Geraci v Ketchban

[2024] NSWDC 70

District Court

New South Wales

Medium Neutral Citation:

Geraci v Ketchban [2024] NSWDC 70

Hearing dates:

20-22 February 2024

Date of orders:

12 March 2024

Decision date:

12 March 2024

Jurisdiction:

Civil

Before:

Dicker SC DCJ

Decision:

(1) Judgment for the plaintiff.

(2) The parties are to bring in agreed short minutes of order within seven days reflecting the Court’s reasons for decision.

(3) The defendant is to pay the plaintiff’s costs of the proceedings as agreed or assessed.

(4) The parties have leave to make an application within 14 days to vary the order as to costs in (3) above.

(5) Liberty to apply to the Associate to Dicker SC DCJ to relist the matter on two business days’ notice.

(6) Exhibits are to be returned after 28 days of final orders being made.

Catchwords:

TORTS – negligence - motor vehicle accident -liability admitted - assessment of damages -substantial inconsistency in the medico-legal reports - pre-existing conditions including multiple sclerosis and psychological conditions - whether plaintiff had any, or any significant, loss of salary or earning capacity

Legislation Cited:

Civil Liability Act 2002 (NSW)

Motor Accidents Compensation Act 1999 (NSW)

Cases Cited:

Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13

Avopiling Pty Ltd v Bosevski [2018] NSWCA 146

Brear v James Hardie & Coy Pty Ltd (2000) 50 NSWLR 388

Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320

Curtis v Harden Shire Council [2014] NSWCA 314

Gulic v Angelovski [2018] NSWCA 161

Kabic v AAI Limited t/as GIO [2019] NSWCA 247

Lloyd v Thornbury [2019] NSWCA 154

Malec v JC Hutton [1990] HCA 20; (1990) 169 CLR 638

Mason v Demasi [2009] NSWCA 227

Metro North Hospital and Health Service v Pierce [2018] NSWCA 11

Miller v Galderisi [2009] NSWCA 353

New South Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536

Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164

Ramsey v Denton [2020] NSWDC 426

Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208

Smith v Alone [2017] NSWCA 287

Sretenovic v Reed [2009] NSWCA 280

Strong v Woolworths [2012] HCA 5; (2012) 246 CLR 182

Watts v Rake [1960] HCA 58; (1960) 108 CLR 158

Category:

Principal judgment

Parties:

Ramona Geraci (Plaintiff)
Joseff Kechtban (Defendant)

Representation:

Counsel:
L Morgan (Plaintiff)
D Ronzani (Defendannt)

Solicitors:
Beilby Poulden Costello (Plaintiff)
Barry Nilsson Lawyers (Defendant)

File Number(s):

2022/00259352

Publication restriction:

No

JUDGMENT

1. In these proceedings, the plaintiff, Ms Ramona Geraci, sued the defendant, Mr Joseff Kechtban, for damages in the tort of negligence for injuries allegedly sustained by the plaintiff in a motor vehicle accident which occurred on 31 July 2016.

2. The plaintiff was a front seat passenger in a sedan which was being driven by her then partner along The Horsley Drive at Fairfield in Sydney. The car in which she was sitting was struck on the left hand side near her by the defendant’s vehicle which was exiting from a service station onto The Horsley Drive.

3. Liability is not in issue. The plaintiff alighted from the car straight after the accident. She did not feel immediate pain. The car in which she was sitting was driveable and she and her partner then proceeded to a lunch. In the course of the lunch, she began feeling pain in her neck and back and they proceeded to the Emergency Department at Fairfield Hospital.

4. As liability has been admitted by the defendant, the proceedings related to an assessment of the plaintiff’s damages, if any. The proceedings are significantly complicated by the plaintiff’s sketchy working history at the time of the accident and her diagnosis with multiple sclerosis in 2014, some 18 months before the accident. In addition, the plaintiff was obtaining treatment for psychological conditions in the three year period prior to the accident. These matters will be considered in further detail below.

The pleadings and particulars

5. Negligence was asserted by the plaintiff in her Statement of Claim which was filed on 31 August 2022.

6. In the latest version of the plaintiff’s Statement of Particulars filed on 20 February 2023, the plaintiff particularises her injuries as being an injury to the neck, an injury to the back, major depressive disorder, post-traumatic stress disorder and recurrent panic attacks. Continuing disabilities are particularised as pain and restrictions in the neck, back, pain in the upper and lower limbs, a requirement to take antidepressant and painkilling medication, ongoing psychiatric injuries, incapacity to work, affected gait and a large list of other physical and psychological limitations.

7. The plaintiff has not been assessed as having a greater than 10% whole person impairment. Accordingly, no damages may be awarded to the plaintiff for non-economic loss: Section 131 of the Motor Accidents Compensation Act 1999 (NSW) (“MACA”).

8. Damages are sought by the plaintiff under the following heads:

1. Past out of pocket expenses;

2. Future out of pocket expenses;

3. Future commercial care;

4. Past loss of wages and earning capacity;

5. Future loss of earning capacity; and

6. Past and future loss of superannuation benefits.

9. In his Defence filed on 2 March 2023, the defendant admitted a breach of duty of care but did not admit causation or damage. Credit for amounts paid to, for or on behalf of the plaintiff under s 83 of MACA is also pleaded.

10. As proceedings were commenced more than three years after the motor vehicle accident, the plaintiff sought leave under s 109 of MACA to continue with the proceedings. Leave was granted by Judge Neilson DCJ on 3 February 2023 to the plaintiff.

The evidence - summary

11. The only oral evidence given in the proceedings was given by the plaintiff.

12. Voluminous documentary evidence was tendered by the parties consisting primarily of hospital documents, general practitioner consultation notes, treating doctor reports and medicolegal reports.

Background facts

13. It is necessary to set out a summary of the background facts in the matter. This will include some references to the plaintiff’s various medical conditions. Unless otherwise indicated, what follows consists of the Court’s factual findings in the matter. Additional factual findings will need to be made in relation to the plaintiff’s medical condition at various times, both physically and psychologically.

14. The plaintiff left high school in 1994 without completing Year 10 or obtaining the School Certificate. Thereafter, she worked part-time in a retail setting and completed a six week course in acrylic nail application intending in due course to fulfil her childhood desire to work in the beauty therapy industry.

15. In 1996 the plaintiff completed a 12 months fulltime private beauty therapy diploma course at an academy in the city of Sydney. She had difficulties finding fulltime employment and had various part-time jobs in 1997-1998.

16. In 1998 the plaintiff commenced fulltime employment at a beauty salon as a beauty therapist in a suburb of Sydney. At about that time her mother passed away at an early age.

17. The plaintiff left her job to travel overseas to Italy for two months with her father to visit relatives. On her return, she worked casually at various beauty salons.

18. In early 2001, she met her future husband at a family function in Sydney and thereafter, in the following years, spent considerable periods in Italy. She had difficulties getting beauty salon jobs and eventually later that year worked at a cafe at Hurstville in Sydney. In late 2002 she returned to Italy and lived with her future husband before returning to Australia with him in mid-2003. There was no evidence the plaintiff had any employment while she was overseas.

19. In late 2003 the plaintiff subleased a small space in a hair salon to provide beauty therapy treatments. In due course, the demographic of the clients changed in the salon and her customers dwindled. She ceased operating the beauty therapy business. She married in early 2004. Later that year she had limited employment at David Jones as a beauty therapist for a short period.

20. In 2005 the plaintiff worked as a beauty therapist on a fulltime basis which continued for approximately two years. In that period she separated from her husband. Up to this time it is clear that the plaintiff had sporadic employment in the beauty therapy industry with two lengthy periods of fulltime employment. She left her job at the beauty therapy salon in mid-2007.

21. In September 2007, the plaintiff was diagnosed with thyroid cancer and had a total thyroidectomy. She has remained on daily medication for this since. Soon after, she started on Centrelink payments and was not working for a number of months.

22. In 2008, the plaintiff worked for a short period for a cosmetic company before returning to her beauty therapy role in the city salon. Clearly the diagnosis of thyroid cancer and the thyroidectomy had an effect on her. In mid-2009 the plaintiff commenced her own business as a beauty therapist trading as “Botanical Skin Care” in Sussex Street in Sydney. Her father paid for the costs of setting up the business and renovation work was completed by her father and her then boyfriend. In the first year of operation, according to the plaintiff’s tax return, she had limited net income and substantial expenses. The second year, according to her tax return, had improving, but still modest, net income.

23. In late 2010, the plaintiff’s father was diagnosed with cancer and in due course the plaintiff provided more care for her father. In mid-2011 she started receiving the carer’s pension and closed her business on Sussex Street.

24. I find on the evidence that the plaintiff had employment for only two weeks in the period from mid-2011 until the date of the accident on 31 July 2016 and this was completing administrative work at a funeral parlour. In that five-year period, the plaintiff did not work at all as a beauty therapist.

25. The plaintiff’s father passed away at the end of 2011. The plaintiff was close to her father and this had a substantial effect on her. Her carer’s pension was stopped soon after and she moved on to a Newstart allowance. Towards the end of 2013, the plaintiff worked for the two weeks period in a funeral home in Dulwich Hill but the work ceased. At the end of 2013, the plaintiff appeared to become depressed. It was the two-year anniversary of her father’s death, she had lost her employment (which was the only two weeks period she had worked for a number of years), and she had other stressors in her life. The plaintiff engaged in limited self-harm on one occasion at this time. A friend referred her to police who took her to hospital. There are extensive records in relation to this admission in December 2013 which established that the plaintiff had numerous stressors in her life at the time. The hospital staff were satisfied that the plaintiff was not a risk to herself and she was discharged to the care of her general practitioner.

26. The plaintiff in this period was under the care of a Dr Nessa as her general practitioner. The evidence establishes that from the beginning of 2014 until at least shortly before the accident the plaintiff had a number of psychological issues including low self-esteem, depression and compulsive behaviours. In this time, Dr Nessa prepared a number of mental health plans for the plaintiff. The plaintiff also saw psychologist Ms Nasreen Ajam on a number of occasions. In December 2014, the plaintiff was diagnosed with Multiple Sclerosis which was an additional shock to her. This added to the plaintiff’s depression which was found and diagnosed by Dr Nessa. There are considerable records in evidence in which at various times Dr Nessa diagnosed the plaintiff as having permanent depression. The plaintiff was prescribed and took Aropax, an antidepressant, in 2014 to at least the latter half of 2015.

27. The plaintiff stated that she inherited the entirety of her father’s estate upon his death. She said that she loaned $496,000 to a gentleman and that the money was lost. She denied in evidence that it was an investment. The plaintiff was somewhat evasive in relation to her evidence concerning this transaction. It seems that no steps have been taken by her to recover the money. The plaintiff also admitted that over a period of about six to nine months in 2015 she squandered the remaining moneys from her father’s estate on what she described as a “lavish” lifestyle. It seems that the plaintiff had little or no funds after this time and remained on social security benefits with medical certificates being provided by Dr Nessa to support various medical conditions including depression. Shortly before the accident, Dr Schwartz, a neurologist, described the plaintiff as “suffering significant anxiety and stress” and also noted that the plaintiff was seeking “regular psychological counselling” which he thought should be encouraged (Exhibit A page 4).

28. The plaintiff formed another relationship at about this time. Also, shortly before the accident, the plaintiff’s psychologist noted that the plaintiff’s psychological symptoms had begun to “flare up again” at the beginning of 2016, partly as a result of her concerns regarding her Multiple Sclerosis diagnosis and other relationship and family issues. Her levels of anxiety were described as appearing to be “moderate and at times severe” and the plaintiff had developed a worsening of obsessive-compulsive traits (Exhibit 1 page 200).

29. Accordingly, by July 2016, shortly before the accident, the plaintiff had only worked for two weeks in the previous five years and at no stage in that period had she worked in the beauty therapy industry. She had very little financial resources, was living in a shared two-bedroom unit with an older lady in Rockdale in Sydney and had a number of psychological problems including depression and other stressors in her life. The plaintiff accepted that her beauty therapy skills needed to be updated at this time, but she had limited funds (having spent or lent her inheritance) and could not undertake any paid courses. The plaintiff gave evidence, which I accept, that she had applied for numerous jobs in the few years prior to the motor vehicle accident, without success. In my view, this lack of success was partly due to the plaintiff becoming older in her industry, her likely presentation, the psychological issues she was facing and her limited experience in the beauty therapy industry in recent times. Her lack of ability to obtain retail or administrative work also shows the numerous difficulties she was facing.

30. On 31 July 2016 the plaintiff was involved in the subject accident. She was the front seat passenger in a motor vehicle travelling along The Horsley Drive in Fairfield when a four-wheel-drive collided with the passenger side of the vehicle between the front and rear doors. It is clear that the plaintiff was jolted in the accident. However, she was able to alight from the vehicle and, after details were exchanged, proceeded in the vehicle to a function.

31. I accept and find that later that day her partner took her to Fairfield Hospital because of pain in her neck and back where she undertook a number of radiological investigations.

32. The plaintiff consulted her general practitioner, Dr Nessa, on 4 August 2016, when the motor vehicle accident was noted and it was recorded that the plaintiff had “minor muscular pain” and “vague back pain”. Dr Nessa referred the plaintiff for physiotherapy. Over the next few years, the plaintiff had substantial physiotherapy, chiropractic services, hydrotherapy and some injections to reduce her pain which were either substantially ineffective according to her or, in the case of the injections, again according to the plaintiff, made her position worse.

33. In the following years, the plaintiff consulted numerous doctors including Dr Schwartz in relation to her Multiple Sclerosis, Dr Diwan, a spinal surgeon, and, for a second opinion, Dr Kohan. Drs Diwan and Kohan recommended spinal fusion surgery. At present, this has not occurred.

34. The plaintiff has complained at various times of considerable pain in her neck, lower back, including down her left leg, her left hip and her left shoulder. These conditions have either stayed the same or got worse according to the plaintiff in the period since 2017. The plaintiff only obtained very limited benefits from the chiropractic services.

35. The plaintiff was referred to a pain management clinic at a hospital but she said this gave her limited benefit.

36. The plaintiff gave evidence that she had applied for numerous jobs within her limitations in the last few years without any success. She believes that she would be unable with her limitations to undertake beauty therapy services. She also gave evidence of limited abilities to engage in domestic tasks but was able to undertake limited cleaning and cooking. Most domestic chores were undertaken by her flatmate.

37. The plaintiff gave evidence of wishing to have the recommended spinal surgery, to update her beauty therapy skills and possibly to open a new beauty salon within her limited abilities.

38. There has been substantial dispute between the parties in relation to various aspects of the plaintiff’s injuries. She has been assessed numerous times by assessors in relation to her physical and mental problems in the Medical Assessment Service.

39. The Court did not have the benefit of any oral evidence from medical experts including her treating doctors.

40. I will make further findings in relation to disputed factual matters and the medical evidence below.

Medical material

The plaintiff’s medical condition prior to 31 July 2016

41. The plaintiff gave evidence that she was born in May 1979, being one of two female children born to her parents. The plaintiff was thus 44 years of age at the time of the hearing.

42. As indicated, there was a voluminous amount of hospital records, general practitioner records and treatment reports and records tendered in the proceedings.

43. Trial judges have been cautioned by the Court of Appeal in relation to discounting a plaintiff’s oral testimony on the basis of accounts given to various health professionals which appear to the court to be inconsistent. This is particularly the case where the particular health professional who has made the note or record has not been cross-examined: see Mason v Demasi [2009] NSWCA 227 at [2] per Basten JA and Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8].

44. These cautions have been taken into account by me in making my findings of fact and my medical findings. The plaintiff’s parents were Italian. However, the plaintiff’s first language was English and she appeared to be intelligent and articulate in her evidence. She attended many different doctors over many years. I also take into account where medical records are consistent and where they are contemporaneous.

45. The plaintiff on the materials in evidence clearly had significant psychological conditions at various times before the accident. This has been taken into account by the Court in assessing the evidence.

46. The plaintiff gave evidence that following having a sore ear she undertook radiological investigations which detected thyroid cancer. The medical records suggest that a thyroid carcinoma diagnosis was made in 2007 or 2008 (Exhibit 1 page 62; Exhibit 1 page 197). Dr Inder, surgeon, in a report dated 27 November 2015, indicated that the plaintiff had surgery in 2008 where following the location of a papillary thyroid carcinoma with malignant lymph nodes, the plaintiff had a complete thyroidectomy which the plaintiff confirmed in her oral evidence. The plaintiff also said that she had been taking regular medication following the thyroidectomy up to the present day. Dr Inder reviewed the plaintiff after an absence of several years on 27 November 2015 but did not regard the plaintiff’s request for a whole-body iodide scan at that time to be necessary (Exhibit 1 page 197).

41. A report of Dr Schwartz, neurologist, dated 22 December 2014, refers to the plaintiff having dizziness and then an MRI scan of the brain in the context of her history of thyroid cancer. A background of numbness in the plaintiff’s right face and arm in the past was noted. Dr Schwartz diagnosed the plaintiff as having Multiple Sclerosis and recommended immune-modulating therapy with drugs which the plaintiff did not take up because of a desire to fall pregnant in the short term. The plaintiff’s Multiple Sclerosis was described as being asymptomatic.

42. Dr Schwartz in a report dated 5 April 2016 referred to the plaintiff having two further episodes suggestive of demyelination characterised by paraesthesia affecting her trunk and lower limbs in the period since December 2014.

43. A discharge referral note from St George Hospital dated 23 May 2016, shortly before the accident, also noted that the plaintiff had paraesthesia in the left arm and hand (Exhibit 1 page 44).

44. The plaintiff appears to have had a number of medical conditions and hospital attendances prior to the accident on 31 July 2016, in addition to her consultations with Dr Schwartz in relation to her Multiple Sclerosis.

45. The evidence suggests the plaintiff having a number of psychological complaints prior to the accident. These were noted in the period after the death of her father with whom she appeared to have been close.

46. The evidence discloses that on 20 December 2013 the plaintiff texted a friend suggesting that she wanted to self-harm. The friend called police who took the plaintiff to St George Hospital. The documentation suggests that the plaintiff was taking the antidepressant Aropax at the time (Exhibit 1 page 14) and had self-harmed by inflicting superficial cuts on a number of places on her body (Exhibit 1 page 14 and Exhibit 1 page 17). The plaintiff downplayed this in her oral evidence. The plaintiff suggested suicidal ideation for various reasons including being terminated from her job at the funeral parlour and it also being the second anniversary of her father’s death. A relationship of eight years had also ended recently. After discussion with health professionals the plaintiff denied any intent to self-injure and she was discharged from hospital.

47. The hospital records indicate that the plaintiff complained of having depression “for 10 years” (Exhibit 1 page 27). The notes also indicate that the plaintiff was referred by her general practitioner to a psychologist in 2009 “with suicidal ideation” (Exhibit 1 page 27). It is stated that the plaintiff originally cut herself at aged 19 (Exhibit 1 page 26). These incidents were not explored in oral evidence. Other records from St George Hospital suggest that the plaintiff presented in 2009 to the emergency department with anxiety following a diagnosis of depression some 10 years previously (Exhibit 1 page 19): see Exhibit 1 pages 14-30.

48. On 22 May 2016, the plaintiff presented to hospital complaining of chest pain with sharp left-sided chest pain at rest. This does not appear to have caused other problems: see Exhibit 1 pages 38-63.

49. Included in the material tendered were the records of the plaintiff’s general practitioner Dr Nessa for the period from early 2014 to shortly after the accident. There are numerous references in the progress notes of Dr Nessa to the plaintiff having a psychology appointment including with Ms Nasreen Ajam, psychologist, from early 2014. As at March 2014, the plaintiff was on Aropax (Exhibit 1 page 68). In a consultation on 16 April 2014, Dr Nessa records that the plaintiff had just finished six sessions with psychologist Ms Ajam the day before. There were references to the preparation of a mental health plan.

50. On 17 June 2014, Dr Nessa records that the plaintiff was seeing her psychologist but was not feeling better and needed to see a psychiatrist. On 15 August 2014, there was a discussion by Dr Nessa with the plaintiff about reducing her dose of Aropax. However, in notes for 16 October 2014 it is recorded the plaintiff was teary and anxious as she was having withdrawal symptoms. On 17 November 2014, Dr Nessa records the plaintiff as wanting Valium and Valium was prescribed with the note that the plaintiff had been advised by Dr Nessa that there would be no more scripts from her (Exhibit 1 page 71). In the following period, Dr Nessa makes numerous references to the plaintiff being under stress, seeing her psychologist and needing counselling. Clearly the plaintiff’s diagnosis of Multiple Sclerosis was a stressor for her at the time. On 27 April 2015, Dr Nessa records a mental health plan with four more sessions with Ms Ajam (Exhibit 1 page 72).

51. On 14 August 2015, Dr Nessa records that Centrelink had cut down the plaintiff’s “leave” and the plaintiff was advised to go on a disability payment, but she did not apparently want to do so (Exhibit 1 page 74). On 11 September 2015, there is a reference in Dr Nessa’s notes to the plaintiff having depression and going to see her psychologist in the following week.

52. Dr Nessa referred the plaintiff to Dr Goran, psychiatrist, by letter dated 7 September 2015 which referred to the plaintiff suffering “medical & mental illnesses” (Exhibit 1 page 123). On 17 September 2015, it is recorded that the plaintiff saw a psychiatrist (probably Dr Goran) but was not happy with the consultation.

53. In a note for 25 May 2016, Dr Nessa records a “bizarre” history with three hospital admissions by the plaintiff. It is also recorded that the plaintiff apparently said that she was going on a disability pension. However, the plaintiff denied applying for a disability pension before the accident.

54. In an entry for 7 June 2016, shortly prior to the accident, it is indicated that the plaintiff had finished six sessions with her psychologist and wanted four more. A mental health plan was prepared (Exhibit 1 pages 78-79).

55. Also in evidence were numerous medical certificates provided by Dr Nessa to Centrelink from 16 July 2014 to 1 February 2016. These referred variously to the plaintiff having depression (Exhibit 1 page 145), a suicide attempt with depression in April 2014 (Exhibit 1 page 143), “severe depression with suicide attempt” in October 2014 (Exhibit 1 page 142), “severe depression” with “borderline personality disorder” in April 2015 (Exhibit 1 page 139), “depression major” in July 2015 (Exhibit 1 page 137) and also the same diagnosis with anxiety in August 2015 (Exhibit 1 page 136). In February 2016 Dr Nessa gave a certificate for various conditions including “depression & anxiety worse after diagnosed MS” (Exhibit 1 page 135).

56. There also exists in the materials various documents being assessments by Dr Nessa from April 2014. These included various references to the plaintiff being nervous, restless and depressed. An assessment on 7 June 2016, several weeks before the accident, indicated that the plaintiff felt depressed most of the time and also felt nervous and restless most of the time (Exhibit 1 page 146). The various assessments by Dr Nessa may be found at the following pages of Exhibit 1: pages 146, 148, 160, 163, 174. Significantly, the plaintiff’s assessment was not substantially different from early 2015 to June 2016.

57. There are also in the materials tendered a number of reports of Ms Ajam, the psychologist who the plaintiff attended. In her report dated 15 April 2015, Ms Ajam stated the following:

“I have been seeing Ramona Geraci every fortnight and she will require a mental health review from you. Sessions have focused on the following:

�  Assessment on the possible presence of traits associated with Borderline Personality Disorder;

�  Interpersonal psychotherapy strategies;

�  Cognitive behavioural treatment for the management of moderate obsessive-compulsive traits in relation to checking behaviours around her home.

Thus far, Ramona’s traits are borderline personality, I believe are not severe enough to warrant a diagnosis of this disorder. She does however present with a fragile self-esteem, difficulties in relationships with men (instability), angry outbursts, dependency behaviours with men, suspicion and mistrust of others, unstable moods and risk-taking behaviours with men via sexual advances.

In addition to the aforementioned problems she has also developed an obsessive-compulsive ritual, which has recently reduced, and it is something we continue to focus on in sessions together.” (Exhibit 1 page 190).

64. In a report dated 24 August 2015, Ms Ajam stated:

“I am Ramona’s treating psychologist and this is to inform you that she presents with traits of borderline personality disorder with secondary symptoms of depression and anxiety. Treatment for her will be ongoing and long term at this stage” (Exhibit 1 page 192).

65. In a report dated 3 June 2016, less than two months before the subject accident, Ms Ajam stated:

“Thank you for completing another mental health review for Ramona. She appeared to be coping well last year, however towards the beginning of this year her symptoms began to flare up again. I believe this is as a result of her concern regarding her MS, the want to start a family and entering a new relationship …

Ramona worries about abandonment and rejection in others, especially in romantic relationships.

Her levels of anxiety appear moderate and at times severe and she has developed a worsening of obsessive-compulsive traits around checking behaviours in her home. Currently we are addressing this issue through graded exposure strategies”.

66. In her oral evidence, the plaintiff initially indicated in chief that she was not sure whether she was still seeing Ms Ajam in 2016. It is clear that she was, with a number of psychological issues being present including moderate anxiety, a worsening of obsessive-compulsive traits and complaints about depression.

67. It is noted that Dr Nessa signed an application by the plaintiff for early release of superannuation on specified compassionate grounds on 17 June 2014 indicating that the plaintiff had chronic depression and anxiety and that she was on antidepressants and was having ongoing counselling (Exhibit 1 page 205).

68. A substantial number of the plaintiff’s medical records relating to her psychological condition before the accident were considered by Assessor Dr McClure from the Medical Assessment Service in his assessment dated 3 December 2019 (Exhibit A page 176), particularly at pages 6-9 (Exhibit A pages 181-184). Dr McClure assessed that there had been an exacerbation of the plaintiff’s pre-existing adjustment disorder with anxiety by the accident with a somatic symptom disorder (Exhibit A page 184). I will consider this assessment further below.

69. Accordingly, prior to the accident the plaintiff had been diagnosed with:

1. Thyroid cancer in 2007 which led to a thyroidectomy in 2008;

2. Depression and other psychological symptoms including anxiety for a number of years from 2014 to the time of the accident;

3. Asymptomatic multiple sclerosis apart from a limited number of complaints of paraesthesia in various areas.

Treatment on and after 31 July 2016

70. Also included in the materials are various medical records, consultation notes and reports in the period from the day of the accident to the end of 2016/early 2017.

71. As indicated above, the plaintiff attended Fairfield Hospital emergency department with her partner on the day of the accident complaining of head, neck and back pain following the accident.

72. Upon examination, there was tenderness in the thoracic area with the medical practitioner diagnosing back and neck pain. Radiology was ordered (Exhibit A pages 13-14). An x-ray of the cervical spine was reported by Dr Torkington as showing scoliosis but no fractures or radiculopathy. An x-ray of the thoracic spine had a similar result. The plaintiff’s chest x-ray and a CT of the brain were clear (Exhibit A pages 17-23). The plaintiff was advised to go home and to follow up with her general practitioner.

73. It appears that the plaintiff saw Dr Nessa on 4 August 2016. Dr Nessa records the motor vehicle accident on 31 July 2016 with the plaintiff attending hospital and having various x-rays and a CT of the brain which are described as “unremarkable”. Dr Nessa records the plaintiff complaining of minor muscular pain and “vague back pain” and giving a “bizarre” history and wanting an insurance form (Exhibit 1 page 79). Dr Nessa describes the appointment as a “very long & frustrating consult”. On 23 August 2016, it is recorded that the physiotherapist wanted a letter from Dr Nessa indicating that the plaintiff had been suffering from neck and back pain since the motor vehicle accident. There was reference to the need to disclose the plaintiff’s multiple sclerosis. A referral was given to a physiotherapist. Dr Nessa’s notes for 26 August 2016 indicate that the plaintiff’s application for a disability pension was rejected and that the plaintiff was having physiotherapy. There is a reference to the plaintiff saying (it appears) she was going on a disability pension in the doctor’s notes for 25 May 2016, prior to the accident.

74. There are then a number of medical and allied health treating reports in evidence.

75. There is a report from Mr James Wall, physiotherapist, dated 31 October 2016 to Dr Nessa noting a referral for physiotherapy treatment for the plaintiff following the 31 July 2016 accident. Mr Wall indicates that the plaintiff had been attending for treatment to her cervical/thoracic/lumbar spine and had 20 physiotherapy sessions so far. He indicated that the plaintiff’s dizziness had resolved, headaches were only intermittent and mild and the plaintiff’s thoracic spine pain was significantly less. The main complaint was left sided lower back pain with radiculopathy into the left leg with tenderness on palpation to the L4/S1 left facet joints (Exhibit A page 25).

76. Dr Schwartz saw the plaintiff on a number of occasions in the second half of 2016. In a report dated 7 June 2016, shortly before the accident, Dr Schwartz recorded:

“Ramona seems to be suffering significant anxiety and stress and tells me that she is seeking regular psychological counselling which should be encouraged” (Exhibit A page 4).

77. In a report dated 25 August 2016, Dr Schwartz referred to the plaintiff having anxiety and stress and needing psychological intervention as it may affect her multiple sclerosis (Exhibit A page 6).

Treatment and reports from 2017 to date

78. On 5 January 2017, the plaintiff presented to Sydney Hospital complaining of headaches and panic attacks for the last three months which she said had become more frequent recently. There was a reference to the plaintiff having chronic low back pain from the accident (Exhibit 1 pages 33-34).

79. In a report dated 15 February 2017, Dr Schwartz indicated that the main factor undermining the plaintiff’s well-being was her “crippling anxiety and stress with features of obsessive-compulsive disorder”. Dr Schwartz was of the view that the plaintiff needed to be referred to a psychologist and/or psychiatrist “urgently”: Exhibit A page 8. It should be noted that the obsessive-compulsive disorder was referred to by Ms Ajam prior to the accident.

80. In a report dated 31 July 2017, Dr Schwartz referred to the plaintiff having issues of back pain which he suspected may be due to some mild facet joint arthritis. He advised against any surgical intervention.

81. Included in the material tendered were various radiological reports. These are considered in a number of the medical reports. There was an MRI of the plaintiff’s full spine reported on on 31 March 2017 by Dr Shnier. This referred to inflammation consistent with the plaintiff’s multiple sclerosis as well as multilevel spondylotic changes and an abnormal bone marrow signal in the L2 vertebral body.

82. A report from Dr Quinn dated 3 May 2017 of a bone scan referred to various degenerative conditions in the spine but indicated that there was no evidence of significant bony injury.

83. A report of a CT of the lumbar spine dated 4 May 2017 from Dr Bryant referred to minor disc bulging at various levels and various degenerative conditions of the lumbar and thoracic spine but otherwise no fractures (Exhibit A page 50).

84. There was an MRI of the cervical, thoracic and lumbar spine dated 10 November 2017 by Dr Rowan which was generally consistent with Dr Quinn’s earlier opinion (Exhibit A page 56).

85. An x-ray of the lumbosacral spine by Dr Tew dated 15 June 2018 referred to various degenerative conditions and mild to moderate disc space reduction at the L5/S1 level but otherwise no significant issues.

86. A report of an MRI of the lumbar spine by Dr O’Connell dated 15 June 2018 referred to mild to moderate degenerative disc disease throughout the lower thoracic and lumbar spine associated with variable neurological impingement. It was indicated that the degenerative abnormalities had not changed significantly since March 2017 (Exhibit A page 58).

87. Dr Masters reported on an MRI of the spine on 21 April 2020 (Exhibit A page 104) which is considered in a number of the medical reports. In summary, Dr Masters noted cervical, thoracic and lumbar spondylotic change which had remained stable from 2018-19 examinations. Cord lesions were noted consistent with the underlying diagnosis of multiple sclerosis which remained stable in extent. A potential irritation of the left L5 nerve root was recorded.

88. Also included in the material are various reports from Dr Diwan, the plaintiff’s treating orthopaedic surgeon. In his various reports, Dr Diwan noted the plaintiff complaining of low back pain and left leg pain, lumbar pain and neck pain. He noted the plaintiff complaining of constant pain with serious restrictions on her activities of daily living. In his first report, he also noted the plaintiff had more than 20 treatments of physiotherapy with limited assistance. He also noted significant degenerative disease in the plaintiff’s spine (Exhibit A page 36).

89. Dr Diwan later noted that the plaintiff said she was completely asymptomatic prior to the accident and had serious discomfort and disability as at 10 May 2017 (Exhibit A page 38). The plaintiff indicated that she did not believe that physiotherapy and hydrotherapy were of benefit, but Dr Diwan encouraged her to continue (Exhibit A page 39). In a report dated 17 December 2017, Dr Diwan noted that there had not been a dramatic improvement in the plaintiff’s symptoms with symptoms in the neck, low back and left leg given. He raised for consideration an L5/S1 “minimally invasive spinal fusion” (Exhibit A page 40). In the end, the plaintiff did not continue with this recommended surgery.

90. On 15 May 2018, Dr Diwan recommended that spinal injections were reasonable and necessary (Exhibit A page 43) and these occurred. He continued to recommend possible surgery (Exhibit A page 44). In a report dated 22 June 2018, Dr Diwan expressed the opinion that the persistent nature of the plaintiff’s pain was more suggestive of disc pathology and motion segment which was unstable. In his view, the plaintiff’s Multiple Sclerosis had no bearing on her current ongoing symptoms (Exhibit A page 47).

91. The plaintiff sought a second opinion from Dr Kohan, neurosurgeon. The plaintiff presented with over a two year history of left sided lower back pain, gluteal pain and pain radiating to the left leg. He also referred to her neck pain. In Dr Kohan’s view the plaintiff had long-standing severe pain affecting the right leg with clear pathology affecting the L5 and S1 nerve roots. He recommended surgery and a fusion procedure (Exhibit A page 62).

92. In a recent report dated 15 June 2023, Dr Kohan referred to the plaintiff having chronic pain. There was reference to the plaintiff having pain in the left shoulder which appeared to be joint related. He expressed concern about a frozen left shoulder. In relation to the plaintiff’s lower back, he indicated that the plaintiff had chronic changes at the L5/S1 foramen on the left side with compression of the L5 nerve root seen on the MRI. Even with surgery, he expressed the view that her long-term outcome was guarded.

78. Dr Kohan recommended a new MRI of the lumbar spine with the consideration of a radicular block targeting the left L5 nerve root (Exhibit A page 64).

79. There are various reports from a further physiotherapist which indicated that the plaintiff did not appear to be obtaining significant benefit from the physiotherapy (Exhibit A pages 51-54). The plaintiff was also having hydrotherapy. The plaintiff indicated that the education and advice she had received from the physiotherapist was helpful. Ms Chan, physiotherapist, described the plaintiff as: “an anxious individual and is pain focused. She reported pain in all planes of movement in her cervical and lumbar spine. As a result, all of her movements are very guarded.”

80. The plaintiff attended a new general practitioner, Dr Le, from 2017. Dr Le referred the plaintiff to Mr Laundy, psychologist. In a report dated 11 September 2018, Mr Laundy referred to consultations in August and September 2018. The history provided to Mr Laundy appears to be incomplete. Although the plaintiff reported an “episode” in 2013 in relation to her psychiatric condition which Mr Laundy opined as having symptoms consistent with adjustment disorder, his history was that after the episode the plaintiff recommenced work as a self-employed beautician prior to her motor vehicle accident in 2016. The plaintiff’s extensive period without work and having numerous psychological consultations in 2014-16 is not expressly referred to.

81. Mr Laundy was of the view that the plaintiff presented with symptoms consistent with adjustment disorder with anxiety for severe chronic pain as a result of the accident. He was of the view that her injury had led the plaintiff to have excessive worry about her condition and the future and the plaintiff indicated no psychological barriers to returning to work. Mr Laundy indicated, on the history provided to him, that her chronic pain as a result of the accident “seems to be the only contributing factor in relation to her current distress and perhaps her ability to returning to work, in which she has concerns about pain placing limit on her ability to perform certain duties” (Exhibit A page 71).

Pain management clinic

97. The plaintiff attended a hospital Pain Management Clinic on a number of occasions in 2019. She reported pain as being present all the time, with her lower back pain being worse than her neck and shoulder pain. Initially, the plaintiff was encouraged to learn more about pain management. A review by a psychologist was to be arranged (Exhibit A page 72). Later, Mr Swinson, physiotherapist, at the Pain Management Unit, found that the plaintiff’s poor response to various therapies indicated that she was “centrally sensitised”. A review by a psychologist was recommended as the plaintiff had “severe pain catastrophising and low levels of self-efficiency” (Exhibit A page 75). In a 22 May 2019 report from the Pain Management Unit, Ms Veage, physiotherapist, recommended that the plaintiff learn ways to manage her pain in an active manner. It was noted that the plaintiff had funding to participate in the Pain Management Unit program. A 28 November 2019 report noted some improvements in the plaintiff’s pain and function. It was recommended for the plaintiff to continue individual appointments with her treating psychologist for ongoing support and intervention for adjustment and coping with pain and other difficulties (Exhibit A page 100).

Medical assessment service reports and certificates

98. The evidence establishes that there was a substantial dispute between the parties as to whether the plaintiff’s physical and psychological injuries arising from the accident contributed to a whole person impairment of greater than 10% thus permitting the plaintiff to claim non-economic loss damages.

99. In a certificate dated 27 February 2019, Dr Gehr concluded that a SPECT-CT scan of the plaintiff’s cervical spine was reasonable and necessary in relation to the injuries sustained in the accident, but the surgery recommended by Dr Kohan on 15 August 2018 was not reasonable and necessary in the circumstances (Exhibit A page 132). Dr Gehr undertook a detailed analysis of the medical records and reports provided to him and included the plaintiff’s reference to depression and anxiety to Dr Nessa, her general practitioner, prior to the accident (Exhibit A page 141). Dr Gehr went through the various treating specialist reports and the reports from Dr Kohan and the defendant’s medicolegal neurosurgeon, Dr Coroneos. Dr Gehr was of the view that the further SPECT-CT scan of the cervical spine was reasonable and necessary in the light of the history and radiology but the recommended surgery was not as the results were unpredictable in the presence of multiple sclerosis (Exhibit A pages 150-151).

100. In a certificate dated 6 May 2019, Dr Lim found that psychological therapy and counselling proposed by the plaintiff’s general practitioner was reasonable and related to the accident. A fuller psychological history was provided to Dr Lim (Exhibit A pages 155-156) but not a full history. Dr Lim was of the view that the plaintiff had adjustment disorder but not symptoms of sufficient clinical significance to be consistent with a diagnosis of major mood disturbance (Exhibit A page 161).

101. By certificate dated 23 October 2019, Dr Buckley assessed whether the plaintiff’s injuries gave rise to a permanent impairment of greater than 10%. Dr Buckley found soft tissue injury to the cervical spine and lumbar spine of 10% but not greater than 10%.

102. These were the only issues referred to Dr Buckley in the referral letter from the Medical Assessment Service. He had before him various documents including x-rays of the lumbosacral spine and an MRI of the lumbosacral spine from 2018. The history given was that the plaintiff had never had any serious injuries or fractures and had never hurt her spinal neck or back before. She gave a history of the motor accident consistent with her oral evidence. She also gave a history of worsening pain with physiotherapy and hydrotherapy not assisting and perhaps making her worse. She also said that the three cortisone injections she had received made her condition worse. She noted that she had been referred to the Pain Management Service in mid-2019. She explained her current symptoms to Dr Buckley including back pain, neck pain and left leg pain in the whole of her left leg.

103. Dr Buckley noted that there was no inconsistency of presentation.

104. After reviewing various radiological studies, Dr Buckley summarised various medical reports including from Dr Schwartz, Dr Diwan and Dr Kohan. He also had a psychological assessment and the report of Dr Lim.

105. Dr Buckley found soft tissue injury to the cervical spine which was caused by the accident. He found that the complaint of some pain in the left arm was a non-verifiable radicular complaint. He also noted in relation to the cervical spine that none of the signs of radiculopathy were present. In relation to the lumbar spine he found that lumbar spine soft tissue injury did occur in the motor vehicle accident although there was no evidence of radiculopathy. He found that the lumbar spine complaint was a minor impairment as there was an absence of weakness, sensory abnormality and also no sciatic nerve root tension signs. He found that the soft tissue injuries because of the length of the complaint were permanent and that it was unlikely there would be substantial change.

106. There was a further review by Dr Buckley in 2020 and a certificate was produced dated 28 August 2020. Dr Buckley had referred to him injuries to the cervical spine (soft tissue injury), lumbar spine (soft tissue injury) as well as soft tissue injuries to the left shoulder and left hip. After a detailed review including of the April 2020 MRI of the spine, Dr Buckley did not change his assessment and found only soft tissue injury to the cervical spine and lumbar spine.

107. The report of Dr Buckley is in my view a thorough and carefully prepared report. Dr Buckley set out the background history and the history of symptoms and treatment in some detail. He noted that there had been no injuries since the motor vehicle accident. The plaintiff informed him that her worst problem was her low back pain at the lumbosacral level down to the back of her left leg. The plaintiff said there was strong pain in the back of her left knee. Dr Buckley noted that the plaintiff stood the entire time in the waiting room and said she had been taking over-the-counter pain relief. The plaintiff also complained of worsening neck pain as well as pain in the left shoulder and left hip.

108. In relation to the left shoulder, an examination revealed a severely restricted range of movement with complaints of pain. However, Dr Buckley noted that the plaintiff appeared to make no effort in demonstrating a range of movement. No wasting of the muscles of the plaintiff’s legs was noted. Dr Buckley concluded that there was no inconsistency in examination of the relevant areas but there was inconsistency in shoulder ranging.

109. Dr Buckley undertook a detailed examination of the various medical reports including the medicolegal reports obtained up to that time by the parties.

110. In relation to the left shoulder claims of soft tissue injury, Dr Buckley undertook a detailed analysis of the history of injury and found that the shoulder impairment was a discrete shoulder injury which did not arise from the accident. His analysis in relation to the left shoulder is convincing. He also considered the left hip and found there was no early documentary evidence for a left hip injury. He concluded that there was no non-verifiable radicular pain identified and concluded that there was no left hip soft tissue injury caused by the accident. Again, his analysis is convincing. Dr Buckley did not alter his conclusions that soft tissue injury to the cervical spine and lumbar spine were caused by the accident although he found there were no signs of radiculopathy. Overall, the court is impressed by Dr Buckley’s analysis and conclusions. He found the soft tissue injuries to the neck and lumbar spine to involve a permanent impairment.

111. There was a review by Dr McClure dated 3 December 2019 in relation to the plaintiff’s psychological condition. The referral letter from the Medical Assessment Service referred to “psychological-anxiety depression” (Exhibit A page 177). Dr McClure undertook a careful and thorough review of the plaintiff’s psychological condition. This included the plaintiff stopping work in 2011 to become her father’s carer and her subsequent psychological problems. Dr McClure noted that the plaintiff said it was difficult to find work because she had not worked since 2011 and she had not been able to keep up with newer developments in the beauty therapy area such as laser therapies. In relation to psychological difficulties, Dr McClure noted that the plaintiff had continuing financial difficulties and an inability to find work. This caused her to be dejected and to avoid friends. The claimant said her mood was low and she took medication for her multiple sclerosis. She also indicated that she had redeveloped obsessional checking behaviour although it was described as infrequent and of little consequence. On examination, Dr McClure noted prominent pain behaviour by the plaintiff.

112. The plaintiff could not account to Dr McClure for the reports in Dr Schwartz’s letters and Dr Nessa’s file of significant pre-accident anxiety. The plaintiff also noted that she had applied for a disability pension after the subject accident but when confronted with Dr Nessa’s contemporaneous note of 25 May 2016 supporting that the application had been made before the accident, the plaintiff appeared to accept that her memory was defective. In her oral evidence, the plaintiff again claimed that the application for a disability pension occurred after the accident.

113. Dr McClure undertook a review of the pre-accident documentation particularly the consultation notes of Dr Nessa.

114. Dr McClure concluded that the plaintiff had a pre-accident history of anxiety symptoms with a psychological episode in 2013. The plaintiff acknowledged that she had been anxious about her limited prospects of a pregnancy and her inability to find work prior to the accident. He noted that the records of Dr Nessa suggested that anxiety symptoms worsened significantly after the accident. In conclusion, Dr McClure found that the plaintiff’s psychological symptoms were consistent with an adjustment disorder with anxiety which was pre-existing but had been exacerbated by the index accident. A somatic symptom disorder due to chronic pain resulting from musculoskeletal injuries was also found. In relation to her obsessive compulsive symptoms, Dr McClure expressed the opinion that these were likely to be long-standing.

Medico-legal reports

Medico-legal reports for the plaintiff

115. The plaintiff tendered three reports from Dr Endrey-Walder, general and trauma surgeon.

116. In the first report dated 14 November 2019, Dr Endrey-Walder concluded that the plaintiff had suffered soft tissue injuries to the cervical and lumbar area and “possibly a direct blow to the left shoulder and the left hip area given the mechanism of the accident”. Injuries in these last two areas due to the accident was rejected by Dr Buckley on assessment.

117. Dr Endrey-Walder concluded that the lesion in the L2 vertebral body revealed on the 15 June 2018 MRI scan was unlikely to be related to the accident (Exhibit A page 82). Dr Endrey-Walder concluded that the plaintiff would certainly not be able to attend to even part-time work as a beautician since the accident on account of her restricted range of movement at the neck and ongoing symptoms in the lower back. Some assistance with domestic chores was also recommended.

118. In his second report dated 17 May 2021, Dr Endrey-Walder reviewed more recent reports including the 21 April 2020 MRI scan report. He noted that the plaintiff walked into the examination room with an odd gait. He concluded that there had been very little change in the plaintiff’s symptoms since he had previously seen the plaintiff and found the clinical signs to be virtually identical. He diagnosed multilevel disc damage “or at least exacerbation of multilevel spondylotic changes in the cervical and lumbar spine” and “likely aggravation of pre-existing previously asymptomatic congenital … defects of L5”. He maintained his conclusion that the plaintiff was unemployable and needed assistance with domestic chores.

119. In his third report dated 22 November 2022, Dr Endrey-Walder noted that the plaintiff complained of continuing pain in her neck, left shoulder and lower back as well as her left hip. He concluded that there were no real changes of consequence in the plaintiff’s symptoms and that the plaintiff’s complaints were chronic. He again concluded that the plaintiff had an incapacity for work.

120. The plaintiff also relied on two medico-legal reports from Dr P Klug, psychiatrist. In his first report dated 21 September 2020, Dr Klug set out the material forwarded to him. It is noted that the documents listed do not include Dr Nessa’s consultation notes relating to the plaintiff’s psychological problems prior to the accident or the reports of Ms Ajam. It is therefore not clear whether Dr Klug was aware of these matters. This in my view affects the reliability of his report. At page 5 of his report he notes, apparently based on instructions, that “there is no forensic history”. The plaintiff indicated to Dr Klug that without the accident she believes she would have been back in the workforce by 2018. She noted that she completed a safety course in traffic control but did not get a job. She stated that she could not sit at a desk having regard to her condition. It is noted that Dr Klug referred to Dr Schwartz’s pre-accident report noting that the plaintiff was suffering significant anxiety and stress and would be seeking regular psychological counselling. Thus he had some indication of pre-accident condition. Dr Klug recorded that the plaintiff was under the care of her general practitioner and a psychologist and had been diagnosed with Multiple Sclerosis. Dr Klug concluded that the plaintiff had a chronic major depressive disorder, a probable post-traumatic stress disorder in partial remission and recurrent panic attacks. He said there was a strong causal connection between the accident and the plaintiff’s current psychiatric problems. Various treatments including admission as appropriate as an inpatient were recommended.

121. In his second report dated 11 May 2023, Dr Klug noted that the plaintiff complained of persistent depression of her mood, a marked sense of loss, moderately severe insomnia and hypervigilance among other conditions. It is noted that he interviewed the plaintiff by audio as no zoom link could be established. The plaintiff stated that she had ceased seeing her treating psychologist in January 2021 due to the cessation of funding by the insurer. Dr Klug concluded that the plaintiff was suffering from a chronic post-traumatic stress disorder in partial remission, a chronic major depressive disorder and a panic disorder. He regarded the plaintiff’s psychiatric prognosis as appearing to be poor and that her capacity for work on a psychiatric basis alone as being negligible. He also concluded that there was a considerable risk that the plaintiff’s state would deteriorate over time without access to appropriate comprehensive treatment.

122. Dr Klug’s reports were not really pressed by the plaintiff’s counsel in submissions.

Medico-legal reports for the defendant

123. The defendant relied on a number of medico-legal reports.

124. Three reports were relied upon from Dr T Rosenthal, occupational physician. In his first report dated 11 April 2017, Dr Rosenthal noted:

1. On examination the plaintiff walked with normal gait and posture and appeared to be in no significant distress;

2. Examination of the plaintiff’s neck revealed a full range of movement with no muscle spasm or guarding, no tenderness and normal cervical lordosis. Muscle power, tone and reflexes were said to be normal;

3. At the lumbar spine, there was tenderness in the lumbar region but there was no spasm or guarding and there was asymmetry of lumbar movement. The plaintiff was said to have a full range of knee, hip and ankle movements and there was a full range of shoulder, elbow and wrists movements in the upper limbs with normal grip strength;

4. A review of the radiology report indicated findings suggestive of an inflammatory process consistent with multiple sclerosis with disc protrusions said to be unrelated to any trauma from the accident.

125. Dr Rosenthal diagnosed soft tissue injury to the neck and soft tissue injury to the back with radicular complaints in the left leg without evidence of radiculopathy. The plaintiff’s treatment was noted. He concluded that it was doubtful that the plaintiff required any particular treatment apart from the occasional use of analgesia and maintenance of self-managed exercises. He said surgery was not appropriate. He concluded that the alleged disabilities were as a result of the accident but found that the plaintiff was not restricted from any pre-accident employment, particularly her previous work as a beauty therapist and no assistance with home duties was required.

126. In his second report dated 23 January 2018, Dr Rosenthal noted that the latest MRI did show disc problems which may respond to an epidural and facet injections. He said this was reasonable and necessary and the plaintiff’s ongoing symptoms appeared reasonably to be related to the accident and may respond to the injections proposed.

127. In his third report dated 24 March 2021 following an examination of the plaintiff on 23 March 2021, Dr Rosenthal maintained his views that the injuries to the plaintiff’s neck and back were soft tissue injuries. He expressed the view that the plaintiff had developed a pain syndrome not explainable by the traumatic injuries caused by the motor vehicle accident in terms of its physical component. He said that the plaintiff’s soft tissue injuries should have resolved by that date. Dr Rosenthal was of the view that there was a significant psychological component to the plaintiff’s current presentation that needed to be managed by a psychologist or psychiatrist. He said no future treatment was required for the plaintiff’s physical injuries and the plaintiff’s condition physically would not impact on her employability or need for domestic assistance (Exhibit 1 page 253).

125. The defendant also relied on two reports from Dr M Coroneos, neurosurgeon.

126. In his first report dated 6 September 2018, Dr Coroneos set out the details of his examination of the plaintiff. He noted her current symptoms and also reviewed various radiological studies and reports. Dr Coroneos expressed the opinion that he could not determine any significant neurosurgical or spinal injury having occurred as a result of the motor vehicle accident. He accepted that the plaintiff may have experienced cervical and lumbar soft tissue strain as a result of the accident in the light of the documents but was of the view that the effects of the accident had ceased. He referred to the plaintiff’s degenerative changes in the spine as shown on the radiological studies. Dr Coroneos expressed the opinion that the neurosurgical effects of the accident had stabilised and that the plaintiff had recovered. He said all the changes on imaging were those of pre-existing spondylosis, spondylolisthesis and demyelination of the cord. He concluded that the plaintiff was not restricted from her employment as a beauty therapist and had no need for domestic assistance.

127. In a supplementary report dated 9 October 2018, Dr Coroneos said that there was no need for any neurosurgical treatment as had been recommended by Dr Diwan.

128. The defendant also relied on a report from Dr Graham George, psychiatrist, dated 15 October 2018 after a consultation earlier that month. Dr George noted the plaintiff’s earlier history of psychological problems after the death of her father but recorded that she denied any other further intervention prior to the motor vehicle accident. This seems to be inconsistent with the records relating to the treatment she received from Ms Ajam. Dr George diagnosed the plaintiff as having chronic adjustment disorder with depressed mood of mild to moderate degree.

129. Dr George concluded that there was sufficient evidence in a number of medical reports to suggest that the plaintiff had pre-existing psychological/psychiatric symptoms or conditions and that the effect of the motor vehicle accident, especially given its minor nature, was highly suggestive that any psychological trauma associated with it would have been self-limiting and resolved some time ago. He was of the view that the plaintiff’s ongoing psychiatric issues did not reflect psychological sequelae from the subject motor vehicle accident. He was of the view that the plaintiff’s current complaints were not consistent with her alleged injuries and disabilities. He concluded that her condition as diagnosed was not related to the subject accident as any causes of the accident should have ceased (Exhibit 1 page 244). He also expressed the view that there was no reason from a psychiatric viewpoint why the plaintiff should not be employed and there was no need for any domestic assistance.

Comment in relation to the medico-legal reports

133. It may therefore be seen that there is a substantial difference in opinion between the medico-legal reports tendered on behalf the defendant compared to those tendered on behalf the plaintiff. It seems that the plaintiff’s retained psychiatrist, Dr Klug, had limited access to the plaintiff’s pre-accident history. That was not the case with Dr George. Fundamentally different views were expressed by the different experts in relation to the plaintiff’s ongoing physical and psychological issues.

Oral evidence of the plaintiff

134. The plaintiff gave extensive oral evidence in chief and was also subject to a detailed cross-examination by counsel for the defendant.

Evidence in chief

135. The plaintiff gave evidence that she was born in May 1979 and was now 44 years of age. She attended a high school in Kingsgrove in Sydney and left during the course of Year 10. Thereafter, the plaintiff indicated that she worked part-time in a video store as a sales assistant. At the time, the plaintiff said that she wanted to be a beauty therapist and had an interest in this career since she was young. The plaintiff gave evidence that she completed a short course in acrylic nail application at the Beauty Warehouse while working part-time in the video store while she was 15 years old. After that, the plaintiff remained for a period of time in the store.

136. The plaintiff then gave evidence that in 1996 she attended a private 12 months fulltime beauty therapy diploma course in the city when she was 16 or 17. This was at the Academy of Scientific Beauty Therapy. The plaintiff gave evidence about the detailed nature of the course which included lectures by doctors. She stated that she received training in various aspects of beauty therapy treatment including lymphatic drainage, massage, electrolysis and other beauty treatments. The plaintiff indicated that a number of these treatments required leaning over and involved manual activities with a wide range of postures. Having a diploma meant that the plaintiff was regarded as at the highest level (Level VI) in the beauty therapy industry. Whilst completing the course, the plaintiff said that she lived at home with her parents.

137. The plaintiff gave evidence that in 1997 after she had completed the course she undertook a few casual beauty therapy jobs but “there was not much around”. In 1998 she obtained a fulltime wage job as a beauty therapist in a suburban shop.

138. The plaintiff gave evidence that her mother passed away in 1998 and at that time she lived with her father in the family home, her sister having left previously. Soon after, the plaintiff went to Italy with her father. She resigned from her suburban beauty therapy job in order to do this. The plaintiff gave evidence that she looked for a job on her return but was not working straightaway. The plaintiff indicated that from September 1999 to January 2001 she was generally not working but was applying for jobs without success. She met her future husband at about this time and returned to Italy to visit him. When she returned to Australia in November 2001 she did not look for work straightaway and eventually obtained work in a cafe at Hurstville in November 2001 on a part-time basis.

139. The plaintiff returned to Italy in October 2002 and stayed there for nine to ten months.

140. The plaintiff gave evidence that in August 2003 she set up her own business in Elizabeth Street in the city, having one room within an established hair salon called “Colours of Beauty”. She said she was able to open the business in 2003 with savings and with help from her father in undertaking a small renovation. In early 2004 she married. Due to a change in the ownership of the hair salon business in which she was situated, the plaintiff stated that her business dwindled due to a change in the demographics of the hair salon customers. Thereafter, the plaintiff began working fulltime as a beauty therapist at David Jones but remained there only three to four months as that work concluded.

141. In 2005 the plaintiff stated that she started working as a senior therapist in a beauty salon and remained there until 2007. She separated from her husband in January 2007 and moved back to the family home in Peakhurst. While she was there, she assisted with household tasks.

142. The plaintiff gave evidence that in mid-2007 she was diagnosed with thyroid cancer following an ultrasound. At this stage she was 28 years old. The plaintiff said she had a thyroidectomy which involved the removal of the entire thyroid and she has been on daily medication since.

143. The plaintiff stated that she asked for a check-up a number of years later and undertook a radiological investigation which revealed a lesion on the brain. She said she was referred to Dr Schwartz in 2014, who diagnosed multiple sclerosis. There were a number of reports of Dr Schwartz in evidence in proceedings as discussed above.

144. The plaintiff agreed that she was on Centrelink payments at this time for a period of five to six months as she was not working. The plaintiff said that in April 2008 she began working for a cosmetic company before returning to her previous beauty therapist role in the city on a fulltime basis. She remained in that role for about a year. The plaintiff gave evidence that in 2009 she again attempted to open her own beauty therapy salon in the city which became known as “Botanical Skin Care”. This was in Sussex Street. In order to do this the plaintiff applied for a development approval and undertook significant renovation. She said her father and her then boyfriend assisted with the renovation and with the opening costs. The plaintiff claimed that her business went very well in the 2009-2010 period as she was located near a number of significant buildings. However, the plaintiff’s tax returns which were in evidence indicated the plaintiff having limited taxable income after the expenses of the business were taken into account.

145. The plaintiff gave evidence that in October 2010 her father was diagnosed with lung cancer and in due course she closed her business in Sussex Street and became his fulltime carer on a carer’s pension. She said this was disappointing but was a family obligation and the business was just starting to pay off the establishment costs and make a profit.

146. The plaintiff gave evidence that in December 2011 her father died and she continued on a carer’s pension for a few months before the commencing on the NewStart Allowance. Apart from a short period, the plaintiff had no paid work from when she closed the Sussex Street business in mid-2011 until the date of the accident. The plaintiff gave evidence that she found this period as being difficult as she no longer had any parents alive and she was estranged from her sister.

147. The plaintiff gave evidence that in 2013 she obtained administrative work at a funeral parlour but this only lasted for a couple of weeks and she lost her job as there was a re-structure. Soon after, she was diagnosed with Multiple Sclerosis by Dr Schwartz. She said she was quite shocked by the diagnosis.

148. The plaintiff accepted that she was seeing a psychologist Ms Nasreen Ajam at about this time on a reasonably regular basis. She said this followed the preparation of a mental health plan by her general practitioner Dr Nessa. The plaintiff confirmed that she did not work at all in the 2013-2015 period but was looking for work. She said she was on Centrelink benefits at this time and was provided Centrelink certificates by Dr Nessa.

149. In evidence were the various certificates which the plaintiff was provided in the 2014-2015 period. Despite being on social security benefits, the plaintiff said she was not referred to a job placement agency before her accident.

150. The plaintiff was asked whether she applied for a disability pension before the accident. The plaintiff denied this and said she only applied for a disability pension after the accident. There was significant cross-examination in relation to this issue. There are a number of references in Dr Nessa’s notes to the plaintiff raising or being given advice to go on a disability payment: Exhibit 1 pages 74 and 78. These have been referred to above. The entry for 25 May 2016 by Dr Nessa includes “also says going on disability pension???”. The plaintiff gave evidence that she applied for a disability pension about a week after the accident but was told it was too early to make the application. Dr McClure in his MAS report specifically refers to this issue and the fact that the plaintiff said that she applied for the disability support pension after the accident (Exhibit A page 181). When the plaintiff was shown Dr Nessa’s 25 May 2016 note, Dr McClure says she was confused but accepted in due course that her memory of this was defective. In cross-examination, the plaintiff said she did not recall this and did not accept her recollection was faulty: see T103.5-.40; T104; T105-106.41. She also did not recall the reference to receiving an Aropax prescription from Dr Nessa at this time.

151. It seems unlikely to me that Dr Nessa would record a discussion about the plaintiff applying for a disability support pension if it did not occur. The reference is a specific one. I also note the plaintiff’s acceptance after seeing the entry in her consultation with Dr McClure. I am satisfied on the balance of probabilities that the plaintiff did say that she was going to apply for a disability support pension prior to the accident. See in particular T106.41. This is relevant to her view of her medical conditions at that time.

152. The plaintiff gave evidence that in the period from her father’s death to 2014 she was living in a flat in Hurstville as the family home at Peakhurst had been sold. She then moved to her current shared arrangement in Rockdale where she shares a two-bedroom unit with a 60 year old lady and pays rent for a room. The plaintiff gave evidence that her flatmate works business hours although she is a cook. She gave evidence that her flatmate did a lot of the domestic work. The plaintiff said she was able to make simple meals herself and could dust and tidy but the domestic chores were primarily done by her flatmate and it was not a big apartment. The plaintiff gave evidence that she intended to maintain the relationship with her flatmate with whom she got on well. She appeared to be paying a fairly modest rent. After some questioning, the plaintiff agreed that she could undertake modest domestic chores if she paced herself but could not undertake significant cleaning if it involved heavy pushing or reaching or other tasks: T76.15-25. She said she put her washing to dry on a clothes horse.

153. This of course is relevant to the plaintiff’s claim for commercial care damages.

154. The plaintiff gave evidence that in January 2016 she formed a new relationship. The evidence shows that the plaintiff in the period from 2014 to 2016 remained on a mental health plan and saw Ms Ajam. The plaintiff gave evidence that she ceased seeing Ms Ajam in June 2016 as she did not regard the consultations as being of help.

155. Accordingly, the plaintiff confirmed that in the six months prior to the accident she was seeing Dr Nessa, her general practitioner, Dr Schwartz, her neurologist in relation to her Multiple Sclerosis and Ms Ajam, psychologist. Although the plaintiff initially had doubts as to whether she was seeing Ms Ajam in 2016 in her evidence in chief, she confirmed that she ceased seeing Ms Ajam in June 2016 in cross-examination. The plaintiff also confirmed that up to the accident she had not been working since 2011. Although the plaintiff indicated that she was seeing her general practitioner Dr Nessa for medical certificates and minor complaints, she also agreed that she was seeing her in relation to mental health care plans relating to her consultations with Ms Ajam. The plaintiff confirmed that she was prescribed Aropax for her psychological condition prior to the accident. She said she had started taking this in late 2013 and ceased it in September 2015. As indicated above, Dr Nessa’s notes record the plaintiff being given a prescription for Aropax on 25 May 2016 (Exhibit 1 page 78). The plaintiff gave evidence in cross-examination that she did not fill the prescription.

156. The plaintiff was asked a series of questions about her tax returns. She said she had an accountant prepare the returns at the time. The plaintiff confirmed that in her early working life and in her own business she was only able to survive economically as she was living with her father.

157. The plaintiff then gave evidence in relation to the motor vehicle accident on 31 July 2016. She said she was driving with her partner at the time and she was sitting in the left front passenger seat as they proceeded in their vehicle on The Horsley Drive at Fairfield at about 60km per hour. She gave evidence that the car was impacted by the defendant’s four-wheel-drive who collided on the left-hand side of the vehicle in which she was travelling halfway between the front and rear passenger doors.

158. The plaintiff said that despite the collision she was able to get out of her vehicle. After exchanging details the defendant drove off and she and her partner continued to a lunch function. She said after two to three hours she began feeling pain in the neck and back and her partner took her to Fairfield Hospital which was located a short distance from where he lived. She agreed she had x-rays and a CT scan. Thereafter, she attended Dr Nessa and obtained a referral to a physiotherapist. The physiotherapist, Mr Wall, assisted her with stretches to her neck and back. This was funded by the insurer. The plaintiff indicated that she had more than 20 physiotherapy treatments and also had a similar number of treatments with a chiropractor. In the period between August and December 2016, the plaintiff said that the treatment gave some relief but her pain returned. She said she had difficulties showering and could not do housework which was done by her flatmate.

159. In answer to questions from the Bench, the plaintiff agreed that she had substantial physiotherapy treatments, chiropractic treatments, hydrotherapy treatments and three injections and these provided her with limited relief. Indeed the plaintiff said that, in her view, the injections made her position worse. The plaintiff said that she did not continue to see the psychologist Ms Ajam at this time even though she felt quite down psychologically.

160. The plaintiff was asked about her attempts to find work. She said that for the 12 months prior to the accident she was looking for work as a beauty therapist while she was getting Centrelink payments but had no success. She said she began looking for work again soon after but not immediately after the accident.

161. The plaintiff was asked about a panic attack in early 2017 which involved her attending Sydney Hospital. She confirmed that she had this whilst at Martin Place train station. She said she regarded it as a random event.

162. The plaintiff gave evidence about Dr Nessa referring her to Dr Diwan who encouraged her to obtain further physiotherapy treatment which she did. She said the insurance company stopped funding the treatment in about April 2017. She confirmed that she saw Dr Diwan after having various radiological investigations on a number of occasions at this time. She was also referred by Dr Diwan to a new physiotherapist Ms Chan. She noted that Dr Diwan in 2017 recommended surgery and cortisone injections, the latter being funded by the insurer in 2018. Dr Diwan had suggested surgery in May 2018 due to there being no change in her condition.

163. The plaintiff confirmed that in the two years after the accident she was looking for work of all types that involved light duties including serving in a shop or as a receptionist. She said she was possibly able to do fulltime work but did not regard beauty therapy as suitable due to the physical requirements of the job. She said she was getting Centrelink benefits during this time.

164. The plaintiff gave evidence that an entity call APM was involved in assisting her to get work and recommended she undertake a traffic control job but the plaintiff found it confronting and no work was provided to her. The plaintiff said that she had applied for about 15 jobs in 2017-18 and a similar number of jobs in the next period after June 2018. She said she did not find any jobs that were suited to her abilities with her restricted lifting capability. The plaintiff gave evidence that at this time she had psychological difficulties because of the confronting nature of her condition. She was referred to Mr Laundy, psychologist, in 2018 who she continued seeing until funding was withdrawn at the end of 2018. She said she received some benefit from the consultations.

165. The plaintiff gave evidence that she requested a second opinion and was referred to Dr Kohan. He also recommended a spinal fusion and said it would have a “95% success rate”. The plaintiff stated that she had changed general practitioners in 2018 from Dr Nessa to Dr Le.

244. This buffer amount should also be regarded as taking into account the loss of superannuation benefits. It is uncertain whether the plaintiff would have been entitled to superannuation benefits in any work she would have undertaken, having regard to her business history.

Claim for loss of future earning capacity and future superannuation loss

248. The task of assessing damages for lost earning capacity is necessarily impressionistic: Ramsey v Denton, above, (Court of Appeal) at [51] referring to Brear v James Hardie & Coy Pty Ltd (2000) 50 NSWLR 388 at [49].

249. The plaintiff makes a substantial claim for future economic loss and superannuation in the amount of $263,855. It is noted that there is a period of 25.5 years until likely retirement. Again, I do not consider a loss of $400 net per week with a reduction of 20% for vicissitudes is appropriate.

250. In my view, the plaintiff had a lengthy history of psychological difficulties before the accident. I agree with Dr McClure’s assessment that she had a pre-existing condition of adjustment disorder. That would likely have caused the plaintiff to have had difficulties with her future work or at least put her at real risk of having such difficulties due to long standing psychological issues, including her obsessional traits.

251. I take into account s 126 of MACA which deals with future economic loss. It must also be remembered that the plaintiff is now 44 and will have some difficulties, even with an improvement in her health, in obtaining beauty therapy work even with her restrictions and has had little success in obtaining administrative work. In my view, the plaintiff’s most likely future circumstances but for the injury is that she would have had improvement gradually in her conditions leading to limited casual or part-time work in either beauty therapy or in administration or retail with some limited periods of full-time work. It is quite possible that her pre-existing psychological conditions could have posed further difficulties as well as her lack of experience for some considerable period of time and her admitted need for retraining.

252. In New South Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536 Heydon JA stated as follows at [70]-[71]:

[70] First, damages to compensate for that part of reduced economic capacity which will be reflected in the future are sometimes analysed as being one type of “general damages”. Like other types of “general damages”, as Fullagar J said in Paff v Speed at 559, they are “of their very nature, incapable of mathematical calculation and (although the expression is apt to be misleading) commonly very much ‘at large’. They are also at large in the sense that a jury has, in serious cases, a wide discretion in assessing them”. In Russell v J Hargreaves & Sons Pty Ltd [1957] QSR 440 at 445, Taylor J said:

“Since ... It is impossible to prescribe fixed or precise standards for the translation into terms of money of physical injuries and pain and suffering and varying degrees of physical incapacity, it is inevitable that individual opinions as to what amount may be said to constitute full compensation in any particular case will vary. Indeed within the bounds of reasonableness they may vary greatly.”

The field is an “uncertain” one: Breska v Lysaghts Works Pty Ltd (1956) 74 WN (NSW) 168 at 169, per Street CJ.

[71] Secondly, strictly the issue does not turn on a comparison between what money the plaintiff would have earned apart from the injury and what money the plaintiff will earn after the injury. The compensable loss is not a loss of income but the loss of capacity to earn income in a manner productive of financial loss: Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 at 347. The income earned before the injury is relevant, but only as an evidentiary aid in assessing damages for the loss of capacity to earn income: Paff v Speed at 566, per Windeyer J. Evaluation of the worth of a loss of capacity to earn — of a lost chance to earn — is of its nature a more imprecise inquiry than calculation of a lost income. It rests on the hypothesis — that the plaintiff will have undiminished capacity — which has been rendered false by events. It does not depend on calculating the income from a particular career which is no longer possible, but in calculating the damage to a capacity to carry on various careers. It is an exercise in estimation of possibilities, not proof of probabilities. H Luntz, Assessment of Damages for Personal Injury and Death, 3rd ed, at 91 [1.9.18], said: “it is not necessary for the plaintiff to establish the future loss with the same degree of precision as the present and past loss ... The court is really being asked to estimate as best it can the future effect of the injuries from which the plaintiff has been proved to be suffering as a result of the defendant’s wrongful act”.

In Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 at 639, Brennan J and Dawson J said: “the ascertainment of earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history”. They approved Lord Diplock’s statement in Mallett v McMonagle [1970] AC 166 at 176: “in assessing damages which depend upon its view as to what will happen in the future or would have happened in the future if something had not happened in the past, the court must make an estimate as to what are the chances that a particular thing will or would have happened and reflect those chances, whether they are more or less than even, in the amount of damages ...”. The majority (Deane J, Gaudron J and McHugh J) in Malec v J C Hutton Pty Ltd said (at 643) that when the law takes account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring in a range from just above the speculative to just below the certain. The inquiry — the process of estimation of possibilities — is thus an imprecise and indeterminate one to be carried out within very broad parameters. The trier of fact may have to form conclusions on “slender material[s]”: Callaghan v Wm C Lynch Pty Ltd (1962) 79 WN (NSW) 830; [1962] NSWR 871 at 877, per Evatt CJ, Herron J and Sugerman J. That language, unlike the reference to permitting “guess work or speculation” elsewhere in that judgment, was not criticised in Ivkovic v Australian Iron & Steel Ltd (1963) 63 SR (NSW) 598 at 607; 80 WN (NSW) 999 at 1006, per Manning J. However, Menzies J said that sometimes the assessment of damages involves “guess work rather than estimation”: Jones v Schiffmann [1971] HCA 52; (1971) 124 CLR 303 at 308; see also Linsell v Robson [1976] 1 NSWLR 249 at 259, per Mahoney JA; Chaplin v Hicks [1911] UKLawRpKQB 104; [1911] 2 KB 786 at 792, per Vaughan Williams LJ. Lord Diplock described the factors underlying the assessment of damages for diminished earning capacity as “matters of prophecy or judicial guesses” in Paul v Rendell (1981) 55 ALJR 371 at 376; 34 ALR 569 at 578. The English position was summarised thus by Lloyd LJ in Foster v Tyne and Wear County Council [1986] 1 All ER 567 at 570:

“when it comes to estimating loss of earning capacity, there is no such thing as a conventional approach; there is no rule of thumb which can be applied. It would be so much easier if there were. But there is not. In each case the trial judge has to do his best to assess the plaintiff’s handicap, as an existing disability, by reference to what may happen in the future. As has been said so often, that is necessarily a matter of speculation; it is necessarily a matter of weighing up risks and chances in all the circumstances of a particular case. The very fact that the approach must necessarily be so speculative means, of course, that the occasions on which this court will feel justified in interfering with a judge’s assessment will be few and far between, for there is no established range or standard against which to measure the judge’s award.”

253. In Sretenovic v Reed [2009] NSWCA 280 McColl JA (with whom Beazley JA agreed) considered the assessment of future loss of earning capacity. Her Honour stated as follows at [79]-[81]:

[79] I turn then to the issue of future economic loss. The primary judge’s finding in this respect was also tainted by reason of the erroneous findings I have identified. It was also, in my view, inappropriate for his Honour to assess the impairment of the respondent’s future earning capacity over the entire period of his anticipated working life. Rather this was a case where, as the appellants submitted, a buffer should have been awarded.

[80] Compensation for lost earning capacity is awarded because diminution in an injured plaintiff’s earning capacity “is or may be productive of financial loss”: Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 (at 347). It is incumbent upon the plaintiff to prove the loss for which compensation is claimed: Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402 (at 412).

[81] It is appropriate to award damages by way of a buffer, including in a case such as this where damages are to be determined pursuant to the Civil Liability Act, when the impact of the injury upon the economic benefit from exercising earning capacity after injury is difficult to determine. In such a case where the plaintiff has an earlier demonstrated earning capacity, the court undertakes a comparison between the economic benefits the plaintiff derived from exercising that earning capacity before injury and the economic benefit derived from exercising earning capacity after injury, although the difference cannot be determined otherwise than by the broad approach of a buffer: Penrith City Council v Parks [2004] NSWCA 201 (at [3]–[5]) per Giles JA; applied K-mart Australia Ltd v McCann [2004] NSWCA 283 (at [62]) per Pearlman AJA (Handley and Ipp JJA agreeing); see also Hornsby Shire Council v King [2005] NSWCA 67 (at [23]) per Ipp JA (Mason P and Brownie AJA agreeing); Leichhardt Municipal Council v Montgomery [2005] NSWCA 432 (at [33]) per Hodgson JA (McColl JA agreeing). In the latter case Mason P (at [2]) opined that “a buffer or cushion award is usually reserved to the situation where there is a smallish risk that otherwise secure employment prospects may come to an end, in consequence of the tort-related injury, at some distant time in the future”.

254. It is clear from the reasoning of the Court of Appeal in Sretenovic that the award of a buffer or cushion is reserved to a situation where the precise loss of the plaintiff is difficult to determine, and the plaintiff’s capacity has been clearly reduced but how that will inhibit his or her earning capacity in consequence of the tort-related injury suffered by the plaintiff is uncertain.

255. In Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 McColl JA stated the following at [6]-[9]:

“[6] The circumstances in which damages by way of a buffer are appropriate was summarised in Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99 ; (2008) 172 IR 453 (at [84]) per McColl JA (Mason P and Beazley JA agreeing), a case in which a challenge to a buffer of $120,000 failed, as follows:

84 As to the future economic loss, it is appropriate to award damages by way of a buffer, including in a case such as this where damages are to be determined pursuant to the Civil Liability Act, when the impact of the injury upon the economic benefit from exercising earning capacity after injury is difficult to determine. In such a case, the Court still undertakes a comparison between the economic benefits the plaintiff derived from exercising earning capacity before injury and the economic benefit derived from exercising earning capacity after injury, although the difference cannot be determined otherwise than by the broad approach of a buffer: Penrith City Council v Parks [2004] NSWCA 201 (at [3]–[5]) per Giles JA; applied K’mart Australia Ltd v McCann [2004] NSWCA 283 (at [62]) per Pearlman AJA (Handley and Ipp JJA agreeing); see also Hornsby Shire Council v King [2005] NSWCA 67 (at [23]) per Ipp JA (Mason P and Brownie AJA agreeing); Leichhardt Municipal Council v Montgomery [2005] NSWCA 432 (at [33]) per Hodgson JA (McColl JA agreeing). In the latter case Mason P (at [2]) opined that “a buffer or cushion award is usually reserved to the situation where there is a smallish risk that otherwise secure employment prospects may come to an end, in consequence of the tort-related injury, at some distant time in the future”, but, with respect, the accepted wisdom appears to be that a buffer can be deployed in circumstances such as the present.

[7] The award of a buffer for future economic loss in circumstances “where earning capacity has unquestionably been reduced but its extent is difficult to assess” reflects the proposition that, to paraphrase, the want of precise evidence “does not necessarily result in non-recovery of damages”: New South Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536 (at [87]) per Heydon JA. It must also be taken into account, when considering the appellant’s complaint about the adequacy of the claims assessor’s reasons for quantifying the buffer, that the task of assessing damages for lost earning capacity is “necessarily impressionistic”; Brear v James Hardie & Co Pty Ltd [2000] NSWCA 352; (2000) 50 NSWLR 388 (at [49]) per Mason P (Spigelman CJ and Priestley JA agreeing).

[8] While, as Giles JA said in the Nominal Defendant v Lane (at [67]), “s 126 is presumably intended to promote intellectual rigour”, the authorities recognise that, whether in the s 126 context or when applying common law principles of assessment of damages as to future hypothetical scenarios, there is a point at which, even with the application of the requisite degree of intellectual rigour, an element of impression must be involved. The claims assessor properly arrived at this point once he had made the minimum factual assumptions necessary for the s 126 exercise. The appellant has not identified any legal error in the award of the buffer.

[9] The foregoing should not be seen as a licence to award buffers indiscriminately. Where the evidence enables a more certain determination of the difference between the economic benefits the plaintiff derived from exercising earning capacity before injury and the economic benefit derived from exercising that capacity after injury, recourse should not ordinarily be had to the award of damages for future economic loss by way of a buffer. Each case must turn on its own facts.”

256. Basten JA stated the following at paragraphs [27]-[30]:

“[27] In summarising a comprehensive review of the principles to be applied in this area, Heydon JA stated in Moss at [87]:

The task of the trier of fact is to form a discretionary judgment by reference to not wholly determinate criteria within fairly wide parameters. Though the trier of fact in arriving at the discretionary judgment must achieve satisfaction that a fair award is being made, since what is involved is not the finding of historical facts on a balance of probabilities, but the assessment of the value of a chance, it is appropriate to take into account a range of possible outcomes even though the likelihood of any particular outcome being achieved may be no more than a real possibility.

To the extent that this court suggested in Nominal Defendant v Livaja [2011] NSWCA 121 at [39] that hypothetical elements should be established on the balance of probabilities, those statements were wrong and should be disregarded.

[28] Structural difficulties with the form of s 126 (and the more generally applicable equivalent provision, namely s 13 of the Civil Liability Act 2002 (NSW)) have been the subject of comment in numerous cases. It has been pointed out that the calculation of future economic loss depends not only upon assumptions about unimpaired future earning capacity, but also upon the extent to which earning capacity is, or is likely to be, diminished as a result of the injury. Section 126 makes no direct reference to the latter limb of the calculation, unless subs (3) is addressed to the broader set of assumptions and not limited to those referred to in subs (1).

[29] Further, subs (2) has been understood as referring, at least primarily, to the reduction commonly allowed for “vicissitudes” which, absent particular features warranting some other approach, is usually fixed at 15%. In circumstances where, for example, the employment situation of the claimant is inherently unstable, a greater percentage is allowed. In Amoud v Al Batat [2009] NSWCA 333 I explained my understanding of s 126(2) in the following terms at [25]:

Subsection (2) requires an adjustment to an otherwise appropriate amount to take account of the possibility that “the events concerned might have occurred but for the injury”. There is clearly a step between the exercise addressed in subs (1) and that required by subs (2). That step must be to identify the departure from the baseline earning capacity (calculated in accordance with subs (1)) caused by the injury. The third step is to calculate, as a monetary amount, the present value of the difference between the baseline and the assessment of post-injury earning capacity. The diminution caused by the tortious injury will provide a figure for assessing the appropriate award of damages. It may not be the final figure, because the diminution caused by the accident might have occurred, in part or in whole, in any event, within the working life of the claimant. Some allowance must be made for that circumstance: it is that allowance which constitutes the adjustment required by subs (2).

[30] The lacuna in s 126 may have occurred because the drafter was following the reasoning in Malec . The adjustment which was required in that case was to take account of the possibility that factors unconnected with the injury might have resulted in the same disability in any event: at 645. That problem aside, there is a point (which may be differently assessed by different courts) beyond which the selection of a figure for economic loss is so fraught with uncertainty that the preferred course is to award a lump sum as a “buffer”, without engaging in an artificial exercise of commencing with a precise figure, and reducing it by a precise percentage. The suggestion that such a commonsense approach was precluded by legislation in the form of s 126 was rejected, as noted by the trial judge, in Penrith City Council v Parks [2004] NSWCA 201, by Giles JA at [3]–[5]. Since then, a similar approach has been adopted in at least 20 cases in this court: see, eg, Leichhardt Municipal Council v Montgomery [2005] NSWCA 432 at [33] (Hodgson JA; Mason P and McColl JA agreeing); Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99; 172 IR 453; [2008] Aust Torts Rep 81-949, at [84] (McColl JA; Mason P and Beazley JA agreeing); Zreika v New South Wales [2009] NSWCA 99 at [29] (Ipp JA; Beazley and Macfarlan JJA agreeing); Gulic v O’Neill [2011] NSWCA 361 at [67]–[69] (Whealy JA; Campbell JA and James J agreeing). It was not submitted that in principle such a course was not open to the assessor, acting in conformity with s 126. Nor was it contended that s 126 varies general law principles in any material respect. Such a contention would involve a challenge to the reasoning in Penrith City Council at, for example, [58] (McClellan AJA).”

257. Macfarlan JA stated as follows at paragraph [66]-[67]:

“[66] I agree with the judgment of Basten JA but add the following observations in relation to the buffer that the assessor awarded in respect of future economic loss.

[67] It has been accepted since Penrith City Council v Parks [2004] NSWCA 201 that it is not inconsistent with s 13 of the Civil Liability Act 2002 or the similarly worded s 126 of the Motor Accidents Compensation Act 1999 for a buffer to be awarded to compensate an injured person for the possibility that he or she may suffer economic loss in the future as a result of a loss of capacity to earn income. In Leichhardt Municipal Council v Montgomery [2005] NSWCA 432, Mason P spoke of such an award being usually reserved for “the situation where there is a smallish risk that otherwise secure employment prospects may come to an end, in consequence of the tort-related injury, at some distant time in the future” (at [2]).”

258. Although the plaintiff is 44 and therefore would have had some real difficulties in obtaining employment due to her age in the beauty therapy industry, she has some prospects of starting up her own limited business. She has been shown to have a fragile psychological make up prior to the accident. Her spine conditions may also possibly have become symptomatic through other causes. Doing the best I can taking into account all of the factors which are set out above, in my view the plaintiff is best compensated by awarding a buffer for loss of future earning capacity and loss of superannuation benefits in a similar way that I have ordered a buffer for loss of past wages and earning capacity.

259. A long period needs to be taken into account. Doing the best I can in all the circumstances, I would award the plaintiff $110,000 by way of a buffer for loss of future earning capacity. This takes into account that the plaintiff has continuing soft tissue injuries to her neck and back and an aggravation of her underlying spinal degenerative changes and also an aggravation of her adjustment disorder which hopefully will be improved with further treatment.

260. I would allow no further amount for loss of superannuation which I have taken into account in making the buffer award. In any case, if the plaintiff starts another business she would need to provide her own superannuation benefits.

Future domestic or commercial assistance

261. The plaintiff claims an amount of $25,000 for future paid domestic care and assistance. No claim is made for past care. Before an amount for commercial assistance can be awarded some need arising from the accident must be shown. That need may include a possible need for commercial assistance likely to arise in the future: Miller v Galderisi [2009] NSWCA 353 at [18]; Smith v Alone [2017] NSWCA 287 at [73]-[77].

262. The plaintiff gave evidence that she currently lives in a shared unit arrangement with an older woman who undertakes most of the cleaning and other domestic chores. The plaintiff gave evidence that she was able to cook simple foods for herself. She also gave evidence that she could do the dusting and if pacing herself, some limited cleaning and perhaps simple vacuuming. The plaintiff stated that she could not undertake difficult cleaning or vacuuming. Clearly difficulties arising from the plaintiff’s shoulder and hip cannot be taken into account by the Court. It seems that some of the plaintiff’s difficulties relate to her back injury.

263. The plaintiff gave evidence that she intended to remain in her current arrangement. However her flatmate is 60 years of age and there is always the real possibility that the unit may be sold or the flatmate may move in with her adult child. If the arrangement ceases I consider it likely the plaintiff will need some assistance with heavier tasks involving cleaning on an occasional basis. In my view this is best compensated by a buffer amount allowing for a discount as required by Avopiling Pty Ltd v Bosevski [2018] NSWCA 146. In my view this would be on the basis of $50 per hour for two hours every month for a closed period of three-four years seven years in the future. I would allow $3,000 as a buffer amount under this head.

Summary of the amounts awarded.

264. Accordingly, I award the following amounts of damages to the plaintiff:

Heads of damage
Non-economic loss - not applicable	Nil
Past out of pocket expenses	$40,246.80 (credit of s 83 payments of $33,116.80)
Future out of pocket expenses	$15,000.00
Past economic loss	$25,000.00
Past loss of superannuation	Nil further (within amount for past loss of earnings)
Future loss of earning capacity	$110,000.00
Future loss of superannuation	Nil further (within amount for future loss of earning capacity)
Past domestic assistance - not applicable	Nil
Future commercial assistance	$3,000.00
Total	$193,246.80

265. The parties should bring in short minutes of order to reflect these reasons. The parties will need to make an allowance for the s 83 payments.

266. Accordingly, I make the following orders:

1. Judgment for the plaintiff.

2. The parties are to bring in agreed short minutes of order within seven days reflecting the Court’s reasons for decision.

3. The defendant is to pay the plaintiff’s costs of the proceedings as agreed or assessed.

4. The parties have leave to make an application within 14 days to vary the order as to costs in (3) above.

5. Liberty to apply to the Associate to Dicker SC DCJ to relist the matter on two business days’ notice.

6. Exhibits are to be returned after 28 days of final orders being made.

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Decision last updated: 15 March 2024