Hillebrand v Motor Accident Commission As The Insurer of Damon Cook Decd - [2005] SADC 29

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
HILLEBRAND v MOTOR ACCIDENT COMMISSION AS THE INSURER OF DAMON COOK DECD
Judgment of His Honour Judge Muecke
31 March 2005
DAMAGES
Assessment of Damages - 35 year old dental nurse/assistant at time of motor vehicle accident on 19 July 2000 - permanent disabilities to both legs - development of Major Depressive Disorder - number 23 on scale assigned - past and future economic losses, superannuation losses, and award for gratuitous services.

HILLEBRAND v MOTOR ACCIDENT COMMISSION AS THE INSURER OF DAMON COOK DECD
[2005] SADC 29
Judge Muecke
Civil

This is an assessment of Ms Hillebrand’s (“the plaintiff’s”) damages which resulted from a collision which occurred on 19 July 2000 at Junction Road near Maitland in South Australia. The vehicle the plaintiff was driving collided with another vehicle which was travelling towards the plaintiff’s vehicle on the incorrect side of the road. The driver of the other vehicle died in the accident.
Following the collision the plaintiff was transferred by ambulance to the Central Yorke Peninsula Hospital at Maitland. From there she was taken by air ambulance to Adelaide and admitted to the Royal Adelaide Hospital. She remained at the Royal Adelaide Hospital until her discharge on 31 July 2000.
Her admitted injuries included a fracture of the right femur which required closed reduction and internal locked intermediary nail, laceration to the lower lip, fracture of her nose which involved repair and suture, lacerations to both knees and both elbows and left great toe, partial injury to the extensor tendon of the left great toe, lower left pneumothorax treated by a drain, with some lower lobe lung collapse which resolved with exercise, fractured right mid-shaft femur, and cracked ribs. She alleged that she suffered other injuries including a significant psychological injury which included anxiety and depression.
At the time of the accident the plaintiff was 35 years of age. She was married and she and her husband had three children. Two sons were then aged 13 years and 11 years and the third child, a daughter, was then aged 9 years. At the time of the trial they were aged 17 years, 15 years and 13 years. The family lived near Maitland.
The plaintiff and her husband married in December 1984. They immediately went to live on the Yorke Peninsula in South Australia. Both were from Adelaide. The plaintiff’s husband had been working on the Yorke Peninsula for an agricultural company for a year before they married.
At the time of the accident the plaintiff was employed part-time as a dental assistant by the South Australian Dental Service, which I understood to be a government service providing dental services in metropolitan and country South Australia. The plaintiff said that before the accident she was working a five-day fortnight as a dental nurse with the South Australian Dental Services. She said that she had been offered additional hours to those she was working at the time of the accident. She was asked what her intention was in relation to her working life had it not been for the accident. She replied:
AWhat our plans always were, we wanted to send our children to boarding school because we were living on the Yorke Peninsula and we just wanted them to have their last few years experiencing Adelaide life and their life was probably going to be in Adelaide working, so it was a good way that we felt a safe way for them to be introduced to Adelaide life. So that was the plan, the last three years of their schooling would be done in Adelaide. So it was always my plan that the only way we could afford that was for me to go back to work full time. So we had planned for that to happen probably the year after 2001, from then on.
…
QHow long would you have continued to work full time.
AAt least until all my children had been through school and now well that’s a question, how long is a piece of string. My eldest boy wants to go on to Roseworthy to do agricultural sciences, so who knows, until we were financially stable basically and I don’t know when that would’ve been.
QBut at least until all of your children had completed their –
AAll of my children had finished schooling.
QAnd tertiary education if they undertook –
AWell, yes, my youngest daughter would like to be a forensic science – she tells me, so who knows, but definitely until they had all finished their schooling.
QAfter your children completed their education, would you have continued to work in any capacity.
AI think I probably would have done a couple of days a week just to get myself out and I feel like in my I have a bit of responsibility and that’s something that I treasure and so it makes me feel a bit better as a person to have that -
The plaintiff explained that she did like her work but she does not particularly like it now. The reason is that the family had to move into an area “where it’s a little bit harder – the socio-economic area is a little tougher, so that’s been hard”. She explained the reasons for the family’s move. The first reason was because she had to drive past the accident site every day and she found that really hard. She said that she still believed that she had a huge part to play in the accident. She said the way she looked at it was that the accident was partly her fault. Even though the other driver was on the wrong side of the road and drove straight into her, she said: “It doesn’t matter, I should have had my lights on and I might have prevented it”. She said that another reason for the move involved her thinking after a year and a half after the accident she didn’t seem to be getting better or getting her social life back. Her injuries had affected her social life and, in particular, had affected her activities associated with sport. She started “pulling away” from those activities because “it hurt too much because I couldn’t be there and be part of it”. She said that was putting a lot of pressure on her and when her weight increased she felt like she “just wasn’t good enough to be with my friends” and that “the easiest way for me to deal with that was to leave”. She thought she would be better if they could get away from the Yorke Peninsula so they eventually moved to Willaston near Gawler.
The plaintiff was asked whether that involved her husband giving up his job. She answered:
ANot really, what happened he sort of had his work through a corporate company, and he wasn’t happy with that. He wanted to go out on his own and yes, start his own business. But then that was probably – he had talked about it in say 2001, but he just couldn’t have done that, he was too busy trying to handle my emotions, let alone have to go out and start his own whirlwind life. So he just hung off and then when we moved, it was an opportunity for him to leave Wesfarmers and start on his own. So he did it when we moved.
QWhat effect did the move itself have on you and the family financially.
AWell it’s been very hard because I don’t know whether you know what housing prices are like in Gawler, but they’re not cheap. So yes, it was in one sense my children, my younger two are at the private college in Gawler, so that financially has been harder because the plan was to send them down later. But in the long run that will probably be better for us, because we don’t have to send any more to boarding school unless they’d really want to go. The college up the road, Roseworthy up the road, so Daniel can go there and live home but yes, as for living-wise things are much dearer in the city than they are in the country and housing-wise it’s going to be very hard. But it was what I felt I had to do.
When asked if the move had helped her at all the plaintiff said:
AWell I don’t think it’s really been a healthy move for me, because I have just gone into a little shell now and my motivation to do lots of things has disappeared, because I don’t have to be at certain functions. I don’t have to feel like I’m sort of up with my – I don’t know, it’s hard to explain. For me yes, I know socially it’s been good because I don’t have to socialise because I don’t know anyone there. But for my family it hasn’t been very happy.
The plaintiff said that prior to the accident she enjoyed her work. She looked after her children and ran the house, doing all the housework. She enjoyed competition tennis which she played twice a week. She also played social tennis whenever she could. She played netball once a week and trained once a week. She enjoyed aerobics twice a week. She said the family would go away a lot and they spent their holidays hiking and bush camping. Before the accident she described herself as going to everything. In the country sporting clubs are “basically your life” and she and the family would play sport and after have a few drinks and have a good time. Every weekend they would be out with their wide range of friends in Maitland. She was an energetic person and socially was “pretty outgoing”.
The plaintiff’s first memory after the accident was waking up in hospital. She did not have a recollection of the accident. She was in hospital for some weeks. She does not remember a lot of her time in hospital as she was fairly heavily sedated. She did not learn that someone had died in the accident until quite late into her time at the Royal Adelaide Hospital. She remembered the time just before she got out of hospital when the physiotherapist told her that she could go home if she could walk with crutches. She spent the day trying to do that so that she could get out of hospital. She said that “none of the emotional things came in in hospital until afterwards”.
When she went home her husband attended to all her personal needs. He did everything for her for the first four or five weeks after she left hospital. Once she then could get herself into a wheelchair she did some things for herself. Once she started with physiotherapy and could move around a bit more she did more to contribute to the domestic and household tasks. She said it probably was a good three months before she was able to contribute in a meaningful way to those tasks. Her greatest ambition then was to get herself back to work and to try and get her life back to normal.
When she first went back to work her employer would only let her go back for very limited hours at first. Her husband continued to do a lot of things and she said: “he still does”. The amount he has to do has changed, but he still “does shoulder a lot of responsibility, especially emotionally”.
She said that now she has got a shocking memory which she did not have before the accident. She now does the ordinary household tasks like cleaning and shopping. Her husband does the heavy vacuuming and mopping because that involves reaching. He also does the gardening.
The plaintiff said that she has had trouble sleeping ever since the accident. That was initially related to pain but it may now be that she has just got into a habit. She could not say it’s pain now, “it’s more psychological”.
The plaintiff said that when she first went back to work it was hard. She had to be very careful how she did things. She moved around the clinic slower than she did before. She suffered pain and discomfort, usually on her right side. That side has been her biggest problem. It is from her waist down. When she went back to work she found that she was tired at the end of the day and she was mentally and physically exhausted. It was still good to get out of the house and be with other people rather than be at home on her own.
She said that at work she was on her feet during the day. She said “you can actually sit down but, and any dental nurse will tell you this, that is not practical because the dentist will move his head in the way so you are either really badly postured or you stand up.” So most of the time she stands to assist.
The plaintiff said that she had also been a dental nurse. She said that she left school in 1981 at age 17 years, turning 18 years (in September 1981). She did an enrolled dental nurse course at the Royal Adelaide Hospital for a year (1982) and then worked at the dental hospital in Frome Road for a few years before she married her husband. She then moved to the Yorke Peninsula and worked there.
The plaintiff said that when she went back to work initially after the accident she was physically very tired when she got home. She said that mentally it wasn’t so bad - her husband was there to help out.
She said she has increased her hours over time. She was asked how she coped with working three days a week now. She answered:
AI’m coping, but I’m a pretty tough cookie, I have to. My eldest boy is still at boarding school and – I mean that was – you can say that’s our choice and it is, but he’s doing his last year I didn’t want to – my children have been through the wringer and I just couldn’t do that again so he’s still there. So yes, I just get by because I have to.
QDo you work in the same place each day.
ANo. On a Monday I work at Davoren Park and a Tuesday and a Friday I work at Smithfield.
QYou said that they’re difficult rather rough places to work.
AYes. So emotionally that is very hard. I go home very mentally exhausted some days.
QBetween your working days, are you able to do much.
ANo.
She said that she tries to make the days between work days fairly quiet days because “I wouldn’t be able to do much else”. She said that she had tried working three consecutive days once but “couldn’t even get out of bed the next day”.
The plaintiff was asked whether she thought she could keep on working three days a week. She replied: “not for a long time, no”. She said that was because of the effect of the accident. She said that she thought she could work two days a week with a reasonable degree of comfort. She could do that “quite happily”.
The plaintiff said that she had tried to get back to tennis after the accident. That was at a night tennis competition which was very social and not competitive. She said that after that she would go home at night and be in much pain. She pushed herself to do it but used to suffer every Tuesday night. She eventually gave it away.
The plaintiff said that giving away her social activity was probably one of her biggest problems. Going from some sort of physical activity every day to nothing is one of her major issues. It has made her feel like a lesser person and because she has put on weight that has also been an issue. That is a huge problem because she does not like the look of herself now. She said that her face after plastic surgery has not been a huge problem for her. It was the other scars that worry her. The scars on her knees are such that she will not wear anything above the knee. “So swimming and everything is out for me because I won’t wear bathers, because I’ve got other scars too”. She said there was a huge scar that runs up her hip. There are a few other little scars in other areas.
The plaintiff said that her sex life with her husband has diminished since the accident. The explanation was some physical, but a lot of it was mental. She said she doesn’t feel good about herself. She and her husband used to have a very good sex life. That has not put a huge strain on the relationship although it is part of other issues with the relationship of her and her husband.
The plaintiff said that initially she was very angry after the accident and that she was unreasonable when she went through the anger stage. She said she had worked through that with a psychologist, Mr Kym Harris. He helped her get over that anger, although she is still sometimes very unreasonable and her memory is shocking. She said she feels unhappy all the time.
The plaintiff agreed that she had had treatment for depression. She said that her general practitioner Dr Moore, of Maitland, saw her regularly and has been monitoring her anti-depressant medication. Dr Moore had recommended that she see a doctor in Gawler, another general practitioner, Dr Reid. The plaintiff said that Dr Reid has been very good and she is trying to change her anti-depressant medication. She said that she was not on any such medication at the time of trial although she was due to see Dr Reid the week after she gave evidence. Dr Reid had thought that the anti-depressant medication Aropax was not helping with her attempts to lose weight. Dr Reid is giving her some counselling and support. Dr Reid has been very good although the plaintiff had only seen her three times. She said that while she feels comfortable with Dr Reid she will keep seeing her.
The plaintiff said that she takes Panadeine Forte and Panadol from time to time. She said she would probably buy a packet of Panadeine every week. She tried to have as little of Panadeine Forte as possible. She definitely would have two Panadeine Forte on a Tuesday night but probably not for the rest of the week. She would take Panadeine every day. She said that she wouldn’t say she used Voltaren although occasionally she would rub some gel into her hip. She took a sleeping tablet, Temazepam, once a week.
The plaintiff said that since the accident the family had been to the Flinders Ranges for a few days. That was probably about eight months after the accident and that is the only holiday they have had. For her it was not like other holidays but it was relaxing. She wasn’t able to participate actively in what the rest of the family did. She said that they had a “camper-trailer so it had a nice bed and everything. So that was fine.” She said it would be quite uncomfortable for her in a tent although she could do that. She hadn’t tried it, however, so she didn’t know for sure but she’d give it a go, anything to get away. As to her future in the workforce the plaintiff was asked:
QGiven the difficulties that you now have, do you think that realistically you will stop work all together.
ADefinitely.
QWhen would you anticipate that might happen.
AI would keep working till my children have finished school in some capacity.
QAbout how long do you think that would be.
ANow I would say I would work probably another – I’d probably say another good 10 years, but definitely not three days a week.
QNot three days a week.
ANo. Three days I work till my children have finished school and then I would just cut back to two, just to enjoy the little things and pay the house off and do that sort of thing.
QIf you’re successful in your damages claim and you don’t have to push yourself I think you said you’d work two days a week.
ADefinitely I will drop a day.
The plaintiff said that since her accident she has tried going to a gymnasium. She said she “did a circuit and came home and proceeded to take a lot of pain killers and not move very well for the next week. So that was it.” “That was the end of the gym idea.” The person who suggested that she do that was the occupational therapist Anne Morgan. Ms Morgan had also suggested aqua aerobics, “but I won’t wear a pair of bathers”.
The plaintiff described her physical problems. She said that her right hip can go anytime whether she’s exercising or not. “It can just start aching and it’s like a deep throbbing ache”. Even in bed at night the right hip would start aching sometimes, “not as frequently as it used to but it is still always there”. As to her knees she said it depended on how much she was doing in a day. She probably walked three times a week but when she got home there was a “definite sharp pain in the knees”. The plaintiff said that those were the worst areas. She said that she could not kneel down or squat down. Those limitations limited her in some of her household activities.

She said that since the accident her social life with her husband had been affected. She doesn’t feel like going out and that has affected relationships with some of her friends. She supposed that that was “because I was dealing with a lot of guilt feelings”. She now doesn’t feel comfortable in groups and doesn’t like going to where there are a lot of people. She said that she doesn’t “want to have to deal with it mentally. I don’t want to even have to think about it so I won’t. So, yes, it’s been terrible on our social life.”
In cross-examination the plaintiff said that she had discussed her insight into responsibility for the accident with Mr Harris lots of times. She said it was “a big issue, it affects everything”.
The plaintiff said that she umpired netball for a few games in 2003. She probably did seven or eight games out of the seventeen or eighteen games played. She was hoping that she could get back and get involved in that sport to get to know people in the area and thus to have a bit more of a social life. Coaching is a way that she can perhaps do that.
The plaintiff said that her younger son and her daughter play club sport throughout the year. They both go to a private school at Gawler. Her elder son went to boarding school in Adelaide in 2001. He is currently doing year 12. She and her husband take the two younger children to various games throughout the year and watch them play. Her younger son’s sports activities are very hectic. There is a lot of running around. She and her husband occasionally watch their elder son in Adelaide. She says it appears that he will finish year 12 this year (2004).
The plaintiff said that after the accident she stayed on the committee of the netball club to the end of that season. She said she tried to play tennis for a season and a half. She thought that was probably about ten weeks. It was on Tuesday nights and she worked the following day. She has had a hit of tennis with her daughter. She said she does a lot of the driving and she has no problem with that. She said that although walking does cause discomfort it probably has some psychological benefit for her. She said that they know a few people at the football and netball clubs at Willaston to talk to but they have not socialised with them. They moved to Willaston at the beginning of 2003. Her brothers and sisters and her mother are very close to her and supportive of her. Her own marriage is a strong relationship and her husband is very supportive of her. The children try as well.
The plaintiff said that she was discharged from the Royal Adelaide Hospital on 31 July 2000. She had physiotherapy immediately after the accident but it has been quite some time since she had any physiotherapy treatment. That was arranged by Dr Moore. She had quite a few months of hydrotherapy as well. That was after she had had the pin removed. Once she felt quite good she stopped that. At the time the hydrotherapy was beneficial. Her not wearing bathers has been a big problem with having further hydrotherapy.
The plaintiff said that Dr Moore also arranged for her to see the psychologist Mr Harris. Mr Harris helped her in going through the grief process. That helped to a degree but she said she didn’t think it had “healed it”. At the time, however, it was of assistance.
The plaintiff said that she has not had any psychiatric treatment, only treatment from a psychologist.
The plaintiff said that she was now seeing Dr Reid whom she has seen on two or three occasions. She has seen her once a month “just to talk”. Dr Reid will judge where she is mentally and then perhaps refer her on to someone in Gawler. She feels very comfortable with Dr Reid. She last saw Mr Harris in the middle of 2003. Other than seeing Dr Reid there is currently no other treatment other than medication.
As to medication the plaintiff said that she probably buys a box of Panadol a week. The children and her husband probably also use that. There are 25 tablets in a box of Panadeine Forte. She said she occasionally rubs Voltaren gel on, but the whole family uses that as well. She said she didn’t know how many tablets there were in a box of sleeping tablets.
The plaintiff was asked in cross-examination about the relationship between her emotional and her physical difficulties. She said that her view was that her emotional and her physical difficulties all play a part in each other. She couldn’t really say that one was worse than the other. However, emotionally she felt that that was really bad. She said that she thought that emotionally she was worse at trial than she was twelve months before trial. Physically “you just tend to go on”. Her memory is no better than at any time since the accident. She said she gets fatigued and that is worse when she is feeling down emotionally.
The plaintiff said that six months after the accident she would have been doing a bit of the housework. Her husband currently does the vacuuming and will carry the heavy loads of washing. He also cleans the bathroom and the toilets and does all the gardening. She said that before the accident she didn’t do a lot of the gardening, that was mainly her husband’s province. She helped him a bit. She now does some gardening. She said that her husband “probably does (the housework) on a Sunday although he works from home a bit. So he’ll do it whenever he’s got the time.”
The plaintiff said that she probably started employment as a dental nurse in 1983. She worked with the school dental service in Kadina. At the time she was married she was working full-time. She took twelve months off when her eldest son was born and she then went back in a part-time capacity (three days a week) until she fell pregnant with her second child. After he was born in 1989 she probably went back to work part-time in 1992.
The plaintiff said that she has been working as a dental nurse for twenty years. She said that in the three financial years before the accident she did not change her hours of work although she might have worked an additional odd day extra. She said she considered herself pretty productive in doing the work that is required of her at work. She said she probably returned to work six months after the accident. She returned to the Maitland surgery initially and remained there until the end of 2002. When the family moved to Willaston she took up work in two different clinics, one in the Davoren Park area, (Mondays) and the other in the Smithfield area (Tuesdays and Fridays). She is currently working three days a week, 22.5 hours per week. She was working 2.5 days a week and “it was either you lose that half a day or you take it on and no way could we afford not to – for me to take it on so I had to do an extra day, so I do three days”.
She said that her plans were to work full-time from the time her eldest son went to boarding school in Adelaide until the time her daughter finished at boarding school in Adelaide. That was the time that she would have reassessed her future employment. She said that the plan was for her to go back to part-time work. She added, however that they may have had to assess their childrens’ tertiary education. They may have given them some assistance with that. She would have had to weigh up other aspects of her life although many, but not all, of her sporting activities were at night.
The plaintiff said her father died in early 2003 from an epileptic condition. After her accident he started having epileptic episodes and he died after such an episode. That was an upsetting time for her.
The plaintiff’s husband gave evidence. He said that he looked after the plaintiff and that he did everything for her for approximately six weeks after she returned home from the hospital. He said that after three or four months the plaintiff became involved in domestic duties on a limited basis. He still had to do most of the work that involved lifting and things like that. He said he still continues to do a fair bit of domestic work particularly if the plaintiff has been working and is fatigued. He does pretty much all the vacuuming now and washing the floors, scrubbing the bath, toilets, things like that.
Mr Hillebrand said that his wife had changed from previously being a very active person, being involved in lots of activities, being very self-motivated, and having an easy-going personality. She now lacks the motivation and involvement that she had prior to the accident. Her emotional state is what concerns him. He said that after the accident she tried to play a bit of tennis but was restricted to doubles. She found it very difficult to get back to a level she had enjoyed before the accident.
Mr Hillebrand said that when the plaintiff returns from work she is physically drained. She is not very motivated to do anything after work. He said their social life, centred around active involvement in sporting activities, had changed, as had their family holidays.
Mr Hillebrand said that they had “searched for many reasons why we moved” from Yorke Peninsula. He thought the biggest issue was the plaintiff having to confront driving up and down the same road as the accident. The other part was not enjoying the involvement, or the same level of experience of being involved, with clubs and people that she enjoyed before.
Mr Hillebrand was asked what the plaintiff was like after a three-day working week. He replied:
AI think Michelle, physically, is exhausted after working, particularly in the periods where she works Monday, Tuesday, that’s probably the worse period. Two days in a row is pretty demanding on her physically. However, the third day is at the end of the week so it gives her an opportunity to recover and then basically she’s got the weekend after that Friday.
QIs there a reason for her working three days a week if it’s so physically exhausting.
ASorry?
QWhy is she working a three-day week if it’s affecting her so badly physically.
AI still believe Michelle – it boils down to our financial position. I don’t believe we can enjoy what we have got and still meet our commitments for our children unless Michelle is working.
Mr Hillebrand said that their plans for his wife’s employment were to take on more work, or become more of a full-time employee rather than part-time, “principally to put the children through college”. Then they were to review it, “depending on your circumstances”.
In cross-examination Mr Hillebrand said that before the accident he did the gardening and he continues to do it. He said physiotherapy and hydrotherapy stopped two or three years ago. He said he does the vacuuming once a fortnight and it takes him twenty or thirty minutes. He does the toilet weekly and the bathroom fortnightly. He washes the dishes and cleans up the kitchen area. He washes the floor in the dining room and kitchen area. He takes out the washing and makes beds. Cleaning the bathroom takes twenty minutes at the most.
Ms Cathrine Gunning met the plaintiff in 1997 through netball. The two women became fairly close in 1998. Ms Gunning said that before the accident the plaintiff was outgoing, friendly and fun loving. The plaintiff and her husband socialised with Ms Gunning and her husband. The two families used to holiday together regularly. After the accident the plaintiff did not like the way she looked and because she couldn’t move around she put on weight. As a consequence she got depressed. She continued to socialise with the plaintiff in the same way as she did before the accident. The plaintiff did not socialise in the same way as she did before. Ms Gunning said the plaintiff was “not as sparky as she used to be” since she moved from the Maitland area. She seems withdrawn and depressed.
Dr Georgina Moore was involved with the plaintiff’s recovery from the accident since 25 August 2000. The plaintiff was known to Dr Moore personally prior to the accident. They interacted socially. Dr Moore described the plaintiff as very outgoing, very good at sport, very capable, very interested in her family and her family’s achievements. She said she was energetic and physically fit. She set a very good example to her children through participation with local clubs.
Dr Moore’s assessment of the plaintiff on 25 August 2000 was that her progress had been very slow and that was contributing to her depressed mental state. She immediately organised a physiotherapist assessment and hydrotherapy sessions at Kadina.
In January 2001 Dr Moore reported that the plaintiff “continues to have physiotherapy which has greatly improved her mobility although still not 100% and walks with a limp, and still has difficulty squatting and kneeling. From a mental health viewpoint there are still on-going concerns relating to anxiety and depression.” Dr Moore had arranged for her to see Mr Kym Harris in October 2000 and he had been addressing those issues. As at January 2001 Dr Moore believed that the plaintiff’s prognosis “will be excellent from the physical side but is uncertain with regard to the mental health issues facing (her) and her family. Hopefully with appropriate treatments she will be fully recovered.”
Dr Moore reviewed the plaintiff on 22 January 2002. She wrote that “physically she has progressed well but mentally more treatment is necessary”. She thought a review by the physiotherapist would be of value to determine if any further structured program was necessary. She had increased the plaintiff’s anti-depressant medication and had suggested that some cognitive behaviour therapy by Mr Harris would help her recover from her mental health illness.
Dr Moore later reported that the plaintiff had consulted her on 31 December 2002 complaining of continuing poor sleep patterns. The plaintiff had told her that she needed to get some sleep as she had a busy few weeks ahead with the family moving from Arthurton to the Gawler district. Upon her assessment of the plaintiff Dr Moore believed that she was suffering from ongoing anxiety and depressive disorder which was a direct result of being involved in the motor vehicle accident. Even though she had had previous psychological counselling, the plaintiff had still not been treated adequately. She had been slow to acknowledge that she had a mental health problem and had felt that she would be able to do it alone. The plaintiff had then accepted the need for pharmacological treatment for her depression.
When reviewed by Dr Moore on 23 January 2003 the plaintiff reported that “her mental state had seen little improvement but acknowledged that if she wasn’t on the medication she would have been a mess”. At that visit Dr Moore increased her medication and referred her to a psychologist. Dr Moore had previously arranged a referral to Dr Baker for the plaintiff’s reported on-going problems with dizzy spells.
Dr Moore said in evidence that she did the report in which she made these comments for the plaintiff’s solicitor. She said she encouraged the plaintiff to come back to see her but she had “been very busy with the children and things, so really I hadn’t seen her as much as I’d liked and when I next saw her in March this year (2004), after not seeing her since January 2003, I really, I suppose, read the riot act to her and said that she needs to have on-going counselling.” Dr Moore said that that was when she took it upon herself, with the plaintiff’s permission, to transfer the plaintiff to a general practitioner in Gawler who had expertise in counselling and cognitive behaviour therapy which she thought would help the plaintiff. That doctor was Dr Reid. Dr Moore said that she thought the plaintiff would need on-going support from a general practitioner monthly “at this stage until, you know, see dramatic improvement”. She thought the costs might be $70 to $80 a visit although “different people having different costing”.
Dr Moore said that probably the most important part of the plaintiff’s treatment was for her mental health. That needed to be got under control and that was what had been concerning Dr Moore for a long time. She said that getting into a private psychiatrist was difficult so “we do most of the on-going psychiatric care ourselves, but the cognitive behaviour therapy is what – the psychological counselling is what (the plaintiff) needs”.
In cross-examination Dr Moore agreed that probably the greatest impediment for the plaintiff getting back to as normal a life as she can were the emotional issues rather than the physical issues.
Dr Moore said that it was important for the plaintiff to undergo some cognitive behavioural therapy and that was why she referred her to Dr Reid. That therapy could address what Dr Moore agreed was an important matter, being that the plaintiff felt guilty about the accident. She said it would definitely be beneficial to the plaintiff to look at the accident in a different way. Dr Moore said there were a number of other events in the plaintiff’s life that had impacted on her mental or emotional state. She understood that the plaintiff’s father had died and that had compounded the plaintiff’s negativity and feelings of guilt, because she felt guilty because of her father’s illness and death.
Dr Moore said that she could not say whether the need for the plaintiff to see her general practitioner regularly would diminish with time.
Dr Moore said that the plaintiff had gained some insight into her emotional problems and that was a positive thing. She hoped that with adequate treatment there would be a favourable response. She agreed with Dr Ewer’s most recent report of 22 March 2004 that there was a good prognosis and an expectation of a full recovery by the plaintiff of her emotional and psychological problems. She agreed that the plaintiff was a fairly robust individual and an emotionally robust person pre-accident.
In re-examination Dr Moore said she did not know the context in which the plaintiff blamed the accident and herself for her father’s death.
Mr Peter Leaney, physiotherapist, treated the plaintiff from 28 August 2000 to 8 June 2001. In the latter month the plaintiff also ceased hydrotherapy after nineteen sessions under another physiotherapist.
Mr Kym Harris is a psychologist whose first contact with the plaintiff was in October 2000. She consulted him for psychological help to deal with the after‑affects of the motor vehicle accident. The first period over which Mr Harris treated the plaintiff was between October and March 2001. In that time he saw her on three occasions for treatment and on one occasion for assessment (23 March 2001). In this period the plaintiff impressed Mr Harris as a “vivacious young woman, with an essentially positive attitude to life”.
On 29 March 2001 Mr Harris wrote that after the course of treatment with him the plaintiff “had progressed and was feeling much less angry and her guilt feelings were being resolved. The main feeling now is one of frustration. This is worse when she is tired.” From an assessment of the plaintiff conducted by Mr Harris on 22 March 2001 he reported that her scores on the anxiety and stress sub-scales were found to lie within normal limits. She was found to be still exhibiting a mild level of depression. Mr Harris wrote that she “has a robust personality, good family and friendship supports, is reasonably secure financially and occupationally, and, prior to this accident, was in good physical health. This suggested her prognosis is good …”.
Mr Harris further wrote on 29 March 2001 that although he had completed his work with the plaintiff she may require a small number of treatment sessions if she continued having difficulty with sleep or other elements of adjustment. He wrote that it may be that she does not require further psychological help but that will partly depend on the course of her medical treatment and rate of recovery. He wrote: “As is usual in the course of an Adjustment Disorder, the disorder itself is expected to last no longer than six months after the elimination of the stressor and its consequences. Thus, when her physical recovery is complete it is expected that her Depressive Mood will dissipate and she will be relieved of her symptoms”.

The plaintiff consulted Mr Harris on a further seven occasions between 4 April 2002 and 3 October 2002. He reported by letter dated 11 October 2002. In that report he referred to the plaintiff’s treatment having “taken more work than originally anticipated. At this stage, though, she is making further progress and I believe that her psychological recovery will be as complete as can be expected within two or three more treatment sessions.”
Mr Harris referred to what he stated as a further complication in the plaintiff’s recovery, being the death of a friend in another motor vehicle accident in July 2002. Mr Harris wrote that the plaintiff’s “vulnerability to guilt caused her to take this news very hard”.
Mr Harris concluded that he considered that the plaintiff was “coming close to resolving what she needs to in order to put the experience of the accident in its proper prospective. When she has done so she will have fully adjusted to the fact that her life will never be exactly the same as it was before this event”.
In his evidence at trial Mr Harris said that when he last saw the plaintiff in July 2003 he left open the need for her to have on-going psychological assessments. She could avail herself of that “if she was open to it and the circumstances permitted”. He said that he thought it would have been helpful for her to have continued on with some cognitive therapy intervention.
In cross-examination Mr Harris said that during the plaintiff’s sessions with him she did not articulate a sense of guilt about her father’s death. He said he thought that there was a lot in the plaintiff’s pre-morbid personality that could be built on so far as getting over the effects of the accident were concerned. He said that she had responded to his cognitive behavioural therapy. He thought there was some improvement in the plaintiff’s ability to deal with her guilt feelings about the subject accident.
Mr Timothy Edwards, a specialist with Adelaide Plastic Surgery Associates, was involved with surgery to the plaintiff’s knees and lacerations on her elbow and left great toe on 19 July 2000. Mr Edwards wrote in a report that the plaintiff had undergone further surgery on 8 January 2001 to correct her post-traumatic nasal deformity and multiple scar revision. Mr Edwards wrote that by 25 May 2001 the plaintiff had “had an excellent result from the rhinoplasty and is delighted with the improvement she has achieved. In addition, the scar revision has produced a measurable improvement”. Mr Edwards did not feel that any further surgery would be required.
Mr Ronald Baker, a specialist in otorhinolaryngology, saw the plaintiff on 7 June 2001. Her main symptom for review by Mr Baker was that of vertigo or faintness or light-headedness. (The plaintiff did not mention these symptoms in her evidence at trial.) The plaintiff had been referred to Mr Baker by Dr Moore. Mr Baker reported that his clinical diagnosis was that of benign positional vertigo. He recommended some treatment to the plaintiff. He telephoned her on 20 August 2001 and she reported that the treatment he had recommended had no effect, either beneficial or adverse. He ultimately wrote that “the general prognosis is good, these symptoms will eventually leave her and I am sure that she will have no residual disability from this cause”.
Professor Donald Howie, Clinical Director and Head of Department Orthopaedic and Trauma Service at the Royal Adelaide Hospital, wrote that the plaintiff was admitted to the Royal Adelaide Hospital on 19 July 2000 and was discharged on 31 July 2000. In a report dated 23 October 2000 Professor Howie described the plaintiff’s multiple physical injuries to her right femur, her nose and lower lip, both knees, right elbow, and left great toe. The plaintiff had also suffered a pneumothorax which progressed well with a drain. There was some lower lobe lung collapse but that seemed to be resolving with exercises. In that report Professor Howie wrote that further treatment for the plaintiff may be removal of the nail from the femur and possibly corrective surgery to her nose. He wrote that “the prognosis is good although she will have some disability. It is too early to make a definitive assessment of this”.
Mr Richard Pope, orthopaedic surgeon, removed the right femoral nail and locking screws from the plaintiff’s right leg on 16 October 2001. By late that some month the plaintiff’s wounds were well healed. Mr Pope reviewed her on 16 May 2002. He reported that the plaintiff:
… stated she is currently working performing normal duties as a dental nurse. She has returned to most activities including playing tennis after removal of the femoral nail. She continues to have an ache in the left (later corrected to right) hip region with an increase in her activity level. She also experiences bilateral knee pain and crepitus particularly on kneeling and trying to run. She takes no regular analgesics. She finds it very difficult to kneel due to pain in both knees.
Mr Pope’s assessment was that the plaintiff had “a permanent residual impairment of function of her right lower limb of 15% on the basis of patellofemoral crepitus and reduced level function of her right leg secondary to her knee injury and femoral injury”. She also had “a permanent residual impairment of function of her left lower limb of 10% on the basis of on-going patellofemoral crepitus secondary to her knee chondral injury”. Mr Pope expressed the opinion that in the longer term the plaintiff may require a knee arthroscopy. She had an increased likelihood of having arthritis in her right hip. Mr Pope had not seen the plaintiff subsequent to 6 May 2002.
In a later report of 27 June 2003 Mr Pope wrote that the plaintiff may require bilateral knee arthroscopies. He wrote that it was unlikely that the plaintiff would require surgical treatment for her right hip injury. He set out costs relating to arthroscopies.
In his oral evidence Mr Pope was referred to his report of 27 June 2003 in which he wrote that “the likely treatment that (the plaintiff) will require will involve a knee arthroscopy. She may require bilateral knee arthroscopies.” He was asked if that was to occur, was he able to say when it was likely to happen. He said he would say “in five to ten years”. He couldn’t judge whether further surgery was required until the first arthroscopy had actually been done. He said that another operation was a possibility. He said that he thought it was reasonable that the plaintiff was not able to return to work where she is standing the whole time. He thought full-time work would be difficult for her.
In cross-examination Mr Pope said that when he last saw the plaintiff on 5 July 2002 she had a full range of movement of the right hip and of the knees. He was questioned as to the percentage chances of an arthroscopy. He said there was an 80% chance it would probably be required of the right knee. He said there was an 80% chance of the plaintiff needing bilateral arthroscopies.
Dr Pope said that it was hard to be specific about the level of part-time work with which he anticipated the plaintiff would be able to cope. He said he could not give a specific answer to that. However, he said that “two days a week or two and a half days a week, that sort of thing, would seem reasonable”. He agreed that somewhere between two or three days a week would be reasonable.
The other medical evidence called on behalf of the plaintiff was from psychiatrist Dr Marty Ewer. The plaintiff was referred to Dr Ewer by her solicitor for medico-legal purposes. He first saw her on 19 July 2001. He had been asked to provide his opinion on the nature and extent of any illnesses suffered by the plaintiff pertaining to his specialty.
In a report dated 20 July 2001 Dr Ewer set out a detailed and extensive history given to him by the plaintiff. Dr Ewer reported that the plaintiff
… gave her history in an open and straightforward manner. I thought she was a reliable historian. Her mood was a little anxious and agitated. There was no evidence of thought disorder or of perceptual abnormality. She was attentive and her memory and concentration seemed satisfactory. She efficiently dealt with the complexities of the interview.
Dr Ewer expressed the opinion that the plaintiff suffered a psychiatric disorder. She fulfilled the DSM-IV diagnostic criteria for the axis-1 psychiatric diagnosis of a Chronic Adjustments Disorder with Depressed and Anxious Mood. The essential features of that condition are clinically significant psychological symptoms which are triggered by an identifiable stressor. Dr Ewer recommenced that certain tests be performed and that the plaintiff receive further psychological counselling for her adjustment disorder. He wrote that that could be conducted either by a psychologist or a psychiatrist. He made other recommendations, including that the plaintiff be educated regarding an adjustment disorder and that she undergo a further course of cognitive behaviour therapy and be taught relaxation techniques. He recommended that a further six to eight sessions were necessary. He recommended a trial of anti-depressant medication.
Dr Ewer wrote further in July 2001 that the plaintiff was then able to work and that he believed she had a good prognosis. He wrote:
I believe she will make a full recovery from her Adjustment Disorder and I would expect this to occur in the next six months. I would not expect any permanent disability, however if she is still experiencing difficulties in six months time I would recommend that I review her.
Dr Ewer saw the plaintiff again on 17 March 2004, nearly three years later. At that time she told Dr Ewer that she continued to suffer from depression and anxiety throughout 2002. She told him that she was troubled by right-sided leg pain throughout that year. She told him that in early 2003 she and her husband and children moved into a new house at Gawler. She started working nearby as a Dental Nurse three days per week. She was not able to cope with any more hours due to pain, lethargy and depression. She consulted with a psychologist on a few occasions because of her depression and anxiety.
Dr Ewer was told by the plaintiff that she blamed herself for her father’s death early in 2003. She told him that she had seen Mr Harris on three occasions after the death of her father. She said that she continued to take the anti-depressant, Aropax.
Dr Ewer reported in March 2004 that he considered that the plaintiff was more depressed in March 2004 and that she then fulfilled the DSM-IV diagnostic criteria for the axis-1, psychiatric diagnosis of Major Depressive Disorder. Dr Ewer said that he:
… was particularly struck by the pervasive disturbance of her mood as well as by the early morning wakening, the significant weight gain and lethargy. I was also struck by her negativity and her impaired memory and concentration as well as her low self-esteem. She was preoccupied with feelings of guilt and self-reproach.
Dr Ewer strongly recommended that the plaintiff undergo further psychiatric treatment. In particular he recommended six to twelve sessions of cognitive behaviour therapy and relaxation training conducted by her treating psychologist. He also suggested that she be referred to a psychiatrist for review of her pharmacotherapy. He recommended increasing her dose of Aropax. If she was no better in two weeks he recommended swapping to a different antidepressant.
Dr Ewer wrote these things in a report dated 23 March 2004. He also wrote that he believed that the plaintiff was then partially incapacitated for work because of her Major Depressive Disorder. He believed she was then fit to work 20-25 hours per week, taking into account only that disorder.
Dr Ewer wrote that he was still of the view that the plaintiff had a good prognosis and that he expected a full recovery with appropriate treatment.
Dr Ewer wrote that in a later report dated 3 June 2004 he recommended that the plaintiff be referred to a psychiatrist for cognitive behaviour therapy and management of her pharmacotherapy. He estimated that six sessions would be necessary.
In his oral evidence at trial Dr Ewer agreed that he thought the plaintiff had got worse in psychiatric terms between July 2001 and March 2004. He said that it was very hard to say whether or not the plaintiff’s psychiatric condition would resolve completely because she had not had the treatment he had recommended. He said it “would be ideal to see how she responded to vigorous treatment over a period of six months, and then I’d be in a better position to say whether there was a good chance of resolving or not”. He said it was possible that she may not improve at all, and it was a possibility that she may have a low-grade depression for life even if she did get some response. It is also a possibility that she may need to remain on antidepressants for an extended period of time. He said that it is possible that chronic pain may be a perpetuating factor to a continuing psychological reaction in her. He said that because of the plaintiff’s prolonged episode of depression she will be predisposed to further episodes of major depression in the future. Treatment of those will depend on how early those episodes are picked up.
In cross-examination Dr Ewer agreed that because the plaintiff’s memory and concentration seemed satisfactory in July 2001 and was impaired in March 2004 it was likely that that was a consequence of her depression.
Dr Ewer said that his view generally was that he had a reasonably optimistic prognosis for the plaintiff if she gets appropriate treatment. He thought that there were a number of factors which would suggest a good outcome. His assessment in March 2004 was that the chances of recovery for her were good and that, provided she responds to psychiatric treatment, that should assist her in coping with her physical disabilities. He said that depression in a person who has also suffered orthopaedic injuries can amplify that person’s perception of that person’s pain experience. He said that the perception of pain in depressed people was greater or worse. If there was improvement in the plaintiff’s mental state he would expect that there would be improvement in her energy levels, a reduction in her lethargy, an improvement in her motivation, in her self confidence, her sleep patterns, and may well assist with the management of her weight problem. Her weight problem could possible even be a side-effect of the treatment for depression. He said that Aropax is recognised for causing weight gain.
Dr Ewer was asked to express an opinion as to whether, within the bounds of his specialty, the plaintiff would have the capacity to cope with the work duties of a dental assistant set out in Exhibit D15 if her mental state improved as anticipated by him. He said that his view was that she would. He qualified that by saying he couldn’t comment upon her orthopaedic injuries but his view was that, if her mental state improved and her energy improved and she was more motivated and less irritable and less depressed, she would cope with those particular duties more easily.
Dr Ewer said that his impression was that the plaintiff was determined and resourceful, that pre-morbidly she was of a robust personality, and that her husband was very supportive. He said that in general terms they are good prognostic indicators so far as her prospects of responding to appropriate psychiatric treatment are concerned.
Dr Ewer said that the plaintiff had reported other stressors which had distressed her since the accident. One was the death of her father in early 2003. He couldn’t recall the plaintiff mentioning to him the death of a friend in July 2002. Dr Ewer would not say that he thought the plaintiff had dealt entirely with the death of her father but she was dealing with it.
Dr Ewer said that certain matters reflected the plaintiff’s determination to try and get on with her life and “deal with this as best she can”. He felt that was a positive indicator so far as the future is concerned. He also saw an ability in the plaintiff to laugh and to have a sense of humour as a positive sign. The fact that there was some reactivity in that way was a positive, encouraging sign.
Dr Ewer was asked about the need for the plaintiff to have continuing antidepressant medication into the future. He replied that as he had already mentioned he was optimistic that with vigorous treatment the plaintiff would improve. He thought that possibly twelve to eighteen months would be sufficient for her to be on antidepressants before weaning her off them. If there was an improvement at that stage, hopefully that improvement would be maintained whilst off antidepressants. If not, she would have to remain on them. Another attempt would be made to wean her off them after another six to twelve months.
Dr Ewer said that six months after the commencement of treatment one would have some idea of whether she was going to improve. However, it would probably require twelve months of treatment.
Counsel for the defendant called two witnesses.
Dr Nicholas Burke is an occupational physician who saw the plaintiff on 8 April 2003 and 5 May 2004. In a report after his first assessment of the plaintiff Dr Burke referred to her major concerns as described to him. They were her right leg, her right and left knees, her ongoing psychological problems, and her experiences of intermittent vertigo. The plaintiff had told Dr Burke of specific aggravating factors, including squatting and kneeling. Bending and lifting were not major difficulties. She had reported walking three to four times per week for approximately 30 minutes although she had experienced difficulty associated with running. Standing and sitting were not major concerns. She reported no major restrictions on her activities of daily living. At home she was able to perform all her activities. She did not do any gardening or lawn mowing. The plaintiff reported to Dr Burke that the tennis season had recently finished and she stated that when she played tennis she would experience significant pain and tiredness in both her right and left knees. In her spare time she did her housework. She may visit friends or have friends visit her. She told Dr Burke that the family had recently moved and were looking for a place to buy in the area to which they had moved. She had indicated that through the sporting activities of the children “they will get back into normal social activities”.
In his summary and assessment Dr Burke wrote that with respect to the plaintiff’s knees, the major problem relates to pain associated with kneeling and squatting. He wrote that at some stage it was probable that she would require further treatment in her right and left knees. That would probably require an initial MRI scan and subsequent arthroscopy. He wrote it was improbable that she would ever require any more definitive treatment than that.
With regard to the plaintiff’s right hip, at the time of his assessment there was no significant impairment. There was full range of movement. He wrote that objectively the prospects of the development of arthritis in her right hip were not high. The probability of her requiring or needing definitive surgical treatment in her right hip was low.
With regard to psychological treatment, Dr Burke wrote that it was probable that the plaintiff would require ongoing treatment with antidepressants, at least for the next two years. She may require intermittent psychological treatment.
When asked for an assessment of permanent impairment Dr Burke wrote that in his opinion the plaintiff’s left patellofemoral crepitus would attract a lower extremity impairment of 10% and her right patellofemoral crepitus and the sequelae of her fractured femur would equate to a 15% lower extremity impairment. He wrote that the total whole person impairment for the plaintiff’s legs would accord to 10%.

Dr Burke’s opinion was that the overall level of impairment contributed by the plaintiff’s psychological difficulties was not great, and that in his opinion (as a non‑psychiatrist) the whole person impairment would accord to 5%.
Dr Burke wrote that the plaintiff had indicated to him that she chose to work 32½ hours per fortnight rather than 37½ hours per fortnight. In his opinion she was quite capable of working 37½ hours per fortnight and the shorter hours that she was then currently working was not a reflection of consequences from the accident.
At Dr Burke’s second assessment of the plaintiff on 5 May 2004 he was told by her that she was then working 45 hours a fortnight. She reported that her principal difficulty was her psychological symptoms relating to self-esteem, reluctance to participate in social activities, poor sleep, lethargy and lack of motivation. The plaintiff told Dr Burke that she felt quite fatigued and suffered significant pain in her right hip and right side when she worked two days in succession.
The plaintiff told Dr Burke that her major symptoms in regard to her musculoskeletal conditions related to her right hip and both knees. She had not had any further treatment since April 2003. She told Dr Burke that she had consulted with Dr Ewer on 17 March 2004 but she had been unable to pursue the recommended treatment. The plaintiff described her other symptoms and restrictions to Dr Burke.
The plaintiff told Dr Burke that she had been involved in umpiring netball seven or eight games last year, and that she hoped to be engaged in umpiring again in 2004. Her other goal was to get into coaching netball although she had not actively pursued that. She reported that she was motivated to continue physical activity in the future.
In his summary and assessment Dr Burke wrote that it was probable that the plaintiff’s psychological state was contributing to her ongoing musculoskeletal difficulties. Her lack of motivation appeared to be affecting her ability to improve her level of fitness and conditioning.
Dr Burke wrote that, considering her ongoing psychological and physical conditions, the plaintiff’s tolerance for work would be between 45 and 50 hours work a fortnight. His opinion was that she would have significant symptoms if she attempted to extend her hours beyond that level. With ongoing and successful psychological treatment Dr Burke expected improvement in her ongoing symptoms and disability with a resultant increase in working tolerance.
Dr Burke’s opinions as to percentage impairment to the plaintiff’s legs were the same as at his first assessment.
Dr Burke wrote that there was a probable contribution from the plaintiff’s psychological condition to her working tolerance. That working tolerance could be increased with improvement in her psychological state. Any improvement in her physical condition and level of fitness would also improve her working tolerance. However, Dr Burke considered that she would be unlikely to return to full-time unrestricted duties as a dental nurse. His assessment of the most probable maximum working tolerance, assuming an improvement in her psychological and physical state, would be around 30 hours per week.
In his oral evidence Dr Burke confirmed his opinion of the plaintiff’s capacity to work 45-50 hours a fortnight after looking at Exhibit D15, the plaintiff’s job specification. Dr Burke said that the principal area where improvement in the plaintiff’s condition may lead to an increase in working hours was the psychological area. He said that there is a very strong link between depressive symptoms and an individual’s disability. If the plaintiff’s depressive symptoms were alleviated or improved then she could have the capacity to increase her level of work.
In cross-examination Dr Burke said that if the plaintiff’s depressive symptoms did not improve then his view of her capacity to work would remain as it was at trial.
It was put to Dr Burke that living with and experiencing chronic pain on a daily basis could itself be productive of depressive symptoms. He agreed it could be, but he thought that in the plaintiff’s case there were other reasons that were causing her depression. They were treatable, and treatment could result in mitigation or amelioration of her symptoms. He said that he believed a profound cause of the plaintiff’s depressive symptoms were the circumstances in which she has been placed. With treatment and improvement, that could break the cycle such that she could be motivated to improve her fitness and her conditioning. As a consequence her overall well being would be improved such that she would be able to at least maintain her current duties and possibly increase them without her current level of symptomatology. Dr Burke said that he was not saying that if the plaintiff’s depressive symptoms were treated then her pain will disappear. What he was saying was that there would be an improvement in her ability to cope, and thus an improvement in her ability to maintain her current hours. Her physical impairment won’t change, but there can be a change in her disability.
Ms Anne Morgan is an occupational therapist. She assessed the plaintiff on 13 March 2003 and 29 April 2004. She prepared reports after both assessments. The reports are very detailed.
Ms Morgan wrote in her report following the first assessment that the plaintiff had the potential for significantly improved vocational and domestic capacity if certain interventions were undertaken by her. They were strongly recommended by Ms Morgan and included a physical strengthening and fitness program, weight reduction and anxiety reduction.
Ms Morgan reported after the second assessment that the plaintiff’s abilities were largely unchanged from those when she was previously assessed by her. She reported that the plaintiff was, in April 2004, managing three days a week at work as a dental hygienist, which was similar to her pre-accident work hours. The main factors limiting her ability to increase her work hours further appeared to be the plaintiff’s hip and knee pain and her general deconditioning and fatigue. Ms Morgan wrote that these factors may be heightened by the plaintiff’s on-going psychological issues. Ms Morgan expressed the opinion that she expected the plaintiff’s work capacity to improve with increased fitness, strength and reduced weight, and with further resolution of her psychological issues. Ms Morgan wrote that the plaintiff would be strongly advised to undertake regular activity/exercises to improve her general fitness and endurance. This could take the form of walking, gym and swimming, etc. Ms Morgan said that the plaintiff may find her knees less painful if she could lose weight and this could also assist in reducing fatigue levels. Based on Ms Morgan’s second assessment there was a need for ongoing psychological assistance.
In her oral evidence Ms Morgan said that in a self-rated questionnaire the plaintiff had indicated that at the time of Ms Morgan’s initial assessment it was anxiety and depressive factors that were most significantly affecting her life. It was Ms Morgan’s view at that time that the plaintiff’s weight gain and lack of fitness were contributing to her general level of capacity to a significant extent both at work and outside of work. She believed that those two matters could be addressed by the plaintiff in the future. She said if these matters were addressed they would have a positive impact on the plaintiff’s capacity and ability to cope generally.
Ms Morgan said that the duties in the plaintiff’s job description Exhibit D15 would be categorised as a light category job. At the time of her most recent assessment of the plaintiff’s physical capacity Ms Morgan’s opinion was that the plaintiff had an ability to perform the duties required of her as a dental nurse. She thought that three days a week was a reasonable level of activity based upon what the plaintiff was able to achieve during Ms Morgan’s assessment of her.
Ms Morgan said that in her view it was reasonable that the plaintiff would require three hours a month for domestic assistance. As to gardening assistance she put a “general figure” of half an hour a week. She explained it had to be a general figure because she had not seen the plaintiff’s particular garden and therefore could not be more specific than that.
In cross-examination Ms Morgan explained that the activities she considered the plaintiff to have the physical capacity to undertake in limited amounts meant that she would expect her to need to pace herself and to space those activities over a week rather than perhaps doing three hours of cleaning all at once in the same morning. She agreed that that assumed that the plaintiff’s life enabled her to pace herself.
Ms Morgan said that she had not recorded in her notes that she had been told that the plaintiff was finding it a real struggle to work three days a week. She had recorded that the plaintiff felt that she was coping with the extra third day that she had worked in the three months before her last assessment of the plaintiff on 29 April 2004.
Ms Morgan explained how she envisaged the plaintiff would be able to lose weight and increase her general fitness in a way that was consistent with the plaintiff’s physical limitations. She spoke of hydrotherapy and non-weight bearing exercises in a gym. She said that she envisaged at least a six to eight week program of hydrotherapy to start with before some significant benefits could be seen. She envisaged a gym program at least twice a week until she had been able to improve to a certain level, and then she may be able to maintain improvements by a fitness regime at home, or walking. Ms Morgan said that she had discussed with the plaintiff the alternatives that may exist. She knew that she was not prepared to wear bathers.
Ms Morgan was not moved during cross-examination to change her assessment of what hours per week the plaintiff may need assistance for her domestic duties. She agreed that she had not assessed the plaintiff’s house.
Finally, Ms Morgan said that, whilst the plaintiff had reported to her that her ability to do things had decreased and that her condition had worsened generally between her first and second assessment, Ms Morgan’s objective findings in terms of what she could do were fairly similar. “In terms of the actual physical outcome of what I measured, the results were pretty similar”.
Findings and Conclusions
As a result of her accident on 19 July 2000 the plaintiff suffered quite severe physical injuries. I have set out her evidence and the medical evidence regarding these injuries earlier in these reasons. While she has recovered from a number of those injuries she has been left with permanent disabilities particularly in her lower limbs, the right side being the worst. She also bears scars from the accident and from the various operations she has had. Some of that scarring will be permanent. Some of it does not worry her as much whilst other scarring continues to cause her problems. These were more her perception of certain scars which she said restricted her from participating in certain activities that would improve her fitness, her conditioning and her wellbeing.
The plaintiff’s evidence and the medical evidence as to her physical injuries was not really in issue at trial. The percentage disabilities that the doctors ascribed to those injuries are not in themselves very significant ones, although I am satisfied that the plaintiff’s physical injuries have caused and will continue to cause her pain and have and will continue to restrict her daily activities both at work and socially.
I am satisfied and find that the plaintiff’s physical injuries have affected her enjoyment of her work and her social and family activities in a significant way and that they will, with the qualifications to which I refer later, continue to do so into the future. Before the accident she was a very active person in her social and family life. She has made the best of her physical injuries in so far as she has been able to engage in some limited sporting activities and has been involved in the activities of her family. I am satisfied, however, that her enjoyment of these activities has been and will continue to be affected adversely.
In addition to her physical injuries the plaintiff has suffered significant psychiatric, psychological, and emotional problems. These became so significant that on 17 March 2004 Dr Ewer diagnosed her as having a Major Depressive Disorder. He was particularly struck by the pervasive disturbance of the plaintiff’s mood and by her negativity, impaired memory and concentration, and her low self-esteem.
The plaintiff’s mental health was noticed first by her general practitioner Dr Moore. That doctor arranged for the plaintiff to see a psychologist in October 2000 and that psychologist sought to address those issues at that time. In January 2001 Dr Moore believed that the plaintiff’s prognosis was uncertain with regard to the mental health issues facing her. She hoped that with appropriate treatment she would fully recover.
The psychologist Mr Harris thought in March 2001 that after a course of treatment with him the plaintiff had progressed. She was feeling less angry and her guilt feelings were being resolved. Her main feeling then was one of frustration which was worse when she was tired. Mr Harris reported that the plaintiff’s scores on the anxiety and stress sub-scales were found to lie within normal limits. She was still exhibiting a mild level of depression. Mr Harris thought then that her prognosis was good and expected that her depressive mood would dissipate and she would be relieved of her symptoms.
Mr Harris reported again after seven further consultations with the plaintiff between April 2002 and October 2002. He thought then that her psychological recovery would be as complete as could be expected within two or three more treatment sessions.
The plaintiff’s mental health issues continued to be a problem over the next several years before trial. Dr Ewer saw a deterioration in her symptoms between the time when he first saw her on 19 July 2001 and when he next saw her on 17 March 2004. Dr Ewer had recommended in July 2001 that he should review the plaintiff if she was still experiencing difficulties six months after he first saw her on 19 July 2001. He next saw her on 17 March 2004, nearly three years later. Despite noting a deterioration Dr Ewer’s view in March 2004 was that the plaintiff had a good prognosis. He expected a full recovery with appropriate treatment. He recommended she be referred to a psychiatrist for cognitive behaviour therapy and management of her pharmacotherapy. He estimated that six sessions would be necessary. Dr Ewer said that the plaintiff’s impaired memory and concentration was likely to be as a consequence of the depression he diagnosed.
Dr Ewer’s reasonably optimistic prognosis for the plaintiff, provided she gets appropriate treatment, was based on a number of factors. He said that his impression was that the plaintiff was determined and resourceful, that pre- morbidly she had a robust personality, and that her husband was very supportive of her. He said that they were good prognostic indicators. He said that depression in a person who has also suffered orthopaedic injuries can amplify that person’s perception of their pain experience. He said that if the plaintiff responds to psychiatric treatment that should assist her in coping with her physical disabilities. If there was an improvement in her mental state he would expect that there would be improvement in her energy levels, a reduction in her lethargy, an improvement in her motivation, her self-confidence and her sleep patterns, and may well assist with the management of her weight problems.
Dr Burke expressed similar views. He said that there were reasons that were causing the plaintiff’s depression and that those reasons were treatable. Treatment could result in mitigation or amelioration of her symptoms. Dr Burke considered that the plaintiff could be motivated to improve her fitness and conditioning with treatment and improve her symptoms. As a consequence her overall well-being would be improved such that she would be able to at least maintain her current work duties, and possibly increase them without her current level of symptomatology. He said there would be an improvement in her ability to cope and her ability to maintain her current working hours. He said that her physical impairment would not change, but there can be a change in her disability.
I was impressed with the evidence of Dr Ewer and Dr Burke which I have just set out. What they said about their perception of the plaintiff accords with the perceptions I formed during the course of the plaintiff’s evidence at trial. I am satisfied that the plaintiff has been, and will continue to be, what she described as a “pretty tough cookie”. She struck me as particularly resourceful person and one who is committed to doing as much as she can, within her limitations, to contribute to the resources of the family and to her three children.
I am not able to find why it is that the plaintiff has not had the treatment she obviously has needed to deal with the symptoms associated with her developing depressive disorder. I am satisfied and find that her feelings of guilt and responsibility regarding the accident have been very significant issues for her and have impacted upon her inability to respond to the rather sporadic and not very intensive psychological treatment she has received. I consider that the reasons both Dr Ewer and Dr Burke expressed for being optimistic regarding the future are convincing. I am satisfied and find that the plaintiff will have the treatment recommended by Dr Ewer and that the probabilities are that she will ultimately respond to that treatment and that the symptoms relating to her mental condition and state (including her impaired memory and concentration) will largely, if not wholly, resolve. I am satisfied and find that there may possibly be some relapses in the future and that I should make some allowance for the possibility of psychiatric treatment and medication in the more distant future.
I am also satisfied and find that as the plaintiff’s emotional and mental problems dissipate her feelings about herself will improve and that she will be prepared to undertake the limited exercise and hydrotherapy regime referred to by Ms Morgan during her evidence. I find that her current unwillingness to wear bathers, for example, will change and that with that change she will undertake activities which will improve her general fitness and conditioning and her ability to lose weight.
I am also satisfied and find that upon the resolution or amelioration of the plaintiff’s symptoms that relate to her emotional state and mental condition she will better be able to cope and deal with the symptoms of pain and restriction in activity which are associated with her physical injuries. I will reflect that in the award for damages.
At the time of her accident the plaintiff was working five days a fortnight as a dental nurse/assistant at Maitland. Her evidence was that before the accident she had planned to work full-time as a dental assistant from the commencement of the year 2002. That was when her oldest child would start boarding school in Adelaide. She said that the plan was that she would work full-time until all her children had finished their secondary schooling. After that the family would have to reassess their position so far as any future educational plans for their children was concerned, and the plaintiff’s contribution to that through earnings. Subject to that the plaintiff planned that she would drop her work back to two days a week.
The plaintiff’s evidence as to what her plans for the future were when the family moved to Willaston at the beginning of 2003 was not quite as clear. That is understandable because by then the accident had occurred, her eldest son was at boarding school in Adelaide, and the two younger children were attending a private school in the Gawler area at which they may choose to complete their schooling.

There was a deal of evidence at trial as to the plaintiff’s working capacity at the time of trial. After the family had moved to the Gawler area the plaintiff was working three days a week. She said she was coping with working three days a week but that she was mentally exhausted by the end of the week. She said that she could do two days work each week “quite happily”. She said at one point of her evidence that at some time she would definitely stop work altogether, given the difficulties that she then had. She said that she would probably work “another good 10 years, but definitely not three days a week”. She said she would work three days a week until her children finished school and then she would cut back to two days a week “just to enjoy the little things and pay the house off and do that sort of thing”. She said she would definitely drop a day if she was successful in her damages claim. What that meant was not further explored in her evidence-in-chief.
I find that the plaintiff’s evidence to which I have just referred was given by her on the basis of a continuation of all the symptoms she had at the time she gave her evidence at trial. The findings I have made based upon the evidence of Dr Ewer and Dr Burke are such that I am not satisfied that the plaintiff’s evidence as to her intentions so far as her future employment is concerned is a reliable basis for my assessment of her damages. My findings as to the plaintiff’s future earning capacity appear below. I indicate here, however, that whilst I consider that the plaintiff’s future earning capacity is more significant than she predicted in her evidence that is at least partly due to a finding I make that the plaintiff is and will continue to be a resourceful person who will work through some of her physical injuries despite the pain and discomfort caused by them. That additional pain and discomfort is reflected in my award for the plaintiff’s non-economic losses.
Non-economic loss
For the plaintiff’s non-economic loss I assign the number 23 on the scale. The prescribed amount for an accident in the year 2000 is $1,580. The award for non-economic loss is $36,340.
Past economic loss
I accept the plaintiff’s evidence and find that she would have commenced full-time employment as a dental assistant at the beginning of the year 2002.
Part of Exhibit P10 is a report of Consulting Actuaries dated 3 June 2004 headed “Loss of Past Income”. That addresses what is said to be the plaintiff’s loss of past income using two different scenarios. Neither scenario is directly apposite here because neither is worked out on a basis that coincides with the plaintiff’s evidence and my finding about her evidence. Scenario 1 assumes that the plaintiff would have, but for the accident, worked 50% of full-time hours up to 31 December 2002 and 100% of full-time hours from 1 January 2003 to 30 June 2004. Scenario 2 is worked out on the basis of an assumption that, but for the accident, the plaintiff would have worked 100% of full-time hours up to 31 December 2002 and 100% of full-time hours from 1 January 2003 to 30 June 2004. My finding accords more with scenario 1 although I have found that the plaintiff would have worked 100% of full-time hours from 1 January 2002 to 30 June 2004, that is for an extra calendar year. The actuary’s calculation on scenario 1 is a net loss of income of $20,100. The exhibit shows that for the full financial year ending 30 June 2004 the plaintiff’s loss of gross salary was about $15,600. Using that figure I adjust the actuary’s loss of income of $20,100 and award the sum of $28,000 for the plaintiff’s past economic loss.
Future loss of earning capacity
Counsel for both parties submitted different calculations. The plaintiff’s counsel submitted a calculation based on the plaintiff working a two-day week and suffering a net weekly loss of $301 to age 60 years. Counsel for the defendant submitted a calculation based on the plaintiff working two days per week until her youngest child completed her secondary education at the end of the 2009 at the latest. He submitted that thereafter the plaintiff’s loss would be minimal because it was her evidence that she could work comfortably for two days a week and that her plan before the accident was to cut back her hours to two days per week after all her children had completed their schooling. He submitted further that some allowance should be made to reflect the favourable contingency that the plaintiff may work in excess of two days per week beyond 2009.
I am satisfied and find that but for the accident the plaintiff would have worked full-time as a dental assistant from the beginning of calendar year 2002. She would have continued to work full-time until her three children had completed their schooling. I find that that will probably occur at the end of 2009. Whilst there is, consistent with my findings that relate to the evidence of Dr Ewer and Dr Burke, the likelihood that the plaintiff’s mental condition will improve to such an extent that she will, with a consequential amelioration of the effects of her physical injuries, work more than 2 days per week up to the end of year 2009, I consider that it is not unreasonable that at least for the period between trial and the end of 2009 she reduce her working week to a period of two days per week and be compensated on that basis. I find that the plaintiff will work at least two days per week from trial until the end of year 2009.
It is not easy to predict what will happen after 2009. I am satisfied and find, however, that the plaintiff will probably choose to continue to work part-time whilst her children undertake tertiary education, if any of them does.
On the basis of these findings I consider that the general approach submitted on behalf of the defendant is the more logical and proper approach for me to adopt and that it better reflects the plaintiff’s evidence.
I start from a basis that the calculations indicate that the net weekly differential at the time of the trial between the plaintiff working full-time and her working two days per week is $272.75. My finding is that, but for the intervention of the accident, she would have worked full-time from trial to the end of the year 2009. A multiplier of $230 applied to such a loss would give a capital sum of $62,732.50. $272.75 multiplied by 52 weeks multiplied by 5 years gives a total of $70,915. The difference between these two totals is explicable by the 5% compound interest discount rate. If one was to assume that the plaintiff will work for between two and three days until the end of the year 2009 my rough calculation, on a net weekly loss of $225 for 52 weeks for 5½ years, produces a sum of $64,350. I have done this last calculation because I consider that there is a probability that the plaintiff will work more than two days a week until the end of 2009.
As to the period after the end of year 2009 I am satisfied and find that the plaintiff will not be precluded by any injuries she suffered as a result of the motor vehicle accident from working less than three days a week as a nurse assistant. I am satisfied and find that she probably will not wish to work any more than three days a week after the end of year 2009.
There are a number of contingencies which are relevant both to the period up to the end of 2009 and thereafter. There is the favourable contingency that the plaintiff will possibly be able to work three or even four days per week once the psychiatric and psychological treatment has had a favourable effect not only on her mental state but also on her ability to cope with her physical restrictions. There is the unfavourable contingency, improbable though I find it will be, that her psychiatric condition will not improve and she will continue to be restricted in her working capacity as she was at the time of trial.
Taking all these matters into account I consider that an appropriate allowance for future economic loss is $65,000.
Superannuation
The only evidence as to this matter is that part of Exhibit P10 being a letter dated 3 June 2004 headed “Superannuation”.
Based upon Exhibit P10 the present value of past loss of superannuation benefits based upon my assessment of her past economic loss is approximately $3,000. The present value of future losses of superannuation based upon my assessment of her future lost earning capacity is $6,000.
I award $9,000 under this head.
Special Damages
I award unpaid special damages in the sum of $3,853.16.
Future medical treatment
I allow the sum of $5,000 for the arthroscopies that are expected to be required on each of the plaintiff’s knees.
I allow the sum of $4,500 for future psychiatric and psychological treatment for the plaintiff. I consider that allowance to be at the higher end of the range of treatments about which Dr Ewer gave evidence. Included in that sum is some allowance for ongoing review and for the possibility of relapses in the future.
I allow the sum of $1,500 for future consultations and reviews by the plaintiff’s general practitioner.
For future medication I allow the sum of $750 for anti-depressant medication which allows two years of such medication and for medication after that time to allow for the possibility of any relapses. For other medication I work on the basis a weekly sum of $5 and a multiplier of $911. That gives a total of $4,555. I award $4,500 under this head. Included in this award is some allowance for sleeping medication.
The total award under this head of damage is $16,250.
Award for gratuitous services
The plaintiff gave evidence that during the first four to five weeks after the accident her husband did everything, including assisting her with personal hygiene, toileting, showering and dressing. She said that he performed much of the domestic activities during the first six months after the accident. At the time of trial the plaintiff was able to perform all her personal care tasks, cook, do the laundry, and wipe benches. She was able to perform ordinary household tasks, including cleaning and shopping. Her husband assists with the heavy vacuuming, mopping, cleaning the bathroom and performing the gardening. The plaintiff and her husband said that he did the gardening prior to the accident.
The evidence as to how much time Mr Hillebrand spent and spends doing these tasks at various times, including at the time of trial, was not clear.
Deriving assistance from the evidence of Ms Morgan, whose evidence impressed me and whose evidence I consider to be a proper basis for assessing both past and future domestic assistance, I award the sum of $7,500 for past assistance.
As to the future I rely on Ms Morgan’s estimate of domestic assistance. I start with the sum of $35 a week to cover domestic help, gardening assistance and home maintenance for the future. Using a multiplier of $911 I allow the sum of $27,500 under this head. That reflects the fact that the plaintiff’s husband did the gardening before the accident.
The total award under this head of damage is $35,000.
Interest
Interest would be awarded on past economic loss of $28,000 and on past gratuitous services of $7,500.
Using an interest rate of 5% I would have allowed a lump sum of $2,000 for interest.
However, the defendant paid the sum of $20,000 to the plaintiff on 6 February 2003. It was agreed that that was paid at the time the plaintiff was relocating from Maitland and the basis of it was her need to replace her motor vehicle.
In the circumstances I do not consider it appropriate to award any interest.
Total Award
I summarise my assessment of the plaintiff’s damages as follows:
Non-economic loss  $36,340.00
Past economic loss  $28,000.00
Future loss of earning capacity       $65,000.00
Superannuation  $ 9,000.00
Special Damages  $ 3,853.16
Future Medical Treatment               $16,250.00
Gratuitous Services  $35,000.00
Total  $193,443.16