Dow v Elbarbary
[2017] ACTSC 418
•1 February 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Dow v Elbarbary |
Citation: | [2017] ACTSC 418 |
Hearing Dates: | 11–12, 14 December 2017 |
DecisionDates: | 19 December 2017, 1 February 2018 |
Before: | Murrell CJ |
Decision: | See [174]–[175] |
Catchwords: | CIVIL LAW – PERSONAL INJURY – DAMAGES – Motor Vehicle Accident – assessment of damages – whether and when plaintiff recovered from initial injury – whether plaintiff continued to experience physical and psychological sequelae from the accident – whether plaintiff had recovered – whether treatment claimed by plaintiff related to pre-existing lower back condition |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT) s 100 |
Cases Cited: | Cressy v Miloriad (No 2) [2016] ACTSC 339; 317 FLR 267 Griffiths v Kerkemeyer (1977) 139 CLR 161 Grincelis v House [2000] HCA 42; 201 CLR 321 Lumley v Sainsbury [2017] ACTSC 40 Wainwright v Lee [2013] ACTSC 191 |
Parties: | Louisa Dow (Plaintiff) Mahmoud Elbarbary (First Defendant) Insurance Australia Ltd t/as NRMA Insurance (Second Defendant) |
Representation: | Counsel Mr D Crowe (Plaintiff) Mr P Deakin QC with Ms O Dinkha (First and Second Defendants) |
| Solicitors Maliganis Edwards Johnson (Plaintiff) HWL Ebsworth (First and Second Defendants) | |
File Number: | SC 468 of 2016 |
MURRELL CJ:
The claim
On 12 August 2014, the plaintiff was driving home from work. Her vehicle was stationary in a slip lane for traffic turning from Parkes Way onto Caswell Drive in Belconnen, ACT. As the plaintiff was looking in her right rear-view mirror, the first defendant’s vehicle collided with the rear of the plaintiff’s vehicle. The plaintiff conceded that the impact was “not a major impact”. The airbags in the plaintiff’s vehicle did not deploy and the only significant damage was to the rear bumper bar. The plaintiff’s experience of the impact was that she was jolted forward into her seatbelt and then back into her headrest. The plaintiff sustained a whiplash injury.
The defendants admitted that the first defendant breached his duty of care.
The matter went to hearing on the question of damages.
The plaintiff claimed that she suffered the following significant injuries and disabilities:
(a)Musculoligamentous injury to the cervical and thoracic spines, which limited her capacity to engage in full-time work, domestic tasks and recreational activities.
(b)Anxiety/phobia about travelling in motor vehicles.
(c)Other psychological sequelae of the accident, including physical reactions to stress such as bruxism, sensations of tinnitus and ear congestion.
Issues
The issues were whether and when the plaintiff recovered from the whiplash injury and related disabilities, particularly the related psychological injuries.
The plaintiff said that she continued to experience significant physical and psychological sequelae from the accident and could not work more than four days a week.
The defendants said that the plaintiff recovered within, at most, six months of the accident (by about February 2015).
Plaintiff’s credibility
The defendants raised a number of matters that were said to reflect adversely on the plaintiff’s credibility.
The matter that was pressed most strenuously was the plaintiff’s failure to inform Dr Champion of her pre-accident history of lumbar and cervical problems.
I do not consider that this failure reflected on the plaintiff’s credibility in any significant way. Numerous medical experts were qualified by the parties. No significant criticism was made of the history that the plaintiff provided to those doctors.
Both when giving evidence and when reporting symptoms to doctors, the plaintiff was careful to articulate the matters that were of most assistance to her case. She somewhat understated the extent to which she was experiencing cervical and lumbar problems in the period leading up to the accident (see below). However, most plaintiffs adopt such an approach. It does not cause me to substantially question the plaintiff’s evidence.
There were no significant inconsistencies in the plaintiff’s evidence. It was generally consistent with the history and complaints made to treating healthcare professionals and medicolegal experts. When giving evidence, the plaintiff made appropriate concessions. Important aspects of her evidence were confirmed by the evidence of her mother and her current partner, whose credibility was not challenged. In cross-examination, it was not suggested that the plaintiff was deliberately lying.
I agree with the assessment of Dr Samuell, a psychiatrist who reported on behalf of the defendants, that the plaintiff was an “authentic sounding claimant” who gave “no sense that she was exaggerating or embellishing her difficulties.” Other doctors, including the defendants’ doctors, took a similar view.
I am satisfied that the plaintiff genuinely experiences the disabilities of which she complained. I am also satisfied that the plaintiff genuinely believes that she is only capable of working a four-day week. Since April 2015, the plaintiff has taken each Wednesday as leave without pay. An ambitious and intelligent person with no childcare responsibilities would not do so unless she thought that it was necessary.
However, it was my clear impression that the plaintiff was unduly focused on her injuries and their continuing impact on her life and that the preoccupation was not assisting her recovery.
Pre-accident history
The plaintiff was born in 1980. She was 34 years old at the time of the accident.
As a six year old, the plaintiff was a passenger in a vehicle that was involved in an accident. For some time thereafter, she experienced anxiety when travelling in a motor vehicle. The plaintiff’s evidence that the anxiety resolved was corroborated by her mother, who recalled an accident but did not recall that, as a child, the plaintiff was anxious in motor vehicles.
In 1998, the plaintiff completed her secondary education in Canberra.
The plaintiff first underwent counselling when she was about 18 years old. She had a few counselling sessions in connection with a relationship breakup.
In 2002, the plaintiff had surgery for bursitis related to a repetitive strain injury (RSI) affecting her left shoulder. The recovery period was about two years. During that period, she received treatment to her shoulder. The plaintiff gave evidence that the only ongoing left shoulder problem was slightly restricted rotation of the left arm.
In 2002, the plaintiff commenced study at Deakin University in Melbourne. In 2005, she completed a Bachelor of Arts (International Studies) Degree.
The plaintiff returned to Canberra to undertake an Honours thesis at the Australian National University. In 2006, while completing her thesis, the plaintiff experienced RSI in her wrists. She became anxious and depressed about the impact of the condition on her ability to complete the thesis. She was prescribed medication for anxiety. After a short time, she stopped taking the medication because it was causing tinnitus. Soon after her thesis was completed, both the RSI symptoms and the plaintiff’s psychological symptoms ceased.
On 27 September 2006, the plaintiff’s general practitioner, Dr Welberry, noted that the plaintiff had been “depressed all year”. On 26 October 2006, Dr Welberry noted “depression 3 ½ – 4” and “anxiety 5”. In December 2006, the doctor noted that the plaintiff had stopped taking Zoloft medication because she was experiencing “tinnitus/ shakes” and that she was to trial other medication and take temazepam to assist her to sleep.
In 2008, the plaintiff moved to the USA to undertake postgraduate studies.
While in the USA, the plaintiff was affected by two motor vehicle accidents.
In 2008, she was sitting on a concrete slab when it was struck by a motor vehicle that narrowly missed the plaintiff. The plaintiff was traumatised by the incident. She received Eye Movement Desensitisation and Reprocessing (EMDR) to treat anxiety about motor vehicles. The symptoms abated.
The second motor vehicle accident occurred in 2009, when the plaintiff fell from a small motor scooter while travelling at a low speed. The plaintiff fractured two ribs. After some months, the plaintiff developed lower back pain. Investigations revealed a bulging disc in her lower back. The plaintiff was treated with cortisone injections to the sacroiliac joints. Since then, her lower back and left hip have been intermittently symptomatic.
In 2010 to 2011, after graduating from Duke University with a Masters Degree in International Development Policy, the plaintiff worked for a non-governmental organisation delivering disaster relief in Haiti. While working in Haiti, the plaintiff frequently travelled within Haiti and to other countries, including the USA. The travel caused her no physical difficulty.
In August 2011, the plaintiff left Haiti and travelled to Australia for a period of three months’ sick leave. On 31 August 2011, Dr Welberry certified that she required the sick leave to address low back pain and psychological difficulties. The plaintiff was stressed because of interpersonal conflict with a new supervisor in Haiti. She was having difficulty sitting for long periods at work because of lower back pain. It is interesting to note the link between psychological stress and an increase in physical symptoms.
In September 2011, Dr Welberry prepared a mental health care plan. The plan referred to a mental health history of reactive depression. At that stage, the plaintiff was taking Voltaren tablets. Dr Welberry noted that the plaintiff had experienced tinnitus for two or three months, and that the condition was thought to be stress-related.
The plaintiff undertook four counselling sessions with Mr Mackay-Sim, a psychologist. As part of the treatment, the plaintiff completed a DASS 42 questionnaire which showed that she was suffering from severe depression and extremely severe anxiety and stress. Mr Mackay-Sim identified that workplace stress and anxiety were at the root of her difficulties. Through counselling, the plaintiff reached the decision that she should resign from her position in Haiti. Mr Mackay-Sim stated that the decision caused a reduction in her stress “and the return of her mental health to normal”.
In late 2011, the plaintiff obtained osteopathic treatment in relation to her lower back problem. Ms Moore, an osteopath, noted that the plaintiff’s chronic lower back pain had been aggravated about three months ago when she was overseas.
In January 2012, the plaintiff first consulted Ms Carroll, a Pilates instructor and massage therapist. Ms Carroll treated the plaintiff for lower back and hip pain. Between January 2012 and June 2014, the plaintiff consulted Ms Carroll on about 12 occasions. Many of those attendances included massage for neck, shoulder and/or upper back pain. One such treatment related to an incident in September 2012, when the plaintiff was a passenger on a bus that was involved in an accident. Up to the date of the accident, the plaintiff continued to receive intermittent massage treatments from Ms Carroll for lower back problems. Prior to the August 2014 accident, the plaintiff was last treated by Ms Carroll for neck and shoulder problems on 11 June 2014.
In March 2012, the plaintiff first consulted Ms von Gavel, a physiotherapist. The plaintiff complained of pain in her lumbosacral area and pelvis since early 2010. The history taken by Ms von Gavel included a reference to “neck tight”. In the two year period prior to August 2014, the plaintiff consulted Ms von Gavel on about 38 occasions, predominantly in relation to her lumbar condition. However, there were also significant references to cervical, thoracic and shoulder problems. In September 2012, the plaintiff told Ms von Gavel that, on the day after the bus accident, she had experienced a mild ache in her cervical spine. Ms von Gavel found that the plaintiff was symptomatic at C2–3 and T4. Between January 2014 and 12 August 2014, the plaintiff consulted Ms von Gavel on seven occasions. On four of those occasions (in February, April, May and July 2014), Ms von Gavel treated the plaintiff for cervical and/or thoracic complaints. Ms von Gavel said that, up to the subject accident, the plaintiff was being treated for cervical and thoracic complaints that were apparently related to the bus accident. She said that the plaintiff’s lumbar condition was improving.
In June 2012, the plaintiff commenced working for AusAID. The plaintiff’s role involved evaluation of Australian overseas aid programs. A couple of times a year, she undertook field evaluations, mostly in Timor Leste.
In December 2013, the plaintiff suffered workplace stress because of the amalgamation of AusAID with the Department of Foreign Affairs and Trade (DFAT). She was prescribed temazepam, but did not take it.
In 2014, the plaintiff commenced a Graduate Certificate in Program Evaluation at the University of Melbourne. The plaintiff undertook the course part-time and by correspondence. At the conclusion of 12 months, students in the course were able to convert the Graduate Certificate into a Masters Degree.
The plaintiff said that, at the time of the August 2014 accident, she was continuing to experience intermittent lower back pain for which she received occasional physiotherapy. The plaintiff said that the pain had little or no impact on her employment and did not require that she take any time off work.
The plaintiff gave evidence that, at the date of the accident, she was in a reasonably happy relationship with Mr Zihrul, with whom she resided in a three bedroom house. The couple shared gardening and cleaning activities, although the plaintiff undertook the greater share. The plaintiff undertook most of the cooking. In her spare time, she enjoyed dining and going out to bars and live music venues. She did a significant amount of home entertaining. She enjoyed weekend drives and craft activities such as crochet and sewing. She enjoyed travel and scuba diving.
The plaintiff’s mother said that, prior to the accident, she did not observe the plaintiff in physical pain. She was not aware that the plaintiff was receiving treatment from a physiotherapist or osteopath. She was not aware that the plaintiff experienced anxiety about motor vehicle travel and she was not asked to provide domestic or driving assistance to the plaintiff.
In fact, as mentioned above, prior to the accident the plaintiff had received, and was continuing to receive a considerable amount of treatment for lumbar problems and occasional treatment for cervical problems. Given that the plaintiff separated from Mr Zihrul only five months after the accident, it must be doubted that the relationship was thriving at the time of the accident.
However, there is no doubt that, at the time of the accident, the plaintiff was working a five-day week at a high level, having progressed to an EL1 (Executive Level 1) position within the Australian Public Service. She was meeting all the travel requirements of her position. She was physically very active and enjoyed a busy social life.
Post-accident history
Immediately after the accident, the plaintiff was shaky and shocked. There was a sensation of blockage in her ears. She felt stiff in the neck and, that evening, she used a heat pack and took some painkillers before going to bed.
On the day after the accident, the plaintiff attended work but developed a frontal headache and a sensation of pain in the middle of her neck and at the base of her skull. She left work to seek treatment from a physiotherapist, Mr Erickson, who was located in the building where she was employed. His notes of 13 August 2014 recorded:
Bit shaken up initially, no [pain]. No [treatment/medication] at scene. Ibuprofen at home (just in case)
Woke up bit stiff this am. Went to work, by lunch stiffness and achy and [headache].
Worsening still and [pain] travelling down. Nil other [treatment/medication]
Past history: …
[occasional] massage for neck soreness.
During the fortnight after the accident, the plaintiff attended Mr Erickson on four occasions. She remained at work.
On 27 August 2014, the plaintiff consulted her general practitioner. The doctor’s clinical notes recorded:
Saw physio (Rob from capital clinic) for her whiplash injury. But not coping well. Was in shock immediately and slight stiffness. Started to feel tight in the neck, base of the neck and upper back across the shoulder. Felt better after physio and worse again. Saw physio 4 times so far. Unable to do computer work for long period – worse at the end of the day. Works a 7.5 hrs day. Mostly on the computer at work. A lot going on at work…. Her best friend’s mum passed away 2 wks ago and her younger sister (lives in Melbourne) is suicidal and not speaking to the family… Stiffness in the neck on neck movement to all directions L>R. Shoulders – ROM good with no pain in the shoulders … Sleeping ok with Panadeine
The doctor provided a medical certificate stating that the plaintiff was unfit for work from 27–29 August 2014. Subsequently, the doctor provided the plaintiff with medical certificates stating that she was unfit for work on 5 September 2014 and that she could only work two days per week from 8–19 September 2014.
On 28 August 2014, the plaintiff consulted Ms von Gavel for the first time since the accident. Ms von Gavel treated her cervical and lumbar spines.
On 4 September 2014, Ms von Gavel noted that the plaintiff was a lot better since the treatment, but that the pain had returned. Ms von Gavel noted that the plaintiff may need to work two days and then take one day off work.
On 10 September 2014, Dr Welberry’s notes recorded:
Feeling better today. Very sore over the w/e.
… Wants to [continue] counselling [for motor vehicle problems].
Wants to see that counsellor for her other familial problems as well…
Neck [range of motion] slightly better today but still pain to turn to sides
2 Ref letters to see counsellor for MVA related issues and family issues
On that occasion, the general practitioner administered a DASS 21 assessment. It showed that the plaintiff was suffering from mild depression and anxiety, and a moderate level of stress. The doctor prepared a mental health plan that indicated that the plaintiff was having family problems that related to her younger sister (who had serious mental health issues) and that she was having relationship problems with her boyfriend, especially after the motor vehicle accident.
Dr Welberry referred the plaintiff to a psychologist, Ms Chambers, in relation to anxiety associated with motor vehicles. A DASS assessment administered by Ms Chambers on 21 October 2014 showed normal levels of anxiety and depression and a slightly elevated level of stress. On 28 November 2014, Ms Chambers reported that over the three months that she had worked with the plaintiff utilising EMDR therapy and psycho-education about wellness, the plaintiff’s symptoms of anxiety and stress had reduced from moderate levels to normal levels.
On 10 September 2014, the plaintiff consulted Ms Carroll. The plaintiff said that she was seeking massage treatment mainly for relaxation in relation to anxiety associated with motor vehicles.
On 20 October 2014, the plaintiff first consulted Mr Halpin, an exercise physiologist. The plaintiff told him that, at the time of the impact, she had felt upper back tightness and ringing in the ears. She woke up the following day with neck stiffness and “by lunch time she was very stiff and achy through the entire back (from shoulders to low back) and was experiencing headaches.” She told Mr Halpin that, following physiotherapy treatment by Mr Erickson, her headaches had “significantly reduced in frequency and duration” and she felt much better. However, work aggravated her condition and “she [was] unable to sit for longer [than] 20 minutes without a significant increase in symptoms”. Mr Halpin proposed an exercise program, which the plaintiff undertook.
On 24 October 2014, the plaintiff’s general practitioner noted that the plaintiff’s upper back and neck were improving but after a five-day working week, had been very sore. The plaintiff was still anxious about motor vehicles. The doctor certified that the plaintiff was fit to return to work four days a week from 24 October 2014 to 21 November 2014.
On 26 November 2014, the plaintiff’s general practitioner noted that the plaintiff was “feeling quite better” and that “[p]ain in the back of the neck and shoulder [was] much reduced.” The doctor certified that the plaintiff was fit to return to work four days a week from 22 November 2014 to 30 January 2015 and then to pre-injury duties from 2 February 2015.
In 2014, the plaintiff deferred the correspondence course that she was undertaking at the University of Melbourne. The plaintiff gave evidence that she did not resume it because it was “beyond [her] physical capacity.”
Between September and mid-December 2014 (a period of three and a half months), the plaintiff took nine days off work. In addition she had numerous short periods (one to three hours) of work absence.
On 16 December 2014, the plaintiff commenced a pre-arranged holiday to India. The plaintiff said that, prior to commencing the trip, her headaches and neck pain had been improving, although she continued to experience anxiety when travelling in a motor vehicle. Air and car travel on the India trip aggravated the plaintiff’s neck symptoms such that she decided to upgrade to a business class ticket for the longer leg of her return trip.
In January 2015, the plaintiff separated from Mr Zihrul. The plaintiff gave evidence that one of the reasons for the relationship breakdown was that after the accident, the couple became “less loving” toward each other.
After living with her mother for a short period, the plaintiff moved into a small granny flat.
From January 2015, the plaintiff consulted Ms Hollands, a psychologist, in connection with relationship issues and problems with self-esteem. In addition, there were sessions focused on the plaintiff’s anxiety about motor vehicles.
Mr Halpin recommended that the plaintiff undertake Pilates and she commenced classes in early 2015.
On 4 February 2015, the plaintiff’s general practitioner noted that over the next three months, the plaintiff was planning to return gradually to working five days per week.
On 5 February 2015, the plaintiff completed a “neck disability index” form in which she stated that she had “no pain at the moment”, no trouble sleeping, her headaches were slight and infrequent, she could do most of her usual work and she could do “most but not all” of her usual recreational activities. However, she also stated that she could not read as much as she wished to and could not drive for long periods because of moderate neck pain.
By April 2015, the plaintiff was on the verge of resuming full-time work on a trial basis.
However, on 11 April 2015, the plaintiff drove to Wollongong for her father’s birthday. She stayed a few days before returning to Canberra. On her return, she experienced an increase in all her physical symptoms.
The plaintiff did not return to work full-time. On 16 April 2015, Dr Welberry recommended that the plaintiff work for four days a week, to be reviewed in mid-July 2015.
Dr Welberry referred the plaintiff for further sessions with Ms Hollands in relation to pain management counselling. The plaintiff said that, at about this time, her treatment with Ms Hollands became more focused on anxiety concerning motor vehicle travel. On 11 July 2015, Ms Hollands reported to Dr Welberry that the plaintiff had experienced a flare-up in pain and anxiety following the trip to Wollongong.
In April 2016, the plaintiff spent about 10 days holidaying in Bali. She was able to swim, read and undertake yoga, but said that she experienced headaches when she attempted to scuba dive or bike ride.
In mid-2016, the plaintiff commenced a relationship with Mr Sturman. The couple began living together in December 2016.
On 28 June 2017, Dr Welberry’s notes recorded:
Re neck and back – still having flare ups. There are triggers. Craft work triggers it. Changed work duties 18 months ago but also longer hours at computer and some pressure at work. When had sclerotherapy, was not exercising. This flare lasted 12 month[s]… [On examination] [l]imited rotation to left with crunching feeling. Arm movements full. Headaches x 4 per week – resolve with Panadol or Panadeine …
In March and August 2017, the plaintiff had sclerotherapy treatment for varicose veins. She had several days sick leave. While recuperating, she was unable to exercise and her accident related symptoms worsened.
The plaintiff’s mother said that, after the accident, the plaintiff was a very nervous passenger and would, for example, react strongly if her mother applied the brakes harshly.
The plaintiff’s current partner said that, to his observation, the plaintiff often experienced problems in her neck and back, generally in her upper back. She became uncomfortable when sitting for a long time and would flex her lower back, bending backwards with her hands on her hips. As a passenger, the plaintiff was prone to become very anxious and to develop “panic attacks”. The couple tended to avoid social events if attendance would involve considerable driving.
In evidence, the plaintiff described her current problems as follows:
(a)Fairly constant pain at the base of her skull and front left side of the neck and “twinging” pain in her neck when she turns to the left.
(b)Headaches many times a week.
(c)Tight shoulders, particularly in the area behind her left shoulder. The tightness was referred into the neck area.
(d)In relation to traffic, she experienced anxiety at a variable level. The level of her anxiety had remained fairly constant over the last 12 months.
(e)She clenched her jaw when she was experiencing anxiety about driving and at other times when she was stressed.
(f)If anything, her lower back was better since the accident.
The plaintiff said that her social activities were greatly restricted because of disabilities associated with the accident. She went out to the movies and bars much less frequently than was the case prior to the accident. Her ability to offer home entertainment was much diminished. She no longer enjoyed arts and craft hobbies. She had attempted the social sports of underwater rugby and touch football but had not continued with those sports because of the risk of contact and because of pain associated with neck movements.
Recent reports of treating healthcare professionals
On 22 January 2016, Ms von Gavel, the plaintiff’s treating physiotherapist, reported as follows:
(a)Initially, the plaintiff’s main complaints were of cervical and upper thoracic pain, tightness and stiffness, frontal headaches, discomfort in both ears, pain and tightness in the upper trapezius area, and driving anxiety associated with a clenched jaw.
(b)Although Ms von Gavel had previously treated the plaintiff for a cervical problem, the plaintiff’s post-accident symptoms were very different from her pre-accident symptoms. There was no significant pre-existing cervical or upper thoracic condition.
(c)It was appropriate for the plaintiff to work a four-day week. However, Ms von Gavel expected that, during the following six months (the first half of 2016), the plaintiff would be able to attempt a gradual and phased return to full-time work. Thereafter (during the second half of 2016), she would be able to return to the more demanding elements of her job and demanding recreational pursuits, as well as possibly undertaking additional study.
Prior to the accident, the plaintiff had been concerned about snoring and possible sleep apnoea. However, difficulties with jaw clenching or temporomandibular disorder (TMD) and teeth grinding (bruxism) emerged after the accident. On 14 March 2016, Dr Cheesman, the plaintiff’s treating dentist, reported that:
(a)The plaintiff was suffering from severe TMD that was a direct result of the motor vehicle accident.
(b)She should wear a sleep appliance at night for a period (Phase 1 of treatment) to reduce her pain. She would require a second phase of treatment, although the nature of that treatment was difficult to predict.
On 13 March 2016, Dr Welberry, the plaintiff’s treating general practitioner reported that:
(a)The plaintiff’s prognosis was good although, in the long term, some symptoms may continue to be triggered by particular activities or situations.
(b)The plaintiff should continue with a four-day working week. Dr Welberry “anticipat[ed] that [the plaintiff] will be able to graduate to full time work again”, although it was not possible to predict when this would occur.
(c)Considered that the plaintiff required help with domestic activities, but that the need would reduce over time.
On 4 February 2016, Ms Hollands, the plaintiff’s treating psychologist, reported to Dr Welberry that the plaintiff had reached a healthy level of acceptance about her previous relationship. Periods of low mood were now primarily associated with the plaintiff’s “ongoing pain and the compensation process”. Treatment was focused on strategies “to address the recurrence of anxiety around driving, pain management, and achieving stability in her pain levels, physical, emotional and occupational functioning.” Ms Hollands believed that the plaintiff should continue to work only four days a week. On 20 May 2016, Ms Hollands reported that:
(a)Following the motor vehicle accident, the plaintiff had developed a chronic pain disorder and Post Traumatic Stress Disorder (PTSD) associated with anxiety about driving and avoidance of driving.
(b)EMDR had been beneficial in reducing her anxiety. Although the plaintiff’s motor vehicle anxiety had improved, she remained hypervigilant and tense behind the wheel and therefore limited her driving. She would benefit from a further four to six counselling sessions to address the anxiety.
(c)The flare-up of pain and anxiety associated with the Wollongong trip reflected that the plaintiff’s desire to be a cooperative patient and to return to full-time work as quickly as possible led her to minimise her physical pain and anxiety and frequently push beyond her tolerance levels, resulting in a pattern of instability in her physical and emotional functioning.
(d)The plaintiff was capable of making further progress towards returning to pre-accident functioning.
On 8 June 2017, Mr Erickson, the plaintiff’s treating physiotherapist, reported that:
(a)Based on the objective measures upon completion of her supervised exercise program, the plaintiff had the physical capacity to work full hours. Her actual capacity to do so “should increase with graded exposure over time”.
(b)The right combination of exercises and coping strategies should reduce the need for the plaintiff to receive other treatments over time, enabling the plaintiff to manage her condition herself.
(c)The plaintiff’s condition had plateaued, although her work tolerance had not yet improved. However, “[w]ith better coping strategies she should be able to make a graded return to work on Wednesdays”, which would “facilitate an overall recovery.”
On 28 August 2017, Mr Erickson made similar observations, concluding that the plaintiff “should be able to self manage her injury and continue to slowly make a good recovery.”
Plaintiff’s medicolegal reports
On 25 June 2015, Dr Higgs, an orthopaedic surgeon, examined the plaintiff. Dr Higgs reported as follows:
(a)He diagnosed a soft tissue injury: musculoligamentous strain to the neck with referred pain to the left sternomastoid muscle region.
(b)He noted referred pain in the C5 and C6 dermatome regions, mostly localised to the upper rhomboid muscle regions between the shoulder blades. He suggested that the problem was related to previous left upper extremity brachialgia.
(c)He suggested the possibility of PTSD.
(d)He opined that the accident was the substantial contributing factor to the plaintiff’s present condition.
(e)He stated that the plaintiff should be able to self-treat using appropriate exercises in conjunction with consulting her general practitioner and physiotherapist once or twice every three months. He also stated that she should continue with psychological treatment.
(f)He expressed “no doubt” that the plaintiff should be able to return to full-time work stating that it “may be the case that the lady will be able to work for 5 days of each week”, with an increase in working activities being undertaken at the discretion of her treating general practitioner.
(g)He was optimistic about “some further minor improvement with regard to her pain.”
(h)He stated that, if the plaintiff remained symptomatic in six months, then reassessment should be undertaken.
On 31 August 2015, Mr Sutton, a psychologist, provided a report stating the following matters:
(a)The plaintiff was not exaggerating the pain that she experienced.
(b)Her attitudes to psychological pain management were adaptive and there would be no additional benefit in her attending a psychologist for pain management.
(c)The plaintiff’s headaches were related to tension.
(d)The plaintiff’s need to work in short bursts due to inability to sustain attention was “most likely [caused] by pain sapping her energy as she adaptively copes and manages it.”
(e)The plaintiff had become fearful of driving “due to the cumulative priming effects of two previous motor vehicle accidents” and causing her to need EMDR treatment for driving anxiety following the 2014 accident, which “tripp[ed] off previous associations.”
(f)There was no current clinical psychopathology: no evidence of clinical depression, traumatic anxiety, phobic (driving) anxiety or any other disorder. However, there was ongoing anxiety that could be “disruptive” but was “not clinically severe”.
On 25 January 2017, Dr Champion, a consultant physician in pain medicine, examined the plaintiff. The combined import of his report and evidence given at the hearing was as follows:
(a)The plaintiff demonstrated “extended central sensitisation”, particularly in her “left hemibody”.
(b)The pre-accident history of upper thoracic and cervical spinal treatment suggested a pre-existing vulnerability to further injury in those areas.
(c)The plaintiff’s condition had improved across 2015 and had stabilised in 2016, with a notable improvement in her traffic anxiety. However, her capacity to return to full-time work had not significantly improved and she remained somewhat anxious and depressed.
(d)The plaintiff’s headaches were primarily cervicogenic.
(e)It was highly likely that PTSD was augmenting the plaintiff’s pain experience and her disability, and was a factor in the somatosensory abnormalities that he detected.
(f)The plaintiff would benefit from multidisciplinary evaluation and guidance by a chronic pain service. The plaintiff required antidepressant medication, counselling and continued physical/exercise therapy.
(g)Her condition was likely to remain relatively stable, tending to gradually improve, in relation to both her mental health and pain related disability (absent any further physical or psychological stresses).
(h)The plaintiff would not fully recover, given the “degree of assessed central sensitisation combined with the PTSD and other psychological consequences of injury.”
(i)He expected that the plaintiff would be able to return to full-time work.
The defendants required Dr Champion for cross-examination. In cross-examination, counsel for the defendants suggested that the concept of testing somatosensory abnormalities was flawed. Further, counsel suggested that Dr Champion lacked the expertise to give psychological or psychiatric opinions.
I was satisfied that Dr Champion’s experience enabled him to express opinions about the plaintiff’s psychological state, although he was not as well-qualified as an experienced psychiatrist. While Dr Champion suggested a physiological basis for the plaintiff’s experiences of pain and disability despite other medicolegal experts suggesting that the disabilities were largely psychologically based, the outcomes that he proposed were very similar to those proposed by other medicolegal experts. The only significant practical respect in which Dr Champion’s opinion differed from the opinions of others was his opinion that, because of the psychological consequences of the injury and the degree of central sensitisation, the plaintiff would not fully recover.
Defendants’ medicolegal reports
On 26 November 2015, Dr Samuell, a psychiatrist, examined the plaintiff. He reported that she suffered from mild ongoing anxiety in relation to driving that should continue to recover with time and treatment.
On 16 March 2016, Dr Dias, an occupational physician, examined the plaintiff and reported as follows:
(a)On examination, no abnormality was detected in relation to the cervical, thoracic or lumbar spines. There was some limitation on external rotation of the left shoulder and some tenderness to deep palpation over the right and left temporomandibular joints.
(b)The plaintiff had sustained an acute soft tissue whiplash related injury to her cervicothoracic spine that “would have resolved within a maximal timeframe of six months following the date of the injury”. It was unlikely that her ongoing symptomatology was causally related to any objective physical injury sustained in the accident. She would have required no treatment beyond six months after the accident.
On 14 April 2016, Dr Cummine, an orthopaedic surgeon, examined the plaintiff and reported as follows:
(a)As to the cervical spine, the plaintiff exhibited a full range of motion except with left lateral rotation, which was slightly limited due to discomfort.
(b)The plaintiff had sustained minor soft tissue injuries in the region of the cervicothoracic junction in relation to which treatment would have been reasonable for four to six weeks only. He considered that “a variety of other factors” were contributing to her need for treatment, the majority of which were “psychologically based, with a mixture of anxiety and a tendency to hypochondria and over-medicalised minor soft tissue symptoms at work.”
On 25 May 2016, Dr Eaton, an occupational physician, examined the plaintiff. The combined import of his report and the evidence that he gave at the hearing was as follows:
(a)The plaintiff suffered from a whiplash associated disorder, musculoligamentous strain and post-traumatic stress and anxiety.
(b)In the earlier stages, there was a “major effect” on the plaintiff’s daily living and recreational activities preventing her from participating in many activities.
(c)When he saw the plaintiff in May 2016, she was recovering and had not reached the point where he would diagnose a chronic pain syndrome. However, as at December 2017, her symptoms had become more entrenched and he considered that she was suffering from a chronic pain syndrome which had affected her capacity for work.
(d)She should continue her exercise program and consideration should be given to antidepressant medication and psychological counselling “to assist her to deal with her condition more effectively and deal with the psychological and emotional effects of her injuries and reported persistent pain.”
(e)The prognosis was reasonably good. The plaintiff “should be able to return to a normal life”, being fully functional in “all aspects of her life”. She should be able to perform her normal work duties and was “likely to be fit enough for overseas service”, depending on the proposed role.
(f)However, it would be “important for her to learn pain management strategies and effective stress management to ensure that she can continue working in her normal employment.” Stress and anxiety were likely to have “a big impact on her work capacity” and needed to be effectively controlled. Stress (including the stress associated with litigation) played a role in the experience of pain and the removal of stressors would have a positive impact on her pain experience.
(g)The plaintiff should attend a pain management program in a private clinic. The cost would be about $5,000.00. The program would involve three or four treatment sessions a week over a period of up to three months.
On 30 January 2017, Dr Roberts, a psychiatrist, examined the plaintiff.
(a)He noted the “development of a cluster of symptomatology attributable to a trivial motor vehicle accident which is stated by [the plaintiff] to have resulted in similar feelings to the accident of 2008”. He concluded that this “would on reasonable psychiatric grounds be deemed to be an aggravation of a previous cluster of psychiatric/psychological problems.” He also noted the history of anxiety symptoms since 1986 when, at six years of age, the plaintiff was involved in a car accident.
(b)He noted that bruxism was commonly attributed to stress.
(c)He considered that the accident had been too trivial to justify a diagnosis of PTSD.
(d)He agreed with Dr Cummine that many of the plaintiff’s symptoms had been over-medicalised.
(e)He opined that, for most of her life, the plaintiff had suffered from a generalised anxiety disorder. Such a disorder was associated with hypochondriasis. And rendered the plaintiff “vulnerable to suggestions for treatment”.
(f)He considered that the plaintiff may benefit from treatment to deal with her pre-existing psychopathology.
On 6 June 2017, Associate Professor Spira, a consultant neurologist, examined the plaintiff.
(a)He considered that the soft tissue trauma caused by the accident should have resolved within days. The fact that it did not resolve was attributable to “the psychological sequelae to the accident and the emergence of the syndrome of tension myalgia”. The plaintiff’s psychological reaction to the accident had caused tension-type headaches and a myalgic neck and upper back pain. Tension myalgia occurred with excessive tightening of muscles in a maladaptive attempt to protect a body area that was perceived to have been injured.
(b)He said it was reasonable for the plaintiff to have received some physical therapies and she did require prophylactics to alleviate tension myalgia, including tricyclic antidepressants. He expected that these would be required for 18–24 months.
(c)The plaintiff had fully recovered from the physical trauma of the accident but because the plaintiff was an emotionally vulnerable individual, recovery from the psychological consequences was less predictable. However, with appropriate management, the plaintiff was capable of making a full psychological recovery.
(d)There were no physical restrictions to the plaintiff undertaking full-time work and she was capable of all physical aspects of housework.
(e)As to the “cutaneous hypersensitivities” described by Dr Champion, unlike Dr Champion, he considered that they reflected an undue psychological focus on certain body parts that required treatment of the psychogenic basis of the sensations.
The defendants called Dr Eaton and required Dr Champion for cross- examination.
Aside from Dr Eaton, the defendants’ doctors were not required for cross-examination.
Non-economic loss
The following findings are relevant to the assessment of non-economic loss. I consider that they are generally consistent with the views of most of the medicolegal experts who reported for both parties.
None of the many healthcare professionals who have treated the plaintiff or reported on a medicolegal basis disputed that the plaintiff genuinely experienced pain. However, among the specialist doctors who provided medicolegal reports, only Dr Champion considered that there was an objective physical basis for ongoing complaints of significant cervical and thoracic pain. There was no specialist doctor among the plaintiff’s treating healthcare professionals who reported on the continuing cervical and thoracic problems, although in January 2016, Ms von Gavel referred to an “increased left lateral shear” at the cervical spine which causes the structures of the cervical spine to be irritated and inflamed.
The plaintiff’s lower back has continued to trouble her in much the same way as it troubled her prior to the accident. It is a chronic problem, causing intermittent pain at a moderate level. From November 2011 to the date of the accident, the plaintiff did not present to her general practitioner with low back pain. On the other hand, she sought significant physiotherapy and massage treatment for the problem. The plaintiff’s counsel estimated that in the two and a half years prior to the motor vehicle accident, the plaintiff spent about $2,300.00 per annum on treatment, primarily in relation to her lower back. Currently, the plaintiff often stands or stretches to relieve lower back pain. No doubt, the exercises, massage and yoga that the plaintiff has undertaken have helped with her lower back problem as well as with her cervical and thoracic pain.
However, by itself, the plaintiff’s lower back pain has never substantially interfered with her capacity to work full-time, perform heavy housework and gardening, pursue an active social life or undertake active leisure activities. All those problems arose after the August 2014 accident.
As a result of the August 2014 accident, the plaintiff suffered a whiplash injury. There was an objective physical basis for symptoms to continue at a significant level until about mid-2015. I consider that for objective physical reasons, it was reasonable for the plaintiff to reduce her employment to a four-day week.
I am satisfied that, by early to mid-2015, the continuing direct physical effects of the accident were much diminished and not such as to prevent the plaintiff from working full-time (a five day week) or engaging in most of her usual leisure pursuits.
However, through the period from August 2014 to mid–2015, circumstances impacted on the plaintiff’s mental well-being, increasing her psychological fragility. The motor vehicle accident reawakened earlier anxieties about motor vehicles. The plaintiff’s previous experiences of motor vehicle trauma and her underlying personality predisposed her to a strong psychological reaction to the accident. Her capacity to work was challenged by her physical injuries. She was very concerned about her sister’s psychological situation. She underwent a relationship breakup. These stressors influenced the plaintiff’s experience of pain.
In April 2015, the plaintiff was well on the way to recovery when the relatively lengthy motor vehicle trip to Wollongong revived and increased her anxieties. It is likely that, in the context of the other stressors that the plaintiff faced, the psychological stress that was associated with the trip caused a significant worsening of the plaintiff’s experience of pain, leading to her formalisation of a four-day working week shortly after she returned from the trip.
In mid-2015, the plaintiff’s general practitioner identified that anxiety was playing an important part in the plaintiff’s condition and referred her for “pain management counselling”. In mid-2015, Dr Higgs was confident that the plaintiff should be able to return to work but suggested the possibility of PTSD. He considered that the plaintiff should largely be able to self-treat her physical condition, but she should continue with psychological treatment.
At that stage, Ms Hollands considered that the plaintiff’s desire to co-operate and return to work full-time had caused her to minimise her physical and psychological difficulties, resulting in instability in her pain and physical and emotional functioning. Ms Hollands suggested that the plaintiff should work four days a week while she was counselled in relation to pain management. However, as a psychologist, Ms Hollands would not have appreciated the very limited extent to which the physical trauma of the accident was still having an objective physical impact upon the plaintiff.
Since mid–2015, the plaintiff has continued to experience a significant level of pain in her cervical and thoracic regions.
I accept that there is an objective basis for the plaintiff to experience some pain and to experience flare-ups of pain from time to time. However, the level of the pain that she has experienced is not explicable on an objective physical basis. Rather, she is a psychologically fragile individual who has been over-medicalised and suffers from underlying generalised anxiety and a specific anxiety about motor vehicles. The stressors to which she has been subjected over the past few years have greatly amplified her experience of pain.
The plaintiff has been capable of working only four days a week and has been restricted in her domestic and leisure activities because of the pain that she has subjectively experienced as a result of the accident.
The plaintiff’s headaches have been caused by the anxiety associated with the accident combined with the plaintiff’s experience of pain in the cervical area.
The plaintiff’s dental conditions of TMD and bruxism were caused by the anxiety associated with the motor vehicle accident.
The plaintiff is a young woman who was previously very active and who has experienced more than three years of significant pain.
Fortunately, she is well-placed to recover from the pain condition from which she currently suffers. She would benefit from multidisciplinary evaluation and treatment through a pain clinic. She is performing at an “exceptional” level in her work. She is in a supportive relationship and is looking to the future and the possibility of starting a family. This litigation has been very stressful and that stressor will soon be removed.
I was referred to the cases of Utting v Clarke [2016] ACTSC 168, Wainwright v Lee [2013] ACTSC 191 and Seta v Baker [2012] ACTSC 75, which were said to be reasonably comparable to the present case. The cases were of some assistance although, inevitably, the facts in each case were significantly different from those in the present case.
I assess general damages at $70,000.00, most of which is attributable to the past.
Treatment expenses
The second defendant funded most of the plaintiff’s medical expenses until about mid–2015, paying a total of $10, 695.57.
In addition, the plaintiff has paid a significant amount by way of medical and quasi-medical expenses.
The plaintiff gave evidence that, since December 2016, there has been a reduction in treatment expenses. Currently, her principal treatment is to undertake exercises, either at home or at a gym. She does a lot of stretching, utilises heat packs and does mindfulness exercises to manage pain. She continues to receive some physiotherapy and occasionally she consults her general practitioner or Ms Hollands.
The plaintiff said that, for pain, she takes Panadol, Panadeine, applies Voltaren cream and, occasionally, she uses Valium.
In Lumley v Sainsbury [2017] ACTSC 40 at [69]–[70], I summarised the position in relation to whether out-of-pocket expenses were recoverable in circumstances where their health benefit was questionable. If the cost of healthcare is great and the benefit to health is slight or speculative, the cost of treatment is generally considered to be unreasonable. However, where a plaintiff’s treatment providers encourage her to pursue treatment and the treatment provides short-term physical relief and psychological support, such treatment may be considered to be reasonable notwithstanding that, with the benefit of hindsight, it was not warranted.
Much of the physical treatment that the plaintiff has received since mid-2015 falls into this category.
Most of the treatment that the plaintiff has undertaken was recommended by her general practitioner. In March 2016, Dr Welberry recommended that, over the following 12 months, the plaintiff should see her physiotherapist monthly (or more often during exacerbations), should continue to see her massage therapist monthly or as required, should consult her psychologist one or two times a month or as required and her exercise program should be monitored by an exercise physiologist, if needed. Dr Welberry considered that a dental splint was “essential”.
In January 2016, Ms von Gavel made similar recommendations and anticipated that, beyond 12 months, the need for treatment would reduce markedly.
In February 2017, Dr Champion said that pain management treatment, pharmacotherapy, including antidepressant medication, continued physical therapy/exercise and further counselling would cost up to $4,000.00–$7,000.00 over the ensuing 12 months. Dr Eaton estimated the cost of comprehensive pain management to be $5,000.00.
Since the accident, the focus of the plaintiff’s physiotherapy and other physical treatment has been her cervical and thoracic condition, but treatment attendances have sometimes included treatment of the lower back. The cost of the treatment that has related to the plaintiff’s cervical and thoracic condition is recoverable as a reasonable expense.
Past out-of-pocket expenses
As to the physiotherapy and osteopathy expenses paid by the plaintiff from May/June 2015 to date, part of the services related to lumbar pain. I allow 80 per cent of the expenses paid by the plaintiff. Similarly, I allow 80 per cent of the pharmacy expenses paid by the plaintiff.
Because some of the psychological services related to other issues, where services were for more than one purpose, I allow 80 per cent of the monies paid for psychological services. I am aware that the plaintiff attempted to segregate the services into those referrable to motor vehicle anxiety and pain and those referrable to other issues.
There have been several consultations with the plaintiff’s general practitioner in relation to cervical pain and anxiety related to motor vehicles for which the defendants have not reimbursed the plaintiff. I allow the cost of those consultations.
The cost of dental services relating to bruxism and jaw problems is allowed.
As to massage services, prior to the accident, the plaintiff enjoyed massage treatments, partly because of her lumbar condition. I do not allow the cost of those services.
Mr Halpin designed an exercise program for the plaintiff in 2014 and recommended Pilates classes in early 2015. The cost of any activities that he recommended (such as gym attendances and Pilates) is allowed until the end of 2015.
However, from 2016, the cost of Pilates, yoga, swimming and gym attendances is not allowed. While the plaintiff may have been introduced to the activities by the accident, their continuance must be seen as principally of benefit to the plaintiff’s general health, including her lumbar problems, and the cost is not something for which the defendants should be held responsible.
The plaintiff’s mother and partner gave convincing evidence about the plaintiff’s ongoing anxiety in relation to motor vehicle travel. In that regard, her claims for paid services for transport are relatively modest and I allow them.
Future out-of-pocket expenses
Dr Cheesman, the plaintiff’s treating dentist, said that the cost of the night sleep appliance (to be worn in Phase 1 of treatment) was $2,500.00. It was difficult to predict the cost of Phase 2 of treatment; the cost ranged from $5,000.00 to $60,000.00 depending on the success of Phase 1.
In relation to future treatment, I allow $30,000.00: estimated $10,000.00 for dental treatment, $5,000.00 for pain management treatment, and allowances for antidepressant medication and counselling, occasional general practitioner attendances and occasional physiotherapy for future flare-ups.
Past and future economic loss
At the time of the accident, the plaintiff was employed as a public servant by DFAT. She worked 37.5 hours per week and earned approximately $1,460.62 net per week.
For the first two weeks after the accident, the plaintiff “soldiered on”. However, after consulting her general practitioner on 27 August 2014, the plaintiff reduced her work hours.
Between August 2014 and April 2015, the plaintiff took significant sick leave. She made no claim for this leave as she was paid when she took the leave.
Following the April 2015 car trip to Wollongong, the plaintiff ceased taking sick leave and, on 27 April 2015, she entered an arrangement with her employer to reduce her work hours from 37.5 hours per week to 30 hours per week or 80 per cent of a full-time work load. Generally, she has worked each Monday and Tuesday and each Thursday and Friday.
In September 2015, the plaintiff took a different position at the same level within DFAT. In her new position she was able to move about and was less desk-based. Further, the new job required her to travel about three times a year for short periods. She had struggled in her previous role because she was required to travel for longer periods and was primarily desk-based.
The plaintiff’s supervisor between September 2015 and August 2017 gave evidence that, on occasion, he had observed the plaintiff wearing a heat pack on her neck while working at her desk. At other times, he had seen her lying down in a quiet area of the office. The plaintiff had been provided with ergonomic equipment including a sit/stand desk and an ergonomic chair.
The plaintiff’s supervisor described the plaintiff’s performance as “exceptional”. In about August 2017, he encouraged her to apply for higher duties and she filled a higher duties position for several months.
The plaintiff’s supervisor confirmed that, to his observation, plaintiff suffered from some discomfort associated with travel. For example, in January 2016 when he travelled with the plaintiff to Laos, she was uncomfortable sitting in aeroplane seats. He offered to assist her with her luggage because she complained of a shoulder problem.
The plaintiff did not press any claim for loss of work opportunities in the period from the date of the accident to date.
I am reasonably optimistic that the plaintiff will return to full-time work over the next 12 months. However, this is not certain. Once she returns to work, the plaintiff may be required to take short periods of absence from work when anxiety associated with the accident is rekindled or when she suffers a flare-up of her whiplash condition. I am satisfied that there is no significant risk that accident related disabilities will limit the plaintiff’s employment opportunities.
The parties agreed that I should allow a buffer for future loss of earning capacity. The plaintiff proposed $100,000.00 plus an allowance of $17,000.00 for superannuation loss. The defendants suggested a buffer of $25,000.00 including superannuation loss. I consider a buffer of $35,000.00 (including superannuation loss) to be reasonable.
Superannuation
As a result of the 20 per cent reduction in the hours that she has worked, the plaintiff has lost 20 per cent of the value of the superannuation contributions that her employer would have made if she had been working full-time.
Domestic assistance
The plaintiff claimed for past and future domestic care and assistance pursuant to s 100 of the Civil Law (Wrongs) Act 2002 (ACT) and Griffiths v Kerkemeyer (1977) 139 CLR 161 (Griffiths v Kerkemeyer).
12 August 2014 to January 2015
During this period, the plaintiff was living with her former partner.
The plaintiff’s mother said that she assisted with heavy tasks, such as watering the garden and moving heavy furniture, for an estimated one hour per week.
The plaintiff’s mother said that, in addition, she transported the plaintiff about twice a week. This occupied her for about one and a half hours per week. It was the plaintiff’s evidence that, since the accident, she has been fearful about driving. She has avoided driving in heavy traffic or in poor light, relying on her mother, Uber, taxis and bus transport. She has less anxiety when she travels as a passenger.
The plaintiff said that, in addition, she was helped by her partner and friends.
It would be reasonable to allow three hours per week for this period.
January 2015 to December 2016
During this period, the plaintiff was living alone in a granny flat.
When moving into the flat, the plaintiff engaged a removalist and her mother assisted with the move. In addition, her friend, Ms Donaldson, spent one day helping with the move.
In submissions, the plaintiff accepted that it was common practice to engage a removalist and did not press any claim for removalist expenses.
The plaintiff’s mother said that she assisted the plaintiff to move into the granny flat by doing most of the packing. This occupied her for a total of about two days.
In evidence, the plaintiff said that, while living in the granny flat, she sometimes struggled to perform general household tasks and was assisted by her mother and, occasionally by friends. Her mother assisted her to attend to the small courtyard garden. She calculated that she received about two hours’ assistance per week. In addition, her mother drove her about or collected shopping for her. Those activities occupied her mother for an additional one hour per week.
The plaintiff’s mother said that she assisted the plaintiff by doing the heavier tasks such as vacuuming, assisting with the laundry and tending to the small garden. This occupied her for about two hours per week until about March 2015, when the plaintiff employed a cleaner. Thereafter, the plaintiff’s mother continued to assist the plaintiff with tasks such as changing beds and carrying out the garbage, for about one hour per week. She undertook these tasks because the plaintiff said that she was in pain. She continued to assist the plaintiff by driving her about.
It is reasonable to allow three hours per week for this period. The extra assistance provided by the plaintiff’s mother when the plaintiff moved into the granny flat is subsumed into this allowance.
January 2017 to date
During this period, the plaintiff has been living in a house with her new partner.
In evidence, the plaintiff said that, when she moved into the house with a new partner in December 2016, the couple engaged a removalist. Her sister assisted with the packing for about one and a half days. Her partner did most of the packing and lifting. However, the work that the plaintiff herself did caused her symptoms to worsen from that time.
The plaintiff said that, in her present domestic arrangements, she does most of the cooking. Her partner does the heavier housework including hanging the laundry, occasional vacuuming, weeding and mowing. The plaintiff does not undertake her full share of housework as it is “beyond” her.
The plaintiff’s partner confirmed that he does most of the housework, particularly the heavier housework such as vacuuming, unloading the dishwasher and mowing the lawn. He estimated that, on average, he performed one to two hours more housework per week than did the plaintiff. He did so because the plaintiff suffered from pain.
The plaintiff said that her partner assisted her by driving her to commitments. She estimated that this occupied about one hour per week of his time.
The plaintiff’s partner gave evidence that he regularly massages the plaintiff’s neck and shoulders with Voltaren cream and prepares a heat pack to place on her shoulders. These tasks occupied an additional period of about one hour per week.
The plaintiff’s mother said that she has continued to provide domestic assistance, mainly at times when the plaintiff’s partner was absent. In addition, she has continued to provide driving support for an estimated one and a half hours per week.
Again, I consider that it is reasonable to allow three hours per week for this period.
In relation to unpaid domestic and personal assistance, the plaintiff is allowed three hours per week for 175 weeks at $35 per hour.
In her present living circumstances and as her experience of pain is expected to dramatically diminish following the conclusion of these proceedings, the plaintiff’s need for these services will also dramatically diminish, but she may need occasional assistance thereafter. I allow a small buffer to meet that contingency.
In Cressy v Miloriad (No 2) [2016] ACTSC 339; 317 FLR 267, applying Grincelis v House [2000] HCA 42; 201 CLR 321, Mossop AsJ held that interest should be allowed on Griffiths v Kerkemeyer damages to take into account the loss of use of the money.
Paid assistance
Since early 2015, the plaintiff has employed a cleaner to do the heavier housework such as vacuuming. The plaintiff has employed a gardener to undertake heavy work such as hedge trimming. It is reasonable allow these relatively modest expenses.
It is unlikely that the plaintiff will incur much by way of future expenses for heavy gardening or housework, unless she chooses to engage a cleaner or gardener for reasons of personal convenience. I will allow a small amount for the future.
Damages
I award damages as follows:
(a)Non-economic loss $70,000.00
(b)Interest on past non-economic loss of $50,000.00 $3,500.00
(c)Past out-of-pocket expenses (including transport and domestic services)
(i)Paid by defendants $10,695.57
(ii)Paid by plaintiff (including interest) $22,701.61
(d)Future out-of-pocket expenses $30,000.00
(e)Past wage loss (as calculated by the plaintiff) $34,000.00
(f)Interest on past wage loss $4,800.00
(g)Loss of superannuation (as calculated by the plaintiff) $5,800.00
(h)Buffer for future loss of earning capacity including superannuation $35,000.00
(i)Past Griffiths v Kerkemeyer expenses (3 hours p/week at $35 p/h) $18,375.00
(j)Interest on past Griffiths v Kerkemeyer expenses $1,300.00
(k)Allowance for future paid and unpaid domestic services $5,000.00
Costs
On 19 December 2017, I gave the parties an opportunity to agree on an appropriate costs order. By consent, on 1 February 2018, I made an order that the defendants are to pay the plaintiff’s costs:
(a)on a party/party basis up to the commencement of proceedings, as agreed or assessed; and
(b)on a solicitor/client basis from the commencement of proceedings, as agreed or assessed.
| I certify that the preceding one hundred and seventy-five [175] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: 27 February 2018 |
7
1