Freeman v PAROLO
[2011] WADC 18
•11 FEBRUARY 2011
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: FREEMAN -v- PAROLO [2011] WADC 18
CORAM: FENBURY DCJ
HEARD: 22-26 NOVEMBER 2010
DELIVERED : 11 FEBRUARY 2011
FILE NO/S: CIV 748 of 2009
BETWEEN: JANENE LISA FREEMAN
Plaintiff
AND
LEANNE JULIE PAROLO
Defendant
Catchwords:
Negligence - Damages - Assessment of damages for personal injuries - Soft tissue injuries to cervical and lumbar spine - Turns on own facts
Legislation:
Nil
Result:
Damages assessed at $3,220
Representation:
Counsel:
Plaintiff: Mr G M G McIntyre SC
Defendant: Ms B Mangan
Solicitors:
Plaintiff: Paul O'Halloran & Associates
Defendant: Brian C Sierakowski
Case(s) referred to in judgment(s):
Sterndale v Laurie [2010] WASCA 79
FENBURY DCJ: The plaintiff, Ms Janene Freeman, was born on 20 July 1976. She was injured in a motor vehicle accident on 30 August 2006 when she was 30 years of age. Few details were provided about the circumstances of the accident, however liability has been admitted on behalf of the defendant. The collision occurred at an intersection. Ms Freeman was driving in a westerly direction. Ms Parolo, the defendant, was driving in a southerly direction and she drove her vehicle into the front right hand corner of Ms Freeman's vehicle.
The claim
Ms Freeman was unable to remember much about the accident. She recalled getting out of the car. She did not remember any pain at that time. She went to work. She attended upon her general practitioner. She remembered having some pain during the evening.
In her initial medical report, dated 6 February 2007, exhibit 9.1, Dr Craft, Ms Freeman's treating GP, reported having seen Ms Freeman on 30 August 2006 and recording a complaint of soreness in the cervical and lumbar spine and tenderness under the seatbelt area. On examination, Dr Craft confirmed 'a typical whiplash injury' and referred Ms Freeman for physiotherapy and anti‑inflammatory and muscle relaxant medication.
Dr Craft stated:
Although Janene's symptoms have improved considerably, she continues to suffer twinges of neck and low back pain on a daily basis, particularly exacerbated by getting in/out of a car and by reaching with her arms. She also suffers headaches from time to time.
Dr Craft who had seen Ms Freeman on other occasions in the interim, goes on to say that her findings were consistent with the history and she mentions the absence of any pre‑existing injuries. She observes that Ms Freeman 'has continued to work and has required no certified time off' and that she is therefore 'not a candidate for vocational rehabilitation'.
At that date, which was five months following the accident, Dr Craft's opinion was that Ms Freeman was 'recovering from a typical whiplash injury and is unlikely to suffer any permanent disability'.
Somehow, from this fairly modestly described accident and injury history Ms Freeman's case grew to a claim alleging seven separate injuries (statement of claim, par 4(a) to (g) inclusive), 43 separate particulars of residual disabilities, pain and suffering, loss of enjoyment of life and loss of amenities (par 6(a) to (qq)) culminating in particulars of damage totalling in excess of $800,000!.
Apparently the claim has grown because of the nature and extent of Ms Freeman's pre‑accident physical, psychological and psychiatric issues, and the alleged effect that accident caused residual disability in the form of alleged pain has had upon those issues, and her life, in the period since the accident.
There is no dispute Ms Freeman had the accident and suffered some soft tissue injury. What is asserted for the defendant is that she was not seriously injured and does not suffer any significant disability as a result of the accident; and that any disability she has is caused by other factors. Furthermore, it is put that Ms Freeman's claim does not exceed either the threshold of $17,000 for non‑economic loss or $6,000 for services.
Given the ambit of Ms Freeman's claim as apparent at the beginning of the trial (it has became more modest by the conclusion) compared with the initial assessments of the seriousness of the accident and her 'typical whiplash injuries' it is useful, if not essential, to start with a review of her physical and mental health history and personality prior to 30 August 2006, the accident date.
A chronology and reference summary of Ms Freeman's evidence in the case was prepared and handed up, without objection, by defence counsel. It contains multiple transcript and exhibit references. I have checked the transcript references and am generally content those references are accurate and accurately summarised in the relevant notations on the document. The chronology usefully places the occurrences of the accident in the context and setting of Ms Freeman's personal life and history.
Of course the chronology focuses on those aspects relating to Ms Freeman's mental and physical health, educational and occupational durabilities and other aspects the defendant asserts suggest Ms Freeman's claimed residual disabilities were pre-existing. Nevertheless, I find the chronology to be a useful aid and partial evidence summary.
Prior to the accident
Ms Freeman is now 34 years old. She was 30 at the date of the accident on 30 August 2006. She left school at the end of year 12 in 1993 and moved out of home in 1994.
Ms Freeman agreed with a psychologist's description of her as being of above average intelligence and having significant creative talent. Her intelligence was certainly apparent in her evidence. In spite of it, however, Ms Freeman did not obtain any tertiary qualifications. She did however attempt to do so on a number of occasions.
In 1996 she commenced but did not complete a course for a certificate in photography at TAFE. In 1997 – 1999 she commenced but failed to complete a certificate in hospitality at TAFE. In 2000 she apparently obtained a certificate in Real Estate Sales from TAFE but did not pursue the business of selling because she did not find it financially viable. She said she lacked the essential network of friends and contacts to generate business.
It appears that Ms Freeman decided to enter the workforce, unqualified, for whatever employment she could obtain. She had periods of working as a waitress in 1997 and 1999, she attempted working as a sales representative, as I have mentioned, for about two years. She worked as a sales assistant for a company called Photo Hendriks. She ceased that employment because, apparently, her request for a pay rise was refused. She worked there between March 2002 and January 2004.
Following her employment at Photo Hendriks Ms Freeman commenced as a sales assistant for Zu products, being a pet shop in Claremont, in January 2004, where she stayed until March 2005. She left because of a difference of opinion with her employer.
In March 2005 until May she was a sales assistant with Harvey Norman. Again she left because of a problem she had with management.
In June 2005 she worked for Dewsons as a shelf-filler. Later, between July and October 2005 she worked for a company called House, in Midland Gate. Then she briefly worked for Caltex as a console operator.
At about this time Ms Freeman attended a training course to become an Australia Post manager. She found the training frustrating and at the end of 2005, following suggestions from her mother, and agreement between them, Ms Freeman commenced employment in a business her mother acquired at the Herne Hill Village Lottery Centre.
The picture that emerged in Ms Freeman's account of her various positions, some of them short termed, prior to commencing this business with her mother, is that she regularly had conflict with her employers that resulted in termination or departure from the employment for one reason or another. This indicates that she had significant ability to obtain employment, but less ability to maintain it.
A significant feature, that emerges is the extent of her suffering of periods of depression. Ms Freeman indicated that she suffered depression over a period of about eight years prior to the accident. As can be seen from the chronology, she was certified unfit to work due to depression on a large number of occasions between 1999 and the end of 2001. For example she appears to have been unfit for work due to depression from about the beginning of April 1999 continuously until August 2000.
Apart from depression Ms Freeman also seemed to have other health problems that resulting in her seeking assistance from the City Mental Health Service in 1998. She received counselling and prescription for medication including antidepressants.
Ms Freeman agreed with defence counsel that her problems at this time were that she was 'feeling chronically unhappy and unfulfilled, experiencing loneliness, anxiety problems but some physical symptoms, low self confidence, experiencing general feelings of anger, low level of tolerance, low levels of energy and motivation and some financial stressors'.
Ms Freeman appeared to agree, perhaps tacitly, that the description of her psychological problems at this stage are very similar to the problems she has pleaded in her statement of claim as being accident caused and particularly at par 6 (q)(i) – (xi).
Ms Freeman maintained however, that although she had suffered depression over the eight years above mentioned prior to June 2005, she had not suffered from depression for about two and half years. There is no evidence of Ms Freeman being certified as unfit to work due to depression after the end of 2001. As I have mentioned she regularly sought and obtained employment but appeared unable to maintain that employment often because of having problems with her employer.
Although it appears Ms Freeman was not treated for depression she spoke of periods of significant stress and frustration in the year or two prior to the accident. As I mentioned she commenced employment at the Herne Hill Village Lottery Centre, which in effect was a newsagency sought of shop, on 18 December 2005. She apparently worked for 60 hours a week. She worked with her mother with whom she alternated days in the shop so that each could take about two and half days off per week.
There is no doubt that the Ms Freeman worked very hard and for long hours when she started with the Herne Hill Village Lottery Centre shop. She had clashes with her mother with whom she differed on 'how to run the place'. She felt her mother did not respect what she knew in the retail industry and the fact that she had more knowledge than her mother in that industry and, as she put it, 'we did struggle with that boundary' (ts 59).
This workplace situation endured and by May 2006 Ms Freeman consulted her general practitioner for assistance because of her levels of stress and anger in the workplace. From Dr Craft's note at the time she described Ms Freeman as '…very very stressed. Gets angry. Has done course but needs to learn to deal with it. Don't take it out on anyone there'.
Ms Freeman suffered a problem with jaw clenching at this time. Dr Craft referred her to a psychologist. She was described Diazepam.
In mid 2006 Ms Freeman decided to go to China. She was interested in adopting a child from that country.
It seems to me that it can fairly be said of Ms Freeman that, prior to accident, she had had significant difficulties with depression over a lengthy period of time up until 2003 requiring much time off work. She had some ability to obtain employment, and indeed to obtain entry to various courses to further her education, but a pattern of not being able to maintain either employment or attendance at courses had appeared. She had issues with other people in the workplace and differences with her employers that were such that, in many cases, resulted in her leaving the employment.
Mr Freeman came across in her evidence as somebody who had firm views, and a strident sort of style in expressing them. Her employment history appeared to be pretty consistent with that feature of her personality.
However, the venture with her mother in the Herne Hill Village Lottery Centre business at the end of 2005 was something in which she appeared to find fulfilment. She worked hard. She had clashes with her mother and with other staff and there were periods when she became very very stressed, but she stayed at this workplace. Prior to the accident she had been in the same employment situation for eight months.
The accident
I have already referred to the occurrence of the accident and the minor soft tissue injuries Ms Freeman suffered. In the early days she received conservative treatment from her general practitioner Dr Craft who referred her for physio therapy.
In her first medical report dated 6 February 2007, five months after the accident, Dr Craft is upbeat and optimistic about Ms Freeman's presentation and prognosis.
In the early days there was some optimism about Ms Freeman's prospects. She was not depressed at the end of 2006. Ms Freeman was very busy with the shop and involved herself in a re-fit toward the end of that year. In addition to working fulltime this was an extremely busy time for Ms Freeman and it appears that her symptoms were improving.
She went away for the long weekend in November 2006, down south, taking photographs. In December she had another medical examination for the purposes of adoption and she made no mention at that stage of symptoms of whiplash. In February 2007 Dr Craft's view was that Ms Freeman's symptoms had improved.
In April 2007 Ms Freeman was engaged in home renovations as well as holding down her busy job at the shop. She put her Pilates sessions on hold during this period. She worked extremely hard. In April 2007 until 11 May, as she travelled overseas to Bhutan, Kathmandu, Bangkok and China, and she took photographs while she was away for commercial purposes. She had her first consultation with Dr Dare, following her return, on 21 May 2007. He was an occupational medicine specialist engaged by the defendant's insurer.
Ms Freeman continued working fulltime at the shop towards the end of 2007 however her evidence was that her hours began to be reduced at work because of back pain.
On 19 December 2007 a shallow disc protrusion at L5/S1 was discovered. The opinion of Mr Brian Stokes, the neurosurgeon, was that the disc protrusion was pre-existing.
Ms Freeman appears to have commenced having some mental health issues at about this time. She suffered an injury at work in April 2008. In May she apparently deliberately scalded her left hand. She was having a lot of difficulty communicating with other staff at the shop and with her mother. This apparently had been building up over time.
With the rise in tension and workplace problems Ms Freeman's misery increased. Her mental state was such that her general practitioner devised a mental health plan and referred Ms Freeman to Dr Fitch the psychiatrist. Ms Freeman had her first consultation on 18 September 2008. Earlier in 2008 Ms Freeman had enrolled at TAFE seeking a Certificate IV in business. She passed two units. Later in 2008 Ms Freeman's mother ceased working at the shop and at the end of 2008 Ms Freeman suffered the grave disappointment of having her application for adoption of a Chinese baby refused. Ms Freeman said this was 'kind of like a miscarriage'. She requested a referral to the fertility clinic at KEMH in January 2009.
Ms Freeman had her first consultation with Professor Harper in January 2009. She shortly thereafter travelled to Singapore for brief personal reasons. She continued to have difficulties with her mother who stopped helping her in June.
It is apparent for about 12 months prior to July 2009 Ms Freeman's ability to work in the shop gravely deteriorated. She was having problems with her management skills, she was described as far too confrontational and she was difficult to get along with. Things came to such a pass that her mother terminated Ms Freeman's employment as the postal agency manager in July 2009. This event quite devastated Ms Freeman.
Following the loss of her employment with the shop Ms Freeman seems to have wasted little time in busying herself with her other interests. Apart from having an interest in photography, and taking photographs for sale, Ms Freeman had some skills in design and making of jewellery, cushion covers, crochet work and the like. On 2 October 2009 she attended the Kalamunda markets and exhibited her wears. She attended the Bindoon Agricultural Show on 17 October and the Guildford Heritage Markets on 18 October 2009. Ms Freeman was selling her jewellery and cushion covers and crochet work at the Guildford heritage markets. On 25 October she attended the Zig Zag Festival at Kalamunda to visit. On 31 October she attended vintage markets run by a Ms Johnson. She had a stall at the Midland car markets carpark sale on 1 November 2009.
Throughout October/November 2009 it seems to me that Ms Freeman busied herself with her handicraft interests and exhibiting and operating a stall at various agricultural shows in the state. She also sought the assistance of the Commonwealth Rehabilitation service. In due course she sought to be admitted to the New Enterprise Initiative Scheme. She sought retail outlets for her jewellery in Fremantle and Guildford.
On 9 December Ms Freeman had her first consultation with Professor David Watson.
Apart from the activities above described Ms Freeman also took a number of journeys by motor vehicle during this time. On 23 December 2009 she drove to Kambalda to see her sister, staying four days and then drove back on 27th. On 28 December she drove to Waroona where she was babysitting a friend's children. Those children were aged 4 and 2 years. She remained there for some three or four days then drove back to Perth from Waroona on 1 January returning again to Waroona on the same day. She drove back to Perth on 8 January.
On 5 January Ms Freeman registered a business name Dragon Flies and Lilies.
She had a significant unrelated health problem on February 2010 which put her out of action for quite a period of time. Her difficulties related to a kidney infection and she was quite sick and weak for a few months.
In April 2010 Ms Freeman drove to Esperance with her sister. Later that month she went on a photo shoot at Serpentine Dam and again attended to her market business at Guildford, Voyager Estate in Margaret River, and Guildford again.
Ms Freeman sought employment elsewhere. On 17 May 2010 she obtained a work experience opportunity at Goodwill Engineering where she attended on a number of days until the middle of June. Sometime around 18th she rejected an offer of fulltime work to fill in for another employee who had taken annual leave.
On 16 May 2010 she ran a stall at the Guildford Heritage markets and was observed setting up and operating a stall at that market recorded on DVD.
On 20 June, Ms Freeman was again observed at the Guildford Heritage markets setting up and operating her stall and this was again recorded on a DVD.
On 6 July 2010 Ms Freeman was assessed by Dr Martin Flahive on behalf of the defendant's insurer.
On 27 August Mr Freeman travelled to Balingup Medieval Carnival and then Boyanup on 28 and 29 of August. She was again at the Guildford Heritage Markets in September and then later in October and November she ran a store at Zig Zag Festival Kalamunda and the Darlington Art Festival.
Ms Freeman was observed and surveilled, as I have indicated between 9 and 11 months following the termination of her employment at the shop by her mother in July 2009.
The surveillance DVD's were made available to and seen by all of the medical practitioners that have treated or reviewed Ms Freeman.
The reaction of the medical experts was varied on seeing the DVD's. Dr Martin Flahive gives the most comprehensive assessment of what he has observed on the DVD and the comparison with what Ms Freeman had told him about her disabilities. However, it is appropriate that I review the way medical opinion evolved from about the time that Ms Freeman employment was terminated.
Medical evidence in the two years prior to dismissal from employment
It is helpful, I think, to review the medical opinion of practitioners who saw Ms Freeman in the year or two prior to her loss of the employment in the Herne Hill shop.
Dr Craft, Ms Freeman's general practitioner, painted a miserable picture of Ms Freeman's work and personal life in her report of 30 July 2008. She spoke of Ms Freeman having significant disability and suffering a great deal of difficulty in her employment.
A year later, in her report of 27 July 2009, Dr Craft gave Ms Freeman a sick leave certificate for three months between 21 June and 22 September 2009. This was said to be 'as a result of her chronic back pain and anxiety related to her motor vehicle accident'.
Of course it was in July 2009 that Ms Freeman lost her employment at Herne Hill.
Professor Harper, the occupational and public health physician, saw Ms Freeman on 14 January 2009 for medico-legal review. He recorded her complaints of pain in the low back and several other areas. His view was that Ms Freeman was severely depressed. He recorded that she had very little driving tolerance and on examination found areas of tenderness but generally normal ranges of movement. He recommended that the plaintiff undergo psychiatric and psychological treatment. He felt that her work capacity had been reduced but that she was capable of working 30 to 25 hours per week 'within the limits of restrictions'. Her work restrictions he described as 'to avoid heavy lifting, repetitive work above head level, prolonged static posture, repetitive twisting and bending'. He said that he did not anticipate that Ms Freeman's injuries would shorten the duration of her working career and did not expect her injuries to preclude her pursuing her career interest in small retail management. He attributed Ms Freeman's physical and emotional symptoms to the accident, and said:
She does have retained work capacity and I am not of the opinion that she is incapacitated to such an extent as to prevent her from engaging in her own occupation or any other occupation that she is reasonably limited to, based on her education training and experience.
Professor Bryant Stokes, a neurosurgeon, reviewed the plaintiff and wrote a report on 5 March 2008. His conclusion was that Ms Freeman 'had a significant ligamentous injury to the cervical spine region and also to the lumbar spine region and the degenerative change at L5/S1 has become symptomatic'. He wrote another report on her progress and then on 10 September 2008 he reported some restriction of spinal movements following a consultation on 4 September 2008 but 'no other abnormalities'.
The final medical witness relied on by Ms Freeman in her case was Dr Fitch the psychiatrist to whom Ms Freeman was referred for medico‑legal reasons in late 2008. Dr Fitch saw Ms Freeman on 18 September and 18 December that year. She produced a very lengthy report dated 17 April 2009. As a result of her 'mental state examination' of Ms Freeman Dr Fitch reported:
Her insight was reasonable. She was aware of her vulnerability to depression and the interplay between chronic pain and low mood. She was accepting of her need for medication but keen not to become reliant upon it. She sought psychological counselling as of benefit.
In her diagnosis Dr Fitch said:
There is evidence of pre-existing personality vulnerabilities with low self-esteem, avoidance and unmet dependency needs but these fall short of a formal Axis II Disorder. However they may contribute to perpetuation of her symptoms.
Dr Fitch's diagnosis was that Ms Freeman was suffering from a major depressive disorder, which is:
Related to the chronic pain and disability resulting from the physical injuries incurred in the motor vehicle accident.
She has a past history of depression with onset in her late teens and so it is probable that the illness may have relapsed at some stage. However, the timing, severity and course of this episode with the illness has been substantially modified by the chronic pain conditions.
She has a major psychiatric disorder with significant symptoms that are impacting upon her employment, family and social relationship, driving, domestic functioning and experience of life. Her symptoms occur each day and are disabling. She is currently receiving psychiatric medication and psychological counselling. It is likely that she will require ongoing specialist care with medication on an indefinite basis.
…
I also acknowledge that the prognosis is at best guarded. Given the recurrent nature of depression and its perpetuation by an enduring chronic pain condition it is my view that she will have ongoing symptoms for the foreseeable future thus fulfilling the criteria for permanency.
In spite of this however, Dr Fitch's view was that Ms Freeman has 'the capacity to work'.
Medical evidence post dismissal
In her last substantive report dated 9 October 2010, produced approximately six weeks prior to trial, Dr Craft seems to conclude that Ms Freeman was very seriously incapacitated. She records that Ms Freeman continues to suffer pain which she manages with a variety of analgesics and anti‑inflammatories. She observes that Ms Freeman 'is attempting to carryon with her life but finds that after a weekend of activity she is unable to function until she has rested for one or two days'. She says that Ms Freeman has severe depression with anxiety and post traumatic stress disorder. She says that Ms Freeman feels overwhelmed by the changes to her life and tends to hide away at home and avoid people. She can no longer engage in a variety of domestic activities. She has been unable to study or to complete retraining through the Commonwealth Rehabilitation Service.
With respect to her claim Dr Craft says that she believes that 'Ms Freeman is incapacitated to such an extent that she is prevented from engaging in her previous occupation or any other occupation that she would otherwise have been suited based on her education training and experience'!
In her final brief report of 8 November 2010 Dr Craft expresses 'understanding' that Ms Freeman 'is unable to undertake any work where significant lifting and bending is part of the job description'.
In his report of 3 November 2010 Professor Harper recorded Ms Freeman as saying that she was much improved psychologically and that she was now experiencing 'a lot less pain'. This report was provided four weeks prior to trial. He records Ms Freeman as saying that her symptoms have improved since she ceased 'working'. She still experiences anxiety and some depression but felt her organisational capacity had improved and she was feeling 'very motivated' to overcome her disabilities.
Professor Harper recommended that Ms Freeman undergo a pain management counselling program together with psychological and vocational counselling. He anticipated gradual improvement in 12 months or more. His view was that she had retained work capacity for part-time restricted work. Professor Harper was optimistic generally about the future. He expected that Ms Freeman's functional capacity and enjoyment of life would recover to a degree so that 'she can pursue enjoyable and productive existence'. Professor Harper gave his views about various possible occupations Ms Freeman could pursue.
In his report of 20 October 2010 Professor Stokes reported Ms Freeman as complaining of persistent low back pain and also pain in her jaw, right shoulder, left shoulder and interscapular pain. He felt that other complaints made by Ms Freeman and recorded in his instructional letter were 'all due to a person with a significant introspective personality rather than due to any true organic condition'. He further states:
In essence she does have a discogenic lesion at L5/S1 which is not of great magnitude but certainly can be giving her some intermittent constant low back pain. The difficulties of which she complains in doing various activities as described on page 3 and 4 of your letter I believe are largely functional and related to a very significant anxiety complex associated with depression.
And further:
… I believe the amount of true disturbance to her spine is minimal … the rest I would believe is related to her depression and any other psychological issues that have been uncovered by her psychologist and psychiatric.
Dr David Watson, a consultant physician saw Ms Freeman for the first time on 9 December 2009, some five months after she ceased work.
Dr Watson reviews the materials provided to him and expresses his view in response to a question saying:
It is clear from Ms Freeman's account that this (the accident) has had a very deleterious impact on her physical and psychological health. That impact is likely to persist.
Dr Watson made further comment on 10 November 2010 concerning Ms Freeman's prospects of employment. Because of her physical limitations he tendered to be pessimistic about Ms Freeman's prospects in employment.
In the second report of 17 October 2010 which followed a review on 15 September, Dr Fitch noted that Ms Freeman had substantially improved. On page 9 she states:
It is my view that Mr Freeman's current symptoms are related to dysthymia and affect dysregulation as part of a borderline personality disorder. Her previous major depressive disorder diagnosed in 2008 has largely remitted. Her personality disfunction has become more evident as her supports and structure have receded. However, Dr Fitch felt that Ms Freemans 'vulnerability to aggravation or relapse will remain for the foreseeable future'.
Dr Fitch felt that Ms Freeman was fit for work on a part-time basis of 25 hours per week. In response to a query listing Ms Freemans various complaints and seeking an opinion whether these complaints were related to the accident, Dr Fitch writes on page 15:
In complicated cases where there are comorbid psychiatric conditions, symptoms are rarely of singular origin. Similarly causation is not linear but reflects a cascade of interrogatories related events operating on an underlying vulnerability.
It is therefore not possible to have a singular attribution of an external event to the causation of a complex interrogatories-related condition.
Dr Fitch wrote another report, ten days later, on 27 October and notes the consistency of Ms Freeman's presentation to other practitioners and feels that her working capacity might be up to 30 hours per week in a supportive employment environment.
The impact of viewing surveillance DVDs from May and June 2010 on medical witnesses.
Having seen the DVDs Dr Craft was relatively unfazed in her opinions about the extent of Ms Freeman's disability and prognosis. This was mainly because of her acceptance of Ms Freeman's account that she invariably suffered significantly in the days following operation of her market stalls. Similarly Professor Harper, in his second report dated 3 November 2010 (ie there were two reports on that day) where he said having seen the DVDs:
I did not observe disability or restriction in her movements or activities. She was able to perform all of the above tasks. These observations are consistent with what she has reported to me and what I have been able to observe on physical examinations.
I have had the opportunity of reviewing Janene Freeman in my office of 3 November 2010 at which time she has indicated to me that on the day following each market she experiences a considerable aggravation and symptoms. During that day she is disabled and rests. She avoids going out in order that she can rest.
Professor Harper then goes on to express a view about Ms Freeman's prospects for the future noting that her employability was at present markedly reduced but that there would be improvement. He felt that she would be able to resume fulltime work in the future but 'this may not be for one or two years or more. I do not expect her injuries to result in premature retirement'. He then explains:
The basis for my assessment is her work history, her medical history from the time of injury, my findings on physical examination, the results of investigations and the reports provided by those professionals who have treated or assessed her. I have not observed evidence which demonstrates a capacity for fulltime unrestricted work. Her disability is one of limited endurance.
Dr Watson viewed the DVDs and felt that there were no signs of significant abnormalities evident. In his cross-examination he agreed that the DVDs gave him a very different view of Ms Freeman's capacity to that which she had presented. He felt that she certainly moved a lot more freely then he expected. He felt that she couldn't return to fulltime work immediately because she had been deconditioned. He admitted that he was very reliant on what Mr Freeman had told him. He did not think that she could drive long distances. He agreed that the fact that she had driven to Kambalda was inconsistent with his understanding of her driving capacity.
Dr Fitch the psychiatrist wrote a report on 31 October 2010 having seen the DVDs. She conceded that Ms Freeman had more significant capacity than she though she had three weeks earlier but that basically she stood by her previous reports and supports her previous conclusions which were to the effect that:
(i)Ms Freemans major Depressive Disorder had settled;
(ii)She no longer had Post Traumatic Stress relating to driving;
(iii)Her persisting psychiatric symptoms and behaviours were related to her personality vulnerability and coping style;
(vi)She was capable of 25 to 30 hours work per work in a supportive and flexible environment.
In cross-examination Dr Fitch said that her motor vehicle accident had destabilised Ms Freemans carefully crafted coping mechanisms. She said that Ms Freeman was likely to have various difficulties that would have needed support even if she had not had the accident.
At ts 260 in cross-examination Dr Fitch was asked:
And were you aware that there was conflict between her and her mother when they were working together in the shop prior to the accident? --- I'm sure there would have been. I'm not sure – I would have – I assume that is the case. I don't know if I've documented it, but yes. As I've stated, she had a – an obvious vulnerability that was pre-existing and it manifested itself by sensitivity. That would be with her in her employment situation.
And the trajectory that the plaintiff was on – Ms Freeman was on – was to fall victim to her personality vulnerability, working with her mother in the shop, and for it all to go haywire in respect of the accident, isn't it? ---I can't hypothesise what might have happened. I can only say what did happen. She did have a motor vehicle accident. This chain of events did occur.
…
Well, if you take the motor vehicle accident out of the equation, you've got a person with a vulnerable personality disorder and conflict – family conflict under – behind that in any event and working in a family business, you've got to say – even, you know, as a psychiatrist you got say that there's a fairly high probability that it wasn't going to work, don't you? ---Yes, I think that that's a – a fair assessment to say that Ms Freeman was likely to have difficulties, ongoing difficulties, that would need support, yes.
I now turn to the evidence relied on by the defendant and in particular the evidence of Dr Dare and Dr Martyn Flahive, both occupational physicians.
Ms Freeman was referred to Dr Brian Dare by the solicitors for the defendant fairly early in the scheme of things, on 22 May 2007 (about nine month's post accident). Dr Dare's opinion was that Ms Freeman had suffered soft tissue injury to the neck and thoracic and lower back. He found that there 'was no obvious inconsistency' in her presentation history and complaint. His view was however, that she was fit for work. He felt that Ms Freeman had 'reached a plateau with her present physio therapy' and he recommended that she undergo a program of Pilates for a three month period.
Dr Dare next saw Ms Freeman on or about 6 November 2007 and expressed similar views, supporting the continuation of the plaintiff undergoing Pilates.
On 11 January 2008 he speaks of Ms Freeman having ongoing lower back pain which was caused by the disc protrusion mentioned earlier in these remarks and his view was that it was possible Ms Freeman would suffer a minor permanent disability in the lower back.
On 20 June 2008 Dr Dare saw Ms Freeman and recorded that she was still working but was avoiding heavy lifting and repetitive bending and twisting. He reports she still complained of significant ongoing pain in the lower back and that she was frustrated with the persistence of her symptoms. He noted that she became 'quite tearful' when discussing her back pain and the fact that it may not resolve completely and that it could amount to a permanent disability of the lumbar sacral spine.
This news had a significant adverse impact on Ms Freeman's moral.
On 1 September 2010, two years later, Dr Dare saw Ms Freeman and he noted there were no improvements in her symptoms and that she was suffering from constant low back pain. He said that she complained about the decline in her quality of life. In his report of 1 September 2010 on the 4th page at par (b) Dr Dare said this:
I do believe Ms Freeman is fit to perform her normal household and day to day activities. I do not believe the injuries she suffered in the motor vehicle accident were of such significance to restrict her day to day activities or her work activities. She did continue to work fulltime doing her normal duties up until she was terminated from her employment over 12 months ago. She does have minor degenerative changes at the L5 S1 disc space but this minor degenerative change would not result in symptoms of such an extent to restrict her normal day to day activities or performing her household duties.
I consider her increasing symptoms with time do not concur with the normal healing and recovery from the soft tissue injuries she suffered and I am unable to explain why her symptoms are in fact getting worse and she is describing more disabilities rather than improving.
Dr Dare was provided with the surveillance of Ms Freeman in May and June 2010 and he mentions in his report dated 26 October 2010, after recording his observations of the activity of Ms Freeman as depicted on the DVDs he states:
I consider the DVD surveillance confirms my assessment that she is not significantly restricted in her day to day activities, and certainly would not be restricted in performing work duties as I have outlined in my reports, namely, working in a newsagency and doing other occupations which I have outlined. These include doing work as a console operator, sales assistant or doing light to moderate factory work.
I believe that if Ms Freeman did have the pain and restriction she outlines when I last examined her she would not be doing the tasks (such as the bending twisting and lifting) in the surveillance with the ease that she doing them. I will also consider the fact that she is showing no discomfort or difficulty in performing the tasks required; that she certainly had no difficulty in doing her normal day to day domestic tasks.
The final expert medical witness was Dr Martyn Flahive, a consultant occupational physician to whom Ms Freeman was referred by the solicitors for the defendant. He reviewed Ms Freeman on 6 July 2010 and produced a lengthy report dated 13 July. In that report he describes Ms Freeman's complaining about wide spread bodily pains and stated that her ability to perform physical activity was restricted. Dr Flahive recorded Ms Freemans description about her operation of market stalls as follows:
She said that she will set up a stall at the Guildford markets once a month which involves her tipping up the Gazebo from the back of the utility vehicle and having someone set it up for her and then she will sit for 4 to 5 hours. She said that she has a light melamine table which she uses with light plastic legs for her display and he also tries to sell some photography which she also undertakes. She said that she had been selling at the markets since October 2009 and her friend did try to get her to do the Boyup Brook market or medieval market in Balingup.
On examination Dr Flahive recorded that he felt Ms Freeman had more movement than she was prepared to demonstrate. His view was that she was fit for work if she had some assistance in lifting. Dr Flahive had 'some difficulty in reconciling her current reports of neck pain, posterior shoulder pain, thoracic back pain, right collarbone pain and chronic low back pain with left leg pain associated with fairly severe disability and incapacity in relation to her household chores, as well as her presentation of restricted spinal movements and wide spread tenderness in terms of any pathology identified to date and nature of injuries'. (page 10)
As he put it 'it is somewhat difficult to explain how after the motor vehicle crash she was able to continue with her workload in the newsagency for many months albeit with some restrictions yet now presents with incapacity to work for more than a few hours a day, reporting that even sitting at her market for more than a day will result in significant incapacity'. (page 10)
In his second and last report dated 12 November 2010, having seen the DVDs of surveillance Dr Flahive comprehensively reviews them and it is clear that the exercise has significant impact upon his views of the merits of Ms Freeman's claim of symptoms and disability. In particular he expressed surprise at how Ms Freeman was able to lift and manhandle the collapsible 25 to 30 kg gazebo.
On page 33 of the report Dr Flahive sets out the inconsistencies, as he sees them, between Ms Freemans's activities and abilities as apparent on the DVD and her professed disability.
On page 34 he states:
Of significance is what appears to be her increasing subjective disability and report of incapacity which is increasing over time for no clear reason. Although she was able to work after the crash, she reports that she can only work on a very limited basis and has deteriorated so much that she is requiring paid home help services. In contrast the surveillance DVDs suggest that she would have little difficulty in undertaking these activities and certainly this would suggest some conscious exaggeration of her disability.
Certainly it would seem that there maybe other factors that are motivating her presentation.
It would also seem that she is pursuing her interest in art and craft which is selling at the markets, which would require in my view a fair amount of time, motivation and effort. She is not only making the items for sale, she has organised herself a folding gazebo and the various display tables and stands and has to ensure the van is packed and setup, then unpack it and set up the stall, man it for the day then pack it all up again. It seems a little incongruous with a person with a 20% permanent psychiatric disability as proposed by Dr Fitch and it would seem that this view should be revisited. Similarily it seems inconsistent with the limited prospects for future work as suggested by Dr Watson.
Having reviewed the surveillance DVDs and on the basis of having examined Ms Freeman with no firm objective findings on examination, little radiological evidence of any significant pathology and the inconsistencies, it is my view that Ms Freeman would have the capacity to both pursue her normal work activities in the newsagencies or other similar work on a fulltime basis.
…
As indicated I'm of the opinion that Ms Freeman would also have the capacity to undertake a wide range of other work, including sales assistance work, clerical and administrative work, post office agency work and real estate work.
Dr Flahive's view was that the physical demands of running a stall would be likely to exceed those of running a post office shop. He felt that Ms Freeman's ability to do what was required to run a stall and all its aspects was impressive evidence of the health of Ms Freeman's physical and mental state.
Civilian witnesses
Ms Freeman's parents gave evidence on her behalf. Ms A T Luxton, Ms Freeman's mother, said that she and Ms Freeman were working up to 80 hours per week prior to the accident. She said that it was a struggle and that they 'got themselves' very stressed. At ts 213 she said that she felt confident she and Ms Freeman could work together and she felt it would have been successful but for the accident. She said:
If you want to make a profit you go into it with the two of you working up to 60 hours a week 40 50 60 hours a week to make that money.
When it was put to her that she and Ms Freeman were having constant conflict she said:
Because we were trying to work fulltime and redesign a shop and learn how to operate a post office. It's a huge thing to have to do. I was the one that was actually having trouble learning all – the codes and everything for the post office. I couldn't even open the safe. I had to get my daughter to come in to open the safe for me when it was my early morning shift because I could not get the combination correct.
Ms Luxton agreed that Ms Freeman had an unsettled and patchy work history prior to the acquisition of the shop. When she was describing the business difficulties caused by the accident and her daughter's behaviour she became quite emotional. She corroborated Ms Freeman's account of having problems carrying out her domestic duties.
Michael Freeman, Ms Freeman's father, spoke of her being a happy‑go-lucky cheerful person who had led an active life. He observed her at work in the shop after the accident. She demonstrated pain behaviours on lifting. He facilitated her change of motor vehicle because her car was too low to enter and exist easily. He said her demeanour changed two years after the motor vehicle accident. He was unaware that his daughter had had counselling and problems with depression prior to the accident. At ts 236 he said that he was quite happy to believe the suggestion that his daughter had problems with employment because of conflict with her employers pre-accident. When asked why he said:
Because of her personality. She's got a very strong will. She's a fairly strong self driven person and she wants to be able to manage herself. It's always been the case with her. That's part of her demeanour I think. … very difficult to employ her.
Mr Freeman said that he was aware that when Ms Freeman was working at the shop prior to the accident that there was conflict between her and her mother and he admitted that he had been told by Ms Freeman that she was stressed working with her mother and that indeed both his wife and his daughter complained to him about the other. He put this down to 'the fact that the mother didn't want to give power to Janene and Janene wanted to be able to run the shop'.
There were two other witnesses called namely Carolyn Lawrence and Joy Dowset. Both were former employees of the shop who worked with Ms Freeman. Ms Lawrence was a friend of Ms Freeman and remembers seeing Ms Freeman engage in pain behaviour in the workplace. She also saw her take medication.
Similarly Joy Dowset recalled Ms Freeman speaking of being in pain and discomfort and she also observed her to become very cranky and moody with other staff and with customers. She also saw Ms Freeman take medication.
Observation on Ms Freeman as witness
Ms Freeman seemed to present in the witness box as an honest witness. She had of course seen the DVD surveillance material prior to trial. Dr Flahive, Dr Watson and Dr Fitch were surprised at the physical function apparent on the surveillance DVD compared with what Ms Freeman had told them. That is unsurprising. What Ms Freeman had told them about her capacity was inconsistent with what they viewed on the DVDs. In a person presenting with Ms Freeman's history, and in the circumstances, this does not necessarily mean that she has been dishonest. However, it does affect the assessment of her credit as a witness and her reliability. Her reliability needs to be considered. Reliability is to be assessed against the fact that she is necessarily subjective in her views. She can not be described as an independent witness. Although I found her to be basically honest, that does not mean that she did not embellish or overstate her complaint. She did do just that, I think, with Dr Flahive. But of course the trial was looming and she was under pressure.
In the witness box Ms Freeman occasionally stood, I assume, because she was uncomfortable. She was able to twist in each direction without apparent difficulty. Apart from standing there was no sign, in court, of her having any physical discomfort. She appeared to be a pleasant person although quite forthright and out spoken. Ms Freeman barely stuttered at all in her evidence.
It is obvious that Ms Freeman carried on in her employment after the accident for nearly three years. She had significant mental health issues before the accident. The accident itself was minor and she returned to work immediately and, as I have said, stayed at her employment for nearly three years before she was dismissed.
It is her case that as a result of chronic back pain suffered over time, her behaviour deteriorated and this culminated in her dismissal, thereby her case is that she suffered economic loss as a result of the accident.
On behalf of the defendant it is said there were significant other stressors which impacted upon her behaviour triggering her dismissal and that it cannot be said that but for her accident she would have continued in her employment. Perhaps in other words the question for the court to decide is whether her depression and workplace behaviours were the result of the effect of accident cause chronic pain or the evolution of her pre-accident mental condition and susceptibility. This assessment is to be made given that the opinion of Dr Fitch was that Ms Freeman's depression was under control and it was the pre-existing borderline personality disorder that was the problem.
It seems to be clear that Ms Freeman had had susceptibility and a tendency to suffer depression for years prior to the motor vehicle accident. These bouts of depression were not triggered by pain but by a variety of other stressors that have been referred to in the evidence as poverty of career prospects, vocational indecisiveness, studying, housekeeping, and psychological problems similar to those set out in par 6.q of the statement of claim.
In the years 1998 to 2001 Ms Freeman had a lot of time off work as a result of unfitness certificates provided 'due to depression'.
From March 2002 and until late 2005 she had several positions in the workplace but these were short-term and she more often than not left because of a 'problem with management'.
Ms Freeman was apparently a difficult person who had problems in the workplace before the accident. She maintained to Dr Craft that she had no depressive episodes for 2 ½ years before June 2005, but she obviously had susceptibilities and personality features that were significant.
Thus it was that Ms Freeman set out on the business venture with her mother at the Herne Hill Village Lottery Centre on 18 December 2005.
The evidence establishes that Ms Freeman and her mother clashed from early days. Ms Freeman admitted having trouble communicating with people in the workplace months before the accident. She said at ts 81 'major differences of opinions on how things should be done and security, yeah, presentation. But they were resolvable and I was able to communicate through those'. These workplace problems did not surprise Ms Freeman's father and consistent with his assessment of his daughter's personality and view of employment.
Surveillance DVD
As I have described surveillance of Ms Freeman's activity on a day in May and in June 2010 was produced in evidence.
On the DVDs, which I viewed in my chambers, Ms Freeman is seen driving and reversing a motor vehicle, unloading equipment and stock for a market stall including a collapsible gazebo about 3 metres by 3 metres weighing between 25 and 30 kilograms. The weight was never accurately established but the opinion of Dr Flahive was unchallenged.
Ms Freeman is seen erecting the gazebo, setting it up, running the stall for a number of hours, packing up and dismantling and reloading. Her activities are fully documented in Dr Flahive's report.
Having seen the DVDs it is obvious that Ms Freeman moves in a multiple and full range of tasks including some lifting, carrying, pushing and pulling and that she does so without apparent discomfort or impediment.
On no occasion does she behave as if she has pain such as pausing mid movement, stopping and holding or bracing any part of her body or stretching and bending for no workplace reason.
Findings on medical evidence
Ms Freeman is a person who had a complex mix of physical and mental health issues prior to the accident. She suffered minor injury in the accident and maintains that she has suffered chronic back pain at all material times.
Dr Craft, the GP feels that Ms Freeman is seriously incapacitated. Dr Craft is unfazed by the normal function demonstrated on the surveillance DVDs. She accepts Ms Freeman's explanation that she always suffers after operating her market stall.
Professor Harper also accepts Ms Freeman's account and feels her problem is not one of incapacity but of endurance ie. the ability to work at a task for any substantial period of time.
Dr Stokes's view was that Ms Freeman's problems are really not spinal but they are due to her personality.
Dr Fitch the psychiatrist, felt that Ms Freeman had a major disorder but that she had much improved by the time she saw her in 2010 and that she does have significant capacity. She felt that Ms Freeman was likely to have difficulty working in the Herne Hill Village Post Office being a family business, even if she had not had the accident.
Dr Watson's view was that the motor vehicle accident had very deleterious impact upon Ms Freeman was reversed following his watching of the surveillance DVDs.
Dr Dare and Dr Flahive, who were called on behalf of the defence, were of the view that Ms Freeman has insignificant accident caused incapacity. Dr Flahive's view was very much affected by what he saw in on the surveillance DVDs.
Dr Brian Dare's view warrants more comment. Dr Dare was the occupational medicine consultant who was brought into the case by the defendant's insurer at a relatively early stage, only nine months post accident.
Dr Dare's last opinion prior to seeing the DVDs was expressed in a report in September 2010. I have already cited the relevant passages from his medical reports.
The surveillance DVDs confirmed Dr Dare's view that Ms Freeman has not lost any significant earning capacity as a result of the accident.
Dr Dare's evidence was impressive. He had early contact with Ms Freeman. His 'pre-DVD' opinion was proven right by what is show on the DVDs. I prefer his evidence.
Findings on the surveillance DVD
In my view the surveillance DVD evidence shows the extent of Ms Freeman's earning capacity just prior to trial. It seems to me that her earning capacity is at least the same as Ms Freeman had and exercised before she ventured upon the failed Herne Hill shop business with her mother.
Causation
A convenient recent statement on the relevant law is that Buss JA in Sterndale v Laurie [2010] WASCA 79 [132] (with whom Pullin JA and Newnes JA agreed):
A defendant will be liable in negligence only if the injury which the plaintiff has suffered was caused by the defendant's negligent act or omission. It is not necessary that the defendant's negligent act or omission be the sole cause of the plaintiff's injury. Causation will be established if the relevant act or omission contributed materially to the loss or damage suffered. The question whether the requisite causal connection exists between a defendant's negligence and a plaintiff's loss or damage is essentially one of fact to be resolved, on the probabilities, as a matter of common sense and experience. See March v E & MH Stramare Pty Ltd (1991) 171 CLR 506.
Thus the question is whether the soft tissue injury to Ms Freeman's spine contributed materially to any loss of earning capacity that she has suffered.
It is Ms Freeman's case that her debilitating depressive symptoms were triggered by accident caused back pain and consequently she suffered economic loss. The defendant maintains there is no loss, but if there is – it was caused by other factors.
Preliminary findings
The medical evidence establishes that Ms Freeman suffered soft tissue injury to her spine in the motor vehicle accident on 30 August 2006.
There is no doubt that following an MRI on 19 December 2007, a shallow postero central disc protrusion at L5/S1 extending approximately 4 millimetres posterially without contacting the thecal sac or proximal S1 nerve roots was discovered.
The preponderance of medical opinion is that this disc protrusion was pre-existing – it was caused by degenerative change not by the accident. Given Ms Freeman had no pre-accident history of lumbar symptoms, medical opinion is that the accident rendered her disc protrusion symptomatic.
In the period following the accident Ms Freeman's symptoms, after initially being assessed as typical whiplash injuries that were healing and improving, failed to settle and apparently deteriorated over time.
In the period following the termination of her employment in the Herne Hill Post Office in July 2007 Ms Freeman's symptoms abated considerably such that by mid 2010 she had regained much of her pre‑accident health and ability.
I am not persuaded to the appropriate standard that the relatively minor accident suffered by Ms Freeman materially contributed to the debilitating depressive symptoms of which she complains.
The extent and the variety of Ms Freeman's pre-accident history is such as to cast significant doubt on her claim that her accident caused chronic pain state has contributed materially to it, ie. that accident caused injury has produced chronic pain that has contributed materially to that depressive condition and caused her economic loss.
I am not satisfied that the defendant's negligence was, as a matter of commonsense and experience, properly to be seen as having caused Ms Freeman's depression.
It has not been proved Ms Freeman lost her employment in the Herne Hill Village venture because of the accident.
Ms Freeman lost her employment because of her attitude and behaviour.
Ms Freeman had a history of having problems in the workplace and with her employers. A history of psychological problems, of depression, of high occupational turnover rate and the like. It has not been established that the back pain contributed materially to Ms Freeman losing her job. Nor has it been proved that she has incapacity now.
Assessment
Non economic loss
Paragraph 4 of the statement of claim lists seven alleged injuries as being sustained by Ms Freeman in the motor vehicle accident.
Ms Freeman's treating GP, Dr Craft, upon whom Ms Freeman attended on the date of the accident described soft tissue injuries to her cervical and lumbar spine … 'a typical whiplash injury'.
It is the injury to the lumbar spine that has been the most problematic, involving as it does, the production of symptoms from a pre‑existing asymptomatic disc protrusion at L5/S1.
This injury produced pain and discomfort in varying degrees since the motor vehicle accident.
It is more the chronicity of the pain than the degree of pain itself that has caused suffering to Ms Freeman. That pain, I find, has settled since Ms Freeman was in fulltime employment and it seems to me that it is now, when required, controlled by medication.
In my view as a percentage of injury of the worst category, Ms Freeman's injury would be 6% of amount A, being 6% of $337,000 which is $20,220. Given the amount B is $17,000 then Ms Freeman is entitled to $3,220 damages for non-economic loss.
Gratuitous services-care
As counsel for the defendant put it, it is the reasonable needs created by the plaintiff's injuries which provide a basis for compensation for pecuniary loss in this area.
Ms Freeman claims the sum of $10,000 for gratuitous services rendered in the past plus interest of $1,269.
Upon the basis that she says that she requires two hours per week at $23 per hour, applying a multiplier of 36 years which is 785.6 giving a claim for $36,422, which is said to be rounded to $30,000 for future gratuitous services.
It is put on behalf on the defendant that there has been no or insufficient evidence to prove that Ms Freeman had a reasonable need for the services that she claims have been provided and that she will need. It is put that in any event whatever damages would be awarded would not exceed the sum of $6,000 and therefore that no damages should be awarded under this head.
Section 3D(2) of the Motor Vehicle (Third Party Insurance) Act1943 states:
No damages are to be awarded for the value of the services if the services would have been or would be provided to the person even if the person had not suffered the bodily injury.
In my view much of what is said about this falls within the category of services that would be so provided. This seems to be the effect of evidence of Mr Freeman in particular who, like any parent knows, helps his child from time to time.
But even if there were some compensable services rendered for a time I am far from convinced that they exceed $6,000 and consequently no award can be made under this head.
Past economic loss
Immediately after the motor accident on 30 August 2006, Ms Freeman went to work at the Herne Hill Village Lottery Shop.
She continued to go to work there until she was dismissed on 12 July 2009. Ms Freeman has not returned to her pre-accident employment since that date.
In re-amended particulars of damages dated 25 October 2010, four weeks prior to trial, calculations are proffered to substantiate a claim for past economic loss in the sum of $79,675 plus interest of $10,039, plus past loss of superannuation entitlements for $3,642 plus interest of $458.
In final submissions, both written and orally expanded, counsel referred to the re-amended particulars of damages and to his written opening submissions. However, there was no evidence adduced or explanation proffered about the method of calculation of past economic loss in the particulars.
For the three years following the accident up to the date of her dismissal, it does not appear that Ms Freeman suffered any economic loss at all, even though, according to her, her hours were reduced.
There can be no allowance for past economic loss for the period 30 August 2006 to 12 July 2009 because it has not been established that there was any such loss. For the period 12 July 2009 to the date of trial being 22 November 2010 Ms Freeman's income dropped considerably. For the year ending 30 June 2009 her gross income was $44,308 (last year at Herne Hill).
For the year ending 30 June 2010 it dropped to $20,543 (being Centrelink and trust income).
Ms Freeman's annual income before she went into the Herne Hill Village Lottery business with her mother was between about $25,000 and $28,000 gross per annum.
I am inclined to accept the defendant's counsel's submission that Ms Freeman's pre-accident earning capacity should be the capacity she demonstrated before she was engaged in the doomed shop venture with her mother. In any event, given that I am not persuaded that the back pain that Ms Freeman suffered as a result of the accident materially contributed to her dismissal, I am unable to make any award for past economic loss.
Future economic loss
The claim for damages for loss of earning capacity in the future is based on the assertion that Ms Freeman, but for the accident, would have been able to obtain employment as an experienced manager of a post office and earn an average annual gross income of $70,000 plus superannuation, until she turned 70 which would be in about 36 years.
It is put that because of the motor vehicle accident Ms Freeman can not and never will be able to work as the fulltime manager of a post office but that she could do so for about 40% of a 40 hour week or about 16 hours per week.
She claims a loss of income of $790 net per week.
It is put on behalf of the defendant that there is insufficient evidence to establish any loss at all.
I have already found that Ms Freeman has not suffered economic loss as a result of any accident caused disability. Indeed in my view, having regard to her demonstrated physical and mental capacity shown on the surveillance DVD and having regard to the preferred medical evidence, Ms Freeman could work fulltime in a post office.
Even if she can not do so or could not do so it is not because of any accident caused inability.
I can not make allowance for future economic loss.
Other heads of damages
Similarly, I make no allowance for past travelling expenses, future travelling expenses, past treatment expenses, future treatment expenses and future pharmaceutical expenses. The plaintiff is entitled to $3,220 damages.
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