Everson v Oliver

[2021] NSWDC 667

District Court

New South Wales

Medium Neutral Citation:

Everson v Oliver [2021] NSWDC 667

Hearing dates:

8 November 2021 – 12 November 2021

Date of orders:

15 November 2021

Decision date:

15 November 2021

Jurisdiction:

Civil

Before:

Neilson DCJ

Decision:

Verdict and judgment for the Plaintiff against the Defendant for $382,277.

Catchwords:

Torts – Animals – Defendant’s bullock escaped onto Pacific Highway from paddock adjoining highway – Paddock previously owned by defendant but sold to RMS for construction of Pacific Motorway – Swamp oak tree fell on fence causing it to collapse – Defendant had permission from RMS to agist cattle on this paddock pending commencement of roadwork, provided defendant kept up fencing – Defendant aware that rotten swamp oaks likely to fall on fence causing it to collapse – Defendant ought to have felled swamp oaks near fences long before sale to RMS or to have asked RMS for permission to fell the trees.

Damages – Quantum – Allowance for future economic loss where plaintiff not suffering at present any economic loss – Claim for past gratuitous care unsuccessful – comparison of competing assessments both tendered in plaintiff’s case.

Evidence – Probative value of bovine excrement.

Legislation Cited:

Civil Liability Act 2002

Category:

Principal judgment

Parties:

Plaintiff – Susan Joan Everson
Defendant – Dale Oliver (trading as East Coat Citrus)

Representation:

Counsel:
Plaintiff – G. Radburn
Defendant – R. Perla

Solicitors:
Plaintiff – B. Crawford & I. Lyon (Somerville Laundry Lomax)
Defendant – P. Rutherford (Holman Webb)

File Number(s):

2019/00155558

Publication restriction:

Nil.

Judgment

1. HIS HONOUR: The plaintiff, Mrs Susan Joan Everson, brings an action for damages for personal injury which she alleges she sustained when the truck she was driving on the Pacific Highway near New Italy on Thursday 19 May 2016 collided with a bullock which the defendant admits was owned by him. The plaintiff’s cause of action is in the tort of negligence. Both liability and quantum are hotly contested. However the defendant does no longer allege that the plaintiff, if she recover a judgment, was guilty of contributory negligence, that allegation being explicitly abandoned by learned counsel for the defendant, Mr Perla, during addresses.

Facts

2. The best way of dealing with liability is to quote the statement of the defendant, Mr Dale Oliver, which was tendered in the plaintiff’s case. The plaintiff retained an expert, Mr Geoffrey Noel Hill, who produced what he called an “Agricultural Report”. Mr Hill has expertise in agricultural matters. For 12 years he was employed by the NSW Department of Agriculture as the manager of the Wollongbar Agricultural Institute as Wollongbar, where his responsibilities included the management of a 120 cow dairy farm and other livestock enterprises. In addition, Mr Hill has managed large corporate agricultural enterprises in western NSW, including a large irrigation enterprise which ran 3,500 head of beef cattle. It is accepted that he has expertise, particularly in matters relating to fencing of rural properties. As Mr Hill annexed the defendant’s statement to his report it went into evidence as part of exhibit E. There was therefore no need for defendant’s counsel to call Mr Oliver to give evidence.

3. By occupation Mr Oliver is the owner and operator of a wholesale nursery business known as East Coast Citrus at Knockrow, which is north of Ballina and was once on the Pacific Highway before the Pacific Motorway was rebuilt bypassing both Ballina and Bangalow. Knockrow is between Ballina and Bangalow on the Old Princes Highway. In addition to that business, the defendant was also the owner of a piece of rural land located on the Pacific Highway near New Italy. That land appears to be Lot 11 in Deposited Plan 631203, which can be conveniently found on exhibit G. According to Mr Dale’s statement he and his partner, Ms Donna Maree Syme, are the owners of that piece of land. Mr Dale’s statement continues in this fashion:

“10. The land at New Italy is approximately 160 acres in size. The land is positioned on the eastern side of the Pacific Highway and is bordered by rural land owned by Peter Evans at 8340 Pacific Highway, two other landowners and some Crown land. It is an odd-shaped property. Approximately 300 metres of the western border of the property fronts on to the Pacific Highway.

11. The land is generally flat in nature and is used as pasture for cattle. There is no residence on this property. The land is made up of a number of paddocks and each of the paddocks are fenced.

12. The paddock that is adjacent to the Paficic Highway is approximately 50 - 60 acres in size. It is odd shaped.

13. Up until May 2015, I used to graze up to 40 head of cattle on that paddock. From approximately March/April 2015 to May 2016, I did not raise any cattle in the paddock adjacent to the Pacific Highway or on any of my property at New Italy.

14. The fencing is generally constructed of four wire barb fence. The land is flood prone and therefore we do not have a very low row of barb as this allows debris to disperse when there is flooding. The fence posts are made of timber and steel.

15. Approximately 2 - 3 years ago, the Road and Maritime Services (RMS) purchased a portion of my land for the purpose of widening the Pacific Highway, New Italy. They purchased approximately 11 acres and the portion was generally rectangular in nature. The portion joined onto existing Pacific Highway near the accident scene, was approximately 300 metres long and approximately 100 metres wide. I have shown this section of the land to the investigator.

16. I have previously used this land for the grazing of cattle.

17. The land the RMS purchased included some fencing. The fencing was four wire barb and was in an average but operational condition at the time of sale. The fencing was not electrified.

18. The fencing acted as a border between the existing Pacific Highway and the land that the RMS had purchased from me. I did not install any new fencing to define the new border of my property after the RMS purchase. The new border is defined by some white posts, which have pink ribbons attached (surveyor pegs).

19. There is a section of land adjacent to the Pacific Highway, where there is a grouping of mature oak trees. They are located in an area that is constantly affected by water. There is no access for the water to disperse. Most of the trees in the group appear dead and rotten inside. I suspect they have died due to constantly being water logged. I have noticed trees in that area have fallen down, over a period of time, for many years.

20. The trees are generally approximately 8 - 10 metres tall and are located between 8 - 15 metres from the fence line.

21. Since the sale of the land, the trees are owned by RMS and I have no legal right to remove or do anything to the trees.

22. I normally burn the fallen trees in the August of each year. Fallen trees can often wash into fence lines and cause damage.

23. There has been a verbal [sic, scil. oral] agreement between me and the RMS since they purchased the land. The agreement involved me being able to use the land that they purchased from me for the purpose of grazing cattle until such time as they commenced the construction of the widening of the Pacific Highway. I was to maintain the land if I was using it. Part of the agreement was that I was to be solely responsible for the maintenance and repairs or the fencing that bordered onto the Pacific Highway. I have generally dealt with Kurt, Boekerman of RMS, in relation to use of this land. I am not charged for the use of this land owned by RMS.

24. I had spoken to Kurt Boekerman of the RMS, about the grouping of oak trees. These conversations have taken place over a period of time. I believe it was 2015 where I started questioning RMS about renewing the fence line to define my new border. He generally advised that they hoped for the Pacific Highway upgrade to commence by March 2016, and possibly a new fence would be built, at that time, to separate my property from the RMS property.

25. I reside at Knockrow, which is approximately 60 kilometres from my land at New Italy. I have a good relationship with my neighbour, Peter Evans, he keeps a regular check on my land. I also have relatives and transport couriers and they are aware of my land, they keep a visual check and notify me of any happenings on or about my land. The paddock where the incident occurred is within easy view of the traffic on the Pacific Highway, whether being northbound or southbound traffic.

26. I generally attend the land at New Italy on a weekly basis, if not more, and it is my normal practice to visually check the condition of the fencing.

27. I am aware that cattle can damage fencing and escape. I am also aware that trees may fall onto fence lines and cause damage, thus allowing cattle to escape.

28. There have been occasions in the past when fallen trees have damaged the fence lines and allowed cattle to escape. This has happened on approximately four occasions since I have owned the land. It mainly happens in that section that borders onto the existing Pacific Highway. I recall there was an incident when one of the oak trees fell and landed on the fence. Some cattle got out and I was notified by council workers who happened to be in the area. I attended immediately and the cattle had returned to the paddock. I cannot recall when that incident occurred, approximately three years ago [approximately 2013].

29. The nearest residence is not within viewing distance of the accident scene.

30. As at 19 May 2016 I only owned one cow. Donna and I are the owners of this cow. This cow was a mature Brahman Friesian bullock. It was approximately 6.5 years of age, it was mainly black with a white face. The bullock was running with Peter Evans’ cattle on his land. I believe it was on 19 May 2016 that Peter Evans contacted me by phone and inquired whether he could allow some cattle to graze in my paddock that included the portion purchased by the RMS adjacent to the Pacific Highway.

31. I gave permission for this to happen. At the time of granting permission, I believed all the fence lines bordering on the Pacific Highway were in good operational order. I cannot recall when I inspected the fences prior to 19 May 2016. I will check my diary for any relevant notations.

32. I believe Peter Evans placed approximately 20 head of cattle in that paddock on 19 May 2016, this included my sole bullock. I did not charge Peter any monetary fee in relation to this grazing of cattle. It was a verbal [sic, scil. oral] agreement.

33. On 19 May 2016 I was advised of a motor vehicle accident that occurred on the Pacific Highway, New Italy NSW adjacent to my block of land. I was notified of the accident by Peter Evans at approximately 8pm.

34. I immediately drove from my residence and attended the accident scene. I would have arrived at the scene at approximately 8.40pm. It was night time when I arrived at the accident scene. At the scene was Peter Evans, his employee Phil, Police, and family members of the driver of an Isuzu truck.

35. I noticed a white Isuzu truck, it was positioned on a driveway area to the south of the accident scene. I noticed some damage to the front of the truck. I took some photos of the truck and I have provided them to the investigator.

36. I was advised the truck had been travelling generally south on the Pacific Highway at the time of the accident. I understand that there was either two or three people in the vehicle.

37. The driver of the vehicle had already left the scene. I understand she had been taken to hospital. I understand the driver’s name is Susan Everson. I did not know Susan Everson prior to this accident. I spoke with her husband Sean at the accident scene. There was mention of her having a leg injury.

38. I believe the Police officer at the scene was Adam Bailey, and I understand he had driven passed the accident scene immediately prior to the accident.

39. I noticed my bullock was lying near the cattle yards, it was deceased. I understood someone had euthanised the bullock due to injuries sustained when impacting [sic] the front of the truck. I noticed the bullock had a significant leg injury. I understood the bullock had been dragged to that location.

40. I recognised this bullock as being my bullock. I knew this by the ear tag and its physical description.

41. I noticed that one of the oak trees had fallen down and had damaged the fence that separated the Pacific Highway and the land that had been purchased from me by the RMS. I have identified that tree and location to the investigator. It is marked presently with a roll of barb [wire] being placed on the steel picket. The tree has now been dragged away from the fence line. The tree was approximately 8-10 metres tall.

42. I believe that the cause of the tree falling down was from rotting associated with the wet area.

43. Due to the size of the tree, I believe any type of typical farm fencing at that location would have been significantly damaged.

44. The investigator and I have taken a short break from the interview to have a cup of coffee.

45. The fence has been damaged for approximately 8 metres (2 x 4 m spans) and it allowed the cattle to escape. The tree flattened the barbed wire. A couple of the rows of barbed wire had also been snapped in the impact.

46. I do not know how many cows escaped from the paddock.

47. I believe that the cows had only been in the paddock for less than 24 hours prior to the accident.

48. I estimate it was approximately 5-10 metres from the damaged fence to where the accident occurred.”

4. Mr Hill also annexed to his report a statement of Mr Peter Evans on 25 July 2015. According to Mr Evans, the defendant's parcel of land was 168 acres. According to Mr Evans, his parcel of land, which is north and east of the defendant's parcel of land, is 108 acres in size. On 19 May 2016, Mr Dale had 33 head of cattle grazing on his land, as well as the bullock owned by the defendant. According to Mr Evans, the bullock tended to be the leader of the herd of cattle, the other cattle tended to follow Mr Oliver’s bullock in paddocks. Mr Dale confirms that on 19 May 2016 he had arranged with the defendant to agist his cattle on the defendant’s land. According to Mr Evans he checked the fence line, including the fence separating the land from the Pacific Highway, on the day of the accident and he described the fencing as being, ”In a good operational order”.

5. When the tree fell that flattened the two sections of the boundary fence is unknown. It must have occurred sometime between the commencement of the grazing of the cattle on the defendant’s land and the time of the accident. The time of the accident is best recorded in the ambulance records. According to those records, a call was received by the ambulance service at 1839, that is 6.39pm, on the day of the accident. So, the accident occurred some time shortly prior thereto, approximately 6.30. Accordingly, the tree must have fallen at some stage between probably 8:00 or 9.00am to 6.30pm.

6. Unfortunately, there is no adequate mapping of the relevant area. Exhibit G is a small sized cadastral map headed, “Plan of land to be acquired for the purposes of the Roads Act 1983”. It appears to represent the Deposited Plan 1181313. In it, as I have earlier stated, the defendant’s land is known as Lot 11. On exhibit G, the boundaries of Lot 11 have been marked in blue highlighter. The land owned by Mr Evans has written on it ‘Evans’ but that is because it is in the Parish of Evans, not because the land is owned by Mr Evans. However, it allows one to identify Mr Evans' property easily. One can see that the original Lot 11 has been subdivided into two sections, the lot still known as Lot 11 and Lot 14, the area acquired by the RMS adjacent to the old Pacific Highway. It has that length of 300 metres identified by Mr Dale and one ought to know from that plan exactly how wide the RMS land is, but one can only go on the 100 metres given by Mr Dale in his statement. On exhibit G, the plaintiff has marked with a black X, the accident site. As it has been marked, it is between the two pieces of the modern Pacific Motorway, that is between the two northbound lanes and the two southbound lands which are separated by a substantial interval. Also marked on exhibit G by Mr Sean Everson, who gave evidence, are two red lines crossing the new boundary of lot 11 to indicate where there was a gateway in the western boundary fence of the original lot 11, but he ought to have placed those marks on the western blue line that is in the line that marked the western side of the land which was acquired by the RMS for the purpose of widening the highway, constructing the new Pacific Motorway.

7. As it ought be clear from what I have said thus far, the expectation that the RMS would commence work on the new Pacific Motorway in March 2016 was fanciful. No work had been commenced at the time of this accident on 19 May 2016. Relevant features of the western boundary fence can be reconstructed from the evidence. Annexed to the statement of the defendant is a plan made by the investigator, which shows the section of the land owned by the defendant/RMS abutting the Pacific Highway. It shows the three lanes of the Pacific Highway in the relevant area, one northbound lane and two southbound lanes divided by a Brifen wire fence. The map annexed to the defendant’s statement shows a creek line then there are two trees which appear to represent the copse of swamp oak trees that can be seen best in exhibit F7, a photograph and also partially seen in another photograph, exhibit F8. The map or plan annexed to the defendant’s statement then points out that immediately west of the copse of trees was the area of the fence in which two sections had been knocked down by the falling tree. The photograph of the new work on this section of the fencing can be seen in photograph F7 which shows a star picket topped with a roll of barbed wire as identified by the defendant in his statement. It also shows a number of dead trees lying on the ground which had been cleared away from the fencing.

8. The area of vegetation immediately east of the new section of fencing had been recently slashed, presumably for the purpose of erecting the new section of fencing. South of that area of fencing is a culvert which can be seen in photographs F3 and F4, and further south of that culvert is the driveway into the defendant’s land which was used firstly to permit the dead bullock’s carcase to be dragged into the cattle yard area on the defendant's land and was also used to tow the truck that had been driven by the plaintiff on the evening of the accident, so that would be off the highway. As I understand it, the truck was eventually “written off” and therefore would have been scrapped. So, going from north to south, there is the creek, the copse, the culvert and then the driveway. Although there is no document which sets out that a series of phenomena, in evidence, Mr Sean Everson made a sketch plan which became exhibit D. That shows the area of new fencing, the area of old fencing and then the culvert, but he has not marked on it the creek or the driveway into the defendant's land.

9. Of course, the plaintiff herself does not know of her own knowledge how the defendant’s bullock came to be on the highway, such that she collided with it at approximately 6.30pm on 19 May 2016. It is clear that the bullock was black, having a white face. The speed limit and at the relevant area was 100 kilometres per hour. The plaintiff has stated, and was not cross-examined to the effect, that she's driving at approximately 80kph at the time of the collision. It is unclear whether the plaintiff saw the bullock prior to colliding with it. She, in her evidence said, the first thing she observed was a bang, the noise of the collision with the beast, but she was unsure whether she actually saw the head of the beast prior to the collision or at the time of the collision itself. As I said, there is no suggestion of contributory negligence now raised, such that it cannot be alleged that the plaintiff was not keeping a proper look out. This was a black bullock on a black tarmacadam road, at night, in May 2016. The plaintiff cannot recall whether her lights were on high beam or low beam, but she said that there was no vehicle immediately in front of her, which would have stopped her engaging high beam. The question, which is unknown, is whether there was any traffic travelling northbound, which would have required her to put her lights onto low beam. There would have, of course, been a better chance of identifying the bullock prior to the collision if the lights were on high beam and, therefore, the probability is that the lights were on low beam because of some vehicles coming in the opposite direction.

4. The truck that she was driving contained two passengers, her son, who at the time was 13 years old and her second daughter, who at the time was 15 years old. Those two children were sitting on the front seat of the vehicle. Fortunately, neither of the children were injured. According to the plaintiff, immediately after the collision, the truck veered to the left, and it is clear from the evidence that the bullock ended up to the right of the lane in which the plaintiff was travelling. The plaintiff was travelling in the eastern most of the southbound lanes, that is, what a motorist would call the “slow lane” and the bullock ended up in the “fast lane”. It would therefore appear that the vehicle went left and the bullock went right. Photograph F1, a photograph of the truck, taken shortly after the collision, shows in the middle of the front of the truck, between the radiator grille and the windscreen, a large amount of bovine excrement. That appears to indicate that that was where the rear end of the bullock was at the time of the collision. The plaintiff said that the head of the beast appeared to be in front of her, in front of the driver and that is consistent with the beast travelling from east to west and being struck by the plaintiff, such that it's rear-end was towards the middle of the truck and its front end was towards the driver's side of the vehicle. This is the first occasion on which bovine excrement has had any evidentiary value in my Court.

5. It is clear from photograph F2, and also from photograph F1, that the bull bar, which was at the front of the truck, was pushed backward onto the body of the truck which was pushed backwards such that the dashboard of the vehicle was pushed backwards, as was the steering wheel, causing the steering wheel to collide with the plaintiff’s abdomen. The mechanism of injury is clear.

6. The question is how did the defendant’s bullock come to be on the highway? There are two possibilities. The first is that the bullock escaped from the area of fencing that had been brought down by the falling of the swamp oak tree onto the fencing causing two sections of it to fall to the ground. The other is that near the culvert the beast was able to push its way through the fencing based on the evidence of exhibits F3 and F4, the viva voce evidence of Mr Everson, and the report of Mr Hill.

7. The wire fencing along much of the western boundary of the land then owned by the RMS, but originally owned by the defendant, was in a poor state. Exhibit F3 shows that three strands of barbed wire could be pulled almost together, the two bottom strands of only three strands of barbed wire could be pulled to a height of 1.5 metres above ground level in the area near the culvert. This would have enabled a bullock or other beast to push under the fence, pushing up the lower two levels of barbed wire, albeit it might cause some minor damage to the beast’s head and back as it pushed under the barbed wire. Mr Everson said that he could discern, through the very tall grass on both sides of the fence line where the culvert is, a path that might have been taken by a beast going through that area, but I find it difficult to see such a path.

8. It should be noted that on the evening in question after he arrived at the accident scene, which was before the ambulance left with his wife in it, Mr Everson was able to see another beast which had escaped from the paddock further north than the accident scene. If Mr Evans’ evidence be accepted, and there’s no reason not to accept it, then the defendant’s bullock was the “leader of the pack”, a bovine bellwether. If he walked through fencing or pushed under fencing, other beasts might follow him.

9. The defendant has submitted that each of the two means of escape that is walking over the fallen fence or pushing under the inadequate fencing was possible, and therefore the Court could not be satisfied which was more probable than not. I disagree. It appears to be much more plausible that if two sections of a fence came down, that the beasts could walk over the fallen fence onto the highway, and in my view that is the more probable cause of the escape of the defendant’s bullock than going underneath the fencing in the area of the culvert.

Liability

16. The question then becomes how is the defendant liable? This was an area of major debate between myself and Mr Perla. It is again necessary to recall par 28 of the defendant’s statement. I requote it:

“There have been occasions in the past when fallen trees have damaged the fence lines and allowed cattle to escape. This has happened on approximately four occasions since I have owned the land. It mainly happens in that section that borders onto the existing Pacitic Highway. I recall there was an incident when one of the oak trees fell and landed on the fence. Some cattle got out and I was notified by council workers who happened to be in the area. I attended immediately, and the cattle had returned to the paddock. I cannot recall when that incident occurred, approximately three years ago.”

I point out that the statement was made on 21 July 2016. There is, of course, an error in the first sentence of that paragraph. A fallen tree could not damage a fence. A falling tree could do so. I presume that that is what the first sentence is supposed to say.

17. Accordingly, it can be seen that falling trees allowing cattle to escape had occurred on approximately four occasions when the land was owned by the defendant. Mr Dale, in his statement, recalled one specific incident. Mr Perla submitted that there was only one occasion when a tree when falling had damaged a fence and allowed cattle escape, and the other occasions were when a fallen tree washed up against the fence and damaged the fence, allowing cattle to escape. I do not read the relevant section of the statement, as Mr Perla did. Furthermore, if he wanted me to read it in that fashion, the defendant ought to have given evidence to that effect but did not do so. I should also point out in relation to par 31 of the defendant's statement that there was no follow up of the defendant as to when he had last inspected the fence along the Pacific Highway prior to 19 May 2016. The evidence is completely silent about that. One would think that Mr Oliver’s diary might allow him to refresh his memory as to when he had last inspected the fence. Clearly, it did not, or if it did, the date of inspection would not have assisted the defence case.

18. I must accept that the tree only fell sometime on the day prior to the escape of the cattle and the occurrence of the accident now in question. The defendant seeks to escape liability by arguing that the fence through which the bullock escaped was not owned by him, but by the RMS, that the copse of trees was owned by the RMS and that the defendant could not have felled the trees because those trees belonged to the RMS. However, the defendant knew well prior to selling the land to the RMS, that these oak trees were rotten and that they were liable to fall and if they fell to the west could damage and take down the fence. He sold the land but was given oral permission to agist his beasts on his old land until such time as the RMS commenced to do work on the new Pacific Motorway, and that was what occurred on 19 May 2016. In giving Mr Evans permission to let his bullock and Mr Evans's cows onto his land, the defendant knew that in doing so, he was giving those cattle a risk of escape because one of the old swamp oak trees might fall and cause the fence to collapse. Indeed, one would think that knowing that falling trees had damaged fence lines on four occasions when he was the owner, that he should have done so after the first time a falling, rotten tree damaged the fence line. However, he did not do so.

19. In Mr Hill's report, the following is stated:

“In my opinion any owner, of the enclosed paddock, would also maintain the boundary fence in very good condition, which would include the observation and remedy of potential risks which might lead any damage to infrastructure, and the escape of livestock. The potential for damage to the boundary fence, which these dying trees present, is obvious. More so, as it is reported in statements provided in the Appendices, that animals have escaped before through this fence.

Any prudent owner of such critical infrastructure as a boundary fence on a National Capital Highway, would easily recognise the threat that these dying and falling trees would inflict on the integrity of that critical roadside boundary fence. It, therefore, is essential that such trees be removed before they fall and damage the boundary fence.

While these trees … are dangerous to remove, it is a simple matter to place a long wire rope around the tree and pull the tree down from a safe distance with a tractor, bulldozer, or excavator.”

20. Once, Mr Oliver became aware that these falling swamp oaks could take down the fencing, he owed a duty to those using the highway to fell the trees so that it would not be a recurrence of trees falling, taking out the fencing and allowing cattle to escape onto the carriageway of the highway. Mr Evans, the adjoining property owner and clearly a friend of Mr Oliver, operated an excavation business at Alstonville. He was living in Byrnes Lane, Tuckombil, which is north of Alstonville. He also was the owner of land adjourning the land owned by the defendant. As I understand it, Mr Evans’ tractor was used to drag the dead beast from the highway into the defendant’s property and deposited near what the defendant referred to as the cattle yards or Mr Everson referred to as a shed. And was also used to tow the truck being driven by the plaintiff off the roadway into the driveway onto the defendant’s property, such that it could not be the cause of any further obstruction on the Highway. In other words, Mr Evans was a ready source of access to vehicles such as tractors, bulldozers, and excavators, that was role in life and he could easily supply a vehicle to Mr Oliver to pull down the copse of dead or dying swamp oak trees.

21. He ought to have done that when he first became aware of the propensity of these trees to fall and take down fences. He ought to have done it many years before. It ill lies in his mouth to say he could not be liable because the trees belonged to the RMS when he was given permission by the RMS to agist his cattle on their property, provided that he maintained the fence line. The maintenance of the fence line required him to take down the dead or dying swamp oak trees that constituted the copse. Furthermore, there is nothing to suggest that the RMS would not have given the defendant permission to fell the trees after they passed into its ownership. Afterall, one would expect the first thing that RMS would have done in the construction of the new Motorway was to fell the copse in any event because the new Pacific Motorway passes over the area on what was the original boundary of Mr Oliver’s land as is clear from exhibit G.

22. The relevant pleadings in the statement of claim are these particulars:

“(f) Failure to ensure the fence had not been damaged by external causes including fallen trees;

(k) Failure to clear dead or dying trees within the vicinity of the fence to avoid the risk of such trees damaging the fence and allowing cattle to escape.”

The final particular pleaded by the plaintiff was the failure to construct a new fence along the boundary of the second defendant’s property to retain his cattle within his property. It is clear from the defendant’s statement that he did not do so, no doubt in the pious expectation that a new fence would be provided to him at no cost by the RMS. Indeed, Mr Hill’s report gives two photographs which are known as photograph I and photograph J, and this commentary is provided:

“The following two photographs I and J show fencing erected on the new Pacific Highway during its reconstruction by the Roads and Traffic Authority.

The re-alignment programme undertaken by the RTA since the accident, has removed fencing along the highway and replaced with much more substantial road and transport designed and installed fences, the design of which reflect the importance of keeping livestock and feral animals off the National Highway.

Note that the fence is 1.5 metres and, in this case, sits on top of an embankment.”

The photographs do show very good fencing. It is clear that Mr Oliver expected such good fencing to form the new boundary between his land and the land that had been passed into possession of the RMS, which was still referred to by Mr Hill as the RTA. The plaintiff is, accordingly, entitled to recover damages from the defendant.

Quantum

23. The plaintiff was born in 1976. At the time of this accident, she was 38 years old. She is now 45 years old. She is a married lady and she and her husband have three children. Their elder daughter, their second daughter, and their son. The plaintiff grew up in Casino and attended St Mary’s High School in that town. She completed the Higher School Certificate in 1995. After leaving school, she completed a Diploma of Children’s Services at TAFE, but then undertook the degree of Bachelor of Education which she completed in 2009. Since that time, she has been a schoolteacher.

24. She married in 1998. Both the plaintiff and her husband had a very keen interest in horses. That is perhaps how they met. After marriage, they acquired a property at Ashby which is near Maclean. On that property they have erected in one shed six stables and initially the plaintiff and her husband ran a business known as Everview Horse Stud. They acquired horses and retrained them and then on-sold the horses to pony clubs and to property owners, and for riders. I understand that at some time they were training racing horses to be re-purposed as horses for use as merely riding horses or for pony clubs or for use on properties.

25. After qualifying to be a schoolteacher, the plaintiff found work at the Maclean High School and also public schools in the area where she lived. At the time of this accident she was working basically full-time on a casual basis at the Maclean High School.

26. The day of the accident, 19 May 2016 was a Thursday. The plaintiff’s immediate complaints were of pain in her lower abdomen where her lower abdomen was struck by the steering wheel of the vehicle, which had been pushed backwards into her body. And she also sustained injuries to each of her knees. As I mentioned earlier, a call was received by the ambulance service at 6.39pm. At 6.42pm an ambulance was dispatched from Evans Head and arrived at the accident scene at 7.07pm. The plaintiff was loaded into the ambulance at 7.26pm and was taken by the ambulance to the Lismore base hospital where the ambulance arrived at 8.30pm.

27. According to ambulance records, the plaintiff was admitted to triage at 8.35, but according to the hospital records she was admitted to triage at 8.22. I have always found that the ambulance records are generally more reliable than the hospital records. When the ambulance arrived at the accident scene the plaintiff was lying on the roadside. She was lying on a swag which had been in the back of the truck which she was driving. The truck was a medium size rigid Isuzu truck, which had been constructed to carry horses, but at the time of this accident was not carrying any horses. That afternoon the plaintiff had driven to Lismore to make some purchases at Bunnings and met up with her parents. She and her two children and her parents had eaten together and she was on the back to Ashby when the collision occurred. From Lismore, the plaintiff had taken the Wyrallah road to Woodburn, and then was on the Pacific Highway travelling south towards her home near Maclean.

28. When the ambulance arrived they noted that the plaintiff was alert, oriented, and normotensive, but pale. They recorded a complaint of pain in the lower abdomen and in the right lower leg. The ambulance records say: “Nil other injuries.” There was a complaint of nausea and the plaintiff did vomit once when in the ambulance en route to the hospital. The ambulance records contain this description of her symptoms:

“Left lower quadrant [of abdomen] pain described as aching and tenderness; right knee pain described as aching and tenderness; right lower leg pain described as aching and tenderness.”

The triage nurse notes at the hospital are these:

“Brought in by ambulance, motor vehicle accident driver, on highway. Approximately 80 kilometres, hit a massive cow. Nil loss of consciousness . Complaint of tender abdomen and graze to right knee. Slightly tachycardic … very pale.”

29. The plaintiff was admitted to hospital, but was discharged on the following day. The discharge summary records that the plaintiff was examined by Dr Anders Sideris at just before 11 pm. His notes are these:

“39 year old lady brought in by ambulance. Motor vehicle accident driving home. Car hit cow on road at 80 kph. No air bags, seat belt, dug into right lower abdomen and sustained blow to right knee on ? dash. Did not lose consciousness. Nil amnesia. Climbed out passenger side of car. Police man was already on road, called ambulance. Denies hitting head. Denies headache, seizures, bleeding from ears or nose, visual, auditory and olfactory sensory changes. Some nausea and vomiting - nil blood.”

He ordered a CT scan of the abdomen and a CT scan of the right knee and a chest X-ray. All those investigations are reported as being normal. On the day after the accident, 20 May 2016, the plaintiff was examined by Dr Brett Shaw at 10.24am. He examined the plaintiff’s neck and noted a full range of movements and no posterior tenderness. The plaintiff’s upper limbs showed a full range of movement of all joints with no pain. When he examined the plaintiff’s lower limbs, he found minor abrasions on both knees, but otherwise, a full range of movements in all directions. His “assessment” was that the plaintiff was suffering from generalised muscular soreness, but no significant injury was identified. The plaintiff was discharged at 11.14am on 20 May 2016 into the care of her mother.

30. On the following day, that is Saturday 21 May 2016, the plaintiff was still suffering from symptoms and went to the Maclean District Hospital, where she was assessed at triage at 8.40am. On that occasion, she was complaining of pain in her left arm, pain in the left chest wall and lower abdominal pain from where she had been struck by the steering wheel. The triage nurse also found a limited range of movements in the left shoulder and altered sensation in the left arm, and limitation of a range of movements of the left arm. The plaintiff was seen by Dr James Mallen who was a local general practitioner at the practice normally attended by the plaintiff. The plaintiff was complaining of shoulder pain according to Dr Mallen’s note and he noted that there had been no imaging of the left shoulder at the Lismore Base Hospital. Dr Mallen suggested the plaintiff use a sling and apply ice, presumably to her shoulder, and take pain killing medication. Plain x-ray of the left shoulder was said to show no fracture or joint or bony abnormality.

31. The finding of the nurse at triage is of more moment that Dr Mallen’s findings. A complaint of altered sensation and a limitation of movements of the left shoulder and the left arm might suggest a problem in the cervical spine, particular a complaint of altered sensation. On Tuesday 24 May 2016 the plaintiff consulted Dr Mallen at his rooms. His notes are these:

“Seen by myself at emergency department at weekend after MVA last Thursday. Collided with large bull. Steering wheel column struck abdomen. Primary and secondary survey including CT and overnight assessment all normal. Continues to have burning lower abdominal pain, slowly improving. Bowels open normally and no LUTS. On examination: observations normal. Looks well. ASNT. Reassured likely muscular strain, given normal CT, low threshold for medical review.”

However, the plaintiff also saw a physiotherapist, Ms Veronica Barker, at 2.24pm. She was to see Dr Mallen later at 6.51pm. Amongst other things, the physiotherapist, Ms Barker, noted the plaintiff had a problem elevating her left shoulder. She also noted a complaint of pins and needles in the left fingers and a reduced range of movements of the cervical spine with pain apprehension. She noted a restriction of cervical flexion to 30 degrees and lateral flexion to the right causing upper trapezius muscle pulling, and borderline spasm at 15 degrees. She also noticed reduced thoracic rotation of 45 degrees, the pain inhibiting her range of movement in the thoracic spine being caused by her abdominal “bruising”. Her treatment, including dealing with the plaintiff’s left shoulder, gently “releasing” the subscapularis, the interscapularis, and the anterior shoulder pectoral muscles, and the deltoid.

32. Indeed, it is clear from Ms Barker’s observations that the plaintiff had cervical symptoms on 24 May, including what would appear to be some symptoms caused by radiculopathy, the pins and needles in the fingers of the left hand. On 27 May 2016 the plaintiff was seen by another physiotherapist who appears to have been Monique Corbett. Her anatomical diagram indicates pain radiating from the base of the cervical spine across the top of the shoulder and down the left arm on its lateral border to the left hand and across on the hand itself. It appears to indicate symptoms in the hand, albeit that they were not affecting the thumb. That, to me, suggests an ulnar distribution of symptoms noted by the physiotherapist at that time.

33. A notice of commencement of therapy completed by Ms Corbett on 6 June 2016 provides a diagnosis of injury to the cervical spine with referred symptoms into the left upper limb caused by “whiplash” injury. In another place, she said that the whiplash injury was significant, and it was after a traumatic motor vehicle accident.

34. The plaintiff saw Dr Mallen again on 31 May 2016 and his notes say this:

“Would like referral to psychologist. Motor vehicle accident two weeks ago after hitting a bull while driving at night, major damage to the truck she was driving with the steering wheel column advancing one foot and striking her firmly in the abdomen. Seen by myself in ED at the time and she had extensive investigations (CT) which were all normal. Understandably anxious about driving afterwards, and is also suffering from poor sleep and feels jittery and on edge all the time. Overall not doing too badly considering the events of the accident. Keen to avoid medications. No history of any mental health problems. Discussed PTSD but I feel it is too early to diagnose, and I anticipate she will make a full recovery from the unpleasant symptoms she is experiencing at the moment. Mental health plan not done as condition not anticipated to be chronic.”

35. The plaintiff went back to see Dr Mallen again game on 2 June 2016, two weeks post injury. Dr Mallen’s records state this:

“History: now two weeks post MVA and continuing to have severe neuropathic pain left arm. CT at the time was normal. MRI requested to rule out spinal issue. Commence low dose Lyrica at night for neuropathic pain. Physio ongoing. Review with results.”

He recommended a MRI scan of the cervical spine which, unfortunately, was not performed until 4 July 2016. However, that was reported by the radiologist in this fashion:

“At C2-3, C3-4 and C4-5 levels, there is no disc bulge, canal stenosis or neural exit foraminal narrowing. Tiny uncovertebral osteophytes are present at C4-5.

At C5-6 there is a small right paracentral disc extrusion without canal stenosis. There are bilateral uncovertebral osteophytes, larger on the left than the right. This causes only minor narrowing of the left neural exit foramen, however.

At C6-7, there are minimal broad based posterior disc bulge without canal stenosis. Uncovertebral osteophytes cause mild left [neural] exit foraminal narrowing. The right neural exit foramen is capacious.

At C7-T1 and visualised upper thoracic levels, there was not disc bulge, canal stenosis or neural exit foraminal narrowing.”

36. Accordingly, one can see problems at the C5-6 level and at the C6-7 level. Those problems are can be described as degenerative disc disease or cervical spondylosis or osteoarthritis of the neck. It is very interesting that the narrowing of the neural exit foramina was on the left side, and one might think that the narrowing of the neural foramina on the left side could cause a problem for the nerve roots leaving the spine at those levels causing some radiculopathy in the left arm of the plaintiff.

37. Eventually, the plaintiff has come to operation, by way of both laminectomy and fusion at those two levels of the cervical spine. That surgery was practised by a neurosurgeon, Dr Antonio Tsahtsarlis on 25 June 2000 at the Mater Private Hospital in Brisbane. Despite the opinion of Dr Ross Mellick to the contrary, I have no hesitation in finding that the plaintiff injured her cervical spine in the motor vehicle accident now in question. The symptoms were delayed by a few days but clearly, they were affecting the plaintiff when seen by the physiotherapist on 24 May 2016 and could be seen as existing in any records at Maclean District Hospital triage nurse on 21 May 2016. The plaintiff’s symptoms became clear with the passage of time. The damage could be described as the aggravation of pre-existing cervical spondylosis, or the aggravation of pre-existing degenerative disc disease in the cervical spine and can be seen as some form of damage to the C5/6 and C6/7 discs, causing radiculopathy in the plaintiff’s left arm and hand.

38. The plaintiff had two weeks off work. She was seen on 1 August 2016 by Ms Sharee Harris, an occupational therapist. At that time Ms Harris recorded that the plaintiff was working from 8am to 4pm five days a week as an agriculture teacher and careers advisor at the Maclean High School. The plaintiff has, in fact, only lost five weeks from work. As a result of the surgery practiced by Dr Tsahtsarlis she was unfit for week for six weeks, but three of those weeks were school holidays and she was unfit for a period of three weeks thereafter before she could return to work.

39. In essence, the plaintiff worked at the Maclean High School until the end of 2018 when work became no longer available for her at that high school. She then obtained work at the Kadina High School here in Lismore where she worked for the first two terms. That was problematical for the plaintiff because it required her to drive each day from her home to Lismore and from Lismore back to her home and she found the long driving was causing increased symptoms. At the commencement of term 3 in 2019, she found work with the Clarence Valley Anglican School, which was at South Grafton. There she taught both PDHPE and food technology for four days per week, teaching classes between year 5 and year 10. She worked for that school for the second half of 2019 and for the whole of 2020, leaving aside the time she had off work for the operative treatment. On or about 18 January this year, the plaintiff found work at the Scots PGC high school at Warwick in southern Queensland.

40. She has a job there as the head of the girl’s boarding house. There is also a boy’s boarding house, but it is a substantial distance away from the girl’s boarding house. The plaintiff earns much more money at the Scots PGC school than she did teaching at public schools in NSW, and indeed, at the Clarence Valley Anglican School. She only needs to teach five periods per fortnight. She teaches agricultural theory, and that is not demanding. That is her evidence, which can be found at T86.32. The plaintiff continues to hold that position.

41. Most of the medical evidence before me is qualified medical evidence. The plaintiff has qualified Dr Don Todman, a neurologist. He has provided reports bearing the dates of 23 May 2017 and 15 July 2021. Dr Todman took a history that the plaintiff had pain in her neck from the outset, that is from the time of the motor vehicle accident now in question. However, I do not accept that. I accept that there was a late onset of pain, but that late onset, slow onset can be seen within two days of the event. Such a delay is acceptable. Dr Todman also noted the plaintiff had pain in her abdomen from what he thought was a seat belt injury and some pain in her right leg and knee. He accepted that the plaintiff had a form of whiplash injury, which led him to diagnose a chronic musculoligamentous strain. He thought that there was the aggravation of normal age related changes in the cervical spine. That is, an aggravation of cervical spondylosis. He went on to say this:

“In addition, she has symptoms radiating to her left upper limb, suggestive of a cervical radiculopathy at C7 or C8 level. The disc protrusion evident on MRI scan, is likely to be related to this accident.”

The only disc protrusion described as such, on the MRI scan to which he was referring, was her protrusion to the right. However, I can accept the aggravation of some pre-existing degenerative disease at the CS-6 and C6-7 levels, causing radiculopathy in the left upper limb.

42. The defendant, on the other hand, is qualified Dr Ross Mellick, who is also a neurologist. He disagrees with those diagnoses and could find no evidence of ongoing organic disability that is, no evidence of any disability caused by any objectively determined injury. I do not accept that. I accept the thrust of the plaintiff's complaints concerning her left upper limb and neck. Dr Mellick also thought that there was a chronic pain syndrome, which he thought was due to a “secondary psychosomatic process’, which is the modern euphemism for the old “functional overlay”. I accept that there is a physical basis for the plaintiff’s complaints. That physical process was remedied by Dr Tsahtsarlis, by the surgery that he practiced in 2020. The plaintiff has also qualified Dr Steven Huntsmen, a psychiatrist. Dr Huntsman, examined the plaintiff on 30 April 2018, and prepared a report bearing that date. He reported that the plaintiff was referred by Dr Mallen to a psychologist, Mr Peter Popko. The plaintiff told me about that. However, Mr Popko's son was a student at MacLean High School and the plaintiff discontinued seeing him because she thought it inappropriate that she should be consulting the father of one of her pupils. The plaintiff was then referred to a second psychologist at Coffs Harbour, but seeing that psychologist was problematic, in the sense that the plaintiff would either have to travel to Coffs Harbour or the psychologist to Maclean and that the psychologist was often not available and appointments were rarely held. In essence, the plaintiff has had no psychological treatment. Dr Huntsman diagnosed a chronic post-traumatic stress disorder, and an adjustment disorder with depressed mood of prolonged duration due to an enduring stressor, namely her chronic neck pain.

43. It often happens that psychiatrists provide multiple diagnoses, depending on which version of the DSM they are relying upon. I always apply Occam's razor, why would one postulate two conditions or three conditions or four conditions, when one condition could explain the plaintiff's symptoms?

44. The defendant has qualified Dr Alex Apler, also a forensic psychiatrist. Dr Apler’s report is much more thorough than Dr Huntsman’s. He did disagree with the diagnoses made by Dr Huntsman and he diagnosed an exacerbation of a pre-existing generalised anxiety disorder. He recommended that the plaintiff undergo treatment for that condition. Dr Apler had available to him the records of the plaintiff's general practice at Maclean. Dr Huntsman did not. Indeed, Dr Huntsman based his opinion on this:

“Ms Everson, denied any previous history of a psychiatric illness and stated that she had never previously consulted a mental health professional.”

45. Indeed, there is no evidence that the plaintiff had previously consulted a mental health professional, but she had previously consulted her general practitioners with psychiatric symptoms. Dr Apler was are of those attendances. His opinion is this:

“Ms Everson is a 43-year-old woman with a prior history of emotional problems. Her records indicate that she experienced anxiety and panic attacks in 2006, possibly related to her menstrual cycles. At times she would be moody and tired, with disturbed sleep. She again presented to her doctor with anxiety and panic attacks in 2014, light-headedness, shortness of breath, and a racing heart - typical symptoms of anxiety and panic. She was noted to have poor sleep and a history of anxiety and depression, which was thought to be stress related. She was prescribed a tranquiliser, Stilnox. She had worsening anxiety after a dental extraction and was prescribed Endep 25mg - an antidepressant with sedating properties. In 2015 she was grinding teeth, which can be a sign of anxiety, and was prescribed a tranquiliser, Valium 5mg.

Although Ms Everson told me that she had been a relaxed person before the accident, these records indicate that she did experience recurring anxiety and panic, with symptoms which are typical of these conditions, and which required treatment with psychiatric medications - Stilnox, Endep, and Valium. It is probable that she had a generalised anxiety disorder with mild but recurring symptoms of anxiety and panic, especially in the context of stress, and which required medical attention.

Ms Everson was in a motor accident on 19 May 2016. She was driving with her two children in the truck when she collided, head on, with a cow at about 80 kilometres an hour. There was extensive damage to the front of the truck, which was later written off. Her children were unharmed, but Ms Everson sustained physical injuries and felt pain in her abdomen, right leg, neck, and left arm. She was left-handed and she continued to experience pain in her left arm, which affected her ability to teach.

Ms Everson experienced an exacerbation of her pre-existing generalised anxiety disorder. She became anxious about driving at night and driving in daytime in heavy traffic. She developed claustrophobic symptoms in toilets, motel lobbies, tunnels, and elevators. She described worrying generally because she is trying to keep on top of things, and she described lying in bed and overthinking at night - these are typical symptoms of generalised anxiety disorder. Manifestation of her anxiety in different contexts is best diagnosed as generalised anxiety disorder rather than post-traumatic stress disorder, and adjustment disorder as diagnosed by Dr Huntsman.

She had relatively little treatment of her psychiatric condition. She took Valium intermittently, but this is an addictive tranquilising medication, inappropriate for long term use. She also had a few sessions of counselling, but this is inadequate. Generalised anxiety disorder is a treatable condition, and she should be treated with an antidepressant and psychological counselling and managing her anxiety. Her condition has not stabilised as she is likely to improve significantly with proper treatment.”

46. Perhaps the best way of looking at the matter is that the plaintiff was prone to develop generalised anxiety and this motor vehicle accident precipitated another episode of generalised anxiety which had persisted to date, persisted for over five years. It requires treatment. The diagnosis should probably be a chronic generalised anxiety disorder. I do not accept the plaintiff was suffering from post-traumatic stress disorder, only one symptom that might be referrable to that was recorded by Dr Huntsman, but not sufficient symptoms of PTSD to diagnose that condition. The evidence of Dr Apler is to be preferred.

LUNCHEON ADJOURNMENT

47. Just a few short observations on the medical evidence, which I perhaps should have mentioned earlier. The first is that at one stage the plaintiff was sent by her general practitioner to a pain specialist, Dr Leigh Dotchin, and she appears to have seen him on or about 12 December 2019. If the plaintiff had a chronic pain condition as suggested by Dr Mellick, that would be an appropriate referral. However, it is clear from Dr Dotchin’s report of 12 December 2019, which is exhibit T, that he thought the plaintiff’s problems were organic and suggested surgical management. That led to the plaintiff’s being referred to Dr Antonio Tsahtsarlis.

48. The first report I have from Dr Tsahtsarlis bears the date 3 June 2020, but the plaintiff’s evidence suggests that she had seen him earlier than that. The plaintiff told me that he organised a further MRI scan, presumably of the plaintiff’s neck, and then prescribed nerve blocks to see which segment of her neck was the cause of her pain. Those nerve blocks were performed by North Coast Radiology at Grafton, and it was a result of those that led Dr Tsahtsarlis to recommend surgery. The plaintiff’s evidence in that regard can be found at T55. Post-surgery, the plaintiff was referred by Dr Tsahtsarlis on 23 July 2020, and also on 17 September 2020. His report of that date says this:

“I spoke to Susan over a Telehealth appointment today. She had been recovering quite well following her cervical spine surgery. About three weeks ago she developed pain across the shoulder blades and down the posterior aspect of her arms to elbows. The pain came on quite acutely, and certainly seems worse in the evening time. She started on some anti-inflammatory medication as well as Panadol and Codeine, and things have eased a little. She thinks the symptoms are completely different to previous pain. I have asked her to have another x-ray as well as an MRI scan to exclude an adjacent segment problem. She can contact the rooms for another Telehealth appointment once the imaging is completed. I will update you on her progress after her next appointment.”

49. The important thing to note is that there was an acute onset of this pain more than four years after the motor vehicle accident in question. The symptoms were completely different to the symptoms the plaintiff had had in the past. The plaintiff told me that she has had an MRI scan of her neck and she is awaiting specialist referral for this problem. That specialist referral appears to be for an orthopaedic surgeon. The MRI scan report has not been put before me, nor was any adjournment sought by the plaintiff to adduce evidence concerning this new set of symptoms. The only thing I can find is that this new set of symptoms is unrelated to the motor vehicle accident, which is the subject of these proceedings. I turn then to the various heads of damages claimed by the plaintiff.

Non-economic loss

50. The first claim is damages for non-economic loss, that is for what is traditionally called pain and suffering. The plaintiff claims 35% of a most extreme case. The defendant submits that I should make award in respect of 26% of a most extreme case. These proceedings are governed by the Civil Liability Act 2002. The way the Civil Liability Act works can create anomalies. For example, 26% of a most extreme case is $55,500, whereas 35% of a most extreme case is $242,000. Although the percentage difference might be relatively small, the monetary difference can be extremely large. Bearing mind the plaintiff’s immediate symptoms, and the fright and scare that this motor vehicle collision would have caused, bearing in mind ongoing problems in her neck thereafter, leading to the spinal surgery, which of itself creates a permanent impairment, I believe I ought allow 30% of a most extreme case. The monetary sum for that amount is $159,500.

Past out of pocket expenses

51. The plaintiff claims past out-of-pocket expenses in the sum of $42,157. The defendant submits that I should only allow $15,104 being the amounts claimed by the plaintiff less the cost of the surgery practiced by Dr Tsahtsarlis. Bearing in mind my finding that the need for that surgery was related to the effects of the motor vehicle accident, I allow the amount claimed of $42,157.

Future out of pocket expenses

52. For future out-of-pocket expenses, the plaintiff claims $31,152. The defendant submits that I ought allow nothing. There are there areas to be considered. The first is the future cost of psychiatric treatment as proposed by the defendant’s own doctor, Dr Adler. The plaintiff made it clear in her evidence at T60.11 that she wished to take up the treatment suggested by Dr Adler. The first item of that is 12 fortnightly counselling session with a psychologist at the rate of $250 per session. That amounts to $3,000. Dr Adler also recommends antidepressant medication at a cost of $70 per month on a long-term basis. It is hard to know what a long-term basis might be. I am prepared to allow $70 per month for 15 years. That is $16 per week for 15 years. The multiplier is 555, and that results in the figure of $8,880. The total of the two sums that I would allow for future psychiatric care is $11,880.

53. The plaintiff’s second claim is for the cost of breast reduction surgery as was discussed by the plaintiff with Dr Robert Simon. The amount claimed for that surgery is $13,800. Dr Simon saw the plaintiff on 1 November 2008 on referral from Dr Mallen. Dr Simon is a breast thyroid and general surgeon. According to Dr Simon’s history, the plaintiff’s large breasts made it particularly difficult for her to exercise as the weight of her breasts put strain on her previous injuries, mainly the neck injury. Dr Simon’s report continues thus:

“I explained to her that if she had a breast reduction, there certainly would be reduced load on the cervical and thoracic spine, but this may not solve her problem back completely. Overall, I did recommend a breast reduction to alleviate her symptoms.”

Dr Simon thought that the procedure could be conducted at St Vincent’s Hospital here in Lismore. Despite three years passage of time, the plaintiff has not made any decision either way about having the breast reduction surgery. As Dr Simon explained, it could only lessen symptoms in her cervical spine, however, the problem there is that the symptoms in the cervical spine have, to an extent, been alleviated by the surgery practiced by Dr Tsahtsarlis. Bearing in mind that three years have elapsed since the plaintiff consulted Dr Simon and that she has not yet made any decision about having the breast reduction surgery and bearing in mind the fact that the need for the breast reduction surgery has, to an extent, been obviated by the surgery practiced by Dr Tsahtsarlis, I am not persuaded on the balance of probabilities that the plaintiff will, in the future, undergo breast reduction surgery as a result of the injury that she received to her cervical spine.

54. The third area of future out of pocket expenses claimed, is an allowance of $15 per week for the plaintiff’s future life expectancy, a period of 41 years. I am prepared to allow that sum. There will always be a need for some ongoing medication, for example, pain relief, caused by aggravating events. $15 per week for 41 years in the future amounts to $13,872. The total I would allow for future out of pocket expenses is $25,752.

Past economic loss

55. The plaintiff’s past economic loss has been agreed to be $4,868. There is no dispute about that, although theoretically, the defendant would dispute three of the five weeks the plaintiff has had off work because three of those weeks off work were caused by the cervical spine surgery. However, I accept that that was reasonably necessary as a result of the injuries received by the plaintiff in the motor vehicle accident.

Future economic loss

56. There is also a claim for future economic loss. The plaintiff claims the sum of $200,000. The defendant submits that I would allow nothing. At the date of the accident, the plaintiff was working as a high school teacher. If she was still so employed, she would be earning approximately $70,000 per annum gross. At the present time, as I already mentioned, the plaintiff is working as the head of a girl’s boarding house at Scot’s PGS at Warwick, now a co-educational high school. She is earning substantially more, about $130,000 per annum gross. According to the particulars prepared by the plaintiff’s solicitor, that amounts to $1,531 per week net, which indicates a annual sum of $79,612. I would round that out to $80,000 per annum. The plaintiff is now 45. She has a future working life to the age of 67, that is a future working life of 22 years. I accept that on the open labour market, the plaintiff would be disadvantaged because of the damage to her cervical spine, leading to the two level laminectomy and fusion. She has ongoing symptoms but to a lesser extent than previously. She still has some ongoing generalised anxiety, which one hopes might be ameliorated within a period of six months and the ongoing treatment for some 15 years.

57. The plaintiff’s current employment is permanent, that is, there is no agreed end date, but one can accept that the plaintiff might give up that work, especially as she gets older. It might be easy for a 45 year old lady to deal with adolescent girls, but as one gets older, ones tolerance decreases and at a more mature age, she may find it easier to teach school rather than to deal with a group of adolescent girls in a boarding house. The plaintiff submitted that I should allow for about two years in the future. The figure in the plaintiff’s schedule of damages does not reflect that. I suspect it reflects learned counsel for the plaintiff’s educated guess as to what might be allowed. I am not permitted by the Civil Liability Act to guess. I am prepared to allow two years future economic loss to cover periods of time when the plaintiff might find herself unemployed and at a disadvantage in open labour market. Two years economic loss at 80,000 per annum is $160,000. I would round that down to $150,000.

Past care

58. The plaintiff’s next claim is in respect of past gratuitous care. For that, the plaintiff claims $59,518. The past gratuitous care was rendered to her by her husband, Sean, her two younger children, and more recently, their elder daughter, has returned to live in the family home. Exactly when that occurred, I do not know. The plaintiff’s claim is based on a report of Ms Bernadette Collins, an occupational therapist. The report is dated 2 June 2020, and was made following an assessment on 24 April 2020. That is, it was made prior to the surgery practiced by Dr Tsahtsarlis on 25 June 2020. The claim particularised on p 3 of the statement of particulars filed 5 November 2021 is this:

Period	Hours	Weeks	Claim at $31 p.h.
18/05/2016 -19/06/2016	17	4.35	$2,292.45
19/06/2016 -19/09/2016	12	13	$4,836.00
19/09/2016 - 19/12/2016	10	13	$4,030.00
19/12/2016 - 19/12/2020	7.5	208	$48,360.00

59. One will note three things from this schedule. Firstly, the claim could only commence on 20 May 2016, that is the day after the accident, as the only care given to the plaintiff on the day of the accident was by the NSW Ambulance Service and at the Lismore Base Hospital. The second thing to note is that there was double counting of end dates and the third thing to note is that the schedule should not cease until the plaintiff took up the job at Scots PGC at Warwick on 18 January 2021. I suspect that the last end date was done as a matter of convenience.

60. The evidence relied on is that of the plaintiff and her husband, which is largely anecdotal. The plaintiff gave evidence of having kept a rough tally of hours spent in care given to her, but that was never put into evidence. The other evidence relied upon, of course, is that Ms Collins. Ms Collins relied on an assessment made by the plaintiff on the time spent by members of her family caring for her rather than any actual observation by Ms Collins of what work was actively done by the others. Mr Everson admitted that he was not interviewed by Ms Collins and her report does not state that Ms Collins interviewed anybody other than the plaintiff.

61. As can be gleaned from the particulars delivered by the plaintiff in the document filed on 5 November 2021, Ms Collins divided up the past into the following periods, first the first month following the accident, secondly months two, three, and four post injury, thirdly, months five, six, and seven post injury, and then from December 2016 to the date of the assessment. During the same period the plaintiff was interviewed on 1 August 2016 by Ms Sharee Harris, who as I earlier pointed out was an occupational therapist like Ms Collins. Ms Sharee Harris’ report was tendered in the plaintiff’s case as exhibit Q. The two reports need to be compared. As at 1 August 2016, Ms Collins made this assessment:

TASK	TIME	PROVIDER
a) Personal care	1.5 hours per week	Husband
b) Eating	0.25 hours per week	Husband
c) Cleaning	2.5 hours per week	Husband/family
d) Meal preparation	2.5 hours per week	Husband
e) Shopping	1.5 hours per week	Husband
f) Yard maintenance	3 hours per week	Husband
g) House maintenance	1 hour per week	Husband

I shall deal with each item separately.

A. PERSONAL CARE

62. In the period from 20 June to 20 September 2016 Ms Collins tells me that the plaintiff regained some function but continued to be sore, her abdomen was bruised, and she was unable to bend and lean forwards. Her husband assisted her with her bra and putting on shoes and socks. The plaintiff also gave evidence that her husband assisted her with showering by washing her back.

63. Ms Harris was told about difficulty putting on and taking off her bra and was told that the plaintiff’s husband assisted in washing her back. Ms Harris recommended to the plaintiff that she do her bra up at the front then twist it around her body so that the closure was at the back. According to Ms Harris, the plaintiff told her that she had been using that technique. As far as showering was concerned, Ms Harris recommended to the plaintiff to use a long-armed brush or shower scrubber to wash hard to reach areas of her body.

64. I accept that there was an occasional assistance given by the plaintiff’s husband to the plaintiff with her bra and some assistance in showering. However, I would not allow a great deal of time on a weekly basis. I would allow a quarter of an hour or 0.25 hours per week.

B. EATING

65. According to Ms Collins’ report, the plaintiff required assistance to cut up her food due to upper limb pain. According to Ms Harris’ report, the plaintiff required assistance to cut up steak but was able to feed and drink independently once her steak had been cut up. There then arose a debate between myself and learned counsel for the plaintiff, Mr Radburn, as to how often a lady would eat a steak. I suggested twice a week, he suggested four times a week. I am prepared to allow three times per week, but no more than five minutes on each occasion. I again allow 0.25 hours per week for that activity.

C. CLEANING

66. Ms Collins, concerning the period up until November 2016 said this:

“Mrs Everson reports she relied on her husband and family to complete most tasks for the first six months post-injury. She was unable to bend to scrub and complete heavy cleaning tasks. In addition, she had resumed work and was fatigued from working.”

What Ms Collins said about laundry should also be considered at this stage. On that she said this:

“Ms Everson reports they moved the laundry upstairs. Ms Everson is able to place clothes in the washing machine right handed and hang clothes on a hanger or over the veranda. Her family assist with the heavier loads such as bedding. Ms Everson reports she folds the laundry but finds this painful and exhausting due to her bilateral upper limb use and repetitive movements.”

67. Ms Harris said this about vacuuming/sweeping/mopping/cleaning bathroom:

“Reported able to complete light sweeping unilaterally however is very painful in arm. Uses electric dustpan to collect dirt and dust. Observed: limited ability to sweep. Upper body movements very stiff and uncomfortable when performing tasks. Completed task using right arm only.”

As far bathroom cleaning was concerned, Ms Harris said this:

“Reported unable to complete this task. Observed: reduced range of motion, squatting and bending ability restrict Mrs Everson’s ability to clean bathroom.”

68. She recommended a contract cleaner providing cleaning services for one hour per week for such activities. If a commercial cleaner was sufficient at one hour per week, I would allow for family members to do the job two hours per week.

D. MEAL PREPARATION

69. Ms Collins said this of the period up until the end of November 2016:

“Mrs Everson reports she relied on her husband and family to complete most tasks for the first six months post injury. She was unable [to] bend to access shelves or the oven and could not carry heavy pots and pans. In addition, she had resumed work and was fatigued from working by the end of the day and required to rest.”

70. On that issue, Ms Harris said:

“Reported: Husband completes tasks due to difficulty and pain lifting items and chopping items caused by a lack of ability to use the left hand. Ms Everson able to complete very basic kitchen tasks, such as retrieving items from fridge and making a cup of coffee.

Observed: Limited ability to use left hand. Able to make coffee and tea and retrieve items from fridge.”

71. It has to be noted that the cooking was for the whole family, during this period of time, two adults and two teenage children. The cooking done for the plaintiff represented only part of the time spent. I allow 20 minutes per day, which is 2.3 hours per week.

E. SHOPPING

72. Ms Collins said this about the plaintiff’s experience of shopping ever since the time of the accident:

“Ms Everson reports her husband has taken over the shopping since the accident. Ms Everson is unable to carry grocery items up the stairs. She lacks the endurance for pushing a laden trolley and then lifting items in and out of her car.”

73. On this issue, Ms Harris said this:

“Reported: Unable to complete task. Husband performs shopping.

Observed: Not observed. Unlikely to complete task due to pushing and pulling and lifting requirements of the task.”

74. It must be remembered that when the plaintiff was doing her grocery shopping, she was shopping for a family of four. It would be much quicker if she were only shopping for herself and the amount that she had to lift and carry would be much smaller. I am prepared to allow under this head, a half an hour a week.

F. YARD MAINTENANCE

75. Ms Collins said this of the plaintiff’s ability to engage in yard maintenance after the injury:

“Mrs Everson reports she has not mowed or whippersnippered. The vegetable garden is overgrown. Ms Everson lacks the capacity to complete the yard work due to the need for upper limb repetitive movements and the lifting required. Her son currently mows around the house. Assistance is required.”

76. Ms Harris said this on the issue of both external house maintenance and gardening:

“Reported: Children and husband complete.

Observed: No garden.”

77. Ms Harris thought that no mowing assistant was required as the plaintiff’s son, did the mowing. Mowing is an appropriate activity for a teenaged child living at home. A teenaged child can also do the whippersnippering. I would not allow anything for this item and it must be pointed out that the Griffith Kirkemeyer remark relates to the care given to the plaintiff, not the care given to property of which the plaintiff might be a co-owner.

G. HOUSE MAINTENANCE

78. One hour per week is claimed. On that issue, Ms Collins said this:

“Ms Everson reports she has tried to remove cobwebs using her right upper limb, however, had limited success due to her coordination difficulties. She is unable to use a ladder or move a ladder around to access the ceilingcob webs. Her husband now completes her pre injury house maintenance tasks.”

Again, for the reasons given in the last section of this judgment, Ms Harris would allow nothing for house maintenance. I accept that cleaning cobwebs and ash from the balconies and eaves after cane burning in cane burning season, between December and May and the washing of windows was done by the plaintiff. I would allow a half hour per week for that activity. Indeed, that is what the plaintiff herself said at T 91/T 92, she initially estimated 40 minutes per week and gave the following answer to the following question:

“Q. How many windows do you have to wipe down?

A. Well, it’s just the outside of the windows and then, like, cleaning up under the eaves, those sorts of areas, so half an hour, I suppose, half hour, 40 minutes.”

79. The total of the sums that I have allowed is 5.8 hours. That does not cross the six hours per week threshold for the period of months two, three and four, post-accident, albeit that it is close. Even if those items of care persisted up until the plaintiff found work in Warwick, which is not the hypothesis accepted by Ms Collins, the statutory threshold of at least six hours per week for at least six months, would not be met. Accordingly the plaintiff’s claim for this type of damages, fails.

Superannuation

80. Superannuation benefits are not claimed, either in the Particulars filed on 5 November 2021, or in the plaintiff’s schedule of damages, for the past or future.

81. The total damages, if my mathematics and those of my Associate, and those of a calculator be correct, is $382,277.

82. Does anyone want any further reasons?

RUTHERFORD: No, your Honour.

RADBURN: No, your Honour.

83. HIS HONOUR: I have inquired of the representatives of parties whether any further reasons for judgment are required, I am told that none is so required. For those reasons, there will be verdict and judgment for the plaintiff against the defendant for $382,277.

84. Is there any problem about costs?

RADBURN: No, your Honour.

HIS HONOUR: I order the defendant to pay the plaintiff’s costs.

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Decision last updated: 09 December 2021