Gobrial v Latuhoi

[2009] NSWDC 121

CITATION:	Gobrial v Latuhoi [2009] NSWDC 121
HEARING DATE(S):	26, 27 and 30 March 2009 and 18 May 2009
JUDGMENT DATE:	10 June 2009
JURISDICTION:	Civil
JUDGMENT OF:	Hungerford ADCJ
DECISION:	Verdict for the plaintiff against the defendant in the sum of $82,960.85; parties to be heard on costs.
CATCHWORDS:	TORTS - Motor vehicle accident - Personal injury - Liability admitted by defendant - Assessment of damages - Time of onset of symptoms - Physical injury - Psychiatric/psychological injury - Functional overlay - Perception of pain - Exaggeration of disability - Causal connection of injuries to the motor accident
LEGISLATION CITED:	Motor Accidents Compensation Act 1999, ss 83, 124 and 131 Workers Compensation Act 1987, s 151Z(1)(e)
CASES CITED:	Fox v Wood (1981) 148 CLR 438
PARTIES:	Nada Gobrial - Plaintiff Paul Latuhoi - Defendant
FILE NUMBER(S):	No 5001 of 2008
COUNSEL:	Mr TDF Hughes for Plaintiff Mr DL Ronzani for Defendant
SOLICITORS:	GH Healey & Co for Plaintiff D McLachlan (QBE Legal Unit) for Defendant

JUDGMENT

1 At approximately 8.00pm on 29 June 2000 the plaintiff, Nada Gobrial, was travelling along the Princes Highway at Sutherland in her motor vehicle on her way home from work when it was struck by a vehicle driven by the defendant, Paul Latuhoi, travelling in the opposite direction. Six months pregnant at the time, the plaintiff sustained multiple injuries of an allegedly serious nature but, fortunately, she gave birth in due course to a healthy daughter. At the time of the motor accident her expressed concern was for her unborn baby.

The claim and defence

2 Liability for the motor accident was admitted by the defendant who conceded breach of the duty of care owed to the plaintiff so that these proceedings were concerned only with the assessment of damages. In that respect, the defendant admitted also that the plaintiff was injured and suffered loss but the extent of that injury and loss was strenuously resisted. The plaintiff claimed damages for out-of-pocket expenses, economic loss (including superannuation) and attendant care services; non-economic loss was not pursued, by reason of s 131 of the Motor Accidents Compensation Act 1999 (the MAC Act) as whole person impairment was assessed at not greater than 10 per cent. The total claim was to the order of $747,800. In stark contrast, the defendant’s case was for total damages of $5,960 but less $3,642.50 in respect of payments made by the defendant to and for the plaintiff for medical expenses under s 83 of the MAC Act and as required by s 151Z(1)(e) of the Workers Compensation Act 1987 – any verdict for the plaintiff should, therefore, on the defendant’s approach, be no more than $2,317.50. Shortly put, the defendant challenged the plaintiff’s credibility and the impact that that had on the causation of the alleged injuries as stemming from the motor accident, including that the plaintiff did not sustain serious injuries and was nowhere near as disabled as she claimed.

3 The MAC Act applies to the determination of this matter.

Plaintiff’s background

4 Born on 30 April 1972 in Egypt, the plaintiff was age 28 years at the date of the motor accident and 37 years at trial. She completed secondary education in Egypt in 1989 and obtained a Bachelor of Commerce degree from the University of Cairo in 1992 followed by employment with an accounting firm in Cairo for two years doing bookkeeping, typing and filing. Then, for nearly two years she was engaged as a cashier in a supermarket in Jordan during which period she was married. In November 1996 the plaintiff and her husband migrated to Australia and she undertook an English course at TAFE; other courses completed at TAFE were a Clerical Certificate, Information Technology and partial completion of an Advanced Diploma in Accounting. The first job the plaintiff got in Australia was with Celface Electronics in 1997 as a bookkeeper but after working hours she was a kitchenhand at Pizza Haven; those jobs lasted for about a year or so.

5 In 1998, the plaintiff changed her occupation and obtained two positions, working at different times of the day, in the nursing and home care industry: the first was at Ferndale Nursing Home at Mortdale for 20 hours per week in the evening and on Saturdays during the day; the second job was in the mornings for 20 hours per week for Home Care Services in the Cronulla area. Both of those positions involved her in providing nursing assistant services, although Home Care was mainly housework for clients and Ferndale was more nursing in nature directly assisting residents. The plaintiff found no physical difficulty in doing that work and said she had not had any previous accidents or disabilities.

6 At this time, the plaintiff and her husband lived in a two-bedroom house at Sutherland where, she said, she did all of the housework which took about two hours per day or 14 hours each week. Her husband had full-time employment as a waterproofer with Dema Marble but he did not do much around the house. The plaintiff became pregnant in early-January 2000.

7 Kamal Gobrial, the plaintiff ‘s husband, described her behavioural state before the subject motor accident as “she’s normal, she’s good, she’s done everything the work, all right” and her physical condition was problem free. He said she did the housework and “loved her work.”

8 Viola Papadakis, the plaintiff’s sister who lived with the plaintiff and her husband in 1998/1999 when she arrived from Egypt, put her emotional condition before the subject accident in this way:

“She’s always happy, she’d do her job perfectly, she’s friendly, she is good, like she was absolutely normal like, do her home, like work house perfectly. She’d do her job outside perfectly, she loved to do things neat and she was very good,…normal, happy with Kamal…I enjoy lived with them. She was…very good, happy all the time…capable do things…she used to work as a nurse. She used to do lots of shifts and she enjoyed doing it, very much…like she cook and clean and do housework quickly and neat and perfectly, so I was helping out but not much…”

Motor vehicle accident

9 On 29 June 2000 as the plaintiff was returning home in the evening from her job at Home Care Services in her car on the Princes Highway at Blakehurst, near Sutherland, what occurred was stated by her thus:

“I was driving my way and suddenly I saw something coming to me, and I don’t remember a few seconds. There is a few seconds I still don’t remember, and I found myself somewhere there. I smelled the smoke. I couldn’t get out of my side, I had to go from the other side. I was shivering. I found people there who helped me. Someone gave me a jacket and I think one of them was in Home Care. Then I found the ambulance and I went to the ambulance…I was worried about the baby, so they gave me a mask for the oxygen because I inhaled smoke, and that’s all.”

10 The ambulance conveyed the plaintiff to Sutherland Hospital. The patient report completed by the attending ambulance officer noted the plaintiff’s “only complaint is slight right auxillar (abdominal area) tenderness.” She was reviewed in the hospital’s Emergency Department, where her pregnant condition was found to be satisfactory and, after about two hours, she was discharged into her husband’s care and taken home. Her motor car was towed from the scene and was later written off for insurance purposes.

Consequences of the accident

11 Although she said it was on the day following the accident, the plaintiff consulted her general practitioner, Dr KK Achar, at Sutherland due to chest pain and lower abdominal pain. Dr Achar reported this occurred on 3 July 2000 (four days after the accident) and he issued a certificate for workers compensation purposes with the diagnosis from the accident as “bruised chest and abdomen”, treatment of rest and analgesia and unfitness to work from 30 June to 9 July 2000. During that period at home the plaintiff said she was “lying down all the ten days” and experienced “more pain in my back and everywhere… I was worried about the baby more… The lower back, I had more pain… I had pain everywhere…the sharpness of my chest …pain in my abdomen…My leg was shivering. I had pain in my legs. I had pain everywhere, in my shoulders, my neck, my back, everywhere, but my concern was all about my baby. That’s all.”

12 On 10 July 2000 the plaintiff returned to perform her normal duties at both Ferndale and Home Care but noticed more pain, particularly in lifting residents; she emphasised “You see I love work and I went back and I just did my jobs.” However, after about six weeks she left those jobs with this, perhaps somewhat curious and non-informative, explanation:

“I couldn’t do any more and I had to stay anyway, so I couldn’t do any more and I had to stay and them I’m expecting to have my baby, but I couldn’t do any more, if they wished me to do more, I will do more.”

13 It was the plaintiff’s expressed intention to return to work at Ferndale and Home Care three months after giving birth. Her daughter, Melanie, was born on 2 October 2000. However, in that three-month period she experienced problems and said she “had more pain and then I couldn’t lift my baby they know, in the hospital they know that I’ve got pain in my back and everywhere and they give me cushions… I had pain a lot in my back, my hand…I couldn’t lift my baby…My neck, everywhere you know my leg.” She added:

“I was struggling doing them and I had more pain everywhere, I couldn’t cope, it was really hard, it was really hard, that’s all, I didn’t cope as much and I’m not alright. I wasn’t alright and before I was doing a lot of things, I couldn’t lift a three kilos baby and a half I couldn’t do anything.”

14 Due to such difficulties, the plaintiff attended her regular general practitioner, Dr Susan Dimitri, who specialised also in obstetrics and gynaecology, on 27 January 2001. Dr Dimitri, since deceased, provided two reports dated 1 June 2003 and 20 February 2006 on seeing the plaintiff on a number of occasions. In the first report, she expressed the opinion the plaintiff in the motor accident had “suffered neck and back pain due to small posterior midline disc protrusion of C5/6 in her neck and L5/S1 in her lower back” which rendered her partially incapable of performing duty as a nurses assistant; the prognosis was “not favourable.” In the second report, nearly three years later, the original diagnosis was repeated but added “chronic depression and severe anxiety due to her persistent neck and back pain. The patient needs intensive psychiatric treatment, which she has still yet to start.” The prognosis as to improvement in the pain level was “quite poor.” In the meantime, Dr Dimitri referred the plaintiff to Dr Medhat Guirgis, a consultant orthopaedic surgeon, who first saw her on 14 February 2001. In his report of 11 August 2003, Dr Guirgis said the subject accident resulted in injuries of mechanical derangement of the cervical, thoracic and lumbar areas of the spine from musculo-ligamentous sprain/strain with radiological evidence of intervertebral disc involvement at the C5/6 and L5/S1 levels; symptoms in the right and left wrist joints from spraining were recorded; but surgical intervention at that stage was not considered to be appropriate. Dr Guirgis thought then that the plaintiff remained unfit for activities requiring stress to the spine and wrists.

15 At the time of the accident, the plaintiff’s two sisters, Phoebe and Diana, were living with her until November 2001 when they moved to the United States of America; her other sister, Viola Papadakis, who gave evidence in the proceedings, lived with the plaintiff and Mr Gobrial from November 2001 to December 2002. The plaintiff said, due to difficulties from her injuries, that she could not continue to do the two hours a day domestic work she did before the accident which were then shared between her two sisters. She said Phoebe did “nearly an hour a day, a couple of hours a week, so it’s six hours a week or something like that”; as to Diana, she said she helped with cleaning for nearly “six hours a week.” The plaintiff and her husband moved to Casula from Sutherland at the same time in November 2001 Ms Papadakis came to stay who, the plaintiff said, then helped her with the domestic duties for two hours a day or 12 hours per week on average. Ms Papadakis in evidence said that when she lived with the plaintiff before the accident in 1998/1999 she did not do much in the house but after the accident she spent from two to three hours a day “preparing dinner and clean after dinner…housework never end.” Now, Ms Papadakis visits the plaintiff once a week and, as to domestic assistance, said:

“As soon as I walk in I start working and I get really frustrated, like some clothes here, some clothes there and I have to fold and clean the kitchen…do lots of work for her constantly since I walk in. Even I’m pregnant now still I do work and even she say please sit down and do nothing, but I can’t help it, like obviously she need help. I can see the house a big mess.”

16 Mr Gobrial, described by Ms Papadakis as a “big helper” in the house, confirmed that the plaintiff did the housework before the accident but after it “I do the washing, I clean the house, I clean the dishes, sometimes I do the cooking…I make the laundry…I put all the clothes and hang it up outside” – the time involved to do those things was estimated buy Mr Gobrial as one and a half hours each day of the week.

17 Since the accident, Mr Gobrial said the plaintiff complained about pain in her back, neck, hand and leg; he said “She’s tired, she’s sick, she can’t move too much…she’s completely different person…she start crying…she doesn’t sleep…” Ms Papadakis described the changes in the plaintiff in this way:

“Okay physically side…she became slow and very very slow… she wasn’t capable to do things…emotionally you can say she lost self esteem a bit…she became emotional, anything’s going to upset her quickly and I had to support her all the time,…to be strong…and move on but…she’s very sensitive.”

18 After the birth of her daughter in October 2000, the plaintiff said she started to struggle doing things and attending to the child; she confirmed the domestic assistance rendered by her sisters Phoebe, Diana and Viola. Then, apart from the continuing problems with her neck, back and hands the plaintiff said she has had “constant headaches”; she added:

“Anything I do more it create more, so I have more pain and sharpness. When I work I scream at the end of it and I really have more pain, more headaches, more pain in my back, my leg if I mop it’s more pain sharp in the leg. So anything I do, that’s what I’m going to do, I stay and I rest. I find when I rest it helps a bit. It’s more pain everywhere, headaches, pain here in my hands, my wrists when I do more, I have to have injection (in right hand).”

19 Notwithstanding the plaintiff’s disabling condition, she again became pregnant and a second daughter, Katarina, was born on 7 March 2002. She did not return to work at Ferndale or Home Care.

20 In mid-2003, the plaintiff obtained a part-time position with Income Tax Professionals (ITP) preparing taxation returns for about six weeks. She then did not work again until mid-2005 at ITP for a similar period and again for about six weeks in mid-2006. During all of that time she said she was looking for other work – “I did my best and I looked everywhere” – and went to Centrelink to try and obtain work “straightaway” after the birth of Katarina. Eventually, on 31 May 2007 full-time employment was obtained with Austral Brick Co Pty Limited at Punchbowl as a production clerk which involved data collection and input, raising invoices, receipts and preparing profit and loss statements. Her working hours range, with overtime, from 25 to 35 per week starting at 9.30am. However, in doing the work the plaintiff made the point that because of the pain in her back and leg “it’s not easy. I’m struggling doing it.”

21 As to her present condition psychologically, the plaintiff said she had problems sleeping and otherwise was “not feeling all right…more depressed…I feel like I’m dead…I’m working I’m struggling with it…really harder, and trying to manage…I’m a bit stressed to be at work…” Presently, she receives physiotherapy at a cost of $60 per visit for her back and neck which helps and takes medication (Panadol or Panamax) for the pain which costs around $5.00 per month and $5.00 per month for Mobic tablets for her emotional upsets. At the time of the hearing, the plaintiff said the things which really bothered her were pain in the back, shoulders, neck, hands, legs and chest; driving a car was difficult.

22 The plaintiff was closely cross-examined as to the extent of her injuries from the motor accident and her capacity for work. For instance, in the workers compensation claim form completed on 5 July 2000 she advised injuries to the “chest, abdomen, right leg.” In the motor accident claim form completed on 18 December 2000 she identified injuries of “inhaled smoke, shocked, pain, my body weak”; she added “first had chest and abdomen pain (they gone), wrist pain continuous (pain and have to wear splint to give me support, restricted movement), spotting from pregnancy (gone), pain in my thigh to all way to my foot (few days), lower back pain (few), neck pain (few), my body is not strong as before (my body is not as normal as before).” On 11 October 2000 she attended Dr Achar complaining of painful wrists which he said she told him started four weeks after the accident – the plaintiff agreed with that as she noticed the wrist pain in trying to lift a patient at work. In his report of 3 April 2001, Dr Achar stated that it was not until February 2001 she started to complain of pain in her neck and lower back. As to causation of those later arising problems, Dr Achar believed the tendonitis in the wrists was due to the motor accident but as the neck and back problems developed a few months after the accident he was unable to say whether the accident was the cause. In response, the plaintiff maintained she had “pain everywhere.”

23 Some insight perhaps into the plaintiff’s capacity comes from the report of Dr Joan Chen, a consultant physician in occupational medicine, who interviewed and examined her on 17 December 2007. Dr Chen noted the plaintiff told her that after her sister Viola moved out in December 2002 the plaintiff “had to do all the cooking and cleaning without assistance.” However, in evidence the plaintiff said her husband helped and added:

“I remember when I was doing mopping I had to stop, I can’t do, and I leave everything and I have to lie down, I can’t keep going and I have to stop and back again, that’s why I struggle and I’m struggling.”

24 Extensive cross-examination of the plaintiff occurred as to statements reportedly made by her to doctors as to when she first experienced pain after the motor accident, other than the chest and abdominal pain earlier suffered. It was suggested by the defendant she ceased work in September 2000 to go on maternity leave and that the extended areas of pain allegedly felt by her did not occur until December 2000/early-2001. She disagreed and said that as early as September 2000 she had pain “everywhere.”

25 In response to a question whether she had had any improvement in her condition since late-June 2000 to the present time, the plaintiff in an animated and lively way said:

“Sort of, yes and no, the pain get sharp can hit me any time… I’ve still got the pain, I’ve got the neck and the back and my leg has got the pain and my hand I’ve got all the pains but see it’s aggravated…I still have pain with normal things that you do, sitting, standing…not working still I’ve got pain, normal life, I’ve got pain, I was normal, I’m not normal now okay.”

26 During that nearly nine-year period, the defendant arranged for video surveillance of the plaintiff on very many occasions –

• six days in August 2003 resulting in 12 minutes of film in the area of her home, a childcare centre, ITP workplace and visit to a doctor’s appointment by train;
• five days in August/September 2004 resulting in two and two-thirds minutes of film in the area of her home;
• six days in April 2009 resulting in 16 minutes of film of her travelling from home to work and in the area of a church; and
• three days in April/May 2009 resulting in 10 minutes of film outside her home, shopping, taking children to school and refuelling the car at a service station.

27 The plaintiff was questioned about the activities shown in the video film. In general terms, she responded “everything I do is pain.” To very many of the specific and precise questions asked she either gave a non-responsive answer, replied with a question, avoided the issue or simply did not give any intelligible answer. For example, on being asked whether she remembered ever leaning into a car since the accident the plaintiff said “I don’t want to answer this questions, it’s just I don’t know what to answer this questions. All I know I was struggling with everything I was doing, okay.” As to particular activities the plaintiff did as shown in the video film, she maintained she was then in pain.

28 Counsel for the defendant in relying on the video film suggested it showed the plaintiff carrying out her normal life rather than with the disabling condition portrayed by her in giving evidence. The submission was made that it directly told against the plaintiff’s credit and supported no damages for economic loss or domestic care. The plaintiff’s counsel did not really address the video, other than that it was not inconsistent with medical evidence in the plaintiff’s case. For myself, I found the film to be helpful in better understanding and resolving any doubts existing from the other evidence. Of course, the film itself cannot be decisive and some caution needs to be exercised in assessing it; but it was, I think, instructive evidence, having in mind her physical condition said by the plaintiff to exist, by providing an insight over a lengthy time-span into many aspects of the plaintiff’s daily life in a natural setting.

Medical evidence

29 Apart from the medical evidence to which reference has already been made, the other medical evidence in the case was relatively extensive but was essentially of a medico-legal nature due to the paucity of treatment received by the plaintiff. It is convenient to deal with each practitioner in turn.

30 Dr H Van der Wall: On referral by Dr Achar, on 13 December 2000 Dr Van Der Wall gave the plaintiff a limited bone scan to evaluate pain in both wrists. He found tendonitis in the wrists with evidence of some post-traumatic inflammation in the hands, more severe on the left, and degenerative changes elsewhere. This is consistent with what Dr Achar found as to the wrists post-accident and even though it commenced four weeks after the accident.

31 Dr G Schaffer: On 12 February 2001, Dr Schaffer, a radiologist, performed imaging of the plaintiff’s cervical/thoracic/lumbar spine and found a normal study; specifically, individual vertebral bodies were intact and with no disc space narrowing.

32 Dr M Roberts: A radiologist, Dr M Roberts performed MRI scans of the plaintiff’s spine on 15 March 2001. At C5/6 he found a tiny midline protrusion of the disc but no nerve root entrapment; the thoracic spine was normal; and the lumbar spine at both L5/S1 and L1/2 levels had small or tiny midline disc protrusions but with no nerve root entrapment. Those result were commented upon by orthopaedic surgeons.

33 Dr Henry Lam: Dr Lam, a pain management specialist, consulted with the plaintiff and in respect of 8 November 2002 referred to the earlier scans of the spine and indicated his impression that the plaintiff had cervical spinal pain with associated musculoskeletal pain which was chronic. He informed her of pain coping strategies and pain management skills.

34 Dr R Shnier: On 5 June 2003 from referral by Dr Guirgis, Dr Shnier performed an MRI of the plaintiff’s pelvis and found some muscle asymmetry with some hardening of the sacroiliac joints; otherwise the scan was unremarkable.

35 Dr Peter Kitchener: On 13 November 2003, Dr Kitchener, a radiologist, x-rayed the plaintiff’s cervical, thoracic, lumbosacral spine and pelvis. He found a slight loss in normal spinal curvature with some pelvic tilting but otherwise there was no evidence of any disc space narrowing.

36 Dr Grahame Mahony: An orthopaedic surgeon, Dr Mahony examined the plaintiff on 21 September 2004 and again on 19 March 2009. In his first report of 22 September 2004, Dr Mahony seemed in the history taken to have assumed, contrary to what Dr Achar said, the headaches and pain in the neck and back occurred during the four-week period after the motor accident. In any event, Dr Mahony had access to the radiological investigations referred to earlier. He found the plaintiff developed symptoms referable to strain of the cervical, thoracic and lumbar spine, with nerve root irritation but contrary to the findings of Dr Schaffer, Dr Roberrts, Dr Shnier and Dr Kitchener, and lumbar disc lesions at the L1/2 level. Perhaps, in finding “symptoms” in those respects, Dr Mahony depended upon the subjective complaints of the plaintiff rather than the objective radiological results. Dr Mahony went on to say that it was consistent with the motor accident to have produced such lesions. In the result, he suggested a restriction of activities as not involving significant bending or lifting or work as an assistant nurse.

37 In Dr Mahony’s second report of 19 March 2009 he effectively confirmed the earlier opinion.

38 Dr Gerard Barold: On 14 June 2005, Dr Barold, an occupational medicine consultant, examined the plaintiff and reported on 16 June 2005. Again, and like Dr Mahony but contrary to Dr Achar, Dr Barold took a history from the plaintiff of the development of headaches as well as pain in the neck, lower back and both wrists on her return to work a couple of weeks after the motor accident. Dr Barold’s report of his clinical observations on examination disclosed no remarkable signs of any disability and noted there was no abnormality of gait or posture. Nevertheless, Dr Barold, after finding soft tissue straining injuries to the cervical and lumbar spine in the motor accident, made these comments:

“There is the expectation that she will continue to experience periods of exacerbation of her condition for an indefinite period.

Her history is consistent with my clinical findings and I consider the injury sustained in the subject motor accident to be causally related to her condition which has now reached maximal medical improvement and has stabilised.

She is certainly unfit to return to her pre-injury work duties as an assistant nurse and home carer and I would recommend that she avoid activities which involve repetitive or sustained neck and back flexion and extension, prolonged standing, bending, stooping, kneeling or squatting.

She should also avoid repetitive or sustained bilateral grasping, flexing, stretching, reaching or above shoulder work and should limit the lifting of weights to less than 2kg to waist level only. She should be given the opportunity of being able to sit or stand and to take rest periods as required.

She is now best suited for employment of a more sedentary nature and I believe that office and/or clerical duties would be appropriate, however she should limit any keyboarding to less than one hour at a time following which she would need to take a 5-10 minute rest break.”

39 Dr Barold made recommendations as to future treatment needs for the plaintiff as well as the provision of domestic assistance.

40 Dr Susan Dimitri: In a report of 20 February 2006, Dr Dimitri, a general practitioner who specialised in obstetrics and gynaecology, expressed the opinion the plaintiff suffered from chronic neck and lower back pain due to small disc protrusions at the C5/6 and L5/S1 levels. She also diagnosed chronic depression and severe anxiety due to the persistent pain and suggested the need for psychiatric treatment – the plaintiff expressly declined such treatment.

41 Dr Medhat Guirgis: The plaintiff’s treating orthopaedic surgeon, Dr Guirgis causally related the subject motor accident to post-traumatic mechanical derangement of her cervical, thoracic and lumbar areas of the spine with disc involvement; he referred to the C5/6 and L5/S1 levels. Post-traumatic symptoms were also found in both wrists. Dr Guirgis then in August 2003 found the plaintiff unfit for activities requiring stress to the spine and wrists.

42 Dr Patricia Jungfer: Dr Jungfer, a consultant psychiatrist, saw the plaintiff on 9 June 2005 and reported on 22 June 2005. A diagnosis of major depressive disorder was made, due to the chronic pain said to be experienced by the plaintiff, with disturbance of mood, sleep and reduced interest in activities. Without appropriate psychological treatment, Dr Jungfer viewed the prognosis as poor. She related the condition solely to the subject motor accident.

43 Dr P Clements: Acting for the Director of Medical Services of Sutherland Hospital, Dr Clements in a report of 21 March 2001 noted the plaintiff’s attendance on 29 June 2000 after the motor accident with complaints of abdominal pain and said “at the time of the examination she was much improved, otherwise examination was satisfactory” and she was discharged. The plaintiff next presented at the labour ward of the hospital on 3 July 2000 for “reassurance and assessment”; she was offered admission for observation as she had vaginal bleeding but discharged herself. Dr Clements recorded that the plaintiff was an in-patient of the hospital from 2 to 6 October 2000 when she delivered a healthy daughter.

44 Dr BR Gooley: On 4 November 2000, Dr Gooley, a general practitioner, in a report of 6 March 2001 said the plaintiff attended the Australian Health Care Centre at Kirrawee with ongoing pain to her right wrist. As earlier noted, the plaintiff first attended Dr Achar on 11 October 2000 for painful wrists which started four weeks after the subject accident. Dr Gooley reviewed her on 25 February 2001 by which time there was no ongoing pain.

45 Dr Nigel Hope: An orthopaedic surgeon, Dr Hope examined the plaintiff on 7 March 2001 and reported the next day. He expressed the view that she had no permanent impairment of any body part and said her then current condition of recurrent back and leg pain could not be reconciled with the June 2000 motor accident. Dr Hope found her fit for full duties, observed she had a neutral attitude to her injury and the prognosis was good with a high probability of full recovery from any back and leg problems. Dr Hope’s opinion was:

“This 28-year-old lady is right-handed and had no pre-existing pathology in her wrists or back prior to the injury she sustained during a motor vehicle accident on 29 June 2000. A variable time later she developed some wrist symptoms and some back symptoms. The wrist symptoms have, by and large, recovered but back symptoms continue to some extent.

She presents today almost nine months since her injury with no significant wrist symptoms but recurrent back and leg pain. There are no signs to correlate with the symptoms. The investigations of the spine are normal. The bone scan shows mild tenosynovitis which has resolved.

This, the worker’s history, symptoms, signs and investigations are consistent with completely recovered tenosynovitis of the left and right wrists. However, the worker’s history, symptoms, signs and investigations cannot be reconciled with an orthopaedic diagnosis for the back problem.”

46 Dr Lew Pierides: On 25 August 2003, the plaintiff was reviewed by a specialist in occupational medicine, Dr Pierides. He took a quite complete history of the accident and subsequent events, including by reference to the radiological investigations, and during this, as he said in his report of 28 August 2003, “there were tears and pressure of speech and over focus on symptoms and some hysterical behaviour.” On examination, Dr Pierides found no abnormalities of the wrists, there was a good range of movement in the spine and reflexes were normal with no muscle wasting. The significant points were made by Dr Pierides in his first report were –

• It is unlikely any significant injury occurred in the accident.
• Significant inflammation in the wrists would not be accident related.
• The neck and back pain did not occur until some time after the accident and is not related to any physical injury caused in the accident, although it may be related to her personality and current anxiety state.
• There were no significant ongoing disabilities.
• The accident was not responsible for any of her complaints.
• There was no injury found on examination.
• No treatment is needed in the future, other than with a psychologist for her anxiety as that is the main reason behind the ongoing pain.
• She is fit to perform all duties.
• She requires no rehabilitation.
• Her injuries have stabilised.
• The wrist injury is not related to the accident.
• She does not require any domestic care or assistance as a result of any injuries sustained in the accident.
• She is able to return to full-time employment and would have been able to do so two weeks after the accident.

47 Dr Mark Burns: Dr Burns was an occupational physician who examined the plaintiff on 2 February 2004 for an independent medical assessment as to whether her injuries form the motor accident had stabilised and any degree of whole person impairment. He specifically attended to the alleged injuries of bruising to the sternum and strain to the lower abdominal muscles and found they had stabilised with no permanent impairment. In his accompanying report of reasons, Dr Burns noted, like Dr Pierides, that during the consultation the plaintiff spoke with very pressured speech and became teary on many occasions. He took a very comprehensive history from her, obviously thorough examination and with reference to the radiological investigations. He diagnosed soft tissue injuries to the chest and abdomen from the motor accident which had resolved completely. Dr Burns did not believe the back and neck pain was associated with the accident and which, in any case, displayed a normal range of motion without muscle spasm of muscle guarding. As to the wrists, Dr Burns said the condition of tendonitis was not associated with the accident and it had totally resolved.

48 Dr Robert Lewin: Dr Lewin, a psychiatric MAS medical assessor, examined the plaintiff on 13 March 2007 and found the injury of major depression suffered by the plaintiff was caused by the motor accident but was in partial remission. Whole person permanent impairment was assessed at 5 per cent.

49 Dr Joan Chen: Dr Chen’s review of the plaintiff on 17 December 2007 has been referred to earlier. In her report she commented on the relationship between the accident and the injuries and disabilities alleged by the plaintiff as follows:

“As I have mentioned, the link between the subject accident and the alleged injuries is tenuous, particularly in view of the at least four week temporal gap between the accident and development of symptoms. According to the history given, there appears to have been at least a four week temporal gap between the accident and the onset of bilateral wrist and neck and back symptoms. There is an even longer temporal gap between the accident and the first medical record of bilateral wrist pain and of neck and back pain. I think had there been actual soft tissue injuries of the neck, back and wrists, they would have manifested within days of the accident.”

50 Dr Chen explained from the history that the tenosynovitis in the wrists, now largely settled, was related to the plaintiff’s advanced pregnancy and aggravated by work duties. The soft tissue injuries to the neck and back might well have arisen from late pregnancy and, due to the time delay, it was less than likely that the neck and back conditions were causally related to the motor accident.

51 Dr Derek Lovell: On 16 August 2006, Dr Lovell, a consultant forensic psychiatrist, interviewed the plaintiff. Interestingly, Dr Lovell elicited details, not referred to by the plaintiff in her evidence, of stressors on her of a cardiac arrest suffered by her mother in the United Sates in either September 2003 or September 2004; involvement of her husband around that time when the plaintiff went to the United States in a rollover motor accident resulting in him being off work for 12 months; prior to the subject accident she consulted Dr Monir Younan, a psychiatrist, about being upset, tearful and with self-doubt about how one of her TAFE lecturers regarded her; and an aunt had a history of depression after marital difficulties. Also, the plaintiff’s second pregnancy in June 2001 was unplanned.

52 Dr Lovell did consider the plaintiff suffered from an adjustment disorder with depressed mood, unlike Dr Jungfer who diagnosed a major depressive disorder with melancholic features, as a result of frustration and irritability related to the subject accident. Even so, he said there were “no psychological effects on her capacity to work…no difficulties with concentration or attention…restrictions are likely to be due to pain perception.”

53 Dr K Achar: Dr Achar’s views as the plaintiff’s general practitioner were stated earlier and he saw her on 11 occasions between 3 July 2000 and 11 May 2001. His records disclosed complaints by her of neck and back pain did not start until four weeks after the accident.

54 Assessment of the medical evidence: The medical evidence diverged as between the practitioners qualified by the respective parties. In particular, the plaintiff relied on Dr Mahony, Dr Barold, Dr Lam, Dr Dimitri, Dr Guirgis and Dr Jungfer. For the defendant, the opinions relied on were of Dr Hope, Dr Gooley, Dr Pierides, Dr Burns, Dr Lewin, Dr Lovell and Dr Chen; Dr Achar was referred to for the time the various complaints of pain were made after the accident.

55 I think the clinical records of Dr Achar are important in comparing the opposing medical opinions in that the original presentation after the accident concerned chest and abdominal pain; it was not until four weeks later that the wrists became a problem and complaints as to the neck and back did not start until February 2001 (seven months after the accident). Further, the radiological investigations of Dr Schaffer in February 2001 found a normal condition in the plaintiff’s spine; it was not until March 2001 that Dr Roberts found protrusions at two levels of the spine but even then they were “small” or “tiny” and with no nerve root entrapment. Dr Mahony’s opinion seemed to be based, very much, on the subjective complaints of the plaintiff and in a time scale earlier than when the wrist, neck and back problems actually commenced. Similarly, Dr Barold relied on a history of the problems commencing on the plaintiff’s return to work a couple of weeks after the accident. Dr Guirgis first saw the plaintiff on 14 February 2001 but, like Dr Mahony and Dr Barold, assumed the wrist, back and neck injuries occurred at the time of the accident in terms of symptoms. I accept Dr Achar’s report as to when the various symptoms first arose.

56 It is to be noted also that apart from Dr Achar’s evidence as to the time the relevant complaints commenced, the evidence from the ambulance record, the workers compensation certificate of injury, the medical certificate of injury under the MAC Act and the workers compensation claim form are all consistent with what Dr Achar reported.

57 In a temporal sense, the views of Dr Hope as to the plaintiff’s condition on 7 March 2001 are instructive. After referring to the subjective investigations and to the history, symptoms and clinical signs, he concluded there was no consistency with any orthopaedic problem. Similarly, and by reference to an accurate history of complaints, Dr Pierides found it unlikely any significant injury occurred in the accident and for which there was no causal connection with any alleged ongoing complaints; specifically, Dr Pierides found no injury on examination and considered the plaintiff fit for all duties in full-time employment and where she did not need any domestic care or assistance. Further, Dr Burns found on examination a normal range of movement and where the accident caused soft tissue injuries only to the chest and abdomen which had completely resolved. Dr Chen considered the link between the accident and the alleged injuries to be tenuous and where injuries to the neck, back and wrists, if there had been any, would have manifested themselves within days of the accident rather than, as was the case, some weeks as to the wrists and some months for the neck and back. From a physical viewpoint, I found those conclusions to be logically supportable from the facts, particularly from the radiological investigations and the objective signs on clinical examination. I accept the evidence of Dr Hope, Dr Pierides, Dr Burns and Dr Chen in preference to that of Dr Mahony, Dr Barold and Dr Guirgis. I emphasise Dr Chen’s view of a causal relationship of the injuries to the plaintiff’s work as an assistant nurse which aggravated her in an advanced state of pregnancy.

58 Both Dr Pierides and Dr Burns observed unusual emotional behaviour by the plaintiff during their consultations with her and where Dr Pierides described it as “over focus on symptoms and some hysterical behaviour”; those observations, I have to say, are entirely consistent with the plaintiff’s presentation while giving evidence. Dr Jungfer diagnosed the condition of major depressive disorder as solely related to the motor accident. Against that, however, Dr Lovell found the presence of stressors other than the subject accident in the plaintiff’s life, as stated earlier and which were seemingly of a not insignificant nature requiring her before the accident to consult a psychiatrist, as leading to an adjustment disorder with depressed mood. In the result, Dr Lovell found no psychological impediments to the plaintiff’s work capacity and where “perception” of pain was the more likely cause of any restrictions. Dr Lewin considered any depression was in partial remission.

59 I regard the evidence of Dr Lovell as compelling having in mind his wider enquiries into the various aspects of the plaintiff’s life. Clearly, then, the view emerges that the plaintiff has developed a demonstrable functional overlay as to her condition. However, despite medical recommendations she has declined any psychiatric/psychological treatment. In terms of causation of this condition referable to the subject accident the other stressors may reasonably be seen to have a role and where pre-accident psychiatric treatment by Dr Younan was obtained. Even so, Dr Lewin considered the condition was in remission and Dr Lovell thought there was no work incapacity. I think this may properly be accepted as to the plaintiff’s emotional state.

Resultant condition of the plaintiff

60 I conclude that in the subject motor accident the plaintiff suffered soft tissue injuries to her chest and abdomen which resolved within a couple of weeks. Any injuries to her wrists, neck and back were not causally related to the accident but rather due to her work as an assistant nurse as affecting her advanced pregnancy. The developed condition of an adjustment disorder with depressed mood, which predated the accident, was aggravated by the accident but which was now in partial remission. There is presently no physical or psychiatric/psychological condition preventing her from performing a full range of duties, other than some perception by her of pain “everywhere” from “anything” she does. The reality of that perception needs to be explored.

61 The plaintiff presented as an excitable and overtly demonstrable witness. Examination-in-chief proceeded in an unremarkable way but in cross-examination, which was conducted in a perfectly proper and temperate way, she became very defensive, emotional and even somewhat aggressive to the questioner. She gave unresponsive answers, avoided the point of questions and seemed intent to emphasise how disabled she was from the pain in her body. In light of the accepted medical evidence, indeed also having in mind the medical evidence for the plaintiff as to her condition, I think she grossly overstated the position so that her evidence was reduced in credibility. I am of the view that she is, and has been since shortly after the accident, fit for all full-time work within her education and training. The accident had no causal link with her developed condition other than the stated perception of pain.

62 As to that perception and its effect on her work capacity, including in the domestic situation, the video film of her activities becomes important. I have spoken earlier of the caution one should use in assessing a plaintiff from video material. Here, however, the film, which covered periods in August 2003, August 2004 and April 2009, showed the plaintiff in various situations quickly walking, walking at normal pace, jogging a few steps, lifting children into and out of a car, demonstrably using her arms, carrying bags, shopping, refuelling a car at a service station, bending down and hugging a friend – the actions were performed without any apparent discomfort or difficulty at all; they were not in accord with her evidence of disabling pain.

63 It follows, in my view, that the plaintiff’s perception of pain has no objective support. Whilst I accept she may well experience pain in her wrists, neck and back from time-to-time, that pain is from conditions which are not related to the accident and, so, any causal link is necessarily lost. However, I am prepared to accept a short-lived aggravation from the accident which developed into her adjustment disorder.

Damages

64 The findings made go nowhere near establishing the damages claimed and are closer to those proposed by the defendant.

65 Out-of-pocket expenses: The past expenses were $5,635 of which the insurer has paid $3,642.50 so that the agreed amount, having in mind the defence for earlier payments in s 83(5) of the MAC Act and s 151Z(1)(e) of the Workers Compensation Act, is $1,992.50. This should be allowed.

66 For the future, the plaintiff relied on Dr Barold’s views for physiotherapy, palliative massage, and general practitioner and orthopaedic specialist consultations. Presently, the plaintiff is not incurring any such expenses and, in any case, there is no finding supportive of their need or even that they are accident-related. She has expressly declined past offers of psychological counselling. It is inappropriate to make any future provision for these type of expenses.

67 Economic loss: After the motor accident, the plaintiff was certified as unfit to return to work for two weeks until 10 July 2000. She did so and then worked at Ferndale and Home Care for about six weeks until she commenced maternity leave in September 2000 prior to the birth of her first child on 2 October 2000. She fell pregnant again in early-June 2001 and had her second child on 7 March 2002. She never returned to the nursing duties at Ferndale or Home Care and thereafter worked part-time at ITP for a few weeks in mid-2003, 2005 and 2006; attendance at TAFE in an advanced accounting course occurred during 2005 and 2006. She went to the United States in either 2003 or 2004 to visit her ill mother for a few weeks. In May 2007 the plaintiff obtained full-time employment with Austral Brick Co where she is still engaged as a production clerk.

68 The plaintiff’s net average weekly wage from Ferndale and Home Care for the financial year ended 30 June 2000 was about $545.00. For the period of two weeks total incapacity after the accident she should be allowed economic loss of $545.00 (the first five days is non-compensable under s 124 of the MAC Act).

69 Thereafter, I would not allow for any loss while she was on maternity leave through to, say, June 2004 by which time her children were old enough for school/child care. However, any physical injuries then preventing her from working have been found not to be accident-related so that no loss arose; the exception was the developed adjustment disorder which, by the beginning of 2007, was in remission. I would allow loss for that aspect as an impairment of earning capacity from 1 July 2004 to no later than 30 June 2006 (just before Dr Lovell assessed her). Based on an earning capacity but for the injury of an average of $585.00 per week net I calculate the loss at $60,840. With the earlier figure of $545.00, the total to be allowed for this element is $61,385.

70 Superannuation loss: Given a total economic loss of wages of $61,385, loss of superannuation should be allowed of $6,752.35 (calculated at 11% of the net loss).

71 Domestic care: In terms of need, I think it logical to reason for this element in a similar way to the economic loss factor. Thus, care of 6 hours per week from 1 July 2004 to 30 June 2006 should be allowed at an average hourly rate of $20.00 giving $12,480. For the earlier period of two weeks immediately following the accident, I would allow 8 hours per week at an hourly rate of $17.25, giving $276.00. The resultant total amount for this element is $12,756.

72 Fox v Wood: The parties agreed on a sum of $75.00 in respect of income tax paid on workers compensation benefits.

73 Summary of damages: The damages I would allow in the plaintiff’s favour are therefore $1,992.50 for out-of-pocket expenses; $61,385 for economic loss; $6,752.35 for superannuation; $12,756 for domestic care; and $75.00 for the Fox v Wood element. The total is $82,960.85.

Conclusion and orders

74 The defendant admitted liability to the plaintiff and the case concerned an assessment of damages only. I assess damages in the sum of $82,960.85. The plaintiff is entitled to a verdict against the defendant accordingly. The parties will be heard on costs before final orders are made.

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