Ekpe v Darling & Anor No. DCCIV-99-367

Ekpe v Darling & SGIC
[2000] SADC 50

Judge Muecke
Civil

This is an assessment of damages for injuries the plaintiff suffered when she was struck by a vehicle driven by the first defendant at a pedestrian crossing at the junction of Fullarton Road and Fergusson Avenue Highgate at about 3 pm on 19 July 1995. Liability for any damages arising from the accident was admitted by the defendants.
At trial the plaintiff was unrepresented. She appeared on her own behalf. In opening she indicated that she had not arranged for the attendance of any witnesses (other than herself). Medical reports of Doctors Lum, Mills, and Hone were ultimately tendered on the basis that they contained the evidence that those doctors would have given if called. Counsel for the defendants informed me that he did not oppose the tendering of those medical reports on that basis because the plaintiff had not made arrangements for those doctors to attend at the trial. Accordingly, I have not had the opportunity to hear from any of the doctors upon whom the plaintiff sought to rely at trial. I would have been assisted by their oral evidence.
In her Statement of Claim filed on 15 March 1999 (which is in her handwriting) she alleges:
(a) she initially experienced severe pain in the neck, lower back, thoracic region, both knees, right leg and ankle, swelling in the left front of her head, headaches, weakness and fainting.
(b) X-rays and examination revealed a number of fractures and other soft tissue injuries.
(c) she has continued to suffer pain in the affected areas including a painful sensation radiating from the lower back to her heels.
(d) certain of her recreational activities have been seriously affected.
(e) her earning capacity has been affected as her ability to do certain work has been hindered, because she cannot lift certain loads or heavy objects or remain in certain positions for long.
(f) she will suffer economic loss in the future due to her ongoing disabilities. Her work with animals requires a lot of bending, squatting and straining and her injuries will, in the future, make it difficult for her to perform these duties properly.
(g) She has paid some medical bills since the accident (SGIC have paid certain other medical expenses) and she has expended money on taxis which she needed to do as a result of her injuries.
(h) She will require medical attention in the future including a knee replacement operation and a hip replacement operation, and possibly those operations will need to be repeated.
(i) She will require ongoing physiotherapy treatment and other medication.
(j) Her ability to perform household work has been affected and she has required and will continue to require assistance for that work in the future.
(k) She continues to suffer pain from her injuries.
During the plaintiff’s evidence and submissions these allegations were developed and added to. For example, she ultimately submitted that her injuries had prevented her from obtaining higher academic qualifications and that failure had caused her economic loss. I deal with this and other claims made by the plaintiff later in these reasons. I note here, however, that there was a paucity of evidence presented by the plaintiff at trial as to her claims for past and future economic losses.
The manner in which the plaintiff gave her evidence was such that it was not always easy to clearly discern what she was saying about the circumstances of her life, the events which occurred before and after the accident and the part played by the injuries she suffered in the accident in the events subsequent to it.
During her evidence she frequently gave long and somewhat rambling answers to questions and sometimes these answers did not address the question that was asked. I concluded that that was sometimes a conscious device on her part to avoid answering particular questions. Sometimes her evidence was rational and logical and sometimes it was punctuated by anger or tearful emotion. I have no doubt that for years she has been ruminating on various circumstances in her life since she came to Australia from Nigeria in March 1990. Many times I had difficulty in discerning a rational and logical basis to her evidence. She became frustrated and sometimes angry on a number of occasions when I admitted evidence on certain topics. She wanted me to receive only some of the medical reports of Dr Mills and Dr Hone, the ones she thought favoured her, and to exclude the ones that she thought did not favour her.
Because of these matters I have little confidence in making important findings based on her oral evidence alone. That is not because I think that she was trying to mislead or deceive me in much of the evidence she gave, but is because I am not confident that she is able now to know whether what she says is from an actual memory of events or is influenced by a perception of what she thinks the events were. I think that the plaintiff’s perception of many of the events about which she gave evidence is now significantly coloured by her belief that she has been wronged by many people and organisations with whom she has come into contact since she came to Australia from Nigeria.
The following facts emerge from the evidence.
The plaintiff was born in Nigeria on 17 November 1955 and came to Australia in March 1990 pursuant to an arrangement between the Australian and Nigerian Governments. The purpose of her coming to Australia was to obtain a Ph.D. in animal reproduction in the Department of Animal Sciences of the University of Adelaide. The subject of her thesis was to be the contribution of paternal heat stress to infertility and embryonic mortality. Prior to coming to Australia she was a research fellow on the academic staff of a university in Zaire, Nigeria. She had obtained a Bachelor of Science (Honours) in Animal Science from the University of Nigeria and a Master of Sciences (in Agriculture) from the University of Ibadan.
After a year at the University of Adelaide when she had to be judged as a suitable candidate to proceed with her Ph.D. she commenced her research program in order to obtain her Doctorate. She entered and remained in Australia on a student visa.
Her sponsor in coming to Australia was the Australian Agency for International Development (‘AusAid’). She was paid an allowance by AusAid to sustain her during her studies and research. She was supervised by a member of the academic staff of the University of Adelaide.
At least by sometime in 1994 tensions had developed between the plaintiff and her supervisor. By August 1994 the plaintiff believed that her supervisor was trying to prevent her from completing her doctoral thesis. The plaintiff also believed that her supervisor was taking credit at international conferences for the research work that she had done for her thesis without acknowledging that it was her work.
By June 1995 the plaintiff’s thesis was largely completed. Her supervisor suggested that she revise the completed work consistent with some suggestions he had made. He also pointed out that a section was missing from the thesis. He said that the thesis should include a literature survey to which he had already drawn attention. The plaintiff’s thesis was then due to be submitted to the examiners by the end of July 1995. The plaintiff worked on the corrections and the additional section between the latter half of June 1995 and the early half of July 1995.
On 19 July 1995 the plaintiff was walking across a pedestrian crossing at the junction of Fullarton Road and Fergusson Avenue Highgate when a motor vehicle driven by the first defendant struck her on her right side. She was thrown into the air, landed on the bonnet of the first defendant’s vehicle and then fell onto the roadway. She had to be carried to the side of the road and was taken to the Royal Adelaide Hospital by Ambulance.
At casualty at the Royal Adelaide Hospital she was examined and X-rays were taken of her chest, right shoulder and scapula, pelvis and right hip, and her right knee. Little of significance was said to be revealed by X-rays.
She consulted a general practitioner Dr Lum on 24 July 1995 complaining of severe pain of her right scapula, right pelvis and right knee. Dr Lum found tenderness on examination over the right scapula and right pelvis. Her right knee was bruised and swollen. He diagnosed extensive soft tissue injuries and gave her Feldene for pain relief. He reviewed her on a number of occasions up to 30 August 1995 when she complained there had been no improvement in her symptoms. Dr Lum referred her to an orthopaedic surgeon Dr Oakeshott who obtained a medical imaging report on her right knee on 4 September 1995. That showed what appeared to be very minor intra-meniscal degenerative change in the posterior horn of the medial meniscus, but no meniscal tear was seen. There was a very small joint effusion. Dr Oakeshott thought that the plaintiff had ‘marrow bruise associated with minor tabecular fracturing within the bone rather than on its external surface’. He recommended conservative management.
Probably in September 1995 the plaintiff was seen by orthopaedic surgeon Dr Manyard who reviewed her back and knee. He recommended a conservative approach with use of anti-inflammatories for her soft tissue injuries.
In the meantime the plaintiff had sought and obtained an extension for the submission of her thesis. The university had granted her an extension to the end of September 1995, partly on the basis that she had been injured in the accident on 19 July 1995. (This was probably a further extension because the due date of the end of July 1995 was probably an already extended due date.)
She submitted her completed thesis to the examiners for her Ph.D. on 27 September 1995.
Also on 27 September 1995 she consulted Dr Colin Mills of the Occupational Health Service for medico-legal purposes regarding the injuries she received in the motor vehicle accident. A solicitor she had consulted at that time sought a report from Dr Mills. Dr Mills reported on 30 October 1995 that he found clinical evidence of low lumbar pathology, soft tissue injury to the right medial scapular muscles, soft tissue injury to the right ankle and micro-trabecular features of the lateral femoral condyle. He recommended referral to an orthopaedic surgeon specialising in spinal dysfunction to investigate the plaintiff’s low back pain which extended into the right hip, lateral thigh and calf, with occasional loss of sensation in the sole of the right foot. He recommended that further comment be obtained from Dr Oakeshott in respect of the plaintiff’s right knee. He thought it was unlikely that the plaintiff would have any significant long term effects on her employment prospects due to any injury to her shoulders and right ankle.
Dr Mills reviewed the plaintiff on 1 November 1995 with a CAT scan of her lumbar spine. He thought that a finding on the scan of a small osteophyte projecting posteriorly on the right and mild canal stenosis was consistent with the plaintiff’s symptoms. He noted that the plaintiff had been referred by Dr Lum for some physiotherapy after which he expected considerable improvement.
Dr Mills reviewed the plaintiff on 12 December 1995 when her symptoms were lessening but had not resolved. She was continuing with physiotherapy and he made arrangements to review her in the first week of January 1996.
Having submitted her thesis for her Ph.D. the plaintiff was due to return home to Nigeria. By early December 1995 she had obtained an application form from the Australian immigration authorities to seek refugee status and thus remain in Australia. At various times in 1993, 1994 and 1995 the plaintiff had been associated with publications prepared by the Nigerian community within Australia which were critical of the governing regime in her country. From at least 1994 (and possibly before then) the plaintiff had decided that she wished to remain in Australia and not return to Nigeria as was expected following the completion of her doctoral thesis. By at least late in 1995 she had resolved to seek refugee status in Australia if she could not otherwise remain in Australia. She had partly completed an application for refugee status by 9 December 1995.
At a review by Dr Mills on 10 January 1996 she reported significant low back pain extending to her right hip and calf. Her low back movements were restricted with stiffness. She was tearful, distressed and concerned that her resident status in Australia would be terminated and she would be returned to Nigeria. Dr Mills referred her to orthopaedic surgeon Dr Michael Hone for him to consider her persistent low back symptoms.
Dr Hone saw the plaintiff on 19 January 1996. He reviewed the X‑rays that had been taken at the Royal Adelaide Hospital and he reported that the X‑rays ‘had missed the fact that she had a fracture of the right left lumbar transverse process which is a very significant injury and would account for her backache’.
Dr Hone stated in a document dated 19 March 1996 that the plaintiff was ‘continuing to have physiotherapy treatment to her back and still has restriction of movement of her lumbar spine especially in rotation. She will need to continue to have this type of treatment for at least six months, possibly longer. Her visa expired on 5/4/96 and in my opinion she will need an extension of her visa for at least six to twelve months so that she can continue her medical treatment.’ I infer that this document was prepared by Dr Hone at the request of the plaintiff’s then solicitor to be used to extend the plaintiff’s student visa beyond the time that she ordinarily would have been required to return to Nigeria.
The plaintiff was examined by Dr Alan Gormly of the Australian Government Service on 28 March 1996. In that report Dr Gormly referred to her recovery from the injuries she suffered in the accident as being quite slow for a variety of reasons. He did not consider that air travel was precluded by the nature of her condition. Provided she was given adequate oral analgesia and was provided with a business class aisle seat where she could move about freely, Dr Gormly regarded her as being capable of completing her journey to Nigeria unaided. The plaintiff read Dr Gormly’s report on 2 April 1996.
By letter dated 2 April 1996 the plaintiff’s then solicitor was informed by AusAid that it expected her to travel to Nigeria on 13 April 1996. Her visa had been adjusted to cover her up to that date.
Upon being advised of this the plaintiff submitted the application for refugee status which, if granted, would allow her to remain in Australia. It was not until December 1996 that she was granted refugee status.
By letter dated 2 April 1996 Dr Mills reported to Dr Lum that the plaintiff’s thesis had unfortunately not been accepted and required rewriting. That had caused the plaintiff concern and ‘complicates matters’.
Between 19 January 1996 and 14 May 1996 the plaintiff consulted Dr Hone. (Dr Hone refers in a report dated 14 May 1996 to having ‘first’ seen her on 19 January 1996). In that report Dr Hone informed SGIC that the plaintiff was recovering from the injuries she suffered in the motor vehicle accident. He said that her main injury was to her lumbar spine for which she was being treated by physiotherapy and had ‘almost completely recovered from her treatment, although she still requires continuing physiotherapy treatment’. He said that whilst she was still handicapped by her injuries and was still impaired from her normal enjoyment of life, his opinion was that that was not significant. He had not issued a sickness certificate. Her condition was almost stable although further improvement could be expected. He stated that there ‘may be a minor permanent residual disability’ and that ‘she will be able to resume her full time employment in the future.’
Between submitting her application for refugee status and it being granted the plaintiff saw Dr Mills from time to time. He reported that her low back and right knee symptoms remained, together with anxiety related to her immigration status. In November 1996 Dr Mills reported to Dr Lum - ‘she is in quite a state. She is distressed, tearful and concerned about returning home where she is fearful of being jailed or worse. Her immigration status is under review ... Her thesis has not yet been authorised and she believes there is plagiarism by some of the senior lecturers ... She is clearly terrified about returning home, and concerned’. He thought that the plaintiff’s medical condition was being heightened by her anxiety about her immigration status and the status of her doctoral thesis.
On 14 October 1996 the plaintiff was seen by Dr Hone. She complained to him that she was still having pain in her lower back and in her right knee. His examination showed there was superficial tenderness over the right knee. There was no effusion in the knee joint. She wouldn’t let her knee be examined easily although flexion and extension were normal compared to the left. Measurement of the circumference of the thighs five inches above the patella showed they were both normal. Dr Hone did not report on any examination of the plaintiff’s lower back at that time.
Dr Mills saw the plaintiff on 20 January 1997 after she had been granted refugee status. She reported pain and restricted lumbar movement and pain in the right knee, with some psychological symptoms including flashbacks of the accident. He referred her to an industrial psychologist for assessment but she did not attend. He reported to Dr Lum that her low back movements remained mildly restricted but there was no scoliosis, loss of lordosis or alternation in the neurology. Her right knee movements were restricted.
Whilst she was granted refugee status on 6 December 1996 she needed still to obtain a protection visa. Before that could be done certain medical requirements needed to be fulfilled. She had a medical examination in Adelaide in early 1997 which was not satisfactory. Either she determined to have further examinations in Canberra or the immigration authorities made such arrangements for her. She travelled to Canberra via Sydney in June 1997 and, following satisfactory medical examinations in Canberra, she was granted a protection visa on 17 July 1997. Her permanent residency in Australia was thus ensured.
Between November 1996 and January 1997 the plaintiff obtained some part-time work at the University of Adelaide working as a technologist at the Waite Institute developing an improved strain of barley. This was in a different discipline to that which she had been conducting research for the purposes of her Ph.D. She reported to Dr Mills on 20 January 1997 that her low back had been aggravated by that part-time work.
In about the middle of 1997 she applied for unemployment benefits and she has been in receipt of such benefits from July 1997 to date.
Between July 1997 and December 1998 the plaintiff remained out of South Australia. She travelled to various places in the eastern part of Australia and spent the majority of her time living in Sydney. There is no evidence (other than her oral evidence) that she consulted any medical practitioner, had any treatment or took any medication in respect of the injuries she suffered in the motor vehicle accident in that eighteen month period. In her evidence she vaguely referred to complaining to a doctor in Lismore ‘I think about the pain, and he told me ... to see a physiotherapist’. I find that she did not consult any medical practitioner or have any treatment or medication in respect of her injuries in this period.
After obtaining permanent residency in Australia in July 1997, she turned her attentions towards attempting to obtain satisfaction from the University of Adelaide and the examiners responsible for considering her doctoral thesis. Her thesis was rewritten and resubmitted from time to time. She said that she submitted the final version of it in about the middle of 1998. She has heard nothing further from the examiners or the University.

She returned to Adelaide in December 1998 and saw Dr Hone again on the 17th of that month. She reported to him she was then living in Sydney. Dr Hone’s examination ‘showed a woman that moved well and she walked without a limp. Examination of the lumbar spine showed there was no tenderness. There was no scoliosis. There was good lateral flexion to the right and left. She could flex her back to place her hands on her mid thighs and this caused considerable amount of shaking. Extension was limited. Examination of the right knee showed there was a full range of extension. It was impossible to check on her flexion because she wouldn’t let her knee be bent. There was no effusion in the right knee joint. There was no tenderness over the right knee joint. There was particularly no tenderness over the patella and the lateral side of the patella was mobile.’ Dr Hone expressed the opinion that she had a permanent residual disability of 15% loss of function of the lower back and lumbar spine. He also expressed the opinion that she had a permanent residual disability of 5% loss of function of the right knee. He thought it possible that she could need further intermittent physiotherapy treatment to both her back and her right knee. This may involve physiotherapy on one or two occasions, possibly two or three times a year. In his opinion her injuries should not restrict her working capacity.
On 12 January 1999 she returned to see Dr Mills. She told him her thesis had still not been accepted by the university and she was annoyed, believing data from her thesis had been published and two supervisors given awards on the basis of her work. Dr Mills thought the plaintiff’s condition was stable and expressed the opinion that she had a 7½% disability to her right medial scapula; a 3% disability to her lumbar spine; and a 15% disability to her right leg below the knee. He thought her right knee was more prone to early degeneration and it was possible she will require invasive surgery including possible knee replacement. He expressed the opinion that aggravation of her right shoulder, low back and right knee was likely in her work if she uses those joints frequently. If work with animals involves heavy lifting or work in awkward positions when restraining the animal, there is a risk of aggravation. He stated - ‘In the absence of a detailed description of her work, I can only give generalised comment about the effects of her work on her injuries’.
On 15 March 1999 the plaintiff commenced these proceedings.
On 23 April 1999 the plaintiff commenced proceedings against the University of Adelaide, the Post Graduate Studies and Dr Simon Maddocks. In her Statement of Claim filed in this Court against those defendants she alleged that they had deliberately ‘sat on (her) Ph.D. results for more than three and a half years, thereby denying her the opportunity for gainful employment’. She alleged that she had completed and submitted her Ph.D. thesis on 27 September 1995 after initial unsuccessful attempts by her supervisors to prevent her from completing it. Amongst other serious allegations against the university and the other defendants she alleged that they and another had conspired to deny her her Ph.D. degree. She alleged that those defendants ‘have made it impossible for (her) to find suitable and gainful employment thereby condemning her to a life on the dole ...’. She alleged circumstantial evidence indicating that in all ‘places where (she) sought employment, (it) was promised and then turned down, that sources within the university influence their decision.’ In her evidence before me she seemed to suggest that the allegations she wrote in this Statement of Claim were not meant or were not relevant because she did not serve the Statement of Claim. I found her evidence as to that matter completely unconvincing and nonsensical. I consider that she meant what she wrote in the Statement of Claim.
The plaintiff saw Professor Robert Bauze at the request of the defendants’ solicitors on 11 January 2000. She reported to Professor Bauze that she had pain in the right low back going into the buttock and hip, to the outer aspect of the right thigh and to the right knee and to under the right heel. She said she had upper back pain which also occurred with changing weather or carrying things. She said there was pain in the front and the inner side of the upper tibia below the knee. There was some pain and stiffness behind the knee and she could not fully flex it due to pain. She said there was pain on the outer aspect of her right ankle along with pain in the whole right leg. She said that she had not really tested herself with any work but that she could probably do ordinary laboratory work. However, work with animals which involved restraining them and taking samples from them, especially a ram, would be difficult and she thought that would give her a lot of pain, particularly in her back. She said she was having no specific treatment. She took Panadol and Panadeine but did no exercises or other activity. Professor Bauze examined the plaintiff and noted the reports of various investigations that were quoted in the reports of Dr Mills and Dr Hone. Professor Bauze thought that the plaintiff had sustained generalised bruising in the motor vehicle accident on 19 July 1995. She may have sustained a crack fracture of the right scapula and a ‘bone bruise’ on the right lateral femoral condyle. He thought it likely that she also sustained a fractured transverse process of the L4 and L5 vertebrae on the left. He thought she had made a good physical recovery from the accident but remained with right sided sciatica and some right knee pain. He thought she had a degenerative condition of her lower lumbar spine which had been aggravated by the accident and that the aggravation was persisting to some degree. He thought there was a very significant non-organic component to the presentation of her complaints of pain and the inability to use her right leg properly. The right knee did not have significant pain in the area of the ‘bone bruise’. He thought that that problem had dissipated, although she remained with tenderness in fibrous strands within the infra-patella bursa of the right knee. She appeared to have recovered from the lumbar transverse process fracture. He did not think there was any significant abnormality in her thoracic spine.
He thought there was probably a permanent residual disability from the aggravation of her lower lumbar spinal degeneration although the level of disability was difficult to assess because of non-organic factors. The assessment of her right leg, particularly in the examination situation, was clouded by abnormal behavioural responses. He thought it was reasonable that she would have difficulty restraining animals such as rams. Otherwise he thought she should have no significant disability for domestic or social activities. He found no indication for any need for surgery either currently or in the future to either her back or right knee. It might be that she would progressively develop some lumbar spinal stenosis or similar condition which would require decompressive surgery, but that would not be related to the accident. He thought that aggressive physiotherapy treatment and hydrotherapy to her back and her knee might improve her physical condition. However in the presence of non-organic factors, and a continuing claim, the prospects of sustained improvement were not good. He thought psychiatric assessment might be warranted with a view to helping her through various psychological pressures of the accident, the associated claim, the current rejection of her Ph.D. thesis, her poor financial state, her concern for long term employability, her Australian residential status, the Nigerian civil war and the loss of contact with her family in Nigeria. He expected a very significant further improvement with aggressive physiotherapy and hydrotherapy and a permanent disability in the order of 5% loss of function of the right lower limb at and above the knee, and 10% loss of function of the lower lumbar spine.
Professor Bauze gave evidence at the trial. He said his assessment of 5% loss of function of the plaintiff’s right leg was clouded by the abnormal behaviour of the plaintiff and the non-organic factors he noted during his examination. He also said that whilst there was some restriction of her knee in full flexion it wasn’t entirely clear why she should have that restriction.
As to his assessment of 10% loss of function of the lower lumbar spine he said that only about half of that loss was attributable to the motor vehicle accident. He said that it was difficult for him to say what activities the plaintiff should avoid doing with her lower lumbar spine condition because she hadn’t really tested herself with any work since the accident. He said he had little experience with farm animals but thought that restraining rams might be hard work which he would advise her not to do. He agreed with the proposition that the only thing she really ought to take care with was very heavy work, including occasionally working with large heavy animals, and even that depends on seeing how she goes doing it.
The defendants’ solicitors arranged for the plaintiff to see a psychiatrist for medico-legal purposes. She cancelled the appointment because she saw no need for it.
Conclusions
I am satisfied that the accident on 19 January 1995 caused the plaintiff considerable shock and severe pain in her upper back, right pelvis and her right knee. These injuries severely restricted her in the weeks immediately following the accident. Whilst a number of her injuries gradually diminished and eventually resolved she continued to have problems with her right knee. Low back pain with associated sciatica emerged soon after the accident which continued to trouble her thereafter.
Prior to the accident the plaintiff was in good health and had no symptoms in any part of her back or right leg. She was able to perform all the duties associated with her research and the writing of her thesis without discomfort or impediment.
The accident aggravated her asymptomatic degenerative back such that she suffered symptoms of back ache and discomfort. She also suffered symptoms in her right leg associated with the aggravation to her degenerative back. The degenerative condition of her back at the time of the accident was no more significant than is found in many members of the community of the age of the plaintiff, being 39 years at the date of the accident.
Associated with the aggravation of degenerative changes was a fracture of the left transverse process of the fifth lumbar vertebra which had healed by the middle of 1996, thereafter causing no further discomfort.
Her injuries had stabilised by the middle of 1996 and by the end of 1996 all the injuries she suffered in the accident had resolved (including her upper back and shoulder problems) except for continuing problems with her lower back with associated sciatica into her right leg, and with her right knee. Her impairment from the normal enjoyment of her life at that time as a result of these continuing problems was not significant. I think Dr Hone’s opinion of May 1996 that ‘she will be able to resume her full time employment in the future’ albeit with a minor permanent disability accurately expresses her disabilities at the time of that opinion. Dr Hone indicated that further improvement could be expected with further medical treatment in the form of physiotherapy.
I am satisfied that from the end of 1996 the plaintiff has experienced pain and discomfort in her lower back, right leg and knee from time to time, but such pain and discomfort has not been sufficient for her to have physiotherapy treatment.
I am satisfied that from about the end of 1996 her disabilities and the pain and restrictions they have caused her have not been as bad as she described them in evidence and to doctors who have seen her since she returned to Adelaide in December 1998.
At the time of the accident the plaintiff was under considerable stress because it appeared to her that she might have to return to Nigeria against her wishes. She was also under significant stress caused by disputation with her supervisors and the University of Adelaide regarding her thesis. The former problems continued until she obtained a protection visa in July 1997. The latter problems still exist. Both have caused her significant anxiety and distress, although that is likely to lessen with one of these problems resolved and this case decided.
Although the evidence on this is faint, my assessment of the plaintiff is that her personality is such that she reacts to stresses in her life in an extreme and even paranoid way. Her single-minded preoccupation in the last six years with the accident, the university and her thesis and her immigration status evidences this. Because of her personality I consider that the somewhat mild physical symptoms she might experience from time to time in her back and right leg are somewhat magnified as a result of her personality, particularly at times when she is under stress from other matters. My assessment for her general damages reflects this. That is I have compensated her for the magnified symptoms.
I consider that the permanent disabilities of her lower back (with associated sciatica) and right knee each represent no more than a percentage disability of between 5% and 10%. Together they do not produce any more than mild to moderate discomfort from time to time depending upon what activities the plaintiff is undertaking. I accept that such disabilities would cause her discomfort when handling heavy rams if she was to perform such work. She told me that she had done that in the past as part of her research for her Ph.D. She said that she didn’t think that she could do that work. The medical evidence suggested that that might cause her discomfort. However, that evidence was not given with any confidence because the plaintiff had not attempted to do any work since the accident except for a short period of part‑time work in late 1996 which she said aggravated her right knee and low back. I do not accept that that caused her to give up that work. Rather I consider that that work either was no longer available or the plaintiff’s energies were totally taken up with dealing with her immigration problems.
Professor Bauze spoke of aggressive physiotherapy and hydrotherapy which would effect very significant further improvement in her. I am satisfied that it would, perhaps not so much because her physical disabilities would significantly improve but because physiotherapy and hydrotherapy might be a palliative to assist her to discover that her physical disabilities do not disable her as much as she might think. I allow for some such treatment in the future.
I am satisfied that the injuries the plaintiff suffered in the motor vehicle accident interrupted the completion of her thesis to the extent that they were partially the reason for her seeking and obtaining a further extension to the end of September 1995. I am not satisfied however that her injuries affected the quality of the additional work that she did on her thesis between the accident and 27 September 1995 when she submitted it. I find that none of her injuries affected the quality of her thesis. Insofar as she gave evidence that it did I reject that evidence. Her Statement of Claim makes no such suggestion and her Statement of Claim against the University of Adelaide and others, filed only one month after the Statement of Claim in this action, is based upon allegations that her supervisors conspired (amongst other allegations) to prevent her from obtaining her doctorate. That Statement of Claim makes passing reference only to the motor vehicle accident. It does not suggest that the accident had affected the quality of her thesis.
In her Statement of Claim in this action she claims that her earning capacity has been affected as her ability to do certain work has been hindered because she cannot lift certain loads or heavy objects, or remain in certain positions for long. She also claims she will suffer economic loss in the future due to her ongoing disabilities. She refers to her Ph.D. work in agriculture and says that her work requires a lot of bending, squatting and straining. In her evidence she told me about her work with heavy rams during her research work for her Ph.D. I do not know whether all jobs which she might be able to obtain within her discipline require her to handle heavy animals or whether there is employment within her field within laboratories where no handling of animals is required. She told me that she would be fit enough to do the latter type of work but that she would need assistance to do the former. That is, she would need assistance when handling heavy animals of that was a part of any research work.
I note in her Statement of Claim against the University of Adelaide that she claims that the defendants in that action have made it impossible for her to find suitable and gainful employment. She refers to circumstantial evidence indicating that she had sought and been promised employment only to be later turned down, allegedly after the University of Adelaide intervened to frustrate her employment opportunities. This does not sit easily with the allegation that her injuries have, in fact, caused her economic loss or have resulted in an identifiable loss of earning capacity.
I was given no assistance as to what work would be open to the plaintiff in her discipline consistent with her qualifications, and whether and to what extent any such work would require her to perform activities which might aggravate her back and right leg.
Despite all of this, I am satisfied that her injuries have prevented and will in the future prevent her from consistently doing some activities which might be part, albeit a small part, of any employment she might obtain. The impairment of her earning capacity as a result of all her injuries has been since the end of 1996 and will be into the future no more than 10%.
But the plaintiff has some disabilities arising from the accident which do diminish her capacity to earn which must be reflected in an award of damages. The only evidence I have as to any of the plaintiff’s earnings is her evidence that she earned $19.00 an hour in her part-time work she had as a technologist at the Waite Institute. She also said that she could earn $60,000 per annum. I understood her to say that she could earn that if she gained her Ph.D., and that such a sum was the result of a calculation she made based upon an hourly rate of $19.00. That is the extent of the evidence to assist me in assessing the plaintiff’s economic losses. Even this evidence is contradictory because $19.00 per hour does not work out to $60,000 per year but is rather closer to $40,000 assuming an eight hour day and a five day week.
So far as the plaintiff’s past economic losses are concerned I consider that for the vast majority of that time her preoccupation with attempting to gain her doctorate and permanent residency in Australia has prevented her from seeking to exercise such capacity as she has had to work since the accident. I am not satisfied that the plaintiff did anything to try and exercise her capacity to work from the middle of 1997 to the end of 1998 when she was out of South Australia. I also have some indications from her Statement of Claim against the University of Adelaide and others and from her evidence that she has made a few inquiries at Universities for work but has obtained none. There was no suggestion that those attempts were unsuccessful because of her injuries. Furthermore, presumably she applied for employment which she considered she was capable of doing both academically and physically.

The evidence and my findings do not justify anything more than a nominal award for past economic losses. I award $3,500.00 for the plaintiff’s past economic losses.
The plaintiff’s $19.00 an hour for the part-time work she did for the University produces a net annual sum of about $30,000.00. Using the multiplier of 665 from Luntz for a woman of the plaintiff’s present age on such an income produces about $380,000.00. A 10% impairment of earning capacity on such a sum produces $38,000.00.
Recognising that such a calculation is only as good as its component parts, it is the best I can do to check that an allowance of $35,000.00 for the plaintiff’s future loss of earning capacity is not an inappropriate sum. I allow that sum for the plaintiff’s future economic losses.
For past medical and other expenses I again have little evidence. The plaintiff produced no receipts for any expenditure which had not been paid by SGIC. She spoke of requiring the use of taxis every day in the two months after the accident. I allow $150.00 for that. I reject her claim for assistance in the home. Not only were no receipts for such assistance provided but her evidence was to the effect that she did not get any assistance in the places she had lived.
For future medical and other expenses I allow $1,000.00 for possible intermittent physiotherapy and hydrotherapy. This will be more as a palliative than a cure for any of her injuries. I do not find that she will probably require surgery in the future.
For pain, suffering and loss of amenities I assign a numerical value of 14 on the Wrongs Act scale. Two thirds of the resulting sum is for past losses. The multiplier being $1,450.00 I award the sum of $20,300.00 for the plaintiff’s non-economic losses.
For interest I award a lump sum of $1,500.00 on the plaintiff’s past losses.
There will be judgment of the plaintiff in the sum of $61,450.00.

[2000] SADC 50

14 April 2000