Faith Mary Godin (Formerly Barbara Ann Adler) v Jesse Thomas Godin (Formerly Christopher Adler) - [2003] WADC 21

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: FAITH MARY GODIN (FORMERLY BARBARA ANN ADLER) -v- JESSE THOMAS GODIN (FORMERLY CHRISTOPHER ADLER) [2003] WADC 21

CORAM: DEANE DCJ

HEARD: 25-28 NOVEMBER 2002

DELIVERED : 31 JANUARY 2003

FILE NO/S: CIV 2036 of 2002

BETWEEN: FAITH MARY GODIN (FORMERLY BARBARA ANN ADLER)
Plaintiff
AND
JESSE THOMAS GODIN (FORMERLY CHRISTOPHER ADLER)
Defendant

Catchwords:

Personal injury claim arising out of motor vehicle accident in Queensland - Jurisdiction issue - Liability and quantum in dispute - Whether defendant driver negligent - Volenti non fit injuria - Nature and extent of plaintiff's injuries - Whether there was an exacerbation of a pre-existing psychiatric state - Claim for general damages, past and future voluntary and professional care services with interest, future pharmaceutical needs and special damages - Turns on own facts

Legislation:

Motor Accident Insurance Act 1994

Motor Vehicle (Third Party Insurance) Act

Result:

Defendant liable in negligence
Damages assessed

Representation:

Counsel:

Plaintiff: Mr D R Clyne
Defendant: Mr B C Sierakowski

Solicitors:

Plaintiff: Hoffmans
Defendant: Brian C Sierakowski

Case(s) referred to in judgment(s):

Ivkovic v Rinaldi [1980] 25 SASR 516
John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503
State Government Insurance Commission v Hitchcock, unreported; FCt SCt of WA; Library No 970089; 11 March 1997

Case(s) also cited:

Kars v Kars (1996) 187 CLR 354
Malik v Malik (2001) 34 MVR 417
Newman v Nugent (1992) 12 WAR 119

DEANE DCJ:

Introduction

In this claim issues of both alleged negligence and quantum of damages are in dispute. The claim arises out of a motor vehicle accident which occurred on the evening of 20 March 1999 about 30km southwest of Jundah in Queensland. At the time the plaintiff and her husband the defendant, who were both normally resident in Western Australia, were in the course of a driving holiday around Australia in their Toyota Landcruiser. On the evening in question at about 8.30 pm the plaintiff, who was wearing a seatbelt, was a passenger in this vehicle being driven by the defendant. They were proceeding southwest on a gravel road from Jundah towards Yawah. In the relevant area the land adjoining the road on either side was unfenced permitting cattle and other animals which might be likely to be in and around the area to stray on to the road. The vehicle being driven by the defendant struck one or more of a group of three cattle which had strayed on to the road and as a result the plaintiff was allegedly injured.
Before proceeding to further consider the claim and examine the evidence in relation to it, there is a preliminary issue which requires determination, namely whether it is the relevant statute law of Queensland or that of Western Australia which applies and governs the action that has been brought in this jurisdiction. Counsel for the plaintiff argues that the motor vehicle accident occurred in Queensland and so the law of that forum as enacted in the relevant legislation being the Motor Accident Insurance Act 1994 applies, as distinct from the relevant statute law of Western Australia being the Motor Vehicle (Third Party Insurance) Act 1943. The practical effect of this is that the limitation on damages which is applicable pursuant to the Western Australian legislation would not apply to this action. The relevant Queensland legislation does not limit in any way the amount of damages recoverable in an action pursuant to that legislation.
In support of this contention counsel for the plaintiff referred the Court to John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503. In that matter the plaintiff sued in the Supreme Court of the Australian Capital Territory for damages for personal injury suffered in New South Wales. The question arose whether the applicable law for the assessment of damages was the law of New South Wales, which limited the amount of damages that could be awarded for non‑economic loss in such an action, or the law of the ACT which imposed no such limitation.
In a lengthy and detailed judgment the majority of the members of the High Court held that the law governing all questions of substance in Australian torts involving an interstate element was that of the lex locus delicti. The whole of the Court held that the limitation on damages, not being directed to governing or regulating the mode or conduct of court proceedings, was a matter of substance rather than procedure, and therefore was governed by the lex locus delicti.
Counsel informed this Court that this authority is the most recent statement of the relevant law by the High Court on this specific topic. At page 515 Gleeson CJ noted that the applicant contended that the statute law of the law area in which the events in question occurred should be applied in preference to the common law. His Honour then went on to make an observation which has some relevance to these proceedings in that he noted that other and more difficult questions would arise where in the case of the States and Territories of Australia the statute law of two law areas differs and it is sought to apply one rather than the other as the governing law. That was not the issue before the High Court in Pfeiffer's case because they were considering the argument relevant to the common law of the ACT and the statute law as it applied in New South Wales. Unfortunately as the High Court were not required to answer the precise question before the Court in this action the answer is not readily apparent. Nonetheless counsel for the plaintiff argues, though it is not conceded by counsel for the defendant, that the statement of principle by the High Court still applies in the circumstances of this case. In the course of argument it was not put to this Court that the relevant Western Australian legislation makes provision for a situation where someone who is usually resident in Western Australia is involved in a motor vehicle accident in another jurisdiction nor was it suggested that the legislation purports to have extra territorial effect.
Counsel for the plaintiff submitted that when one considers the whole of the judgment of the High Court where reference is made to the common law it is a reference to the common law as varied from time to time by some statutory modification. Following that line of argument counsel suggested that in a sense one is here dealing with the common law of Queensland as one sues for negligence based on the common law and the Western Australian legislation does not effect the common law in terms of negligence, but rather it affects the entitlement to damages in certain and particular respects.
Reference was made to the judgment of Kirby J at page 564 where his Honour stated:
"In the present case, the foregoing meant the application of the common law of Australia as applicable in New South Wales, as modified in turn by any relevant statutory law of that State. The statutory modification applicable was that governing recovery of damages in such claims. This was not a procedural law which could be ignored by the court of the forum because it was bound only by its own procedural law. It was classified as a matter of substantive law. It was therefore to be applied by the court of the forum, that is, the Supreme Court. Once applied, it limited the recovery which the respondent might make in his proceedings in the Supreme Court. The limitation in question was the same whether the respondent brought those proceedings in a court of New South Wales, in the Australian Capital Territory or in any other court of Australia having jurisdiction in the case."
Having considered the reasoning in Pfeiffer's case and not being either referred to or aware of a more recent authority or authority to the contrary, ultimately I accept the submission on behalf of the plaintiff that this is a case where the State in which the motor vehicle accident occurred has substantive legislation intended to address and deal with specific situations whereby claims arise in relation to motor vehicle accidents which occur in that jurisdiction where negligence is alleged. For the purposes of this matter I take the view that the relevant legislation is that which applies in Queensland, the practical effect being that there is no limitation with respect to the amount of certain damages which may be recoverable by the plaintiff in this action.

The issues

It is alleged that the defendant was negligent in that he drove without due care and attention and too fast in the circumstances given that it was nighttime and therefore dark. Further, he was driving on a gravel road which was unfenced in an area where cattle were or might be present and that immediately prior to the collision he had just crossed over a cattle grid. It is alleged that the defendant failed to keep any or any proper lookout and therefore failed to notice the cattle before they strayed onto the road and further that he failed to brake or swerve to avoid the accident or to minimise the impact of any collision.
As a result it is alleged that the plaintiff suffered a cervical soft tissue injury or whiplash, neck injuries, thoraco lumbar soft tissue injuries, psychological injuries including post‑traumatic stress disorder, pain disorder, anxiety, headaches and depression. Despite ongoing treatment from a comparatively large number of doctors over time, the plaintiff claims that she has endured pain and suffering which continues and that she has been left with residual disabilities the result of which is a diminution in her enjoyment of life. The residual disabilities alleged are extensive, involving in addition to the previously nominated physical problems, complaints of back pain, left knee and foot pain with associated numbness and tingling in the arms and legs. In addition the plaintiff claims to suffer pain between her shoulder blades and sternal pain. The plaintiff's pain state is said to cause her both fatigue and insomnia in addition to frustration and anxiety, which in turn restrict her ability not only to enjoy life but carry out a large range of physical activities. The plaintiff was permitted to amend the statement of claim to further allege that she has suffered from and continues to suffer from fainting attacks.
The defendant denies any negligence on his part and further pleads that in any event the plaintiff voluntarily consented to the risk of sustaining the injuries alleged and therefore there was no breach of duty by the defendant to the plaintiff. Further and again in the alternative, the defendant says that the alleged injuries, residual disabilities and symptoms, none of which are admitted, result not from the collision pleaded but are a consequence of the plaintiff's previous medical history which includes inter alia a diagnosis of bipolar affective disorder in 1987, numerous surgical procedures and a pre‑existing psychiatric and psychological condition for which the plaintiff has had medical treatment and investigations from time to time including significant medications. The defendant was refused leave at the close of its case to amend the defence to allege contributory negligence on the part of the plaintiff.
At the time of the collision the plaintiff was in receipt of an invalid pension and therefore no past or future economic loss is claimed. The plaintiff claims for general damages as well as for past and future voluntary and professional care services and interest, special damages, the cost of past and future medical treatment which includes pharmaceutical requirements. Finally there is a claim for the plaintiff's travelling expenses relevant to attending a rehabilitation programme, although in the end there really was no particular evidence with respect to the amount of this claim given by the plaintiff or any other witness so far as I was able to ascertain.

The personal circumstances of the plaintiff and the circumstances of the accident

For reasons which were not readily apparent both the plaintiff and defendant changed their names after proceedings were issued, but prior to the matter coming to trial. The plaintiff was formerly known as Barbara Ann Adler and is now known as Faith Mary Godin. Her husband the defendant was formerly known as Christopher Adler and is now known as Jesse Thomas Godin. Although many of the medical reports refer to Barbara Adler for the sake of convenience wherever necessary in the course of these reasons both the plaintiff and defendant will be referred to by their current names.
The plaintiff was born in the United Kingdom on 11 May 1947 and came to Australia as a young child in 1950. She received her education here and left school at 16 years of age to take up office work. She first married in 1965 when she was 18 years of age and there are four adult children from that marriage which lasted approximately seven years. The plaintiff married for a second time in 1976 and that marriage lasted until approximately 1996, at which time it had deteriorated to a point where the plaintiff and her then husband separated and divorced.
Although the precise date was not clear it would appear that in about 1987 the plaintiff was diagnosed by her treating psychiatrist, Dr Toussaint, with bipolar affective disorder. As a consequence the plaintiff said she was placed on a drug regime which rendered her zombie like and unable to function in any meaningful way. The problems in this regard had a significant negative effect both on her health and her marriage and during this period the plaintiff relied almost totally for her care upon her mother and teenage children as her husband who was a truck driver was away a good deal. This situation and high dependency existed for a number of years at least up until approximately 1990 or 1991when the plaintiff said that her drug regime was altered and she was prescribed Lithium which not only controlled her condition but led to a significant improvement in the plaintiff's circumstances, whereby she said she became considerably more self‑reliant and able to function. Interestingly the plaintiff's evidence was to the effect that she now believes that Dr Toussaint misdiagnosed her and she does not consider that she has bipolar affective disorder but rather suffers from depression. There is a degree of debate among some of the medical practitioners whom the plaintiff has consulted, as to whether or not she does in fact have bipolar affective disorder but I will come to this issue at a later point in these reasons.
The plaintiff has had a lengthy and somewhat unfortunate history with respect to her health. Her evidence was that the drugs she was prescribed for the bipolar disorder not only affected her ability to function independently but also resulted in a very considerable weight gain. In 1992, the year in which the plaintiff commenced to receive an invalid pension, she underwent both gastric stapling and a mammoplasty which in combination with diet resulted in a significant weight loss. The plaintiff has suffered from migraine headaches since she was about 7 years of age. In about 1981 or 1982 she underwent a hysterectomy following a diagnosis of cervical cancer and in 1990 she had surgery on her coccyx. Following that in 1993 the plaintiff underwent an ovariotomy. In that same year she had an arthrodesis on her left big toe.
The plaintiff's evidence was that after the separation from her second husband in approximately 1996 and given that she was on appropriate medication, both her physical and mental health had improved greatly and she was functioning independently and for all intents and purposes was leading a happy and useful life. She said that she played and coached netball and also assisted to a degree in the care of her elderly parents. It was about this time that she met her third husband, the defendant, whom she married in 1997 and this also added to her sense of stability and well-being. He was on an invalid pension at the time and in 2001 he was granted a T.P.I. pension.
She and the defendant embarked on a trip around Australia to visit various relatives and friends not long after their marriage and at this time the plaintiff claimed that she was fit, strong and in good physical health, although as I understand it she was still taking Lithium.
It would appear that the plaintiff and the defendant then decided to sell their home and various belongings with a view to departing on a much longer trip around Australia in their specially adapted Toyota Landcruiser. They embarked upon this journey at around Christmas time in 1998. Prior to this, however, in about June 1998, as I understand the evidence, the plaintiff either admitted herself or was admitted to the Armadale Clinic under the care of a psychiatrist, Dr Abramowicz, because according to the plaintiff a few weeks earlier her home had been burgled and approximately $14,000 worth of goods were stolen. This event caused the plaintiff considerable concern and emotional distress to the point that she was hospitalised.
The plaintiff and defendant travelled first to Melbourne where apparently they intended to make some enquiries regarding difficulties they had encountered in pursuing an insurance claim relevant to the burglary upon their premises. The plaintiff then gave fairly detailed evidence as to progress of their trip through New South Wales before they travelled to Queensland. It appears that as a favour to some friends the plaintiff and her husband agreed to tow a caravan to Winton where it was to be left. They did this but it was a difficult undertaking because the tyres on the caravan were not in good condition and this necessitated a number of stops and repairs to them by the defendant during the course of the journey.
Eventually they arrived at Winton where they delivered the caravan. They then went on to Jundah. It was a hot day and the defendant in particular, according to the plaintiff, was tired as a result of the previous journey and difficulties he had had with the caravan. At Jundah they walked their two dogs, had something to eat and the defendant had a short sleep. They departed Jundah about 8.00 pm that evening, having decided to travel at night because it was cooler and their vehicle had no air conditioning.
It was their intention to eventually make their way to Yawah, a small opal mining centre where, according to the plaintiff, they had friends who had a lease on an opal tenement and they had offered the plaintiff and the defendant the opportunity to prospect for opals and keep any that they found. According to the plaintiff, the defendant was very excited at having the opportunity to prospect for opals.
The road along which they were travelling shortly prior to the collision was, according to the plaintiff, a dusty gravel road, although there was no suggestion that it was winding or narrow. The land on either side of the road was unfenced and the plaintiff agreed that she was also aware that there were cattle in the area and indeed it was her habit to keep a look out for animals including cattle that might stray onto the road. The defendant had driven over a cattle grid shortly prior to the collision.
The plaintiff's evidence was that the defendant was excited and was driving at between 80 and 90km/h, which was faster than his usual speed of 60 to 70km/h. In addition he was playing music on a compact disc and was singing along to the recording. On the defendant's side of the vehicle the plaintiff noticed three dark coloured cattle on the side of the road and she tried to get the defendant's attention in order to warn him of their presence and ensure that he had seen them. Her recollection was that she tapped him on the leg but for reasons she could not clearly explain he did not respond to this action and without braking or taking any evasive action whatsoever, although it was possible to swerve on the flat road, the vehicle came into collision with the cattle. The only other obstruction in the area was a large bush in a paddock on the defendant's side of the vehicle. According to the plaintiff it was pitch black at the time of the collision although she said that the Toyota Landcruiser had headlights and high beam spotlights which shone out at the sides of the vehicle as well as providing lighting in front of the vehicle. She estimated that one could see approximately 30 metres in front of the vehicle as a result.

The plaintiff's very firm evidence was that as a result of the collision she immediately became unconscious and she remained in this state for the next two days except from time to time when, as she put it, she "came around". She said that she was suffering hallucinations in the sense that she began seeing things on the side of the road. She described her condition as dazed and numb rather than being in any particular pain. The effect of this was, according to the plaintiff, that she had a poor recollection of events that occurred immediately thereafter after the collision.
She did recall attending Mt Isa Hospital where she was seen on 23 March 1999 in the afternoon. The evidence revealed, however, that after the collision the Toyota Landcruiser was still drivable, despite having sustained about $7,000 worth of damage and the defendant drove it from Jundah to Longreach, a distance of some 220km. There on 21 March 1999 about lunchtime the plaintiff was seen by a medical health professional or professionals.
From Longreach the plaintiff and her husband travelled a further 650km to Mt Isa where, as previously mentioned, the plaintiff was seen on 23 March at the Mt Isa Hospital. They then drove another 193km from Mt Isa to Camooweal where, according to the plaintiff, she was in physical pain and so they stayed there camping for approximately four to five days.
From there they proceeded another 500km to Tennant Creek where the plaintiff said that her pain was worsening and she was suffering back pain, pain in her left knee and numbness in her hands and legs. During this period of time the plaintiff was taking Panadeine Forte for her pain and her usual dose of Lithium. It appears that the stay in Tennant Creek was a brief one prior to the plaintiff and the defendant driving approximately 1,000km to Darwin where the plaintiff intended to visit one of her daughters and seek further medical attention. During this period the plaintiff said she was feeling very ill and nauseous and was still taking the abovementioned medication.
It is clear from the evidence that the plaintiff arrived in Darwin shortly prior to 1 April 1999 because a repair quote for the Toyota Landcruiser obtained in Darwin is dated 1 April 1999. It is unclear precisely what the plaintiff did after arriving in Darwin until 8 April 1999 when she was seen at Darwin Hospital and again on 20, 27 and 30 April in Darwin the plaintiff was seen by Dr Linco who apparently advised her to continue taking Lithium.
The plaintiff's evidence was that it was necessary for her to remain in Darwin for sometime in order to have the motor vehicle repaired. Once this was done the defendant then drove them approximately 4,000km from Darwin to Perth where on 6 May 1999, due to her condition, the plaintiff said she consulted Dr Sritharan who admitted her to hospital for two weeks in order that she could undergo extensive physiotherapy by way of treatment. The plaintiff claimed that despite this medical attention there was no change in the pain state of her neck, back or left shoulder and she was suffering associated headaches as well as being severely bruised from the contact with her seatbelt in the collision.
Dr Sritharan's report of 2 September 1999, Exhibit P1(6), was admitted by consent and indicates that as a result of the hospitalisation the plaintiff did report 50 per cent improvement in her back pain though none in her neck pain. A day after her discharge the plaintiff returned to Dr Sritharan requesting sleeping tablets and five days later she requested more substantial treatment for her alleged injuries. She was referred to Fremantle Hospital but was not admitted and was prescribed Valium and Voltaren.
In mid‑June 1999 having advised that her injury claim had been accepted the plaintiff requested and obtained a referral to a private physiotherapist. On 25 June she was seen as she required more analgesics and at that time requested an x‑ray of her left knee. A few days later she advised that the insurance company requested that she liase with her solicitors and obtain a referral to a pain specialist and that is how she came to be referred to Dr Anderson at Fremantle Hospital.
The plaintiff's recollection of her treatment thereafter was that she consulted many doctors in relation to her condition and complaints but none were particularly effective in assisting in their resolution. She said that at first her attendance at the Fremantle Hospital Pain Clinic was positive in that she undertook an exercise programme and attended lectures with respect to managing her condition. Initially a TENS machine provided to her was of some assistance in dealing with her pain state but then her condition worsened.
She recalled being referred to a psychiatrist, Dr Shannon, as she claimed she had developed a travel phobia in the sense that she was fearful of travelling in cars because she anticipated being involved in another collision. Her evidence was that she can only travel in a car now for between 5 and 15 minutes before she gets distressed and faints.
After returning to Perth and seeing Dr Sritharan it seems that the plaintiff apart from consulting other medical practitioners, was under the care of a general practitioner, Dr Duck. There is little doubt it was under his supervision that the plaintiff was prescribed a very large amount of strong medication including Toradol, Morphine injections and tablets for her claimed pain state. She was on this drug regime for approximately 18 months and claimed that her husband, the defendant, was administering three morphine injections to her per day which, although resulting in a reduction of her pain state, left her in a stupor and unable to function.
She recalled consulting a psychiatrist, Dr Law, as well as a Dr Iyyalol, her current treating psychiatrist who was largely responsible for organising the plaintiff's admission to hospital in mid‑2002 in order for her to undergo detoxification. There is little doubt that the drug regime the plaintiff was subject to was not only excessive but highly inappropriate for her condition. There was very scant evidence regarding the details of the plaintiff's detoxification, which fortunately seems to have been most successful and which, as I understand the evidence, occurred over about a two week period instead of the anticipated six week period. It is not clear how and in what circumstances the plaintiff was discharged from hospital.
The plaintiff has also consulted another general practitioner, Dr Krishnan, who in turn referred her to a pain specialist and rheumatologist, Dr Baskaranathan.
After her discharge from the detoxification programme in about August of 2002, the plaintiff said she was in a very weak state and suffered from insomnia for approximately one month. Her evidence was that currently, although she is more alert and less confused, nonetheless she is in more pain and her symptoms are growing worse. She claims that she suffers pain between her shoulder blades, in her neck and spine area. This pain is not confined to any particular region in the neck and spine but moves. In addition she suffers numbness and tingling in her hands, feet and ankles and is unable to lift her arms. She says her concentration is poor and that her sight and hearing have been adversely affected. It was her evidence that after the motor vehicle accident she also had to undergo hormonal treatment because for some reason, which was not fully explained by her or any medical witness, her hormones, as the plaintiff described it went "haywire" as a consequence of the collision.
In cross‑examination the plaintiff claimed that she found it hard to pick up words and for this reason required an audiogram. My assessment of the plaintiff was that she had no difficulty whatsoever in understanding what was said to her and further she had absolutely no difficulty it would appear in hearing what was said to her. If the plaintiff asked for something to be repeated it was my impression that it was for the purposes of clarification rather than the fact that she did not hear it or misheard it. I noted that the plaintiff put on a pair of glasses from time to time but there did not seem to be anything in her manner or presentation which would suggest that she has significant difficulties with her sight. At no time during the giving of her evidence or whilst I observed her in Court did the plaintiff exhibit noticeable evidence of tremors or inability to concentrate.
The plaintiff was insistent in her evidence that she can do very little, if anything, in order to attend to her needs. She claimed this has been the case since the motor vehicle accident and as a result for a very long time the defendant, with the assistance of the plaintiff's mother, has had to care for the plaintiff and her needs in almost every respect including showering, toileting, dressing, administering of medication and/or general household chores.
In approximately November 2001, following an assessment, the plaintiff obtained domestic and respite assistance from Perth Home Care Services at a subsidised rate. The plaintiff claims that she cannot be left alone at any time due to her fainting spells and so when her husband attends Kung Fu on Tuesday, Thursday and Saturday of each week, if a carer is not present then the plaintiff's mother must come and effectively baby-sit her.
Whilst the plaintiff claims that she is almost totally physically dependent on others for her needs she says she can put on her shoes and socks with a special implement and she is able to comb her hair with a specially adapted comb. She claims she cannot put on make‑up because she suffers badly from shaky hands and this condition also prevents her from undertaking any cooking. She spends her day engaging in craftwork or, according to her evidence, watching television and doing crossword puzzles. She rarely travels in a motor vehicle except for the purposes of attending medical appointments or occasionally going to the shops.
The plaintiff's current medication is 50mg of Thyroxine per day which, as I understand it, is a medication she has been taking for many years and it is in no way a consequence of her involvement in the motor vehicle accident. She says she also takes three Efexor tablets per day, for post‑traumatic stress disorder and 100mg of Largactil at night in order to assist her to sleep as she suffers from insomnia.
The evidence was not precise as to when the plaintiff's alleged fainting spells or episodes began but suggests it was following upon the motor vehicle accident. Initially she said they were occasional but her evidence was that approximately 12 months ago they increased to the point where she can now suffer up to six of these fainting spells per day.
As a result of being informed that the plaintiff suffered from this particular condition, arrangements were made for the plaintiff's mother to be called to give brief evidence prior to the plaintiff giving evidence. This was in order to permit the plaintiff's mother, Mrs Briggs, to sit beside the plaintiff in the witness box as she gave her evidence in the event that the plaintiff should suffer a fainting spell. This was done so that Mrs Briggs could attend to the plaintiff if necessary, which I understand she is used to doing in such situations.
Twice during the course of giving her evidence on the first day of the trial the plaintiff suffered a fainting spell. I observed her carefully at the time of one of each of these episodes. On each occasion as the plaintiff sat in the witness box her mother was sitting to the plaintiff's right and on each occasion the plaintiff fell or slumped quite directly towards her mother. On each occasion so far as I was able to ascertain the plaintiff was "out to it" for an extremely very brief period and was revived very quickly whereupon she exhibited absolutely no confusion or disorientation and continued to calmly answer the question that was then posed to her.
On the second day of the trial I noted the plaintiff and her mother sitting in the back of the Court when the plaintiff had yet another fainting spell. On this occasion, however, the plaintiff, somewhat curiously one might think, sat in a chair in the front row of the public gallery at the very end of the row so that her right side was completely exposed in the sense that there was an empty space next to her. On this occasion the plaintiff's mother sat next to her on the plaintiff's lefthand side and it was on the occasion of this third fainting spell that the plaintiff fell directly towards her mother who was on her lefthand side and therefore providing a buffer in that area. Once more, although there was some confusion in the back of the Court, it appeared that the plaintiff came to very quickly and with no apparent ill effects.
When the plaintiff was referred to Exhibit P3A, being a health insurance commission print‑out relevant to medical costs, she said that all claimed treatment in the document since the time of the motor vehicle accident was with respect to symptoms as a result of injuries sustained in the accident. Not all of those doctors' reports or claimed rendered services were the subject of medical reports before the Court in this trial. The fees raised in that document are accounts that have been claimed or put on Medicare. Exhibit D6 indicates that the amount invoiced for the plaintiff's medical treatment is $8,422.16 and the amount paid on a without prejudice basis by the insurer is $8,529.96.
The plaintiff's 81 year old widowed mother gave brief evidence relevant to the plaintiff's history and current circumstances. This evidence was general and without being critical of the witness it was in parts somewhat vague. Mrs Briggs claimed that the plaintiff's health was good in the period up to her leaving with the defendant on their trip around Christmas 1998. She recalled that the plaintiff had suffered from depression and, what she termed, "changeability" in the past but this improved she said when the plaintiff met and married the defendant.
After the plaintiff returned to Western Australia following the motor vehicle accident she and the defendant lived with Mrs Briggs for a number of months and Mrs Briggs claimed that the full responsibility of caring for the plaintiff at that time fell to her. When the plaintiff and defendant later found their own accommodation the plaintiff's husband took on the bulk of the responsibility of caring for the plaintiff but Mrs Briggs still attends their home frequently and assists where she can by doing chores such as washing up. Her evidence was that the plaintiff suffers frequent episodes of fainting spells (up to two to three times per day) and for that reason cannot be left alone.
Mrs Briggs described her daughter, however, as a strong person despite her health difficulties and psychiatric problems in the late 1980's and early 1990's. It was during this period that Mrs Briggs said she did a very great deal to assist in the physical care of the plaintiff. Mrs Briggs was not particularly specific or detailed as to the nature of help she renders her daughter or how regularly this is done or for what duration and as I understood her evidence she perceives her role of being one whereby she, in her words, "helps to keep things going" and assists to relieve the defendant of some burden of caring for the plaintiff.

Evidence as to professional care services provided to the plaintiff

In respect of this aspect of the claim Ms Nye, the manager of Client Services for Perth Homecare Services, gave evidence that the organisation assists frail aged or disabled younger persons who generally live within their own homes in the community. Care in the form of practical assistance such as domestic tasks, associated cooking and cleaning is provided as is respite assistance for carers. This service commenced to be provided to the plaintiff after assessment on 9 November 2001. Such an assessment considers the individual needs of the client and their families including health, medical and social issues, as a result of which a management and assistance plan for the individual household is prepared. The cost of the service at the unsubsidised rate is $25 an hour, but due to the plaintiff's financial circumstances, given that she is an invalid pensioner and the defendant is also in receipt of a pension, the charge is $4 per hour with the government, pursuant to a particular agreement subsidising the outstanding amount. Although Ms Nye was a little unsure and reluctant to commit herself exactly in her evidence, it was her understanding that the scheme operates such that if a client becomes compensable the government requires reimbursement for any subsidies they have provided to the client in the past. The records of the service indicate that the plaintiff receives the services of a liaison support worker, Ms Brown, who provides respite care and practical assistance on Tuesdays between 9.00 am and 4.00 pm and again on Fridays between 11.15 am and 3.15 pm. On Wednesdays another carer attends between 9.30 am and 2.30 pm.
Ms Brown's evidence was that her hours of attendance at the plaintiff's residence increased in about mid‑2002 and that she has observed the plaintiff having fainting spells. These in her opinion have increased in number since the plaintiff underwent detoxification. On occasions as a result of the fainting spells she has seen the plaintiff fall. Her observation was that the defendant does most of the housework, although obviously Ms Brown does assist if necessary. She however, sees her main role as being that of providing respite care. Her observation was that the plaintiff frequently complains of pain and suffers from insomnia.
Prior to these services being provided to the plaintiff it was necessary as has been noted for a full assessment to be carried out. Part of this assessment involved Mr Darryl Kelly, a nurse consultant who specialises in dealing with persons suffering disabilities particularly spinal injuries, visiting the plaintiff's household. The aim of the exercise is to provide such persons with both personal and practical care within the community after the assessment is carried out. It is to be noted that I accept the submission that Mr Kelly is not qualified, nor did he purport in his evidence to make a diagnosis in relation to the plaintiff's condition but rather he simply accepted what the plaintiff told him regarding her condition and requirements. He also took into account further information contained in certain medical reports with which he was provided.
With respect to his assessment Mr Kelly interviewed the plaintiff, the defendant and the plaintiff's mother and provided two reports of 21 October 2001 and 29 October 2002, Exhibits P10A and P10B. The contents of the reports are generally similar and outline the details of the plaintiff's social and family circumstances as well as her medical condition including her complaints of chronic pain. The contents of the reports are very detailed and it is not necessary to canvas them in the course of these reasons. Essentially it was Mr Kelly's conclusion on all of the information provided to him that the plaintiff would require in the vicinity of 30.5 hours per week outside care.
One aspect of Mr Kelly's evidence which in my view is of considerable interest, is that overall he spent about 12 hours in the course of four visits with the plaintiff and her family at her home for the purpose of preparing his reports. In relation to the information he was given relevant to the preparation of his first report in October 2001, no mention whatsoever was made to Mr Kelly by the plaintiff or her family members regarding her alleged fainting spells. This was only raised as an issue at the time of the visit or visits with respect to the preparation of the second report about one year later and Mr Kelly said he was very surprised that the issue, which one would think in the context of his involvement was one of significance, was not raised with him at the time of his assessment for the preparation of his first report. I find it to be extremely surprising also that it was not mentioned and do not consider the omission to be a mere oversight.

The medical evidence

The plaintiff attended at Jundah Clinic shortly after the accident and was instructed to take pain relief medication, although there was not a great deal of evidence as to further observations that were made at the time. The following day she attended Longreach Hospital complaining of sore back, dizziness and mild hallucinations following the accident. It would seem that the defendant expressed some concerns about the plaintiff's dizziness and her seeing things on the sides of the road at the time. The plaintiff was complaining of pain and nausea with some limited movement in the neck. Later that same day the plaintiff was again reviewed and noted to have a mildly tender lumbar spine with a tender left trapezius. However, she presented as being fully alert and oriented with no thought disorder. As a result she was prescribed Panadeine Forte only. Two days later the plaintiff was seen at Mt Isa Base Hospital complaining of confusion following the accident, but that was noted to be settling. Visual hallucinations were queried but it was noted that they had now settled. The plaintiff, however, still complained of neck, lower back, left knee and left shoulder pain with attendant nausea. There was some bruising on her left knee which was tender, although she appeared to be walking and moving well. It was noted that there was a probable medial meniscus injury to the knee so Brufen was prescribed and the need for possible physiotherapy also noted.
Just over two weeks later the plaintiff attended and was examined by Dr Moore in Darwin where she complained of lower neck, shoulder and back pain. There does not seem to have been anything unusual or of concern noted in her presentation at that time and Panadol and Indocid were prescribed. She then attended Dr Linco complaining of headaches, base of neck pain and lower back pain for which she was prescribed physiotherapy, Panadeine Forte and Valium. When she consulted Dr Linco on 20 April 1999 the plaintiff apparently made no complaints of loss of consciousness or hallucinations, which is very difficult to understand or explain given her attendance was one month after the accident. Her attendance upon Dr Sritharan in Perth on 6 May has been referred to previously.
Dr Sritharan referred the plaintiff to the pain specialist, Dr Anderson, who first saw her on 13 July 1999 when she was in a somewhat distressed state. She was referred to the PUMP programme which she advised was assisting her to cope and at that point the plaintiff seemed to be making some progress. She then complained, however, that her condition had worsened and so Dr Anderson felt a trial of a TENS machine was warranted as was continuing counselling for her driving phobia. She continued to complain of pain thereafter as well as tremors.
Dr Anderson's evidence, though brief, was to the effect that he saw the plaintiff on about seven occasions over 20 months until early 2001 during which period there was really no change in her condition. He felt there was a large psychological component in her presentation and held little hope that she was treatable. Although the plaintiff complained to him of neck and almost total spine pain, on examination Dr Anderson could find nothing of any physical significance which would explain the plaintiff's complaints and presentation, though he observed that in his area of practice this was not unusual.
Dr Krishnan has been the plaintiff's treating general practitioner since 4 September 2001 after Dr Duck ceased his involvement in the plaintiff's treatment. Dr Krishnan gave evidence that he relied on the plaintiff's objective history to him in his diagnosis of her condition and in the formulation of his treatment plan. It would seem that he simply accepted Dr Duck's and Dr Law's diagnosis of post‑traumatic stress disorder because Dr Krishnan gave no real or detailed evidence as to what independently he concluded about this condition or why he concurred with the diagnosis. He also concluded the plaintiff was suffering from chronic pain syndrome and phobic anxiety for driving, all of which he said were related to her motor vehicle accident.
Dr Krishnan understandably was concerned at the extent and level of the plaintiff's drug usage, particularly in relation to narcotic injections which he felt should cease and that is why he referred her to a number of other medical practitioners including Dr Baskaranathan, Dr Morton and Dr Iyyalol.
In his report of 21 November 2002 Dr Krishnan commented on the plaintiff's successful detoxification but noted she continued to complain of chronic pain. He said his treatment of the plaintiff for her post‑traumatic stress disorder consisted of counselling in his rooms in combination with prescribing medication for her pain. Despite the comment in his report of 26 June 2002 that the prognosis for the plaintiff's recovery was poor and she would need care and anti‑depressant medication into the future, in cross‑examination he expressed the view that he believed that the plaintiff would regain her independence in about three years time. I did not understand the doctor to give any explanation for why he reached this view or on what basis it was founded and it certainly seemed to be somewhat inconsistent with a number of the observations and remarks in his reports. His view was that she would continue to require Lithium Carbonate, Thyroxine and Paracetemol by way of medication into the future. He supported Mr Kelly's assessment as to the nature and extent of care that the plaintiff required, noting it would be desirable however, that her sense of confidence and hence independence be increased.
Dr Law, a consultant psychiatrist, saw the plaintiff on referral from her then general practitioner, Dr Duck, and first reviewed her on 29 May 2000. At that time the plaintiff complained of chronic pain all over her body accompanied by a phobia of being in a car. She complained of physical symptoms such as vomiting and constipation. She provided Dr Law with a history relevant to her involvement in the motor vehicle accident and its aftermath, stressing the worsening of her physical symptoms and her inability to physically function or look after herself. She advised him relevant to her travel phobia that she could not drive far, only as far as the local shops and it appears that one of the reasons why she ceased attending Dr Law was due to the alleged difficulties with travel and her associated phobia. The plaintiff informed Dr Law that she had always been strong and able to cope with things, but clearly this is not entirely correct when one considers her previous history and the fairly substantial period of time in the late 1980's and early 1990's when she certainly was not able to cope with things, even on her own evidence.
Dr Law gave evidence that the plaintiff provided him with a full report of her past history and her extensive use of medications for a variety of conditions. He was aware of Dr Toussaint's previous diagnosis of the plaintiff and although he noted that she presented as stressed and distressed with episodes of weeping, nonetheless she was of normal intelligence, a good historian who spoke logically and relevantly with a good sense of reality with no reports of any psychotic symptoms or symptoms of clinical depression. Dr Law diagnosed the plaintiff with post‑traumatic stress disorder, although his report of 28 September 2000 gives no basis for this and he did not elaborate upon it in his sworn testimony, so it is not possible to know exactly why he reached this diagnosis and upon what criteria, if any, he based it. He also diagnosed the plaintiff with pain disorder and anxiety panic disorder, stating that all of the conditions he diagnosed were consequent upon and related to her involvement in the motor vehicle accident, but again there was not a great deal of detail provided as to the basis of these opinions.
Dr Law gave evidence that he was satisfied the plaintiff had a pre‑existing manic depression but once more did not elaborate upon this in the sense of explaining why he came to that conclusion or upon what criteria he based his conclusion in either his written reports or his oral evidence. This condition he determined could be treated with Epilum in combination with her pain and arthritis medications. He also felt that some exercise in conjunction with relaxation techniques and counselling would be of assistance to her, although he considered both the short and long term prognosis for the plaintiff's recovery to be guarded.
Over four consultations of a total of four hours duration Dr Law did not note any fainting spells, although the plaintiff complained to him that she fainted a lot. He considered her to be a vulnerable personality who reacted to stress in an exaggerated manner, although he did not diagnose her as having abnormal illness behaviour.
Dr Iyyalol is the plaintiff's treating psychiatrist. He followed Dr Abramowicz at the Armadale Clinic and his first report of 3 July 2001 was provided on the basis of the clinical notes, rather than any consultation he had had with the plaintiff up to that point in time. He noted she had previously been diagnosed with bipolar affective disorder and had attended Dr Abramowicz in June 1998 with dysphonic mood and concerns about her well‑being against a background of multiple psycho‑social stresses. Between June 1998 and December 1999 she continued to attend the clinic but was fairly stable given that she was on Lithium medication.
The plaintiff was admitted to hospital for detoxification on 8 August 2002 and discharged on 16 August. On interview she was noted as speaking normally and presenting as reactive and mood congruent, with no evidence of formal thought disorder and no complaints of depressive cognitions, delusional perceptions or perceptual disturbances, therefore no psychotic symptoms were evident. On physical examination she presented as having limited movement and flexion which she complained was as a result of pain, although she was found to have normal strength in her hands and legs with equal reflexes in her arms. After detoxification her Oxy‑contin medication ceased completely. It would appear that Dr Iyyalol was instrumental in combination with Dr Krishnan in encouraging the plaintiff to undergo detoxification, although Dr Iyyalol noted that she was well motivated to do so.
Dr Iyyalol began his formal consultations with the plaintiff on 25 July 2002, some four months prior to trial and had seen her on a number of occasions in that time frame. Interestingly, unlike Dr Toussaint or Dr Abramowicz, he did not consider that the plaintiff suffered from bipolar affective disorder but rather in his opinion she had a recurrent depressive disorder, presumably this diagnosis was based on the history she gave him. As Lithium can lead to hypothyroidism he prescribed Efexor instead for the plaintiff. During his consultations with the plaintiff Dr Iyyalol observed no fainting spells but considered from her history that the plaintiff suffered a somato form pain disorder, in other words, her pain state was disproportionate to the diagnosed soft tissue physical injuries she sustained as a result of the accident. He considered that she therefore translated her psychological stress into physical symptoms and this was particularly so because he assessed her as a vulnerable individual and these personalities he said are more susceptible to this type of behaviour.
Dr Iyyalol in my view did not clearly explain why he disagreed with the diagnosis of bipolar disorder except that he could find no manic or hypermanic episodes in her past, which evidence I consider did not advance the matter a great deal. He diagnosed the plaintiff in addition as suffering from travel phobia and noted that some features of post‑traumatic stress disorder were present, though it was not full blown. Again he gave little information or explanation in his evidence or his reports as to why he reached this view. The travel phobia he regarded as having been instigated by the motor vehicle accident and further he considered that the plaintiff suffered from conversion disorder which manifested itself in the fainting episodes. As I understood his evidence conversion disorder is in many respects similar to somato form disorder, although he could not be certain that the conversion disorder had in fact been triggered by the accident.
As with a number of other medical practitioners, Dr Iyyalol agreed that if a person was unconscious, or claimed to be unconscious, following a motor vehicle accident it was not usual or indeed advisable to prescribe Panadeine Forte medication because it can complicate pupil response and make it difficult, or more difficult, to detect any underlying brain or head injury. He prescribed Efexor for the plaintiff as an anti‑depressant and also to deal with her anxiety and pain state. He considered that this medication would be a long term requirement. He was aware of Dr McCarthy's opinion and diagnosis of the plaintiff's condition, with which he did not fully agree as Dr Iyyalol considered the plaintiff to be genuine in her presentation and complaints.
On the other hand, according to Dr Iyyalol's minute of evidence which was before the Court, whilst he considered that the plaintiff's current health problems were related to her involvement in the motor vehicle accident he did not believe that she needed assistance with personal hygiene or toileting, although he conceded she required domestic assistance with a degree of supervision. He believed that 15 hours per week assistance by Perth Homecare Services was a more appropriate and reasonable level of help than that of 31.5 hours per week as assessed by Mr Kelly. As from about May 2003 he anticipated he would need to consult with the plaintiff approximately four times per year.
Dr Baskaranathan, a consultant physician and rheumatologist, to whom the plaintiff was referred relevant to her chronic pain complaints, reviewed her on 11 February 2002 and noted that she presented with an exaggeration of her symptoms, which he considered to be a reflection of the fact that she was a neurotic and vulnerable personality. The plaintiff provided him with two A4 size sheets of paper with respect to her drug usage and regime which he noted to be fairly extensive. Due to the plaintiff's history and presentation Dr Baskaranathan referred her to Dr Morton, a psychiatrist, because he felt to an extent that aspect of her problems and presentation was out of his field of expertise.
Dr Baskaranathan was one of the few medical witnesses who made it clear that he conducted a physical examination of the plaintiff and he noted that she not only exaggerated her symptoms but was hyper‑reactive to stimuli. He was aware of a diagnosis of soft tissue injury, cervical and thoracicolumbar spine problems with post‑traumatic stress disorder as well as anxiety and panic disorders. His opinion, which he expressed in my view, clearly, concisely and in an unbiased fashion, was that the plaintiff presented to him in a manner that caused him to suspect that she was answering his questions so as to best support her case from a medico legal perspective. It should be noted in this context that Dr Baskaranathan was in fact called on behalf of the plaintiff and not the defendant. As with all of the other doctors who reviewed and treated the plaintiff, over his consultations which totalled about three hours he observed no evidence of fainting spells. He noted no allodynia or hyperalgesia and so concluded that a chronic pain disorder probably existed. He queried whether if the day after the accident in the afternoon the plaintiff was noted to be fully alert and oriented with no thought disorder, she had really lost consciousness as she claimed. An alternative explanation for her complaints of dizziness and hallucinations within one or two days of the motor vehicle accident could have been in his opinion due to the affects of medication containing Codeine or to stress of some sort. Certainly in a report of 23 April 2002 to the psychiatrist Dr Morton, Dr Baskaranathan noted that the plaintiff appeared to have normal cognitive functions and a good reality sense with the ability to concentrate and comprehend normally.
Dr Baskaranathan's prognosis in his final report, however, was somewhat guarded on the basis of the protracted history of the matter and his concerns that there were psychiatric or psychological issues that needed to be investigated by others.
Dr McCarthy, a consultant psychiatrist and qualified physician, reviewed the plaintiff on 1 November 2002 at the request of the defendant's insurer. He produced a report, Exhibit D8, dated 9 November 2002. Dr McCarthy in my assessment gave extremely clear, concise and informative evidence regarding a number of relevant matters. There was some initial confusion in his meeting with the plaintiff as he was unaware that she had changed her name and as far as I could ascertain he could not obtain a particularly helpful answer from her as to why she had done so. She stated to him that she had followed her husband's lead in this regard the reason being "on a need to know basis only". Dr McCarthy took a history of the fainting episodes or spells which the plaintiff said occurred four times daily, although she did not have one in his presence. He had difficulty in obtaining a clear psychiatric history from the plaintiff. I do not accept that the only reason for this was because the plaintiff was uncomfortable in his presence and viewed him as an individual who was not going to be of assistance to her or her claim. He noted the plaintiff's rejection of the diagnosis of bipolar affective disorder but on Dr McCarthy's assessment and in his extensive experience he considered that she almost certainly did suffer from that condition. She expressed the view to Dr McCarthy that in fact Dr Toussaint had misdiagnosed bipolar affective disorder and frequently hospitalised the plaintiff for financial gain. As against this she categorised Dr Toussaint as being a nice woman who never charged more than the scheduled fee. Mrs Briggs volunteered to Dr McCarthy that in 1987 the plaintiff was in a terrible state being housebound and unable to care for herself at all.
As to the history of the motor vehicle accident the plaintiff informed Dr McCarthy that after the collision she "went out to it" and recalled nothing for the next two days until she reached Mt Isa Hospital. During this period she claimed she was drifting in and out of consciousness and was given Panadeine Forte medication for pain. She then proceeded to give Dr McCarthy something of a potted history of her treatment since that time, covering her medical complaints as well as the various diagnoses she had been given regarding her condition. Somewhat curiously she informed Dr McCarthy she could not remember what she had been doing for the last two years, though she had seen many doctors. This was in distinct contrast with her presentation in Court where the plaintiff in my view did not appear to have a great deal of difficulty in both remembering pertinent matters since the time of her accident and speaking of them in some detail. Despite her complaints of pain, Dr McCarthy noted the plaintiff sat throughout the interview without apparent discomfort or abnormal movements. He left the interview for a short time and on his return was informed by Mrs Briggs that the plaintiff had fainted. He noted no physical evidence of psychomotor retardation or aggravation, nor any evidence of injury, postital confusion or indeed any other abnormality at that time which one might expect to observe in the circumstances alleged.
Dr McCarthy as has been noted found it very difficult to obtain a clear history from the plaintiff and at times his impression was that the history was presented in a dramatic, embellished and somewhat grandiose and theatrical fashion, though there was no evidence of abnormal perceptions, for example, hallucinations.

In this witness' view the plaintiff was not and has never suffered from post‑traumatic stress disorder, despite the diagnosis by Dr Law to this effect. Dr McCarthy explained that such a condition requires a genuinely stressful event, which he conceded might be constituted by the motor vehicle accident in which the plaintiff was involved, but this must be closely followed within days or weeks by a number of things including re‑experiencing of symptoms in the form of, for example, nightmares or intrusive memories and the plaintiff certainly does not complain of this. There must also be events of avoidance phenomena and anxiety or anxious arousal which could be manifested in a fear of travelling in a car. A stressful life event, however, of itself cannot lead to a diagnosis of post‑traumatic stress disorder and there is an issue as to just how stressful the event needs to be.
It was clear from Dr McCarthy's evidence and I accept that in his practice he sees many patients who suffer post‑traumatic stress disorder and that the basis for comparison was another reason why he excluded the plaintiff as suffering from the disorder. He also took issue with Dr Iyyalol's explanation of conversion disorder in that although it was described by Dr Iyyalol relatively correctly, Dr McCarthy explained the condition is dimensional rather than categorical. Persons with the disorder present on a scale from a point where there is a conscious embellishing of symptoms for some reason involving a form of gain to the patient to a point where a patient is not conscious of their presenting behaviour. The issue therefore involves a question of consciousness or awareness on the part of the patient. In Dr McCarthy's view the plaintiff does not have a conversion disorder and apart from bipolar affective disorder the plaintiff can be categorised as an abnormal neurotic personality with hypochondriacal, histrionic and probably narcissistic traits. None of these were in his opinion a legacy of, or associated with, her involvement in the motor vehicle accident, which in Dr McCarthy's opinion had become a convenient and perhaps potentially lucrative and partially contrived focus for the presentation of neurotic symptoms and claimed dependency needs on the part of the plaintiff. For this reason he regarded the plaintiff's prognosis for recovery as poor and treatment unlikely to be effective.
In his view the plaintiff's condition as a chronic invalid has fluctuated since the mid‑1980's, but more recently her fainting spells and complaints of chronic pain can in no way be explained by a sequelae of any physical injuries she received in the motor vehicle accident. He took issue with Dr Iyyalol's diagnosis of somato form disorder because Dr McCarthy's assessment was that the plaintiff has a significant degree of awareness or consciousness regarding aspects of her psychiatric state and behaviour. Dr McCarthy did agree with a number of other doctors, including psychiatrists who have reviewed her, that the plaintiff is or has a vulnerable personality and things such as her car phobic in his view simply reflects the plaintiff's underlying personality difficulties.
Dr McCarthy's evidence was that the plaintiff's report of an increase in her libido is common in persons suffering from bipolar affective disorder but certainly not common or expected in persons suffering post‑traumatic stress syndrome, and this is yet another reason why he took issue with Dr Iyyalol's diagnosis in this regard. As Dr McCarthy correctly pointed out between 1992 and 1995 the plaintiff was apparently living in her home whilst her husband was frequently away and there is little evidence as to how functional the plaintiff was during that period, given that it appears she still was relatively reliant on support from her mother. Certainly by 1998 the plaintiff's level of functioning appeared to have improved but again there is no precise or detailed information as to her psychiatric state at that point in time.
The plaintiff was also reviewed on 15 June 2001 by another consultant psychiatrist, Dr Finlay‑Jones, at the request of the defendant's insurer. His report was tendered into evidence by consent. He noted that the plaintiff travelled to and from the interview with her mother in an ambulance, which he regarded in the circumstances as a somewhat unusual mode of transport. He obtained a history from the plaintiff which did not include reference to surgery on her coccyx, ovary or the gastric stapling and this oversight caused the doctor to query the reliability of the plaintiff as an historian. I consider his concern to be both reasonable and understandable.
Dr Finlay‑Jones was unable to comment in his report on the significance of the alleged hallucinations which the plaintiff claimed followed the accident, or her claim that she drifted in and out of consciousness. I regard his observation that the plaintiff was probably describing being shocked and in pain as somewhat speculative because she complained of these symptoms in her evidence in a clear and distinct manner in the sense that she made it plain in my opinion that her feelings of shock and pain were quite different from her alleged hallucinations and periods of unconsciousness.
The plaintiff described a fear of driving and being in a car to Dr Finlay‑Jones but could not describe any worsening of her pre‑existing psychiatric disorder and particularly she did not report any symptoms suggestive of post‑traumatic stress disorder arising after the accident. On review and examination Dr Finlay‑Jones concluded that there was no evidence of depression. He made the point that although Dr Law diagnosed post‑traumatic stress disorder, no symptoms of nightmares or flashbacks were reported or noted by Dr Law and this criticism by Dr Finlay‑Jones accords with the view of Dr McCarthy.
In Dr Finlay‑Jones' opinion the plaintiff had a travel phobia caused by the accident and bipolar affective disorder which pre‑existed the accident though it may have been somewhat exacerbated by it. However, the disorder had remained under control for some time and although after the accident there had been some changes in her psychiatric medications, they had little effect and she certainly had not deteriorated to the point of requiring hospitalisation. In his view her chronic psychiatric condition was likely to be a relapsing disorder in any event, independent of the motor vehicle accident. The travel phobia, on the other hand, had a good prognosis with treatment such as systematic desensitisation and if in fact as the plaintiff's mother claimed, the plaintiff did some times drive or go in a vehicle, the travel phobia may not be as severe as suggested.
The orthopaedic surgeon, Mr Batalin, attempted to assess the plaintiff on 27 March 2000 but was somewhat hampered in the exercise as he could not obtain a precise medical history or details of her management and she did not bring any x‑rays to the review. On that occasion the defendant accompanied the plaintiff to the interview and it was the defendant who gave much of the history to Mr Batalin. Mr Batalin had problems obtaining a description from the plaintiff of her symptoms, their frequency or distribution in her neck area. She informed Mr Batalin at that point in time that she drove only for very short periods, although she admitted going shopping. She denied being able to carry out domestic chores.
On examination the plaintiff presented as anxious and apparently depressed, although Mr Batalin stressed that this diagnosis was outside his area of expertise. She did, however, demonstrate excessive response to standard stimuli and inconsistent reactions to restriction in her movements. They were, however, much less restricted on indirect methods of assessment than on direct method. Subsequent views of both x‑rays and a CAT scan did not reveal anything of significance or any abnormalities that might explain the plaintiff's limited movements and complaints of pain. From a physical perspective therefore Mr Batalin could see no impediment to the plaintiff carrying out most domestic chores avoiding repetitive bending or lifting weights greater than 15kg, due to some degenerative changes consistent with age in her lower back. He believed she had only a 10 per cent disability in her spine as a whole which did not require any form of invasive treatment but which in his view could be controlled by a regime of sensible back care and occasional analgesic medication.
Dr Silbert, a neurologist, also reviewed the plaintiff on behalf of the defendant on 12 June 2002. He was in possession of a considerable amount of documentation including medical reports, for the purposes of the preparation of his report and the giving of his evidence. Like Dr McCarthy, when he enquired of the plaintiff as to the reason for her name change he was informed that it was on a "need to know basis". Like both Dr McCarthy and Mr Batalin, Dr Silbert found it difficult to obtain a clinical history from the plaintiff. On this occasion the plaintiff's husband was present but unlike the review conducted by Mr Batalin the plaintiff's husband indicated that he was unable to assist in providing information as the plaintiff was suing him.
Apparently Dr Silbert did have access to some hospital notes of 20 March 1999 where the nurse noted "no obvious signs of trauma to the plaintiff's head with an apparent full range of movement except for probably muscular in origin from the seatbelt". The plaintiff reiterated to him her complaints of neck and shoulder discomfort and her inability to raise her arms. She complained of leg and knee pain as well as numbness in the hands and feet with nausea and poor sleeping patterns. It is somewhat curious that she advised this witness on 12 June 2002 that she could not watch TV as she did not understand it and yet her evidence to the Court in November was that one of the ways in which she passes her time at home is by watching television. She made no complaint to the Court that she was unable to comprehend television programmes in particular or comprehend matters in general. There was no evidence that if such a change had occurred it was in any way related to the plaintiff undergoing detoxification.
She stressed her total dependence on others for her physical and domestic care and told the doctor that her hands were too painful to peel potatoes and that she suffered from tremor of the hands. I note another way in which the plaintiff passes her time according to her evidence before the Court is by doing craftwork and one would assume that this activity would involve the steady use of one's hands to carry out relatively fine work. This evidence would appear to be somewhat inconsistent with her claim to Dr Silbert of painful and shaking hands.
On examination and review Dr Silbert could find no neurological or organic diagnosis which might account for the plaintiff's complaints of widespread pain and physical symptomatology. As with all of the other medical practitioners despite her history of fainting spells she exhibited no such behaviour in front of Dr Silbert. A diagram that she prepared relevant to the distribution of her total body pain did not fit the mechanism of the alleged injury except if one considered the disability of somatosisation, depression or a psychiatric disease.
Dr Silbert concluded that much of the plaintiff's behaviour in his presence at the consultation was contrived and he gave an example of why he reached this opinion. On examination or preparatory to it the plaintiff made a movement to remove her jumper herself and started to put her arm up to do so. She then abruptly stopped and requested her husband to assist her. Dr Silbert formed the view that this was clearly behavioural and the plaintiff realised that if she removed the clothing herself it would have appeared inappropriate, given her complaints of extensive pain and inability to lift her arm or arms. Not only was it behavioural but Dr Silbert was adamant, based on his experience and observation of many patients over the years, that it was also intentional and therefore he dismissed diagnosis of somato form disorder. I accept his evidence in this regard and further I also accept his evidence that it is common for neurologists to co‑manage psychiatric disease as part of a neurological consultation. I consider that Dr Silbert gave very thoughtful, thorough and considered evidence. He was of the opinion that the plaintiff's response to the physical examination he conducted was at the absolute extreme of what he had seen in the sense that it was not bizarre but rather it was contrived.
As with Dr Baskaranathan, allodynia was excluded and Dr Silbert noted that the plaintiff's dexterity was normal and her finger opposition was normal. He agreed with Mr Batalin's assessment of a 10 per cent disability of the whole of the spine. The plaintiff's presentation and his findings on review simply did not fit at all with her complaints of physical limitation which he did not feel could be adequately or convincingly explained by either a diagnosis of conversion disorder or somato form disorder. I accept that although Dr Silbert reached this conclusion it was appropriate that he would defer to the comments of psychiatrists relevant to this type of diagnosis. However he pointed to the lack of consistency among psychiatrists in their opinions as to the plaintiff's condition and its origins.
He agreed with the other medical practitioners that in this case it was totally inappropriate for the plaintiff to be using narcotic analgesics. He noted no evidence of tremor during the consultation with him and therefore concluded that there was no reason why the plaintiff could not, for example, prepare her own medications or, as I understand it, carry out activities which require a degree of manual dexterity.

Findings on the evidence as to the issue of liability

The defendant was not called to give evidence in this case and therefore much of the evidence concerning the circumstances surrounding the accident and the actual collision itself came from the plaintiff. It is common ground that the collision occurred at night on a gravel road bounded on either side by unfenced property. In the circumstances there is no dispute that this was an area in which there was a likelihood that cattle would stray onto the road and I accept the evidence that very shortly prior to the collision the defendant had driven over a cattle grid, making it even more obvious that there was a likelihood of cattle being present in the area.
The evidence is clear that the vehicle driven by the defendant came into collision with one or more cattle which had strayed onto the road and I find that the impact was relatively substantial in that it caused approximately $7,000 damage to the Toyota Landcruiser. I accept the plaintiff's evidence that immediately prior to the collision the defendant was travelling at between 80 and 90km/h and given the prevailing circumstances referred to previously I consider that this speed was excessive. I also accept the plaintiff's evidence that prior to the collision the defendant was distracted in the sense that he was playing music and singing along to it and in those circumstances, particularly given that the plaintiff could not attract his attention, I find that the defendant did fail to keep a proper lookout and this was the reason that he failed to notice the cattle before and at the time they strayed onto the road. Not only do I find on the evidence that the defendant was negligent in this regard, but I also accept that he failed to brake, swerve or avoid the accident in any way when I consider that if he had been keeping a proper lookout this opportunity would have been open to him. In my view as the driver of the vehicle the defendant owed the plaintiff a duty of care and he was in breach of that duty for the reasons outlined.
It is necessary in the light of this finding to consider the argument raised on behalf of the defendant that the plaintiff voluntarily consented to the risk of sustaining injuries (as pleaded in the amended defence) as a result of the alleged negligent driving of the defendant. In this regard reference was made to State Government Insurance Commission v Hitchcock, unreported; FCt SCt of WA; Library No 970089; 11 March 1997. The circumstances of that case differ somewhat from those in this matter, but on appeal the issues in that case concerned liability in the sense that at the time of the accident the driver of the motor vehicle was significantly intoxicated by alcohol and it was argued that the learned trial Judge should have found that the passenger who was injured perceived the existence of the danger brought about by the driver's intoxication and that therefore he had accepted the risk involved in travelling with the driver. In the course of his judgment Ipp J observed:
"The legal principles applicable to a defence of volenti non fit injuria are well established. For the defence to succeed it must be established that the plaintiff fully appreciated the risk and, by voluntary choice, elected, agreed or consented to accept the risk: Insurance Commission v Joyce (1948) 77 CLR 39; Roggenkamp v Bennett (1950) 80 CLR 292; Jeffries v Fisher [1985] WAR 250; Howard v Hamiton, unreported; FCt SCt of WA; Library No 960382; 18 July 1996; Suncorp Insurance & Finance v Blakeney (1993) 18 MVR 361."
His Honour then went on to refer to a remark made by Burt CJ in Jeffries v Fisher (supra) 253:
"Of course in many cases that appreciation and acceptance [of the risk] can readily be inferred from knowledge, but the point to be made is that knowledge alone is insufficient… ."
The onus of course is on the defendant to establish the elements of the defence of volenti non fit injuria.
I accept that the plaintiff was aware that there was a degree of danger in travelling on a dark road at night in an area where cattle were likely to stray onto the road. However the evidence is that the vehicle was fitted with appropriate lighting and in the circumstances, in my opinion, it has not been established that the plaintiff consented to the defendant driving at what I have found to be an excessive speed in the situation that prevailed at the time. Nor did she consent to the defendant playing music and being distracted by it. In fact the evidence suggests that the plaintiff took all reasonable steps to attract the attention of the defendant, once she had sighted the cattle to ensure that he too was aware of the danger they presented and by implication no doubt anticipated that the defendant would then decrease his speed or take some form of evasive action. Although it was not raised directly as an issue, for the sake of completeness I observe that given the nature of the weather and the lack of airconditioning in the vehicle it was not unreasonable for the plaintiff and the defendant to be travelling at night time. I do not find that the plaintiff appreciated the risk of injury which might be sustained to her in the circumstances and so it cannot be said that she consented to it. Therefore the defence of volenti non fit injuria is not established.

Findings on the evidence as to causation and nature and extent of the plaintiff's incapacity

As I understand the position of the plaintiff as put by her counsel, they do not point to evidence which indicates the plaintiff has significant objective physical complaints. Rather, it is argued that one has to look at the plaintiff as she was prior to the accident. It is submitted that despite the plaintiff's very difficult and unfortunate past history of depression, including a psychiatric disorder, in conjunction with poor physical health from time to time, prior to the accident the plaintiff's condition had stabilised through medication and she was able to function quite independently. Furthermore it was argued that from an emotional perspective her marriage to the defendant had provided her with a degree of happiness and stability in her life. This argument has to be contrasted with the argument on behalf of the defendant that in the event that any injuries or residual disabilities and symptoms were to be established, they result as a consequence of the difficult and complicated prior medical history of the plaintiff including her diagnosed bipolar affective disorder and not as a result of the motor vehicle collision or its sequelae.

There is no question but that the assessment of the plaintiff's credibility and reliability is critical to the resolution of a number of issues before the Court in this matter.
It has been observed that cases of this nature where the pain and disability of which a plaintiff complains have no organic cause or a cause which would appear to be disproportionate to the reaction to an accident and are therefore alleged to be the result of a form of neurosis or psychological response are amongst the most difficult which courts have to decide. It was further observed in Ivkovic v Rinaldi [1980] 25 SASR 516 at 518:
"It is necessary for a trial judge to avoid preconceived scepticism and to be entirely open to conviction of the genuineness of the alleged pain and disability."
A little later in his judgment Kingsley J observed:
"A trial judge gains assistance, often considerable assistance, from the opinions of medical experts, especially careful and competent psychiatrists, as to the genuineness of the complaints. Finally, however, a judge must reach his own conclusion on the whole of the evidence including his assessment of the plaintiff. Much depends on the truthfulness of a complainant. If a judge is convinced that a plaintiff is untrustworthy, the medical evidence, based as it must be in this class of case to a considerable extent on the complaints made by the plaintiff, must come under close scrutiny. It must never be forgotten that, important as expert medical opinion is, the law entrusts the responsibility of decision not to medical experts but to a judge. In discharging that responsibility a judge has the great advantage of hearing all the evidence and, in particular, of having the veracity of a plaintiff tested in the witness box. He is not entitled to abdicate the responsibility of reaching his own conclusion on the whole of the evidence as to the genuineness of a claim by reliance upon the opinions of expert witnesses, however qualified they might be."
The exercise in my view involves not only an assessment of the plaintiff as a witness, but also necessarily involves a full consideration of all of the evidence particularly the medical evidence, some of which is in considerable conflict in this case.
Having decided the issue of negligence it is necessary now to consider what injuries, if any, were sustained by the plaintiff as a result of her involvement in the motor vehicle accident on 20 March 1999 and the relationship, if any, which exists between her alleged injuries and symptoms and that accident. Then consideration must be given, depending on the findings as to those issues, as to what reasonable treatment was required or necessary which would include the provision of medication and assistance be it gratuitous or paid. This must be examined in the context of the past as well as the future.
Although it is expressed in different ways, ultimately there seems to be a general consensus amongst all the medical practitioners concerned with the plaintiff's treatment that she is what has been described as a vulnerable personality. There is little doubt that the plaintiff has had considerable physical and emotional difficulties in her past life. There would seem to have been some improvement in her health and emotional state when her medication was changed so that it was more appropriate and when she commenced a relationship that was supportive and satisfactory from her perspective. That is by no means however indicative that she had overcome her previous problems and was functioning in what might be described as an entirely normal state.
The weight of the psychiatric medical evidence in my view supports a conclusion that the plaintiff does suffer from bipolar affective disorder which has been and continues to be controlled to a large degree by appropriate medication. I do not accept that the plaintiff suffers from post traumatic stress disorder as a sequelae of her involvement in the motor vehicle accident and in this regard I prefer and accept the evidence of Dr McCarthy and that of Dr Finlay‑Jones.
Clearly the motor vehicle accident involved the plaintiff being subjected to a reasonable degree of force on impact, which I accept would result in a degree of dizziness and perhaps mild disorientation for a very short period accompanied by a mild to moderate degree of emotional distress. With reference to the hospital notes in the days immediately following the collision I find that the plaintiff did suffer moderate soft tissue injuries involved her lumbar spine and left trapezius. It is significant however that in the afternoon of the day following the accident the plaintiff presented as being fully alert and oriented with no thought disorder and in my view at that point, if the plaintiff had been suffering disorientation or even hallucinations, they had settled and were no longer problematic. I accept that she continued to suffer a degree of cervical, lumbar and left shoulder pain with some discomfort in her left knee as reported by her to start at Mt Isa Base Hospital.
I do not find and do not accept that between 23 March 1999 and mid to late April of that year when the plaintiff consulted medical practitioners in Darwin, she was still suffering hallucinations and relatively extreme physical pain and discomfort. I consider it quite implausible that if the plaintiff was in the physical and mental state which she alleges immediately following the accident, that she would have been in any condition to travel over two and a half thousand kilometres, staying from time to time in fairly basic circumstances, including camping for a period of days at Camooweal. If the plaintiff suffered a period of unconsciousness following the impact of the collision, then in my view on the subsequent evidence, particularly that relating to her presentation at Jundah, Longreach and Mt Isa hospitals or nursing posts, such period of unconsciousness was very short lived and has not left the plaintiff with any ill effects on her health.
The plaintiff complains and presents in a way that is totally disproportionate to any findings on physical examination. I do not accept that she suffers from either a somato form pain disorder or a conversion disorder, but I prefer and accept the evidence of Dr McCarthy that the plaintiff has a significant degree of awareness and consciousness regarding her presentation to others, but in particular medical practitioners. The plaintiff presented as a careful witness and it was my impression that she thought most fully about any answer that she gave to a question, lending weight to the argument that she is very aware and conscious regarding all aspects of her presentation to others.
Of particular significance and weight as to my assessment of the plaintiff's credibility and reliability, was her presentation during the fainting spells she exhibited during her evidence and whilst sitting at the back of the Court. In my opinion these were contrived in the sense that the plaintiff was fully aware of what she was doing and the only inference that can fairly be drawn in my view is that she was engaging in this behaviour for dramatic affect and to enhance the prospect of her claim succeeding. There was not the slightest hint of vagueness or disorientation when she "came to" in the witness box, after which time her speech continued to be clear and concise and her presentation was one of complete composure. I find it entirely implausible that over the years when the plaintiff has allegedly been suffering these fainting spells, often up to six times per day, she has never once had such an episode in front of a medical practitioner, who in my view would be much better equipped than either Mrs Briggs or Ms Brown to assess the veracity or authenticity of the fainting spell. I do not regard it as mere coincidence that the plaintiff has never had such an episode in front of a medical practitioner.
In addition to this I accept Dr Silbert's evidence that preparatory to her physical examination by him the plaintiff intentionally and abruptly ceased attempting to remove her jumper herself. The only inference to be drawn with respect to this action in my view being that if she had done so it would have been very inappropriate behaviour given her complaints that she could do little or nothing physically to look after her needs because she was unable to lift her arm or arms. This again I consider is another example of conscious and contrived behaviour on the part of the plaintiff. I do not accept that if the plaintiff is deliberately or consciously contriving her presentations and complaints of symptoms for some gain, that it is in any way the result of her pre‑existing personality vulnerability. In my opinion none of the evidence including the psychiatric evidence supports such a contention. Having watched and listened carefully to the plaintiff's evidence in court and taking into account all of the other evidence, but in particular the medical evidence, I have no hesitation in accepting that the plaintiff's involvement in the motor vehicle accident has become a convenient and partially contrived focus for the presentation of her neurotic symptoms and claimed dependency needs. It is not necessary in my view for the Court to make a finding as to the plaintiff's motivation for such behaviour.
The plaintiff's current alleged inability and indeed her alleged inability from the point shortly after her return to Perth, to personally cater for her physical and personal needs is in no way a sequelae of any injuries she may have suffered in the motor vehicle accident or her involvement in the accident itself. I note that the involvement of Perth Home Care Services did not even commence until November 2001, approximately two and a half years after the motor vehicle accident.
I find on the evidence that as a result of her involvement in the motor vehicle accident the plaintiff did suffer a cervical soft tissue injury, commonly referred to as a whiplash injury and also a thoracolumbar soft tissue injury with associated pain and some minor restriction of physical movement. I also accept that the accident caused some emotional distress to the plaintiff, but that in my opinion was of short duration. In my view it has not been established on the evidence and therefore I do not find, that the plaintiff suffers any psychological or psychiatric symptoms such as post‑traumatic stress disorder, somato form disorder, conversion disorder or anxiety disorder or headaches or depression as a sequelae of her involvement in the accident. If the plaintiff does suffer a pain disorder, headaches and/or depression, they do not relate to the motor vehicle accident but rather are separate and distinct and relate to her pre‑existing psychological and psychiatric problems which I find were in no way exacerbated by her involvement in the motor vehicle accident.
In all of the circumstances I consider it reasonable that the plaintiff in suffering the injuries and symptoms that have been described above attended for medical treatment at Jundah, Longreach and Mt Isa hospitals or nursing posts. I also consider it reasonable that she attended and obtained medical treatment in Darwin. Whilst I consider that the worst of the affects of the injuries sustained in the motor vehicle accident had dissipated by the time of the plaintiff's return to Perth it was not unreasonable for her to attend upon Dr Sritharan and so the physiotherapy treatment which she undertook pursuant to his advice from 13 to 23 May 1999 was also reasonable. Thereafter I find that the plaintiff was in a position where she had recovered from the ill‑effects of her injuries to a point where she no longer required ongoing medical treatment relevant to them. As a result she did not require any further gratuitous or paid assistance.

Assessment of damages

As a consequence of her involvement in the motor vehicle accident I accept that the plaintiff did suffer some pain and discomfort as well as a degree of shock and distress including a short period of mild disorientation. I also accept that there were some short term physical restrictions to which she was subject following the collision. No doubt the journey from the site of the collision to her ultimate destination in Perth over a period of some months involved some inconvenience and discomfort and these are matters for which the plaintiff should be appropriately compensated. I also accept the evidence suggests that it is likely that as a result of the collision the plaintiff developed a dislike and wariness of travelling in motor vehicles where she did not feel well protected. This, however, I do not find is as traumatic and restricting as the plaintiff claims and I note that Dr Finlay‑Jones was of the view in any event that the condition is certainly not permanent and is entirely treatable with a prognosis for good results. In all of the circumstances I consider an award of $5,000 should be made to the plaintiff under the claimed head of general damages.
Given these findings I also accept that for a period following upon the accident, in my view one which concluded at the end of the physiotherapy in May 1999, it was reasonable and necessary in all likelihood for the plaintiff to receive additional physical assistance in her care needs from both her husband, the defendant, and her mother. I have no precise evidence regarding this and so it is appropriate to make a global award with respect to past gratuitous services and I fix this in the sum of $800. For reasons which are plain in this judgment there will be no award for past professional care services provided by Perth Home Care Services. Given the amount of the award for past gratuitous services I do not consider it necessary to award interest on that sum.
Again, for reasons which have previously been explained there will be no award for future voluntary services. If the plaintiff requires these services from her husband or mother, and I certainly do not find that they are on the scale or to the extent that the plaintiff or her mother claim in their evidence, then the need for such services is in no way connected with any physical or mental restrictions the plaintiff may suffer as a result of the motor vehicle accident. It follows there will be no award for future professional care services.
I decline to make an award for future pharmaceutical or medical needs as on my findings the plaintiff's need for Efexor is in no way connected with any medical problem arising out of her involvement in the motor vehicle accident. It may be on occasion she requires some form of analgesic paracetemol but it is simply not possible to say whether this is in any way related to a legacy of the motor vehicle accident and in any event the need would not appear to be great and so there is no award made in this regard. Nothing is claimed for the cost of any future therapy or treatment with respect to the plaintiff's car phobia and in any event there is no evidence as to the likely cost of such treatment. No award is made for travelling expenses with respect to the plaintiff's attendance at the rehabilitation programme because on the findings the need for this attendance was in no way connected with any injury or disability the plaintiff may have suffered as a result of her involvement in the collision. It should also be noted that there was no specific evidence as to this claim in any event.
Although it follows from the above findings that there will be no award with respect to past services provided by Perth Home Care Service I will hear counsel as to any outstanding special damages that may be payable following upon the findings in these reasons.