may be real significance, one way or another, in the notations of ‘hit both knees’ and ‘bruising to legs’ in the clinical note of 23 November and the TAC form of 5 December respectively. As will be seen, there is no further record of any injury or symptom affecting Ms Davies’ legs or knees in any clinical note, work certificate, medical report or other report for a period of about 10 months, despite her reportage of other medical complaints and symptoms over that period.

On 21 March 1996 Dr McPherson noted ‘aggravation back’[34] and signed a TAC certificate in which he referred to Ms Davies’ injuries as ‘spinal dysfunction’.[35] On 1 April 1996, in the clinical notes he noted a medical attendance for ‘dorsal spine distress’ and signed a certificate for ‘dorsal spine injury’.
[34]Exhibit 2.
[35]Exhibit 3.

On 18 May 1996 Dr Catterall (whose handwriting was identified by Dr Gaskell) left clinical notes which suggested Ms Davies was suffering a cold, although she gave work certificates dated 18 May and 22 May for the period of 13 May to 17 May and 20 May to 24 May (two weeks) for ‘back pain - car accident’. Presumably those certificates were provided to the TAC.

On 5 June 1996 Dr Catterall noted ‘stress at work … boss trying to sack her’. And on 8 June the attendance was for period pain.

On 24 June 1996, Dr McPherson noted that the boss was ‘hell bent on booting her out’ and that Ms Davies was very stressed. An arrow to the name ‘Philip Cottier’, in conjunction with later correspondence, suggests that he had referred or intended to refer Ms Davies to Mr Cottier who was a solicitor.

On 1 July Dr McPherson treated Ms Davies for a viral illness and hyperactive bowel. On 22 July he referred Ms Davies to Robert Wilks, a psychologist.

On 14 August, Dr McPherson signed a certificate for Ms Davies to be off work until 23 August and he also completed a Department of Social Security (DSS) form. On 22 August, Dr McPherson saw her for a workplace certificate for the DSS and noted something about attending a conciliation.

27 June 1996: Work stress statement

As earlier stated, on 27 June 1996, three days after she left Centari Systems, Ms Davies made a statement to a WorkCover investigator, Mr R Topp.[36] She admitted in evidence having made a statement to a WorkCover investigator and that, although unsigned as produced to the court, she had signed it in that form. Although she also agreed it was a true account of what had taken place, she also said that it was made in response to Mr Topp’s questions. She said that he was not interested in anything about her previous car accident.
[36]Exhibit 5.

Her statement appears to have been made to set out the details leading up to her leaving Centari Systems on 24 June 1996, and to describe the evolution of the stress condition that she then claimed had emerged. Because of the significance that the defendant in this case attributes to the effects of Ms Davies’ termination from Centari Systems as a likely cause of her subsequent mental injury, it is important that I summarise the statement in some detail. The statement is also important for what is and is not said about the effects of the car accident.

In the four-page statement, Ms Davies described having begun work at Centari Systems as a receptionist and that the company grew rapidly with her duties increasing. After about six months she also took upon accounts-receivable duties. In September 1995 she was taken away from her receptionist duties because the accounts-receivable role was nearly an eight-hour a day job. She said she worked 9 to 5 Monday to Friday rarely taking meal breaks. It became obvious to her she needed assistance as the company grew. She said it must have been obvious to Jon (her boss) she needed assistance as he put on a temporary part time worker from about March to July 1995. In March 1995, she was given a pay rise and then another one in May 1996. She was on an incentive bonus scheme and received a $1,000 bonus and three or four $300 bonuses between January 1995 and May 1996.

She said that, before 4 June 1996, Jon had never expressed any dissatisfaction with her work.

She also recounted in her statement that when she was 19 she had suffered from chronic fatigue syndrome which affected her for about four years so she could only work part time. But, she said, she had fully recovered from it before going to work with Centari Systems. She then made this statement:

I have never had any other serious illness apart from a back injury, whiplash, and shoulder injury, sustained in a car accident in November 1995. I had been free of injury or illness since recovering from the chronic fatigue syndrome.

She described her period off work between 13 May and 24 May 1996 as having been on account of the flu (ie. not for any symptoms relating to her car accident).

She then said that when she got back to work on 27 May 1996 she was welcomed warmly by Jon and she worked on the backlog of accounts that had built up. On Monday 3 June Jon congratulated her on her work and gave her a bottle of champagne. But at 4.45pm that afternoon Jon asked her if she was happy in the company, whether she had been seeking other employment, and he detailed faults in her work performance which he said he had observed over the past nine months. She said she was stunned. When she got home she broke into tears.

The next day, 4 June, there was a staff meeting at 8.00 am during which no mention was made of her work performance. But at a further meeting with Jon at 10.00 am he gave her a memo listing areas of work where he wanted her to improve. She expressed her surprise. He said if she stayed with the company she would be on probation for three months. When she got home from work that night she was very upset and started vomiting. She did not sleep that night. The next day, 5 June, she went to Dr Catterall who put her off work for two days with stress.

She said she went back to work on 7 June 1996. She gave Jon a letter of response to his memo of 4 June. She said she had suspicions that Jon’s brother who had recently come to Australia from the USA was earmarked to take over her job. But she remained at work doing normal duties. On 19 and 20 June she was off work again suffering stress. She said although she was vomiting and nervous she had asked her doctor just to put down ‘medical illness’ on the certificate.

She returned to work on Friday 21 June. Things were normal. But on Monday 24 June, at 10.00 am, Jon called her into his office and offered to pay her $300 owing plus two weeks’ wages. Following that meeting she thought she was going to be fired and had no future in the company. She developed a headache and felt nauseous. She said ‘I was starting at that time to feel some of my old symptoms of chronic fatigue and had no energy and was suffering bowel spasms’. She left work at 1 o’clock to see Dr McPherson.

She said that ‘since that time’ (which could only have been a matter of days) her condition got worse, she had limited social life and did not drive her car except locally. She also said that prior to June 1996 she had an active social life and ‘was fit and healthy’. She attributed her stress to the heavy workload for 18 months, lack of assistance and the shock she received when she was threatened unfairly with dismissal.

August 1996: 3 medical reports relating to stress

In August 1996, three treating practitioners wrote medical reports: Dr McPherson, Dr Dush Shan (psychiatrist) and Mr Robert Wilks (psychologist).

Dr McPherson wrote on 15 August 1996 to Mr Cottier, a solicitor. It was evidently in respect of the workplace issue. Dr McPherson said Ms Davies had been managed for stress as early as 18 May 1996 when she found it difficult to complete her tasks, to concentrate, to relax and even to sleep.[37] He reported his patient was under considerable pressure to achieve ‘better than her best’. He mentioned a ‘trial counselling and review project’ which had been commenced over four consultations in the ensuing month (presumably with Dr McPherson in late May early June).[38] In late May, she apparently felt ‘very jittery’, frequently burst into tears and it was thought prudent she should take time off work. Dr McPherson then wrote the following:

‘On resuming duties 24 June 1996 the patient [was] in an acute work conflict situation with her managing director — a Mr Jon Johnston of Centari Systems. Diane reported that her boss seemed ‘hell bent on booting her out’ and because I no longer could contain the patient with counselling I arranged for her to have legal opinion to contain the situation. As the workplace seemed to cause the emotional debility I placed the patient on WorkCover in order to receive the services of a commercial and industrial psychologist so as to attain stability. Because my patient and her manager could no longer relate amicably I insisted that the manager was not to directly communicate with my patient’.

[37]This means three explanations had been given for the May medical attendances: flu, MVA back complaints, and stress — compare above at [101] and below at [128].

[38]Ms Davies gave no evidence of these ‘consultations’; there is no clinical record of it.

Dr McPherson went on to write that Ms Davies’ prognosis in the future was excellent so long as employment with Centari Systems did not continue. He thought that some psychological damage had been inflicted so sessions with a psychologist would be required to better learn to manage situations.

Robert Wilks also wrote to Mr Cottier on 19 August 1996.[39] By that stage he had consulted with Ms Davies on three occasions: 1, 7 and 16 August. At the first meeting, Ms Davies gave him a history which principally described her work at Centari Systems. Prior to her employment at Centari Systems, he merely noted that she did had not completed Year 12 due to developing chronic fatigue syndrome and had done only ‘sporadic part time work for four years whilst recovering from that disorder’. She had then worked steadily as a legal secretary and a superannuation clerk over two years.
[39]Exhibit 38.

He noted that Ms Davies joined Centari Systems in 1994. The business grew rapidly from 1994 to 1996, from four to ten staff. He reported that Ms Davies had initially been quite happy but she stated that ‘in March 1996 an incident had occurred in which Mr Johnston seemed taken aback when she explained to him that a stock control system he had proposed was not feasible’. The history continued that at 5.30 pm on 3 June she was called to a meeting with Mr Johnston who informed her that for the past nine months her work had been ‘below an acceptable standard’ and she was asked to ‘think whether you want to leave’. That night she was tearful and slept poorly. She told him she attended work the next day but was subject to sarcastic comments and later in the day was given a memo further criticising her performance. After reading it she went home, was vomiting and unable to sleep and was off work for the next two days (5 and 6 June).

According to the history, on 7 June she returned to work and continued for two weeks but was subject to ‘symptoms of crying spells, fatigue, irritability, late insomnia, poor concentration and some loss of interest in activities’. In that period she received another critical memo and sent a letter of reply. On 21 June she was called to a meeting with Mr Johnston who told her he was still not happy with her work. On 24 June she was called to yet another meeting when Mr Johnston offered her two weeks’ wages to resign. She said she became distressed, telephoned her mother, left the office and went to see her doctor.

Mr Wilks reported Ms Davies remained off work from 24 June onwards. She described her symptoms after 24 June as being:

… subject to daily crying spells, ‘constant’ fatigue, irritability, poor concentration … late insomnia, lack of interest in activities, nightly nightmares (of ‘him handing me a memo … in court fighting him and he criticises me’), tremors, tendency to weight gain, episodes of dizziness, cold sweats at night occurring three or four times a week, neck and shoulder tightness and general lack of confidence.

Ms Davies told Mr Wilks that before June 1996 she had never experienced any major emotional upset in her life. Her most stressful period had been the breakup of a four-month relationship in December 1995 when she declined to move with her partner to Sydney. She told Mr Wilks that she felt sick about any thought of returning to Centari Systems.

Mr Wilks’ opinion was she had a moderately severe anxiety-depressive disorder and there had been no hereditary, lifestyle or non-work factors playing any significant causative role. At that stage he thought she could carry out some part-time light employment administrative work at a different location but would otherwise not be fit for meaningful employment for another two to three months. Psychological treatment was needed to be pursued in the meantime.

Two days after Mr Wilks’ report, Ms Davies went to see a psychiatrist, Dr Dush Shan, who was engaged by WorkCover. His report was sent to QBE Workers Compensation. Dr Shan saw her for one hour. Available to him were Centari Systems’ memos to Diane Davies of 4 June, 7 June and 24 June 1996, a letter from Diane Davies to Mr Johnston dated 6 June 1996, a statement from Diane Davies dated 27 June 1996 (I infer, the statement taken by Mr Topp), and employee statements from Centari Systems.

Ms Davies gave Dr Shan a similar history of having commenced work with Centari Systems as she had given to Mr Wilks. She told Dr Shan that her workload had increased considerably and she had drawn this to the attention of Mr Johnston in February 1996. She said she had often felt stressed and had complained to her parents on many occasions about her workload and responsibilities. She told Dr Shan her health had begun to suffer and she developed symptoms such as tiredness, irritability and sleep disturbance. She told Dr Shan she had complained on at least one occasion, in April, to her doctor of stress.

She said that in the second half of May 1996 she was off work for two weeks with the flu and had returned to work on 27 May. She gave a similar account to the account in her statement made to Mr Topp about being provided with a bottle of champagne on 3 June, but then having distressing discussions with Mr Johnston about her work performance. After the 4 June meeting at which she was given the memo, she told Dr Shan she was very upset, she could not sleep that night and the next day (5 June) went to see Dr Catterall at St Helena’s. She was given two days off work.

She also gave a similar account of having given Mr Johnston a reply letter dated 6 June. She said her meeting with him that day was tense and Mr Johnston had been angry at her response. She claimed that she believed her performance was adequate and therefore was stunned when, on 24 June, Johnston called her to a further meeting and said he was still not satisfied, detailed further complaints and suggested she leave the company with a bonus and a week’s wages. She was very upset, called her parents and also Dr McPherson who she went to see immediately and who put her on WorkCover.

She told Dr Shan about her relationship difficulty the previous December but denied being particularly distressed by it.

As for her more detailed work history, he reported:

She left school at the age of 17 and for the next two years held various positions in offices. She was a receptionist for an accounting firm for a few months but her job became redundant. She was then a legal secretary for twelve months but left when they demoted her to being a receptionist when one of the solicitors left. She then was working for Colonial Mutual in their office when she developed a condition that was diagnosed to be chronic fatigue syndrome. This led her to being unable to work for two years. Following this spell of unemployment, she was trained with the CES as an integration aide and worked for the Eltham Primary School for six months, losing her job through financial cut backs. She then worked as a nanny for approximately eight months before being successful in her application to work as a receptionist for [Centari Systems].

She told Dr Shan of her interest in Tarot and clairvoyance.

Dr Shan asked her about past medical and psychiatric history. He noted that she had not been referred to a psychiatrist for an opinion during the episode that was described as chronic fatigue syndrome ‘even though she had some symptoms that are also observed in psychiatric disorders such as depression and tiredness’. He then noted this:

In 1995 she had two weeks off work following an MCA when she was rear-ended by another vehicle. According to her, her car had to be towed away afterwards. She had back and neck pain for two weeks afterwards but returned to work with no further complaints.

When Dr Shan asked her about her present symptoms she said:

‘I believe I am having symptoms of chronic fatigue again. I feel tired a lot. I am irrational. I have nausea and bowel spasms. My memory and concentration are poor. I have lost all my confidence. I don’t go anywhere alone. I have to be with people’.

He reported that she could only drive a car short distances.

In his summary and conclusions Dr Shan noted that since leaving school Ms Davies had held many different jobs with a significant gap of two years while suffering from the condition ‘that has been called chronic fatigue syndrome’. He thought there was no objective evidence she had become ill or required medical attention of any significance prior to the incidents of June 1996.

Dr Shan considered that her recent reaction was not so much a reaction to work stress but to criticism for poor performance. But he found no evidence she was suffering from a psychological or psychiatric disorder of any kind. He did note that the memo she had presented to Mr Johnston in response to his memos was ‘worth reading as it gives an indication both of her frame of mind and her general personality’. He also thought there appeared to be an unconscious exaggeration of complaints because of secondary gain. In conclusion he found there was no incapacity for work or loss of mental powers involving inability to work.

September 1996: report of Mr Brearley

On 13 September 1996, Mr Kenneth Brearley, an orthopaedic surgeon, saw and reported on Ms Davies to the TAC in relation to the claim she had lodged previously. Ms Davies was accompanied to the appointment by her mother.

Mr Brearley recorded her then complaints as constant discomfort in the lower back, worsened by long sitting and after much walking or exercise. At times there were spasms of pain down the back of the right buttock. She also had some pain in the left shoulder at times and in the upper arm. He diagnosed her has having soft tissue injuries of the neck, lumbar spine and left shoulder. The neck pain and left shoulder pain had largely resolved; her low back pain continued to limit her walking and long periods of standing or sitting. No restrictions were necessary for her work and daily activity, instead he encouraged her to do as much as she could.

Dr Epstein saw Ms Davies on two occasions at the request of Ms Davies’ solicitors: the first on 13 April 2010 (report dated 14 April 2010) and the second on 21 January 2016 (report of the same date).[93] In addition, by further report dated 9 February 2016 Dr Epstein also commented on the report of Assoc-Prof Doherty.
[93]Exhibit 34.

Like Assoc-Prof Doherty, Dr Epstein has impressive qualifications and experiences.[94] Dr Epstein listed the medical reports which he had been provided. Unlike those with which Assoc-Prof Doherty had been provided, all of the reports that Dr Epstein listed were from 2000 onwards with the exception of Professor Rosenfeld’s report in 1999. He was also provided with affidavits of Ms Davies from 2007 and 2009. His first report runs to 10 closely typed pages.
[94]In summary, Dr Epstein had been a psychiatrist since 1975 and a Fellow of the Royal Australian and New Zealand College of Psychiatrists since 1976. He was a founding director of the Austin Hospital Crisis Service, a psychiatrist to Fairlea Women’s Prison between 1990 and 1996 and has extensive involvement in authoring and training on the AMA guidelines. In addition, he has held consultancy positions with the Western Australian and Commonwealth governments on mental health issues.

The doctor first set out Ms Davies’ account of the accident and her physical symptoms afterwards. Crucially, he noted from her history that, at the stage she returned to work (Monday 27 November 1995), she ‘had begun experiencing low back pain … and was having left knee pain, especially at night’. He further recorded that in January 1996 she first experienced painful symptoms in her left knee, mainly behind the patella, and that her lower back pain had further deteriorated with symptoms radiating into her buttocks and hips. That pain was noted to have been causing her difficulty walking long distances and disturbing her sleep. He continued that Ms Davies had ongoing low back pain in May 1996 with two weeks off. After recounting the circumstances of her termination of employment from Centari Systems, he noted that she had a WorkCover claim that was settled for which she saw a psychologist for a few months for treatment of anxiety and depression. He also noted that her back pain did not resolve and a CT scan in April 1998 revealed a disc bulge at the L5/S1 level compressing the nerve root.

Dr Epstein continued with a quite detailed summary of Ms Davies’ medical progress and referral to various specialists, and their opinions. Curiously, the survey of information and opinion paid very little attention to any injury or symptoms with respect to her left knee.

Dr Epstein summarised her current condition in April 2010 by saying she complained of constant low back pain going into both buttocks and her hips and into her left mid-thigh region. She also reported constant pain in her left knee and frequent pain in her right knee. She had intermittent upper back pain extending to both shoulders and her neck. He described her mood, feelings of depression and low self-esteem. He noted she felt ‘passively suicidal’.

He recounted her family history, family medical history, personal medical history and reported on her mental state examination. He then expressed his opinion as follows:

Dianne Davies appears to have developed a chronic back condition and left knee condition as a result of the transport accident in November 1995. The accident appears to have been associated with symptoms of a mild Post Traumatic Stress Disorder.
She has experienced other health problems unrelated to this accident including chronic fatigue syndrome and was also subjected to harassment during her employment that led to a successful WorkCover claim.
At present she appears to have a mild chronic Adjustment Disorder with depressed mood. She is on high doses of antidepressant medication that may well have led to significant improvement in her depressive symptoms, although they are still present.
…
The main factor leading to her symptoms appears to have arisen from the transport accident. The effects of her work situation appear to have receded virtually completely.

In his second report, 21 January 2016, Dr Epstein listed a number of additional reports which had been made available to him. The earliest of those was November 2005 and they ran through to about mid-2013. Again, most if not all of them are reports which I have summarised above.

Dr Epstein repeated the history of the accident which he had set out in his first report but updating it for the additional material which he had received. He now paid significantly more attention to the left knee problems which Ms Davies was experiencing. Amongst other things, he referred to her cutting of the skin over the left knee and her self-harming; Mr McLean’s diagnosis of traumatic chondromalacia patellae and a complex pain syndrome; Dr Hjorth’s diagnosis of complex regional pain syndrome of the left leg; Mr Miller’s opinion that she had sustained a significant knee injury; and the various further medications and treatments which she had received.

In terms of her current condition, Dr Epstein considered she was much the same as she had been in 2010 although her left knee pain was worse and she now had hypersensitivity in the left leg. After referring to her mental state examination he stated, under the heading of ‘Opinion’, that she had been injured in the accident on 22 November 1995, had a history of some unrelated health problems including chronic fatigue but did not appear to have had any low back pain or left knee pain until the accident. He said she had developed neck, left shoulder and low back pain ‘a day after the accident’ and had subsequently developed more severe pain in her left knee. He thought she then had a chronic pain disorder with both psychological factors and a general medical condition. In addition, he believed she had developed a chronic major depression with features of anxiety, panic disorder, some agoraphobia and possibly some substance abuse issues.

In his report of 9 February 2016, commenting on the report of Assoc-Prof Doherty, he noted that he and Assoc-Prof Doherty were in agreement with regard to the diagnosis of somatoform pain disorder. But, whereas Dr Epstein believed she also had a depressive disorder that had become a separate entity, Assoc-Prof Doherty considered that her mood problems only related to the somatoform pain disorder. Putting aside any difference of opinion over the precise diagnosis, more significantly, on the issue of causation, it was Dr Epstein’s opinion that:

‘the disability appears to have come from the transport accident. There have been other significant factors in her life but they no longer appear to be major contributors to her current situation’.

Dr Nathan Serry

Dr Serry, consultant psychiatrist, reported to Ms Davies’ solicitors on two occasions, having first seen Ms Davies on 12 August 2013 (and report of the same day) and then on 1 February 2016 (also reporting the same day).[95] In the second of those two reports, Dr Serry commented on the opinions of Assoc-Prof Doherty.
[95]Exhibit 28.

In his first report, dated 12 August 2013, Dr Serry gave a short description of the accident from the information provided to him. He commented that Ms Davies was immediately aware of pain in her left knee after it had hit the air conditioning unit in the car. He then gave a short description of her medical history. In that regard, he noted that on the following day after the accident Ms Davies saw her GP at which stage she was ‘aware of pain in her left knee’ but also in the neck, shoulder and low back. His instructions were to the effect that she was off work briefly and then returned to work until mid-1996. Further, he was informed that ‘after the accident she struggled to sit at her desk and there was an increasing level of stress within the workplace’. He noted that as a result of her employer’s ‘quite strange’ behaviour, in the context of her ‘post-accident difficulties’ she felt exposed to stress, put in a WorkCover claim and left the job.

Dr Serry then detailed her present psychiatric history, her past family and medical history, her mental state examination, and then noted particular comments of some of the various specialists I have referred to above.

Dr Serry’s diagnosis of Ms Davies was that she was suffering a combination of chronic pain disorder associated with psychological factors and general medical condition (ie. agreeing with Assoc-Prof Doherty and Dr Epstein), a chronic major depression with anxious features, features of panic and also with features of traumatisation (ie. agreeing with Dr Epstein), and resolved substance abuse issues. Alluding to cause, Dr Serry considered that Ms Davies ‘had suffered very significant accident-related injuries both physical and psychiatric with a marked and ongoing nexus between the two’.

In his February 2016 report, Dr Serry provided an update to the history to that point in time. Insofar as other psychiatric assessments were concerned, he referred to both Dr Epstein’s and Assoc-Prof Doherty’s opinions. In essence, he succinctly highlighted the points of agreement and disagreement. He repeated the various diagnoses set out in his earlier report.[96]
[96]In his second report he expressed the first of his diagnoses using the DSM-5 terminology instead of the DSM-4 terminology.

On the critical issue of causation, Dr Serry disagreed with Assoc-Prof Doherty, saying:

In relation to the opinion expressed by Associate Professor Doherty that the transport accident of 1995 plays no current part in the later development of the somatic symptom disorder, I would respectfully disagree.
Your client indeed reported that whilst there had been some fluctuations in the severity of her left knee pain post accident, she had in fact struggled with quite sustained pain over many years without any particular diminution. … and she in fact described her difficulties at work post accident as being very much contributed to by the struggle that she had to sit at her desk within the workplace and that it was her sense that the difficulties that she experienced with her boss post accident arose in this context.
Further still, there appears to have been an essentially consistent chronology of left knee and surrounding area of pain over the many years since the accident.
…
There is no doubt that your client had pre-existing symptoms of a so-called chronic fatigue syndrome, diagnosed some time prior to the subject accident. Associate Professor Doherty opines that the somatic symptom disorder developed over a period of years on a background of the previously diagnosed CFS as well as various other factors.
Whilst the CFS was pre-existing, this in and of itself does not explain the subsequent development of your client’s somatic symptom disorder or pain disorder. In the absence of the direct injury to the left knee it is somewhat difficult to imagine your client developing the symptom-profile that she now presents with.
…
At presentation, your client reported high levels of pain, associated symptomology and functional impairment essentially present almost all of the time since the subject accident.
The very nature of a somatic symptom disorder tends to include compromised psychosocial functioning. There are a number of aspects of your client’s presentation which reflect the chronicity of her condition and the medicalisation thereof. These latter aspects in my opinion in no way disconnect the somatic symptom disorder from the signal event, namely the motor vehicle accident.
To conclude that the transport accident of 1995 plays no current part in the later development of your client’s somatic symptom disorder is in my opinion unreasonable.

Concerning the opinions of the psychiatrists, little of relevance separated their views about the conditions from which she suffered. Inasmuch as they did differ, those differences assume no real importance for the issues I need to decide.

But, in so far as they each opine on the relationship of Ms Davies’ present condition and the 1995 motor vehicle accident, I prefer the views of Assoc-Prof Doherty over those of Drs Epstein or Serry. Assoc-Prof Doherty’s report most accurately takes account of the true history concerning Ms Davies’ low back and left knee symptoms immediately after the accident, as I have found it to be. Drs Epstein and Serry both rely upon the falsely reconstructed history Ms Davies has given since 1999; that is, of having had persistent left knee and low back symptoms from almost immediately after the accident causing or at least contributing to her work difficulties.

Further, I find that Assoc-Prof Doherty’s view provides the most persuasive explanation of her illness progression over the entire time. That is, I accept his opinion of Ms Davies having pre-existing, constitutional, personality vulnerabilities which, in conjunction with her workplace stress experience and her pre-existing CFS, accounts cohesively for what has transpired in her life since late 1995 and the first half of 1996. It takes proper account of the absence of any real physical symptoms of low back or left knee symptoms or injury in the first half of 1996 and the real cause of the re-agitation of her CFS (or CFS-like) symptoms in the middle that that year (namely, work stress that was related to her relationship with her boss and not any physical problems).

Assoc-Prof Doherty’s reference to the ‘medicalisation of her psychological and personality issues’ following her cessation of employment is, in my view, a perfectly apt description of what in fact occurred. It entirely accords with my own intuitive reaction to the evidence, and also provides a convincing medical explanation for it. I accept his opinion that the transport accident played no material part in her later development of the somatic symptom disorder which each of the three psychiatrists agree she had developed.

Conclusions

It is convenient that I now summarise my findings concerning which of Ms Davies’ claimed injuries were caused by the motor vehicle accident.

It is not in dispute that Ms Davies suffered a soft tissue injury to her cervical and upper thoracic spine, with some left shoulder symptoms. She also bruised both her left and right knees with some abrasions to them. She had some persisting mid to upper back and neck pain, at a mild or moderate intensity, for about two years after the accident until that pain was overshadowed by the development of low-back and left knee complaints that dominated thereafter. Some symptoms in that region continued thereafter but were described by Ms Davies in final submissions as an ‘undertone’ to other injuries and conditions. There was no direct evidence in support of a proposition that her neck and upper back symptoms, or any left shoulder symptoms, of themselves disabled her from employment or impaired her income-earning capacity. However, I will return to that question below.

Ms Davies also claims to have suffered some associated headaches which in turn progressed to migraines. My survey of the evidence reveals that reports of headaches do not feature to any significant degree in the medical notes until the latter part of 1999.[97] By that time the effects of her pain felt in her low back and left knee, and the re-agitation of her CFS symptoms and depression, were intensifying. I accept that her ongoing neck and shoulder pain probably accounted for some of her headaches and migraines. But, as I discuss below, I also think that their incidence and intensity probably had other causal origins I need to take into account.
[97]See above [184(m)], [190].

As for her complaint of low back injury, she did not report any pain to her low back within the first six months or so following the accident. I find that all of her complaints concerning her back were to the mid to upper spine region. Although some of the St Helena’s notes recorded simply pain to the ‘back’ or ‘spine’, when those notes are read in context with notes before and afterwards I interpret them to all be references to her dorsal or thoracic spine. I reject her evidence that she suffered disabling low back symptoms that caused her difficulty working at Centari Systems.

I do not know what to make of her complaint to Mr Brearley in September 1996 of having had constant discomfort in the lower back causing spasms down her right buttock and interfering with her work. I am simply not persuaded as a matter of probability that she did have those symptoms. Her account of her state of health to Mr Topp, and the medical records of St Helena’s, do not support that history. Dr McPherson, her treating general practitioner, made no mention of any such symptoms in his report of May 1997 when he wrote specifically about her motor accident injuries, referring only to mild intrascapular discomfort. Further, her tendency (as I have found her to have) to give an account of her health that might assist the claim in question, whether it be entirely accurate or not, causes me such doubt that I would not accept what she told Mr Brearley without some degree of corroboration from other objective evidence. There is no other corroboration.

She was first investigated for a complaint of low back pain in April 1998. The resultant CT-scan erroneously suggested nerve root impairment in the lumbo-sacral spine. Whether this result contributed to Ms Davies’ belief in a genuine injury to that region is hard to know. But little objective evidence of injury was found. By then, she had been out of work a little short of two years and I strongly suspect a psychological condition was driving her experience of pain. At most, it might be hypothesised that the accident accelerated or aggravated some pre-existing arthritic changes in her lumbo-sacral spine at L5/S1. But even so, the possible roles of the accident, constitutional (physical, personality and psychological) factors and her significant weight gain in the years after her accident are very difficult to fathom.

In large part, Ms Davies’ case depends upon the acceptance of the proposition that before the accident she did not have any low back pain but very soon after the accident she did. I do not accept that proposition. In this respect, from the unexplained failure of Ms Davies to call her early medical and health practitioners — Dr Gary Rose and Ms Moore (the physiotherapist) in particular — I infer that those practitioners would not have assisted her case.[98] It is enough for me to say that Ms Davies has not persuaded me that, but for the motor vehicle accident, she would not have experienced whatever lower back symptoms she claims to have experienced. I infer that I therefore do not find that the motor vehicle accident caused her any injury to her lower back.
[98]Jones v Dunkel (1959) 101 CLR 298.

Much the same can be said about her complaints of having sustained a significant left knee injury in the accident. I am not persuaded that she experienced any left knee symptoms of any note beyond some transient bruising immediately after the accident until she reported some symptoms to Dr McPherson 10 months later in late September 1996. Again, I draw the same inference that Dr Rose and Ms Moore’s evidence would not have assisted her case in this respect. When Ms Davies did report such symptoms, it was in the midst of the re-agitation of her CFS-type symptoms sparked by her work stress trauma. That stress was accompanied by quite pronounced physical symptoms of a range of types. By May 1997, Dr McPherson made no mention of her left knee complaint in connection with her motor accident. That complaint reappears when the focus goes off her work stress incident, after her WorkCover claim is settled. Thereafter, along with her low back pain, her left knee complaint pain assumes increasing prominence.

Over many years, investigations failed to find any obvious explanation for her symptoms. Her pain symptoms became multi-faceted, so that she was able to describe three distinct symptoms.[99] The second manifested itself 5 to 7 years after the accident and the third about 16 years afterwards.
[99]See at [86] above.

It is most likely that Ms Davies developed symptoms of chondromalacia of the patella together with other arthritic changes in her knee. I have already stated and explained my views of Mr Miller’s opinion that the pattern of osteoarthritic change, shown on arthroscopic investigation, made it more probable that a trauma initiated Ms Davies’ left knee symptoms.[100] I need not repeat them. She clearly has some constitutional predisposition to knee joint arthritic change. Her significant weight no doubt contributed to the progression of her left knee pathology, and the fact that she also developed arthritic change in her right knee tends to make more likely the role of constitutional factors in her left knee arthritic change.[101] I am far from persuaded that but for the accident she would not have suffered this condition or her symptoms at about the same time and to about the same degree as she has in fact suffered them. So, I do not find that the motor vehicle accident caused any injury to her left knee or her right knee.
[100]Summarised above at [288].
[101]See, for example, the opinion of Mr McLean summarised at [253]-[254] above.

Having reached those conclusions, I cannot be satisfied that, but for the motor vehicle accident, Ms Davies would not have suffered the remaining disputed injuries: namely, the complex regional pain syndrome, somatic symptom disorder, her other psychiatric conditions and the physical effects of her prescribed medication. Each of those conditions, in my view, developed synergistically as reactions to and in turn drivers of her perception of pain in her low back and left knee which, themselves, stemmed from causes independent of the motor vehicle accident.

In short, I do not find that any of the disputed injuries were caused by the motor vehicle accident.

Would any pre-existing condition have produced the claimed harm anyway?

Because I am not persuaded that the negligence of the defendant caused any of the disputed injuries, it is unnecessary for me to seek to ‘disentangle’ the roles of multiple contributing causes towards those injuries. For the same reason it is not necessary for me to undertake the tasks identified in sub-paragraphs (b) – (d) at [65] above for those injuries. It was not suggested by the defendant that any pre-existing conditions were responsible for any of the admitted injuries that I have found were caused by the motor vehicle accident (that is, mid to upper back pain, neck pain, left shoulder pain and bruising to knees).

But, as I have prefaced earlier, I consider that there was probably a factor or factors that contributed to the onset and progression of the headaches and migraines that were not accident-related. I refer here to the previous association of headaches with symptoms of CFS, and the evident link between the intensification of her headaches and migraines, in late 1999, and the increasing manifestation of her non-accident related pain syndromes, depression and associated disorders.

Doing the best I can, in my view, even without the accident, Ms Davies faced a significant chance that she would experience intermittent debilitating headaches and migraines after November 1995, particularly after June 1996, from causes unrelated to the accident. That chance was one that would, by reason of those other causes, remain in existence for the foreseeable future. I would assess that chance to be of the order of 30 – 50 percent.

Did the accident-caused injuries result in any loss of earning capacity?

As I have noted, there was no direct evidence that attributed impairment to Ms Davies’ income earning capacity specifically to the admitted injuries (mid to upper back pain, neck pain, left shoulder pain and bruising to her knees), or the headaches and migraines, that I have found were caused by the motor vehicle accident. No doubt that is because the focus of evidence about lost earning capacity was upon the effect of the more disabling conditions which I have found were not caused by the accident.

But had Ms Davies not suffered the disputed injuries, it is probable that from time to time her accident-related injuries would have caused some interference to her ability to work. That is, she probably would have had occasional days off work for neck or shoulder pain or occasional associated headaches. But, because (as I state below) her work capacity has, regardless of the accident, been effectively destroyed by non-accident related conditions, namely the disputed injuries, I am unable to find that but for the accident she would have had any greater income earning capacity than she has in fact enjoyed since. It follows that I find that the admitted injuries have not caused Ms Davies to suffer any loss of earning capacity.

In case it is found hereafter that I am wrong in reaching the conclusions I have reached on causation of the disputed injuries, I will briefly state my views about the role of those disputed injuries upon Ms Davies’ income earning capacity.

In my view, the combined suite of physical, psychological and psychiatric conditions that Ms Davies developed from mid-1996 onwards did disable her from sustained gainful employment thereafter. Had I found that the motor vehicle accident caused injuries to her low back and left knee which, in turn, produced significant and disabling low back and left knee pain in the first half of 1996, I would likely have concluded that her accident-related injuries at least materially contributed to her stress reaction to the workplace. That being the case, I would have been satisfied that the combined physical, psychological and psychiatric responses that she developed thereafter were also caused by the motor vehicle accident.

From the period commencing 18 months after the accident (ie. 25 May 1997) onwards, the ongoing effects of Ms Davies’ work stress and CFS, merging with her low back and left knee pain, depression and heavy medication intake, combined to render her practically unemployable thereafter. I reject the defendant’s arguments that Ms Davies retained some meaningful income earning capacity after that time. Her dabbling in clairvoyant readings and handmade jewellery fell a long way short of demonstrating any sustainable remunerative employment capacity. In large measure, those activities were an extension of her hobbies and a means of maintaining some contact with the world. The defendant’s attempt to characterise Ms Davies’ social media self-pronouncements as a sign of a vibrant, reliable business capacity, ignores the fact that Ms Davies is, in her own words, a person given to embellishment. The evidence of Ms Davies’ social media communications are better understood as the attempts of a young woman, otherwise trapped in illness and a lonely life, to project a more social and successful existence.

Accordingly, I accept Ms Davies’ submission that the effect of the disputed injuries was to very substantially destroy her past income earning capacity and that it is improbable that situation will ever change for the rest of the time over which she might otherwise have expected to earn income into the future. She was a ‘chronic pain cripple’ by 1999; that situation has not changed since and it is unlikely to change into the future.

What sum of damages should be awarded?
Assessment of damages for accident-caused injuries

It follows from what I have concluded that Ms Davies should be compensated by an award of damages for pain and suffering (non-pecuniary loss) which she has experienced due to the injuries to her neck and upper spine, left shoulder and bruising to both knees, together with associated intermittent headaches and migraines.

The defendant argues that these injuries were minor, of a soft tissue nature only, and appear to have resolved entirely (or at least very substantially) within the space of about 12 months from the accident. On the other hand, Ms Davies claims to have continued to experience symptoms related to her neck, upper back and left shoulder in the form of neck pain and associated headaches and migraines on and off ever since the accident. In her final submissions, these symptoms were described as being ‘almost as an undertone’ to her other injuries.

Dr McPherson had noted that Ms Davies continued to have left neck tenderness in May 1997. In 2001 Dr Vivian recorded persisting symptoms of neck and shoulder pain. In 2010, Dr Epstein noted intermittent upper back, neck and shoulder pain. Ms Davies gave evidence that she continued to suffer intermittent neck and shoulder pain, together with headaches, up to and at the time of trial.

On balance, I accept that the accident has caused some injury to Ms Davies’ upper back and cervical spine that produces pain in those areas and in her shoulders with intermittent headaches. They are not prominent but they persist as an undertone to her more severe conditions which were not caused by the accident. In my view her symptoms of neck and shoulder pain and headaches have become entrenched and are likely to persist intermittently into the foreseeable future. To the extent I must assess damages by reference to her past and probable future experience of headaches and migraines, I will take into account my assessment of the chance she would have suffered that harm even without the defendant’s negligence. Those injuries do not, however, disable Ms Davies from earning income for the reasons I have stated.

In my opinion, an appropriate sum to compensate Ms Davies for her pain and suffering past, present and future in respect of these particular injuries is $125,000. As has been recently confirmed by the Victorian Court of Appeal, by reason of s 93 (15) of the Transport Accident Commission Act 1986 (Vic) no interest prior to the award is allowable on a sum of non-pecuniary loss damages.[102]
[102]Starr v Greenfreight (Services) Pty Ltd [2016] VSCA 213.

Assessment of damages had the disputed injuries been caused by the accident

It follows from the conclusions I have reached on causation that no damages will be awarded, either for pecuniary loss or non-pecuniary loss, in respect of the disputed injuries. Nevertheless, should my conclusions on causation be found to be wrong, I will state briefly what damages I would have assessed in relation to each head had I come to a different view.

In respect of non-pecuniary loss and damage, it is my view that the entire suite of conditions from which Ms Davies now suffers has very substantially robbed her of the quality of life she would otherwise have expected to lead had she not suffered from those conditions. Had the disputed conditions been attributable to the accident, I would have concluded that the negligence of the defendant had deprived Ms Davies of much of the enjoyment of her young adult years and her midlife, and would continue to adversely impact her quality of life indefinitely. Her pain syndromes and disorders, and her addiction to medications prescribed for them, means that she has not been and will not be able to engage in the usual daily activities or community life a healthy young woman would engage in. She has lived and will continue to live a life of pain and dependence on others, and of relative isolation from friends. Clearly, the constellation of injuries and conditions has produced a significant adverse effect on her entire quality of life.

In my opinion, taking into account the pain and suffering attributable to the disputed injuries to date, and the likelihood that they will continue indefinitely for the remainder of her life without much change, I would have assessed her general damages in the order of $350,000 to $400,000. In my view, being fair to both Ms Davies and the defendant, a sum of $375,000 would have been an appropriate award.

Furthermore, I would have accepted that the effect of her disputed injuries has been and will be to substantially destroy her income earning capacity, save for her limited capacity to undertake the kind of short term and intermittent roles of clairvoyant readings and online handicraft sales which she has in fact undertaken from time to time over the years.

I have no reason to reject the evidence of Mr Gary Allan, forensic accountant, whose calculations of Ms Davies’ reduction in income earning capacity, past and future, ranged between $1,489,000 and $1,503,000 depending upon some slightly varied assumptions. I would have assessed the quantification of her reduced earning capacity in the sum of $1,500,000. I would have reduced that sum for vicissitudes, past and future, by a factor of 20 per cent, resulting in a total of $1,200,000.

The reason for adopting that discount for vicissitudes is as follows. In Ms Davies’ case, had I accepted that the accident caused the disputed injuries I would still have taken the view that, against a background of a relatively short period of time of work at Centari Systems and even shorter periods of employment before that, her previous history of CFS gave rise to a higher-than-usual risk that its symptoms might reappear from time to time to interfere with her capacity to work.

Conclusion

I conclude as follows:

·the negligence of the defendant caused Ms Davies to suffer the admitted injuries to her upper back, neck, left shoulder and some bruising to her knees, together with some associated headaches and migraine;
·that negligence did not cause Ms Davies to suffer the disputed injuries, namely, the claimed left knee injury, complex regional pain syndrome, lower back injury, somatic symptom disorder, psychiatric illness and the physical effects of the prescribed medication; and
·the damages for her accident-caused injuries are assessed at $125,000.

Accordingly, I will enter judgment for the plaintiff in the sum of $125,000. I will hear the parties on the question of costs.

[2016] VSC 557

19 September 2016