Hoban v Mathieson

[2002] NSWCA 191

NEW SOUTH WALES COURT OF APPEAL

CITATION:           Hoban v Mathieson [2002]  NSWCA 191

FILE NUMBER(S):
40722/01

HEARING DATE(S):          30 April 2002

JUDGMENT DATE:            03/07/2002

PARTIES:
Laurel Jane Hoban
v
Gail Julia Mathieson

JUDGMENT OF:   Handley JA Ipp AJA    

LOWER COURT JURISDICTION:    District Court

LOWER COURT FILE NUMBER(S):              DC 6365/01

LOWER COURT JUDICIAL OFFICER:          Walmsley DCJ

COUNSEL:
Appellant - S G Campbell/C P Taylor
Respondent - R E Quickenden

SOLICITORS:
Appellant - Hunt & Hunt Newcastle
Respondent - Brazel Moore & Daly Gosford

CATCHWORDS:
MOTOR VEHICLE ACCIDENT - EXACERBATION OF EXISTING INJURY - PSYCHIATRIC ILLNESS

LEGISLATION CITED:
Supreme Court Act 1970

DECISION:
Appeal allowed.   Orders made

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

40722/01
DC 6365/01

HANDLEY JA
IPP AJA

Wednesday 3 July 2002

LAUREL JANE HOBAN  v  GAIL JULIA MATHIESON

MOTOR VEHICLE ACCIDENT – exacerbation of existing injury – PSYCHIATRIC ILLNESS

The plaintiff was involved in a motor vehicle accident where she sustained soft tissue whiplash injuries.  The plaintiff was in a depressive state before the accident and the trial Judge found that the accident had worsened this.  He awarded the plaintiff $155,500 in damages.
               The appellant challenged the trial Judge’s findings that the accident had worsened the plaintiff’s psychiatric condition, and his awards of economic and non-economic loss and future out-of-pocket expenses.

HELD:    The finding by the trial Judge that the accident worsened the plaintiff’s existing psychiatric condition was vitiated by errors of fact and was not supported by reliable evidence.  In addition the finding that the plaintiff was still seriously affected by the physical consequences of the accident on her neck and shoulders was not supported by the evidence.  Accordingly the awards for economic and non-economic loss and future out-of-pocket expenses should be reduced.  (No question of principle.)

ORDERS

(1)           Appeal allowed;

(2)Parties to bring in short minutes of orders before Handley JA at 9.30 am on Wednesday 10 July 2002 if the parties are unable to agree on the orders in the meantime.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

40722/01
DC 6365/01

HANDLEY JA
IPP AJA

Wednesday 3 July 2002

LAUREL JANE HOBAN  v  GAIL JULIA MATHIESON

Judgment

1. HANDLEY JA:  The respondent was injured in a motor vehicle accident on 5 July 1997 and brought proceedings in the District Court claiming damages for her injuries.  The accident involved a rear end collision of some force which caused damage to her vehicle of about $3,600.  Liability was admitted and on 12 September 2001 Walmsley DCJ assessed her damages at $155,500.  The defendant’s appeal challenges this award and seeks a re-assessment by this Court at a substantially reduced figure.  The Judge’s award was made up as follows:

Non-economic loss	$  51,000
Past out-of-pocket expenses	$    7,000
Future out-of-pocket expenses	$  17,500
Past economic loss	$  30,000
Future economic loss	$  50,000
Total:	$155,500

1. Counsel for the appellant challenged every component in this award other than that for past out-of-pocket expenses.

1. The plaintiff, who was almost 47 at the time of the accident, separated from her husband in 1990 and was divorced in 1992.  Their property settlement dispute was not resolved until September 1995.  She had discovered in 1988 that her husband had contracted a bigamous marriage in the Philippines, fathered a second family there, and had other extra-marital relationships.  She found the whole period between her discovery of the bigamous marriage and the settlement of the property dispute very stressful.

1. The plaintiff’s case at the trial was that she had been in reasonably good health before the accident.  Although she was not employed at the time, she had undergone extensive re-training with a view to re-entering the paid workforce after her son turned 16 in May 1998.  She had every incentive to re-enter the workforce at that time, because her supporting parent’s benefit would then cease.  She claimed that the accident had caused ongoing physical and psychiatric problems, which had prevented her, and would continue to prevent her, from re-entering the workforce.

1. The Judge found that the plaintiff had suffered soft tissue whiplash injuries which had caused chronic ongoing neck and shoulder pain.  He found however that her back and leg pains were not causally related to the accident. 

1. The plaintiff had been suffering from depression before the accident as a consequence of her marriage problems and her dose of anti-depressant medication had been doubled in March 1997.  The Judge found that the accident had probably worsened her psychiatric condition, but that by August 2000 the exacerbation due to the accident had diminished and it had continued to diminish thereafter.  He found that the exacerbation would have resolved within 2 years after the trial, partly because the plaintiff intended to have treatment of the kind recommended by Dr Morse in his report of 30 March 2000.

1. He concluded that but for the accident the plaintiff would probably have returned to the workforce by July 1999 and worked in secretarial duties for which she had been re-trained.  However for personality and domestic reasons unconnected with the accident, she would only have been able to work for about 50% of the time.  The accident and its consequences had prevented her from returning to work but within 4 years from the date of trial the physical effects of the accident on the plaintiff’s capacity for work would have ceased, although she would continue indefinitely to suffer some neck and shoulder pain as a result.

1. In view of his findings as to the plaintiff’s physical injuries, and the aggravation of her depressive condition, the Judge awarded a sum for her non-economic loss based on 29% of a most extreme case.  His award of $30,000 for past economic loss was based on the view that but for the injury she would have worked from 1 July 1999 for about half the time until the trial in September 2001 earning $500 per week.  He awarded $50,000 as a cushion for her future economic loss.

1. The Judge said that the plaintiff had been “a most unsatisfactory witness in many ways”.  She had been filmed in July, August, September and October 2000 which “showed her, over a number of hours, carrying out a number of different gardening activities, using gardening tools, bending and stooping, turning her head, crouching down, but in general rarely showing any apparent limitation of movement”.  I would add that she was shown using a mattock.  He continued:

   “The activities the film shows being performed by the plaintiff are in such marked contrast to the picture she painted to me and to some of those whose histories are recorded in tendered reports, that I have difficulty in accepting a great deal of her oral evidence unless supported by contemporaneous records”. 

2. The plaintiff’s daughter gave evidence but the Judge did not find her evidence helpful in determining the cause of the plaintiff’s depressive illness.  He continued:

   “I find that the plaintiff has exaggerated to me the severity of her symptoms and their effects on her capacity to do domestic work and to obtain employment, that that is not a deliberate exaggeration, but an unconscious exaggeration”.

3. The plaintiff said in her evidence-in-chief that she had ceased taking anti-depressant medication by March 1997 before her accident, but the Judge rejected this evidence because it was inconsistent with the clinical notes of Dr Spinks, her General Practitioner, which showed that her dose of anti-depressant medication had been doubled that month.

1. Mr Campbell, counsel for the appellant, challenged the Judge’s findings that the accident had worsened her psychiatric condition and had caused significant impairments to her neck and shoulders.  On that basis, and on other grounds, he said the awards for economic and non-economic loss and future out-of-pocket expenses could not be supported.

1. The plaintiff’s medical evidence, tendered in documentary form, had been prepared without the benefit of seeing the video films and since it was based on histories which were inconsistent with the video evidence, it was entitled to very little weight.

1. The plaintiff claimed in her evidence-in-chief that she had an unremitting problem of depression dating from the accident, and the report of the psychiatrist, Dr Morse, of 30 March 2000, who saw her at the request of her solicitors, was based on a history to that effect.   He noted that she had “never suffered from or [been] treated for emotional or mental disorder” and “apart from her mother’s death she described no other major crises or problems in her life” (16G, J).  He had the impression “of a woman who had been markedly affected by what’s happened and suffering a definite agitated depressed state” (16V).  He again noted that there was no previous history of any major emotional disturbance (17W), and considered that she was suffering from a major depressive illness which he thought was caused by the physical pain and disability following the accident and their effects on her life (17T, X). 

1. The true position was very different.  The solicitor acting for her in the contested property proceedings in the Family Court obtained a report from Dr McMurdo on 23 August 1994.  Dr McMurdo stated (190-1):

   “She also is an anxious person and has features of an Anxiety Disorder in that she has difficulty making decisions and feels she cannot cope and is constantly preoccupied with her worries.  This would make it very unlikely that she could cope with a job with any responsibility or which requires her to be decisive … Your client has an Anxiety Disorder with a Dependent Personality Disorder.  At this point of time she is not fit for employment full time.  It will be interesting to see how she copes with work experience two days a week as organised by Skillshare.  Presumably this will be a fairly protective environment and she would certainly need very gradual reintroduction to the workforce because of her lack of confidence.  She would have great difficulty coping with a job unless she had an understanding, supportive, and sympathetic employer who did not demand too much of her and was not too critical”.

2. In June 1995 she was referred by her solicitors to Mr George Salia, a consulting psychologist.  Mr Salia had the benefit of an 11-page typewritten statement from the plaintiff in which she recounted the history of her marriage, separation and divorce, and her current problems.  She said (182):

   “I am physically and mentally worn out!  I am highly stressed and it is now affecting my health … I … am constantly tired”.

3. She recorded that on 1 August 1994 during Semester II at Wyong TAFE, while she was studying for an Advanced Certificate in Office Administration (182):

   “I began shivering and crying in class – I can’t describe just how depressed I felt – I could not see any point to continuing.  What for?  I could never cope with the stress of teaching any more!”

4. She described her work experience with the Gosford Area Health Service (183):

   “… they did nurture me and they allowed me to basically choose the days of the week that I wanted to come in and made allowance for the fact that I was always late (although I stayed late to make up for it) - let’s face it what employer is going to mollycoddle an aged employee like that … With work experience I found I work at a much slower pace than I should.  I found I was very sensitive to criticism … I found I couldn’t cope with being asked to do two things at once”.

5. In his report of 15 June 1995 Mr Salia said that the plaintiff “is currently not fit for work.  Physically and intellectually she has the capacity to work … At this point of time however she is suffering from the effects of personal stress brought on by the divorce and ongoing legal issues and she cannot deal with other pressures (172). … [She] is not fit for part time work at present unless that work was highly structured and the hours coincided exactly with her personal needs.  It would be difficult to find such a job in this economic climate (173) … It is difficult to know how long these limitations will persist” (173).

1. He concluded that she was suffering an Adjustment Disorder with Anxiety and Depression (175) and that “Her disorder was chronic because of the time factor (now several years)” (174).

1. On 24 July 2001 Mr Salia gave a report to the solicitors acting for the plaintiff in the present proceedings.  He had not seen her professionally since June 1995 although he did have some phone calls from her between 1995 and 1998.  In July 2001 she telephoned him and asked if he could write a letter to explain what she had been through in past years (187).  Accordingly the opinions he expressed as to her condition after June 1995, and the effects of the accident, are of little weight especially as he too was told that by early 1997 the plaintiff was no longer on medication (19).

1. Dr Maxine Walden, a Consultant Psychiatrist, saw the patient on 6 July 2000 at the request of the defendant’s solicitors.  Her report is dated 11 July.  The history she received included the statements: “I have had pain every second of every day since 8 July 1997” (145).  “On the one hand she states she is incapable of doing any activities such as cleaning her house, cooking or washing.  On the other hand she states that she has worked as a volunteer at the local hospital one day per week until quite recently.  She made other comments about doing the gardening” (146).  She said she “started” on the anti-depressant Aurorix in August or September 1997 (146).  Dr Walden’s conclusions (151-2) were:

   “Her mental state examination today reveals histrionic behaviour, a markedly obsessional style of relating her symptoms and a pre-occupation with extravagant claims of pain.  I consider that Ms Mathieson has fixed on the motor vehicle accident as an acceptable reason for her not taking on an active work role.  Her claims of pain are bizarre and extravagant.  There are a number of inconsistencies in her history with regard to what activities she is actually able to undertake.  The possibility that her complaints are malingered needs to be considered.  Her mental state examination is not consistent with a Depressive Disorder, nor are her symptoms.  It is clear that Ms Mathieson currently has abnormal illness behaviour.  Whether this is feigned or a product of a less conscious effort which provides her with a socially acceptable reason for not functioning as one might expect, really depends on any corroborative evidence which may be available … At this point I am not convinced that her difficulties are actually caused by the motor vehicle accident.  Rather it appears that they are a convenient and socially acceptable reason for her poor functioning.  She had a pre-existing period of treatment with anti-depressants and appears to have made a poor adjustment after the break up of her marriage.  From a psychological point of view I think she is fit for work, should she choose to do so.  I am not convinced that her claims of injury and disability are consistent with the accident as described”.

2. Dr Walden gave further reports on 9 October and 20 December 2000 and on 19 April and 8 August 2001 in response to further information, including some of the surveillance videos, provided to her by the defendant’s solicitors.  She said that the videos of 30 and 31 August 2000 showed the plaintiff (155):

   “…  moving freely, moving her neck around, bending from the waist, carrying articles, gardening for a prolonged period including activities as digging a hole with a mattock, crouching on her haunches, kneeling, raking, bending from the waist and working in quite an organised fashion over a prolonged period on her garden.  This is not consistent with the level of disability she described at interview, either with regards to her physical symptoms or psychological symptoms.  Generally those who are suffering from Agitated Depression, as Dr Morse has diagnosed, would have difficulty working in such a sustained or organised fashion over a prolonged period”.

3. She added (156) that “This supports my view that she is exaggerating her symptoms and the evidence suggests it is likely that this is on a conscious basis.  It does not appear to be credible that she is unaware of her capacity to do such tasks”.

1. In her report of 20 December she noted that the clinical notes of Dr Spinks, the plaintiff’s General Practitioner for 1992 and 1994, mentioned earlier shoulder injuries (157-8).  She continued (160):

   “Overall the notes [of Dr Spinks] suggest that Ms Mathieson had pre-existing problems with complaints of anxiety and depression.  This tends to confirm my initial opinion … that it appeared that the motor vehicle accident had become a convenient and socially acceptable reason for her poor functioning rather than an actual cause of it.  It should be noted that there are discrepancies in the history of what she complains of to various doctors.  There is an escalation in symptoms over time, which is not particularly consistent with the natural history of musculo-skeletal injuries”.

2. Dr Spinks’ clinical notes for 12 August 1992 state “injured ® shoulder by twisting six days ago” and records the result of his examination that day (27).  His notes for 21 August state “® shoulder pain exacerbated yesterday by carrying heavy books” and on 27 August her right shoulder is said to be improved (28).  On what appears to be 31 May 1994 the doctor has recorded “L rotator cuff tendonitis” (30).

1. Dr Spinks, in his report of 22 February 2000, provides a clean copy of his clinical notes recording the plaintiff’s attendances at his surgery after the accident.  He recorded on 29 June 1998 “whiplash injuries were still persisting as well as long standing Situational Depression and Anxiety” (11).  His opinion, as stated in that report, was (12):

   “Mrs Mathieson is now suffering from a chronic neck dysfunction, commonly known as whiplash.  This whiplash injury is directly related to her motor vehicle accident of 5 July 1997.  I expect the severity of symptoms Mrs Mathieson is experiencing at the moment may take up to 8 years to substantially settle.  I expect Mrs Mathieson may have intermittent neck problems for the rest of her life”.

2. It is significant, in my judgment, that although he has recorded her symptoms of depression and anxiety, and states that her whiplash symptoms were caused by the accident, he does not state that her symptoms of depression and anxiety have been caused or exacerbated by the accident.  It is apparent that he failed to detect any increase in her symptoms or complaints following the accident because if he had done so he could hardly have failed to report this to her solicitors.

1. The Judge, in accepting that the plaintiff had exaggerated her symptoms and their effects, said that he found the reports of Associate Professor Jones particularly helpful.  On 12 October 2000 the Professor reported that the plaintiff had no physical impairment “and her history is reminiscent of psychological reactions to perceptions of impairment, fatigue and somatization” (129).  He was later provided with the videos of 30 and 31 August and 1 September 2000.  He reported again on 5 December stating (135):

   “The substantial footage of the extensive activities of the person on the video does not accord with the situation presented by Ms Mathieson on 9 October 2000.  Her various claims of shortness of breath, anterior chest wall symptoms, loss of the sense of balance, and moving at a snail’s pace does not accord with the activities noted on the many hours of tape provided for my viewing.  It will be noted in the conclusion of my [earlier] report … that I could determine no physical impairment as at 9 October 2000.  The video confirms my contention.  It will be noted also that I regarded full time work as a possibility.  The credibility of the plaintiff would seem to be substantially in question on the basis of the information provided to this referee.  The information in the videos confirms my views and of my contention as to her independence in personal care, activities of daily living and vocational potential”.

1. The Judge seems to have treated the reports of Professor Jones of 12 October and 5 December as supporting his finding that, although the plaintiff had exaggerated her symptoms, this had been unconscious rather than deliberate on her part.  In particular he considered that Professor Jones’ statements in his report of 5 December supported his, the Judge’s, finding that the plaintiff’s exaggeration was unconscious.  The Judge, with respect, misunderstood the relevant reports.  In his first report of 12 October the Professor had merely said that “Her history is reminiscent of psychological reactions”.  This was a guarded statement as was only appropriate, because the Professor’s specialty was Rehabilitation Medicine not Psychiatry.  He said in his report of 5 December:

   “… in the conclusion of my [earlier] report [I said] that I could determine no physical impairment … the video confirms my contention … the credibility of the Plaintiff would seem to be substantially in question on the basis of the information provided to this referee.  The information in the videos confirms my views and of my contention as to her independence in personal care, activities of daily living and vocational potential”.

2. It is clear therefore that the Professor regarded the videos as confirming his views that the plaintiff had no physical impairment and was able to do full time work.  On this basis he thought that the credibility of the plaintiff was substantially in question.  The Professor nowhere said that the plaintiff’s exaggeration of her symptoms was unconscious, but instead suggested that they might be deliberate.

1. The Judge’s finding that the accident had exacerbated the plaintiff’s pre-existing psychological condition was not supported by reliable evidence.  Dr Morse’s opinion to this effect was worthless because it was based on a seriously incorrect history.  Dr Walden, with the benefit of an accurate history, expressed the contrary opinion and she had seen some of the video tapes.  Dr Spinks, the plaintiff’s General Practitioner, did not suggest that the accident had exacerbated the plaintiff’s psychological symptoms and he did not even report that her symptoms had increased after the accident.  The plaintiff’s evidence that this had occurred was of little or no weight in the light of the Judge’s findings as to her credit, including the finding that her evidence was affected by exaggeration.

1. The Judge said he had difficulty in accepting a great deal of her oral evidence unless it was supported by contemporaneous records.  However he then relied upon the contemporaneous records in Dr Spinks’ clinical notes for the period between August 1997 and February 2000 without appearing to recognise that these were little more than a record of the plaintiff’s complaints of pain and other symptoms.  If she exaggerated her symptoms and their consequences in her evidence, as the Judge found, there is no reason to suppose that she behaved differently with Dr Spinks. 

1. The contemporaneous records in the doctor’s clinical notes were incapable of corroborating the plaintiff’s evidence in Court.  They were not independent evidence because the plaintiff was the source of the relevant information recorded in them.  The only truly independent contemporaneous records are the video films which are inconsistent with the plaintiff’s evidence.

1. The last two clinical entries which refer to the plaintiff’s neck problems are those for 2 February and 21 August 2000.  The former was translated by Dr Spinks as follows:

   “Chronic pain and generalised fatigue were the subject of this consultation with the chronic pain directly related to the whiplash injury.  Physiotherapy had been ceased because she was unable to continue the payments, although she felt it had been helpful for her symptoms”.

2. The Judge read the entry for 21 August as stating: “Still needing physio for neck.  Zoloft also helping with muscle relaxation.  Feels she can function better with the pain”.  The evidence does not include any of Dr Spinks’ clinical notes after August 2000, but it was not suggested that she had recovered.  The plaintiff was the subject of video surveillance on 17 July, 30, 31 August and 1 September 2000.  These dates straddled the entry for 21 August.  Professor Jones and Dr Walden said, and the Judge found, that these films were quite inconsistent with the plaintiff’s complaints recorded in the entry for 21 August and indeed that for 2 February.

1. The Judge appeared to accept Professor Jones’ evidence, but only made use of one aspect of it, and then he misunderstood its true effect.  The Professor considered that the plaintiff had no physical impairment as at 9 October 2000.  If the Judge had fully accepted this part of the Professor’s evidence, he could not properly have found that her accident caused condition represented 29% of a most extreme case.

1. That assessment is contrary to the Judge’s findings as to the plaintiff’s credit, particularly his finding in the light of the video evidence that she had exaggerated the severity of her symptoms and their effects on her capacity.  What, one might ask, would the Judge have found, by way of the percentage of a worst possible case, if he had totally accepted her evidence?

1. He awarded $30,000 for past economic loss having found that the plaintiff would have worked half time after 1 July 1999 until the trial at a full time rate of $500 per week, and $50,000 for the future by way of cushion.  The latter assessment was presumably based on his findings that her psychiatric exacerbation would have ceased within 2 years, and her soft tissue injuries would have ceased to affect her ability to work or employability within 4 years.

1. The plaintiff’s own evidence does not support these assessments.  She had worked before and during her marriage until late in 1978 when she gave up full time work because she was expecting her first child.  During her marriage, she assisted her husband with typing and book work.  In 1980 she had one term part time teaching at Gosford TAFE.  She did some other part time work as a poll clerk at Federal, State and council elections and she helped with stocktaking at BBC Hardware stores at West Gosford, Erina and Tuggerah, being available on call.  “It was like once a year maybe” (Black 9).

1. After she separated from her husband in November 1990, she did 2 weeks of teaching at the Gosford TAFE in 1992 or 1993, and in May-June 1996 she did 3 weeks’ work as a relief typist/secretary at The Entrance-Long Jetty RSL Sub Branch.  Thus the position as at July 1997, the date of the accident, was that she had not had a permanent job since late 1978.  Apart from casual work on the odd day, she had worked full time for only 11 weeks during the 19 years since.

1. The plaintiff undertook extensive re-training at Skillshare Gosford and Wyong TAFE during 1991 and 1992.  This involved courses in computers, advanced typewriting and word processing.  In the Second Semester 1992 she began an advanced office administration course which takes 5 years part time.  In the Second Semester 1994, when she had only 3 subjects to complete, she broke down in class and cried and following this incident she gave up the course (Blue 182).  She then undertook office work experience with Aged Care at Gosford Hospital and completed 165 hours’ experience over 12 weeks (183).  However, when she prepared her typewritten statement for the Psychologist, Mr Salia, in June 1995, she was not optimistic about her employment prospects: (“Let’s face it, what employer is going to mollycoddle an aged employee like that” (Blue 183)).

1. Despite this re-training and work experience, the plaintiff was only able to obtain 5 weeks’ work before the accident consisting of 2 weeks’ relief teaching and 3 weeks as a relief typist/secretary.  That is, the plaintiff was only employed for 5 weeks during the 6 years and 8 months between her separation and the accident.

1. In May 1997 the plaintiff, who had applied for a full time position with ITP (Income Tax Professionals?) at Gosford, was interviewed by a Mr Botiga (or perhaps Boetiger) but she did not get the job.  Had she been successful, she would have been working 5 days a week from 9 to 5 during the busy taxation period from early July until October or November.

1. The plaintiff said she planned to return to full time work when her son turned 16 in May 1998 and work until she was 65.  However her own evidence makes it clear that she would have taken full time employment before the accident if it had been available to her.  She had 2 weeks of full time employment in 1992 or 1993, and 3 weeks’ full time work in 1996.  In May 1997 she had applied unsuccessfully for a temporary full time position which was expected to last 4-5 months.  Her modest employment record before the accident was not the result of a voluntary decision on her part to remain out of the full time workforce until her son turned 16.

1. A history of 5 weeks’ paid employment during the 6 years 8 months immediately before the accident, adopting for present purposes the weekly rate of $500 accepted by the Judge, does not begin to support an award of $30,000 for past economic loss and this award must be set aside.  I would propose to substitute an award of $5,000 for this period which in my opinion represents the very highest amount that could possibly be supported.

1. The same reasoning requires an equally drastic reduction in the Judge’s cushion of $50,000 for the future.  He thought that the psychiatric consequences of the accident would cease within two years and the physical consequences within 4 years.  On that basis the Judge’s award is equivalent to $12,500 a year for 4 years, ignoring for present purposes any discount for early receipt.  Again this amount bears no relationship to the realities of her employment history before the accident, either from 1978 or from 1990, and I would substitute an award of $10,000 which again in my view is the very highest that can possibly be supported.

1. The Judge’s assessment of the plaintiff’s non-economic loss at 29% of a most extreme case was based on his findings as to the physical and psychiatric effects of the accident.  I have concluded that his finding that the accident exacerbated her existing psychiatric condition was vitiated by errors of fact, and was not supported by reliable evidence.  I have also concluded that his finding that the plaintiff was still seriously affected by the physical consequences of the accident on her neck and shoulders by the time the video films were exposed cannot be supported either.  Accordingly the Judge’s assessment of the plaintiff’s non-economic loss must also be set aside.

1. In my judgment the Court is entitled to re-assess the plaintiff’s non-economic loss, although it has not seen or heard her give evidence.  It is entitled to do this on the basis of the video evidence, which was accepted by the Judge, and the absence of any corroboration of the plaintiff’s complaints of pain and disability after she was first filmed doing gardening on 17 July 2000.

1. Mr Campbell for the appellant asked this Court to re-assess if possible rather than order a new trial.  In my judgment the Court is entitled to do this on the basis that the plaintiff suffered the injury she claimed but had recovered by July 2000. 

1. The defendant may have been entitled to a new trial, at least on the issue of non-economic loss, if such an application had been pressed, but it was not. On the other hand, it seems to me that the plaintiff cannot resist a re-assessment which accepts the Judge’s findings until independent evidence to the contrary which was accepted by the Judge became available. This action was heard by a Judge sitting without a jury and accordingly s 75A(6) of the Supreme Court Act applies and not s 107.

1. On the basis indicated the plaintiff is entitled to compensation for her non-economic loss arising from her soft tissue whiplash injuries for a period of some 3 years after the accident.  She also has the benefit of the Judge’s findings that her ability to lead a normal life was significantly impaired for a continuous period of not less than 12 months.

1. In my judgment an award for non-economic loss limited to the plaintiff’s soft tissue injuries for a closed period of 3 years for a woman who was 47 at the date of the accident could not properly exceed 15% of a most extreme case, and I would make an award for non-economic loss on this basis.  The relevant amount appears to be $2,840.

1. The other component in dispute is the award for future out-of-pocket expenses.  The plaintiff’s claim under this head at the trial was $29,478.  The Judge allowed $17,500 for counselling of the type referred to by Dr Morse, physiotherapy, painkilling medication and a minimal sum for anti-depressants.  The plaintiff is not entitled to the cost of anti-depressant medication or the cost of the counselling recommended by Dr Morse because it was not established that the accident exacerbated her pre-existing psychiatric condition.  The remaining claims for painkilling medication and physiotherapy can only be modest in the light of my conclusion that the plaintiff had substantially recovered from her soft tissue injuries by the time she was first filmed in July 2000.  I would therefore award the sum of $2,000 under this head that was conceded by Mr Campbell for the appellant.

1. The following orders should be made:

(1)           Appeal allowed;

(2)Parties to bring in short minutes of orders before Handley JA at 9.30 am on Wednesday 10 July 2002 if the parties are unable to agree on the orders in the meantime.

1. IPP AJA:              I agree with Handley JA.
   ******

LAST UPDATED:               10/07/2002