Geddes v Taleni
[2017] ACTSC 183
•24 July 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Geddes v Taleni |
Citation: | [2017] ACTSC 183 |
Hearing Dates: | 17 July 2017 - 20 July 2017 |
DecisionDate: | 24 July 2017 |
Before: | Elkaim J |
Decision: | See paragraph [147] |
Catchwords: | TORTS – NEGLIGENCE – Contributory Negligence – Damages – whether the defendant breached his duty of care – nature and extent of injury – calculation of damages. |
Legislation Cited: | Civil Wrongs Act 2004 (ACT) |
Cases Cited: | Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 Mason v Demasi [2009] NSWCA 227 |
Parties: | Ms Sarah Geddes (Plaintiff) Mr Tomesina Taleni (Defendant) |
Representation: | Counsel Mr W Sharwood (Plaintiff) Mr C Purdy (Defendant) |
| Solicitors Snedden Hall & Gallop Lawyers (Plaintiff) Moray & Agnew Lawyers (Defendant) | |
File Number: | SC 296 of 2015 |
ELKAIM J:
On 23 January 2013, a pedestrian (the plaintiff) was struck by a cyclist. She was injured. In this action, she seeks damages arising from her injuries.
The cyclist (the defendant) denies liability, alleges contributory negligence and challenges the quantum of damages sought by the plaintiff.
The plaintiff has claimed damages under the following heads: general damages; past and future economic loss; past and future medical expenses; and past and future domestic assistance.
Before the accident
The plaintiff was born in 1979 in Lismore in northern New South Wales. She generally did well at school but her final year, Year 12, was affected by her having glandular fever and a staph infection. She did not receive a very high Tertiary Entrance Rank (TER).
After school, the plaintiff had a selection of jobs. In 2000, she moved to Sydney to improve her employment position. She started work at the University of Sydney as an administrative assistant. In 2001, she met her future husband, Mr Walid El-Dik.
The plaintiff moved to an administrative position at ADT Tyco and then, in 2005, enrolled at the Canberra Institute of Technology and commenced an Advanced Diploma in Applied Science. She was also working at the Australian National University (“ANU”) as a Research Development Officer.
From 2007 to 2009, the plaintiff completed a Bachelor of Health Science at Charles Sturt University and a Masters of Public Health at the University of Wollongong.
The plaintiff and Mr El-Dik married in 2008.
The plaintiff continued working as a Research Development Officer until 2011, when she became a personal research assistant to Dr Kamalini Lokuge. In July 2012, the plaintiff commenced work as a Project Manager at the Crawford School of Public Policy.
Sometime in 2012, the plaintiff discovered that her husband had been unfaithful. They separated for a period and sought counselling.
There was a good deal of examination and cross-examination about a Mental Health Plan that had been prepared by Dr Ranji Perera as part of a referral to counselling services. The document can be found in Exhibit A, commencing at page 456. It is obvious that this document is inaccurate. Not only does the plaintiff disagree with much of its contents, but Dr Perera herself has confirmed its inaccuracy. In a letter dated 27 May 2014 (Exhibit B), the doctor states:
Ms Geddes was not suffering from any psychological injury prior to her accident on 23/01/2013. She was not prescribed Endep prior to 23/01/2013. She was 1st prescribed Endep by Dr Omar Ahmad, her neurologist in Sydney who saw her after her accident on 23/01/2013.
In her oral evidence, Dr Perera said that the references to the plaintiff having seen a psychiatrist and being admitted to a psychiatric hospital were simply mistakes.
In my view, the Mental Health Plan should be effectively ignored. It is unclear how its inaccuracies came into being, but it is clear that parts of it are wrong. It is a classic example of the dangers that were mentioned by Basten JA in Mason v Demasi [2009] NSWCA 227 and Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320, concerning reliance on medical records.
I think this is a convenient time to record my findings on credit. I found the plaintiff to be an honest witness, doing her best to recollect events accurately and to describe her symptoms without exaggeration. There is a definite medical conflict in this case but it is not one derived from any suggestion of malingering or dishonesty on the plaintiff’s part.
I accept that the plaintiff would have been anxious, and perhaps depressed, while she was experiencing marital problems. This would have been natural. I also accept that she wished to have a large family and was anxious about fertility problems. These anxieties are far from the picture painted by the Mental Health Plan.
In September 2012, the plaintiff had the first of eight marital counselling sessions with Mr Marshall O’Brien. Confirming the conclusion that I have reached above, his clinical notes demonstrate that the majority of issues facing the plaintiff were derived from her husband’s infidelity.
In his oral evidence, Mr O’Brien emphasised that he was dealing with the plaintiff’s reactive depression arising from her husband’s errant behaviour. Although I think that the K10 form in the Mental Health Plan is probably unreliable, Mr O’Brien seemed to treat it as indicative of the reactive depression and gave it no more weight. This is to be contrasted with the approach taken to this document by Professor Richard Mattick, relied upon by the defendant.
My assessment of the plaintiff as she was before the accident, was confirmed by the evidence of her husband, Ms Vicki Veness and Dr Lokuge. They all referred to the plaintiff as an independent, intelligent and competent person prior to the accident. They contrasted this with the plaintiff’s capacity and demeanour after the accident, referring in particular to her fatigue and lack of confidence.
Ms Veness said that, before the accident, the plaintiff was intelligent and running an intense program. She was also “a lot of fun”. After the accident “the lights were on, but no one was home”.
Ms Veness was not cross-examined. Her observations are bound to be accepted.
The accident
On 23 January 2013, a Wednesday, the plaintiff was on her way to a dental appointment in City Walk in the Canberra CBD. She was making her way through an area dominated by pedestrians, although also shared by cyclists. Vehicles also seem to have been entitled to some access.
The plaintiff was wearing sunglasses but was not sure if she was wearing headphones.
The general scene and approximate point of impact can be seen in the photographs making up Exhibit D.
The plaintiff said that she saw the cyclist for about three seconds before the impact. The cyclist was speeding around from the left. She tried to get out of his way but he hit her on her left hip. She fell to the ground. The back of her head hit the concrete. Her next memory is of being in an ambulance.
The ambulance records are in Exhibit A, commencing at page 73. They reveal that the call for the ambulance was received at 8.54 am. At that time, the plaintiff was reported to be unconscious. The ambulance reached the scene at 8.57 am, by which time the plaintiff had apparently regained consciousness. The case description is as follows:
OA pt lying supine on concrete, per bystanders pt was walking along path when she was struck by a cyclist pt had a head clash with the cyclist then fell backwards onto the concrete path striking her head. Pt was dazed for several minutes post accident. Pt has full recall of incident. Pt co a headache to the back her head. OE pt alert and orientated, well perfused. Nil SOB, nil nausea. nil motor sensory deficit. PEARL nil apparent fractures. Pt transported for concussion observation. Pt stable and comfortable on route.
I assume SOB refers to Shortness of Breath and PEARL means Pupils Equal and Reacting to Light.
Although there are histories in some reports that suggest a longer period of unconsciousness, the actual period during which there was a loss of consciousness seems to be no more than three or four minutes. Nevertheless, I accept the plaintiff’s evidence about having little memory after the accident itself. Even if not unconscious, she would no doubt have been confused about what had just happened. I also accept that she was in shock. This is consistent with her suddenly, while walking in a generally pedestrian area, being struck by a large cyclist. At the time, he was 185 centimetres tall and weighed 120 kilograms.
Liability
I think it convenient to deal with liability at this point. The defendant was riding his bicycle through an area full of pedestrians. In his statement (Exhibit 3) the defendant says that “there were a lot of pedestrians around”. His version was as telling of his negligence as the plaintiff’s version. Indicatively, the impact occurred in City Walk.
The defendant described the cause of the accident in this way:
I believe the cause of the accident was the fact that we didn’t see each other because of other pedestrians blocking our view and we didn’t have time to avoid each other when we did see each other. I remember that she was looking down just prior to impact and that she had white earphones in.
The impact was so severe that one of the bicycle’s wheels buckled. The defendant was injured, although not seriously. Although there was no independent evidence of speed, the defendant was travelling too fast to stop and the collision was forceful enough to knock the plaintiff to the ground. The mechanism of her fall is reminiscent of a ‘one punch assault’.
The defendant’s negligence is simply stated in this way: any cyclist riding in an area in which there are many pedestrians should either have dismounted from his bicycle or have been riding at such a slow speed that he could avoid any collision with a pedestrian. This was not a shared path where pedestrians might be expected to be walking in a particular direction or keeping to the left of the path. This was an open area where pedestrians criss-cross City Walk making their way to different destinations.
When looked at in terms of Part 4.2 of the Civil Law (Wrongs) Act 2002 (ACT), negligence is equally plain. There was no dispute that the defendant owed the plaintiff a duty of care to ride his bicycle in the manner of a reasonable person armed with all the information available to the defendant. He was a big man, he knew there were many pedestrians about and he knew that by riding in the manner that he did a collision with a pedestrian could occur.
The risk was foreseeable, it was not insignificant and a reasonable person would have taken precautions to avoid the risk. There was a high probability of harm occurring if precautions were not taken and the harm was likely to be serious. There was very little burden in taking precautions. The defendant could simply have dismounted as he wove his way through the pedestrian traffic. Section 43(2)(c) of the Civil Law (Wrongs) Act 2002 (ACT) is not relevant.
In relation to contributory negligence, it is suggested that the plaintiff should not have been looking at her mobile phone or some other item in her hand. I am not satisfied that she was. Even if she was, to suggest that it is negligent of a pedestrian to look at their mobile phone, or check their music if it was some other device, does not bear scrutiny. Pedestrians carry mobile phones with them. They are constantly accessing their phones. I do not think there was even momentary inadvertence. I simply cannot see any act of negligence on the plaintiff’s part. Had she been walking on a dedicated cycle path, the position may have been different.
Accordingly, there will be a judgment for the plaintiff on liability without any reduction for contributory negligence.
After the accident
The plaintiff was taken to Calvary Hospital. Examination on arrival revealed no neurological deficits. She was experiencing pain in her back and wrist. She remained in hospital for some hours until her husband took her home. The discharge diagnosis was:
+INJURY - + INTERNAL INJURIES - +BLUNT INJURY - +HEAD/NECK – CONCUSSION, LOSS OF CONSCIOUSNESS <1HR
The plaintiff was mostly in bed for the next few days. She was vomiting, she had headaches and her body was aching. Her husband had to help her to the toilet and with personal washing.
By the following week she felt she was not improving. She consulted her general practitioner, Dr Perera. She referred her for a MRI of her brain. The MRI did not detect any abnormality.
The plaintiff was off work for about two weeks. She took Stemitil to control her vomiting.
The plaintiff’s headaches continued, she could not concentrate and she was experiencing balance problems. Her mother-in-law, Dr Blagova, referred her to a neurologist, Dr Omar Ahmad. Dr Ahmad recommended that she attend Neurospace Physiotherapy for multidisciplinary treatment. Dr Ahmad made this concise comment about her condition:
Brains don’t bounce well off concrete.
The plaintiff’s employment at the Crawford School of Public Policy was due to end in June 2013. She ceased work early, in May. She had been offered an extension to her employment, but at a lower pay level, which she refused. This refusal was the subject of criticism by the defendant, to the effect that the plaintiff had failed to mitigate her damages. I deal with this issue below.
The plaintiff and her husband had a holiday in Hawaii in September 2013. There was no evidence to suggest that any activities undertaken by the plaintiff during the vacation were inconsistent with her injuries.
In April 2014 the plaintiff commenced work as a part-time business manager with CSIRO. This employment lasted until November 2014, when the plaintiff resigned.
The plaintiff gave birth to a son on 19 June 2015. In August 2015, the plaintiff’s driving licence was suspended. It was restored after an assessment on 14 October 2015. The defendant observed that the plaintiff passed the assessment ‘with flying colours’. This is an accurate reflection of the report but does not affect my acceptance of the plaintiff’s evidence that she finds driving long distances difficult and needs to have breaks from time to time. I also accept her husband’s evidence that the plaintiff prefers not to drive in heavy traffic, such as might be encountered in Sydney. For this reason, Mr El-Dik accompanies the plaintiff on trips to Sydney.
In March 2016, the plaintiff started work for her husband’s firm, OXE Consulting Pty Ltd. She carries out mostly administrative functions, but also some research. Her husband regards her as a good worker.
Later in March 2016, the plaintiff started casual employment with Dr Lokuge at ANU. Dr Lokuge observed that the plaintiff’s capacity had significantly diminished compared to before the accident. She nevertheless thought the plaintiff retained a degree of competence. This employment ended in July 2016.
The plaintiff still works for OXE Consulting Pty Ltd. She is paid $950 per week net. She has childcare for six hours per week. She cares for her son for the balance of the week. Her husband generally takes the ‘night time shift’ to enable the plaintiff to sleep well.
Throughout the period since the accident, the plaintiff has received continual treatment across several modalities. She has improved over time. The improvement is both in her condition and her capacity to deal with it.
Both Ms Veness and Mr El-Dik acknowledged that the plaintiff had improved since the accident.
Ms Carrera, a neurological physiotherapist, said this of the plaintiff’s improvement:
The comprehensive rehabilitation program included occupational therapy for cognitive and fine motor work and exercise physiology for balance and general strengthening (supplemented with our own gym work) and physiotherapy for musculoskeletal issues and vestibular rehabilitation.
We believe this period of intensive rehabilitation was critical to improving Sarah’s condition.
The areas of treatment have included physiotherapy, massage, exercise, occupational therapy and psychiatric and psychological counselling. The plaintiff takes painkillers for her headaches.
The medical contest
I was provided with hundreds of pages of medical reports and taken to relatively few of them. I do not think it necessary to comment on each report. Rather, I will try to address what I regard as the main medical disputes.
The primary issue between the parties arises from the views of the opposing psychologists, often dependent on the results of psychometric testing they have administered.
I wish to make this preliminary observation. Psychometric testing obviously plays a significant part in the treatment and diagnosis of persons who have suffered a head injury. Testing at different times often produces different results. This is evident here. Psychologists are careful to not repeat the testing too often to avoid practice effects.
Changed results can sometimes be attributed to different phases in a plaintiff’s life. For example, the defendant’s psychologist observed that testing done by Dr Downing may have produced results which reflect the plaintiff being in the midst of a particularly stressful time.
Psychometric testing is, of course, a reflection of a plaintiff’s performance when the testing takes place. That itself is a limiting factor. The results must also be seen against the background of lay evidence about a plaintiff’s general lifestyle and achievements before and after an accident. This is no doubt one of the reasons clinical psychologists take detailed histories and often call for further information.
It may be, and I think to some extent it applies in this case, that descriptions of a plaintiff do not correlate with the results of the testing. I am not here referring to malingering during testing.
The plaintiff primarily relies on the opinion of Dr Harriet Downing, a clinical neuropsychologist. Dr Downing has provided two reports which commence page 121 of Exhibit A. The defendant relies on the reports of Professor Richard Mattick. They are contained in Exhibit 1.
In addition to Dr Downing, the plaintiff also drew support from another psychologist, Dr McMahon. Both he and Dr Downing levelled strident criticism at Professor Mattick. In turn, as he was entitled to do, Professor Mattick responded to the criticism and added some of his own.
Although there are substantial differences between the opinions of the psychologists, these differences, I think, mainly stem from their respective views about the comparison between the plaintiff’s pre- and post-morbid functioning. In very broad summary, Dr Downing identifies a substantial difference. Professor Mattick finds little difference.
Dr Downing, in her report of 16 June 2015, summarises her views as follows:
Compared to her estimated premorbid functioning (based on factors such as her age and level of education), Sarah’s current neuropsychological profile is characterised by:
· Severe impairments in aspects of thinking and acting.
· Variability in basic attention (to visual and verbal information), with performances generally below expected premorbid limits.
· Impairments in aspects of executive functioning (e.g. mild impairments in encoding, particularly for verbal information, and in verbal abstractive reasoning, severe impairments in psychomotor sequencing and divided attention and aspects of verbal generality, and qualitatively, challenges in aspects of self-monitoring and planning and organisation).
· By contrast, she demonstrates performances generally within expected premorbid limits in other aspects of executive functioning (including perceptual reasoning), general knowledge and new learning and memory for simply visual information.
The comparison as expressed by Dr Downing is completely consistent with the observations expressed by witnesses such as Dr Lokuge and Ms Veness. It is also consistent with the plaintiff’s achievements before the accident.
I think that it is worth noting that Dr Downing’s assessment was not carried out for medico-legal purposes. It was prepared for an assessment of the plaintiff’s “cognitive functioning and [provide] recommendations to support her cognitive rehabilitation”. There can be no suggestion that the plaintiff’s performance in the test could have had any relationship to a desire to maximise her damages.
Dr Downing’s second report is in the form of a letter to the plaintiff telling her about the neuropsychological assessment that took place in May 2015. In discussing the results, Dr Downing points out areas in which the plaintiff performed below the expected range. These are areas which, based on the overall evidence about her pre-morbid functioning, would not have produced low results had the testing taken place before the accident.
My initial reading of Professor Mattick’s reports caused me a number of concerns. Some of his views were based on incorrect histories and he apparently drew conclusions from material that did not support his conclusions. The reaching of conclusions about the plaintiff’s pre-accident condition could also not be supported by an objective assessment of the evidence.
Professor Mattick cannot be criticised for acting on an incorrect history. He would not have, for example, known about the mistakes in the Mental Health Plan. He was made aware of Mr O’Brien’s letter dated 23 August 2016. However, this letter post-dated his first report.
Professor Mattick was required for cross examination. The extent of the cross-examination was limited and did not address many of the areas that caused me concern. I did ask the professor some questions but refrained from cross-examining him. In an adversarial system, the court decides between competing parties. It is fundamental to this system that witnesses who are to be criticised are given the opportunity to meet the criticism, particularly when they are required for cross-examination.
It would be entirely unfair of me to go outside the bounds of the cross examination, and my questions, in making criticisms of Professor Mattick to which he had not been given the opportunity to respond.
I do, however, think that I am entitled to, and should, comment on Professor Mattick’s reports (and any other report) where I think that there is an issue that requires resolution, as part of my reasons for reaching various conclusions.
Having been provided with documents to illustrate the plaintiff’s impressive intellectual achievements at the Canberra Institute of Technology, the University of Wollongong and at Charles Sturt University, Professor Mattick says, at paragraph [2.11] of his second report:
Her academic performance at these institutions was average overall.
As already noted, this is contrary to the lay evidence I heard from people like Dr Lokuge and Ms Veness, who spoke of the plaintiff’s intellectual and practical achievements before the accident. Dr Lokuge, who is an obviously highly qualified and intelligent person, described the plaintiff as one the best colleagues she had ever had.
Professor Mattick may not have had the benefit of these independent observations, but when he was given detail of the plaintiff’s tertiary achievements and the reasons for her below average school result, he was not prepared to change his mind.
Professor Mattick was provided with particulars of the plaintiff scores in the HSC. He accepted that glandular fever may have affected her performance. However, he then says this, at paragraph [3.1.1] of his second report:
I point out that glandular fever is a disorder which is quite common and that by adulthood 90-95% of people had been infected with the Epstein-Barr virus. The illness can last between one and several weeks. Whilst I have not seen any medical reports from her general practitioner, it seems very unlikely that this caused her any incapacity except for between one and several weeks.
Suffice to say that if the plaintiff had been suffering for several weeks, and the several weeks was at an important time in the school year, the effect could have been marked. Professor Mattick’s observations of what was “unlikely” is entirely without foundation, especially noting his observation that he had “not seen any medical reports”.
In paragraphs [13.79] and [13.8] of his first report, Professor Mattick discusses the significance of a score of 33/50 on the K10 form prepared by Dr Perera. He suggests that further clarification might be obtained from Mr O’Brien’s records and Dr Campbell’s notes.
In his second report, after having been provided with Mr O’Brien’s letter of 23 August 2016 in which he states that the plaintiff did not have a pre-existing condition, Professor Mattick gives that information no weight, preferring instead to retain his original opinion.
His justification for this approach seems to be that Mr O’Brien did not assess the plaintiff for a DSM-5 disorder. This is despite there being no apparent justification to assess the plaintiff for such a disorder. I also note that Mr O’Brien was not cross-examined to suggest that any DSM-5 assessment should have taken place.
I have already found that the Mental Health Plan is unreliable and to some degree inaccurate. Any conclusions derived from it are in turn questionable.
Even if the plan was accurate, Professor Mattick has overstated its contents. For example, the plan states that the plaintiff’s memory was “forgetful but short and long term memory seem OK”. Professor Mattick upgrades this to “she was significantly forgetful”.
I specifically asked Professor Mattick about this observation in his first report, at paragraph [13.31.9(2)]:
It seems likely to me that what has occurred here is that she suffered dizziness after the injury and this would explain the problems with gait, the reported reliance on a stick when walking, a sense of falling and having to lean against walls, and would also be distracting in the workplace and may have gone on for some period, and this would cause her subjective sense of poor cognitive functioning.
On reading the paragraph, I had thought that Professor Mattick was attributing the list of symptoms to “dizziness after the injury”. This of course defies medical and logical explanation. Professor Mattick explained that his intent was to say, if I understood him correctly, that the plaintiff, having been dizzy after the accident, had in her ensuing daily and work life come to attribute the symptoms she was experiencing to a head injury. In other words, she came to believe that she had a number of symptoms because she had been dizzy.
This possibility was never put to the plaintiff. It may be that Professor Mattick envisaged it as a subconscious exercise, perhaps consistent with, as will be seen below, the approach taken by Dr Paul Spira and Dr Omar Ahmad. Whatever the case, I find the asserted link between the dizziness and the list of symptoms difficult to accept.
It is also important to note that Professor Mattick, in the course of answering my question, said: “I suspect that she actually did develop significant cognitive difficulties through this period”. This acknowledgement may be seen as inconsistent with the professor’s overall conclusion as to overreaction.
Professor Mattick suggests that the plaintiff’s decision to decline to remain in employment at ANU, at a significant reduction in her wages, indicates that the plaintiff was having no difficulties at work. He seems to base his conclusions on his own experiences working in a university. I agree that a university may experience funding problems and that the end of a contract is often an opportune time for a person’s employment to cease.
However, Professor Mattick seems to be suggesting that, because the plaintiff refused an offer of employment at a lower wage, her decision to stop work could not have been accident-related. This ignores the plaintiff’s entitlement to try and find work at a level of remuneration that she was then receiving and has nothing to say about her capacity in the job. The plaintiff said that she needed the money to pay her mortgage and the difference in pay was in the order of $20,000 per annum. Whatever her condition, it was entirely reasonable for her to decline the job offer.
In addition, I am not satisfied that there was an actual job proposal put to her. The conduct of the university seems quite extraordinary. She was told that her employment had come to an end by the parking office, which required the return of her parking pass. The so-called offer of employment at a reduced wage appears to be no more than a passing comment made by Professor Kompass.
Professor Mattick states at paragraph [13.32] of his first report:
She had significant complaints of emotional and cognitive dysfunction pre-accident which she did not admit to add to this assessment - raising the issue of the veracity of her report more generally.
A little later he says, at paragraph [13.36]:
There is evidence that she overstates memory complaints, which is quite consistent with my opinion.
Professor Mattick, however, had administered testing to detect malingering. He states, at paragraph [11.8.3]:
The results do not suggest that she is over-reporting any psychological disturbance or pain.
His next observation was, at paragraph [11.8.4]:
While this result may occur in individuals with “substantial medical problems who report credible symptoms, it may reflect exaggeration”.
Despite the above observation suggesting the possibility, rather than the certainty, of exaggeration, and despite Professor Mattick being a psychologist, he then makes the leap to this statement, at paragraph [11.8.4]:
I do not believe Ms Geddes has such substantial medical problems, so I interpret the results as indicative of exaggeration.
The question of whether the plaintiff had substantial medical problems was discussed by Dr McMahon when he was cross-examined on his report of 21 November 2016 (Exhibit A, page 419).
Dr McMahon was concerned that Professor Mattick had incorrectly concluded that the plaintiff had indulged in over-reporting of her symptoms. Dr McMahon says that Professor Mattick’s results could only be valid if the plaintiff did not have substantial medical problems. I understood Dr McMahon to be stating that it almost defies imagination to suggest that the plaintiff did not have substantial medical problems, even accepting they may have been psychogenic in origin. I agree with him.
I also agree with Dr McMahon’s criticism concerning the pro-rating of test scores. Dr McMahon says:
I contend that Professor Mattick cannot make his conclusion of “no cognitive impairment” at 13.31.7 because his assessment of Ms. Geddes is incomplete and further 13.36 is specious on the same grounds.
In conclusion, I prefer the opinions of Drs Downing and McMahon where they conflict with that of Professor Mattick.
The defendant also relies on the opinion of a consultant neurologist, Dr Paul Spira. I found his opinion more balanced than that provided by Professor Mattick. Although Dr Spira rejects the suggestion of any traumatic brain damage and of any continuing cognitive impairment, he does accept that the symptoms related by the plaintiff are genuine and a product of the accident.
I think Dr Spira provides a sound basis for the plaintiff’s symptoms. He says, at page 6 of his report:
It appears that Mrs Geddes suffered a traumatic vestibulopathy as a result of the accident, resulting in her initial sense of imbalance. The remainder of the clinical picture with the cognitive and behavioural changes I regard to be the result of a psychogenic reaction to the accident with her gross overvaluation of her injury. It is evident that whenever Mrs Geddes has been seen by doctors she has commented on 10 – 30 minutes of unconsciousness at the scene making others overvalue the injury much as she has. Nonetheless, the neurologist and psychiatrist both recognised the psychogenic nature of her symptomatology although psychologists have apparently given her the message that she sustained traumatic brain injury, something for which there is no evidence. Overall I believe it is Mrs Geddes’ overvaluation of injury which has seen her adopt the invalid mentality evident from the earlier stages of the accident.
Thus, although Dr Spira doubts the presence of any visible brain injury, he does at least recognise that as far as the plaintiff is concerned the injury is real, although derived from a psychogenic reaction. This is quite different to the exaggeration stance taken by Professor Mattick. In addition, Dr Spira suggests further treatment including:
Management of tension-type headaches and her migraines. The most important message to Mrs Geddes is the reversibility of her current state and the fact that she is expected to make a full recovery.
Plainly Dr Spira sees the solution to the plaintiff’s problems to lie within the expertise of a psychologist or psychiatrist. What he does not do is doubt the plaintiff’s belief in her symptoms.
Approaching the matter on the basis of Dr Spira’s opinion, there is in reality little difference between the views of the parties. Dr Perera referred to the plaintiff as having suffered a “functional brain disorder.” She agreed, in her oral evidence, that this was the same as a “psychogenic” condition.
I note here that, as far as the plaintiff’s prognosis is concerned, Dr Perera accepted under cross-examination that she could not say that the conclusions she states in her report of 22 August 2016 about work capacity could be classified as “more likely than not”. Rather, she said that the future of the plaintiff’s work capacity was subject to the final sentence in her report:
Therefore she may recover completely but her condition may remain a chronic disorder as well.
Dr Omar Ahmad, in his report of 18 May 2016 (Exhibit A, page 280), commented on Dr Spira’s opinion. He stated:
In terms of Professor Spira’s assessment on 14 March I would agree that she does not have a degenerative cause for her cognitive disorder. It is likely to be functional in nature and this is already well known to myself and her treating psychiatrist. I do not believe that Sarah has been producing the symptoms deliberately or feigning symptoms in order to gain financial advantage. Frank psychiatric disease is more prevalent in functional neurological disorders but it is not a requirement for its diagnosis. It is also debatable as to whether this is a psychiatric disorder or not as most cases diagnosed via a neurologist.
Dr Ahmad clearly has concerns for the plaintiff’s prognosis. His diagnosis is, however, little different to that of Dr Spira.
The most recent report from Dr Ahmad (6 September 2016), confirms his view that the plaintiff does not have “a degenerative cognitive disorder and that her cognitive symptoms are in keeping with a functional neurological illness rather than organic dementia”.
Dr Perera was asked to comment on the opinion of Dr Hamilton, the psychologist, as expressed in her report of 8 July 2016 (Exhibit A, page 282). In this report, Dr Hamilton says:
Should the compensation matter conclude, it is likely that Ms Geddes need [for] clinical psychology services would also conclude.
Dr Perera disagreed with this conclusion, although she did agree that pending compensation proceedings could be a source of great stress. She did not, however, agree that the ending of the proceedings would necessarily bring an end to the need for continuing treatment.
I agree with Dr Perera that legal proceedings can be very stressful but that their conclusion would not automatically bring about a cessation of the need for psychological treatment. I do, however, accept that the finalising of the case will greatly assist the plaintiff by relieving her of a source of ongoing stress.
It may be that Dr Hamilton is distinguishing between the plaintiff’s mental health needs and her neurological needs. This is consistent with her prognosis:
In terms of Ms Geddes mental health, she has responded well to treatment with good remission of symptoms of psychological distress. This is separate to her cognitive and executive functioning deficits which seem to have been consistent over time. A neurologist and/or a neuropsychologist would be best placed to comment on likelihood of improvement of these deficits over time.
It can be seen from the above prognosis that Dr Hamilton has distinguished between a mental injury and a neurological injury. If in fact, as Dr Ahmad, Dr Spira and Dr Perera suggest, the cognitive deficits are functional in origin, then Dr Hamilton’s prediction about the legal proceedings falls away because psychological treatment will play an integral part in dealing with the plaintiff’s cognitive deficits. This is precisely the formula suggested by Dr Spira.
Damages
As far as damages for the past are concerned, except for general damages, it does not matter much whether the plaintiff suffered traumatic brain damage or her cognitive deficits are only functional. This is because her actions since the accident would not have differed whatever the nature of her injury.
The real impact on her damages, stemming from the nature of her injuries, concerns the future. Actual brain trauma would probably have resulted in damages being awarded for the rest of her life expectancy, and certainly the whole of her working life.
On the other hand, as a functional injury, there remains the distinct possibility that the plaintiff will improve and return to a state which she would have achieved but for the accident. One of the difficulties in this case is to know if such improvement will occur and in what time frame. The plaintiff suggested another five and a half years. The defendant said three years.
It is now about four and a half years since the accident. The plaintiff continues to display cognitive deficits. Whatever the precise nature of her condition may be, it must now be considered as chronic. It is also true, however, that the plaintiff has made considerable progress, even if some of that progress can be attributed to better organisation of her lifestyle. In addition, the finalisation of legal proceedings will remove a major stressor from her daily life and assist in the improvement she has made so far.
However intense the plaintiff’s future treatment may be, it is unlikely to produce a full recovery within a short period of time. The recovery is likely to be gradual and prolonged. In my view, the appropriate manner of dealing with damages for the future is to assume that the plaintiff will continue to suffer, but at a progressively lesser extent, over the next five years. This finding will be at the core of my assessment of damages for future economic loss, future medical expenses and future domestic assistance. It will also influence the extent of general damages.
General damages: The plaintiff’s submission on general damages was $125,000. The defendant submitted the appropriate figure was $50,000.
I think that the respective figures probably represent the extremes of the appropriate range, although the plaintiff’s figure is closer to the mark. I do not think the defendant’s figure takes into account the pain and suffering the plaintiff has been through for the last four and a half years, let alone makes any real allowance for the future. Notwithstanding that the cognitive difficulties may be psychogenic in nature; the plaintiff has nevertheless endured these difficulties.
I think that the appropriate figure is $90,000. Since the accident, the plaintiff has endured periods of pain but, more importantly, suffered significant distress and upset as well as, even if only perceived, cognitive deficits which have affected her both at home and at work.
The plaintiff has seen her chosen career path diverted to working at a lower level. She has been plagued by fatigue and an inability to enjoy many of her pre-accident pursuits and hobbies to the same extent. The effects will persist for some time into the future.
I will adopt the same interest rates and formulae as agreed by the parties. I assess interest at $4,050.
Medical expenses: Past out-of-pocket expenses were agreed at $36,000.
The plaintiff’s claim for future medical expenses was $40,550. The defendant suggested $7,455. There were three main areas of difference. Firstly, the plaintiff’s regime is for five and a half years into the future. The defendant limits the claim to three years. Secondly, the plaintiff submitted that there should be 37 sessions of physiotherapy. The defendant only allowed for 20 sessions. Finally, the plaintiff claimed $20,800 for exercise physiology. The defendant submitted that there should be no allowance because the plaintiff has apparently gave up this exercise in June 2016.
I have already said that I think the plaintiff should be treated as having an ongoing disability for the next five years. Although Ms Sproule does refer to the cognitive deficits as being based on specific trauma, I do not think that necessarily negates the need for physiotherapy. It might be said that if the condition is in ‘the plaintiff’s head’, as opposed to in her ‘body’, then there is no need for physiotherapy. This ignores the fact that the plaintiff believes the problem is trauma based and until this conception is dispelled she will continue to suffer the same problems. I therefore intend to allow the claim for physiotherapy of $4,070.
I accept that the exercise physiology was stopped for financial reasons and that it will have a benefit to the plaintiff. I do not, however, think that the extent of the claim should be allowed, especially as the plaintiff has been able to cope over the last year without it. I allow $10,000. I allow medications at $35 per month for five years. On the 3% tables this is $1,959. I think that the plaintiff’s claim for 10 sessions of psychological treatment is reasonable. Most of the treatment is likely to occur sooner rather than later. I allow her $2,000, which includes a slight reduction for the accelerated payment.
I think that the claim for a massage every three weeks is excessive. I allow six massages a year for five years at $80 each. Applying the 3% discount the figure is $2,239. For GP visits, I allow three visits per year for five years at $85 per visit. On the tables is the figure is $1,190. Similarly for the neurologist I allow two visits per annum for five years at $190 per visit. The figure is $1,773.
The total for future treatment is $23,231.
Economic loss: This was the most contentious area of damages. The plaintiff claimed $196,000 for the past and $200,000 for the future. The defendant submitted that $30,576 should be allowed for the past and $27,875 for the future. Both parties’ figures included lost superannuation benefits.
I think that the starting point for the debate is the plaintiff’s net weekly wage at the time of the accident. The plaintiff said her net weekly wage was $1,521 per week. The defendant said $1,117 per week. The plaintiff accepted that her figure might be excessive.
I think that the answer lies in Exhibit 5, which demonstrates that, around the time of the accident, the plaintiff earned a net weekly wage of a few dollars either side of $2,400 per fortnight. The defendant submitted that this figure did not take into account the deductions that can be seen in the tax return for the year ending 30 June 2013, which total $9,450 (Exhibit 7).
I do not think that the $9,450 should be taken into account because the figures in Exhibit 5 reflect the plaintiff’s capacity. I will proceed on the basis of the plaintiff having had a capacity to earn $1,200 net per week as at the date of the accident.
The parties agreed that, since 1 June 2013, when the plaintiff ceased her employment at ANU, until the present time, she has earned $112,848 net. The parties also agreed that the plaintiff’s current wage is $950 per week net.
The approach taken by the respective parties was very different. For example, the plaintiff allowed for annual increases of 3% and for superannuation at 17% for the whole period to the present. The defendant did not allow for any income after the plaintiff gave birth and reduced the superannuation percentage to 11.5% after 45 weeks.
In addition, the defendant submitted that the plaintiff’s refusal to carry on at the Crawford School at a lower pay grade should be treated as a failure to mitigate her damages. I have already partially dealt with this matter in considering Professor Mattick’s reports. I do not think there has been any failure to mitigate.
In addition to what I have said above, the plaintiff, who was then suffering significantly from her injuries, was entitled to refuse the lower paid job based on her own fear and perception of her capacity. In addition, her cognitive deficits may well have been a factor in her unreasonable, if that was the case, rejection of the lower paid position.
The plaintiff’s figures included a reduction of 50% for a year, notionally described as maternity leave. This was derived from the ANU’s terms of employment.
I have decided to take a more simplistic, but hopefully fairer, approach then that taken by both parties. There have been 215 weeks since 1 June 2013. Reducing this number by 52 weeks of maternity leave, the remainder is 163 weeks. At $1,200 per week the plaintiff would have earned, assuming she stayed at ANU or in a similar position, $195,600. To this must be added 52 weeks (the maternity period) at $600 per week. This is $31,200. The total amount the plaintiff would have earned but for the accident is therefore $226,800. From this figure however must be deducted the actual earnings of $112,848. The result is past economic loss of $113,952.
As far as superannuation is concerned, I think that allowance must be made for the fact that the whole of the plaintiff’s employment may not have been at ANU, which has a very generous superannuation contribution. I think it fair to allow an average of 15.25%. The result is $17,377. Total past economic loss is therefore $131,329.
The parties agreed that interest should be, effectively, 3% for four and a half years. This produces a figure of $17,729.
Both sides approached future economic loss on a buffer basis, but as observed above, each suggested a very different buffer. The plaintiff’s figure of $200,000 is roughly based on a 50% capacity to work over five and a half years. Although styled as a buffer, the reasoning behind it ignores any discounting for accelerated payment and takes no account of the plaintiff’s current earnings of $950 per week net. It may be that there are ‘hidden’ reasons for the plaintiff’s current high wage, but they are not reasons that I can take into account.
The defendant’s figure is, I think, simply too low and does not allow for the plaintiff gradually returning to the workforce but, for a significant part of the next five years, finding it difficult to return to her previous work capacity.
I think that the appropriate measure of damages for future economic loss is to allow the plaintiff $250 per week ($1,200 minus $950) for the whole of the next five years, but discounted on the 3% tables and then further discounted by 5% for vicissitudes. The figure is $57,617. I have not used the normal reduction of 15% for vicissitudes because the period into the future is only five years.
Again using the average superannuation percentage of 15.25%, lost future superannuation benefits are $8,786. Total future economic loss is $66,403.
Domestic assistance: For past domestic assistance the plaintiff asked for $40,000. The defendant suggested $25,254. The agreed rate was $30 per hour. The difficulty with the plaintiff’s submission is that there was no actual evidence of the number of hours spent by the plaintiff’s husband in carrying out domestic tasks. I accept, as the defendant also obviously accepts, that he did do a good deal of caring for the plaintiff and that this has continued, at least on an averaging basis, until the present.
Were it not for the concessions made by the defendant, I would have struggled to reach any firm conclusion about the extent of past domestic assistance. I do, however, firmly believe that where a defendant has submitted an appropriate figure, a court should not allow an amount below that figure. In the same way, a court should not allow a figure in excess of that claimed by a plaintiff. Accordingly, I allow the defendant’s figure of $25,254.
In respect of the future, the plaintiff asked for $30,000. The defendant said “nil”. Part of the plaintiff’s claim is that her husband does more than his fair burden of childcare responsibilities. I reject this claim for two reasons. Firstly, there was no evidence of what childcare responsibilities Mr El-Dik would have assumed but for the accident. Secondly, childcare responsibilities rest on both parents.
It does not follow, however, that I accept the defendant’s submission. I think that the plaintiff does continue to require assistance, in particular with long distance driving, organisation and some domestic tasks. I think that the defendant’s suggestion of two hours per week at present should continue for five years into the future. At $30 per hour, on the 3% tables, the figure is $14,556.
A summary of the damages I have awarded is as follows:
General Damages $90,000.00 Interest on General Damages $4,050.00 Past medical expenses $36,000.00 Future medical expenses $23,231.00 Past economic loss including lost superannuation benefits $131,329.00 Interest on past economic loss $17,729.00 Future economic loss including lost superannuation benefits $66,403.00 Past domestic assistance $25,254.00 Future domestic assistance $14,556.00 Total $408,552.00
I make the following orders:
(a)Judgment for the plaintiff in the sum of $408,552.
(b)The defendant is to pay the plaintiff’s costs of the proceedings.
(c)The exhibits may be returned.
I will hear the parties if any different costs orders are sought.
| I certify that the preceding one hundred and forty-eight [148] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: 24 July 2017 |
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