Evans v Lock No. DCCIV-96-1560 Judgment No. D3770

[1998] SADC 3981

EVANS v LOCK

Civil
Judge Herriman

The plaintiff has sued for damages for personal injury suffered by her in a motor vehicle accident on the Sturt Highway between Truro and Gawler at about 4.45 pm on 2 January 1994.  At that time a car driven by the defendant, Lock, collided with the rear of the car driven by the plaintiff’s husband and in which the plaintiff was a front seat passenger, whilst both were travelling towards Gawler.

For the purposes of the action, the defendant admitted liability for damages to be assessed and the matter came before me for that purpose.

By her defence, the defendant Lock pleaded that the plaintiff caused or contributed to her own losses by reason of her alleged failure to wear a seat belt.  At trial, the plaintiff gave evidence that she was indeed wearing a seat belt at the time of the accident, this evidence was not seriously challenged and in its final address the defence abandoned this ground.

There being no other alleged ground of contribution, I will proceed to assess the plaintiff’s claim on the footing that she is entitled to recover the full amount of her loss.  It is the amount of that loss, however, which is in dispute.

By her defence, Lock broadly denies the seriousness of the impact and the plaintiff’s injuries (if any) and says that any injury from which she was afterwards suffering was already present at the time of the accident.  Alternatively, she says that the plaintiff’s injuries were temporary only and had no significant impact on her enjoyment of life and her earning capacity, the latter of which was curtailed by other events in her life.

PRE-ACCIDENT HISTORY

The plaintiff was born on 31 July 1978 and at the time of the accident was aged 15 years.  She is now 19.  She was married to Robert Drury on 21 June 1997 and has two children by him, Winifred born on 25 May 1995 and Tyson born on 18 September 1996.

The plaintiff had a very difficult early life.  In 1990, when aged 11 or 12, her parents separated.  Up to that time that she had been attending St Agnes Primary School but then went to stay with her grandmother at Yankalilla, where she continued for a short while with her primary education.  She then went to live with her father but soon left him when he became violent and abusive towards her, returning to live with her mother in the latter part of 1990.

During 1991 she continued to live with her mother and completed Year 8 at Modbury High School.

At the commencement of Year 9 she was transferred by her mother to Banksia Park High School, where her sister and stepsister were enrolled, and she attended there for approximately six months.

She then moved in with her boyfriend and his parents for a short while and transferred to Nailsworth High School, where her boyfriend was also enrolled.  Two days after commencing there, she and her boyfriend ended their relationship and this had significant consequences for her.  She was by then aged 13 and, on her own account, was an uncontrolled child.  She opted to leave school and not to return to her mother.  She had nowhere else to live and spent some time staying with friends, attending parties, drinking, smoking and associating with people who used drugs.  This period appears to correspond with the latter part of 1992 and, in that time, she was, for one month, fostered out with a family, but that was unsuccessful.  She also said that, at various times, she spent a total of about two weeks sleeping out, in parks, under Tea Tree Plaza and at other locations.

At the beginning of 1993 she commenced boarding with Robert Drury.  He lived near to her ex-boyfriend and, as she and her boyfriend had a relationship that was "on and off", she thought this a convenient place to stay.  She paid Drury for board and for one half of household bills.  Drury had recently separated from his wife.

Over this time the plaintiff had been in receipt of a Homeless Allowance and she then commenced to receive a Jobsearch Allowance in the same amount.  Later in 1993, the plaintiff obtained a South Australian Housing Trust Home and both she and Drury moved to live there.

At some point she commenced a sexual relationship with Drury.

In May 1993 the plaintiff was attending the Junction Market at Gepps Cross, and was seen there by a professional photographer, Mr Christopher Puccetti.  Mr Puccetti was then, and remains, a principal in a photographic business known as "The Look".  That business was principally involved in working with modelling agencies. Puccetti said that, when he saw the plaintiff, he had the feeling that she had photographic quality and might be successful in modelling.  He considered she had good looks, a sleek interesting face, full lips and beautiful eyes. He said it was unusual for him to approach someone directly, but he did so in this instance, telling the plaintiff she had a good look for modelling, ascertaining she was interested in modelling and giving her his card.

He frankly conceded that his studio frequently prepared photographic portfolios for aspiring models and that it always charged for them.

Some few weeks later the plaintiff contacted Puccetti and did a photographic session with him, which resulted in a number of the photographs produced in her portfolio.  She paid him for the session.  For his own part Puccetti found that the plaintiff had a willingness to pose, was easy to photograph and had a face and body that had photographic quality.

In the course of his business, Puccetti had dealt with many modelling agencies and did not recall recommending any particular one to the plaintiff, but he did recall discussing the plaintiff’s past with her and forming the view that she could market herself in modelling on the basis of a past life as a "street kid".  It did not emerge from the evidence, but I infer that he discussed this marketing approach with the plaintiff.

In about October 1993, the plaintiff enrolled in a sixteen-week modelling course with the "Finesse Model Agency".  She had saved money to pay for it.

At about that time, and apparently on her own initiative, the plaintiff also approached the media with her story of having been a "street kid" and now a model.  In the event, two articles with photographs were published in the newspaper "The Advertiser" on 30 November 1993 and in the magazine "New Idea" on 11 December 1993.  Between those times, a television segment entitled "Drain Girl" also went to air on a programme known as "Real Life" on 2 December 1993.

The thrust of each of those stories was the progression of the plaintiff from street girl to model. Neither description was particularly apt at that time. The plaintiff freely acknowledged that there was a strong element of exaggeration in her self-description as a ‘street kid’ - she had only slept "out" on about 14 occasions.  There was also obvious licence taken in describing her as a model, when, at that point, her experience in modelling was quite limited:  she told the court that it amounted to photographic modelling on three or four occasions, over a three or four-month period prior to January 1994, for student photographers, in response to their newspaper advertisements.  She was, during part of this time, attending the modelling course with Finesse.  For the photographic modelling, she had received cash payments totalling a "couple of hundred dollars" short of $4,000.  The plaintiff also mentioned that, soon after she became a boarder with Mr Drury (which would appear to have been some time early in 1993), she had worked as a "stripper" on three occasions for "Naked Review".
In mid to late December 1993, whilst she was still attending her Finesse modelling course, the plaintiff was approached by another modelling agency know as "Covers". Covers also conducted modelling classes and asked the plaintiff if she would be prepared to do a professional parade at one of its impending student graduations.  The plaintiff accepted that engagement and was paid a "couple of hundred dollars" for it.  At the same time Covers asked her to join their agency and she agreed to do that.  The plaintiff told Finesse of her decision to join Covers, but still continued her course with Finesse, up to and following the date of the accident.

I pause here to note that, apart from the modelling and stripping work referred to above, the plaintiff had not had, prior to the accident, any other employment of any kind. 

It is then important to discuss a number of other aspects of the plaintiff’s personal life.  Some mention has already been made of her social life.  The plaintiff claimed that she used frequently to go to parties, night-clubs and drink alcohol, at least up until the time when she first moved in with Drury.  She inferred that alcohol had been a problem up till that time, but said that after she began boarding with Drury, it ceased to be and she became less interested in going out.  She said she was sexually active prior to the accident and otherwise spoke of past interests in shot putting, gymnastics and diving.  She said that she had continued, up to January 1994, what could best be described as a spasmodic involvement in the latter pursuit, through her membership of the Elizabeth Aquadome.

She was not specific as to the time when she commenced a de facto relationship with Robert Drury, but credited him with bringing stability into her life from soon after the time she moved into his house.  For his own part, Drury had been injured in a work accident, had been compensated in respect of hernia problems and was unemployed. It is convenient to add here that he has settled his own claim for injuries sustained in the subject accident and is now in receipt of a Disability Support Pension based on a psychiatric condition. 

The plaintiff said in her evidence-in-chief that, prior to the accident, she had had no injuries save for a broken arm whilst a child and that her mental health was fine.  She said she had a good relationship with her sister (her only sibling), her mother and father.  She later conceded, in cross-examination, that she had received counselling including psychiatric assistance in respect of her father’s violence and abuse, up to a period of about twelve months before the accident and that that counselling had proceeded for a period in excess of one year.
 THE ACCIDENT

Although the defendant accepts that she collided with the car driven by Robert Drury and in which the plaintiff was a passenger at the time and place alleged, the evidence as to the circumstances and the immediate aftermath of that accident was contentious.

On the plaintiff’s account, their car was travelling at 20-30 kph, and she did not see the approaching vehicle, but the impact was sufficient to push them off the road onto the gravel verge, so that their car came to rest near a fence.  She says that she then suffered a temporary blackout and on recovery immediately became aware of pain in the back of her neck and noticed her left knee had begun to swell.  After checking on Drury’s daughter (aged 8), who was in the back seat, she got out of the car and found she was standing on the gravel verge.  She said she was crying.  She went to the defendant who was "going nuts, she was wearing hardly anything", and that she and Lock then had a "screaming match".

She says throughout this exchange she continued crying and indeed cried all the time whilst at the scene.  It appears Mr Drury was also then abusing the defendant.

She described the damage to Mr Drury’s late model vehicle as involving scratches and the boot and bumper being "shifted".  She did not remember whether Lock was hurt, nor whether Lock inquired whether she (the plaintiff) was hurt, she did not remember seeing whether the defendant’s car was actually on the roadway after the accident and denied that, with Drury, she had helped to push it off the roadway.

Robert Drury gave evidence about these same events, saying that he was following a line of cars uphill at 20-30 kph when he saw the defendant’s vehicle approaching from behind at a fast rate of speed.  He estimated that speed at the open road limit of 110 kph and said he saw no reduction in it, nor did he hear any braking prior to the impact, which he described as "quite a jar".  He had sounded his horn and attempted to drive off the roadway to his left to avoid the collision but to no avail and his car came to rest "half on and half off" the roadway.

He looked at the plaintiff to see she was crying and his daughter appeared shocked.  He got out of his car and went back to the defendant in what he described as an "over-angry" state.  He began abusing her.  He then observed the plaintiff standing at the back of their car "crying, rubbing her neck and looking really distressed".  The plaintiff then, he said, came towards them and joined in abusing the defendant.  The plaintiff, he said, was "out of control" after this exchange, during which the defendant apparently said little. Particulars were exchanged and they left the scene.

Under cross-examination, Drury conceded he did not know if his vehicle remained wholly on the road after impact.  A number of aspects of the defence case were then put to him and he was unable to remember:

· whether the defendant said to him that she was sorry for what had happened;

· whether she said she had RAA Insurance protection and her insurance would pay for the damage;

· whether he returned to his car after the accident and drove it off the roadway;

· whether he went with her to inspect damage - albeit that the defendant did not herself recall whether this happened;

· whether the defendant’s car was on or off the roadway immediately after the collision;

· whether he discussed with her the damage to her car.

I will return at a later stage to Mr Drury’s memory.

The defendant gave evidence about the collision, saying she was travelling at 60-80 kph, possibly closer to 80 kph, that she was aware of the line of traffic ahead, but was dazzled and distracted by the sun and realised too late that she was upon the car in front.  She said she applied her brakes and heard her tyres screeching but was unable to stop and she hit the Drury car, which she said was travelling at 20-30 kph.  She said it was a "good hit", not a "nudge".

She then saw Drury emerge from his car, so she got out too.  She described him as really angry, yelling and screaming, and said she felt quite afraid.  She said she was quick to apologise and assure Drury that she had RAA insurance cover.

She then went on to say that after looking at his own car (to which she, Lock, could see no damage, from her position) he seemed to calm down and he then came back and helped her look under the bonnet of her car, to inspect her damage and to check her radiator.  He suggested to her that the radiator was functioning and her car was driveable, and so it proved to be:  she was able to drive it back to Adelaide.

At some point, she says, Drury got back into his car and drove it off the roadway.  She says the plaintiff and he then helped her to push her car off the road.  Drury took up a position on the driver’s side of her car, and the plaintiff went to the front passenger window whilst she sat in it and steered.  She was tested on whether the plaintiff actually pushed and reasonably acknowledged that she could not swear to it, but said that they both adopted appropriate positions and appeared to push her vehicle to the verge, thereby allowing other traffic to pass by.

Her observations of the plaintiff were that she had otherwise stood some way off from where she and Drury were talking and that she seemed "unimpressed" and "bored".  She was simply standing there with her arms folded.  She was not crying and the defendant did not hear her offering abuse at any time.  She was sure the plaintiff was not upset and said she (the defendant) would have "freaked out" if she had thought anybody had been hurt in the collision.  Shortly and colourfully she described the plaintiff’s demeanour as simply "pissed off".

I did not receive any clear evidence about the full extent of damage or code of repairs to either vehicle, save to say that it was apparent from what was said that the damage to each was fairly slight.

I will deal later with my findings as to what did occur at and immediately following the accident.

EVENTS AFTER THE ACCIDENT

As with the defendant’s, Drury’s vehicle was drivable after the accident so he and the plaintiff then returned to Adelaide.  On the way home Drury said that the plaintiff was crying and upset and that he stopped a number of times to allow her to recover.  The plaintiff did not mention this.  They both said that upon arrival in Adelaide they then attended to three things, in the course of that evening or the next day: dropping Robert’s daughter at her mother’s home, reporting the accident to the police and attending Modbury Hospital, leaving there after four hours when treatment was still not administered.  Neither was prepared to be definite about precisely when, or in what order, these things occurred.

They both also said they went together back to Modbury Hospital, on the day following their first unsuccessful visit, and again waited fruitlessly, this time for two hours. Neither received any treatment there at all and it was some five days later, on 7 January 1994, when the plaintiff first sought attention from her general practitioner, Dr Duffield.

The defence challenged the plaintiff on her asserted attendances at Modbury Hospital, suggesting that they had not occurred at all and that she was confusing them with attendances she had had there, some four months later, in May 1993, after her knee arthroscopy.  The plaintiff wavered in her recollection  about the times of her visits, but was sure she was not confusing them with those later attendances.

The defendant did not call evidence from Modbury Hospital or from any other source to directly challenge the plaintiff’s claim and the only indirect challenge arose from the evidence that, either at 12.15 am or 12.15 pm on 3 January 1994, Drury made a report to the police about it and a non-injury report was then completed.  In his own evidence Drury was equivocal about whether he was asked by the attending policeman about any injuries being suffered in the accident, but proffered the suggestion that perhaps he was and that he answered in the negative because he then believed the inquiry related to injuries involving hospitalisation and broken bones.  The policeman concerned, Senior Constable Ashton, was very experienced and gave firm evidence that, whilst he could not remember taking the report in question, it was his invariable practice to squarely ask the question whether any party involved in the collision had suffered injury.  I find that he did so in this instance and that Robert Drury answered in the negative.

What are the implications of that in terms of the plaintiff’s claim that she was injured in the accident and that she and Drury immediately went to Modbury Hospital on 2 or 3 January 1994?  I have concluded that, on balance, they did indeed attend that hospital at some time after the accident, not as soon as they contended perhaps, and quite possibly after the police report was made but probably prior to 5 January 1994.

Not much turns on that issue, anyway, as it appears each of them soon consulted a general practitioner.  At most, the evidence about the police report might reflect upon Mr Drury’s credibility but I do not draw any adverse inference against the plaintiff on this point.  

Following her return home after the accident, the plaintiff said she continued to suffer from a severe headache, a very sore and bruised knee and a hot burning sensation in her neck with significant restriction of movement there.  She was limping.

She saw her general practitioner, Dr Duffield, on 7 January and was then referred for physiotherapy with Brian Coombe, who treated her knee and neck.  Eventually she became frustrated with waiting at his rooms and felt she was not improving, anyway, so she transferred to another general practitioner, Dr Schuetz.  In fact she said that her neck condition actually got worse while she was seeing Dr Duffield and Mr Coombe and her knee was clicking and giving way.  That contrasts somewhat with Dr Schuetz’s first record of attendance of 13 April 1994, when she noted that physiotherapy with Mr Coombe had helped, but that the plaintiff was still suffering pain.  The plaintiff went on to say that she was initially suffering headaches every morning and then once a week but, as time went on, the frequency of those headaches actually increased.  She said that her left knee began giving way some days after the accident and that this had never happened before.

Dr Schuetz referred her to another physiotherapist and she received ultrasound treatment, which she thought was better, albeit that neither her neck or her knee improved.  She was then referred to an orthopaedic surgeon, Dr Atkinson, for examination of her knee complaint and she went on to say that, as time progressed, she began to experience feelings of anger, upset and depression, and sometimes felt suicidal.  She said she had put her hopes on a career in modelling and had also liked to participate in sports and go out and she now felt angry at Drury and at the defendant for depriving her of those opportunities.  Those feelings began some four to five months after the accident.  She was also suffering nightmares and could not participate in night clubbing, swimming and recreational activities, albeit that she conceded she had had less interest in nightclubs since meeting Mr Drury.  She was also experiencing sleeplessness, due to headaches and her nightmares, whereas prior to the accident she had been able to sleep until 3.00 pm.

She said that Dr Shuetz referred her to a psychologist, Annette Berwald, and she saw Ms Berwald on four times, but then stopped seeing her as she felt so depressed and she was not getting better, anyway.

Her first child, Winifred, was born on 25 May 1995, so it would appear that she was pregnant at the time she was seeing Berwald.  She said this pregnancy was unplanned, but then said neither she nor Drury were taking any contraceptive measures at the time.  She said she had always had difficulties with the pill and with IUDs and that Mr Drury was allergic to condoms.  The pregnancy might have been unplanned, but it could hardly be said to have been unexpected.

Her evidence on that point also contrasts with what she told Dr Tottman (exhibit D5):

"I only had the kids because I couldn’t do modelling and people told me it would help me."

She stated that during that pregnancy she spent most of her time in bed, but when pressed on that said that her neck, shoulders and upper back caused her trouble from the seven-month mark.

After Winifred was born, she experienced back problems and found it particularly difficult to breast-feed because of her neck pain so she gave it up.  She went on to say that she could have performed most of the required motherly tasks, but chose not to because of the pain she suffered when doing them. She felt this had deeply affected her relationship with her daughter, which she had only just repaired. 

Her second child, Tyson, was born on 18 September 1996 and again she suffered back pain during the pregnancy, including in her lower back.  This was so bad that she once lost control of herself and, with a butcher’s knife, threatened to cut the child out of her stomach.  She said that, as with Winifred, she had to stop breast-feeding because of her sore neck.  Dr Guirguis noted in his report of 19 September 1996 that she stopped feeding Tyson after three weeks

"when her milk spontaneously stopped due to stress.   Breastfeeding was
 aggravating her neck pain and she also found placing and lifting the baby out of the bassinet is aggravating to her neck pain".

I return then to her modelling course, which at the time of the accident had some five or six weeks yet to be completed before graduation.  She said she was able to finish it, albeit with difficulty.  Her knee gave way during a graduation rehearsal and she could not make a full neck turn at her graduation.

After graduating, Covers asked her to model at a Hindley Street Party which was to take place in April 1994.  She accepted that assignment but then abandoned it half-way through a rehearsal, due, she said, to the pain she was suffering.  She said that, at about this time, the business of Covers folded up.  That was, in fact, the only work offered to her after her graduation, save for two viewings which Covers arranged.  The viewings involved attending before a client to see whether the client would want to use her as a model.  Apparently she was not then required.  She said that, apart from these attendances, she had done no modelling work at all since the accident, and had felt unable to because of her neck and knee pain and other disabilities.

She had felt the loss of her modelling career very much, because it was something that offered her pride and a feeling of self-worth.

She said that in order to improve her education, she later enrolled in the Open Access College, completed Year 10 and had begun Year 11, but was unable to complete it "due to Rob and I going de facto" and the social security and financial implications of that.
 She said that since the accident her husband had performed most of the household work.   She said he was a better father to the children than she was a mother, as he bathed and generally managed them.  She found domestic duties hard, in particular vacuuming, dishwashing and hanging out washing, but she said she was able to do some limited tasks, including bed-making, sweeping and mopping, albeit whilst tolerating soreness to the shoulder and neck. She said that her sister Megan had lived with them for a year and, whilst herself working, also helped her (the plaintiff) out and that her mother had continuously assisted her with some household tasks since the time of the accident.  Neither her mother nor Megan was called to give evidence.

She said her emotional health had not improved since the time when she was seeing Annette Berwald and that alcohol is now a big problem for her.  She drinks three-quarters of a spirit bottle every couple of nights and she relates her drinking to the accident.  She said that alcohol had not been a problem for her since about ten months before the accident, but that before then she "used to party all the time and drink a lot".

Currently her neck causes her severe pain leading to migraines.  The pain comes and goes during the day and it varies from day to day.  Particular activities aggravate it and at times it can progress to her eyes, her temple and cause dizziness and light intolerance.  She suffers migraines on five or six days a week.

Her left knee gives way constantly, it is not getting better or worse and on some days she cannot walk.  She is scared it will give way, so she will not attempt modelling.  It hurts when she is squatting. 

She says she suffers from depression and has recently been referred by Dr Schuetz to the Royal Adelaide Hospital Pain Clinic and also to Woodley House at Modbury.  She is waiting to see a panel of doctors at the Pain Clinic for assessment.  She is currently taking the anti-depressant Triptyline.

During cross-examination she was challenged over her income from modelling work prior to the accident.  It will be remembered she said that she had earned approximately $4,000 and a couple of hundred dollars of that amount was paid to her by Covers.  She said that the photographic modelling assignments, previously discussed, had taken one to two days each, that she was paid in cash, had no receipts, nor did she bank the monies, nor declare the income to the Department of Social Security. 
 As part of her case the plaintiff tendered the Mannequins and Models Award.  On the basis of the photographic modelling rates disclosed in that award, her income from these sources seems to have been considerably greater than might have been expected and I will refer to this matter later.

She acknowledged that she had had a bad attitude whilst working for Finesse and had had trouble with them over her ego, her lateness, her dress and her attitude.  She had received no modelling work from Finesse.  In late 1997 she made inquiries of other agencies, including Tanya Powell Modelling Agency in Melbourne, where she had tested for entry into their modelling course.  She did not tell them, at first, about her difficulties and was put through a range of movements and actions.  She was apparently able to perform them and was informed by letter (P13) that she would be accepted into their "Modelling and Grooming" Course and that, upon completion, she would be accepted onto their books for:

"possible modelling assignments.  Vicki has, in our opinion, model potential in catwalk and still photographic work".  

She had also contacted three other modelling agencies in Adelaide, "Edge", "Pam Arnold" and "Rachel’s" and they had all suggested she should do their own courses.

She was also challenged about the household assistance provided by her husband.  She acknowledged that he had difficulty with "overhead" activities and with his hernia and that this affected his ability to work around the house. As well he had "psychological" injuries.

She said that she and Mr Drury regularly sought relief from their situation by going on holidays.  They travel both locally and interstate every three to four months.  Last year, after they were married, they went to Bali.  She also agreed there was an incident where they went crabbing on a form of jet ski and were marooned, but successfully rescued.  She said that there were occasional episodes, perhaps every six months or so, when she felt, for a short while, that she had a relative amount of freedom in her neck.

WITNESS PUCCETTI

Reference has previously been made to the initial evidence of the photographer Mr Puccetti.  He also commented upon the plaintiff’s future, saying that she had the drive and keenness to succeed, she had modelling qualities and a good marketable story based on her previous life as a street-kid.  He said that work in Adelaide was limited and many models had to move interstate to find it.  He spoke of catwalk modelling and its general availability in Adelaide and went on to say that his main interest was in photographic modelling for newspaper and magazine advertisements.  He commented that, at about the time of the accident, the plaintiff "dropped out of our sphere".  He had attempted  to contact her at that time to participate in the "Look of the Year Quest", a commercial venture run by his own business, but he was unable to find her. 

He said that an average model in Adelaide was sometimes swamped with work and at other times would wait up to a month for an assignment.  He said top models in Adelaide would make up to $200 an hour but many had other jobs.  He spoke of the physical demands of photographic modelling, in particular the fact that the subject frequently had to remain available for several hours at a time and had to adopt and hold poses for extended periods.

He said that Covers had been a badly managed agency and that agencies came and went depending upon their management.  He said the market had been oversupplied with agencies in 1993 and 1994.  He said that most successful models worked up to about the age of 35 and that many of them then dropped out for family or other reasons.

Under cross-examination he agreed that successful models needed the support of modelling agencies and said that, to some extent, photographers had an opportunity to promote them.  He said that his company annually prepared some 500 modelling photographic portfolios for aspiring models.  Of this number, some 40 probably got work, perhaps 10-15% would get regular work and 5% good work.  He agreed that attitude was important and said that if the plaintiff had had a bad attitude, she would have needed counselling. 

He observed that she now had a stooped or slouched posture. 

WITNESS CUCKOW

It is convenient here to deal with the evidence of Mr Cuckow, who was called by the defendant.  Mr Cuckow is the Manager of the Tanya Powell Modelling Agency Adelaide.  He explained that the Tanya Powell name operated Australia-wide, but that each agency was a separate local franchise.  He said he had, himself, originally been a model, had held his present position for 15 years and, in the course of his work, dealt habitually with models, clients and agents.  He also worked interstate from time to time. He said that in the course of his work he was required to assess the suitability of aspiring models.
 He said that Tanya Powell Adelaide handled most of the modelling parades in Adelaide and had been operating in the city for some twenty four years.  It covered all aspects of modelling and was the largest agency in the State. 

When asked about what he looked for in a female model, he said she must be at least 5’9" tall, if she intended to do parades (although that height could be lower for other types of work), she must be attractive, have personality and presentation and must have a good work attitude.  He agreed that attractiveness was in the eye of the beholder and much depended on how the model sold and presented herself, along with her punctuality and desire for work. 

He was critical of the format of the plaintiff’s portfolio (P1) saying that it over-glamorised the subject, but said that if he had to make an assessment of the plaintiff he would say that she was not the type of person his agency would be looking for.  He said her height, of 5’7", would very much limit her opportunities.

He said that modelling courses were run by a number of agencies and the mere fact that a course was completed did not imply that the student would become a model.  Generally the agency would accept a graduating student onto its books, but again that did not guarantee work - his agency had several hundred models on its books.  He said that in the local modelling industry bad news spreads quickly and any problem with attitude would soon become known.  He was asked to assume that the plaintiff was 5’7" or 5’8" in height and had a bad attitude and to then comment on her prospects.  He said that, from his point of view, his agency would not be willing to take her on. 

He said that top models in Adelaide (and there are approximately six of them) earn somewhere between $23-24,000 a year.  He did not think that the "street-kid" angle would be a positive or negative, in terms of promoting the plaintiff.

Under cross-examination he admitted that the Melbourne market was different and would employ females of 5’7" in height for some types of work.  He said that Melbourne and Sydney offered more editorial or magazine-type work and height mattered less for this.

WITNESS ROBERT DRURY

The plaintiff’s husband also spoke about events post-dating the accident.  He said that he, himself, had been injured in it, suffering neck pain and pain in his right shoulder.  He had unsuccessfully sought treatment from Modbury Hospital and later saw Dr Duffield and then a Dr Williams.  Eventually he had settled his claim arising out of the motor vehicle accident and had received a payment.

He spoke of the changes in the plaintiff since the time of the accident.  Prior to then, he knew her as a happy-go-lucky person with bright shiny eyes and a big smile.  He said she had been bubbly, sporty and energetic but now she was always suffering pain and was worried, her moods were up and down, she was angry, and sad and totally different.

He said she had been very confident and ambitious about her modelling career and had wanted to go all the way to the top, but that she had changed, because she had lost confidence and drive, due to the pain and the hurdles that interviews would present to her. 

He said he had not, himself, worked since the accident because of his psychological and hernia problems and the injuries to his shoulder and neck.  He said that he did most of the housework and managed the children.  The plaintiff tried to help to the best of her ability but she was not a lot of help.  She made the bed, sometimes did the dishes, tried bathing the children and sometimes did some vacuuming.  She helped feed the children, but he generally did the washing.  The plaintiff used to play a lot with his own daughter but did not do that any longer.

When cross-examined about his own injuries and the impact they had had on his capacity to work around the house, he said there were occasions when the plaintiff, her mother and sister had helped when he had been unable to do work.  It was put to him that during 1997 he had, himself, had difficulty with tasks as insignificant as turning door knobs.   He acknowledged he had experienced some difficulties "but mostly not to that level", but that he experienced ‘twinges". He then agreed that turning knobs, and reaching up above his shoulder and carrying would cause him pain.

A series of questions was then put to him about previous injuries which had been allegedly suffered, but he was unable to remember them.  In particular, he was unable to remember a motor vehicle accident at work on 21 May 1992 when he injured his right knee, an injury in October 1991 to his left knee, an injury in July 1992 to his right knee, nor an injury on 6 October 1992 when he was operating a garbage truck.  As to the latter incident, when it was put to him that he had then suffered concussion, a fractured left cheek and broken teeth, he said he recalled it. 

He acknowledged that prior to the subject accident he had suffered a post traumatic stress disorder but could not recall to what injury it related.  On being further questioned, he described an incident when he was working on a garbage truck and was nearly thrown from it.  He was not able to recall seeing a psychiatrist, Dr Blakemore, in April 1994 (after the subject accident) about another accident pre-dating it, but when it was suggested to him that he had seen Dr Blakemore on 13 April 1994 or 6 February 1995 or 6 May 1997, he said he could recall seeing that doctor on one occasion.   He could not recall telling Dr Blakemore that he and the plaintiff had not been living together until eight months before 1997 and he did not remember telling Dr Blakemore in May 1997 that there was not much he could do around the house because of his arm.  None of those matters that were put to him were otherwise established on the evidence, but I found it curious that Mr Drury had so little memory of incidents of that kind that he could neither affirm or deny them.

On further examination he conceded that there were times when he could not assist the plaintiff fully with the children because of his own injuries.

He was then asked (Page 443):

"Q.   Would it be also fair to say that you had difficulty assisting your fiancee with the housework as a result of the injuries that you sustained in a motor vehicle accident of January 1994.

A.   It’s hard to say assisting Vicki with the housework, as she, you know,
did so little, so I don’t know what you mean by assisting her with
the housework, like, as in the general normal assistance I’d give her?
Is that -?"   

He was then referred to exhibit D3, his sworn Rule 46.15 particulars filed in his own personal injury action, and to a passage in which he stated "I have difficulty in assisting my fiancee with the housework".  He acknowledged that that was his statement.  It was then put to him that the fact was that he had not been able to help the plaintiff very much due to his own injuries.  His response was that that was definitely not right.  He was asked whether, as a result of the motor vehicle accident or any other accident, he had on any occasion blacked out.  His answer was that he did not remember but that it was possible. He denied blacking out whilst driving and did not remember any incident driving in late 1994 with his wife and children when he blacked out.

I found that evidence incredible, again not because any incident of blacking out was proved, but because of the plaintiff’s inability to say whether an incident of such significance had occurred.      

DR DUFFIELD

The plaintiff saw Dr Duffield five days after the accident.  She first contended that she then continued to see her weekly for some months, but when it was put to her that the subsequent appointments were on the 31 January, 7 March, 6 April 1994 only, she said she could not recall whether that was the fact, but acknowledged that it could have been.  She then suggested she might have been confusing these attendances with her physiotherapy and other medical appointments.

DR SCHUETZ AND DR ATKINSON

She later changed to a new general practitioner, Dr Schuetz, on 13 April 1994. She told Dr Schuetz of her sore neck and shoulder, headaches, sleeplessness and a sore left knee.  Dr Schuetz referred her to an orthopaedic surgeon, Dr Robert Atkinson, for advice on her left knee.  Dr Atkinson reviewed her a week later and thought it desirable to perform an arthroscopy, which he did on 13 May 1994.  In that process he removed some fatty material, and concluded that she had suffered bruising in the accident but that there was no other pathology.  Apart from periods of a week after the accident and the arthroscopy, he considered she had had no significant incapacity and there was no permanent or residual incapacity:  if she was experiencing any "giving way" of her knee it was related to quadricep weakness.

Dr Atkinson reviewed the plaintiff again in 1997 and expressed the same opinion, both in his report and his evidence, saying that the difficulty was that the plaintiff perceived she was suffering pain and that any further intervention would likely make that situation worse.

Otherwise Dr Schuetz continued to see the plaintiff during 1994, referred her for further physiotherapy and prescribed medication.  She noted the plaintiff was experiencing nightmares, was ruminating over the accident and recorded the plaintiff’s concerns about some wider family problems.

On 29 September 1994 she recorded (p.9) that preliminary testing suggested the plaintiff was pregnant and was uncertain about the identity of the father.  One month or so later her pregnancy was confirmed as at eight weeks and the plaintiff was still then complaining of neck and shoulder pain.

In October 1994 the plaintiff reported to her stress over problems she was having with her pregnancy and trouble being caused by former street friends.  It was at about this time that Dr Schuetz decided to refer her to Annette Berwald, a psychologist, due to her sleeping problems, her anxiety and her inability to cope with pain.  That referral led to the plaintiff seeing Ms Berwald four times in late 1994 and to a later review in 1996.  I will turn later to Ms Berwald’s evidence.

On 29 November 1994 Dr Schuetz noted the plaintiff’s poor posture, although it then appeared to improve by 6 January 1995.  In that same appointment she noted that the plaintiff was probably happier because recent tests had confirmed her husband was the father of the child and there were no abnormalities.  In her evidence she was unable to elucidate upon a note she then made about "rapists", but the plaintiff later explained that and I will come to that issue later.

The notes go on to record consultations in February 1995 over the incident when the plaintiff was marooned on a jet ski and on 22 February 1995 record, inter alia, that the plaintiff’s

"anxiety seems resolved except for occas. flash backs.  Doesn’t appear depressed but motivation poor.  Scared of pain and physio.  Hot weather ®  de-motivation.  Doesn’t want to talk about accidents."

On 26 April 1995 the plaintiff saw her and complained her neck was worse after moving house and that she was having further sleeping problems.  It was then noted

"Stopped going to physio - 2/wk for a while.  Did not return to psychologist - thinks psychiatrist would be better.  Advised to return to both."

On 26 July 1995 Dr Schuetz noted the plaintiff had had a daughter on 25 June and had had to stop breast-feeding due to neck pain.  At this time she referred her to Dr S Blight for rehabilitation treatment but it appears the plaintiff did not follow up on that.

The plaintiff did not then attend Dr Schuetz’s clinic until 1997, when she returned still complaining of neck, shoulder, back and knee pain.  She was then referred to Dr J Meegan.  At this time she had an eight month old boy and was suffering post natal depression.

Dr Schuetz saw the plaintiff on 13 February 1988 and was then told of neck pain, frequent headaches, sleeplessness, tingling in the arm and hands, excessive alcohol consumption and negativity.  She was then informed that the plaintiff had been seeing a general practitioner, Dr Lim, but she was not then aware that these consultations had in fact been continuing over some years.

I have dealt with Dr Schuetz’s consultations in some detail because with the exception of the plaintiff’s visits to Dr Lim, her physiotherapy and the course of psychological counselling she received from Annette Berwald, they comprise the only course of treatment she has undertaken for her injuries since the accident.  I am, of course, aware that she is about to undertake treatment at the Royal Adelaide Hospital Pain Clinic but otherwise her consultations with Drs Cohen, Guirguis, Meegan and Kelly appeared to have been for assessment purposes only, likewise of course those with the defendant’s experts, Drs Lipert, Jose and Tottman.

DR LIM’S NOTES

Dr Lim’s involvement in the history was, on the plaintiff’s account, of no relevance and she was not called to give evidence.  The plaintiff said she had been seeing Dr Lim over ten to thirteen years, on a weekly to fortnightly basis, about her periods, the children’s health and because her father (the plaintiff’s father) was assisting Dr Lim with her computers.  Dr Lim "doesn’t take SGIC patients", she said, and she does not have to see her to get scripts.  She added that she had also seen another general practitioner in the area, Dr Hart, about her periods.

In the course of trial, Dr Lim’s notes were subpoenaed and I gave leave for the plaintiff to be recalled for cross-examination upon them.  She was first asked whether she had been roller skating since the accident.  She denied it and said she knew what defence counsel was "getting at".  She then said she had been contacted by Dr Lim about the subpoena on the previous evening, had gone to see her and had "flipped through" her case notes, that she had read "bits and pieces of them". 

She then reminded counsel of a "slash" in the consultation note of 15 June 1994 and went on to explain that that record of her suffering an injury to her right knee, whilst she was roller skating at a time after the accident, was incorrect.  The transcript records (Page 344):

"Q.   In any event, there is a reference to an injury to the right knee roller skating five days ago.  What do you say that notation represents.
A.     Well you see Dr Lim is an Asian woman, she doesn’t understand English very well and it’s very hard to understand her.  When I was trying to describe the actual accident I was with Rob’s daughter Elicia who was on roller skates, I was teaching her to roller skate, and that’s how she must have misrepresented that I was roller skating.
Q.     How did you suffer an injury to your right knee.
A.     Left knee gave way.
Q.     How did you suffer an injury to your right knee.
A.     Because my left knee gave way.
Q.     What happened.
A.     I hit my right knee, as I fell.
Q.     You suffered an abrasion to your right knee.
A.     When I fell over, from my left knee giving way, I hurt my right knee - like I’ve sprained my ankle, like I’ve had no end of trouble from my left knee giving way.
Q.     So you’re telling us that the note of Dr Lim on the recollection that you now have is that your left knee gave way, that is as a result from your point of view from the injury sustained in the motor vehicle accident, causing you to fall to the ground and at that time you injured your right knee.
A.     Yes, while I was trying to help Elicia roller skating, when I was holding her.
Q.     And you say that you weren’t involved in roller skating at all.
A.     No.
Q.     You have a clear recollection of that event now.
A.     Yes I do.
Q.     Did you receive any treatment from the general practitioner as a result of that attendance.
A.     I don’t recall.
Q.     Did you tell Dr Atkinson that you had fallen over and injured your right knee as a result of giving way to the left knee.
A.     I don’t recall.
Q.     Well you’d suffered an injury to your right knee as a result of your left knee giving way, and you saw Dr Atkinson on 15 June 1994, that is, the same day that you saw Dr Lim.  Do you recall whether you told him about it.
A.     I don’t recall.
Q.     That’s something that you would have told him about, wouldn’t you.
A.     Well Dr Lim is my family doctor, I’ve known her for several years and I talk to her about absolutely everything.
Q.     I didn’t ask you that question.  I asked you, that is something that you would have told Dr Atkinson about, isn’t it.
A.     Yes, I assume I would have."

This exchange occurred after Dr Atkinson had given evidence but, given his specialty and the fact the plaintiff was consulting him about her left knee, it is very surprising that his report, in discussing a review of  the plaintiff on the same day, 15 June 1994, makes no mention at all of the incident.
 Upon further cross-examination over her consultations with Dr Lim, the plaintiff acknowledged she had probably discussed her neck, knee and emotional problems with Dr Lim but said she "doubt it would have been on a medical basis" (P.347).  She was then asked a series of questions concerning consultations with Dr Lim over depression and, after some prevarication, she conceded she had seen that doctor for post natal depression.  She then attributed that condition to the incident when she threatened to use a butcher’s knife to cut out her unborn child because she "could not handle the pain that the pregnancy was causing on my back from the car accident".

This self-diagnosis was not confirmed by any evidence of Dr Lim or any other expert and, indeed, for reasons which I find most surprising, given its obvious seriousness and the relevance in her psychiatric history of her post natal depression and receipt of medication for it, none of these matters are recorded by Annette Berwald, Dr Kelly or Dr Tottman.  She was guarded about whether she had told them and proffered the explanation that she did not want to think about the knife incident, but she was able to tell Dr Jose about it in October 1997.  It is quite clear from the evidence of those other experts that she did not tell them of the knife incident, her post natal depression and her medication for it and I so find.

The plaintiff was then asked a series of questions about other entries in Dr Lim’s notes.  She acknowledged she may have seen Dr Lim on 4 March 1997 about chronic neck pain but was unable to remember complaining that it related to a slippery dip accident, nor the occurrence of any such accident, nor that she was prescribed Panamax for her pain as she had "Panamax all over the house" (P.358).  When pressed on the matter, she denied any such incident.

She did not remember seeing Dr Lim on 7 April 1997 with severe pain in her neck and shoulders after swinging on a rope but she did admit there had been times she had swung on ropes, when she had been "fed up with not being able to do anything" (P.358).

She did not remember being prescribed Prozac by Dr Lim on 13 June 1997.

Whilst the notes of Dr Lim were not tendered and the facts recorded in them were not otherwise proved, I considered:

1. it was significant that the plaintiff did not dispute she might have been seeing Dr Lim about matters obviously relevant to this case;

(2)  it strained credibility when she claimed she was unable to affirm or deny the occurrence of two significant matters which allegedly occurred within a year of her giving evidence;
(3)  her explanations as to the roller skating and rope swinging incidents were quite unconvincing;

(4)  it extraordinary that she apparently had not mentioned the roller skating accident to Dr Atkinson;

1. it was surprising that she had not mentioned the events surrounding her post natal depression to her psychologist or either psychiatrist.

I further note Dr Lim was not called by the plaintiff albeit that she has had regular contact with the plaintiff over the whole period since the accident.

DR SCHUETZ’S NOTES

Whilst still under recall, the plaintiff was then cross-examined upon the references in Dr Schuetz’s notes to the paternity of her first child.  The transcript records (P.360):

"Q. Was that the case that at that time there was some uncertainty about who the father of your child was.
A.     There was a minor degree of uncertainty.
Q.     Well is that correct that at or around that time there was some uncertainty about who the father of your child was.
A.     Yes, a little bit.
Q.     That caused you to become concerned and anxious and tense about it.
A.     No, I wouldn’t say that.  No.
Q.     You don’t recall going to Dr Schuetz and expressing some anxiety or concern or tension about who the father of the child was.
A.     I  remember expressing it but it wasn’t the case.
Q.     Do I understand you to be saying that you told Dr Schuetz that you were anxious and tense about it but that’s not the case, that’s not true.
A.     Yes, I lied to her.
Q.     That shortly after on another occasion when you found out that it was your partner that was the father of the child you were, if I use my own words, greatly relieved by that.
A.     I stopped acting tense, yes.  There was really no doubt in my mind that Robert was the father.
Q.     Why did you lie to your general practitioner about this.
A.     Well I had slept with another man around that time which my husband was aware of and didn’t really care.  I mean it was a mutual decision.  We know this man personally, both his brothers are sterile, but we just wanted to be on the safe side so I told Dr Schuetz I was raped in order to get paternity testing done for free just to clear any doubt in my husband’s mind.
Q.     Was that the story you gave Dr Schuetz on that first occasion that you went to see her about the pregnancy.
A.     How do you mean?  That I told her that I was raped?
Q.     Yes.
A.     No, that came after I was diagnosed with pregnancy."

(And later at P. 361)

"Q.   Is it your evidence that the uncertainty, or the story about the uncertainty, of the father wasn’t relayed to Dr Schuetz until you found out you were pregnant and that may be on the occasion of 25 October 1994.
A.     I’m pretty sure I walked out stunned when she told me I was pregnant.
Q.     Did you tell her on that occasion that you had been raped.
A.     No, I’m pretty sure - no, I doubt it.  I remember talking with my husband about what we were going to do afterwards and that’s when we come up with that idea."

(And later at P.365)

"Q.    My question is: at what stage did you formulate this, or concoct this story with your husband about being raped.
A.     I would assume that it would be on the evening that I found out I was pregnant.
Q.     And over that period from the time that you found out you were pregnant until at least 6 January 1995 you continued to perpetuate this concocted story of being raped; is that the case.
A.     Yes.
Q.     And over this period of time, in terms of this concocted story, you presented in a stressed and anxious and tense manner about this situation and being raped.
A.     Not overly.  I don’t think I’m a good liar.  That’s why Dr Schuetz puts a question mark after the word ‘rapist’.
Q.     When you are talking about a question mark after the word ‘rapist’ what are you talking about.
A.     In her notes.
Q.     Again, do I take it that you have sat down and studied these notes during the course of this trial.
A.     Yes, I have seen - I wouldn’t say I’ve studied them but those notes were given to me and the doctor told me if there is anything in them you wanted blanked out, get a black texta and black it out.
Q.     You have told me that you have not studied the notes but a moment ago you corrected me and said ‘That’s the reason why there is a question mark after the word ‘rapist’ in the notes’.
A.     Yes.
Q.     You have studies the notes closely enough to work out what may or may not have been meant and where there might be exclamation or question marks, and that sort of thing in them.
A.     I wouldn’t say I have studied the notes.  I’d say I have read the notes.
Q.     In any event, it is true to say that this lie that you created - and it was a lie wasn’t it.
A.     Yes.
MR KERNOT:     She has already admitted that, I think.  We don’t have to repeat it.
XXN:
Q.     This lie that you created was perpetuated between approximately the first night you found out you were pregnant and January 1995.
A.     Yes.
Q.     And part of the story was to present to your general practitioner in a stressed and tense and anxious manner relating to this story.
A.     Yes, there was two occasions I had to do that: when I saw the general practitioner and when I went to the hospital to get the CVS done.  It wasn’t hard.  All I had to do was think about the accident.
Q.     In any event, the presentation of feeling anxious and stressed and upset was a presentation that you had just made up for the purposes of this story.
A.     Yes.
Q.     And that once it was confirmed that the boyfriend was the father, you no longer had to continue in role playing of feeling stressed and anxious and upset, and so you no longer continued with presenting those symptoms to your general practitioner.
A.     No, I just acted how I normally would have."

(And later at P.367)

"Q.    You were no longer, after 6 January 1995 when you found out your boyfriend or your partner was the father of the child, you no longer acted in the way that you had been acting in relation to this story about being raped.
A.     Well, I wasn’t anyway.  I wasn’t acting upset and depressed, and whatever you are saying, over this whole period of time.  It was only when I saw the doctors and I had to go in to get the tests done that I had to act like this because I couldn’t afford the test.
Q.     That is exactly what I am asking, though, that once you found out that the test was a result that you wanted, that is your partner was the father, you no longer continued -
A.     Yes.
Q.     With acting in that way that you had been to your general practitioner.
A.     Yes."

I will return later to discuss the significance of that evidence.

EVIDENCE OF ANNETTE BERWALD

Reference has already been made to the plaintiff being treated by Annette Berwald, a practising psychologist.  Ms Berwald was called, said she had been practising for four and a half years and had completed a Masters Degree in Applied Psychology in 1996.  She had seen the plaintiff on four occasions in 1994 and reviewed her again in 1996.  All consultations were at least one hour in length and she found the plaintiff to be a reliable historian.  Her report of the 4 November 1996 was tendered (P12) and in it she covered her original history gained from the preliminary consultations and her review of the 10 September 1996.

She concluded that in November 1994 the plaintiff appeared to her to be suffering from post traumatic distress disorder but by September 1996 those symptoms had diminished, so that she no longer met the required criteria, although she was continuing to experience phobic symptoms when driving.  As of 1996, however, she met the criteria for major depression and said that it was difficult to state the extent to which the collision had contributed to the depression given "the significant level of psycho-social stressors and distress in Vicki’s life".  She thought it was reasonable, however, to consider the collision had contributed to the precipitation or exacerbation of her depression.  She went on to say that the plaintiff was at a significant risk of long term psycho-pathology.  She thought the plaintiff would not then benefit from therapy immediately but would do so in the longer term. 

She said her own evaluation was that the plaintiff was straightforward, there were no inconsistencies in her presentation and she herself had performed a comprehensive assessment. The plaintiff did not impress her as sophisticated and indeed she thought she was too naive to construct a pattern of symptoms and still present consistently throughout the consultations.  She was referred to the opinion of Dr Tottman and said that the difference between their views was merely one of severity and that she had opted for major depression whereas Dr Tottman considered it was a severe maladjustment disorder and depression.

Under cross-examination she agreed that the trigger for the post traumatic stress disorder had to be a significant threat of death to a person’s physical integrity but went on to say that current thinking was that the severity of the event was a subjective matter.  When it was put to her that there had to be a point at which the level of severity reduced the prospect of the condition arising, she disagreed.

A number of matters were then put to her by the defendant’s counsel which did not form part of her history and she was asked to comment on their impact on her findings. 

She was asked whether it was significant that the plaintiff did not talk about feeling trapped in the car after the accident.  Her response was that it depended on the context.  She was asked whether her diagnosis was consistent with Evans getting out of the car and abusing the other driver.  She said it was difficult to predict.  When asked whether she would have liked to have known that, in forming her diagnosis, she said she was more interested in the plaintiff’s account of the story and it was not helpful in any clinical sense.  She was asked if it was relevant that the plaintiff might not have been crying after the accident and she said not necessarily.  She was asked whether it was significant that the plaintiff might have told her she was crying after the accident, when in fact she was not, she said not necessarily.  She was asked whether, if the plaintiff was not crying after the accident it implied there was no feeling of helplessness, intense fear and horror.  She said she did not believe so and that people expressed their feelings in different ways.  She was asked to assume the plaintiff had helped to push the other vehicle off the road and whether she would like to have been told that.  She said it was not of any significance to her.  She was asked whether the plaintiff’s reactions at the scene, in the short period of time afterwards, were important to her diagnosis and she replied that she thought she had obtained enough information for her diagnosis.

She accepted that the integrity of the history provided her would always affect her diagnosis, but when she was asked if it would cause her concern in terms of her assessment to know that some of the history was untrue, she responded that it depended upon what was distorted.

She was then asked whether the plaintiff’s anxiety about the question of the paternity of her first child and her consequent relief on discovering who the father was, was a matter which would have been important for her to know.  Her response was that it would have been interesting, but would not have changed her opinion.  She said that she was not necessarily concerned that she had not been told something like that, but when pressed further on the matter she conceded it would have been preferable to have as much information as possible of that kind.  She went on to say that it would have been interesting to know that the plaintiff’s husband was also injured in the motor vehicle accident, but that would not have influenced her diagnosis.

She was then asked whether the above matters were matters that she would have liked to have known about at the time of her diagnosis and her response was that she didn’t believe so and often they came out in the course of therapy anyway.  She did not consider the failure to provide that information was significant, given the plaintiff’s distressed state and her role in therapeutic intervention.  She was asked whether she would be inclined to note anything out of the ordinary in the patient’s presentation and she said she would not do so unless it had clinical significance.

Without pausing here to deal with her central findings, I am obliged to say that I was not particularly impressed by the evidence of Ms Berwald.   She was a practising psychologist of limited experience and her answers to some questions were lengthy and self-justifying.  She was not prepared to concede that anything put to her about the plaintiff, and which did not form part of her recorded history, would have been of any clinical significance, preferring instead to predict that information of that kind would come out during the course of therapy, anyway.  That response rather put the cart before the horse, in the sense that one would have thought that a best attempt at a diagnosis should be made prior to therapy, rather than on some evolving basis.

Given that she was prepared to comment on the extent to which the motor vehicle accident had contributed to her diagnosis, her disinterest in matters clearly connected with the circumstances of that accident suggested to me that she was not bringing an impartial judgment to bear. 

EVIDENCE OF DR MEEGAN

As previously noted, Dr Schuetz referred the plaintiff to Dr John Meegan, an occupational physician, for assessment and report and he gave evidence at trial.  Dr Meegan does not treat patients.  He said that his specialty is concerned with the implications of "working for health and health for working" and that rehabilitation involves a holistic approach to recovery  looking at psycho-social, biological, medical, psychiatric and functional issues and the source of the hazard.

He produced two reports of the 3 June 1997 (P15) and 16 February 1998 (P16).  His conclusion on the first occasion that he saw the plaintiff was:

".... her conditions are relatively non-specific and soft tissue in nature.  She now presents with quite severe chronic pain and disability somewhat out of proportion to her underlying impairment and there are associated non-organic signs.  She came across as suffering a major depression and has inappropriate catastrophic cognitions in relation to her condition and related issues.  She appeared caught up in the medico-legal process and there has been little in the way of active treatment for her chronic pain condition."

He took the view that it was urgent that she obtain treatment in relation to her pain state and depression and that it should involve multi-disciplinary pain treatment.  He considered her injuries were caused by the accident.  They were not stable and he thought she was likely to suffer residual disability although "she may improve significantly with the appropriate treatment".  He did not expect a stable state would be reached with treatment until six or twelve months.  He thought she was unable to pursue modelling in her present state. 

In his second report of February 1998 he noted some improvement in the plaintiff’s functional restrictions and he thought she possibly suffered from post traumatic stress disorder.  On that second review he commented:

"It is difficult to assess how much of her psychological state relates to the motor vehicle accident and the injuries sustained and how much to her previous family and social background.  A psychiatrist is best placed to answer this question.  I have recommended she undertake physical rehabilitation which to date she has not done.  I would see her as having lost 5% of the full efficient use of the cervical spine, 5 percent of full efficient use of thoracic spine and 5 percent full efficient use of left knee."

In having regard to her future employment capacity, he mentioned her limited education and the fact that she had had only four months’ experience in modelling and no other relevant history.  He thought from a functional point of view that she should best avoid heavier work but at the same time her education would limit her employability to manual types of occupations and that would limit her range of choices.

On cross-examination he acknowledged that in reaching his conclusion as to the level of organic disability, non-organic factors had made assessment difficult.  He was prepared to concede that all of the plaintiff’s symptoms could be non-organic and he was unable to say what was the precise organic problem afflicting her spine and her knee.  He said that the physical examination was his main diagnostic tool and that overall he thought he was able to detect some organic problems.

He conceded that the integrity of the history provided to him played an important part in diagnosis, that the plaintiff’s history was outside the general expectations for resolution of the soft tissue injury, but said that, taking into account the nature of the accident, the on-going complaints and the functional limitations, he had concluded that there probably was some organic disability.  The distribution and intensity of the pain, the activities which aggravated it, the methods of relief used and the sleep disturbance were all matters which he took into account and he agreed that if the witness had exaggerated complaints or otherwise provided a false history, he would need to review the basis of his diagnosis of an organic injury.

The details of the plaintiff’s conduct in connection with her obtaining the free paternity tests was put to him and he said that it did cause him concern that the plaintiff had misled other doctors about serious matters and, if he had known of it, it would have influenced his own judgment.

It was then put to him that that same incident might also affect his assessment that the plaintiff was suffering from major depression.  He said it did cause him concern because it was possible to simulate the symptoms of major depression for personal gain.  He acknowledged that in retrospect it was possible the plaintiff was consciously exaggerating the symptoms which led him to conclude that she was suffering from major depression.  He went on to say, however, that it was hard for him to extrapolate on that point because it was outside of his area of expertise, that it would give him some concern but he would not necessarily change his whole view of her presentation.  Ultimately the question was put to him that so far the diagnosis of organic disability was concerned and in light of the matters that were put to him, it was equally likely that the plaintiff’s presentation was totally non-organic.  He agreed with that.

EVIDENCE OF DR GUIRGUIS

Dr Nagi Guirguis saw the plaintiff on 10 March 1995 at the request of her solicitors and he was called to give evidence at the trial.   His qualifications are in rehabilitative medicine and he said that his field drew on contributions from experts in neurology, orthopaedics, musculo-skeletal and occupational branches.  For the past two years he has consulted at Adelaide Pain Consultants and he said that the cost of a standard treatment there for between three to twelve weeks varied between $3000 - $6000. 
 His two reports of 15 March 1995 (P10) and 25 September 1996 (P11) were tendered and he told the court that he further reviewed the plaintiff on 6 February 1998.  He reported that the plaintiff had suffered "a typical acute traumatic cervical spine syndrome" as a result of a motor vehicle accident, that she had suffered musculo ligamentous injury with referred pain in the scapula region.  He noted that the usual history of those conditions was gradual resolution within weeks or months but at times complete resolution was not achieved.  He considered she suffered a great deal of anxiety and depression which had slowed down her recovery and his prognosis was guarded due to the presence of depression and anxiety and also the possible added stress of her original pregnancy.  He thought her rehabilitation would be lengthy and would require psychological support as well physical treatment.

On his second review in September 1996 he noted she was then presenting with "global disability and a definite deterioration in her condition".  He said he was unable to find any definite organic cause for her deterioration and he considered a large part of the presentation could be caused by psychological/psychiatric factors.  He recommended  a referral for that purpose.

By 6 February 1998, there were no subjective or objective changes in her physical condition, but he noted an improvement in her non-organic presentation and thought she was much less disabled and needed less help.  He commented on her poor posture but said that on balance he thought it likely that there would be a degree of permanent disability.  He thought that improvements could be effected in the level of pain, posture and muscular condition and that these would help but he did not think that significant changes could be achieved because of the lapse of time.  He considered that, as of now, the organic disabilities comprised 15% of her neck, 10% of her right shoulder and 10% of her left knee.  He thought with treatment her physical abilities would improve but there would still be limits.  Her physical rehabilitation would require supervised pool and hydrotherapy gym work and self-exercise over a twelve week period at an estimated cost of up to $2000.  As the plaintiff is now, he said, she could not expect to handle catwalk and photographic modelling, but with improvement she could work for up to one to two hours, although working for eight hours would be difficult.  He said that realistically her future was in light work for restricted hours.

Under cross-examination, he was challenged over the integrity of the plaintiff’s subjective responses to his clinical testing.  He agreed that it was theoretically possible the plaintiff could be deliberately or consciously exaggerating those responses, but he said that malingering does not often occur and can usually be detected by inconsistency of presentation.  In the plaintiff’s case he said there was reasonable consistency on three occasions, hence he felt confident about his diagnosis.

He was asked whether observations of the plaintiff moving in a restricted fashion and then soon afterwards in an unrestricted fashion would change his opinion.  He said one such occasion would not necessarily indicate the whole thing was a fabrication and that people will from time to time subconsciously do things that worsen their condition.  He acknowledged, however, that such a variation would be inconsistent although he said he would want to see a number of inconsistencies in a number of areas before changing his opinion.  He said the plaintiff’s level of disability had been reasonably constant over the period and he defined "traumatic chronic spine syndrome" as a term that was currently used to replace the more restrictive and uninformative term of "whiplash".  It is an expression he said that is used to describe the short and long-term effects of an accident to the neck region. 

He said he did not know why in absolute terms she was suffering pain but that further, more penetrating, inquiry into that issue was not justified because it would not alter the course of treatment she required and particularly as it would likely cause further pain.  He speculated that facet or other neck joints may be her problem with right shoulder involvement.  He did not think there was any significance in her lower back pain.

EVIDENCE OF DR COHEN

Dr Brian Cohen  was called by the plaintiff.  He had seen the plaintiff in June and October 1996 and reviewed her again on 6 February 1998.  His three reports were tendered (P6, P7 and P8).

His initial report noted "gross restriction" in her spinal movements, he considered that there were non-organic factors contributing to her presentation and she was responding adversely to perceived pain.  He noted significant psychological factors.  He thought there was mild tenderness in her knee joint but no other significant findings and again thought that psychological factors were contributing to that condition.  He concluded that she had significant physical problems as well as psychological problems and that an assessment of residual disability could not be made at that time.

He later saw her on 28 October 1996 and noted similar symptoms were persisting.  She was still upset and depressed and had much the same physical complaints as before albeit with a greater restriction in the movement of her left knee.  He thought that pain was a factor in her presentation, that she had the "same postural stoop/deformities as before" and that there were non-organic factors which were contributing.  He considered she had a 5 per cent total loss of body disability, but that much of that was related to non-organic factors.  He was not able to assess the extent to which that disability was contributed to by organic factors and suggested psychiatric opinion.  He commented that physically there was no reason why she should not improve.

By February 1998 he observed that the non-organic factors were still present and that the cervical, thoracic and lumbar spinal conditions were subjective in nature.

He noted that her complaints had been consistent throughout and her  condition remained as a combination of organic and non-organic problems.  He thought her prognosis was not good in the short term but the probability was for long-term improvement, although it would not be achieved in the foreseeable future.  The key was the resolution of the organic factors because he thought the psychological problems would then go.  He thought there was still a basic organic problem but could not accurately assess its extent.  He thought her admission to the Pain Clinic was the correct avenue to her rehabilitation.  He thought she would have difficulty with most forms of employment now but in future her employability would depend on treatment.  In the longer term she should be able to enter the work force, although he was not sure she could meet the physical demands of postures and positions required in modelling. 

Under cross-examination, he conceded that the organic element was subjective and its extent was shielded by non-organic factors.  When tested on her history, he said that in his opinion her clinical responses meant that there was a high probability of ongoing pain, but this could not be proved.  He was not able to identify any element of conscious/voluntary exaggeration with consistency.  He had seen Dr Atkinson’s report, but thought the plaintiff’s condition was resistant to management and there had been only minor improvement to her knee and lower back.  He accepted that it was possible for a good actor to simulate the plaintiff’s presentation, but thought there was no evidence that it was occurring.  He relied on the patient’s presentation and on the fact that 90% of patients were genuine.  He repeated that present evidence suggests that psychological states will go if the underlying organic problem is treated. 

He said that his opinion might change depending on the nature of any inconsistency in presentation.  When it was put to him that Dr Jose would say there was inconsistency observed in her mobility, he responded that he would be unable to comment upon that without details, but he acknowledged that it would cause concern if there was demonstrated inconsistency.  He spoke of the plaintiff’s spinal kyphosis and how it was greater than one would expect to see, albeit that it could also be a natural development.  Here, he thought it was a response to pain, but he acknowledged that it could be corrected spontaneously, albeit with pain.

Thus far I have discussed all of the plaintiff’s medical experts, save for the psychiatrist, Dr Kelly.  With the exception of Dr Atkinson, who could find no knee pathology, Drs Schuetz, Guirguis, Cohen and Meegan considered that there were underlying physical disabilities but that they were complicated by psychological/psychiatric factors which made it very difficult to quantify them.  They all deferred to psychiatric opinion.

Before I turn to the psychiatric evidence, however, it is necessary to review the expert evidence as to organic injury led by the defendant.  In that respect the defendant tendered by consent the report of Dr J R Lipert of 25 November 1996 (D2) and two reports of Dr G. Jose of 13 June 1995 (D6) and 22 October 1997 (D7).

EVIDENCE OF DR LIPERT

Dr Lipert saw the plaintiff on 18 October 1996 and received a history similar to that disclosed to other practitioners.  He noted her posture and restriction in neck, shoulder and other spinal movements, although he detected a full range of movement in her left knee.

· she has reported to doctors and changed doctors over her frustration at not recovering promptly from her injuries;

· her complaints about the impact of her injuries on her later life were supported by her husband’s evidence;

· as her counsel urged, there is room for doubt about the capacity of a fifteen-year-old child (as she was at the time of the accident) to fabricate and then consistently present, ever since, the same set of symptoms;

· there is no doubt she was in a vehicle struck from behind with some measure of force;

· the defendant’s insurer had paid some $5,300 towards her special damages;

· with the exception of the matters referred to in the Dr Jose report, there has been no medical observation of her conducting herself in a way contrary to her claimed disabilities.

As against those matters, I have had regard to a number of specific attacks upon her credibility, which comprised the following and which I do not set out in order of importance or weight:

· there were inconsistencies in her evidence and in the information she provided to Dr Guirguis and Ms Berwald as to the knee injury she suffered at the time of the accident.  She variously related that, at the time of the accident, her knee began swelling immediately, that it was sore and bruised, that it was not swollen or bruised, and that it began causing problems after a week;

· she initially claimed that immediately following the accident she saw Dr Duffield for some four months on a weekly basis and was ready to affirm that in cross-examination.  Dr Duffield was not called to give evidence but when the plaintiff was tested on the matter and given some specific dates, she acknowledged that she had seen Dr Duffield on only four occasions in three months.  She sought to explain her oversight by saying that she must have been confusing attendances with Dr Duffield with her physiotherapy consultations;

· she gave evidence to the effect that prior to her motor vehicle accident her psychiatric health was "fine" and volunteered that she had had a good relationship with her mother, father and sister.  When interviewed by Dr Kelly, she denied any "significant family psychiatric or medical history".  Upon cross-examination she then acknowledged that she had received "quite a few years of counselling for my father being so violent" up to a year before the accident and, amongst others, had seen a Mr Greg Smith, a family psychiatrist;

· in describing her participation in the modelling course conducted by Finesse, she said she had thoroughly enjoyed it, but under cross-examination admitted that she had been spoken to by Finesse about a number of aspects of her conduct and she admitted that she had a "bad attitude" to the course;

· in her evidence-in-chief she described her first pregnancy as unplanned, but later acknowledged that she told Dr Tottman that she decided to have children for specific reasons and at the suggestion of friends because she could not do modelling.  She acknowledged that neither she nor her boyfriend were able to use contraceptive measures and yet they were leading an active sex life;

· in her evidence-in-chief she spoke of the severe restrictions her injuries had had upon her capacity to attend to household matters and the management of the children and how it was that Robert Drury had undertaken most of those roles.  Robert Drury sought to support that scenario but, under cross-examination, it emerged that on his own account he had also suffered significant injuries in the accident and in previous accidents.  In his Rule 46.15 particulars (D3) he stated that it was he who had difficulty in assisting the plaintiff with her household duties. 

She said he was the only one who could throw the children into the air, but later said that he was restricted in lifting.  Drury himself said he even experienced pain turning door knobs and particularly reaching up above his shoulder and carrying things;

· the episode involving the plaintiff’s attempt to cut open her stomach when pregnant and her associated post natal depression were obviously significant happenings in her life, yet she chose not to disclose them to the psychologist and the two psychiatrists whom she saw;

· her explanation as to her claimed receipt of some $4,000 by way of income within six months prior to the accident, (her Rule 46.15 particulars said six weeks) left open a number of questions.  She was not able to identify any of the sources of that income other than for $200, she had no records of any kind proving its receipt or deployment, it was not disclosed to Social Security and $3,800 seemed an unlikely amount of income to have received from three or four students;

· she was challenged on her capacity to sometimes move more freely and without restriction and she said that she was able to do so, perhaps six- monthly.  The incident of her free movement when visiting Dr Jose’s rooms was commented upon by the defence.  In reply, her counsel said these observations were not inconsistent and there was medical support for the possibility that occasional free spontaneous movement might have been possible.  I did not consider this evidence to be of particular significance either way;

· likewise, it was suggested that the fact a "non-injury" police report was prepared reflected on the plaintiff’s credit.  It appeared the plaintiff had gone the police station with Robert Drury, who made the report, but there was no evidence that she participated in its formulation.  Its contents might reflect on Mr Drury, in fact I find they do, but not on the credit of the plaintiff;

· it was put by the defence that the plaintiff’s description of her ongoing disabilities, including her neck and shoulder pain, her migraines and her fear of her knee giving way, was inconsistent with her lifestyle and other evidence.  In that respect my attention was drawn to her evidence that she and her husband managed to go on holidays every three or four months, and went to Bali last year, that she admitted swinging on a rope and was not prepared to deny she might have suffered an injury in a seesaw accident, that I should consider her explanation for the roller skating incident, that she was able to demonstrate enough, in an interview and presentation to Tanya Powell Modelling in Melbourne, to attract an invitation from them to undertake their course;

· there is, then, the evidence which emerged from her cross-examination on the notes of Dr Schuetz.  I have already dealt with the rape complaint episode: effectively the plaintiff conceded that on the evening of a visit to Schuetz, she and her husband conspired to defraud the health system by making a false claim that she had been raped in order to obtain free paternity testing.  Quite apart from the direct implications of this evidence (namely that the plaintiff was prepared to lie and fabricate symptoms over a period, for personal gain), I thought it quite inconsistent with the plaintiff’s presentation as an ingenuous teenager;

· the role of Dr Lim in the plaintiff’s entire medical history was not disclosed by her until she was cross-examined, at which time it emerged that she had been seeing Dr Lim for many years before the accident on a weekly to fortnightly basis and that, despite her evidence to the contrary, she had clearly discussed the accident and her injuries with that doctor and at various times received relevant treatment from Dr Lim.  The fact that the plaintiff had seen Dr Lim’s notes on the night before they were produced to the court was perhaps unusual, but it was not that which attracted my attention so much as her claim that she had only skimmed them when, as her evidence emerged, it became clear that she had read them very carefully, was mindful of punctuation marks in them and was volunteering her answers to cross-examination topics on them almost before they were focussed upon.  Her explanation for the roller skating entry in Dr Lim’s notes I found quite unconvincing, likewise her lack of  memory as to the seesaw incident and her explanation for swinging on a rope.  She might have called Dr Lim to dispel these matters, but chose not to;

· I turn then to the conflict between her evidence and that of the defendant Lock.  There is a stark contrast between their respective accounts of what occurred immediately after the accident and I have already referred to this.  True, it is, that the plaintiff is supported by the evidence of Robert Drury but, against that, Lock came to court with little personal interest in the litigation.   She was calm in giving her evidence, was frank in describing her feelings and her observations at the time and was willing to concede reasonable hypotheses.  Her evidence simply had the ring of truth about it;

· I have already referred to the very surprising inconsistency surrounding the plaintiff’s attendance on Dr Atkinson on 15 June 1994 when she failed to mention to him the injury to her right knee she had allegedly sustained in connection with her daughter’s roller skating and about which she had consulted Dr Schuetz on that same day.  She said that that injury was to her left knee and it was, of course, Dr Atkinson she was seeing about that knee that very day.  I regard that evidence with deep suspicion;

· it was a small matter, but unexplained, why she did not call her mother or her sister to give evidence about the voluntary assistance allegedly provided by them;

· finally, I must deal with the plaintiff’s demeanour in the witness box.  She certainly presented as a person who was unhappy with her life.  Like her husband, she handled her examination and cross-examination quite well on those topics on which it might have been expected she would be examined.  It was when she was tested on unfamiliar ground that she was found wanting.  I  refer in particular to her responses to questions put to her about the defendant’s evidence, about her attendances on Dr Lim and the various other incidents discussed with that doctor and about her consultations with Dr Schuetz over the rape incident.  She was too ready to deny recall or to seek to rationalise threatening evidence in a way favourable to her case.  I simply did not believe her when she denied any recall about several matters that were put to her on the basis of Dr Lim’s notes.   In particular, her responses to the questions about roller skating, the fall from the seesaw and the rope swinging were variously fanciful, surprising and unconvincing.  I felt they were designed to advance her case, at the expense of frankness;

· as the plaintiff’s evidence was, in some respects, corroborated by that of Robert Drury, it is relevant to consider the amount of reliance that should be placed on his evidence:
He appeared to give his evidence confidently and initially was not shaken in cross-examination.  When, however, he was confronted with questions on matters for which he was obviously not prepared (and I here refer to questions about Lock’s version of the accident, his own injuries, his prior accident history and his capacity to help in the house), he was most unconvincing.  At any point where he perceived any threat to the value of his evidence, he was too ready to deny any memory of relevant matters.  That applied to the circumstances of the accident, his attendance at the police station and, more starkly, to his recollections about previous accidents in which he was or might have been involved.  He did not remember whether he had had four accidents in the 1991/1992 period, although ultimately he was pressed on and did remember one involving the garbage truck.  He was reluctant to concede that he had seen Dr Blakemore but ultimately did so.  Extraordinarily, he claimed to have no memory of an incident when he blacked out whilst driving his wife and children in 1994.  As I have said, the incident itself was never established but denying memory of an incident of that kind strains credibility.  His response to the challenge on his answers to the Rule 46.15 particulars was unconvincing.  All in all, I found myself unable to rely on his evidence to any significant degree and that had two implications:  where his evidence conflicted with that of the defendant Lock, I preferred hers; otherwise I was not able to find he corroborated much of what the plaintiff said.

In balancing the factors which support the plaintiff’s credit against those that do not, I have also had regard to the plaintiff’s demeanour and presentation at court and whilst giving evidence, which I found to be guarded and overly demonstrative. 

In the event, I find that the plaintiff has sought deliberately to conceal relevant and unfavourable matters from her examiners and from this court and otherwise to simulate or exaggerate symptoms.  She has, from an early age, been alive to the potential gain in conducting herself this way.  Even without the evidence relating to the rape incident, I would have so found but, as it is, that incident illustrates her preparedness to deceive her doctor and others by simulation of complaints, in order to benefit financially.

FINDINGS

On the basis of the above findings, I prefer the evidence of the defendant Mrs Lock wherever it conflicts with that of the plaintiff and Mr Drury and I find that in the period immediately after the accident, the plaintiff was neither upset in the sense that she was crying, nor was she abusive to the defendant, nor was she holding or rubbing her neck.  On the contrary, I find that she stood away from the discussion between Drury and the defendant, adopted a disinterested attitude and did, indeed, assist Drury in pushing the defendant’s car off the roadway.

I further find that she probably did not go to Modbury Hospital immediately after the accident, although I attach no direct significance to this because I find that she did see her general practitioner Dr Duffield some five days later. I am also left in some doubt as to her physical symptoms immediately after the accident, but again not much turns on that as I am satisfied she soon sought medical attention and that she was then suffering symptoms of soft tissue injuries in her neck, upper back and shoulders and some pain to her left knee.  I find that her knee problem persisted, but allowing for a short recovery period from the arthroscopy performed by Dr Atkinson, she has had no further organic disability in her knee.

I find that her other physical injuries did persist for a period after the accident which I estimate between six and twelve months, but that there has not been, since the expiration of that period, any organic basis for the persistence of the physical  symptoms in her upper body of which she has complained.

In so finding, I am mindful that Dr Guirguis considered there was a level of organic disability in those areas ranging between ten and fifteen per cent and that Dr Meegan assessed the organic disabilities in those regions at five per cent.  Having regard to the findings I make about the plaintiff’s credit, Dr Meegan’s ultimate concession that it was equally possible that there was no organic injury at all and the strongly expressed views of Drs Lipert and Jose, I am satisfied that on balance the plaintiff’s organic injuries attributable to the incident had subsided by the end of 1994 but that, until then, she was totally incapacitated for work.

Of course, the matter does not end there because the evidence of Ms Berwald and Drs Kelly and Tottman supports the existence of some kind of psychiatric condition emerging in 1994 and persisting through to the present time, whether or not it is superimposed on an organic injury.

At the outset I should say that I prefer the evidence of Drs Kelly and Tottman over that of Ms Berwald.  She presented as relatively inexperienced and slightly less than objective.  The two issues which then remain on the psychiatric evidence are (1) whether the plaintiff has a post traumatic stress syndrome (as Dr Kelly says) or a severe maladjustment disorder with anxiety and depression (as Dr Tottman says); (2) the extent to which either of those diagnoses should be written back on the basis of their common reliance on the integrity of the plaintiff’s history and the findings I have made about her credibility.

Notwithstanding the findings I have made as to the plaintiff’s credit, I remain impressed by one feature which emerges from the opinion of almost every consultant, namely that the plaintiff appears throughout to have displayed some symptoms of anxiety and depression.  There has been a consistency in observation and report about this, and I accept that a level of anxiety and depression has been present from about mid-1994, notwithstanding my other misgivings about the histories she has provided.  That finding is not inconsistent with my finding that the plaintiff has sought to embellish and exaggerate the extent of her physical and emotional difficulties to a significant degree.  Dr Kelly acknowledged that, even with the presence of a post traumatic stress syndrome, it was possible for there to be an element of conscious simulation and I infer that the same simulation may co-exist with Dr Tottman’s diagnosis.

That finding leads me to make the difficult assessment of the extent to which the plaintiff’s presentation of symptoms from 1994 until the present time, has been influenced by conscious and deliberate simulation and the extent to which medical diagnoses have otherwise been influenced by her false or incomplete history.  In that context I am not particularly troubled by the differences in diagnosis between Drs Kelly and Tottman.  Each accepted that they were more of form than of substance, Dr Kelly suggesting it was merely a matter of focus and Dr Tottman suggesting that it was a semantic issue.  Their differences related to the origins of the plaintiff’s condition rather than its symptoms but, to the extent it is necessary, I prefer Dr Tottman’s view that neither the circumstances of the collision, in which relatively minimal damage was caused, nor the plaintiff’s immediate or later reaction to it were such as to be likely to give rise to a post traumatic stress disorder.  The plaintiff’s behaviour at the scene and for some time afterwards did not suggest she had reacted to the incident in any way consistent with Dr Kelly’s diagnosis - to the contrary, she was largely unaffected by it and disinterested.  I find that the  plaintiff’s condition of anxiety and depression has arisen rather, as Dr Tottman says, from her response to her initial physical injuries and the impact they had on her life and her modelling ambitions. 

In the event, I find that from a period commencing approximately six months after the accident and continuing to the present time, the plaintiff has suffered from mild anxiety and depression but sufficient to induce a perception she has of some level of pain, essentially to her upper spinal and shoulder region and, less significantly, to her left knee.  In short, she has a mild somatoform disorder of an unconscious nature and this has served to perpetuate the symptoms of which she has complained.  I use the term ‘mild’ to reflect my finding that there is a very strong element of conscious simulation and exaggeration and, accordingly, that I must substantially write back the psychiatrists’ views that she has major anxiety or depression.  I find she has no major psychiatric disability.

I am not assisted by the evidence in determining the extent to which her mild level of disorder has incapacitated her for work nor the extent to which it can be resolved by future medical treatment.  I am prepared, however, to accept that it has partially affected her earning capacity in the period until now and I will have regard to that in the assessment I make under that head. Given the confidence both psychiatrists had in some level of improvement being achieved in the more severe conditions which they diagnosed, I have much greater confidence in finding that her mild adjustment disorder with associated anxiety and depression will be amenable to treatment, albeit that I must allow for the possibility that it will not be completely cured.  The plaintiff is undergoing treatment at the pain clinic, and I will allow for the cost of that along with a small provision for the risk of future medical treatment.

I therefore proceed to assess damages as follows:

Non-Economic Loss

Under s.35a of the Wrongs Act 1936 as amended, I attach a numerical value of 6 to the plaintiff’s damages.  It was agreed between the parties that the relevant prescribed amount was $1,450, hence these damages total $8,700.

Special Damages

The defendant having already paid to the plaintiff special damages totalling $5,342.20, the plaintiff asserted no further claim under this head and it is unnecessary for me to make any order for it.

Past Economic Loss

The plaintiff had virtually no work history prior to the accident.  I found her evidence as to $3,500 she allegedly earned from photographic modelling to be unreliable.  Indeed, on the evidence I could not make much of the plaintiff’s modelling prospects.  She was one of a substantial number of aspirants to such a career.  She appealed to Mr Puccetti as a prospect but not to Mr Cuckow.  Even allowing she might have obtained some bookings, the only evidence I received on income levels (that of Mr Cuckow) was not encouraging for occasional models and not impressive even for successful ones - indeed on what I was given, I could make no valid distinction between the level of income likely to be derived from modelling or any other unskilled employment.  I will treat her as having lost the capacity, or some capacity, to earn income either in modelling or in other unskilled employment, that capacity varying according to the relevant periods.

I have regard to my finding that the plaintiff was totally incapacitated for twelve months after the accident and has been partially incapacitated for work since then.  I will therefore allow a notional sum for her lost opportunity between the accident and now to earn income from modelling or unskilled work.

There is no previous work history or relevant guide for an assessment of her lost opportunity to work in unskilled positions and her modelling experience was extremely limited.

Any notional award needs to account for the usual contingencies, including work availability, the plaintiff’s interest in obtaining work and, more particularly, the likelihood the plaintiff would have been having her children anyway.  On the evidence, I find that, irrespective of her injuries and modelling aspirations, she would likely have had children in this period.

I am therefore obliged to value this head of claim as a lost opportunity, totally for twelve months after the accident and partially since then, to earn income at a level commensurate with modelling work and unskilled labour, but to then reduce that assessment for the contingencies already discussed.  I allow $15,000 under this head.

Future Economic Loss

I have already found that the plaintiff will substantially recover from her condition and hence will become employable within a period, which on the evidence and my findings is unlikely to exceed even one year. I have to allow, however, for the very small contingency that she will not do so.

Having regard to her education, work experience, work history and the usual contingencies, I can do no more than fix a global figure for this head and I do so at $15,000.

Voluntary Assistance

I was not impressed by the plaintiff’s evidence on this matter and I will allow only a nominal sum to reflect some measure of support from her husband and family.  I fix $300.

Future Medical Expenses

I will allow a sum for the likely cost of Pain Clinic and associated attendances as I find that the plaintiff requires that treatment to complete her recovery. The evidence I received on this cost was unclear, but on the basis of what was put and my findings as to the extent of her condition and hence the likely period of treatment, I will allow the sum of $2,500.

Interest

I allow interest on past economic loss at 6%, hence $3,825.

Summary

Non-economic loss   8,700               
                  Past economic loss  15,000                
                  Interest on past economic loss   3,825
                  Future economic loss  15,000
Future medical expenses   2,500
Voluntary assistance   300     ______
  $45,325

I will therefore award the plaintiff $45,325 inclusive of interest and I will hear the parties as to costs.

Order that the plaintiff have costs of the action to be agreed or taxed.