Howard-Hill v James - [2018] ACTSC 249

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Howard-Hill v James
Citation:	[2018] ACTSC 249
Hearing Dates:	30 July – 3 August 2018
DecisionDate:	21 September 2018
Before:	Mossop J
Decision:	See [181]
Catchwords:	TORTS – NEGLIGENCE – Motor vehicle accident – assessment of damages – whether plaintiff’s migraine condition caused by motor vehicle accident – causation not established – turns on own facts TORTS – NEGLIGENCE – Contributory negligence – motor vehicle accident – plaintiff stops to avoid birds on road – contributory negligence not established
Legislation Cited:	Court Procedures Rules 2006 (ACT) Road Transport (Safety and Traffic Management) Regulation 2000 (ACT), s 6 Road Transport (Third Party Insurance) Act 2008 (ACT), s 151(4)
Cases Cited:	Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320
Parties:	Ruby Howard-Hill (Plaintiff) Jeffrey James (First Defendant) Insurance Australia Limited (Second Defendant)
Representation:	Counsel L Grey (Plaintiff) C Allan (First and Second Defendants)
Solicitors Maurice Blackburn Lawyers (Plaintiff) HWL Ebsworth Lawyers (First and Second Defendants)
File Number:	SC 295 of 2016

MOSSOP J:

Introduction

This is an assessment of damages following a car accident which occurred on 15 November 2012. The principal issues are whether the plaintiff’s migraine condition which has and continues to impede her capacity for work was caused by the accident and what would have been the plaintiff’s likely employment trajectory but for the accident. There is also an issue of contributory negligence.

A mass of expert reports and documentation were tendered. However, the principal issues the subject of attention at trial were:

(a)whether the plaintiff’s present significant migraine condition was caused by the accident; and
(b)whether the plaintiff was contributorily negligent.

Of these two, the first occupied the most time at the hearing.

The accident

The plaintiff was driving along Ginninderra Drive and was about to turn left into Coulter Drive towards the Belconnen Town Centre. She was about to enter the slip lane to turn left into Coulter Drive when she saw two galahs on the road and reduced her speed. The first defendant, who was driving a Ford Ranger, crashed into her from behind. The crash led to significant damage to the rear of plaintiff’s vehicle and relatively modest damage to the front of the first defendant’s vehicle. The plaintiff’s vehicle was ultimately written off.

The plaintiff before the accident

The significant issue in relation to the plaintiff’s condition before the accident relates to the extent of her mental health problems. The plaintiff contended that although she had significant issues with anxiety prior to the accident, she was on a generally improving trajectory in 2012 prior to the accident. On the other hand, the defendants contended that the medical history demonstrates a significant level of ongoing disability generally consistent with that which manifested after the accident.

The plaintiff was born in 1989. She completed her higher school certificate in 2006. She took a gap year after school and did volunteer work in Ecuador for three months in the second half of that year. She commenced studying law at the Australian National University (ANU) in 2008. In her first year she did four subjects in first semester and four subjects in second semester.

In August 2009 she commenced working as a research assistant to one of the faculty members in the ANU College of Law. She did three subjects in first semester and four subjects in second semester.

The plaintiff first saw Dr Christine Colson, a general practitioner at the ANU Health Service, in October 2009 following a panic attack. After that she consulted with a psychologist, Belinda Hollingsworth. She did four subjects in first semester 2010.

In June 2010 she attended Calvary Hospital Emergency Department suffering from a panic attack after an unpleasant exchange with her partner Tim. Her relationship with her then partner declined and in mid July 2010 there was a further incident with her partner that the plaintiff described as “very traumatic”.

After this she took leave from her university studies and went back to stay with her parents in Sydney. She did not go to university during the second semester of 2010. She had psychological counselling and treatment at Chatswood Community Mental Health in Sydney. She also saw a general practitioner who had seen her over many years when she lived in Sydney.

She returned to Canberra and resumed her studies at the beginning of 2011. She first saw Kylie Woodward, a counsellor at the ANU Counselling Service, on 7 February 2011. On 8 February 2011, she first saw Dr Melissa Bessell, another general practitioner at the ANU Health Service. As a result of seeing Ms Woodward and Dr Bessell she was referred to the Access and Inclusion unit at the ANU and a “disability services plan” was created by that unit to address the disabilities that she suffered as a result of anxiety and depression.

She had enrolled in three subjects at the beginning of the year, but dropped down to two. She did well in those subjects obtaining a distinction and high distinction.

Her mental health remained fragile. She suffered from a panic attack in September 2011 and the records of consultations with Dr Bessell show difficulties with mood swings, anxiety and stress associated with the pressure of study. She was prescribed medication to deal with her anxiety condition.

A summary of her position in November 2011 is provided by her application for special consideration, that provided:

Since July 2010 I have been suffering from depression and anxiety. It resulted in me having to take semester 2 in 2010 off from study. For 6 months I needed help with all day-to-day tasks. This year, returning to university has been very challenging. In first semester I managed to complete 2 subjects withdrawing from 1. This semester my symptoms have also adversely affected my ability to study. Specifically, I have experienced difficulty concentrating, an impaired memory, low mood, anxiety attacks and sleep disturbance (sleeping long hours and always tired). One of the things I have found most difficult is the impossibility to predict when a mood swing will occur making it very difficult to plan my time. The illness also impacts on my ability to keep on top of daily tasks which has a flow on effect for my studies. Some days I am completely paralysed by my anxiety such that I feel unable to leave my house. Other days I fall into a melancholic despair and cannot get out of bed. Between these extremes I do my utmost to maintain a façade of being a functioning person. Most notably, this is a very exhausting process which leaves me far less energy for my studies than I had prior to the onset of this illness.

She commenced seeing a psychiatrist, Dr Terje Kaasik, in November 2011. She continued to regularly consult Dr Bessell and Ms Woodward.

Despite these difficulties, in second semester she completed three subjects obtaining two high distinctions and a distinction.

In 2012 she saw the general practitioner less, reflecting that she was doing better that year. In May 2012 Dr Bessell recorded that she was told that the plaintiff “has been going well up until recently then crashed and burned”. She had stopped taking antidepressants and felt better as a result.

She completed six subjects in that year, obtaining four high distinctions and two distinctions.

She continued to see Ms Woodward. Shortly prior to the accident Ms Woodward’s notes record that the plaintiff was concerned about whether she could manage full-time work and expressed “serious doubts about a career in law”.

The accident occurred on 15 November 2012.

The plaintiff after the accident

It will be necessary to cover some aspects of the chronology relevant to questions of causation in much greater detail below. However, in summary, the circumstances of the plaintiff following the accident were as follows.

She continued at university and submitted her honours thesis in June 2013.

Between October and December 2013 she worked part-time at the Good Guys appliance store in Belconnen.

She also did casual work in various childcare centres.

As a result of her excellent marks during her degree, she was awarded the University Medal in Law in December 2013.

In February 2014 she commenced employment with the Australian Government Solicitor (AGS) as a graduate lawyer. She was also doing a Graduate Diploma in Legal Practice at the ANU at the same time. In mid 2014 she reduced her working hours to four days per week.

In September 2014 her relationship with her partner Michael ended. She moved out in into an apartment in O’Connor.

In October 2014 she was off work and admitted to The Canberra Hospital, and then spent a month in Calvary Hospital as a patient in the psychiatric ward.

In December 2014 she commenced a graduated return to work. In January 2015, her probation for her position with AGS was extended by a period of three months due to the significant periods of leave that she had taken.

[Redacted for legal reasons.]

In May 2015 she successfully completed the AGS Graduate Program. She commenced as a lawyer working four days per week. In September 2015 she was admitted to the Emergency Department of The Canberra Hospital. Shortly after, she was transferred to Calvary Hospital and spent seven weeks in hospital during which her sick leave credits were exhausted. She was readmitted to Calvary Hospital only three days after being discharged and remained there until December 2015.

In January 2016 she got a three-month transfer to another part of the Attorney‑General’s Department where she was in a non-billing role. In January 2016 she commenced a graduated return to work.

On 23 July 2016 she was admitted again to Calvary Hospital and remained there until 24 August 2016.

In early September 2016, she took an overdose and later that month was admitted to Calvary Hospital again. She remained there for a month.

In January 2017 she was transferred to another part of the Attorney-General’s Department and was working three days per week. She separated from her partner, Andrew, in early 2017.

At the conclusion of her temporary placement within the Attorney-General’s Department she was notified of the intention to terminate her employment on the grounds of inability to perform the duties because of physical or mental incapacity. She was formally terminated in August 2017.

She searched for further employment and in December 2017 she was offered a position as a legal officer at Safe Work Australia, a Commonwealth statutory authority, working three days a week. She was also permitted flexibility as to the days upon which she could work. She commenced this employment in January 2018. Because of the flexibility in relation to the days upon which she worked, she was able to maintain her employment notwithstanding her migraine condition. From mid 2016 up to the hearing she continued suffering migraines at a rate of nine to 15 days per month.

Contributory negligence

The defendants pleaded that the damage suffered by the plaintiff was caused or contributed to by her own negligence. The particulars of negligence were:

5.1 Failing to take care for her own safety
5.2 Braking suddenly and without reason
5.3 Braking heavily without heeding the traffic behind her
5.4 Braking dangerously

The plaintiff gave evidence that as she was travelling along Ginninderra Drive she was going at less than the speed limit of 80km/h. She moved into the slip lane that after some distance turned left into Coulter Drive. She was travelling at between 50 and 60km/h when in the slip lane. About 30m in front of her, she saw two galahs on the road. She slowed down so as not to run over them. She did not come to a stop. The first defendant crashed into her from behind.

The first defendant was travelling to work as a surveyor. He too was travelling along Ginninderra Drive at about 80km/h. He was travelling in his vehicle behind the plaintiff’s vehicle at about a distance of 40m. He looked up to see what the traffic lights at the intersection of Coulter Drive and Ginninderra Drive were doing. When he looked back at the vehicle in front, the distance had reduced to about 20m. He said that it felt like the vehicle in front had stopped, he braked heavily but crashed into the back of the plaintiff’s vehicle. He estimated that he was doing about 80km/h when he noticed her vehicle appeared to have stopped. Following the accident, he also noticed a galah on the road and saw the plaintiff moving the galah off the road. Although the first defendant in his evidence only referred to a single galah, I accept the plaintiff’s evidence that there were two and that they were juveniles.

There was no allegation that the car driven by the plaintiff did not have functioning brake lights. The plaintiff gave evidence that she was “95 per cent sure” that the lights were functioning. This evidence was not challenged.

Rule 126 of the Australian Road Rules (which are given effect by s 6 of the Road Transport (Safety and Traffic Management) Regulation 2000 (ACT)) provides:

A driver must drive a sufficient distance behind a vehicle travelling in front of the driver so the driver can, if necessary, stop safely to avoid a collision with the vehicle.

The first defendant was obliged to allow enough room so that his vehicle could be brought to a stop even if the driver in front suddenly put on the brakes and came to a halt.

The plaintiff was slowing down so as to avoid killing an animal that was on the road. In doing so, the plaintiff was entitled to expect that vehicles travelling behind her would be travelling at a distance and at a speed that they might accommodate her need to take evasive action to avoid an unexpected hazard on the road without crashing into her. There was therefore no reason for her to expect that she could not slow down or stop safely.

There were no unusual circumstances or circumstances outside the first defendant’s control which would explain the crash other than the fact that he failed to leave sufficient distance between the vehicles or, alternatively, that he was not paying sufficient attention to the vehicle in front.

The plaintiff did not fail to take proper care for her own safety. Therefore, I find that the plaintiff was not contributorily negligent.

Is the plaintiff’s migraine condition a consequence of the accident?

The central issue between the parties for the purposes of the assessment of damages was whether or not the plaintiff’s migraine condition was a consequence of the accident. That is because the principal disability that currently interferes with her earning capacity is the fact that she suffers from frequent migraines. These migraines mean that although she can work three days a week, she is dependent upon that employment being flexible enough to accommodate her being able to work on those days where she does not suffer from or is not recovering from a migraine.

Prior to the accident, she had not suffered from migraines. There was a record of her having suffered a headache for a number of days but this was due to sinusitis. Migraines or headaches with migrainous features commenced in about August 2013. The issue is whether or not those migraines were caused directly or indirectly by the accident. Ultimately, the medical opinion about causation appeared to turn upon whether the plaintiff consistently suffered from non-migrainous headaches prior to the identification of headaches with migrainous features and migraines after August 2013.

Because of the significance placed by the medical experts on the chronology of the plaintiff’s headaches in the period after the accident, it is necessary to set that out in some detail.

Chronology

In the chronology that follows I have highlighted, by the use of bold italics, those portions of the medical records which make reference to the plaintiff’s headaches.

The accident occurred on 15 November 2012. On the day of the accident, the plaintiff saw Ms Woodward at the ANU Counselling Service. The notes do not disclose any record of a complaint of headache or neck or back pain.

On 16 November 2012, the day after the accident, she saw Dr Colson at the ANU Health Service. In relation to the consequences of the accident, Dr Colson recorded that she “was okay immediately after impact until a few hrs later when had back of neck, centrally, mid back centrally; worse on waking; no upper limb symptoms;… some pain front of neck today and intermittent pain rips bilaterall, no SOB; no head injury.”

On 21 November 2012, the plaintiff saw Dr Bessell at the ANU Health Service. Dr Bessell recorded:

feeling better compared to the accident
15/11/12 – last week
most painful on the Friday then a little better on saturday but more pain on Sunday and Monday
now: better than previously.

On examination Dr Bessell recorded, inter alia:

turning to the right is more painful
niggling in the right [side] and radiated up into the back of the head
no neurological symptoms noted

Dr Bessell suggested that the plaintiff attend a physiotherapist.

On 26 November 2012, the plaintiff commenced work as summer intern with the Attorney‑General’s Department, working in the Legislation & Policy Section, Family Law Branch.

In an email to Ms Woodward on 7 December 2012, the plaintiff said of the period after the accident:

The next day I woke up feeling like I’d been hit by a bus (whiplash). I fell into a bit of a low patch and felt pretty depressed for a few days. … I couldn’t go to the gym because I was so sore, I had a constant headache, had to wear a daggy neck brace & was told by Dr Colson (I went to ANU health the next day for an urgent appointment) that my neck may never feel the same again (it is already almost completely better so I think that was a bit of an exaggeration!).

She reported that she had found the first couple of days at the Attorney-General’s Department exhausting but otherwise reported very positively on her first two weeks and said, “I can confidently say things are on the up”.

On 10 January 2013, she saw the counsellor Rachel Tyson at ANU Counselling Service. She discussed with her feeling tired as a result of work and in particular the pressure to be outgoing.

On Saturday, 19 January 2013, she saw Natasha Rai, a physiotherapist at Sports & Spinal Physiotherapy in Gungahlin. The notes of the Initial Assessment describe the “Main Things” as “(1) headaches (2) what is going on.” The plaintiff’s evidence was that she had constant headaches from the date of the accident, but only saw a physiotherapist on this date because she didn’t want to interfere with her work as a summer intern.

On 29 January 2013, she saw Dr Bessell again. She reported having seen the physiotherapist and the notes of the consultation continue as follows:

since the accident she has had some headaches daily – she thought this could be because she is holding her right shoulder up to compensate and this is hurting her neck
Natasha thought that the seat belt injury was the cause
dry needling with physio relieves some of the upper thoracic spine muscle tension that Ruby has been experiencing

The history of the accident was recorded. The results of the examination were recorded as follows:

o/e

neck flexion – FROM [full range of movement] but some stiffness

neck extension – FROM but some stiffness/tenderness

lateral flexion: left lateral flexion is tighter, right is looser

lateral turning FROM but does not feel comfortable

left shoulder: FROM abduction, adduction, internal rotation

right: abduction, less stable movement but FROM and some tension in the right shoulder region, adduction normal
upper limb sensation intact, reflexes equal
downward dog movement can be painful whilst practicing yoga, she cannot hold the pose for as long as usual, and the source of the discomfort in the region of the seatbelt posteriorly/ upper right shoulder/upper thoracic region

reduced strength in the right shoulder noted by the patient
she has been doing yoga and this has been helping a few times per week
o/e chest region – some asymmetry with standing, worse with right shoulder elevated

The notes also record the plaintiff’s complaint:

pain in the right [shoulder] when sitting at her desk studying, less pain when she is busy
the pain can radiate up into the back of the right side of the head causing headache
honours this year in law. but also has 2 subjects left of

In February 2013 she completed the summer internship with the Attorney‑General’s Department and commenced her final semester at ANU undertaking her honours thesis and two subjects.

On 6 February 2013, she had an ultrasound and an x-ray. The ultrasound investigated her shoulder joint. The x-ray was of her right shoulder chest and ribs. These investigations appear to be seeking an explanation for pain in her right shoulder.

The plaintiff saw Dr Bessell again on 7 February 2013. Her shoulder pain had increased substantially over the weekend. She had to leave work on Monday. Her neck was also very sore. She was concerned about the escalation of her symptoms. The notes record:

Ruby is very concerned about the escalation of her symptoms
today: 2 panadeine and 3 voltaren
Body parts affected: right shoulder and neck and radiating up into the right eye
on Sunday, stabbing pain in her ribs on the left side and some stabbing pain in the rib cage and the thoracic spine
…
c-spine stiff, but FROM

In her oral evidence, the plaintiff described the involvement of pain in her right eye as being a characteristic of many migraines that she has.

On 12 February 2013, she saw Dr Howse, a sports physician. His letter reporting to Dr Bessell says that following the accident:

She noted the onset of pain in the right side of the neck and right shoulder. They [sic] has been some improvement since this time however she still experiences discomfort at the end of the day associated with headaches which radiate to the frontal region. There is no radiation of pain into the upper limbs and she experiences some catching pain in right shoulder.

She saw Dr Bessell again on 14 February 2013. The notes record, amongst other things:

3. Neck
really suffering from this, stuffing up her everyday activities and therefore she feels more anxious overall

On 1 March 2013, she saw Jessica Sutherland, a counsellor at ANU Counselling Service, who recorded “she feels everything is unravelling”. There is reference to her history of anxiety and depression, to ongoing pain, but no reference to any headaches.

On 7 March 2013 she saw Ms Tyson. The notes record her “frustration about limitations on exercise at present due to rib and shoulder injury”.

On 20 March 2013, the plaintiff’s solicitor completed and she signed a Motor Accident Medical Report for the purposes of her personal injury claim. Although that document did not specifically refer to headaches, she had specifically instructed her solicitor that headaches were one of the consequences of the accident.

On 25 March 2013 she saw Ms Tyson and discussed various stressors relating to her wider family. The notes record: “She is unable to exercise at the level she would like to due to injuries sustained from a MVA and her physio has advised her she can only do very light exercise which Ruby finds is insufficient to make any real impact on her anxiety levels.”

The next day, 26 March 2013, the plaintiff saw Dr Bessell. Dr Bessell recorded:

This week she went to the gym in order to improve her mood, overnight she had a stabbing headache/sore cervical spine – cervicogenic headache.

She referred the plaintiff to a psychologist and also to Dr Kaasik.

On 3 April 2013 she saw Ms Tyson. She was struggling with anxiety levels which were exacerbated by recent family stressors. The notes record:

Ruby is starting to increase her exercise levels but her shoulder injury is still causing a lot of pain and she is frustrated not to be able to exercise more as she identifies this as her best coping strategy for anxiety.

On 9 April 2013 she saw Dr Bessell. The discussion recorded in the notes related to increasing her dose of Seroquel and how things were going at university.

In April 2013, the plaintiff first saw Dr Adele Hamilton, clinical psychologist. The symptoms leading to the referral were symptoms of the accident and stresses associated with events within her family.

On 1 May 2013 she saw Dr Kaasik, her psychiatrist. The doctor’s notes record amongst other things: “Pain interfering with sleep” but there is no reference to headaches.

On 2 May 2013 she saw Ms Tyson. The notes make reference to her having suffered “pain from her shoulder”. She saw her again on 23 May 2013. The stressors recorded in Ms Tyson’s notes include a variety of matters but the only physical stressor referred to was “pain from her shoulder injury”.

On 23 May 2013, Dr Hamilton reported to Dr Bessell.

On 4 June 2013, the plaintiff attended Dr Bessell for a review of her mental health care plan. There is no discussion of the plaintiff’s physical condition.

On 5 June 2013, the plaintiff attended her weekly physiotherapy appointment. Although the evidence is not clear, it appears that as a result of this attendance she suffered “a substantial flare up of rib/shoulder/neck/back injury”.

On 18 June 2013 she saw Ms Tyson. The notes record some optimism in the light of the offer of an excellent graduate job and that she could see light at the end of the tunnel. No specific reference was made to her physical condition.

The plaintiff submitted her honours thesis on 28 June 2013.

She saw Dr Bessell again on 23 July 2013. At that point she had finished university and had a job lined up for 2014. So far as the consequences of the accident were concerned, the notes recorded:

she does have some residual pain and would like it sorted out in these 6 months in [order] to be well for 2014.
…
has not been sitting at a desk all day as not [studying or] working at the [moment]
symptoms: right shoulder regional pain and mid back pain
last few month the pain has shifted, less so in the neck, more so in [the] mid-low back
constantly there, has to think twice to do any physical activity

When asked about her headaches in July 2013 she said that she remembered “having headaches as an ongoing intermittent issue… after the accident”. The transcript then records:

What do you mean by intermittent?---It would come and go.
So it wasn’t every day?---Well, it was daily during my summer internship, and it was daily during most of my thesis, and then I’m not quite sure about the couple of weeks after that, you know, I was expecting them to resolve, but I didn’t think that they were. Yes, I didn’t think obviously that I needed to mention them to Dr Bessell on that particular day.

She saw Dr Bessell again on 14 August 2013. In relation to her physical symptoms, the doctor’s notes record:

1. right [shoulder] and neck flare up over the weekend again
Friday night and Saturday she [tried] to see her physio but could not get an appointment
Saturday the pain was worse, she ended up vomiting on saturday night due to the effects of the pain, she felt overwhelmed at the time
…
Trigger: she started doing some temp work and worked in childcare last week – Thursday she was doing more lifting of children

The plaintiff’s physiotherapist, Ms Rai, wrote to Dr Bessell on 15 August 2013. In relation to her physical symptoms, the letter provided:

Ruby made some initial gains with treatment and she no longer has headaches but still has ongoing pain around the scapular/thoracic region. Ruby’s progress has plateaued and we are struggling to upgrade her exercise tolerance and return to the gym, as well as everyday personal tasks.

On 21 August 2013, the plaintiff saw Dr Bessell again. Dr Bessell recorded the complaints and examination results in the following terms:

she is in the process of moving house and this flared up her physical symptoms
she had to go to work for child care and took [panadeine]
Symptoms: right shoulder and right neck pain, headache has not been an issue recently
Woke on Tuesday morning and had a lot of pain when she went to get out of bed
…
lifting her [shoulder above] shoulder height was restricted

o/e: neck forward flexion – nerve pull at the moment but less since massage has helped, backwards flexion restricted and a crunchy [sensation] on the right [shoulder] region near the neck

lateral [turning] – [restricted] on the left due to pain and pulling of the right neck muscle, better ROPM when [turning] to the right

lateral flexion – left okay, to the right is painful in [the] posterioo [sic] neck
…
rotator arc-restricted at 120 and [beyond].
…
[she] had a panic attack on Saturday

The plaintiff saw Dr Bessell again on 28 August 2013. At this stage she was doing casual child care work. Her hours were variable but she worked most weeks. She reported that:

her right axilla has been painful …
she has finally finished her house move and is doing casual work in child care
…
The massage therapist has also taught her some cervical spine stretches that she has been doing at home
medication: yesterday she was working and developed a [headache] behind her right eye, she felt unwell with this, she finished cleaning her old apartment and was quite tired, the headache started in her lunch hour
she had some panadol and [panadeine] (1 of each), she has not found NSAIDS are helpful in this setting.
overall she feels her health has not been good, some eczema noted and feeling [generally] more tired

The plaintiff described that she suffered more than one type of headache after the accident. There was the “daily headache” and then “more of an intense headache involving stabbing of the eye”. In relation to the period during July and August 2013 prior to this consultation when no headaches were recorded, the plaintiff said this was a period where she had fewer headaches and no headaches worth mentioning to her treating practitioners.

She first saw Jac Cousin, a musculoskeletal physiotherapist, at Canberra Injury Management Centre on 12 September 2013. As part of the initial assessment, Mr Cousin recorded:

Presenting symptoms:
·     Constant aching pain right cervical and scapular region.
·     Intermittent frontal headaches
·     Intermittent pains left pectoral region, low thoracic spine and left lateral chest region.
·     Intermittent low back pain
·     Intermittent heavy, tired, “pulling” ache right upper limb

She saw Dr Bessell again on 26 September 2013. At that consultation the doctor recorded: “her grandparents would like her to see their neurologist in Sydney”.

The plaintiff saw Dr Bessell again on 3 October 2013. The doctor’s notes record:

the headache is still [present]
headache is frontal and around the eyes and she has noticed that she has started to get wrinkles in her forehead, she feels pressure and pain in her eyes
…
the anterior face pain is not throbbing, sharp sometimes, can be mild, can then be more severe stabbing type pain
no [past history] of migraine [headaches]

There is no prior record in Dr Bessell’s notes indicating her consideration of the possibility of migraines.

On that day the plaintiff was referred by Dr Bessell to Dr Geoffrey Herkes, a neurologist. Although the terms of the referral letter were included in the plaintiff’s chronology, the letter was not put into evidence.

On 4 October 2013, the plaintiff was assessed by Vicki Coghlan, a clinical psychologist at the Canberra Injury Management Centre. Although the terms of her report were referred to in the plaintiff’s chronology, the report was not put into evidence.

On 14 October 2013 she saw Ms Coghlan again. Once again, her notes were not put into evidence.

Between 16 October and the end of December 2013, the plaintiff was working at the Good Guys in Belconnen as an administrative assistant who worked on the checkout.

The plaintiff saw Dr Bessell again on 15 October 2013. Her treatment was reviewed and she made a report of fainting. There is no reference to the headache issue.

She saw Dr Herkes on 21 October 2013. He reported to Dr Bessell:

I agree with you entirely that Ruby has a post-traumatic injury with persisting pain, new onset of headaches which have features of chronic daily headaches plus migraine exacerbation, and a significant flare up of her anxiety and recurrence of depression.
In summary, I think it is worth now trying some neuropathic medicines so I have suggested she tries Pregabalin (Lyrica) 75 mg bd, with possible dose escalation depending on response. …
Her headaches now are present most days, they can be mild but she will get a flare up of headaches such that they are usually severe, stabbing, retro-ocular, particularly on the left, and associated on occasions with photophobia and vomiting. …
She has chronic neck and shoulder ache, particularly on the right and has had difficulty sleeping.

She saw Dr Bessell on 30 October 2013. She had started taking Lyrica which she reported made her feel slightly “drunk”, especially in combination with Seroquel, but “overall she is coping and this has been helping with the headaches”.

She saw Dr Garth Eaton, an occupational physician, on 31 October 2013. His reporting letter of 12 July 2014 to Dr Bessell was referred to in the plaintiff’s chronology but not put into evidence. Dr Alessandro Zagami was asked to assume that it recorded a complaint of “chronic daily headaches since the subject of the MVA”.

She saw Dr Bessell again on 26 November 2013. Dr Bessell reviewed the progress of her various treatments. She recorded her symptoms as follows:

symptoms: at night, she experiences pain in her neck, headaches,, the headaches are making her feel ill,
the right side of the neck is always sore and her right shoulder, mid back pain (burning)

When she saw Dr Bessell on 3 December 2013, the doctor recorded:

Sunday: woke up with a migraine headache, she had a special dinner on Saturday night at her partner’s boss’s house for a BBQ, found it quite stressful. She has never had migraines prior to the MVA but has had headaches in the past, she discussed this with Prof Herkes , knife in the right eye, she applied a pressure pack, her partner [says] that most nights she sleeps with her hand pressed over her right eye, she took panadeine x 3 and this [helped a] little but felt quite incapacitated by it.

She was initially assessed by Ergogym for the NRMA on 17 December 2013. The report of that assessment was referred to in the plaintiff’s chronology but not put into evidence. The plaintiff described the pain psychologist affiliated with Ergogym as “a really excellent source of support”.

On 8 January 2013 she reported to Dr Bessell that symptoms were bad around Christmas, “headaches, migraines” and that she had had a migraine on Christmas day.

What was the evidence of the plaintiff?

In the plaintiff's evidence she described having "a constant headache from the day after the accident" up until the point where she commenced physiotherapy on 19 January 2013. So far as the headache that she described to Dr Bessell on 7 February 2013, she said that it was sharp pain in her eye and one-sided. She did not have any other migrainous features such as reaction to light, need to lie in a darkened room, dizziness or nausea. She said that she did have a headache that was sharp and one-sided when she was working in her internship.

In relation to the consultation on 23 July 2013, she said that she remembered “having headaches as an ongoing intermittent issue … after the accident”. She said:

Well, it was daily during my summer internship, and it was daily during most of my thesis, and then I’m not quite sure about the couple of weeks after that, you know. I was expecting them to resolve, but I didn’t think that they were.

The entry on 21 August 2013 recording that headache has not been an issue recently was “consistent with the intermittent nature that I was talking to you about” and indicated that “obviously in the last two weeks or so prior to seeing [Dr Bessell], it hadn’t been an issue”. She denied the suggestion that she didn’t have any headaches at all for a period of at least two months and possibly as long as three months. She described that after the accident there were daily headaches and then more of an intense headache involving stabbing of the eye. She agreed that in the period of 23 July 2013 and 21 August 2013 she had “fewer headaches” and “[n]o headaches worth mentioning to my treating practitioners”.

She summarised the position in relation to headaches as follows: “I experienced headaches from within the week after the accident right the way through. They might have been intermittent at times, but they were still headache as an issue.”

In relation to October 2013 when she was seeing Mr Cousin, she was having headaches that were intermittent in the sense of not occurring on a daily basis. As at 16 October 2013 she was able to start a casual job as the Good Guys and on 3 February 2014 commenced employment at AGS as a graduate lawyer.

Medical opinion

Dr Herkes

Dr Herkes is a neurologist and Associate Professor at the University of Sydney. The plaintiff had been referred to him by Dr Bessell. Four letters from Dr Herkes were tendered. He did not give oral evidence. The tendered letters were letters reporting on consultations with the plaintiff to Dr Bessel. In the letter of 21 October 2013, Dr Herkes reported, “I agree with you entirely that Ruby has a post-traumatic injury with persisting pain, new onset of headaches which have features of chronic daily headaches plus migraine exacerbation, and a significant flare up of her anxiety and recurrence of depression.” He recorded the history relevant to the onset of migraines as follows:

She was involved in a motor vehicle accident in November 2012 when she does not think she lost consciousness but a day or so later began to get significant increasing symptoms. These consisted of pain, predominantly in her neck, shoulder and her head, later on complicated by cognitive impairment and the onset of daily headaches.
Her headaches now are present most days, they can be mild but she will get a flare up of headaches such that they are usually severe, stabbing, retro-ocular, particularly on the left, and associated on occasions with photophobia and vomiting.

He summarised the plaintiff’s position as follows:

In summary, Ruby has chronic daily post-traumatic headaches with migraine exacerbations, chronic neuropathic and muscular pain and a significant increase in anxiety secondary to her trauma.

Dr Herkes put her on a trial of Lyrica and requested some scans including an MRI scan.

He reported that on 21 November 2013 that the MRI scan was normal at the cervical spine and that there were some degenerative changes at L3-4. He advised not to increase the dosage of Lyrica. He was happy to “sign off from the neurological perspective”.

On 16 January 2014 he reported again to Dr Bessell. So far as headaches were concerned, he reported:

She is clearly getting headache escalations which do have the characteristics of migraine and had a bad one over Christmas with an attack that lasted three days. Often she will get the escalation of a chronic daily headache with pain behind the right eye, photophobia, nausea and occasional vomiting. Panadeine tends to ease it down but the anti‑inflammatories don’t.
She is getting one or so per fortnight and so I agree that they do sound very migraine-like.

He then outlined a recommended course of ongoing treatment.

On 15 September 2014 he reported again to Dr Bessell after she had come in for review. He reported on treatment by Dr Colin Andrews, a neurologist, and the fact that the treatment had not reduced the recurrence of migraines. He noted that at this stage she was moving out of her apartment following the breakup of a relationship. He outlined a proposed course of treatment.

Dr Zagami

Dr Zagami is a neurologist who has practised as such for 31 years. He is an Associate Professor of Medicine at the University of New South Wales. He is a fellow of the Royal Australian College of Physicians.

He reported to the solicitors for the plaintiff on 29 May and 27 August 2017. He first saw the plaintiff on 10 May 2016. He subsequently saw her on 9 August 2016, 25 February 2017 and 11 April 2017. So far as the history of the development of headaches and migraines post-accident was concerned, his report stated:

Nevertheless, she said she walked away from the accident initially feeling fine but woke the next day with generalised body pain. She started developing headaches within a few weeks after this. She remembers that during her summer internship, towards the end of the day she would develop headaches on a regular basis and even the person sitting next to her noticed that she was constantly wriggling to try to get comfortable. She also had neck and shoulder pain as well as back pain. She went to see a physiotherapist. She remembers that her headaches escalated in severity to become quite severe and they were sometimes associated with nausea. The exacerbation of her headaches was at a time when she was finishing her Honours Thesis and her last two university subjects. By mid-2013 she had finished her University course but says she took six months off then until her graduate position started to try to address her various pain issues.

In answer to a question asking for his diagnosis in relation to headaches and migraines, he said:

I believe she developed migraine without aura and subsequently chronic migraine, following the MVA in November 2012. She also has possible refractory chronic migraine since her chronic migraine persists and she has failed to respond to, or couldn’t tolerate, at least three recognized migraine prophylactic treatments (she has already failed 4). She has also suffered from several bouts of status migrainosus. These are individual migraine attacks which failed to respond to all usual treatments and which last longer than 72 hours. As noted above she was not a headache sufferer prior to the MVA. Also, her pre-existing anxiety and depression have both worsened considerably after she developed migraine.

His report of 27 August 2017 responded to a request for a supplementary report addressing any link between the motor vehicle accident and the subsequent development of migraine. Dr Zagami said:

Ms Howard-Hill had no significant history of headache, let alone migraine, prior to the motor vehicle accident in question. While we do not yet know the cause of migraine it is well accepted that in many, if not most, individuals who develop migraine there is a genetic predisposition to the disorder and that different triggers can initiate the onset of migraine. I consider it more probable than not, that the initiating event triggering the onset of migraine in the case of Ms Howard-Hill, was the motor vehicle accident. As mentioned in my previous report her pre-existing anxiety and depression more than likely contributed to her episodic migraine disorder evolving into chronic migraine.

Dr Zagami — oral evidence

In examination-in-chief, Dr Zagami was given a history based upon the available medical and other records of complaints relating to headaches in the year following the accident. He was asked whether that changed his opinion and he said: “It confirms my original impression that this was migraine which had come on in response to the motor vehicle accident.”

Dr Zagami was asked to comment upon the reports of Dr Paul Spira. He said:

If the headaches did not, did actually start only nine months after the accident then I agree with Professor Spira and we would all agree I think, those of us experts in headache, that there was no causal relationship that can be established if there was an interval of nine months. If the history that is given is accurate that it started within a week or within a matter of a few weeks then that is consistent with post traumatic headache as (indistinct).

In cross-examination, he made the following points:

(a)He drew a distinction between a “trigger” which triggered an individual attack in a person who suffered from migraine and an “initiator” which was the initiation of someone to have migraine as an ongoing problem.
(b)While stress is the “commonest” trigger for individual attacks in a patient who already has migraine, it is not an initiator of the patient developing migraine.
(c)Apart from a traumatic event such as a motor vehicle accident, the most common initiator of ongoing migraine in women are hormonal changes. Typical triggers were when a woman first gets her period, when she becomes pregnant or when she goes on the oral contraceptive pill.
(d)There are other initiators of migraine but doctors are not aware of what most of these are.
(e)He expressed the view that in order to be considered to be a post-traumatic headache it needed to commence within between seven days and three weeks of the initiating event. The headache could be any form of headache and did not need to be a migraine headache in order for it to be post-traumatic in origin. He agreed with the proposition that the further the onset of the headache from the initial insult, the less likely it is to be post-traumatic.
(f)He agreed that he had “assumed that the headaches that she developed in close proximity to the accident had migrainous features”.

He was given a history derived from consultations with doctors on 29 January 2013, 7 February 2013, 12 February 2013, 19 March 2013, 23 July 2013, 21 August 2013 and 28 August 2013. In relation to some of the headaches recorded in that period (7 February 2013 and 28 August 2013) that had migrainous features, the headaches did not fulfil the criteria for migraine based on those features alone. The following then appears in the transcript:

We are now nine months past the motor vehicle accident and according to the records we still haven’t found a record of a complaint of a headache that meets a migrainous feature. Would you agree with that, doctor?---You’ve asked me to make those assumptions and based on those assumptions that is correct.
If that is the case that means it is less likely that the migraine that Ruby now suffers is post‑traumatic in origin. Would you agree with that based on those assumptions?---Based on those assumptions, yes.

In re-examination, he was referred to the history given to Dr Herkes, Dr Bessell, and Dr Eaton. The following then appears in the transcript:

What I’m getting at is if you have a situation where headaches start to arise on a regular basis but taken one at a time you may not be able to clearly ascertain that they had migrainous features but as time goes by they not only increase in frequency but the migrainous features become more apparent, does that suggest that the earlier experience of headaches is related to the later experience?---The question is whether those original headaches are migraine headaches or not before they develop all of the features.
Correct?---Well that’s a possibility because as I said we don’t make a diagnosis of migraine until you’ve had at least five attacks of (indistinct) criteria so in those initial episodes even though in retrospect it seemed likely that or almost definitely they were migraines we can’t be sure of the diagnosis until, as I said, the patient had five attacks which fulfil criteria. So by definition the diagnosis of migraine is only after you’ve had repeated attacks, so that means that in the initial attacks they may not fulfil criteria for migraine but it’s only when you’ve had actually five attacks that do that then we are comfortable to say this is definitely migraine.
But is it – in your opinion is it more likely than not that those original episodes which the plaintiff dates back to the day after the [MVA] were part of the same condition which ultimately became diagnosable as migraine?---Yes, yes I think so but the crux of what we’re discussing I think is at which stage the headaches began.
Yes, that’s right, so if the headaches began apart from, I think I gave you one example a few moments before that was the diagnosis of sinusitis but if the headaches began essentially after the motor vehicle accident and then developed into or at least I’ll take out the causal item because that’s what I’m asking you about but then the experience of headaches became more frequent and more regular and more with migraine characteristics does that suggest they’re all part of the same process, and I think your answer was yes, you think so?---Yes.

Dr Spira

Dr Spira is a neurologist and Associate Professor at the University of New South Wales. He has practised as a neurologist for 40 years. He prepared two reports at the request of the solicitors for the defendants dated 1 August 2017 and 18 December 2017 respectively.

In his report of 1 August 2017 he recorded a very detailed history. So far as the early evolution of the plaintiff’s headaches was concerned, he recorded that over the weeks following the accident she continued to experience head, neck and back pains. However, she was not so concerned about them because she had been advised that they would be likely to continue for some weeks after the accident. He recorded that during the course of her internship with the Attorney-General’s Department, she would become aware that towards late afternoon she would experience accentuation of head and neck pain that would become quite uncomfortable over her shoulder. By mid 2013 she was experiencing more severe headaches and had considerable difficulty maintaining the effort required to complete her university study. His opinion as to the causal relationship between her migraine condition and the accident was summarised in two portions of his report under the heading “Opinion”:

Miss Howard-Hill was involved in a single impact rear-end motor vehicle accident in which her car apparently sustained significant damage but she herself had no direct impact injury. She subsequently developed a diffuse myalgic syndrome consisting of head, neck and diffuse back pains. Over the course of the months following the accident her headaches accentuated with the attacks taking on clear migrainous features. Ms Howard-Hill retains the tendency to high frequency migraines of the order of 3-4 attacks per week according to her headache diary. She has had a number of medication trials in an attempt to control her migraines but the trials have not been exhaustive and further measures should be tested.
… I feel that Miss Howard-Hill’s migraines have evolved out of the effects of the motor vehicle accident on her pre-existing tendency to headache. Tension-type headaches and migraine are regarded by most headache experts as opposite ends of a benign recurrent headache spectrum and movement on that spectrum can be driven by physical and psychological factors. In this was a diffuse myalgic syndrome with head, neck and back pains and headaches can evolve into fully developed migraines.

Dr Spira was subsequently briefed with the notes from the plaintiff’s general practitioner covering the period following the accident and a supplementary report was requested to address whether those additional records altered his opinion of the causal relationship between the accident and the plaintiff’s migraines. Dr Spira noted that the plaintiff regularly saw her general practitioner in the period following the accident. He noted that on the day after the accident the practitioner’s notes recorded that there had been no head injury and no mention of her having complained of headache. His review of the notes did not reveal any complaint of headache up until 21 August 2013 when in relation to shoulder and neck pain it was stated “headache has not been an issue recently”. The first mention of headache was on 28 August 2013 when the notes record “… yesterday she was working and developed a headache behind her right eye, she felt unwell with this, she finished cleaning her old apartment and was quite tired, the headache started in her lunch hour”. In the light of these aspects of the history, Dr Spira’s conclusion was as follows:

It seems that it is after the visit of 28 October 2013 that the headache pattern established. This is a 9-month delay from the time of the subject accident. The natural history of post‑traumatic headache is that the head pain is evident from the time of the accident and is not expected 9 months later. The International Headache Society’s Classification system of headaches has, as a diagnostic criterion for post-traumatic headache, that this should present within 7 days of the trauma. I believe that the 9-month delay breaks the nexus between the accident and the subsequent migrainous headaches, particularly as the headaches appear to have been absent until the episode occurring toward the end of August 2013. This appears to have been the first headache with recognisable migrainous features.

Dr Spira — oral evidence

In examination-in-chief it was suggested to Dr Spira that in his second report he had concluded that migraine headaches were not caused by the motor vehicle accident. He said:

Well, not entirely. I mean basically these were a sort of final consequence of recurrent headaches that she suffered previously. It’s an evolution and I sort of referred to this in my original report, this evolution of headache from tension type headache to migraine. I believe that her migraines evolved out of tension type headaches. The question that I addressed in the second report is the time relationship between the onset of the headache and the motor vehicle accident, and it appears that there was a considerable delay in that, and that may possibly break the nexus between the accident itself and the headache.

He was not prepared to accept that the headaches suffered after the accident were post‑traumatic headaches. That is because he said that what was meant by the term post‑traumatic headache was one where the “physico-chemical effects of trauma has changed the head or the upper cervical spine at the very least”. He said that almost always requires a head injury and that was lacking in this case. He therefore drew a distinction between the term post-traumatic headache and any headache which followed trauma.

He said that people with unstable emotional states are far more likely to develop tension type headaches. He said that despite being a recognised expert in the area he had to “admit to some ignorance … as to the causation of headache”. He said that “when we finally understand headache, I believe it will be found that tension type headache is the mildest form of migraine”.

He was taken through the chronology of doctors’ attendances when complaints of headache were made (7 December 2012, 29 January 2013, 7 February 2013, 12 February 2013, 26 March 2013, and 28 August 2013). He said that on the basis of the manner in which the headaches were described they did not have any recognisable migrainous features and that if migrainous features had been present then he would have expected most general practitioners to have recorded them. He was asked whether the history of attendances made any difference to the opinion that he expressed in his second report. He said:

Well, look, I would think that that would mean that the subsequent migrainous headaches that she developed are probably not directly linked to the accident because I would have expected them to continue. This late accentuation of headache is not the expected outcome with any headache related to injury.

In cross-examination he was given a further history of consultations and references to headaches. He accepted, consistent with what he had said in his first report, that it was possible for the post-accident headache to have evolved from a tension type headache into a migraine. He made it clear that in describing this possibility he wasn’t referring to the specific term “post-traumatic headache” because that involved the trauma itself changing the physico-chemical structure of the head. Rather, he saw the potential for excessive muscle contraction probably contributed to by a psychological state cascading eventually into a migraine pattern. He did not see that as corresponding with the expression “post-traumatic headache”. Therefore, he accepted that there might be a causal link between the original accident in the migraine headaches even if those headaches were not called by the name “post-traumatic headache” so long as there was no significant break between them. His opinion was summarised in two portions of transcript:

---then you accept, don’t you, that there is a causal link between the original accident and the migraine headaches, even if you don’t call it by the name post-traumatic headache?---As long as there’s no significant break between them, yes.
Yes. Right, right, right. Well---?---I mean this is what seems to be somehow a difference between you and your colleague---
Yes?--- -that there seems to be some evidence that there may have been a significant break. Now, if there was, then you would have to say that yes the tension myalgia and the headache related to the tension myalgia as a result, and there is then no causal link if later she develops a migraine. If on the other hand there is continuous headache throughout and it gets worse and worse and worse and eventually becomes a migraine, then yes I’m willing to say that there is a causal link, but I mean it’s a matter of evidence. It’s not something that I can resolve medically, but you have to demonstrate this progression from what is typical tension myalgia in the first days after the accident no matter how dramatically you wish to put it about buses, evolving progressively into migraine. Now, there’s some problem here in the word progression because it could be that there were two different phases here, and if there are two different phases then I believe the nexus between the accident and the migraine is broken. So I think you will have to resolve on evidence---
yes?--- -whether there is a break here or not.

It was later suggested to him that if the evidence supported a continuous complaint of the presence of headaches then that would satisfy his concerns about causation. He said:

That’s exactly what I said before we started this segment of the discussion---
All right?--- -that it’s a matter of evidence as to whether this is continuous headache or whether there is indeed a significant break between them---
All right?--- -because the natural history of headache evolving into migraine from tension type headache takes years and it’s progressive. It’s like a linear graph going upwards. There’s an increase in frequency, increase in severity, and eventually the acquisition of migrainous features. Now, if that’s indeed what happened and there’s evidence to support that, then I would have to say yes there is a nexus between the accident and this lady’s migraine. If on the other hand there’s a significant break in between and that’s what the evidence supports then I’d have to say that this is independent and probably more related to her emotional state. I mean all along there has been, if I understand it correctly, a progressively deteriorating emotional state, and that cannot be ignored in the genesis of migraine.

Summary and conclusion

The initiators of migraine apart from traumatic injury to the head or neck are uncertain. Hormonal changes are a recognised initiator of migraines in women. Dr Spira in the last quoted passage above seems to accept that “a progressively deteriorating emotional state … cannot be ignored in the genesis of migraine”. His earlier answer in examination‑in-chief recognised that people with unstable emotional states are far more likely to develop tension type headaches.

Both Dr Zagami and Dr Spira appeared to accept that if there was a significant break in the headaches then this was likely to indicate that there was not a causal link between the headaches and the motor vehicle accident.

What the plaintiff appears to have developed is a chronic pain condition. In the months between November 2012 and August 2013 that pain condition appears to be principally related to her right shoulder and neck. She appears to have suffered from some headaches in the period prior to August 2013. The first headache that is recorded as being one-sided is on 7 February 2013. The headaches are not the principal complaint made by the plaintiff to doctors in the period November 2012 to August 2013. Rather, in that period the right shoulder and generalised complaints of pain are what are recorded. It cannot be said that the medical records demonstrate continuity of suffering from increasing tension headaches. I would accept on the balance of probabilities that headaches continued at some level throughout the period. However, there was not a steady increase in intensity prior to them manifesting clearly migrainous features. Had they been increasing in intensity then it is unlikely that there would be a gap in the reporting of headache symptoms in the period 12 February 2013 to 28 August 2013.

If it is necessary to show continuity of tension type headaches then the medical records do not demonstrate that continuity. The evidence of the plaintiff was consistent with the medical records in that any headaches that she did suffer were not sufficiently serious to warrant reporting to a doctor. If it was sufficient in order to show a causal connection to establish a causal link between her pain condition and the commencement of headaches then on the balance of probabilities that would be established. The reason for that is as follows. The plaintiff did not have migraine headaches before the accident. There was no other cause which could be disentangled from the pain and consequent stress following the accident. That would make it more likely than not that, but for the accident, the migraines would not have arisen when they did.

However, that was not how the experts approached the issue. As between the two experts, Dr Spira explained that although the migraine could not properly be described as a post-traumatic headache, he would accept that the onset of migraine was caused by the motor vehicle accident if there was, as a matter of fact, continuity of tension headaches building up to the onset of migraine. On the other hand, because of the manner in which Dr Zagami reported and was examined, it is not so clear what his rationale was in drawing the causal link that he did. It appears that he considered that the original headaches needed to be characterised as migraine headaches even if that could only be done with the benefit of hindsight. Similarly, Dr Herkes, who was examining the plaintiff in a clinical context—and hence a context in which questions of causation were of limited significance—was content to accept the causal link between accident and onset.

Dr Zagami did not make the distinction that Dr Spira did between a post‑traumatic headache and a tension headache leading to migraine. He did accept that a causally related condition did not have to have migrainous features in the headaches at the start. However, he did agree that he had assumed that the headaches close to the accident had migrainous features. It is not clear whether this was significant for his opinion or not. When given a chronology of complaint, he agreed with counsel for the defendants that it was less likely that the migraines were causally related to the accident. Given that his answer was not significantly explored in cross‑examination or in re‑examination, it remained unclear what features of this chronology were most significant in his conclusion. Was it the assumed lack of headaches immediately following the accident? Or was it the period where there was no complaint which was suggestive of a period where there were no headaches?

In relation to Dr Spira’s evidence, he accepted that a tension headache may progressively evolve into a migraine headache if it increases in frequency, increases in severity and eventually acquires migrainous features. It was for that reason that he saw the ultimate outcome as dependent upon factual issues as to the frequency and severity of headaches over the relevant period. That also explained the difference between the conclusions that he reached in his two reports.

Both Dr Zagami and Dr Spira were very well qualified and appeared to be properly fulfilling their role as witnesses assisting the Court. The reasoning of Dr Spira was somewhat better exposed in his report and oral evidence than the reasoning of Dr Zagami. The leading manner in which Dr Spira was re-examined tended to detract from the cogency of his answers.

Conclusions of fact

The plaintiff had a constant headache in the days following the accident. She commenced work on 26 November 2012 at the Attorney-General’s Department. Her neck and, I infer, headaches improved so that she reported that her neck was “almost completely better” on 7 December 2012. However, she continued to have some headaches daily. Things deteriorated when working at the Attorney-General’s Department so that on 19 January 2013 she consulted the physiotherapist to find out why she was getting headaches. She continued to have problems with her neck and shoulder and these were the subject of investigations in February 2013. She had an escalation of symptoms in early February 2013 with headache radiating from her neck into the right side of her head. In late March 2013 she had a stabbing headache provoked by going to the gym. Her headache symptoms were otherwise not significant enough (compared with her other problems) to warrant recording in the notes of Dr Bessell or Ms Tyson (counsellor), Ms Sutherland (counsellor), Dr Hamilton (clinical psychologist) or Dr Kaasick (psychiatrist) in consultations on 14 February, 1 March, 7 March, 3 April, 9 April, 1 May, 2 May, 4 June, 18 June and 23 July 2013. By the time of the 23 July 2013 consultation with Dr Bessell, her condition had improved so that it was described as “residual pain” which she hoped to sort out during the six months while no longer studying. Ms Rai reported in her letter to Dr Bessell on 15 August 2013 that she had initially presented for headaches (that is, in January 2013) but she “made some initial gains with treatment and she no longer has headaches”. She still had pain round the scapular/thoracic region. That was consistent with the record made by Dr Bessell on 21 August 2013 that “headache has not been an issue recently”. The flare up on 27 August 2013 occurred while at work and when tired after completing the cleaning of her old apartment. While in the period prior to this I accept that she may have suffered headaches, they were not consistent enough, severe enough or so closely associated in the plaintiff’s mind with her ongoing neck and shoulder pain to warrant reporting to her various medical or counselling appointments. In August and September 2013, the principal complaint was that recorded by Mr Cousin “[c]onstant aching pain right cervical and scapular region” but also “[i]ntermittent frontal headaches”. Having regard to the earlier records, I take these to be headaches occurring since 27 August 2013. It is after this point that one sided headaches are reported to Dr Herkes who describes them as “chronic daily headaches plus migraine exacerbation”. Dr Zagami was examined on the basis that the plaintiff also reported “chronic daily headaches since the accident” to Dr Eaton at the end of October 2013 (although this was not consistent with Mr Cousin’s earlier note).

It is very clear that factual conclusions based upon doctors’ notes and other records of complaint available here need to be approached with considerable care: cf Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8]. That is particularly so when, as here, the plaintiff is suffering a variety of problems and there is a real prospect that not all will be addressed or recorded in any one consultation. Having said that, in the present case, there are a variety of sources of records and, so far as the general practitioner is concerned, the plaintiff had regular consultations with Dr Bessell who appears to have been a careful and diligent recorder of the plaintiff’s presenting condition and her actions in response.

There is a consistency in the medical records which demonstrates that headaches declined after February 2013. There was a flare up following a particular event in March 2013. Although I accept that the plaintiff may have suffered some headaches, they were at a relatively low level of frequency and severity so as not to warrant significant complaint on the plaintiff’s part. By August 2013, both Dr Bessell and Ms Rai indicated that headaches were no longer a problem notwithstanding ongoing pain in the scapular/thoracic region. That then started to change following the headache on 27 August 2013. There was decline into more severe one sided and migrainous headaches documented by Dr Bessell and Dr Herkes in October 2013. It was only on 3 October 2013 that Dr Bessell was prompted to inquire of the plaintiff whether she had a past history of migraine headaches and make the referral to Dr Herkes.

To a lay person a comparison of the position of the plaintiff before and after the accident would be powerful evidence in concluding that, either directly or indirectly, the accident caused the onset of the plaintiff’s migraine condition. That is particularly so where the plaintiff did not recover within a usual timeframe and developed a pain condition from the accident. However, notwithstanding that eminent experts accept that they do not know what causes migraines, their evidence indicates that a closer chronological examination of the development of the headaches into migraines is necessary before a conclusion as to causation can be reached.

The history of complaint between February and August 2013 does not support the consistency and increase in frequency and severity of tension type headache described by Dr Spira as having the capacity to evolve into a migraine. While it would be possible to say that there was, as a result of her pain condition, some headaches throughout the period from the accident until clearly migrainous headaches developed, the absence of a clear pattern of the maintenance or worsening of the severity of headaches during that period means that the facts, as I have found them, are more consistent with the conclusion reached by Dr Spira in his second report than his first. I am therefore not satisfied that the plaintiff has proved on the balance of probabilities that her current migraine condition was caused by the accident as opposed to arising from other causes unrelated to the accident.

Finally, I note that Dr Spira did say at the end of his evidence that the plaintiff’s “progressively deteriorating emotional state … cannot be ignored in the genesis of migraine”. That deterioration was caused by the plaintiff’s pain condition following the accident. If the expert evidence was such as to demonstrate that the emotional deterioration could be an initiator of migraine then I would have found causation established. However, Dr Spira’s comment was not explored further in evidence and Dr Zagami had rejected the proposition that stress could be an initiator (as opposed to a trigger) of migraine. That left the evidence in a state where I was not satisfied that causation could be established indirectly via the impact of the accident on the plaintiff’s emotional state.

Causally related injuries suffered

The injuries suffered by the plaintiff are described in the report of Dr David Champion dated 16 November 2016. His diagnosis was:

There is a whiplash associated disorder of the cervical spine with multilevel pain and deep somatic referred pain in paraspinal/suprascapular distribution typically moreso on the right side.
She has chronic daily headaches which are associated with the spinal pain and would commonly be described as cervicogenic… The daily headaches were substantially causally influenced by the MVA.
Most importantly, she has acquired relatively severe and frequent headaches of a different character, commonly hemicrania (moreso on the right side), associated with sensory hypersensitivity and nausea, and there is general agreement including from at least 2 neurologists that these headaches are migraine.…
The prognosis is uncertain with regard to the near future. That is, it depends entirely on her support, the effectiveness of management, her confidence, the attitude of her employers, whether a return to work can be carefully graduated or not. In the longer term her prognosis is also uncertain and concerning. It does not appear that her symptoms will spontaneously resolve and while one might reasonably expect improvement over time and with treatment she will retain vulnerability to an exacerbation of both her pain disorders notably headaches/migraine and also to her psychological condition.

Plainly enough, on the findings that I have made above, the migraine condition is not attributable to the accident but the cervicogenic headaches and whiplash associated disorder are. The plaintiff’s evidence, which I accept, was that she continues to suffer pain every day even though, so far as her non-migrainous conditions are concerned, she remains able to function.

General Damages

General damages must recognise the immediate trauma and pain associated with the accident as well as the impact that this had on the plaintiff’s psychological condition up until the point after August 2013 when the migraine took over as the dominant form of disability and had the dominant impact upon the plaintiff’s psychiatric condition. After that time, while the whiplash associated pain condition has continued, it has been very much subordinate to the other problems. Nevertheless, she continues to suffer pain every day. Having regard to these matters, in my view an award of $130,000 is appropriate. Recognising that the most significant period where pain and suffering can be attributed to the accident is in the period up until the end of 2013, it is appropriate that general damages be apportioned 50 per cent attributable to the past and 50 per cent of the future. This gives interest on past general damages of $15,158 (5.83 years x 2 per cent x $130,000).

Past loss of earning capacity

The principal impediment to her earning capacity is her frequent migraines. The pain condition from which she continues to suffer and any non-migrainous headaches do not presently affect her earning capacity beyond the effect that is caused by her migraine. Any discrete loss attributed to those non-migraine conditions must also have regard to the plaintiff’s underlying psychiatric vulnerability which may well have affected her actual earnings in any event. If her migraine condition was to resolve then the underlying pain condition may become the cause of her loss.

So far as the past is concerned, if she was not suffering from migraines then she would have been able, notwithstanding her pain condition to have completed her graduate year at AGS and continue her employment there. The most it can be said is that she may well have had some time off work which was attributable to her non‑migrainous conditions. The defendants have suggested that a buffer of $25,000 would appropriately accommodate her losses during that period. I accept that this is a reasonable sum. The evidence does not justify a greater sum related only to the non‑migrainous conditions.

Future loss of earning capacity

In relation to the future, the position is more difficult. So long as her migrainous condition continues that will be the dominant limitation upon her employment capacity. She had a psychiatric vulnerability in any event. It is possible that the non-migrainous pain conditions will have an effect on her psychiatric condition. However, it is almost impossible to predict whether any future loss of earnings arising from psychiatric deterioration will be caused by her non-migrainous conditions in circumstances where her migraine condition or her underlying predisposition to psychiatric vulnerability would not have caused that loss in any event. The defendants have submitted that in those circumstances a buffer of $50,000 is appropriate in relation to the future, recognising the possibility of a flare up of her shoulder, back or neck conditions. At her current level (government lawyer, Australian Public Service (APS) level 5, working three days per week), this is approximately a year’s wages. Taking into account the prospect of advancement with experience, and hence increased wages in the future (and the potential for loss), I consider a buffer of $80,000 would be appropriate.

Griffiths v Kerkemeyer/s 100 damages

In relation to the past, the evidence did not establish any gratuitous care. While the plaintiff received some assistance from her partner, Michael, in the period from the accident until October 2013 that was limited to bringing occasional meals. The plaintiff could not say how often that occurred. Between August and October 2013 when the plaintiff and Michael were living with Michael’s father, there is no clear evidence of domestic assistance. In the period after October 2013, care needs arose from the plaintiff’s migrainous condition rather than from pain associated with her whiplash disorder.

So far as the future is concerned, the plaintiff’s claim was based upon the report of an occupational therapist, whose assessment was based upon the plaintiff’s migraines being attributable to the accident. At present the plaintiff has no need for care attributable to her non-migraine condition. There is the prospect of aggravation of her non‑migrainous condition in the future to the extent to which she would be unable to work. During those periods, she may need some additional assistance. I will award a buffer of $3,640 for future care the equivalent of two hours per week for one year (2 x $35 x 52).

Past out of pockets

In circumstances where the migraines were found to be not attributable to the accident, the parties agreed that the past out of pocket expenses would be $15,435. This figure does not appear to include any amount for a Medicare payback. In case this should have been included, I will give liberty to apply to correct the calculation.

The final submissions of the plaintiff identify no claim for interest on past out of pockets.

Future out of pockets

Consistent with the prospect of future difficulties associated with the accident being limited to flare ups of her pain condition, an award of damages for future medical expenses of $10,000 would be appropriate. This reflects the possible need for treatment from a general practitioner or physiotherapist and some specialist care arising from a worsening of her shoulder back or neck condition.

Award if migraine condition causally related to injury

In case I am wrong in relation to my conclusion concerning the causal connection between the accident and the plaintiff’s migraine condition, I will set out the manner in which damages would have been calculated had I been satisfied of the relevant causal link.

I would have awarded general damages of $250,000 and pre-judgment interest based upon 40 per cent of the damages being attributable to the past.

In relation to past and future economic loss, I would have awarded damages as follows.

So far as the past is concerned, I would have awarded damages based on the plaintiff’s calculations:

(a)loss during period of employment with AGS (2 February 2014 – 21 August 2017): $91,421.83;
(b)loss during period of unemployment (22 August 2017 – 18 January 2017): $26,940;
(c)loss after commencement with Safe Work Australia (34 weeks x $622.75): $21,173.50.

That gives a total figure of $139,535.

I would have awarded pre-judgment interest at Court Procedures Rules 2006 (ACT) rates.

So far as the future is concerned, I would have awarded damages as follows. Had the plaintiff not suffered from migraine condition then she would clearly have started off within AGS as she did. It is likely that she would have remained in government employment either with AGS or elsewhere, having regard to her areas of interest and having regard to the more flexible working conditions that are available and the benefits of security of employment. Notwithstanding the plaintiff’s history of anxiety and depression, it is likely that she would have been able to maintain her employment within AGS or an equivalent job elsewhere in the public service. She clearly had the capacity to seek out medical care and in the absence of the accident and subsequent history of migraine she would have been in a much more secure position to address her underlying predisposition to anxiety and depression. I place little weight on the doubts that she expressed to her counsellor shortly prior to the accident about a career in law. Those doubts represent her anxious thoughts expressed in a clinical context rather than reflecting her actual capacity.

Her migraine condition will generate economic loss in a number of different ways. First, it will slow her rate of advancement having regard to the disruptions that she has already suffered. Second, she is only able to work three days per week and hence suffers reduced wages. Third, her condition is likely to make it more difficult for her to advance given that her present work and capacity is limited to three days a week and requires flexibility as to when those days are worked. The plaintiff’s suggested approach to economic loss was based upon the figures within the report of Mr Jonathan Beaumont (Exhibit 7, 68ff). Those figures disclosed minimum mean and maximum remuneration levels for lawyers inclusive of superannuation in the APS generally as well as in AGS. The figures provided for AGS do not include salary bonuses which may be payable and hence are conservative. The calculations proposed by the plaintiff compare the minimum remuneration of an AGS Executive Level (EL) 2 lawyer with the average remuneration of an APS 5 lawyer in the public service generally. In my view, while the approach is a generally sound one, some allowance should be made for likely advancement by the plaintiff even within the context of limited and flexible working hours. There are reasonable prospects of that occurring because of her undoubted intelligence and legal capacity. I therefore would have based the calculation on a level of remuneration between the APS mean remuneration for an APS 6 ($97,458) and EL1 ($125,178). I would have adopted a figure of $110,000 to reflect the prospect of some advancement by the plaintiff even with her restrictions.

There was no particular evidence about the plaintiff’s intentions as to how long she would work before retirement. It is likely that her retirement would be somewhere between the ages of 55 and 67. I would therefore have adopted a retirement age of 60 years.

Therefore the calculation of future economic loss would have been as follows:

(a)Minimum AGS EL2 salary inclusive of superannuation: $136,691. Exclusive of superannuation $115,641. Net per week $1,599.80.
(b)Remuneration APS 6/EL1: $110,000. Exclusive of superannuation $93,060. Net per week $1,341.42. Net per three days/week: $804.85.
(c)Net loss per week $795.
(d)Aged retirement 31 years, multiplier 1059.2.
(e)Wage loss until retirement $842,064 ($795/week x multiplier 1059.2).

I would have allowed a greater than usual discount of 40 per cent to take into account not only standard vicissitudes, but also:

(a)the likelihood in any event of the need for time away from work due to mental health issues or family responsibilities;
(b)the prospect that the plaintiff’s condition will improve over time so as to impose a lesser impediment upon her working hours and work level.

So far as this latter point is concerned, the evidence about the likely prognosis for her refractory migraine condition was very limited because the evidence of Dr Zagami and Dr Spira were focused on the principal issue in contention between the parties, namely, causation.

That would result in an award for loss of wages of $505,238 (60 per cent of $842,064).

Mr Beaumont’s figures for remuneration were based upon superannuation at the rate of 15.4 per cent of gross salary. There was no evidence or agreement as to the actuarial translation of this figure when applied to net income. In those circumstances, I would have awarded damages for loss of superannuation at the basis of 17 per cent of the net figure. That would have given damages for loss of superannuation of $85,891.

In relation to past out of pocket expenses, I would have awarded $33,254 which is the amount agreed by the parties. It may be that this agreed figure fails to take into account any Medicare payback and I would include this amount if it is not elsewhere taken into account.

In relation to future medical expenses, I would have awarded a buffer of $40,000 as contended for by the defendants.

In relation to past and future Griffiths v Kerkemeyer damages, I would have awarded $6,510 in relation to the past based upon the submissions of the defendants because the factual basis for a greater award was not made out.

So far as the future was concerned, the difference between the expert occupational therapy evidence was significant. Ms Hogan expressed the opinion that 10.5 hours per week of various sorts of care was required costing $587.53 per week or $30,551.56 per year. Ms Borthwick assessed the requirement at 16 hours per year and seven hours of pet care per annum a total annual cost of $805. Neither occupational therapist gave oral evidence or was cross-examined. The plaintiff currently lives alone in a rented rural property.

As indicated above, the prognosis for the plaintiff’s migraine condition is uncertain. I would make an award based upon a rate of three hours per week until the age of 60 with a discount of 50 per cent to take account of the possibility of her symptoms lessening. This gives a figure of $55,608 (3 x $35 x 1059.2 x 0.5).

Summary

The award of damages is summarised in the following table:

Head of damage

Amount

General damages

$130,000

Interest on general damages

$15,158

Past loss of earning capacity (inclusive of superannuation)

$25,000

Future loss of earning capacity (inclusive of superannuation)

$80,000

Past Griffiths the Kerkemeyer/s 100

$0

Future Griffiths v Kerkemeyer/s 100

$3,640

Past out of pockets

$15,435

Future out of pockets

$10,000

Total

$279,233

Under s 151(4) of the Road Transport (Third Party Insurance) Act 2008 (ACT), the judgment must be entered against the second defendant.

Orders

The orders of the Court are:

1. Judgment be entered for the plaintiff against the second defendant in the sum of $279,233.

2. The usual order as to interest.

3. The parties have liberty to apply within seven days in relation to an adjustment of the award of damages in relation to any Medicare payback.

4. The second defendant is to pay the plaintiff’s costs.

5. Order 4 may not be entered for 14 days and, if within that period, any party notifies my associate by email (copied to the other party) that it wishes to be further heard in relation to costs, then order 4 may not be entered until further order of the Court.

I certify that the preceding one hundred and eighty-one [181] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

Associate:

Date: 21 September 2018

Head of damage	Amount
General damages	$130,000
Interest on general damages	$15,158
Past loss of earning capacity (inclusive of superannuation)	$25,000
Future loss of earning capacity (inclusive of superannuation)	$80,000
Past Griffiths the Kerkemeyer/s 100	$0
Future Griffiths v Kerkemeyer/s 100	$3,640
Past out of pockets	$15,435
Future out of pockets	$10,000
Total	$279,233