Heather Branagan v Rebecca Robinson

[2006] ACTSC 66

HEATHER BRANAGAN v REBECCA ROBINSON & ANOR

[2006] ACTSC 66 (7 JULY 2006)

NEGLIGENCE – causation – novus actus interveniens – whether sexual assault by treating health professional foreseeable

DAMAGES – personal injury – low back and neck injury – chronic pain syndrome – post-traumatic stress disorder – anxiety and depression – extensive pre-accident history of physical and psychological injury – no question of principle

Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522

Fox v Wood (1981) 148 CLR 438

Griffiths v Kerkemeyer (1977) 139 CLR 161

National Insurance Company of New Zealand Ltd v Espagne (1961) 105 CLR 569

No.SC 692 of 2001

Judge:Master Harper

Supreme Court of the ACT

Date:7 July 2006

IN THE SUPREME COURT OF THE)

)No.SC 692 of 2001

AUSTRALIAN CAPITAL TERRITORY)

BETWEEN:HEATHER BRANAGAN

Plaintiff

AND:REBECCA ROBINSON

First Defendant

AND:PETER WISEMAN

Second Defendant

ORDER

Judge:Master Harper

Date:7 July 2006

Place:Canberra

THE COURT ORDERS THAT:

The parties have leave to list the action for the entry of judgment or to apply generally on two days notice.

1.This is an assessment of damages for personal injury. The plaintiff, Heather Jean Branagan, was born on 18 September 1970 and is thirty-five years of age. She was unfortunate enough to be struck from behind while in the driver’s seat of a stationary vehicle on two separate occasions. The first was on 26 April 2000 in Hindmarsh Drive, Weston. The second was on 4 January 2001 in Northbourne Avenue, Braddon. The first defendant was at fault in the earlier accident and the second defendant in the later one. As it happens, the same insurer is liable to indemnify both defendants, who are represented by the same solicitors and counsel. The parties are agreed that it is unnecessary for me undertake two separate assessments of damages, and that a single assessment will suffice.

2.The hearing of the action has been long and complicated. It is a notoriously difficult task to estimate the likely length of the hearing of a more complex action for damages for personal injury, even where liability, as here, is admitted. The parties appeared before the Deputy Registrar of the Court in February 2004 by junior counsel for the plaintiff and an experienced solicitor for the defendants. They agreed that the hearing would take three days. The action was fixed, on the assumption that that estimate would prove reasonably accurate, for 27 April 2004. Both the plaintiff and the defendants were represented on hearing by senior and junior counsel: by the end of the third day the plaintiff was still in the witness box, and there were many more witnesses to be called in the plaintiff’s case. Senior counsel on both sides were of the view that the hearing, including addresses, might occupy a further week: I had the impression that counsel, perhaps a little embarrassed by the optimistic estimate given at the listing hearing, were erring on the side of pessimism with that forecast. The next date convenient to the Court and counsel was 23 August 2004.

3.The hearing resumed on 23 August 2004, and occupied the four days set aside.By reason of investigations carried out on behalf of the defendants during the adjournment, and of information which had become available to the defendants, the cross-examination of the plaintiff was a good deal longer than might have been assumed four months earlier, and by the end of the week we were still in the plaintiff’s case. I decided that regardless of estimates I should set two weeks aside to finish the case. Regrettably the next date convenient to counsel and to the Court was not until 29 March 2005. The hearing continued for the balance of that week and into the following week, with the evidence concluding on Tuesday 5 April 2005. In all, there were nineteen witnesses called to give oral evidence in the plaintiff’s case, including six medical experts. Three lay witnesses and one medical specialist gave oral evidence in the defendants’ case. In addition, a substantial number of medical and hospital reports and records were tendered. At the request of counsel, I allowed a day for preparation of submissions, and counsel addressed on Thursday 7 April 2005 – almost a year after the commencement of the hearing. During that year I had heard and reserved my decision in a number of other actions, including some where the hearing had been reasonably lengthy, and, in accordance with my usual practice, I have given these priority. I generally endeavour to prepare and deliver reasons for judgment in order of completion of the hearing. In addition, where there is an extensive delay between hearing and judgment, it is expected that the reasons will summarise the evidence, set out the findings of fact, and expose the reasoning of the Court in considerably greater detail than might have been adequate had judgment been delivered soon after the conclusion of the evidence and addresses. This will explain in part the length of time it has taken me to prepare these reasons for judgment.

4.In essence, the plaintiff’s case was that prior to the first, and more serious, motor vehicle collision, she was generally in good health, both physically and mentally, employed as a clerk in the Commonwealth public service with excellent career prospects; and that the injuries had affected her both physically and psychologically to such a degree that she would never work again and would require medical treatment, home help and other assistance for the rest of her life. On the plaintiff’s particulars, the claim is a very large one.

5.The defendants’ case is that the plaintiff, in her evidence and in the manner in which she has conducted herself publicly since the first collision, has fabricated or at least grossly exaggerated the degree of her disability for the purpose of maximising her damages. Additionally, their case is that she had significant physical and psychological problems before the collisions, such that her future prospects were doubtful, and far less rosy than painted in her case. Whilst the defendants concede that the plaintiff has suffered injuries and is entitled to some damages, the quantum of those damages, they submit, is modest.

The plaintiff’s pre-accident history

6.The plaintiff had an unfortunate and difficult childhood and adolescence. She was born in Parkes in the central west of New South Wales. The relationship between her parents was a violent and abusive one. Her father physically and sexually abused her mother and her elder sister. The plaintiff has told psychologists of being sexually abused herself by her father, although in her oral evidence she said that she had no memory of the abuse. It is not necessary for me to make a finding as to whether her father abused her sexually: I accept that in later years she experienced what she believed to be a genuine recollection that he had done so.

7.When the plaintiff was ten, her mother separated from her father and formed a relationship with a man of Native American ethnic origin. Her mother and the man she describes as her stepfather, Michael, still live together. When she was ten, her mother moved with her children and Michael to Virginia in the United States. They lived on an Indian reservation and the plaintiff attended primary school and high school. From about the age of eleven she was sexually abused by her stepfather, who was violent and unpleasant after drinking alcohol. She left school at age fourteen and did some casual work at a restaurant. At the age of about fifteen she spent much of her time looking after Kiana, the daughter of her elder sister. In mid-1986 she became pregnant to an American boyfriend. There was no continuing relationship with him. She returned with her family to Australia and went back to Parkes where in March 1987 her baby, a son Joshua, was born. The plaintiff was then sixteen. She moved to Canberra with her mother and stepfather soon after, and briefly attended Dickson College with the intention of completing year 12 and qualifying for university admission. At that time she aspired to be a pharmacist. In the first half of 1988 she went to an adult learning centre at Liverpool near Sydney. She did not complete the course and came back to Canberra in June 1988. She worked in various pharmacies in the Canberra suburbs, and looked after her young son.

8.During 1990, the plaintiff met Sean Branagan, whom she married in December 1991. In June 1992 she gave birth to a daughter, Emily. For some time she and her husband worked together in a mobile telephone business, the plaintiff keeping the accounts. The business took her husband to Tasmania and she accompanied him there in 1993. She found work at a pharmacy in Launceston. In that year, the plaintiff’s husband was diagnosed with testicular cancer and she with cervical cancer. She underwent a hysterectomy. At the end of 1993 the family returned to Canberra. During 1994 the plaintiff worked at a pharmacy in Canberra City but resigned after some time to look after her sick husband. Since the hysterectomy, the plaintiff has been on a hormone replacement therapy regime, using adhesive patches. She understands that this will continue into the indefinite future.

9.The plaintiff worked for a time at a suburban supermarket. During 1996 the marriage broke down and she and her husband separated. She moved in with her mother, and found work at a pharmacy nearby where she worked for about two years.

10.Evidence was led from the plaintiff that she joined the Commonwealth Public Service during 1998 as a level 2 clerk with the office of the Registrar of Aboriginal Corporations, a small body within the then Department of Reconciliation and Aboriginal and Torres Strait Islander Affairs. The office was located in an office building at Woden.

11.After a relatively short time the plaintiff was promoted to clerk level 3. She was personal assistant to the Registrar, taking dictation and typing letters on a computer and undertaking general clerical duties. Her evidence was that she greatly enjoyed the work and intended to remain in the job permanently, applying for promotion to positions within her capacity as they became available.

12.She gave evidence in chief of a number of medical issues from 1998 until the first motor vehicle accident. In the early part of the year she attended her general practitioner about four times for medication for headaches, probably of the migraine variety, and neck pain and stiffness. In May 1998 she fell in the shower and hurt her neck, requiring a soft collar as well as ointment and oral medication. In August 1998 she complained to her general practitioner of vomiting: no obvious cause was found.

13.In March 1999 she was admitted to Calvary Hospital under the care of Dr Terry Gavaghan, physician, with abdominal pain. The cause was not immediately diagnosed, but later in the year Dr Gavaghan referred her to Dr Philip Jeans, surgeon, who removed her gall bladder and appendix. At about the same time she underwent minor surgery at the Canberra Hospital for haemorrhoids. Following the removal of the appendix and gall bladder, the plaintiff’s problems with vomiting improved but did not go away altogether.

14.The plaintiff gave evidence in response to leading questions that in November 1999 she was transferred to a different position within the Aboriginal Affairs Department. Her oral evidence about this is inconsistent with documents tendered in her case emanating from the Aboriginal and Torres Strait Islander Commission, from which it is clear that she was first employed there not in 1998 but on 15 November 1999 in a temporary position. The position (APS level 3) with the Registrar of Aboriginal Corporations was made permanent from 1 December 1999. On 30 October 2000 the plaintiff was transferred to a position at the same level with the Office of Evaluation and Audit within ATSIC, this being some six months after the first motor accident.

15.Admittedly the plaintiff was giving her evidence about these events some four years later. I am inclined to accept that her oral evidence about the dates was a genuine attempt on her part to give truthful evidence, difficult though it is to accept that she might have thought that she had been working in the Public Service for some two years before the first motor accident, when the reality was that it was less than six months. Indeed, later in her evidence she seemed unsure as to whether she had started with ATSIC so early.

16.This mistake by the plaintiff as to chronology appears to have infected some of the other evidence in her case. Her evidence was that from 1996 she worked for about two years at the Ngunnawal Pharmacy. Certainly there was no suggestion in her evidence, either in chief or in cross-examination, that there was any significant gap in her employment in the period of two or three years before the first motor accident. She gave the impression, whilst not saying so specifically, that she worked at the pharmacy until she took up the position in the Public Service. The evidence of her then domestic partner, Mr Joe Carbone, was to the same effect.

17.The evidence of two witnesses who were called in the plaintiff’s case and asked questions about the difference in her physical and psychological presentation before and after the car accident of April 2000 was significantly tainted. One, Mr Michael Sterecker, had been a work colleague; the other, Mr Dirk Isselmann, was Mr Sterecker’s cousin and had met the plaintiff socially through him. Mr Sterecker, by the time he gave evidence in August 2004, had been working in the Office of the Registrar of Aboriginal Corporations for nine years. He agreed that he met the plaintiff when she commenced work there, and it was led from him that this was in November 1998. He agreed that it would have been at about that time. It was clearly a year later, some months after the plaintiff’s surgery, which explains Mr Sterecker’s apparently poor recollection of the plaintiff’s health problems in mid- to late-1999. His recollection was in any event hazy and he had to be recalled to contradict evidence he had given in chief to the effect that he had got to know the plaintiff well because they were both smokers and would chat during cigarette breaks. When recalled, he volunteered that he had been confusing the plaintiff with someone else and had subsequently recalled that she was not a smoker.

18.Senior Counsel for the plaintiff led from Mr Sterecker’s cousin, Mr Isselmann, the fact that he had met the plaintiff in the middle of 1999. Mr Isselmann agreed that it would have been about then. His evidence was generally very vague.

19.It is unfortunate that much of this evidence in the plaintiff’s case was led without objection, but, on scrutiny of the documentary material in evidence, turns out to have been based on a false assumption.

20.The plaintiff gave evidence in chief that it was in November 1999 that she transferred from the Office of the Registrar of Aboriginal Corporation to the Office of Evaluation and Audit within ATSIC. Her evidence was that this was significant because it represented a stable permanent job, and gave her the opportunity, of which she took advantage, to train for promotion to level 4 in the Evaluation and Audit area. She recalled in December 1999 hurting her neck when she turned her head quickly while opening a heavy door at work, though this required no treatment. Nothing further was led from her in chief as to the period between the December 1999 incident and the first motor accident in April 2000. As I have said, it is apparent from the documents that the plaintiff’s transfer to the Office of Evaluation and Audit took place in October 2000, six months after the motor accident. It was not put to her in cross-examination, and I do not find, that she deliberately gave false evidence about the date of this transfer, or that she deliberately attempted to give the Court the impression that her position and prospects within ATSIC prior to the motor accident were more favourable than the reality, but her evidence about this period casts considerable doubt on the reliability of her memory, not just of dates, but of the order of events and of the impact of the first motor accident upon her.

21.The plaintiff was extensively cross-examined as to her history prior to the earlier motor vehicle accident. She was questioned in particular about an admission to Calvary Hospital on 17 January 1997. The hospital admission form records her marital status at that time as separated. It seems that she was admitted because of a severe migraine headache. She was an inpatient for five days and underwent a lumbar puncture during that period. The notes record that her headaches gradually subsided over those days. Significantly, on her last day, 21 January 1997, she was interviewed by a social worker, Scott Milne, whose detailed note was as follows:

Patient described a series of problems indicative of a chronic trauma reaction. The patient stated they had the following problems: fatigue; visual difficulties; dizziness; lack of co-ordination; headaches; lack of appetite; sleep disturbance; difficulty with attention, decisions, concentration, identifying familiar objects, naming known people; memory problems; loss of time; disturbed thinking; nightmares and dreams of problems throughout life at school and recently; intrusive images of traumatic events over her life when occupied with mundane tasks; slowed thinking, “magical thinking”; anger; guilt; fear; uncertainty; loss of emotional control; intense anger; irritability; agitation; frustration; wanting to hide; emotional outbursts; suspiciousness; loss of ability to rest; non-specific bodily complaints; and pacing. The patient was hyperalert with enlarged pupils and eyes wide, her behaviour indicated lowered boundaries and an anxious and tense underlying state. The patient stated that she had wondered if her condition was the product of stress. The patient described a number of issues currently in terms of her marriage and stated she is seeing a private psychologist but has only discussed her marriage problems with them. Her husband had cancer and chemotherapy and underwent an orchidectomy in 1996. The patient has two children, a boy 7 years born prior to the marriage and a daughter 4 years. Their care during the separation is a concern. The reactions of the patient indicated that there was an underlying stress or trauma history which indicated further investigation. The patient has no memory prior to age 8 years. Upon discussion the patient stated that her biological father was very physically violent towards her mother, any abuse directed toward her is unknown by him, however the impact of seeing violence toward her mother would have had a traumatic impact. Patient stated that her mother left her father at age 8 years and took her to the USA where she entered a relationship with a violent alcoholic. The patient stated her mother is still with him. Her step-father was reported to be physically, emotionally and sexually abusive toward her. Patient states that he would beat her and her mother, he would emotionally abuse her with constant taunts, lock her outside and in cupboards for up to hours at a time and threw her through an open window into the snow with only a thin nightie on. The patient stated that she would often be bruised. The patient also described him exposing his genitals to her, intruding on her in her bedroom and in the bathroom and would make sexual innuendo constantly. Recently he said to her, did she remember wanting to make love to her at 14 years of age. The patient does not remember sexual contact beyond brushing against her and fondling/groping. The patient did not connect his behaviour with sexual abuse or assault. This goes some way to explain her inappropriate boundaries and behaviour. I provided a sheet of “normal reactions to trauma” to patient and attempted to normalise her reactions in context of her experience. I suggested to patient that she increase her social supports, interest and activity and decrease contact with those who do not support her. I suggested that she obtain in depth counselling in relation to the impact of her childhood issues in addition to her relationship. The patient appeared to be receptive.

22.Counsel for the defendants put each of the symptoms recorded by the social worker to the plaintiff, who said that she had suffered from the symptoms described since the 2000 motor accident, but denied that she had suffered from any of those symptoms earlier. She was unable to recall her five-day admission to Calvary Hospital in January 1997, and initially unable to recall having a lumbar puncture, though after a short lapse of time she recalled that procedure. She conceded that she had suffered from neck stiffness at about that time. She eventually agreed that the history she had given to the social worker had been generally correct, and that she had suffered in 1997 from the various symptoms listed in the note.

23.She was asked about an attendance at the surgery of her general practitioner, Dr Foo, where she saw a Dr Ling in March 2000, about six weeks before the first motor accident. According to Dr Ling’s notes, the plaintiff complained of being moody, with a lot of abdominal pain, nausea after eating, and constipation. The plaintiff said that she did not recall the visit, or giving such a history to a doctor at about that time. I accept that the notes accurately record the history taken by the doctor on 13 March 2000. To put the matter into perspective, I should explain that according to the notes, after September 1999, the month in which the plaintiff had her gall bladder and appendix removed, she attended the general practitioner’s rooms on only four occasions prior to the first motor accident: twice in October 1999, once in December 1999 and once in March 2000. The notes record that on 11 October 1999 she was given a certificate for time off work until 31 October: the later entries prior to the motor accident do not refer to any certificate or need for time off.

24.The records of Dr Terry Gavaghan, a consultant physician with a particular interest in gastroenterology, cast additional light on the plaintiff’s history prior to the motor accidents. I prefer these written contemporaneous records to the plaintiff’s oral evidence where they diverge. On 4 March 1999, Dr Gavaghan reported to the plaintiff’s then general practitioner, Dr Sood at Ngunnawal, that the plaintiff had been admitted to Calvary Hospital under the care of Dr Noel Tait, a general surgeon, with symptoms of severe right subcostal pain. He referred to her prior history of cancer of the cervix, and her subsequent hysterectomy and removal of the ovaries. The plaintiff gave a history of about twenty kilos weight loss in the previous four months, with vomiting after meals and epigastric pain. Dr Gavaghan arranged various tests to exclude conditions which might have explained her symptoms, none of which were positive, and he arranged for her discharge on 4 March 1999, by which time her symptoms had completely resolved.

25.The resolution of symptoms proved short-lived. The plaintiff saw Dr Gavaghan again in July 1999. Dr Gavaghan referred the plaintiff to Dr Phillip Jeans, gastrointestinal surgeon, who saw her in August 1999 and proceeded to remove her gall bladder and appendix the following month. Dr Jeans reviewed the plaintiff on 30 September and noted that she had put on 2.5 kilograms and was not vomiting as much. She complained of extreme tenderness around the surgical wounds. Dr Jeans took the view that she had a low pain threshold. He also thought that she might have some degree of irritable bowel syndrome.

26.Dr Gavaghan saw the plaintiff again in May 2000, soon after the first motor accident, when she was admitted to Calvary Hospital under his care. He described her, in a letter to her general practitioner, as a difficult young lady with a habit of putting people offside. Dr Gavaghan said that the reason for the admission to hospital was that the plaintiff had had a motor vehicle accident, suffering a whiplash injury to the neck. She had developed depression and anxiety and had lost an enormous amount of weight. Dr Gavaghan thought that her main problems were chronic cervical pain and nausea, with a major psychogenic component to the latter. He did not believe that there was an organic cause for the nausea, and referred her to a psychiatrist, Dr John Saboisky. In his referral letter, he expressed the view that the plaintiff had “become very significantly depressed over the last few months with all of this history.” He thought that the plaintiff needed psychiatric help, including anti-depressant therapy.

27.I have set out all of this material at some length because of the way in which the plaintiff put her case forward. Her evidence was that her physical and psychological problems prior to the first motor accident were comparatively minor, and that her real problems only began following that accident. It may well be that by the time the plaintiff gave evidence, she had subconsciously persuaded herself that this was the case. It is hence important that the correct history be set out in some detail, to permit a proper assessment of the impact of the motor accidents, in particular the first accident, upon the plaintiff.

28.The first motor accident happened on 26 April 2000. By that time the plaintiff was living in a de facto relationship with one Joe Carbone, in a garage which had been converted into a flat behind his parents’ home at Page. The plaintiff’s evidence was that she moved in with Mr Carbone in late 1998 with her children.

29.Mr Carbone is a telecommunications technician of some twenty years’ experience. He worked for the same company as the plaintiff’s husband in about 1991 and got to know the couple. This led to a business arrangement where he installed and maintained telephone systems for the plaintiff and her husband as managers of an outlet for another telecommunications company at Fyshwick, seeing them up to five times a week. They became friendly at a personal level. Mr Carbone found the plaintiff very attractive. The friendship and the business relationship continued for some years, after which there was a period of time when they did not see each other, probably coinciding with the plaintiff’s husband’s cancer and treatment. Mr Carbone ran into the plaintiff at a shop in 1997 or 1998. He became aware that her marriage had broken down, and he started to see her again. The relationship developed and after a short time she moved into Mr Carbone’s flat at Page. She was working at that time at Ngunnawal Pharmacy.

30.Mr Carbone recalled her move to ATSIC, a job she very much enjoyed. He gave vague evidence about her vomiting during 1999 and her surgery for the removal of her gall bladder and appendix. He was asked whether she was having any problems carrying out her duties at ATSIC before the operation and replied in the negative. As I have said earlier, I am satisfied that the plaintiff did not start work at ATSIC until after that surgery, and although this evidence was led from him, it reinforced doubts I had from his demeanour and some of his other evidence as to his reliability generally.

The car accidents and the medical evidence

31.On the day of the accident, 26 April 2000, the plaintiff was driving home from work. She was stationary in the westbound lane of Hindmarsh Drive, Weston, in the vicinity of the Tuggeranong Parkway, when her car was struck forcefully from behind. The car was damaged beyond repair, its insured value having been $5,500. The plaintiff had a front seat passenger, a work colleague, Selena Ashman. She was able to telephone Mr Carbone, who came to the accident scene and drove the damaged car away. Ms Ashman took the plaintiff home in Mr Carbone’s car. Later that evening, Mr Carbone drove the plaintiff to Calvary Hospital. She was complaining of a severe headache, pain in the neck and back, and weakness and tingling in the arms and hands. X-rays of the neck and chest were reported as normal, and the plaintiff was sent home with a soft collar. She was given Panadeine, a non-prescription painkiller.

32.The next day she went to the surgery of her general practitioner, Dr Jacob Foo, where she saw a locum, Dr Johanna Skinner. Dr Skinner noted that the plaintiff’s neck was very stiff, its range of movement severely limited in all directions. She returned to see Dr Skinner the next day complaining of severe pain in the neck and of headaches. Dr Skinner gave her a prescription for Panadeine Forte and Voltaren Rapid, and referred her to a chiropractor, Shane Collins.

33.Dr Foo himself first saw the plaintiff after the accident on 1 May 2000. She was in quite severe pain and distress. She complained of neck pain, headaches, nausea and vomiting. She said that the chiropractor had been unable to treat her adequately because of the pain and tenderness in her neck and shoulders. Dr Foo prescribed Valium as a muscle relaxant.

34.She came back the next day, concerned about the persisting severity of her symptoms. Dr Foo ordered an MRI scan of the neck. This disclosed a tear of the C6-7 disc annulus associated with a minor disc bulge and was suggestive of another smaller annular tear at C5-6. Dr Foo thought that she had in addition suffered significant musculo-ligamentous soft tissue injuries in and around the neck.

35.Dr Foo reviewed the plaintiff on 11 May 2000 when she complained for the first time of pain in the lower back. Dr Foo accepted that this had been relatively insignificant to her earlier because of the overwhelming neck symptoms. He found the lumbar spine stiff, with movement reduced in all directions, and noted muscle spasms and tenderness in the surrounding muscles.

36.Dr Foo noted that the plaintiff was keen to return to her job at ATSIC. She went back to work on 15 June 2000, working two hours a day three days a week. Her symptoms were aggravated during the first week and the return-to-work programme was postponed.

37.Dr Foo referred the plaintiff to Dr Geoffrey Speldewinde, a consultant in rehabilitation medicine and pain management. Dr Speldewinde saw her on 10 July 2000. He took a history of her problems since the motor accident, and also of her previous symptoms of abdominal pain and vomiting and some twenty kilograms weight loss over the previous “couple of years”. He noted that she had seen Dr Saboisky recently about those problems. He prescribed Tryptanol, an anti-depressant, and referred the plaintiff for physiotherapy and hydrotherapy. He expressed the view that the plaintiff was not fit for work in any capacity at the time he saw her.

38.Dr Foo at about the same time referred the plaintiff to Canberra Injury Management Centre, where she came under the care of Mr Ian Goch, psychologist. Mr Goch did not give oral evidence. He reported at length in August 2001 to the plaintiff’s solicitors. He developed an excellent rapport with the plaintiff and accepted her as genuine, although it is submitted on behalf of the defendants that in this regard he was a victim of a deliberate attempt by the plaintiff to deceive him. He found the plaintiff open and straightforward. She was often tearful during treatment. She gave a credible and internally consistent history. She was at least average in intelligence. He recorded her unstable and abusive childhood. He noted her continuing strong relationship with her mother, who had provided significant emotional and financial support since the injury. The plaintiff talked to him about her relationship with Mr Carbone, which she described as a negative one due to the controlling influence of his family. During the course of the treatment, she and Mr Carbone separated. It appears that she did not give Mr Goch any history of her gall bladder and appendix surgery in 1999, or of the symptoms which led up to it. Mr Goch described her history prior to the accident as one marked by poor relationships, traumatic events and depressive environments and incidents. He accepted from the history he took that the plaintiff was functioning adequately at an occupational and family level in the period leading up to the first accident, experiencing some psychological symptoms but not at a level which would be considered significant.

39.Mr Goch assessed the plaintiff as meeting the criteria for a diagnosis of recurrent major depressive disorder and also of pain disorder associated with psychological factors, and a general chronic medical condition. She also met the criteria for a diagnosis of chronic but mild post-traumatic stress disorder. He regarded her pre-accident traumatic experiences as exposing her to these conditions. She responded well to treatment. She missed a significant number of sessions but was diligent and motivated in dealing with issues during treatment sessions and also in applying strategies between sessions. He thought it not unusual that a person in the plaintiff’s condition would miss sessions, having regard to their confronting and emotionally provocative nature. By the end of the course of treatment the plaintiff was reporting some amelioration of her symptoms and some improvement in the management of her pain, mood and anxiety. Notwithstanding this Mr Goch thought her prognosis guarded and judged that she was likely to require protracted treatment. He noted that by the time of his report, she had commenced treatment with another psychologist, Dr Janine Mahoney.

40.In August 2000, the plaintiff travelled by air to South Australia. While there, she sought medical treatment. She attended the surgery of a Dr Borg at Salisbury Downs on Sunday, 13 August 2000, complaining of neck pain which had been present since her car accident in April. She had limitation of movement and apparent pain in the neck. Dr Borg referred her to the casualty department at St Andrews Hospital in Adelaide.

41.On 28 August 2000 the plaintiff presented at the mental health services clinic at Calvary Hospital. She was admitted and spent three weeks as an inpatient under the care of Dr L. Fridgant and Dr R. Morice. Neither Dr Fridgant nor Dr Morice was called to give evidence and no report by either psychiatrist was tendered. The hospital notes are in evidence, and include a detailed note by Dr N Cook, described as a clinician. Dr Cook noted that Mr Goch had encouraged the plaintiff to ring the mental health clinic if she could not contact him in an emergency.

42.The plaintiff gave Dr Cook a history of a neck injury in the motor accident and also of an eating disorder. She said that she had been living with her fiancé in a house owned by his parents and that his mother had asked her to leave. She had moved with her children to live with a friend temporarily. She was having difficulty renting a place because she had gone bankrupt when her husband had cancer a few years earlier. She complained about a lawyer “talking about her in her presence as if she was nothing”. She told Dr Cook that things had been going very well for her until the car accident “but now were falling apart”. There was mention of suicidal ideation; depression; flashbacks to sexual abuse; disturbance of sleep and appetite; weight loss of 42 kilograms (approximately fifty percent of body weight) over twelve months; fits of rage; ideas of self-mutilation; hopelessness and negativity about herself; and poor ability to assert herself, especially the ability to say no to demands from males. Dr Cook regarded the history he took as generally credible and consistent. The plaintiff went into a little more detail about her childhood, saying that her natural father had been extremely violent to her mother, for example burning her with cigarettes, and had sexually abused the mother, and also the plaintiff and her sister. She then told Dr Cook about the move to the United States, where her mother married an American Indian and the family lived on an Indian reservation. Her stepfather was an alcoholic who over a period of five years abused the plaintiff sexually when intoxicated. The family returned from the United States when she was fifteen. They lived in a caravan until the birth of her baby at age sixteen, after which she was able to obtain government support to live independently. She met and married her husband when she was twenty and had her second child. Her husband severed the relationship when the plaintiff was twenty-five. She was single for two years until she met Mr Carbone. His parents had evicted her two weeks prior to her presentation at the mental health clinic. She ascribed the eviction to her increasingly labile mood and fits of rage. She spoke of ideas to self-mutilate and to commit suicide, for example by driving her car into a wall. She admitted to periods of depression over a number of years but said that she had not previously sought treatment.

43.During her time in hospital, the diagnosis of post-traumatic stress disorder was confirmed and she was discharged on anti-depressant medication as well as analgesics for her physical symptoms.

44.Dr Speldewinde referred the plaintiff to Dr K. N. Chandran, neurosurgeon, in October 2000. Dr Chandran conducted a physical examination and viewed the MRI scan report. He said that the annular tears in the cervical spine would not explain her extensive symptoms. He thought that she probably had an underlying soft tissue injury with an overlying emotional response. There was no surgery he could offer and she should persevere with pain management strategies including psychiatric consultations.

45.In November 2000, Dr Foo referred the plaintiff to Mr Adrian Rumore, a manipulative physiotherapist. She attended him a number of times until early April 2001.

46.On 4 January 2001 the plaintiff was injured in the second motor accident. It was her first attempt at driving a car after the previous accident. She was driving into the city and stopped behind a bus in Northbourne Avenue. A car behind tapped into the back of her car. She said that she just had a bit of extra tightness in her neck and a headache after this incident. She could not recall seeing a doctor on the day, and it appears that she did not see her general practitioner, Dr Foo, until 25 January when she mentioned the accident to him. Dr Foo did not mention this accident in a report to the plaintiff’s solicitors of 16 February 2001, though he did say that the plaintiff had by then commenced a graduated return-to-work programme. Mr Rumore reported to the solicitors in November 2001 but did not mention the second accident. The plaintiff did not make a great deal of the second accident in her oral evidence and it does not seem to have been of much significance to her at the time.

47.She started the graduated return-to-work programme at the beginning of February 2001, working four hours a day on Mondays, Wednesdays and Fridays. During this period she was continuing, at least until April, with physiotherapy, and also with cognitive behaviour therapy through Mr Goch.

48.I accept Dr Foo’s records as reliable. He reports that the plaintiff’s low back complaints became worse while attempting her return-to-work programme. He notes complaints in October 2001 of significantly increased pain in the low back and right buttock, radiating down the right leg, which had started three days previously and had been aggravated by some heavier-than-usual work at the office. Thereafter, she complained of constant low back pain, punctuated by episodes of increased severity which took her a number of times to the emergency department at Calvary Hospital. An MRI scan in December 2001 showed disc protrusion at L5-S1, probably compromising the right S1 nerve root.

49.The plaintiff’s evidence was that after she left the Carbone residence at Page, she lived for about a month with friends, Janet and Paul Whittingham, at Ngunnawal. Neither the plaintiff nor Mr and Mrs Whittingham were clear in their recollection as to exactly when this was, but I take it to have been in September-October 2000. The plaintiff’s recollection was that immediately after she left Mr Carbone she moved in with his next door neighbours for a very short period, and then lived with her mother for a time. I am not sure that the recollection of any of the witnesses about the precise order of events or dates is reliable. The evidence is unclear as to where the plaintiff lived after she left Mr and Mrs Whittingham’s home, but in about February 2001 she renewed her acquaintance with Mr Colin Steele, who had been her boyfriend at Dickson College, and in April 2001 or about then, she moved in with him.

50.At about the same time, she commenced treatment with a male massage therapist. Whilst the referral process to the massage therapist is a little unclear, there is no issue that the massage was part of her regime of treatment following the car accidents. On 15 May 2001, the massage therapist touched her in the genital area. He apologised almost immediately, but the plaintiff was traumatised by this event, and it seems to have triggered her referral to Dr Janine Mahoney, a psychologist.

51.At this stage all of the plaintiff’s treatment was being paid for by Comcare. The plaintiff was not in a financial position to pay for it herself. Regrettably, a decision was taken by Comcare to meet the cost of Dr Mahoney’s treatment of the plaintiff in relation to the psychological after-effects of the first motor accident, but not the effects of her childhood sexual abuse or the assault by the massage therapist. Separate arrangements were made for the plaintiff to receive counselling from Dr Mahoney in relation to the sexual abuse and assault, and this was paid for through a fund dedicated to treatment for victims of crime (the plaintiff made a complaint about the assault to the Health Complaints Commissioner but not to the police, and the incident has not led to any criminal charges). This unfortunate arrangement meant that Dr Mahoney had to go through the artificial process of devoting those sessions funded by Comcare solely to the effects of the accident, and those funded by the crime victim body solely to the effects of the abuse and assault. It astonishes me that anyone can have thought that such an exercise was practical or indeed possible.

52.Dr Mahoney prepared lengthy and detailed reports, and gave oral evidence. She was clearly sympathetic to the plaintiff and accepted the history she was given without any degree of scepticism.

53.When the plaintiff was first referred to her, she was told that the plaintiff’s overall psychological state had been exacerbated by the incident with the massage therapist, and that the plaintiff was distraught. In spite of treatment by Mr Goch, she was told that the plaintiff’s pain condition had not improved significantly.

54.Dr Mahoney conducted psychometric testing as well as a clinical interview. She concluded that the plaintiff was suffering from acute psychological distress with a desperate need for assistance; suicidal thinking; depression; traumatic stress; anxiety; and a pain condition. She spoke to Dr Foo and to Mr Steele, and the plaintiff took time off the return-to-work programme.

55.In a lengthy report to the plaintiff’s solicitors in February 2002, Dr Mahoney noted that the plaintiff limped and applied a heat pack to her back during consultations, sometimes wincing and frowning in apparent pain, and on some occasions lying on the floor as an apparent response to back pain. She sometimes became vague and lost concentration. She expressed a range of emotions during the sessions including distress, tearfulness, regret, shame, anger, disillusionment, hopelessness, helplessness and frustration. Dr Mahoney thought that the plaintiff was of average intelligence but was submissive and lacking in self-confidence. She found no indication of defensiveness or deliberate evasiveness and assessed the plaintiff as sincere and open in her responses. She took a detailed history of the plaintiff’s childhood and adolescence, including appalling incidents such as her observing her natural father raping her mother on the kitchen table on three separate occasions, and being raped herself by her stepfather, as well as tied up, punched and verbally abused by him. By reference to the DSM-IV criteria, Dr Mahoney diagnosed the plaintiff as suffering from post-traumatic stress disorder, pain disorder and depressive symptoms, all of which she related causally to the motor accident of April 2000. She regarded the prognosis as uncertain but noted that most sufferers from post-traumatic stress disorder recovered within two to three years. A minority persisted with symptoms for a number of years and some moved to a chronic state. She noted the plaintiff as submissive, wanting to please her treating practitioners, and fearful of disappointing them.

56.In later reports during 2003, her diagnosis altered to one of pain disorder associated with psychological factors and a general medical condition, requiring weekly treatment for at least the next three or four months, with her progress to be evaluated again at that time. In a letter of 3 September 2003 to Dr Foo, Dr Mahoney reported that the plaintiff had recently begun to catastrophise her experiences due to being overwhelmed by pain, personal events in her life and a lack of trust in the return-to-work process. She was exhibiting some symptoms of paranoia towards those involved in her work programme, for example believing that her rehabilitation provider had opened her briefcase and gone through private documents, and that someone had stolen documentation regarding her claim from her home. Dr Mahoney noted that an adversarial relationship had developed between the plaintiff and Comcare, and also between the plaintiff and ATSIC. At that time Dr Mahoney believed that the plaintiff was at high risk of suicide.

57.Dr Mahoney reported to the plaintiff’s solicitors at great length in April 2004, just before the commencement of the hearing. Her opinion at that time, after further testing, was that the plaintiff continued to meet the diagnosis for chronic pain disorder associated with psychological factors and a general medical condition, and for chronic adjustment disorder with mixed anxious and depressed mood, but no longer met the criteria for post-traumatic stress disorder or major depression. She required continuing psychological treatment for these conditions for at least another two years, initially once a week and later less frequently. In Dr Mahoney’s opinion, she would have benefited at that time from a pain management programme, available in Sydney at a cost of about $5,000 in addition to the cost of accommodation and transport. Her psychological prognosis remained guarded, taking account of the fact that her symptoms had been present for more than three years. The chance of further exacerbation was high. Her psychological recovery was complicated by her continuing physical pain. She would remain more vulnerable to stress and trauma in the future. She was at that time unable to work but should progress to part-time work in the future, up to a maximum of twenty hours per week, as her physical condition stabilised, and this would be of psychological benefit to her. Dr Mahoney was convinced that her psychological condition had been substantially caused by the motor vehicle accident of April 2000.

58.Dr Mahoney gave oral evidence in August 2004. She said that the plaintiff would require psychological treatment for at least another year. She thought that the plaintiff had improved over the course of her treatment, by that time more than one hundred sessions of something over an hour each. She thought that the litigation was a significant factor in the plaintiff’s stress, and that a year of treatment would be necessary from the time when the litigation was over.

59.Dr Mahoney agreed in cross-examination that she had not been provided with a history of psychological symptoms prior to the motor accident, or of continuing physical complaints after the gall bladder and appendix surgery. Whilst she agreed with the proposition that she was in the witness box as an expert to help the Court, she appeared reluctant to express an opinion based on assumptions which were contrary to her reports and evidence in chief. She pointed out that the plaintiff had been able to cope with the duties of her employment prior to the first car accident, and argued that any psychological or physical complaints the plaintiff had before the accident could not have been particularly serious. She had clearly developed a good rapport with the plaintiff and did not seem to be prepared to accept that her opinion about the plaintiff might have been to any extent in error. Whilst I accept Dr Mahoney’s evidence unreservedly as to the course of treatment and other factual matters, I have some difficulty in accepting her as an objective witness in relation to the psychological issues and in particular in relation to causation.

60.She agreed that the plaintiff’s painkilling medication was potentially addictive, and that people who are addicted to medication can be deceitful in order to obtain medication when they want it, for example feigning pain. Asked whether in her view the plaintiff had become addicted to her medication, she replied “I don’t know to what extent she’s become addicted.” Asked whether the plaintiff might have become addicted to any extent, her response was “I really don’t know, I don’t think so.” She subsequently conceded that she was not qualified to talk about medication, but said she had discussed the question with the plaintiff who appeared aware of the risk of addiction.

61.During 2001, the plaintiff was seen by three independent specialists at the request of Comcare. In late February 2001, on the same day, she saw Dr Jeremy Hopkins, orthopaedic surgeon, and Dr Walter Mickelburgh, psychiatrist. Dr Hopkins formed the view that the plaintiff had suffered a soft-tissue injury to the cervical spine and a minor strain to the lumbar spine in the first accident, just under a year earlier. He noted complaints of pain and other symptoms of a fairly major degree, which he thought were compounded by a marked degree of anxiety. On examination he found some limitation of movement in the neck, accompanied by diffuse pain, and occasional pain in the low back. He found no evidence of any nerve root compression or thecal irritation. He thought that the annular tears which were detected by the MRI scan were probably caused by the motor accident. His view was that the physical injuries were relatively minor, but that their effect was compounded by a significant degree of functional overlay. He thought that she had developed a chronic pain syndrome which would probably not resolve for another twelve months. Her capacity for work was in his view restricted to some extent, though she was capable of working limited hours.

62.The plaintiff gave Dr Mickelburgh a history which did not include any mention of psychological problems prior to the first motor accident. He thought that her physical injuries in the first accident had led to chronic pain which, combined with other events in her life such as the breakup of her relationship with Mr Carbone, had precipitated a major depression. Her psychological symptoms were disabling but appeared to be improving slowly. He found no evidence of conscious exaggeration or malingering, and he thought that her prognosis depended on the resolution of her neck pain. If she made a complete physical recovery, her psychological symptoms should eventually cease also. Meanwhile, she required psychiatric and psychological treatment including cognitive behaviour therapy and medication.

63.The plaintiff does not seem to have mentioned the second accident to either Dr Mickelburgh or Dr Hopkins, although it had occurred only a few weeks before they saw her. This reinforces my view that the second accident was very minor.

64.In November 2001 the plaintiff was sent by Comcare to Dr Peter Snowdon, another psychiatrist. Dr Snowdon additionally has qualifications in pain management and addiction medicine. She was by this time living with Mr Steele, who attended the consultation with her. She did not give Dr Snowdon any history of psychological symptoms or treatment prior to the first motor accident. Dr Snowdon regarded the childhood history of sexual abuse as significant, but thought that the plaintiff would probably not have developed the substantial component of her psychological symptoms had it not been for the accident of April 2000. Her psychological issues had been worsened by the incident of May 2001 involving the massage therapist. He thought that having regard to her childhood history the plaintiff would have been particularly susceptible to a significant psychological response to the assault by the massage therapist. He accepted that the plaintiff was suffering from post-traumatic stress disorder and in addition adjustment disorder with depressed mood. She probably also had a pain disorder, and her depressive condition was probably sufficiently severe to warrant diagnosis as a major depression. She should be taking anti-depressant medication as well as medication to assist her in sleeping at night. It was appropriate that she continue with the treatment being provided by Dr Mahoney.

65.In June 2002 the plaintiff was referred by her solicitors to Dr Owen White, neurologist. He attributed her low back pain to the annular injuries apparent on the MRI scans. He also thought that she had suffered annular injury in the cervical spine in the motor accident. He thought that surgery was highly likely to improve her physical condition, though she might be left with some residual low back pain. She was not fit to work, and was unable to live a normal life. He was hopeful that she might one day be able to return to clerical and administrative work, but that the time frame for this was uncertain.

66.At about the same time Dr Foo referred the plaintiff to Dr Malcolm Pell, a Sydney neurosurgeon, presumably as a response to Dr White’s suggestion of surgery. Dr Pell formed the view that the plaintiff’s major pain was coming from the lumbo-sacral facet joints, and recommended cortisone injections into the joints on both sides. These injections were administered by a radiologist, Dr Thomson, under x-ray control. The plaintiff reported some reduction in pain on the left side but none on the right. Following the injections, the plaintiff had to be taken to Calvary Hospital with severe pain and vomiting. She was given morphine injections.

67.Later in July 2002 the plaintiff saw Dr K N Chandran for a second neurosurgical opinion. He arranged for her to be admitted to hospital early in August for disc excision. Dr Chandran sought agreement from Comcare to pay for the hospital and surgical expenses, but approval was not forthcoming and the surgery did not take place.

68.Dr Pell saw the plaintiff again in mid-August 2002. She attended his surgery in Sydney in a wheelchair. She reported taking a range of medication including morphine. Dr Pell’s opinion was that the plaintiff had suffered a lumbo-sacral disc prolapse and a small cervical disc prolapse, and that a chronic pain syndrome had also developed. He was not sure whether surgery was warranted or likely to be successful. She required continuing medication, physiotherapy and hydrotherapy and her prognosis remained guarded, particularly as to the chronic pain syndrome.

69.The plaintiff was seen on three occasions, on behalf of the defendants, by an occupational physician, Dr Leon Le Leu. He first saw the plaintiff in September 2001. She attended with Mr Steele. Dr Le Leu accepted that the plaintiff had suffered cervical disc tears and probable lumbar disc injury. He had the impression that there was a significant element of pain behaviour. The psychological issues were outside his field and he left these for psychiatric assessment. He thought that it might be helpful to restart her on a tricyclic anti-depressant and perhaps also a membrane stabiliser. He thought that hydrotherapy would be helpful. At the time of the appointment she was working on light duties which he thought was reasonable. She should in his view have been able to return to full-time work over the next six months. He expected improvement over time but some permanent impairment.

70.On the day after she saw Dr Le Leu, the plaintiff attended an appointment with Dr Michael Duke, a psychiatrist engaged by the defendants’ solicitors. Mr Steele attended with her. Dr Duke became aware after some time that Mr Steele was tape-recording what was said. Dr Duke diagnosed the plaintiff as suffering from post-traumatic stress disorder, major depression and pain disorder. Her level of impairment was gradually diminishing. He mentioned her childhood physical and sexual abuse, and her former husband’s testicular cancer (though not her own cancer). All of these made her more vulnerable to the psychological symptoms she had suffered as a result of the motor accident, which precipitated the three conditions he diagnosed and, he said, “contributed to fifty percent of the variance in terms of aetiology”. Dr Duke did not give oral evidence and thus had no opportunity to explain what he meant by the quoted expression. He thought that she should continue with treatment and medication, and that her psychological symptoms would be likely to continue for a further one to two years. She should continue to increase her working hours as she felt able to. It was unlikely that her symptoms would disappear completely but they should reach a level where they could be described as background rather than foreground problems.

71.Dr Duke saw the plaintiff again in November 2002. She told him that in October 2001 she had hurt her back cleaning a storeroom at work and had been unable to continue her part-time employment. She tried again at the end of January 2002, working four hours a day three days a week, but her pain became worse and she ceased work on 10 April 2002. She complained of constant severe pain in the low back, radiating down the right leg into the toes; and of headaches, irritability and poor sleep. She was on a small dose of an anti-depressant but was taking no analgesics. She was unable to drive a car. Dr Duke noted that the plaintiff was continuing with her treatment under Dr Mahoney’s care, which he regarded as appropriate, as was her anti-depressant medication. He noted that she was also having counselling through a pain management clinic. He took the view that she was coping as well as could be expected from a psychological point of view, and that her prognosis would depend on the progress of her physical symptoms.

72.Dr Le Leu saw the plaintiff again in December 2002. He noted improvements in neck movements. A recent MRI scan of the lumbar spine was available, and showed posterior protrusion of the L5-S1 disc with likely compromise of the right sacro-iliac nerve root. Her range of lower back movement had decreased since he previously saw her, and her pain behaviour was very marked. He thought that her psychological condition had regressed, with indications of increased depression and anxiety. Dr Le Leu regarded it as unfortunate that she had not persevered with her return-to-work programme, and thought that she could have coped with it. He thought that the condition of her low back was not as serious as it appeared, and that it was being significantly impinged upon by her depression and heightened sensitivity. He thought that over the next six months she would recover completely from her neck injury, and that eventually her low back symptoms should recover. Hydrotherapy would be beneficial in this process. The prognosis for her depression was uncertain and he would defer to Dr Mahoney as to that. In the long term, she should be able to return to the workforce in a clerical role with low physical demands.

73.In the same month, the plaintiff was referred by Dr Foo to Dr Milton Cohen, a Sydney physician and rheumatologist with a particular interest in pain management. Dr Cohen recommended a change in the plaintiff’s medication. A few days before he saw the plaintiff for the second time, she had fallen from exercise equipment and had a suspected fracture of the scaphoid in her left wrist (a fracture was not confirmed on subsequent x-ray). She told Dr Cohen that she had gained relief from doses of oxycodone though these had caused some nausea and headache. He suggested that she move to a regime of OxyContin and Nortriptyline, the first for pain control and the second for help with mood and sleep. He recommended that she continue with psychological counselling. He thought it unlikely that surgery would assist. He noted that her psychological difficulties were compounded by problems with financial and domestic support and the apparent lack of a plan for occupational rehabilitation. He said that until some of those issues were resolved, her prognosis would be guarded.

74.In August 2003 the plaintiff was seen by another psychiatrist, Dr Inglis Howe Synnott. Dr Synnot is in active psychiatric practice at Armidale in New South Wales as well as consulting for a company which coordinates medical expert witnesses to prepare reports and give evidence. The plaintiff gave Dr Synnott a history which did not include any mention of physical or psychological health problems prior to the first car accident. She said that it was her pain and her other physical difficulties which prevented her from returning to work, and that there was no psychiatric reason why she could not work. She told him that she was spending fifty dollars a week on cannabis in addition to her prescribed medication. She was seeing Dr Mahoney weekly. She felt that she had gained no assistance from any of the psychiatrists she had seen. Dr Synnott assessed the plaintiff as genuine, with no appearance of exaggeration or over-emphasis on her symptoms. He diagnosed her as suffering from an adjustment disorder with mixed anxiety and depressed mood. The symptoms did not justify a diagnosis of post-traumatic stress disorder or of major depressive disorder. The adjustment disorder was not of itself sufficient to prevent the plaintiff from resuming her normal employment. Accepting the history he had been given, Dr Synnott ascribed the psychological symptoms causally to the motor accident. He thought that her psychological prognosis was connected to her physical prognosis. It was reasonable that she continue with psychological counselling but he saw no long-term indication for psychiatric or psychological treatment. He saw her long-term prognosis as reasonably good.

75.Dr Le Leu saw the plaintiff for a third time in August 2003. He noted that she had had a number of attendances at the emergency department of a hospital for exacerbations of pain which she related to cold weather. She reported that a month earlier Dr Gavaghan had carried out a gastroscopy and found inflammation of the stomach.He had prescribed medication which relieved her stomach pains but made her very sleepy. Dr Le Leu noted that the plaintiff had lost about five kilograms since he had last seen her. Her neck movement had improved but her low back range of movement was unchanged and she continued to display very marked pain behaviour, including depression and anxiety. Unlike Dr Synnott, Dr Le Leu came to the view that it was the plaintiff’s psychological condition which was the main stumbling block to a return to work. He suggested that she continue with neck exercises, which appeared to be having a favourable outcome. Indeed, he said, the neck was the only area about which he currently felt some optimism. He thought she could resume hydrotherapy with some benefit, and that she would need ongoing psychological counselling and psychiatric medication, though he would defer to the experts in those areas.

76.The defendants’ solicitors sent the plaintiff in November 2003 to Dr Paul Spira, a Sydney neurologist. The plaintiff was accompanied by Mr Steele to the appointment. Dr Spira found her dramatic in her description of her symptoms. She provided her history by reference to her laptop computer on which she had entered dates and details of treatment and medication in remarkable detail. He found her physical presentation on examination to be dramatic, with a grossly exaggerated limp and an unusual gait. Her arms and legs were normal in muscle tone and bulk, which he saw as inconsistent with her reaction to power testing. She claimed that most movements accentuated her back pain, including movements at joints which could have no mechanical effect on her low back. He conducted a routine straight leg raising test which he said was performed with a great deal of drama and complaints of extreme back pain at 30° on the left and about 20° on the right. The plaintiff was, however, able to sit upright to demonstrate the site of her back pain and Dr Spira had no difficulty in extending her knee when the plaintiff was describing the radiating pain in the leg, producing a straight leg raise equivalent of over 90° with no apparent discomfort. Neck mobility was restricted in flexion and extension.

77.Dr Spira arrived at the opinion that the plaintiff had suffered no more than soft tissue damage in the wrenching injury of the neck and back of April 2000, from which, in his view, she should have made a complete recovery within weeks. He thought that her failure to recover was related to a grossly overvalued sense of injury and some exaggeration of symptomatology. She had adopted a sick role and a marked dependency on her partner, Mr Steele. At one stage she made Mr Steele leave the consulting room to obtain a hot water bottle for her, but Dr Spira noticed that she only used the hot water bottle momentarily after which she ignored it. Dr Spira inferred from the false straight leg raising test that the plaintiff must have been feigning the severe back pain of which she complained.

78.He thought that she had a tension syndrome which should respond readily to muscle relaxant medication. She had symptoms suggestive of restless leg syndrome, which should respond to appropriate treatment. He thought that her headaches were migraine headaches which predated the car accidents and had probably originally been menstrually related. Overall Dr Spira came to the view that the plaintiff was greatly exaggerating her disability and had adopted a sick role for whatever gain she could obtain from doing so. At the very least she was greatly overvaluing the significance of her injury, and Dr Spira believed that her capacities were a great deal better than she demonstrated to him.

79.Dr Spira gave oral evidence. In relation to the straight leg raising test, he explained that where nerve root compression is present in the lower back, as the leg is lifted the nerve root is pulled against the disc which is protruding at that level. This irritates the nerve and the patient experiences pain. This usually occurs at an angle between 45° and 60° on the affected side though not on the other side. It was in Dr Spira’s experience extremely rare for sciatica to be present in both legs. This meant that in nearly all patients with sciatica, straight leg raising was pain-free on one side though painful beyond a particular angle on the other. Dr Spira had never previously seen a plaintiff complain of extreme pain at 20° on one side and 30° on the other. The complaints were entirely inconsistent with the plaintiff’s ability to raise each leg to 90° when sitting. In his experience, a person complaining of extreme pain at, for example, 45°, would be quite incapable of having their leg raised to 90°.

80.Dr Spira was asked whether the phenomenon could be explained by hysterical pain. His answer was that he had never come across hysterical pain, although he had come across hysterical weakness and hysterical numbness.

81.In the course of cross-examination, Dr Spira agreed that treatment by intramuscular injection would only be undertaken where there was complaint by the patient of a severe pain level.

82.Dr Spira was asked to comment on the report of an MRI scan of 18 December 2001, and to agree that the scan demonstrated sciatica caused at the L5-S1 level. He disagreed with this, and disagreed with the radiologist’s opinion of the film. He explained that he regularly reviewed MRI scan films, this being his specialist field, and that he could see no impingement on the S1 nerve root. He explained that a displacement of a nerve root was not enough to irritate it. What was significant was compression of the nerve root. In the case of a posterior disc protrusion in the midline or paramedian areas of the disc, there was nothing for the disc to compress against. It was the far lateral aspects of a disc which compressed nerve roots when protruding. Dr Spira said that he regularly views MRI scans and that it is not unusual for him to disagree with the report of the radiologist who provided the original opinion. He said that it was not unusual for a radiologist to report on a scan out of clinical context and to make a presumed diagnosis on the basis of a history provided on the referral form, and in these circumstances to get the diagnosis wrong.

83.Dr Spira said that he had never made a diagnosis of chronic pain syndrome. His belief was that pain must have a cause and that his task as a neurologist was to find the cause. His impression was that the diagnosis of chronic pain syndrome had been developed as a fallback position where a clinician was unable to find a cause for pain, and that it was not in itself an acceptable explanation. He had seen the diagnosis made often by pain specialists but not by neurologists or neurosurgeons. He regarded the diagnosis as unfortunate because it gave the impression that there was no longer any need to look for the cause of the pain and to treat the cause.

84.Dr Spira said that he did not see any evidence of swelling or muscle spasm. He accepted that those symptoms might have been apparent on occasions but thought that they were more likely to be caused by the application of a hot water bottle than by injury. There was no way, he said, that a lumbar disc injury, no matter how severe, could produce redness or swelling in the back.

85.Dr Garth Eaton, occupational physician, saw the plaintiff in October 2003 on referral from her general practitioner. He had previously seen her in July and August 2000 but prepared no separate reports at that time, and I take it that the opinion that he expressed in his report of 23 November 2003 and in his oral evidence in August 2004 were based primarily on his assessment of October 2003. He found the plaintiff quite distressed and apparently in severe discomfort and pain. He looked at available radiological reports, and diagnosed her as suffering from a chronic spinal pain disorder and probable complex regional pain syndrome in the lumbo-sacral spine, overlaid by symptoms of anxiety and depression and post-traumatic stress disorder. He thought that generally her prognosis was poor, having regard to the length of time since her accident, but thought that she might benefit from an intensive pain management programme such as one offered at the Royal North Shore Hospital in Sydney at a cost of up to $10,000. She was unable to work when he saw her but might improve with the help of such a programme to a point where she could work part-time in a sedentary clerical job. He thought that her condition, from the information provided to him, was directly and consequentially related to injuries in the motor accident of April 2000.

86.In his oral evidence, he said that he had seen many patients like the plaintiff. He agreed that he generally accepted what patients told him, and he had accepted the plaintiff. He agreed that some patients exaggerate and feign symptoms. His experience was that some patients with apparently relatively minor basic injuries developed a more serious chronic pain syndrome over time due to overlaid psycho-social issues. He thought that in many cases so called pain behaviour was subconscious. He could not exclude the plaintiff having adopted a sick or injured role. He said that embellishment sometimes occurred with pain behaviour, and also that a chronic pain condition was not always constant, twenty-four hours a day seven days a week. In some cases there were intermittent disabling bouts of back pain with better periods between. When giving a history, some patients in embellishing their story were crying for help and perhaps not making it clear about their better times. He agreed that the fact that the plaintiff was involved in the present litigation was probably a psychological stressor for her.

87.The solicitors for the defendants sent the plaintiff in December 2003 to a clinical neuropsychologist, Dr Marian Scarrabelotti. She was not called to give oral evidence. She saw the plaintiff over three sessions, conducted testing and took a detailed history. She prepared a lengthy report, concluding that the plaintiff was of average to high average intelligence with average to high average memory. She found no evidence that the plaintiff was exaggerating her symptoms. She was suffering from a moderate to severe level of depression and anxiety and should continue with treatment by Dr Mahoney. Her condition was characterised as a major depressive and somatisation disorder.

88.The plaintiff received strong support from her longstanding general practitioner, Dr Jacob Foo, who gave evidence in March 2005. At that time he did not regard the plaintiff as capable of full-time work, and did not expect that she would be able to work again in the foreseeable future. He attributed this to her back pain, which he thought was caused by the April 2000 car accident. She had developed a chronic pain syndrome, with migraine headaches from time to time which were probably secondary to that syndrome. The prescribed medication related to the syndrome had probably aggravated bowel problems and played a part in causing her to vomit from time to time. Her post-traumatic stress had been aggravated by the incident with the massage therapist. Asked whether the plaintiff was genuine in her complaints as to symptoms, he replied “yes, to the best of my knowledge, yes”. He did not think that she had ever exaggerated her symptoms to him.

89.Dr Foo had first seen the plaintiff in September 1999 in relation to her abdominal complaints. She was dehydrated and Dr Foo did not have time to take a full history from her. She had presented with a major problem and he had to get her to hospital fairly quickly. For that reason, he had never got around to taking a general life history from her.

90.When cross-examined, he conceded that he had been unaware of any migraine headaches before the accident. His understanding as to current medical thinking was that most cases of migraine originated from the neck. Because she had complained of a neck injury in the car accident he had formed the opinion that the accident was the cause of the migraine headaches. He would normally have inquired of a patient as to whether any symptoms had been present before an injury, but he did not do so with the plaintiff, mainly, he said, because she had so many problems. He thought on reflection that he had probably asked whether she had any history of migraines, and that she probably replied in the negative, as otherwise he would have noted the history specifically. His answer was the same in relation to any admission to hospital prior to December 1999. He would have recorded any history he had been given which he had seen as relevant. He had been previously unaware of the plaintiff’s admission to hospital in January 1997 for five days, and of the fact that the investigations at that time included a lumbar puncture. When counsel took him through the hospital records as to the diagnostic procedures undertaken during that time, he agreed that these had been done to exclude other possible causes of severe headaches, leaving the diagnosis of possible migraine.

91.Dr Foo agreed that during the course of his treatment of the plaintiff, initially her neck symptoms overwhelmed her low back symptoms, to the extent that he was not given a history of low back pain until 11 May 2000, about two weeks after the accident. From that point, the neck had got very much better, whilst the back had become much worse. He agreed that the injuries to the neck and the back were both soft-tissue in nature. He also agreed that it was his practice to deal with his patients on their merits, and to accept the history and complaints conveyed to him, rather than to investigate the accuracy of the history or the genuineness of the complaints. He agreed that with a patient like the plaintiff, he was limited as a general practitioner to forming conclusions from the history he was given and from the results of his physical examination of the patient. He agreed that both of these were liable to the subjective influence of the patient. He had seen swelling and redness in the plaintiff’s low back but agreed that it was possible that these had been caused by the application of a hot water bottle.

92.Dr Foo had not been given any history as to the plaintiff’s childhood physical and sexual abuse by her father or stepfather. He agreed that such abuse could constitute the trauma necessary for a diagnosis of post-traumatic stress disorder.

93.Dr Foo continued to treat the plaintiff as her general practitioner until late July 2004, shortly before the resumption of the hearing after a break of four months. Asked whether she had always presented with an appearance of severe pain, he said that there had been fluctuations in her presentation. There had been days when she had been much worse and days when she had been somewhat better, but there had never been days when she was totally free of pain or limitation of movement.

94.Oral evidence was given in August 2004 by Dr Chan-Feng Lin, a general practitioner working in Dr Foo’s practice. Dr Lin had by then been in general practice for about two years, having graduated about five years earlier. He saw the plaintiff on occasions in late 2002, in Dr Foo’s absence, but began to see her more regularly from January 2004. The plaintiff had run out of Endone tablets and Dr Foo was away. Dr Lin tried the plaintiff out on a number of strong painkillers, settling on slow release MS Contin with Endone, accompanied by Zofran wafers for control of vomiting and nausea. On occasion he administered intramuscular morphine injections when the plaintiff presented complaining of severe pain.

95.Dr Lin thought it very unlikely that the plaintiff would ever return to any form of work. He conceded in cross-examination that he was reliant in arriving at this opinion on his examination of the plaintiff and on the history he had been given, both of which were subjective. Additionally he had objective material in the form of radiological reports, and he had felt muscle spasm, mainly in the low back but on one occasion in the neck, and he had seen swelling in the lumbar area. On physical examination, the plaintiff had invariably presented as unable to stand upright or lean backwards. Dr Lin believed that she was trying her best to attempt these movements. He accepted that the plaintiff suffered from chronic pain and expressed the view that the “pain started from the accident”.

96.Dr Lin was asked to assume that the plaintiff had in recent times been able to walk up and down stairs freely, walk along a beach for half a kilometre or more, sit and stand without restriction, and engage in sexual activities. On that assumption, he was asked whether he would agree that his assessment of her might have been in error. His response was that he had never seen her engage in those activities. He would not agree that his assessment was wrong. He said that the plaintiff’s presentation would depend on the activities she had engaged in the day before. He agreed that he had never seen her present as totally unrestricted, and that she had always given the appearance of being restricted and in pain. Ultimately he agreed that if there had been periods when she was totally unrestricted, this would be inconsistent with her history and presentation to him. Nevertheless Dr Lin believed that the plaintiff’s pain was genuine and that she was not faking or exaggerating her symptoms.

97.Shortly after the portion of the hearing which took place in August 2004, the plaintiff moved permanently to Queensland. She became a patient of Dr Rebecca Truscott-Dunn, a general practitioner at Springfield Lakes, an outer south-western suburb of Brisbane. She first saw the plaintiff on 9 September 2004, and by the time she gave evidence in March 2005 had seen the plaintiff on twenty to twenty-five occasions. She accepted the diagnosis of chronic pain syndrome which she understood had been made in Canberra. She arranged for the plaintiff to see a local physiotherapist, and also a psychologist, and she referred the plaintiff to Dr Graham Rice, a pain specialist, who saw the plaintiff two or three times. She remained on strong medication including MS Contin, Oxynorm, Valium and Zoloft. She did not feel that there had been much improvement in the plaintiff’s condition over the six months she had been her patient. She could not see the plaintiff having a working future or leading anything like a normal life. She regarded the plaintiff as genuine, compliant with treatment and willing to try new things. She had seen the plaintiff fluctuate in symptoms, having better and worse days. She had never seen her free of pain, or able to move without restriction. She acknowledged that she was reliant upon subjective matters, and that there was no objective indicator of the plaintiff’s level of pain or capacity to work.

222.This leaves the plaintiff’s evidence to be considered. I had the opportunity to observe the plaintiff in the witness box. She spent almost four full days giving evidence, spread over a period of four months. I also had the opportunity to observe her physical presentation in the back of the court on many other days as the hearing continued. Her selective and indeed untruthful evidence about her time in Queensland, when the hearing resumed in August 2004, severely undermined her credibility, leading me more readily to suspect that she had been deliberately selective in her evidence about her pre-accident history, and in the history she provided to the various doctors who treated or reported about her. As I have explained when considering the evidence of Mr Steele and Mr Cairnduff, I have no doubt that she embellished her presentation in court to improve her case. One piece of evidence given by Mr Cairnduff, about which he was not cross-examined and which I accept, was the evidence about her arrival by air in Brisbane, when she came off the plane last in a wheelchair which she discarded in the car park and did not use or need again. This is consistent with her presenting in a similar way to her presentation in court when she was in public in a situation where she suspected that she might be under observation by investigators. It is also consistent with her physical presentation to the various doctors.

223.This does not mean that she was not disabled or in pain at all, or that she was an out-and-out malingerer. Her presentation to Mr Cairnduff and, perhaps to a lesser extent, to Mr Steele in the early stages of their relationship, can be explained in part by her wish for the relationship to develop. It is natural to assume that she would have gone to considerable trouble to present in those circumstances as normal and not as disabled. That is to say, it would not be surprising if she had gone a little far in the opposite direction at those times to mask any pain or disability.

224.With her background of early sexual abuse within her own family, the plaintiff was from an early age vulnerable to anxiety and depression. This is reflected in the social worker’s note of January 1997 in the hospital records. Her history of cancer resulting in her hysterectomy, and of her then husband’s cancer, followed later by her abdominal symptoms and weight fluctuation of 1999, culminating in further surgery in September of that year, must have increased her vulnerability to psychological disorder. At the same time, it must be borne in mind that the plaintiff had worked from November 1999 until the first car accident, without the need for any significant time off, in a job she enjoyed and which, she thought, offered her a bright future with the prospect of some promotion. I accept that the motor accident of August 2000 was a causative factor in the development of the psychological problems which precipitated her admission to Calvary Hospital for three weeks at the end of August 2000, though I repeat that I infer that the evidence of Dr Fridgant and Dr Morice under whose care she was admitted would not have assisted her case.

225.I accept that the plaintiff injured her neck and low back in the motor accident of April 2000. I accept that initially the neck pain was serious and overwhelmed the back pain, which became much more pronounced as the neck resolved. I also accept that by reason of her personality and pre-existing vulnerability, the effect of the neck and, more significantly, the low back pain upon the plaintiff was much greater than it might have been upon a person with a more robust personality and psyche. It seems to me that part of the apparent exaggeration and embellishment was not conscious or related to the damages claim but was a subconscious reaction by the plaintiff as an individual to her plight, and hence, from a legal perspective, foreseeable by the defendants and compensable.

226.At the same time, I am also satisfied that there has been a considerable degree of conscious exaggeration and embellishment motivated by a desire to maximise her damages and perhaps also to justify her position as an invalid, unable to undertake numerous tasks and requiring care and help from members of her family.

227.By way of example of embellishment for the purposes of the case, the plaintiff was assessed by two occupational therapists, Louise Cadby for her own solicitors in May 2004 and Lesley Radbron for the defendants’ solicitors in August 2004. She presented to both as severely disabled, and both prepared reports which if accepted would justify vast awards for past and future care and for the cost of occupational therapy equipment. Indeed, the plaintiff’s solicitors qualified a chartered accountant of 28 years experience, Vincent Siow, to prepare a report based on Ms Cadby’s opinion. Mr Siow arrived at the figures claimed in the amended statement of particulars of June 2004, amounting to more than $600,000 for the past and future Griffiths v Kerkemeyer components of the claim, figures of the order of which one is more accustomed to seeing in paraplegic claims. The presentation by the plaintiff to the occupational therapists, which they accepted and on which they based their figures, was completely at odds with her behaviour during her visit to Queensland at about the same time.

228.In passing, I make the point that it is not obvious why the expertise of a chartered accountant was needed to make the calculations set out in Mr Siow’s report, which appear to me to follow as a matter of simple mathematics from Ms Cadby’s report. Although no objection was taken to the tender of Mr Siow’s report, it does seem to me that the qualification of expert witnesses in circumstances of this kind should be discouraged as adding unnecessary expense to the preparation and presentation of a claim for damages for personal injury.

229.As I said earlier, I have some difficulty in arriving at findings of fact about the plaintiff’s activities in Queensland, where the only persons present during those activities were the plaintiff and Mr Cairnduff. As I have explained, the credibility of both witnesses has been undermined. There are significant discrepancies between them, generally as to matters of degree: for example, as to the number of occasions when they had sexual intercourse and as to the vigour of those encounters; and as to their activities during the trip to Mooloolaba and Noosa, including how far the plaintiff walked along the beach and whether she needed any help in doing so. Having decided that the evidence of both these witnesses is unreliable, it seems to me that the truth probably lies somewhere in the middle. I think it likely that the plaintiff and Mr Cairnduff had intercourse more than twice but on fewer occasions than the ten times deposed to by Mr Cairnduff; and that the vigour of these encounters was rather less than painted by Mr Cairnduff but considerably greater than the passivity conceded by the plaintiff. I also think it likely that the walks along the beach were much more extensive than the plaintiff says, but that Mr Cairnduff probably exaggerated their length.

Analysis of the medical evidence

230.I have set out my reasons for finding that the plaintiff’s presentation to most, probably all, of the medical and other health practitioners she has seen since the first motor accident has been exaggerated and embellished. The treating practitioners have generally accepted her at face value, as one would expect. Additionally, most took and accepted a history which included no reference to the plaintiff’s pre-accident psychological problems or her continuing problems following her abdominal surgery in September 1999. Their evidence must be evaluated against this background.

231.I shall deal first with the evidence as to the plaintiff’s physical injuries and disabilities. To recapitulate, an MRI scan within a week or so of the accident revealed annular tears at C5-6 and C6-7, which Dr Chandran thought were insufficient to explain the plaintiff’s symptoms. Dr Foo took the view that the plaintiff had suffered significant musculo-ligamentous soft tissue injuries in and around the neck, and I accept that opinion.

232.I also accept the opinion expressed by Dr Hopkins, an orthopaedic surgeon who saw the plaintiff for Comcare in February 2001, that the plaintiff had suffered relatively minor injuries to the neck and low back, but that she had developed a chronic pain syndrome.

233.This seems consistent with the opinion of Dr White, neurologist, who saw the plaintiff in June 2002 on referral from her solicitors. Dr White thought that the plaintiff would be left with some residual low back pain, and that at that time she was unfit to work or live a normal life. He hoped that one day she might return to clerical work.

234.Dr Pell saw the plaintiff in mid-2002 and also thought that she had developed a chronic pain syndrome. The prognosis was guarded. I accept that his opinion must have been to some extent influenced by the plaintiff’s embellished presentation, and the same must apply to Dr White.

235.Dr Le Leu saw the plaintiff on three occasions between September 2001 and August 2003. Whilst he was no doubt also affected by the plaintiff’s exaggerated presentation to some degree, I generally accept his opinion that the plaintiff had some pain flowing from a low back disc injury, not as serious as it appeared, but magnified by the plaintiff’s depression and anxiety. Dr Le Leu thought that physically the plaintiff should make a complete recovery from the neck and low back injuries though he was less optimistic about the prognosis for her depression. He thought that in the long term she should be able to get back to work in a clerical capacity.

236.This opinion generally accords with that formed by Dr Cohen, a treating physician and rheumatologist who saw the plaintiff in late 2002.

237.Dr Eaton, an occupational physician who saw the plaintiff in late 2003, was a little less optimistic about the likelihood that the plaintiff would get back to work, and thought that at best she could look forward to working part-time. However, I suspect that Dr Eaton was influenced to a greater degree by her physical appearance and presentation.

238.The general practitioners who gave evidence, Dr Foo, Dr Lin and Dr Dunn were generally more accepting of the plaintiff and more pessimistic about her future. It seems to me that each was influenced to a marked degree by the plaintiff’s complaints which, as I have said, were exaggerated and embellished. I prefer the opinion evidence of the specialists. I have already mentioned that I found aspects of Dr Gavaghan’s oral evidence unconvincing. As I have said, I accept an opinion he expressed in a letter of May 2000 that the plaintiff’s abdominal symptoms and to some degree her depression and anxiety were already apparent prior to the first car accident.

239.The one specialist who was out on his own was Dr Spira, the Sydney neurologist who saw the plaintiff in late 2003 on instructions from the solicitors for the defendants. Dr Spira thought that the plaintiff was faking her straight leg raising test and the pain she said it produced. He saw her physical presentation as grossly exaggerated and dramatised. She should in his view have recovered from her physical injuries within weeks of each accident. He attributed her failure to recover to a grossly overvalued sense of injury, and the adoption of a sick role with dependency on her then partner and family. He disagreed with the radiological interpretation of an MRI scan of the plaintiff’s lumbar spine, and thought that there was no evidence of nerve root irritation. He rejected the diagnosis of chronic pain syndrome as a non-scientific explanation adopted by some doctors when they were unable to find a physical cause for pain. He regarded this as unprofessional and inconsistent with the duty of a treating doctor to continue looking for the cause of the pain and treating that cause.

240.I am able to accept Dr Spira’s opinion about chronic pain syndrome and at the same time to accept the opinion of those specialists who believe that this label applies to the plaintiff. It is consistent with the proposition that the plaintiff has a degree of genuine pain and that medical science is at present unable to identify the cause of it. I can also accept that Dr Spira correctly detected a measure of exaggeration and embellishment in the plaintiff’s presentation. The difference is one of degree. I am satisfied that the plaintiff genuinely suffers from pain in the low back which is at times moderately disabling. I am satisfied that at other times she is much less disabled than she pretends to be. Insofar as Dr Spira came to the view that the plaintiff was entirely feigning her pain, I do not accept that view. It is inconsistent with the preponderance of other specialist opinion. I am not persuaded that the plaintiff faked the straight-leg-raising tests, and incline more to the explanation that she was tensed and guarding against pain she thought would afflict her as the angle of the leg raise was increased.

241.There was a suggestion during cross-examination of some of the medical witnesses that the plaintiff may have become addicted to morphine, an ingredient in some of her painkilling medication. No doctor positively expressed the view that she had and her counsel did not adopt it as part of her case. It is unnecessary for me to make any finding about it, although it does seem to me that some of the plaintiff’s behaviour, for example at the hospital in Brisbane on the night of her altercation with Mr Cairnduff, is consistent with the hypothesis. It is enough for me to say that if some degree of addiction did develop, it did so only because the plaintiff was prescribed morphine-based medication as a result of the injuries she suffered in the car accidents. To that extent any addiction was indirectly caused by the negligence of the defendants and was reasonably foreseeable.

242.I turn to deal with the psychological and psychiatric evidence. As I have said previously, I found Dr Mahoney to be lacking in objectivity in relation to both the level of the plaintiff’s psychological symptoms and their causation. It seemed to me that she had allowed herself to become too close to the plaintiff to be able to respond objectively to suggestions put in cross-examination which were inconsistent with the history the plaintiff had given her, and with the plaintiff’s physical presentation. It is probably in the nature of things that a treating psychologist becomes personally close to a patient and accepts the patient without reservation or suspicion of exaggeration.

243.The opinions expressed by Dr Mickelburgh and Dr Snowdon, psychiatrists who saw the plaintiff at the request of Comcare in 2001, suffer from their lack of any information about the plaintiff’s pre-accident psychological symptoms. Nevertheless I accept their opinions that the plaintiff was, when they saw her, suffering from a depressive condition and from post-traumatic stress disorder warranting psychiatric treatment. Both Dr Mickelburgh and Dr Snowdon, and also Dr Duke who saw the plaintiff twice, in late 2001 and late 2002, took the view that the plaintiff’s psychological prognosis was dependent on the extent to which she recovered in the future from her physical injuries. Dr Synnot, another psychiatrist who saw the plaintiff in mid-2003 at the request of the solicitors for the defendants, also saw her psychological prognosis as connected to her physical prognosis, but thought that the former was reasonably good in the long term. In this regard I should say that I accept the findings which emerged from the tests conducted by Dr Scarrabelotti, neuropsychologist, at the end of 2003, that the plaintiff was suffering from a moderate to severe level of depression and anxiety and should continue with psychological counselling. The tests showed no evidence of exaggeration of the psychological symptoms.

244.In summary, I find that at the time of the first car accident in April 2000, the plaintiff had made a generally good recovery following her abdominal surgery the previous September, such that she had been able to take up employment with ATSIC and cope with the responsibilities of her position without needing significant time off, though from time to time she continued to suffer from abdominal pain, sometimes accompanied by nausea. The evidence does not enable me to make a finding as to whether these symptoms would have continued indefinitely, though I note that the plaintiff saw her general practitioner about them during the month before the accident, about six months after the surgery.

245.I also find that the plaintiff continued to suffer to some extent from the various psychological symptoms of which she complained in January 1997, as recorded in the note made by the social worker Mr Milne at Calvary Hospital during that month. These physical and psychological symptoms were not such as to prevent the plaintiff from working or attending to the demands of her life generally, but must have placed her in a position of abnormal vulnerability to future trauma. For present purposes, this has both a positive and a negative impact on the assessment of the plaintiff’s damages. Positively for the quantum of the plaintiff’s damages, her physical and psychological vulnerability magnified the effect of the injuries she suffered in the car accidents: that is to say, their impact upon her was much greater than would have been the case in respect of the average person. The negative aspect is that, had the accidents not occurred, the plaintiff would have remained at increased vulnerability to trauma from other causes, and the after-effects of that trauma: hence an award of damages in her favour would be less than an award in favour of the average person who suffered the same injuries, because of the possibility that she might suffer some other traumatic event, physically or psychologically, which would have a much greater impact upon the plaintiff than on the average person.

246.None of the doctors seems to have made a great deal of the impact on the plaintiff of what was described during the hearing as the improper conduct of the massage therapist in May 2001. It was clearly of enough significance to the plaintiff to warrant her complaining about it to the Health Complaints Commissioner, and seeking the assistance of a criminal victims’ association. It was also important enough, in the assessment of Dr Mahoney, to warrant a course of psychological counselling. As I said earlier, it is highly unfortunate that Comcare refused to pay for Dr Mahoney’s treatment of the plaintiff insofar as it related to the assault by the massage therapist. This placed Dr Mahoney in a difficult and artificial position.

247.Counsel for the defendants submits that I should find the assault by the massage therapist a novus actus interveniens, for the consequences of which the defendants should not be held responsible. The leading authority on this issue is Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522, a case in which a plaintiff had been injured in a work accident and alleged subsequent negligence in his treatment by a medical practitioner. A claim by the employer against the doctor for contribution was upheld by a Master at first instance, but struck out by a judge on appeal as disclosing no reasonable cause of action. The Master’s decision was restored by the Court of Appeal. The High Court dismissed a further appeal, holding that a second tortfeasor might be liable to contribute if the second tort and its consequences were found to be foreseeable consequences of the negligence of the first tortfeasor. The original injury could be regarded as carrying some risk that medical treatment might be negligently given: if the plaintiff acted reasonably in seeking or accepting the treatment, negligence in the treatment would not necessarily be regarded as a novus actus interveniens relieving the first tortfeasor of liability for its effects. At the time of the appeal to the High Court there had been no findings of fact and the appeal was determined on the pleadings. As the Court said, in particular circumstances, minds might differ as to whether the subsequent injury was foreseeable or whether it was too remote to be regarded as a consequence for which an earlier tortfeasor might be held liable.

248.In the present case, the defendants do not seek contribution from the massage therapist but simply contend that they should not be found liable for the consequences of his conduct. It seems to me relevant that the plaintiff would not have been on the massage table but for the negligence of the defendants, and that the therapist’s action, although professionally improper and arguably criminal, was in the nature of an opportunistic, spur-of-the-moment action which flowed from the very activity he was engaged in as a masseur. This is a borderline case, but it seems to me that what happened on that occasion was, from a legal perspective, reasonably foreseeable as a consequence of the negligence of the defendants and hence something for which the defendants are liable.

249.I should add that in any event, it does not seem to me that the consequences of the incident were of much significance in the scheme of things. It does not seem to me that the plaintiff’s damages would have been measurably less if the incident had not happened, except perhaps in relation to the expense she incurred to Dr Mahoney for the counselling not accepted by Comcare. Even as to those expenses, it should be remembered that Comcare refused to pay for counselling not only in relation to the massage therapy incident but also in relation to the childhood sexual assaults of the plaintiff by her father and stepfather. It seems to me that the need for treatment for the latter was triggered by the motor accidents as much as by the masseur’s assault, and that it is almost impossible to isolate from the fees charged by Dr Mahoney an amount which can be seen as related solely to the effects on the plaintiff of the assault.

Damages

250.The assessment of general damages for pain and suffering and loss of enjoyment of life in this case is made more difficult by the plaintiff’s unreliability as a witness and her exaggeration and embellishment of her condition, in her presentation to doctors and other witnesses as well as in court. I accept that in the first car accident she was badly injured, though not nearly as badly as she later made out. Her injuries in the second accident were very minor, and can have amounted to no more than a short-term aggravation of her previous injuries. I accept that she has some continuing symptoms from time to time but I find that she is in very much better health than she admits. I would expect that within five years she will be capable of working full time in a clerical position if she chooses to do so. I think it likely that she will choose to re-enter the workforce when she can. I take account of the fact that after the completion of this case, her Comcare benefits will cease and she will be obliged to repay to the Commonwealth the total of the Comcare benefits which have been paid to her and on her behalf. I regard it as significant that she has been and remains in receipt of benefits equivalent to about seventy-five percent of her pre-accident earnings. My understanding is that if she had worked part-time, she would have been obliged to notify Comcare and her benefits would have been reduced accordingly. In the circumstances it seems to me that she has had little incentive to return to any kind of paid employment to date. This will change in the future.

251.I accept the majority opinion of the medical specialists who have seen her, to the effect that she has been fit for part-time work for at least the last two years. Accepting that during that period there may well have been times when she was unable to work, it seems to me reasonable to treat her for that two-year period as having lost sixty percent of her earning capacity, but retained forty percent which she has chosen not to exercise. Whilst there may have been sound reasons for that choice, it should not operate to the detriment of the defendants.

252.For general damages I award $75,000, which I apportion as to $60,000 for the past and $15,000 for the future. The past component attracts interest which I allow at $9,000, reflecting the fact that the past component is more heavily weighted to the first two years or so after the first accident.

253.As evidence of past treatment expenses, the plaintiff relies upon a letter from Comcare to her solicitors dated 24 February 2005, setting out payments made by Comcare up to that date. The last payment had been on 28 January 2005. Comcare had by then paid $106,137.48 by way of treatment expenses, and an additional $5,684.26 in reimbursement of travelling expenses incurred by the plaintiff in attending for treatment. In addition, the plaintiff claims amounts paid by the Health Insurance Commission in respects of Medicare claims she has made for treatment provided by various medical practitioners and not paid by Comcare. I can reasonably assume that the plaintiff has had additional treatment since February 2005, the cost of which should be included in her damages, and I propose to provide her solicitors with an opportunity to provide the solicitors for the defendant with details of any such claim in the hope that agreement can be reached about it. If it cannot, I shall hear the parties as to whether I should permit the plaintiff to reopen her case to adduce evidence of the cost of any such treatment. As to the cost of the treatment paid by Comcare, I have been through the schedule of payments, which runs to some thirty pages, and I am satisfied that the treatment listed was made necessary by the plaintiff’s injuries. I am fortified in this view by the plaintiff’s evidence from which it is clear that Comcare staff scrutinised her claims closely and disallowed a number as in their view not accident-related. I think that I can rely to some extent on the diligence of Comcare staff in this regard, in supporting the plaintiff’s claim in this action for those amounts. Counsel for the defendants concedes that the amounts claimed are reasonable and that the plaintiff underwent the treatment, but does not concede causation. In the circumstances I am minded to allow the whole of the treatment paid for by Comcare.

254.For the reasons previously explained, I would also be prepared to allow any expense incurred by the plaintiff for the treatment by Dr Mahoney quarantined and disallowed by Comcare.

255.The position is otherwise with the amounts claimed in respect of the payments by the Health Insurance Commission. It is generally known in the community that in making a Medicare claim, the patient is required to certify that the treatment does not relate to a compensable condition. Having regard to her medical history, it seems quite likely that the plaintiff must have had some treatment over the years since the first accident which has been unrelated to her injuries. If the treatment in question had been so related, it seems to me likely that she would have claimed it from Comcare rather than Medicare. That part of her claim is accordingly disallowed.

256.I propose to make an allowance for future treatment. I take account of the fact that after judgment the plaintiff will be unable to claim treatment expenses on Comcare and will have to pay for her own treatment. It seems to me likely that she will limit this to treatment she really needs for her injuries. If she has become dependent upon some of her painkilling medication, I have no doubt that she will wean herself off the dependency once she has to pay for her medication out of her own funds. I propose to make an allowance for the next five years of $40,000, and for the future beyond that period of $10,000, a total of $50,000 for future treatment expenses.

257.In relation to loss of earnings, a schedule attached to the Comcare letter of 24 February 2005 discloses incapacity payments of $111,821.74. The periods covered run up to 31 December 2004. Whilst it is not entirely clear from the schedule, and there was no other evidence about it, I take it that this is a gross figure from which tax will have been deducted by Comcare, and that the plaintiff will be entitled as a head of damages to an amount equivalent to the tax she has paid on her compensation pursuant to Fox v Wood (1981) 148 CLR 438.

258.A concession was made on behalf of the defendants that the plaintiff had been absent from employment for the periods in respect of which the incapacity payments were made, but it was not conceded that the entire period of absence was a consequence of her injuries. As I have said, I propose to calculate the plaintiff’s damages for past loss of earnings on the basis of a total loss of earning capacity up to the middle of 2004, and a loss of sixty percent of her earning capacity since then.

259.The plaintiff will be entitled to interest as a component of her damages, on the difference between what she would have earned but for her injuries and what she has received from Comcare. Again, I propose to allow the solicitors for the plaintiff the opportunity to bring the figures up to date and to attempt to reach agreement with the solicitors for the defendant on the mathematics, with liberty to apply if necessary.

260.As to loss of earning capacity for the future, I propose to allow the plaintiff five years on the footing that she retains forty percent of her notional earning capacity but has lost sixty percent of it. I ask the solicitors for the parties to agree on the weekly net amount applicable to the plaintiff’s last position with the Commonwealth Public Service: I am not satisfied that she would have been promoted beyond that level. At the end of five years, upon my findings, the plaintiff will have effectively regained her full earning capacity: I propose to allow a rounded amount of $30,000 for the future beyond the next five years, to compensate her for the fact that, as a result of her injuries, it may be necessary for her from time to time to take time off work.

261.There is, as I have mentioned at various points when dealing with the evidence, a substantial claim for past gratuitous care, principally provided by the plaintiff’s partner from time to time and by her mother, but also by her friends and other family members. As I have said, I regarded much of the evidence about the time spent on providing this care as greatly exaggerated. I also take the view that much of the time spent by the plaintiff’s mother has been inflated by reason of the mother’s personality. The defendants should be found liable only for a sum representing the reasonable cost of satisfying the plaintiff’s injury-created needs. Rather than attempt a dissection of the various periods since the first accident, I propose to take an average over the whole period. It seems to me that a reasonable average would be three hours a day, which I allow at $18 per hour, a rate considerably less than that provided to the occupational therapists Ms Cadby and Ms Radbron by commercial organisations providing such care as a business for a profit, but a rate which seems to me to accord with the rate allowed in other cases in this court. This equates to an average of $378 per week or $19,656 per year. It is a little over six years since the first accident: I allow $120,000 for the past Griffiths v Kerkemeyer component, plus interest of $30,000. For the future, I propose to base my award on an average of one hour per day for the next five years, with a buffer for the more distant future. For the future Griffiths v Kerkemeyer component I allow $50,000.

262.In relation to the past Griffiths v Kerkemeyer component, it was argued by counsel for the defendants that I should not make any allowance for the services provided by Mr Steele during the period when he was in receipt of a carers pension. No authority was cited for this proposition. I remind myself that it is the plaintiff’s need which must be compensated for. A plaintiff who pays for such services properly recovers the cost as part of his or her damages; where the services are provided gratuitously, the effect of the decision in Griffiths v Kerkemeyer (1977) 139 CLR 161 and subsequent cases is that the plaintiff is entitled to recover the commercial cost of the provision of the services. It does not seem to me relevant that the services may at some point have been provided by a person who was receiving a Commonwealth carer’s pension for doing so.I am assessing the plaintiff’s damages, not a damages claim by Mr Steele. There is in any event a long-standing principle that pensions are not to be brought to account for the defendant’s benefit in assessing damages: see for example National Insurance Company of New Zealand Ltd v Espagne (1961) 105 CLR 569. Hence in arriving at the figure I propose to allow for the past Griffiths v Kerkemeyer component, I have not discounted the award to any degree to reflect the carer’s pension.

263.I propose to publish these reasons and to stand the matter over to provide the parties with an opportunity to reach agreement on the components of damages I have left unquantified, consistently with the reasons. The parties are to have liberty to apply or to list the matter before me at any convenient time.

I certify that the preceding two hundred and sixty-three(263)numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Associate:

Date: 7 July 2006

Counsel for the plaintiff:Mr F J Purnell SC & Mr I D Bradfield

Solicitors for the plaintiff:Porters

Counsel for the defendants:Mr M A Elkaim SC & Mr D M Wilson

Solicitors for the defendants:Phillips Fox

Date of hearing:27, 28, 29 April 2004,

23, 24, 25, 26 August 2004,

29, 30, 31 March 2005,

1, 4, 5, 7 April 2005.

Date of judgment:7 July 2006