Fattouh v Neffati - [2002] NSWSC 860

CITATION: Fattouh v Neffati [2002] NSWSC 860

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 14856/92

HEARING DATE(S): 12, 13, 14, 15 & 16 November 2001
18 February 2002
9 April 2002
4 June 2002
6 August 2002

JUDGMENT DATE: 20 September 2002

PARTIES :

Karen Asermely-Rivera (now Fattouh)
(Plaintiff)
Moncef Neffati
(Defendant)

JUDGMENT OF: Master Harrison

COUNSEL :
12-16 November 2001
Mr K P Rewell SC with
Ms A R Beardow
(Plaintiff)
12-16 November 2001; 18 February 2002; 9 April 2002; 4 June 2002 & 6 August 2002
Mr B J Gross QC with
Mr G Bateman
(Defendant)

SOLICITORS:
12-16 November 2001
Mr T Barakat of Keddies
(Plaintiff)
18 February 2002 & 9 April 2002
Mr T J Goudkamp of
Stacks - The Law Firm
(Plaintiff)
4 June 2002 & 6 August 2002
Karen Fattouh
(Plaintiff in person via telephone link to USA)
12-16 November 2001; 18 February 2002; 9 April 2002; 4 June 2002 & 6 August 2002
Mr N J Delfendahl of
Stewart Cuddy & Mockler
(Defendant)

CATCHWORDS: Personal injury - motor vehicle accident - assessment - Background - Pre-accident employment - The accident - Damages - Non economic loss - Subsequent motor vehicle accidents - Second motor vehicle accident - Texas accident - Third motor vehicle accident - Fourth motor accident - Medical reports - orthopaedic - psychiatric - Past and future medical expenses - Domestic care - Economic loss - Past economic loss

LEGISLATION CITED: Motor accidents Act 1988 - s 45(2A); s 79

CASES CITED: Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720; 10 ALR 303
Reynolds Metals Co v Ellis 202 F 3d 1246 (2000)
FMC Medical Plan v Owens 122 F 3d 1258, 1262 (1997)
Cement Masons Health and Welfare Trust Fund for Northern California v Stone 197 F 3d 1003, 1008 (1999)
Hiney Printing v Brantner 75 F Supp 2d 761 (1999)
Westendorf v Stasson 330 NW 2d 699, 703 (1983)

DECISION: (1) The defendant is to pay the plaintiff the sum of AUS$132,871.00 for damages; (2) Costs are reserved.

- 40 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

FRIDAY, 20 SEPTEMBER 2002

14856/92 - KAREN FATTOUH v MONCEF NEFFATI

1 The plaintiff Karen Fattouh (formerly Karen Asermely-Rivera) sues the defendant for damages for personal injuries sustained by her in a motor vehicle accident which occurred on 21 July 1991. Breach of duty of care has been admitted but contributory negligence is in issue. The plaintiff gave evidence and was cross examined.

2 I observed the plaintiff carefully while she was giving evidence and being cross examined. I reluctantly came to the conclusion that she was not a credible witness. While there is no doubt that she was a passenger in a taxi which was struck from behind, it is determining the extent of the plaintiff’s injuries that is problematic. In particular, it is difficult to determine whether her psychiatric state was pre-existing and if it was, whether the accident caused it to deteriorate to such an extent that it affected her employment capabilities. The plaintiff was legally represented throughout the hearing which occurred during two weeks in November 2001. At the conclusion of the plaintiff’s case, but before submissions, her solicitor and counsel were granted leave to withdraw from representing her. The case was adjourned a number of times to allow the plaintiff, a citizen of the United States of America, to obtain legal representation in Australia. The plaintiff was largely unsuccessful with her endeavours. Ultimately in August 2002 the case concluded. The plaintiff herself submitted written submissions in which she seeks the sum of US$3,841,657 for damages. The assessment for damages is more complex because after the 1991 accident (the subject of these proceedings) the plaintiff was involved in three subsequent motor vehicle accidents in the United States.

3 The plaintiff was born in Providence Rhode Island in the United States of America on 14 May 1962. She grew up in Pawtucket Rhode Island. She was aged 29 years at the date of the accident and is now aged 40 years. At the time of the accident she was a trainee at Baylor College of Medicine, Houston, United States of America.

4 The plaintiff gave evidence that her father was a teacher and was an “intellect” (t 4.34) and her mother was a nurse and was very “intellectual” (t 5.20). The plaintiff’s evidence is that she averaged a 95% percentile in all her subjects and was “super intelligent” and had an IQ of 145. Nevertheless, throughout the hearing the plaintiff placed great emphasis on her intellectual prowess. Due to this “super intelligence” and “innate ability to be very intelligent and bright and see between the lines” the plaintiff at age five was placed in the Montessori school, which in the United States is a school that runs a gifted program for young children (t 77.50). According to the plaintiff, in the United States in order to obtain placement in this school you must be tested and have an IQ of over 120 (t 78.20). The plaintiff at the age of seven was able to skip a grade at the private school she attended (t 78). The plaintiff completed her secondary schooling at St Mary’s Academy Rhode Island which according to her was one of the 200 top schools in the United States.

5 Between September 1980 and May 1984 the plaintiff was a Bachelor of Science student at Providence College Rhode Island. She obtained a grade point average (GPA) of 3.24, and an 80-85% average mark. In September 1984 the plaintiff graduated with her Bachelor of Science degree. The plaintiff’s evidence was that you had to be “super intelligent” to go from a Bachelor of Science degree to a Doctor of Philosophy studies, skipping the Masters degree in between. She did so because of her intelligence (t 8.24-28). It was during this time that the plaintiff met her first husband Jose Rivera. They were married on 22 May 1988. The plaintiff and her first husband divorced in 1992. In December 1998, the plaintiff married her current husband, Aboulsaud Fattouh. They reside in Burke Virginia and have two children, Abraham and Mary.

6 The plaintiff claims that had the accident not occurred she would have followed her chosen career path and become a full professor. In 1990 the plaintiff obtained a pre-doctoral research grant to complete her PhD in Pharmacology working with her mentor Professor John O’Neill in the Cell Biology Department at Temple University, Philadelphia, Pennsylvania (Temple). In September 1990 the plaintiff finished work as a research assistant at Temple. The plaintiff’s evidence is that she was a research assistant only until graduation as the money for her salary was only provided up until graduation. On 1 November 1990 the plaintiff commenced employment as a part time Medical Technician in the transfusion medicine program at Temple. On 22 February 1991 the plaintiff resigned from her job as a Transfusion Medicine Technician “… as my responsibilities in my Ph.D dissertation are increasing on a daily basis. My thesis defense will be in mid-March and due to the proximity of the date I have intensive meeting between now and then. This responsibility requires my full attention since the final exam will determine whether six and a half years of work will pay off. I, therefore, as of this date, February 22, 1991 resign my position in Transfusion Medicine.” (Ex 4). In evidence the plaintiff denied that she gave up this job because the demands of work and study were emotionally and mentally over burdensome. The reason she gave was that she and her husband moved to Texas (t 79.35). It is not necessary to reconcile the conflict in this evidence.

7 Professor O’Neill speaks highly of the plaintiff and regards himself as her mentor. He stated that during the plaintiff’s seven years at Temple he “would describe Karen’s work as exceptional. She was one of the best in the laboratory. She was a hard worker. I knew her to work up to sixteen hours per day. Work in neuro-science requires heavy physical as well as intellectual labor. Karen never shirked long hours of work or heavy physical work. In other words, she could combine the “thinking” with the “doing”, which are features of an ideal student.” According to Professor O’Neill the plaintiff was very creative and innovative and one of her innovative projects was of a similar subject matter that was awarded a current Nobel Prize in science. By the age of 29 years, the plaintiff had been a high achiever. She had obtained her PhD.

8 On 23 May 1991 the plaintiff was awarded a doctorate in Pharmacology by Temple. On 4 June 1991 the plaintiff commenced work as a trainee at Baylor College of Medicine, Houston, Texas. On 28 June 1991, the plaintiff secured a post-doctoral fellowship with the Baylor College of Medicine, Houston, Texas (Baylor). On 1 July 1991 the plaintiff was appointed postdoctoral fellow under a grant from the National Institute of Health to work on the phosphorylation and activation of the progesterone receptor at Baylor in the Department of Cell Biology in the laboratory of Professor Bert O’Malley. Both the plaintiff and her husband, Dr Rivera, moved to Houston in order to enable the plaintiff to work at Baylor and Dr Rivera to work at a local hospital in Houston.

9 The plaintiff’s duties as a postdoctoral fellow are set out by the plaintiff in Ex B (B 63-67). The plaintiff described the work as being mainly physical as well as intellectual (t 16.50). She said that she had to work unlimited hours and unrestricted time, even coming in through the night (t 16.45). After she got home from work she had to do hours and hours of reading (t 17.05). The research fellowship award, which the plaintiff had, was a stipend which allowed for full-time study. The plaintiff was required to submit scientific research papers, attend seminars and conferences and report her progress. The term of the plaintiff’s fellowship at Baylor was for three years, renewable annually, and starting at around US$21,000 gross per annum (t 17.20). Unfortunately, the accident occurred about six weeks after she commenced postdoctoral employment at Baylor.

10 In July 1991, she travelled to Australia with her then husband (Dr Jose Rivera) to attend a conference of the International Society of Neurochemistry. The conference was held in Sydney. Also present at the conference was Professor John O’Neill, Professor Emeritus of the Temple University Medical School. The plaintiff, along with 200 budding young scientists, presented an abstract of her dissertation at the conference. The abstract that the plaintiff delivered was on Cholinergic drugs which affect acetylcholene. By delivering this abstract, the plaintiff said it meant that she was identified as “one of the top scientists there” (t 19.06).

11 Before I make findings in relation to the accident, it is convenient to record my observations of the plaintiff’s demeanour. When giving evidence and being cross examined the plaintiff temporised and disassembled. At times she laughed inappropriately. She talked constantly over the top of counsel and the bench even though told repeatedly not to do so. She volunteered information designed to make herself sound better despite being requested to confine her answers to the questions asked.

12 Twice she refused to look at documents on the basis that to do so was illegal in the United States. These documents were firstly, a job appraisal that had a covering letter addressed to her and; secondly, annulment documents relating to her first marriage.

13 When asked to read the evaluation by Dr Adler, the plaintiff refused to do so on the basis that it was illegal in the United States for her to read it (t 165.34). When pressed as to why it was illegal she said because it was confidential (t 166.08) and did not give any satisfactory reason as to why she should not read the document when asked to do so in court (t 166.10-166.48). She then refused to discuss the document (t 168.05). She later retracted the word “illegal” (t 168.35). She then stated that she was trying to co-operate and be honest but “I’m feeling discriminated against” (t 168.55-169.05). Finally she leveled unmerited criticism against her legal representatives and said “my legal team is actually acting like the defendant’s legal team” and asked the court “how can I get an objective barrister?” (t 171.50). At other times when she was asked a question she did not wish to answer she temporised by saying “I am anxious and stressed, therefore I cannot understand [the question] and this was caused by the July 1991 accident”.

14 The plaintiff refused to accept that she was the author of the statement in support of the annulment of her marriage. Because of her refusal to acknowledge that it was her document, the document was not tendered as an exhibit in evidence. However the plaintiff at stages did concede that it was her statement, and acknowledged some of the statements in that document were true. She stated “I never shared it with anyone but the Church. I was the one who mailed it to them by certified mail because I assumed that is what they require. I never showed anyone the document or I never showed Dr Sajadi that document.” (t 176.47). She also said “I wrote it and I submitted it directly to the Church by certified mail.” (t 177.04). She also said “I wrote it and I mailed it myself” (t 177.15). However when asked to look at the document she said “I already gave my answer earlier that I’d rather not look at it” (t 177.28). She said that she did not know that it was a copy of the statement which she prepared because she did not put the numbers on it (t 178.05, t 178.28). She later said, “I don’t know if I typed it or if I wrote it but I know I submitted it because I can’t remember right now” (t 178.55). Later on she said “I don’t think I wrote it because I did not put these numbers on it” (t 179.55). She then contended, “Whatever document I wrote could have been changed” (t 180.05).

15 On the following day (16 November 2001), she said that “I submitted a document to the Church, I haven’t denied that, this is not the document I submitted, this is not signed, it has two sets of numbers on it and I don’t recall a lot of these details in this document.” (t 188.15). This was after she suggested that her ex-husband Dr Rivera was the author of the annulment statement (t 185.55). This is improbable for numerous reasons, not the least of which is that from the passages read to her the author of the statement (obviously the plaintiff) is extremely critical of Dr Rivera. The plaintiff’s explanations for the document not being attributable to her are implausible.

16 To show the extent of the unreliability of her evidence, when initially asked by the court how Anthrax operates, she replied “It kills you when you inhale it”, but “I don’t recall how, I am not a virologist. I think it is a bacteria.” (t 12.10). The plaintiff worked for the United States Department of Defense and her duties involved researching the effects of Anthrax. However later in court when describing the work that she was doing in Dr Eiden’s laboratory she said she was actually doing tissue culture work “with the – you know in the news now – the Anthrax, the smallpox virus. We use that to transfer DNA. We add the virus to it, we add the DNA to the virus and we transfect. It is called transfecting. Obviously we all know that viruses enter into cells …” (t 43.55). These two answers are difficult to reconcile.

17 Reluctantly I have found the plaintiff to be an unreliable witness due to the inconsistencies in her evidence. The plaintiff gave further inconsistent evidence in relation to the subsequent motor vehicle accidents which I will refer to later in this judgment. The plaintiff also exhibited some unusual behaviour in the witness box. When she was specifically asked a question directed to the condition of her neck or arm she took the opportunity to articulate that she was suffering pain now and that she had been suffering constant pain all day, but she had to sit still because she thought she was obliged to do so and out of respect to the court. After saying that the plaintiff jumped up in the witness box and moved around. She behaved in a similar manner in the United States court proceedings (referred to later in these proceedings).

18 At about 7.55 am on 21 July 1991 the plaintiff and her then husband, Dr Jose Rivera, were on route to Sydney airport to catch a plane back to the United States. They caught a taxi from the city to the International Airport. The plaintiff and her husband were both back seat passengers in Legion taxi registered number T-9263 traveling in a southerly direction along South Dowling Street, Moore Park. In front of the defendant’s taxi there was a taxi which was also proceeding in a southerly direction in South Dowling Street, Moore Park. The plaintiff was a passenger in the second taxi. The first taxi came to a halt. The defendant, the driver of the second taxi, applied his brakes but was unable to stop in time and collided with the rear of the taxi in front. The third taxi then crashed into the rear of the second taxi. The plaintiff did not hear any sound of braking from behind and estimates that the third taxi was traveling at 50 mph (t 19.50).

19 The plaintiff describes the force of the impact as very large. She noticed that the trunk of the taxi had caved in and her husband could not get the suitcases out of the trunk. On impact the plaintiff says that she was thrown back and forth in the back seat of the taxi, and at the same time she hit her head at least two or three times, very hard, on the roof of the taxi. The plaintiff was wearing a seat belt. In the next five minutes the plaintiff said that she could not move her head at all without pain. She felt dizzy and felt some weakness. She was crying due to the neck pain going down her arms to her hand. The taxi driver refused to call the Police and drove them to the airport. By the time they reached the airport the plaintiff felt very upset. She had neck pain and could not move her neck around at all. Her arms and hands were hurting a lot and she was dizzy, had a headache and could not function at all (t 20). The plaintiff says that although she felt depression immediately after the accident, she felt more depression when she was told by Professor O’Malley that she would not be working in the laboratory.

20 Dr Rivera largely supports the plaintiff’s version of the accident. He stated that “It was a severe accident. Our taxicab was hit hard from behind. Karen immediately began to complain of pain and body weakness. She began to complain of pain in her neck. By the time we reached Sydney Airport, Karen was complaining of pain in her neck and pin and needles in her fingers.”

21 As previously stated, breach of duty of care has been admitted but contributory negligence was pleaded, namely, failure to wear a seat belt and breach of s 74(2)(c) of the Motor Accidents Act 1988 (MAA) (defence filed 8 February 2000). I accept the plaintiff’s evidence that she was wearing a seat belt and there was no evidence in relation to s 74(2)(c). I do not apportion any contributory negligence to the plaintiff.

22 The plaintiff has particularised the injuries and disabilities that she suffered as a result of the accident. She claims that she has suffered pain, loss of use and restriction in movement to head, neck, shoulders and back; severe migraines and headaches; spasms to the neck and back; depression and panic attacks; inability to lift any weight over 10 pounds; nerve root damage to cervical spine; requirement to undergo intensive physiotherapy; requirement to undergo psychological retraining; inability to engage in pre-injury work or any other work involving similar effort; difficulty in concentrating for prolonged periods; requirement for medication for pain, depression, panic attacks, to regulate sleep and to stop muscle spasms; requirement to wear a neck brace; interference with sleep, nightmares; severe disruption of social life; numbness and tingling in both arms; tingling and numbness in both hands; numbness and tingling in all ten fingers; restriction in a wide variety of work, social, sport or hobby activities; muscle spasms; inability to sit or stand for prolonged periods.; inability to perform repetitive movements of neck, arms, fingers or back for normal daily functions; requirement to sleep with a specialized pillow; inability to ride a bike; inability to play the clarinet; chronic cervical pain syndrome, fibromyalgia; and restricted to no more than 30 minute stretches when traveling by car, train, airplane or other modes of transportation; and impaired ability to drive a motor vehicle.

23 The plaintiff claims that by virtue of the injuries to her neck and psychiatric state, she has been rendered incapacitated for work and her life has been significantly impaired. The defendant denied that the plaintiff’s lifestyle is significantly impaired by the injuries suffered in the accident within the meaning of s 79 of the MAA. Section 79(1B) provides that no damages shall be awarded for the non-economic loss of an injured person as a consequence of a motor accident unless the injured person’s ability to lead a normal life has been, or in the near future is likely to be, significantly impaired for a continuous period of not less than 6 months by the injury suffered in the accident. The defendant also contended that the plaintiff’s lack of credibility is such that it is unsafe to rely upon any of her contentions as to her past disability or the need for hospital or medical treatment, or the reasons for that hospital and medical treatment.

24 After the plaintiff and her husband arrived at the airport they elected to abandon their flight to the USA that day in order to attend the Prince of Wales Hospital, where the plaintiff received treatment. She waited all day and saw a resident doctor. Apparently the plaintiff was given Tylenol with Codeine and a soft collar. According to the plaintiff, an x-ray was taken (t 21A). The hospital notes are not in evidence save an undated letter by Dr Porter addressed to the airline. This letter states that the plaintiff was seen in casualty after a taxi accident on the way to the airport and she missed her flight. The doctor confirmed that the plaintiff was fit to fly but suggested that she would be more comfortable in first or business class. There are no other observations of the plaintiff’s condition from the Prince of Wales Hospital. During the flight, the plaintiff had unremitting pain in her shoulders and head down her arms to her hands (t 21A).

25 Upon her return to the United States, the plaintiff sought treatment as she was still feeling in the same condition. On 23 July 1991 the plaintiff consulted Assistant Professor Ronald Lindsey, an orthopaedic surgeon who worked at the same medical centre as the plaintiff. She also sought the assistance of a counselor from her church, Carol Labonte, who referred her to Dr Ravichandran, psychiatrist. On 26 August 1991, the plaintiff was admitted to the psychiatric unit at the Rosewood Medical Center where she remained as an in-patient for 23 days. Between 1991 and 1994 the plaintiff was admitted as an in-patient at Rosewood on five occasions.

26 In 1991 the plaintiff’s marriage came under strain. The plaintiff gave evidence that after the accident her husband, although a medical practitioner, was unsympathetic and indifferent to her problems. He was working long hours (t 25). She said he did not give her the support she needed. He did not even feed her (t 26.12). On the other hand, in the Texan proceedings she stated that her husband was supportive (B374R). The plaintiff’s husband, Dr Jose Rivera, acknowledged that there had been tensions in the marriage and that they had been to counselling 18 months before the accident. Nevertheless, he regarded the marriage as a generally happy one and had, as at July 1991 expected it would continue. In describing the plaintiff’s state after the accident, he says “Karen complained whenever I saw her of pain in her neck. She became depressed and anxious. Her mood deteriorated. Our relationship deteriorated at the same time. The tension in our home increased.” On 17 October 1991 the plaintiff’s husband separated from her. Her husband filed a petition for divorce in February 1992. The decree was made final in September 1992.

27 Professor O’Malley has provided a statement. He was not in a position to assess the plaintiff’s work performance before or after the accident, as he was not afforded the opportunity to work closely with the plaintiff during the six week period (Dr Ravichandran records she returned to work for two days on 28 September 1991 (B25). She says it was less than 10 days). The plaintiff had only been working at Baylor for a short time prior to the accident. Professor O’Malley confirmed that she was given leave without pay, but returned to work for one week and that the reason given for her being unable to do any real or useful work was neck pain (B90).

28 Before the medical evidence is analysed, the subsequent motor vehicle accidents should be considered.

29 On 12 October 1995, in the District Court of Harris County, Texas in matter No 95-24930 between Karen Asermely v Jerry Bates & Ors the plaintiff gave a video taped deposition with regards to the June 1993 accident.

30 The plaintiff gave the following account of the accident. At about 2.00 pm on 4 June 1993 the plaintiff was involved in a second motor vehicle accident on the Katy Freeway at Houston Texas. The freeway consisted of three, possibly four, lanes with a barrier in the middle. In this court the plaintiff gave evidence that she was driving, heavily medicated on Prozac. The plaintiff was travelling in the high speed lane when she observed that a truck travelling in front of her had stopped suddenly. The plaintiff first noticed the truck when it was 200 feet away. She realised that it had stopped at 100 feet away and the plaintiff was travelling at 35 mph. According to the plaintiff the defendant’s truck was not operational and it was dangerous (Texas t 72). The plaintiff said that her response time in braking was very poor and she hit the brakes with her foot and bumped into the back of the truck and then another truck crashed into her vehicle. The plaintiff described the severity of the first impact when she bumped into the truck in front of her as being small to medium. In the accident the plaintiff’s seat broke and the ambulance had to come and get her out of there. Her 1988 Cutlass Supreme Oldsmobile was totalled. Later the plaintiff explained that she was dizzy when driving on the Katy Freeway. She was asked in cross examination in this court why she was driving in the fast lane when she was dizzy; she replied that she had to get home.

31 After the accident the plaintiff experienced pain at the centre of her lower back at C4/5 and pain shooting down both legs to her toes with numbness in both hips, and in her feet. She was unable to walk. She lay down in the back of the police car, just kind of went hysterical and started yelling to the policeman that he [Mr Kimmey, the driver of the truck] had no brake lights (B315). She was taken by ambulance to Hermann Hospital, Houston where she was treated in ER just that evening. She was not admitted. Apparently she was told that she may have herniated discs or other abnormalities at C5-6 and severe radicular pain in both L4-5 and lower extremities. The plaintiff gave evidence that prior to this accident she had not experienced any low back pain and that her low back had not been affected by the road accident in Sydney in July 1991.

32 The plaintiff said that after discharge from hospital she had pins and needles in the legs and feet and she still had pain in her back. The plaintiff said that after 1993 she received physiotherapy for her legs and back at John West Rehabilitation Center. She says that she improved so she was able to stand and walk normally. The plaintiff told the Texan court that her symptoms had not resolved and she was still having numbness and tingling in her left and right legs and hips and that she still suffered problems with her neck and cervical area.

33 Following the Texan accident, the plaintiff gave evidence that she had serious pain in the back of her legs for just a couple of months, that the nerves grew back over time, that the pain was not constant and pretty much resolved. In this court she gave evidence that after the Texan accident she suffered low back pain for 12 to 18 months and then the pain largely resolved. The plaintiff estimates that the back injury resulted in about 10% incapacity in her working ability.

34 In answer to the Texan interrogatories when asked if she still had any problems stemming from the injury to her thoracic vertebrae in 1991, the plaintiff replied “No” (Ex 6), but in evidence in Texas she maintained that she still had problems with her cervical area (B 296, 297). She also answered “None” to interrogatory No 25, which asked her to describe the nature and amount of any and all medications and alcoholic beverages and/or intoxicants of any type that she injested during the 24 hours prior to the accident on 4 June 1992, which is in conflict with both the deposition she gave in Texas and the evidence she gave in this court. In February 1997, the Texan proceedings were settled on the basis that the defendants pay the plaintiff the sum of US$5,000 (Ex D).

35 A claim completed by the plaintiff to the Texas Employment Commission seeking benefits (Ex 3) paints a different picture to the evidence given in this court as to her ability to work. The plaintiff wrote that she “was originally injured July 21, 1991. I was off work from July 21, 1991 to September 27, 1992. I returned to work 9-28-92 but was unable to do the job because of my injury, so I worked up through 10-27-92. I was off on medical leave from 10-28-92 to 10-28-93 when I was laid off. I was injured a second time on 6-4-93 in a Katy Freeway accident. I was planning on returning or attempting to return to work in Spring of 1993. I believe without stating as fact I could have attempted to return to work until the second accident.”

36 On 28 September 1993 the plaintiff was involved in a third motor vehicle accident when the car which she was driving had a tyre blow out on the freeway in Harris County Texas. The car left the road and ran into a pothole. The plaintiff was shocked as it had all happened so suddenly but suffered no injuries. She went to the emergency room Rosewood Medical Center to have a check up. According to the Texas transcript, she was returning home after speaking to Professor O’Malley when he informed her that she was not able to do her job so she could not work there (B 335).

37 On 3 June 1994 the plaintiff was involved in a minor accident at a gas station in Chimney Rock, Houston, Texas. She refers to the accident as a “hit and run”. The plaintiff was waiting to get petrol when a canary yellow sports car reversed into her car out of a parking space. She went to see Dr Sadeghpour for a check up. She had additional lower back pain which lasted for just a little over a month. The plaintiff made a claim under her insurance policy in relation to this accident (Ex 11). In this claim form the plaintiff described her injury as “I had mechanical spine injury and muscle spasms including radiculopathy cervical sprain and lumbar sprain.” In court the plaintiff implausibly sought to explain this answer as meaning that she had those injuries in the past which had been reactivated by this bump. [my emphasis added]

38 Despite the inconsistencies in the plaintiff’s evidence I accept that the third and fourth accidents did not cause the plaintiff to suffer further significant injuries.

39 The plaintiff has been examined and treated by a large number of medical practitioners. Their opinions fall into two camps. One view is that the plaintiff has lasting neck pain which has significantly affected her ability to follow her chosen career path; the other is that she had soft tissue injury to her neck. There is also a divergence of medical opinion concerning her psychiatric state. While some of the doctors’ comments overlap I have attempted to examine the orthopaedic and psychiatric reports in chronological order.

40 On 23 July 1991 the plaintiff consulted Assistant Professor Ronald Lindsey of the Department of Orthopaedic Surgery, Baylor College of Medicine, Houston. The plaintiff gave a history that after the motor vehicle accident in Sydney she was treated “at a local hospital in Sydney where it was determined that her whip-lash was complicated by a spine fracture malalignment or neurological deficit”. This history is incorrect. There is no Australian x-ray or medical report in evidence to suggest that the plaintiff suffered whiplash which was complicated by a spine fracture malalignment or neurological deficit.

41 Assistant Professor Lindsey reviewed the x-rays taken in the United States of her cervical spine. He did not find a spine fracture malalignment. Rather he reported the x-rays to be “essentially unremarkable save loss of some cervical lordosis apparently due to her ligamentous injury”. He opined that the plaintiff sustained a whiplash injury which had resulted in moderate muscle spasm. He recommended soft collar mobilisation, which he suggested she wear for a total period of six weeks and topical heat and muscle relaxants. The plaintiff says she wore the soft collar mobilisation for four months. The plaintiff did not return to see Assistant Professor Lindsey.

42 During her period of in-patient care at Rosewood Medical Center between 26 August 1991 and 18 September 1991, the plaintiff was seen by Dr Achari, neurologist. On 29 August 1991 Dr Achari reported that an EMG was “within normal limits” although there was the possibility of radiculopathy in the left biceps, particularly at C6. On 31 August 1991 Dr Achari reported that the plaintiff had a cervical sprain. Dr Murphy, diagnostic radiologist (29 August 1991) reported that the MRI of the cervical spine and upper thoracic spine showed that there is most likely a small, asymmetric bulge on the left at C6-7, which had no significant effect on the thecal sac, and no extension into the foramen is seen. He also recorded mild degenerative changes seen in the T1-2 disc, and stated that no other significant abnormalities were noted.

43 More investigations in relation to the plaintiff’s neck were carried out. On 3 October 1991 Dr Murphy of Rosewood Medical Center, Diagnostic Radiology, performed a cervical myelogram and CT myelogram of the cervical spine and found: “Slight asymmetric bulge on the left at C6-7, which is producing only minimal effect on the left side of the thecal sack and no effect on the spinal cord. There is no extrusion of disc material into the left C6-7 foramen. No abnormality is seen at C5-6 or C7-T1”. Following her discharge from Rosewood Medical Center in October 1991 the plaintiff commenced physiotherapy at the John West Rehabilitation Services, Houston.

44 The plaintiff was readmitted to Rosewood from 25 September 1991 until 17 October 1991. From 14 May 1992 to 23 July 1992 the plaintiff was in day treatment at Rosewood for major depression with panic attacks and PTSD. Her symptoms at that time were in part related to stress from a divorce finalisation. The plaintiff had a medical admission for constant pain in both arms from 17 November 1992 until 18 November 1992. She was seen by Dr Yudofsky, psychiatrist, who diagnosed the plaintiff with major depression with obsessive compulsive and anxious features. She was also diagnosed with cervical myofascial pain syndrome.

45 On 19 November 1992 the plaintiff consulted Professor Appel, Department of Neurology at Baylor who reported her physical examination as “unremarkable” and reported on the plaintiff’s neck examination as follows: “Supple, no JVD, bruits, lymphadenopathy, thyromegaly, or masses”. A myelogram was performed and described as being “negative”. On the same day nerve conduction studies were done which were reported as “normal EMG of arms and legs within normal conduction studies in both arms”. Spine x-rays were also reported as being “completely within normal limits”. The plaintiff gave evidence that Professor Appel is the leading neurosurgeon in the United States (t 29.5), and that he diagnosed her with chronic cervical pain and lifelong pain syndrome. This is simply not the case at all (t 29-30). In my view, the opinions in the reports of Assistant Professor Lindsey, Drs Achari and Murphy and Professor Appel are of importance as these examinations and investigations were undertaken within 18 months of the accident. They consistently reported that the tests and x-rays are unremarkable except that both Drs Achari and Murphy noticed a slight bulge at C6-7. According to Dr Moses (referred to later in this judgment) this bulge has no clinical significance. Dr Achari thought that there was a possibility (and it was put no higher than that) of radiculopathy of the left biceps. Dr Moses neurologist commented that the possibility of radiculopathy was slim. The plaintiff adopted the mention of radiculopathy as being not a possibility but a reality and told the Texan court that she suffered from it.

46 Dr Sharen Bisson in a report dated 2 August 1995 to the Disability Determination Services stated that the plaintiff was admitted to Rosewood in July 1993 for sciatica and depression. She was hospitalised at Rosewood from 15 February 1994 to 15 June 1994 for depression and intensification of chronic pain management. She was diagnosed with major depression disorder and post traumatic stress disorder. The last hospitalisation was from 20 September 1994 to 23 September 1994 for depression, poor impulse control and self-destructive ideation and behaviour.

47 In her report dated 3 September 1997 (over 6 years after the accident), Dr Fishburn, Assistant Professor of Physical Medicine and Rehabilitation at Johns Hopkins Hospital, recorded that her examination of the plaintiff “was essentially normal with the exception of ongoing myofascial trigger points and mild restriction of cervical range of motion due to a recent re-exacerbation of her injury (related to dramatic increase in activity level). She continued to have trigger point tenderness over the interscapular and trapezius muscles bilaterally but this is much improved and neurologically there is no evidence of ongoing deficit including symmetrical reflexes, normal strength, and normal sensation to all modalities.” Dr Fishburn’s diagnosis of the plaintiff at that time was “chronic thoraco cervical myofascial pain with recent acute flare and documented previous left C6-7 radiculopathy. Radicular neuro signs are resolved. Chronic low back pain which is currently stable.” She stated that the plaintiff’s prognosis was good and that she was clearly a productive member of society and continued to do well in her capacity as a pharmacologist.

48 In her report dated 27 July 2000, Dr Fishburn stated that the 1991 accident had resulted in significant ongoing deficits for the plaintiff and noted that she believed that the plaintiff had a real physical basis for her pain which requires significant modification to her lifestyle and career path. In a letter of the same date addressed to the plaintiff’s solicitor, she stated “the patient’s capacity for work is good provided modifications to the work environment are available”. Dr Fishburn continued “Patient has been extremely productive in her capacity as a PhD pharmacologist and has now been hired by the National Institute of Health for further research activities. She has been actively writing papers for publication and continuing to do laboratory research with assistance to set up the experiments and very flexible schedule to allow her to take frequent rest breaks. She recently was out of work for a week and returned part-time for two weeks because of a recent flare of her neck symptoms and is now basically back to the previous pain level and nearly back to the normal level of activity.”

49 On 12 March 1998 the plaintiff attended Dr Rosenblatt, Assistant Professor of Psychiatry, Johns Hopkins Neuropsychiatry and Memory Group. The plaintiff advised him that she was going to the gym three times a week and enjoyed playing basketball. He reported that the plaintiff complained of stiffness in the lower back and continued: “The patient denies any other difficulties or any other pain at this time”.

50 On 27 July 1998 the plaintiff saw Dr Rosenthal, an orthopaedic specialist. He reported that the plaintiff’s history is not compatible with any significant orthopaedic injury to the cervical spine. Nor was the physical examination consistent with any significant cervical spine pathology. Dr Rosenthal’s belief is that the majority of the patient’s treatment was for psychological disturbances, not any true orthopaedic pathology, as there really was none. As he stated “Over the many years that the records document, the patient has had blood tests, bone scans, EMG’s, x-rays, MRI’s, etc. all of these tests were essentially normal every time they were obtained.” She probably did suffer a mild cervical strain following the accident and he believed that several weeks of exercising would have been sufficient to resolve her problem. According to Dr Rosenthal all other treatments were unnecessary and unrelated to her motor vehicle accident, and there was no indication that she could not have continued working from the time of the accident until the present time in any position she so desired. He believed that the patient’s prognosis was poor, not on any orthopaedic or anatomic basis, but strictly on her psychological disturbances.

51 Associate Professor Oakeshott, psychiatrist, in his report dated 6 November 2001, stated that having examined the patient he was unable to identify any objective clinical evidence of any physical injury or underlying pathology in relation to her neck, shoulders or arms that was allegedly caused by the 1991 accident that could explain her rather widespread symptoms. He stated that the plaintiff did not give the appearance of a person who had significant neck or arm pain at any time during the consultation, and he noted that there were a number of inconsistencies at the clinical examination. Associate Professor Oakeshott commented that during the interview the plaintiff nursed her baby and lifted the baby from a capsule which was placed on the floor of the consulting room. She had no problem in putting the baby back into the capsule prior to a gentle physical examination. During the interview Associate Professor Oakeshott noted that she was able to move her neck through a good range of movements without any apparent discomfort. However, when the formal clinical examination commenced she virtually ‘froze’. She would not move her neck through any reasonable range of movements and this was in marked contrast to the movements that he had noted during the interview.

52 Associate Professor Oakeshott went on to note that “She claimed that there was also tenderness to light touch over both sides of the bases of the back of her neck. She also claimed that this light touch caused pain to radiate down both arms and to all fingers of both hands. This is impossible from the logical, anatomical and physiological point of view. On repeated examination of the back of her shoulders and neck when her attention was distracted she did not complain of tenderness and I therefore considered that her complaint of tenderness was not significant.” He also noted that “no neurological abnormality could be detected in either arm, she was able to demonstrate a good strong grip strength with both her hands, and there was no evidence of radiculopathy in either arm.”

53 Associate Professor Oakeshott considered that the plaintiff had made a complete recovery from any alleged injury to her neck, shoulders, arms or upper back that was allegedly caused in the 1991 accident as there was no objective clinical evidence of any such injury at the consultation. He stated that her alleged symptoms are arising from factors other than physical injuries allegedly caused in this accident. He considered that she did not require any further investigations or treatment for injuries allegedly caused in the 1991 accident and that he was unable to identify any objective clinical evidence of any physical injury or underlying pathology that was allegedly caused in the accident of 21 July 1991 that would prevent her from working full-time, without restrictions, indefinitely.

54 Dr Drapkin of Maryland Orthopaedics in his reported dated 27 January 2002 stated that, having reviewed the medical records of the plaintiff, he was of the opinion that “as a result of the automobile accident on 21 July 1991, she sustained a disc injury to her neck with a cervical bulge at C6,C7 with a left sided cervical radiculopathy at the same level and this has resulted in a permanent impairment to her neck as a result. Dr Drapkin attributes the permanent impairment to her low back to the 1993 injury. In the 1993 accident she sustained an aggravation of her neck injury from 1991, but this eventually resolved and her current problems to her neck and persistent permanency to her neck is a result of her 1991 injury.”

55 At the time of the accident in 1991 the plaintiff was living with her husband Dr Rivera. The plaintiff gave evidence that in the period leading up to the 1991 accident, she and her husband were experiencing difficulties with their long working hours and that their conflicting work schedules led to some stresses and strains in the marriage. In 1989 and 1990 the plaintiff had sought counselling from a Christian counselor because of the stresses of daily living for herself and her husband. The plaintiff admitted that the therapy did not go well because her husband would not change and she did not need to. During the marriage the plaintiff and her husband were working long hours but the plaintiff was doing the bulk of the household chores. At other times, the plaintiff said that the therapy did go well. On the other hand in 1991 the plaintiff saw Olga Ruiz Dearana for a psychological evaluation (31 August 1991). She reported “Marital situation is seen as conflict free and has been projected as supportive. It suggests the presence of depression and possible difficulties in her interpersonal relationships.” The plaintiff told Dr Rosenblatt (report of 12 March 1998) that the marriage was “never particularly harmonious” and that she and her husband were sexually incompatible.

56 In August 1991, following the accident, the plaintiff initially contacted a Catholic priest. He referred her to a counsellor with the Catholic Church, Carol Labonte. The plaintiff attended counselling sessions together with her husband. It was through counselling that the plaintiff was referred to Dr Ravichandran the medical director and psychiatrist at Rosewood Medical Center by Ms Labonte. The discharge summary prepared by Dr Ravichandran, psychiatrist, on 18 September 1991 stated that the plaintiff was “hospitalized mainly following severe panic attacks with severe depression secondary to post-traumatic stress disorder”. The summary also stated that the plaintiff “became very depressed as a result of issues related to anger and rage towards her parents, which were all coming up as an important issue of the complications of post-traumatic stress disorder. She was involved in the Trauma Resolution Program, and was able to work on it extremely well, until she discovered that her father was indeed a gambler when she was growing up, and that her mother was quite distant and not attached emotionally though was a good provider”. Nevertheless, the summary recorded that the plaintiff showed about 40-50% recovery at the time of discharge (B14).

57 The plaintiff was readmitted to Rosewood Medical Center on 25 September 1991 under Dr Ravichandran. The discharge summary relating to that stay recorded that she started regressing to her childhood and she started having some memories of anger and rage, not only towards her parents, but also towards her husband.

58 Dr Ravichandran (report dated 20 December 1991) recorded his diagnosis as major depression with panic attacks and post traumatic stress disorder secondary to the motor vehicle accident, which were direct results of the plaintiff’s taxi accident on 21 July 1991. He states that the plaintiff did not have any pre-existing conditions prior to the accident. On 20 December 1991 Dr Ravichandran reported to Alan Hughes, Barrister, that “At this time, I expect Karen to possibly start work as a research scientist at Baylor College of Medicine on a part time basis, on April 1 1992. At this time I cannot determine when Karen will resume her normal duties as research scientist, working sixty (60) hours per week, at the university. There is a possibility she will not be able to resume the expected workload of her occupation (as described in her claim form) in the future. According to Dr Ravichandran “the rest of Karen’s working years (30-70 years of age), she will have to maintain full body muscle-ligament strength in order to perform her normal duties as a research scientist. This maintenance would be a 3-4 times a week workout continuing her specialized program which she is involved in presently.” This orthopaedic view is not in accordance with the opinions of the orthopaedic specialists whose evidence I have preferred.

59 On 27 October 1992, Dr Ravichandran wrote to Baylor College of Medicine strongly recommending that the plaintiff be placed on a twelve month sick leave from her post doctoral fellowship as she continued to recover from neurological injuries sustained in the accident. Of significant interest is the report by Dr Ravichandran completed on February 12, 1993. It states that the patient was administered an MMPI-II test. This showed her to have “severe psychopathology”. She was an individual who “may exhibit hysteroid defences”. Dr Ravichandran stated that the plaintiff’s exhibiting of physical complaints “may be psychosomatic in nature”.

60 In his report dated 8 March 2001 Dr Ravichandran states that the plaintiff’s psychological reactions secondary to the motor vehicle accident had impacted her severely and manifested in the form of a condition called post traumatic stress syndrome. These psychological manifestations are real injury and explainable physically and neurologically and not just perceived by the patient and they are serious and have caused permanent damage and disability.

61 On 26 August 1991 the plaintiff saw Dr Forgason at Rosewood Medical Center complaining of depression and neck pain. On 27 August Dr Forgason expressed the diagnosis that the plaintiff suffered from major depression. On 29 August 1991, Dr James Murphy reported that an MRI of the brain was “normal”. As previously stated, on 30 August 1991 John Largen, Clinical Neuro-Psychologist, conducted a neuro-psychological evaluation and found that the plaintiff’s IQ was 101.

62 In February 1992 when the plaintiff was served with divorce papers she went “hysterical” (t 206.15). At the court hearing for the property settlement of the divorce, after Dr Rivera coldly said “No” to the chances of a reconciliation of the marriage, and the plaintiff also said “No”, the plaintiff said that “I felt my soul torn in two when the gavel went down. I cried in front of the judge and all the way out of the court house. It was the worst day of my life.” (t 207.15-207.365). On 22 May 1992 the plaintiff reported herself as being depressed, being the date of her wedding anniversary, and on 27 May 1992 she was reported as having regressed when she became exposed to gossip at a hairdresser where she and her husband frequented. By the second half of 1992, the plaintiff’s psychiatric treatment seems to have been directed towards her failed marriage.

63 From May 1992 until September 1993 the plaintiff was receiving psychological treatment by Dr Patricia Solway mainly for her marriage (B376G). On 17 November 1992 the plaintiff was examined by Dr Yuchofsky, psychiatrist, who diagnosed the plaintiff as having a major depression with obsessive/compulsive and anxious features, and a possible history of panic disorder. No cause of this condition was recorded.

64 The subsequent psychiatric reports are complied six to ten years after the 1991 accident and as such are of limited assistance. In her letter dated 8 December 1997, Dr Huganir, psychologist, stated that the plaintiff suffers from symptoms of anxiety and depression but these are well under control with medication and psychotherapy. She says that the plaintiff “is competent to work closely with others as well as on her own, but work in the lab should be limited to eight hours per day; any additional work (eg, writing) should be completed at home, if possible.”

65 In her letter dated 6 December 1997, Dr Stoline, psychiatrist, states of the plaintiff: “Regarding her ability to work alone and closely with others: she has mood lablity and anxiety symptoms which, at time, make it difficult for her to interact with others. She would be particularly vulnerable to a flare up of these symptoms during periods of high stress, sleep deprivation, or fatigue. Regarding her ability to work protracted and irregular hours: she will perform much more consistently and with better productivity if she maintains a regular sleep-wake cycle and has a work day limited to 8 hours per day, 5 days per week. She will need scheduled time off during the week in order to attend individual psychotherapy sessions and medication management visits.”

66 Dr Rosenblatt, in his report dated 12 March 1998 referred to the question of the relationship between the car accident and her psychiatric problems. He stated “She struck her head several times during the accident, but did not lose consciousness. There does not appear to be any evidence of a permanent injury to her brain, however, the depression demonstrated a subacute onset immediately following the car accident and the patient has no prior history of depression, although there is a family history. It is also possible that the car accident was not the organic cause of her major depression as a result of the head injury, but may have been its cause because of the psychological and social consequences of the pain, job, marital disturbance and reduced capacity for activity brought on by her injuries. It does seem reasonable to conclude that the accident was the cause of her depressive syndrome, but it will probably remain unanswerable as to exactly how this came about.”

67 In his report dated 12 September 2000 Dr Rosenblatt opined that the 1991 accident most likely caused a post head trauma depressive syndrome, which conceivably was brought on not by direct injury to her brain but by the subsequent disruption of her career, health and marriage. On his re-examination on 2 August 2000 he found that in some ways she has been able to get on with her life, however her concentration is still so impaired and her level of anxiety so high that she was not able to hold her job as an NIH fellow. In his report dated 8 March 2001, Dr Rosenblatt noted that the plaintiff has a strong history of depression in one and possibly both parents, which may have predisposed her to develop the same illness herself and she did in fact become severely depressed over the weeks following the 1991 accident. Dr Rosenblatt repeated that he does not believe “that her depression was a coincidence or an over-reaction, but rather a clinical syndrome brought on by either her head injury or the disruption in her life”.

68 Drs Moses, Spodak, Stoline, Dyball and Mellick do not assist the plaintiff’s case. Dr Moses in his report dated 22 April 1991 says that the neuropsychological tests clearly showed a patient with problems totally unrelated to the 21 July 1991 accident. The neurological examination conducted by Dr Acahri was normal. A cervical spine and upper thoracic spine MRI showed a small bulging disc on the left at C6-7 of no clinical significance. There were minor degenerative changes at T1-2.

69 Dr Moses concluded that the plaintiff had sustained no organic neurological or orthopedic injury as a result of the motor vehicle accident of 21 July 1991. He concludes: “It is inconceivable that the multitude of orthopedic, neurological and psychiatric complaints that the plaintiff has had since 21 July 1991 could be the result of a minor head injury (if in fact it actually occurred). It would seem that she had major psychiatric problems and this was simply a minor intercurrent incident which she chose to blame for all of her non-organic symptoms. If she is unable to do her work as a research scientist, it is not because of the 21 July 1991 motor vehicle accident. No further work-up or treatment is indicated neurologically with regard to the 21 July 1991 motor vehicle accident.”

70 In his report dated 4 September 1998 Dr Spodak, psychiatrist, stated that “the clinical information and the psychological assessment suggests that experiences and conflicts which predated the accident of 21 July 1991 were primarily responsible for Dr. Asermely’s emotional state in August 1991”. Dr Spodak formed the view that the plaintiff was “making such an effort to embellish and exaggerate her problems and attribute just about everything in life to the accident from her divorce to her change in religious beliefs, that it is difficult to determine whether there is [sic] any legitimate mental and emotional problems going on that might be causally related to the accident. The nature of the accident, as well as the passage of time, and the numerous intervening events make it unlikely that whatever current emotional problems Dr Asermely has are causally related to the subject accident of 21 July 1991.”

71 Dr Spodak, in his report dated 4 September 1998, opined that the plaintiff was probably fit for her duties as a post doctoral fellow by the end of 1993. It was doubtful that her being unfit to work up to that point was causally related to the accident in 1991. In his opinion, there was no psychiatric condition which rendered the plaintiff unfit to undertake duties as an assistant professor of pharmacology by 1995 based on anything attributable to the 1991 accident. Whether she would be fit to undertake those duties and those of an associate professor in 1999, and a full professor in 2005, may be problematic, but this is based on her personality disorder and not on any condition attributable to the 1991 accident. Dr Spodak considers that the plaintiff’s ability to lead a normal life is not significantly impaired as a result of the injuries sustained in the 1991 accident, and considers her prognosis to be good. Further he opined that 12 to 20 out-patient visits may have been reasonable and necessary for emotional problems caused by the 1991 accident. In-patient psychiatric stays were not necessary. According to Dr Spodak while further treatment is indicated for the plaintiff, it is not causally relation to the 1991 accident (B148).

72 In her report dated 5 March 2001 Dr Stoline stated that her final diagnostic impression of the plaintiff in October 1997 was that of “a mood disorder, non-specific type, as well as Cluster B personality features (the borderline, hysterical, narcissistic group). Factors contributing to her mood disorder included the possible role of head injury in the taxi accident; a possible familial/genetic mood disorder triggered by stress; dysphoria related to personality traits; and simple unhappiness about her life situation.” She notes that indirect factors have played a role in her symptoms and that “while the accident may have made her depressed and anxious, an such injury does not seem sufficient to explain the subsequent course of events.” Regarding her future prognosis Dr Stoline reported that in terms of her psychiatric status, the mood and anxiety symptoms have been successfully treated with medication but will need ongoing monitoring and treatment. She noted that personality traits are stable over time but that regarding her overall life course; her prognosis does not appear favourable since she appears to remain unhappy. As to her capacity to work, during the time of her treatment Dr Stoline stated that the plaintiff was able to do research work with specific accommodations to her working conditions. She did not have the emotional stamina for sustained, intense work and when anxiety, dysphoria or pain were present they presented obstacles in her work relationships and ability to concentrate.

73 The Australian doctors who examined the plaintiff on behalf of the defendants did not view the plaintiff as having suffered a psychiatric disability caused by the 1991 accident but, as previously stated, as the examinations took place long after the accident they are of limited assistance. In his report dated 6 November 2001 Dr Dyball, psychiatrist, in so far as he felt able to make a psychiatric diagnosis based on a one hour session, stated that the plaintiff had suffered a major depression which he thought had substantially resolved but she was left a moody person with rapidly changing moods and with panic attacks. He considered it very hard to believe that personality factors are not relevant. Also he considered it very difficult to tell at this time distance whether the motor vehicle accident precipitated the depression. He noted that there were marital problems and her marriage ended with her admission to hospital. He also referred to her being date raped, the existence of conflict in the family home, her father’s gambling and suicide attempt, verbal, emotional and mental abuse around the age of eight, and counselling for exam anxiety and marital problems. Dr Dyball describes her listed IQ as “staggeringly low for someone who has completed university studies”. He concluded by saying “I think her psychiatric status in itself would be sufficient to explain her somewhat extensive physical complaints” and further notes with support, the report of a treating psychiatrist of the plaintiff’s which refers to her place as a litigant as distinct from someone with a problem to solve.

74 In his report dated 9 November 2001, Dr Mellick, consultant neurologist, opines that it is unlikely that the motor accident in 1991 resulted in any serious intracranial, spinal or neural injury. That improbability rests, he says, on the history that she was assessed at the Prince of Wales Hospital after the accident, retained there for some hours and not admitted. He also noted that she was given permission medically to return to the United States, and the taxi in which she traveled was able to continue its journey to take her to the airport and there was no ambulance called nor was there any need for first aid. He stated that the head injury recounted by the plaintiff must be regarded as having been a minor event, it not having been associated with unconsciousness, amnesia or any local soft tissue laceration. It was his opinion that “any thought disorder which occurred subsequent to the accident cannot accordingly be explained as a result of any neurological abnormality or brain injury determined by this accident.” He was not able to identify any neurological abnormality which is likely to result in intellectual or cognitive dysfunction.

75 The plaintiff has to establish that the conditions from which she suffers are caused or materially contributed to by the defendant’s conduct – not that it might have been so caused: Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720; 10 ALR 303.

76 As the plaintiff’s evidence is unreliable, it is difficult to assess damages. I have taken the plaintiff’s evidence into account with that of the other lay witnesses, namely the plaintiff’s former and current husbands. The plaintiff experienced conflict with her parents and her husband prior to the accident. Eighteen months prior to the accident the plaintiff and her husband had attended counselling. When the plaintiff arrived back in the United States from Australia she first contacted a priest and together with her husband underwent counselling with a counselor of the Catholic Church before being referred to a medical practitioner. This suggests that upon her return to the United States, uppermost in her mind at that time was the state of her marriage. The plaintiff’s first husband Dr Rivera stated that after the accident and up until their separation (19 October 1991) whenever he saw her she complained of pain in her neck and she became depressed and anxious. By the time that the plaintiff was discharged from Rosewood in September, he says that the relationship was very unhappy. The tensions at home were unbearable and the plaintiff continually complained of physical pain and depression. Arguments were frequent and she resented the hours he spent at work. When giving evidence in this court the plaintiff was highly critical of Dr Jose Rivera’s bedside manner. I accept his evidence that from the date of the accident up to October 1991 the plaintiff complained of being depressed and of physical pain.

77 The plaintiff’s current husband, Dr Aboulsaud Fattouh (an engineer and holds a PhD in economics) provided a statement. He met the plaintiff in October 1998, seven years after the 1991 accident. He reports that the plaintiff’s complaint of neck pain is not constant. It flares up 2-3 times per week and lasts several hours. This is in contrast with the plaintiff’s evidence as she says she never has any pain free days as far as her neck is concerned (t 65.24). In relation to her general depression and psychological states, they manifest themselves depending on two main stressors, financial commitments and length, severity and frequency of neck pain. She can have two to three weeks without depression and the consequent panic attacks. He says that if she works more than six hours continuously she experiences neck pain. Dr Fattouh makes no reference to back pain. I take this evidence into account.

78 In relation to the plaintiff’s neck injuries I prefer and accept the views of Drs Murphy and Achari and Assistant Professor Lindsey, which is that as a result of the 1991 car accident the plaintiff had a whiplash injury. Their investigations showed no abnormality other than a slight bulge at C6-7. This view is consistent with the facts that neither the taxi driver nor the plaintiff’s husband (who was also a passenger in the back seat of the taxi) suffered any injuries. No ambulance was called. The doctor in casualty at Prince of Wales Hospital on the day of the accident examined the plaintiff and decided that she was fit to fly home to the United States the next day.

79 The plaintiff’s own evidence is that it was her back and legs that were injured in the Texan accident but not her neck, and that she was hospitalised on 23 September 1994 because of suicidal thoughts and a psychotic event which was related to hating herself because she did not have a career after the accident on 4 June 1993 (t B379G). I accept that the plaintiff suffered neck pain which was caused by the 1991 accident. I also accept that the plaintiff suffered major depression and that the 1991 car accident materially contributed to this condition. There were other contributing factors to her psychiatric condition such as the marriage breakdown and the relationship with her family of origin. In the second half of 1992, the plaintiff’s psychiatric treatment was primarily focused on the breakdown of her marriage. I find that by May (end of US Spring) of 1993 at the latest the plaintiff’s neck symptoms and her psychiatric condition caused by the 1991 motor vehicle accident had largely resolved themselves. I acknowledge that this does not fully accord with Dr Ravichandran’s view but with respect he was not called upon to evaluate the inconsistencies in the plaintiff’s evidence. He accepted the history and complaints that the plaintiff made as being correct. However in this court the plaintiff did not seek to give frank and truthful evidence. Dr Ravichandran recorded that at discharge in September 1991 the plaintiff showed about 40-50% recovery. The plaintiff did attempt to return to work in October 1992 but had difficulties. She said that she had constant pain which was aggravated by using a pipette up to eye level. I do not know whether she attempted work for one day, two days or less than 10 days as the plaintiff has given differing accounts. She says she had headaches and could not concentrate, yet in the Texan proceedings she denied having suffered headaches prior to the 1993 accident. In the Texan proceedings the plaintiff said that she could have attempted to return to work in May (end of US Spring) of 1993 had the second accident not occurred. Doing the best I can I accept that the plaintiff would have been able to return to work by May (end of US Spring) 1993. The plaintiff’s ability to lead a normal life was impaired from July 1991 to May 1993.

80 I have taken into account that this accident had a significant effect on the plaintiff’s lifestyle and her career. The 1991 motor vehicle accident cause her career to stall until 1993. In 1993 the plaintiff had a further motor vehicle accident in which she suffered back pain. By 1995 she had resumed her career at the point she left it in 1991.

81 At the time of the accident the plaintiff spent the majority of her time working and had limited time for leisurely pursuits. I accept that for a while after the 1991 accident the plaintiff was unable to involve herself in sporting activities nor was she able to play the clarinet. She now participates in sporting activities such as going to the gym three times per week and playing basketball.

82 Taking the above into account, I assess the plaintiff’s non economic loss at 32% of a most extreme case, which equates to AUS$94,720.00. (This is calculated on the maximum amount of 100% being AUS$296,000.00: 32% x 296,000.00 = AUS$94,720.00, – see s79 MAA).

83 The defendant submitted that the maximum sum which should be allowed for past hospital and medical expenses should be an amount appropriate for short term orthopaedic treatment up until October 1991. This amount would fully cover the extent of any necessary treatment which may have been required by the consequences of her 1991 injury. The defendant also submitted that the 1993 accident is a supervening cause which prevents the plaintiff from being awarded damages for economic loss or for hospital and medical treatment after that date.

84 From 1991 until 1995, the plaintiff was a member of a health insurance scheme conducted by First Health Incorp (formerly Alta Health Strategies Inc) of Houston, Texas. Pursuant to that scheme the heath insurer has paid US$195,003.74 (AUS$300,005.75) in respect of hospital and medical expenses. The health insurer has a right of subrogation pursuant to the policy and accordingly the plaintiff claims the sum of US$195,003.74 (AUS$300,005.75). For this period the plaintiff has also sought reimbursement of further medical and hospital expenses amounting to approximately $132,000.00.

85 From 1995 until 1996 the plaintiff was a member of a health insurance scheme conducted by Metropolitan Life, and from 1996 until 1997 she was a member of a health insurance scheme conducted by New York Life. She claims that the amount of US$32,678.63 as the health insurer has the right of subrogation. Pursuant to that scheme, the health insurer has paid US$1,080.00 (AUS$1,661.54) in respect of hospital and medical expenses and incurred an additional US$5,588.50 (AUS$8,597.69) in respect of these hospital and medical expenses. The plaintiff submitted that although she has not made any payments on this amount, the relevant health care providers may seek to recover these sums from her. There is no evidence that the amounts are in fact repayable, so I disallow this amount.

86 From 1996 until 1997 the plaintiff was a member of a health insurance scheme conducted by New York Life. Pursuant to that scheme the health insurer has paid US$21,221.61 (AUS$32,648.63) in respect of hospital and medical expenses. The health insurer has the right of subrogation pursuant to the policy and accordingly the plaintiff claims the sum of US$21,221.61 (AUS$32,648.63).

87 The defendant submitted that the plaintiff’s treatment was excessive, unnecessary and going beyond what was “reasonable” and necessary treatment, which is “properly verified”, and related to the 1991 accident (s 45(2A) MAA); and that the plaintiff’s treatment to a significant extent was related to her psychiatric condition, which resulted from other causes, particularly her family and matrimonial situation. The defendant submitted that the maximum sum, which should be allowed for past hospital and medical expenses, should be an amount appropriate for short term orthopaedic treatment up until October 1991. This amount would fully cover the extent of any necessary treatment which may have been required by the consequences of her 1991 injury. However it is contended that even in relation to this treatment one is dependent upon the plaintiff’s credibility, which is so damaged it is unsafe to rely upon any of her contentions as to her past disability or the need for hospital or medical treatment, or the reasons for that hospital and medical treatment.

88 According to the defendant, the unpaid medical expenses would no longer be payable, by reason of the plaintiff’s discharge from bankruptcy. Any claim for reimbursement of any medical expenses paid by the various funds would no doubt be resisted by the plaintiff on the basis that such payments are not refundable. Similar claims have been successfully resisted: Reynolds Metals Co v Ellis 202 F 3d 1246 (2000); FMC Medical Plan v Owens 122 F 3d 1258, 1262 (1997); Cement Masons Health and Welfare Trust Fund for Northern California v Stone 197 F 3d 1003, 1008 (1999). Further, if the plaintiff was not fully compensated by the third party, the “make-whole” rule prevents the employer or fund from recouping any of the benefits it paid: Hiney Printing v Brantner 75 F Supp 2d 761 (1999); Westendorf v Stasson 330 NW 2d 699, 703 (1983).

89 The amount claimed for medical treatment is excessive. There is not sufficient information to enable the court to determine what treatment such payments related to, and in particular whether they relate to the 1991 accident or the 1993 accident or some other cause. I would have allowed for physiotherapy and some psychiatric treatments, the costs of the reports and some review visits of Assistant Professor Lindsey, Drs Achari and Murphy had these expenses been repayable. The plaintiff has admitted that she was declared bankrupt under Chapter VII of the United States Bankruptcy Code, on all medical bills that she had as a direct result of the 21 July 1991 accident. However in 1999, the plaintiff’s estate was fully administered and the Chapter 7 case was closed (Ex E; B74). Hence, the amounts the plaintiff expended on medical treatment are no longer outstanding. It is my view the defendant should not be held responsible to reimburse the medical providers, as there is no evidence to suggest these amounts are repayable.

90 It is my view that the plaintiff’s injuries and disabilities from the 1991 accident have resolved. It is not reasonable to allow any amount for future medical expenses.

91 The plaintiff does not make a claim for past or future domestic care and assistance (t 1.40).

92 The plaintiff’s evidence was that her ultimate ambition was that she hoped to become a full professor in a faculty in a medical school, like Drs O’Neill and O’Malley. She hoped to become an Assistant Professor faculty member and after that she hoped then to become a full Professor (t 17.25-17.50). The plaintiff submitted that had the 1991 accident not occurred she would have completed the three year postdoctoral fellowship in 1994 and earned US$20,000.00 per annum, and that between 1991 to 1999, but for the accident, she would have become an assistant professor and earned US$971.05.00 per week x 52 x 5 years = US$252,473.00. Between 2000 and 2005, but for the accident, she would have become an associate professor and earned US$1,534.46 per week x 52 x 5 years = US$398,959.00, and ultimately by 2006 she would have become a full professor and earned, US$2,192.31 x 52 x 26 = US$2,964,003.00. She would have retired in 2032. Due to the accident the plaintiff claims that she has an earning capacity as a tutor earning US$400.00 per week = US$20,800.00 for 30 years. The defendant submitted that any economic consequences of the accident ceased by October 1991 and as she received her fellowship stipend to October 1991 there can be no compensable economic loss.

93 On 28 June 1991, the plaintiff commenced employment at the Baylor College of Medicine, Houston, Texas as a Post Doctoral Fellow in the Department of Cell Biology. The terms of the plaintiff’s contract were employment for a period of three years to June 1994 at a commencing salary of US$21,000.00 per annum (AUS$32,267.98). The plaintiff received a salary of US$7,741.50 (AUS$11,910.00) for the period 28 June 1991 to 31 December 1991.

94 In 1993 the plaintiff was declared bankrupt. In the 1995 Texas proceedings the plaintiff stated that aside from the one week when she tried to return to her job at Baylor she had no income (except the medical disability policy). The plaintiff said that she could not do the work because of the emotional problems and the sharp pains in her upper neck, shoulders and hands yet as previously mentioned she told the Texan Employment Commission that she was attempting to return to work in Spring (US) of 1993, but the Texan accident prevented that occurring. She had in fact worked in 1994. The plaintiff was not candid when giving evidence concerning her employment. The plaintiff said that she was totally disabled and unable to work in 1993 and 1994 and then found some work in 1995 (t 105.56-106.05). When confronted with the work done for Mr Dampier the plaintiff said that she “actually had forgotten about that”, that she did not have any receipts for payment and “No, I was not paid” (t 106.15-106.30).

95 When cross-examined about the work done for Mr Dampier, the plaintiff appeared unwilling to acknowledge her signature (t 107.40). The plaintiff said that she did not tell any of the doctors or lawyers about this work for Mr Dampier (t 107.45). She later qualified this to say that she was pretty sure she did tell Dr Ravichandran about the 3 months work she did for Dampier & Watson, because they talked about it (t 107.45-107.55). She then strengthened her answer to say that she told Dr Ravichandran and her physical therapist about the fact that she did those 3 months work (t 108.10). When asked whether she told anyone else she said “It was only minor, I didn’t even finish the work” and then said “I probably told my solicitor but I don’t recall” (t 108.15).

96 When she was later asked about whether she made any mention of these earnings from Mr Dampier to lawyers involved with her 1993 accident, she said that she did not disclose this period of 3 months earnings “Because the question asks if I made income, on page 49. That is why it wasn’t mentioned” (t 137.22). She was then pressed on this answer and it was put to her that she “did receive income, didn’t you, from Mr Dampier for that work between 1 August 1994 and 27 October 1994, didn’t you?” and she answered “I don’t recall finishing work or being paid anything” and then when asked the question “Do you say you were paid by Mr Dampier?” she said “I don’t remember being paid, that is what I mentioned earlier” (t 137.10-137.31). Upon being asked further on this subject matter she contended that she was not paid money for work done (t 137.45). She then said “I don’t recall being paid any money by Mr Dampier”(t 137.45). She was then asked what city does Mr Dampier work in. She said he wasn’t an Attorney (t 137.55). Upon being asked then “Mr Dampier, the Attorney in the Norplant litigation for whom you worked for 3 months, what city in Texas did he work in?” she answered “I don’t know”. She continued to repeat this answer and then said she did not know whether Mr Dampier carried on his practice in Harris County (where Houston is) or somewhere else. She replied “I don’t know. I don’t even know what county the law suit was in.” (t 137.60-138.20).

97 Later when confronted with the documentation from Dampier & Watson and her own invoice (t 163-164) she conceded that she sent accounts to Mr Dampier and was paid by Mr Dampier for that work. Later when the plaintiff was shown a letter dated 3 April 1994, she remembered that Mr Dampier was located in Texas and she finally admitted that she had been paid a retainer of US$500.00.

98 The true situation is that on 3 August 1994 the plaintiff agreed with Mr Harold Dampier, Attorney of Houston, to perform research into Norplant in relation to litigation involving this drug. Mr Dampier forwarded to her a retainer of $500.00 (B497K, 498G). In September 1994 a further payment of $500.00 was made from Mr Dampier to the plaintiff (B498L). In September 1994 the plaintiff billed Mr Dampier for an additional $184.20 for work done (B498V). The plaintiff worked for Mr Dampier (of Dampier & Watson, Attorneys) from 1 August 1994 to 27 October 1994 (B191E). The work done by the plaintiff involved reading articles, taking notes, library research, verbal reports on the telephone and writing an interim report, using her own computer and working from her home.

99 In 1993 the plaintiff was involved in a second motor vehicle accident in which her car was totalled. She suffered injuries to her low back. In the Texan proceedings she asked the jury that the defendant in those proceedings pay her loss of wages from 1993 to 1995 because of the injuries suffered in that accident. In 1993 the plaintiff was declared bankrupt. She moved home with her parents at Rhode Island. In December 1994 the plaintiff’s disability insurance payments ceased. From 10 February to 9 March 1995 the plaintiff obtained casual work as a secretary for Interim Personal in Rhode Island. This involved temporary typing work earning a minimal wage (US$5 per hour) for 30 hours per week. From 10 March to 25 May 1995 the plaintiff was employed as a secretary for Tac Staffing Services. This was a part-time job where the plaintiff worked 30 hours per week. The plaintiff said she hated typing as it was “very demeaning”. From 22 May 1995 until November 1997 the plaintiff was employed by the National Research Council, which is a subdivision of the Academy of Science in Maryland. She was employed as a post doctoral fellow doing medical research on the nervous system. Her supervisor was Brennie Hackley (B 265). She was earning US$30,000 per annum. This post doctoral fellowship was equally as prestigious as the Baylor one. The plaintiff admitted that she was productive. Ordinarily, she would have expected to have worked sixty hours per week. In November 1997, her employment was terminated. No explanation by her employer for her employment being terminated has been provided, although the plaintiff says that Dr Elder wanted her moved due to “poor performance”. On 1 October 1998 to April 1999 she was then a staff fellow employed doing pharmacology research on multiple sclerosis at the National Institute of Health in the laboratory of Dr Lynne Hudson. The plaintiff took proceedings in the EEOC against NIH. As a result of the settlement of these proceedings the plaintiff returned to her PRAT scholarship on a salary of $33,000.00 but it was made clear to her that there would be no job after 6 March 2002.

100 It is my view that between July 1991 and May 1993 the plaintiff was unfit for work mainly due to her psychiatric and to a lesser extent her neck injuries sustained in the July 1991 car accident. The plaintiff’s employer paid her wages until October 1991 (t 101.5). Past economic loss is calculated from October 1991 to May 1993, ie 19 months at US$19,000.00 per annum (AUS$24,656.00 buying rate as at July 1991 was US$0.7706) = AUS$39,039.00, less US$684.00 (AUS$888.00) that the plaintiff earned for work done for Mr Dampier = AUS$38,151.00. Past economic loss equates to AUS$38,151.00. It is my view that the plaintiff was fit for fulltime work by May 1993. Hence I do not make any allowances for future economic loss. For the reasons given earlier I assess the plaintiff’s non economic loss pursuant to s 79 MAA at AUS$94,720.00. Damages are assessed at AUS$94,720.00 plus AUS$38,151.00 which totals AUS$132,871.00.

101 I enter a verdict and judgment in favour of the plaintiff in the sum of AUS$132,871.00. Costs are reserved.

102 The orders I make are:

(1) The defendant is to pay the plaintiff the sum of AUS$132,871.00 for damages.

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Last Modified: 09/26/2002

CITATION:	Fattouh v Neffati [2002] NSWSC 860
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 14856/92
HEARING DATE(S):	12, 13, 14, 15 & 16 November 2001 18 February 2002 9 April 2002 4 June 2002 6 August 2002
JUDGMENT DATE:	20 September 2002
PARTIES :	Karen Asermely-Rivera (now Fattouh) (Plaintiff) Moncef Neffati (Defendant)
JUDGMENT OF:	Master Harrison

COUNSEL :	12-16 November 2001 Mr K P Rewell SC with Ms A R Beardow (Plaintiff) 12-16 November 2001; 18 February 2002; 9 April 2002; 4 June 2002 & 6 August 2002 Mr B J Gross QC with Mr G Bateman (Defendant)
SOLICITORS:	12-16 November 2001 Mr T Barakat of Keddies (Plaintiff) 18 February 2002 & 9 April 2002 Mr T J Goudkamp of Stacks - The Law Firm (Plaintiff) 4 June 2002 & 6 August 2002 Karen Fattouh (Plaintiff in person via telephone link to USA) 12-16 November 2001; 18 February 2002; 9 April 2002; 4 June 2002 & 6 August 2002 Mr N J Delfendahl of Stewart Cuddy & Mockler (Defendant)
CATCHWORDS:	Personal injury - motor vehicle accident - assessment - Background - Pre-accident employment - The accident - Damages - Non economic loss - Subsequent motor vehicle accidents - Second motor vehicle accident - Texas accident - Third motor vehicle accident - Fourth motor accident - Medical reports - orthopaedic - psychiatric - Past and future medical expenses - Domestic care - Economic loss - Past economic loss
LEGISLATION CITED:	Motor accidents Act 1988 - s 45(2A); s 79
CASES CITED:	Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720; 10 ALR 303 Reynolds Metals Co v Ellis 202 F 3d 1246 (2000) FMC Medical Plan v Owens 122 F 3d 1258, 1262 (1997) Cement Masons Health and Welfare Trust Fund for Northern California v Stone 197 F 3d 1003, 1008 (1999) Hiney Printing v Brantner 75 F Supp 2d 761 (1999) Westendorf v Stasson 330 NW 2d 699, 703 (1983)
DECISION:	(1) The defendant is to pay the plaintiff the sum of AUS$132,871.00 for damages; (2) Costs are reserved.