Jaffer v FAI Insurance

[1999] NSWSC 538

CITATION:	Jaffer v FAI Insurance [1999] NSWSC 538
CURRENT JURISDICTION:
FILE NUMBER(S):	N300012/1997
HEARING DATE(S):	22/10/98, 23/10/98, 27/10/98, 28/10/98
JUDGMENT DATE:	4 June 1999
PARTIES :	Belinda Jaffer FAI Insurance Company Limited
JUDGMENT OF:	Dowd J

COUNSEL :	Plaintiff: Mr Gross Q.C. Defendant: Mr Dodd
SOLICITORS:	Plaintiff: Armstrongs Solicitors Defendant: Hunt & Hunt
CATCHWORDS:	Assessment of damages consequent on motor vehicle accident; Causation credibility; Pre-existing injury and psychiatric condition; Mitigation
ACTS CITED:	Motor Accidents Act 1988
DECISION:	Verdict for plaintiff; Costs reserved

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THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

DOWD J
4 June 1999
N300012/97

JAFFER v FAI INSURANCE

REASONS FOR JUDGMENT

1 The plaintiff, Belinda Jaffer, sued the defendant, a third party insurer under the Motor Accidents Act 1988 for negligence claiming injuries, loss and damage resulting from a motor vehicle accident that occurred at about 8.30 am on 20 May 1994 when the plaintiff was stationary on the Bradfield Highway at North Sydney. Liability has been admitted by the defendant, but damages remain at issue.
2 The plaintiff’s case was that the driver of the insured vehicle was driving a motor vehicle in a southerly direction in the same lane as the plaintiff on the Bradfield Highway approaching the Sydney Harbour Bridge when at a point approximately 200 metres north of the entrance to the North Harbour tunnel entrance the insured’s vehicle collided with the rear of the plaintiff’s then stationary motor vehicle. After the collision occurred, the plaintiff, who was able to drive her car away, felt slightly sore in the neck and later suffered from a headache. She was not taken to the hospital but eventually sought medical treatment some four days later when the pain in her neck became more severe and she experienced pain in her back and arms.
3 The plaintiff’s action for damages is in relation to the injuries to her neck as well as her back shoulder and left arm, she alleging a continuous discomfort up until the hearing. The plaintiff also sought damages for the psychological trauma she suffered as a result of the accident.
The Plaintiff’s Background
4 The plaintiff who at the time of the accident lived in Fennell Bay, in the Lake Macquarie area, was born on 7 March 1962 in South Australia, where she was educated until she left school in Year 10 to commence an apprenticeship as a chef at a hotel. She did not complete that apprenticeship and then worked in a retail store whilst waitering and bar tending. Between 1980 and 1985 the plaintiff was a promotions hostess with a tobacco company involving representation work at track meetings and similar venues. She then worked overseas for twelve months on charter yachts as a cook and deckhand.
5 The plaintiff then operated a mixed business at a corner store for a year of so employing assistants, then working in a clothing store as a manager in Adelaide and moved to Victoria in 1989, working in a ski resort at Mount Buller as a bistro manager in charge of some 20 people. The plaintiff then worked at a country club to use her description as a ‘girl Friday’ receptionist organising bookings, assisting in managing and organising conferences and working in a shop. She was then employed in 1990 as a sales representative in Victoria for a watch company selling calculators, watches and the like whilst doing bar work at the same time.
6 From 1992 the plaintiff moved to Moree and in February 1994 the plaintiff worked at Tiffany jewellers where she carried out various sales representative work. In 1993, for three months, the plaintiff worked as a sales representative for Tiffany jewellers for the whole State. Towards the end of 1993 the plaintiff came to live in the Newcastle area working at Brown Brothers Milawa in Cathedral Street receiving some $500.00 in her hand with a 1993 Ford Falcon sedan provided by her employers for her full time use in work and otherwise, which the plaintiff was driving at the time of her collision.
7 The plaintiff’s work involved selling wine to licensed outlets through Newcastle and Northern NSW, putting on promotions and wine tasting, supervising and training staff. The position involved her visiting Sydney from time to time and driving considerable distances.
8 The plaintiff had been involved in a previous collision at about the age of 18 years, for which she received some $5,000.00 in compensation for injury to her neck. The plaintiff said that she had had slight trouble with her neck for some time comprising of headaches and occasional stiffness as a result of which she had physiotherapy about once a month over a period of a year. The plaintiff gave evidence of a number of periods of depression involving suicide attempts over the period prior to that motor vehicle collision, involving a suicide attempt resulting in treatment at the Flinders Medical Centre. The plaintiff acknowledged that she had a number of difficulties with personal relationships and a further suicide attempt occurred in 1988. The plaintiff further attempted suicide in about 1980-1981 and after taking tablets was admitted to a psychiatric hospital in 1991 in Victoria for some six weeks followed by some six months of counselling. During this period of recovery the plaintiff did not work. The counselling continued after the plaintiff resumed work.
9 The plaintiff in July 1990 suffered a fracture to he left leg, being the top of the fibular and an injury to her hip, not involving a fracture but soreness. She went back to work with a cast on her leg. The plaintiff recovered from her employer a settlement of some $14,000.00 and costs. Notwithstanding her broken leg the plaintiff was only a few days without being able to work. When a driver was arranged she resumed work and her left leg now leaves her with no disabilities.
10 The plaintiff continued to suffer from depression which she treated with medication but did not, at the time of the hearing, take any medication.
11 At the time of the 1994 collision the plaintiff was not undertaking any physiotherapy for her original neck injury although the plaintiff continued to suffer from a migraine condition which she had had previous to the injury sustained resulting in these proceedings. The plaintiff’s evidence was that she was happy in her employment and was good at it.
The Collision and Subsequent History
12 Shortly after the collision on the approach to the Harbour Bridge the plaintiff said that she was a little shaken up and had a headache but continued to do her duties and return to her home in the Newcastle area. She continued the next day with a stiff neck, sore back, aching arms and a nose bleed. The pain in her neck extended down her left arm. She did not seek treatment at that stage because she believed it was a “flare-up” from her previous injury and that it would settle down. Although continuing to work, she felt sore.
13 The plaintiff on 23 May 1994 went to a doctor at Port Macquarie concerning the consequences of her injury and was sent for x-rays. She was then suffering from what she described as ‘raging headaches’ but continued to work and eventually went, on 31 May, to see her G.P Dr Shah. She continues to have headache, neck, left shoulder and back pain.
14 After visiting various doctors the plaintiff was admitted to Lingard Private Hospital for an operation on her shoulder.
15 The plaintiff last worked for her employer on 3 November 1994 and that employer ultimately terminated her services in September 1995 at which stage she was still receiving treatment. The plaintiff was admitted to Newcastle Mater Misericordia Hospital in May 1995 for an overdose of tablets and alcohol resulting from the considerable pain from which she was suffering. The plaintiff said that she was worried about her financial commitments and what her future was.
16 The plaintiff has not worked since September 1995 her reason being that she did not have the ability to return to work, the plaintiff stating that she had ongoing headaches, stiffness, spasms in her neck, pins and needles and aching down both arms. She said that she had lower back aching pains, sharp pains down mainly down her left leg and some numbness in her hands and in the left part of her leg.
17 The plaintiff said that although Dr Pacey a rehabilitationist physician recommended injections as a block for pain. She declined to have that treatment, saying that she had spoken to other patients who were unhappy with the treatment and did not want to take any further risks.
18 The plaintiff made a further suicide attempt on 30 October 1995, she then going to James Fletcher Hospital to see the doctors there and was followed up by the Lake Macquarie Health Team.
19 On 3 November 1995 the plaintiff was admitted to Toronto Private Hospital under Dr Pacey for a rehabilitation brain program involving hydrotherapy, tapes and music, walking and talking, being a drug free pain management program. The plaintiff did not wish to continue with the pain management program and felt she was under pressure and suicidal again. The plaintiff did not know at that stage she was pregnant to her then finance who left after the birth of the child.
20 The plaintiff ultimately took in a boarder, a Mr Rick Crabb, whom she eventually married in April 1997, although the marriage only lasted about 6 weeks, Mr Crabb leaving and returning to Sydney. She and her husband at the time of the hearing were endeavouring to reconcile and were both receiving counselling, although were not living on a permanent basis. She has been receiving workers compensation payments since that time of approximately $526.00 a fortnight net. Her medical and hospital bills have been paid by the insurer. The plaintiff’s evidence was that she had received money from a superannuation policy of between $1,500.00 and $2,400.00.
21 The plaintiff’s explanation for her not working is that she believes extensive driving and lifting would cause her problems, that she should not lift anything over 10 kg because it would causes her pain. She said that he neck goes into spasm without notice and that she gets headaches but cannot tell if they are true migraines or neck related and how long it will last. She expressed fears that she would not be able to return to work and hold down a job because of these incapacities. Her evidence was that she was having difficulty with relationships around her and her son. She was taking no medication other than pain killers for her neck spasms, although she was taking Diazipam without being conscious that its effect was more than just pain.
22 The plaintiff’s evidence was that she was able to work around the house and on days that she was feeling great she was able to do pretty much everything. The plaintiff had said that she had some difficulty looking after her then two year old as he was getting heavier and harder for her to lift and that it hurts more now at the time of the hearing and she did not feel she could cope with the raising of a child as her coping skills were reduced. The plaintiff complained of having no quality of life and that sometimes she would lie on the floor and try to get her child to lie with her. She said that she had lashed out at her son when reacting to his screaming.
23 The plaintiff said that she did assist her husband from time to time in his lawnmowing activities. The plaintiff’s evidence was that when doing housework she had some problems, that she had a home computer and that she found she would get stiff in her back and arms and numbness in her fingers, and numb in her legs and lower pain and buttocks but that she has no difficulty in fact in working the computer as such.
24 The plaintiff said that she would like to work but that she did not believe that she could work more than part time initially but that she would like to work provided it did not involve driving long distances and that she would like to work in a sales or merchandising capacity. She had said that she had looked for some work and had applied for positions from anywhere between six to twenty five hours per week.
25 The plaintiff said that she would have continued to work in the same type of work as what she was doing for Brown Brothers and that she had missed that work because she enjoyed it very much. The plaintiff’s intention is to sell the house where she now lives and move to Victoria or South Australia where she has friends and a better support network.
Medical Evidence as to the plaintiff’s injuries
26 I have had a number of conflicting medical reports exhibited before me detailing the nature and extent of the plaintiff’s injuries on behalf of the plaintiff and the defendant which I now propose to examine.
27 On 23 May 1994 the plaintiff consulted Dr T King in Port Macquarie, in relation to the pain she was experiencing. Dr King noted some tenderness over the plaintiffs left deltoid muscle and that notwithstanding the plaintiff having a full range of movement over the cervical spine there was a slight tenderness over the lower part.
28 On 26 May 1995 x-rays were taken of her left shoulder and spine which revealed some loss of normal cervical lordosis in the neutral position of the cervical spine and a mild scoliosis convex to the right. The x-rays also revealed some restriction of flexion and extension of the spine but no evidence of a fracture or dislocation.
29 On 31 May 1994 the plaintiff consulted her G.P., Dr Shah at Fennell Bay, complaining of severe headaches, dizziness and pains in the shoulders with pins and needles and restricted movement. Examination of the plaintiff revealed a tenderness in the left trapezius and shoulder area with painful neck movements as well as some weakness on the left side. Dr Shah diagnosed severe soft tissue and whiplash injuries to her head, neck and left shoulder, restricted left shoulder movements, stress and anxiety. Dr Shah recommended the plaintiff undergo physiotherapy with local applications and heat treatment as well as a medrol injection in her left trapezius.
30 On 9 August 1994 the plaintiff was examined by Dr Morrissey a G.P. at Warners Bay, who referred the plaintiff to Dr Roland Hicks, orthopaedic surgeon.
31 On 13 September 1994 the plaintiff was examined by Dr Hicks. By this time the plaintiff had received physiotherapy as well as acupuncture from Dr Godfrey Fong, treatment from Dr Andrew Delbridge at the Hillsborough Physiotherapy and Sports Injury Centre, treatment from the Commonwealth Rehabilitation Service as well as treatment from Dr Wollard, a rehabilitation specialist.
32 Dr Hicks’ examination of the plaintiff conducted without x-rays, revealed a full range of active movement in her neck with end of range discomfort, tenderness and spasm over the right trapezius muscle and tenderness in the left and right supra clavicular regions. There was minor restriction of elevation of both shoulders because of neck and shoulder pain but no tenderness over the shoulders themselves.
33 Dr Hicks opined that the plaintiff’s neck and back symptoms and disability were consistent with injury sustained in the motor vehicle collision in 1994 and that she should continue with rest, exercise at home and with adequate oral analgesia. Dr Hicks recommended that further physiotherapy and similar management be reserved for any periods of exacerbation of symptoms.
34 On 18 November 1994 the plaintiff had an ultrasound taken of her left shoulder and CT scans of her neck and back which revealed a partial thickness tear of the supraspinatus tendon and impingement on abduction. The CT scan of the cervical spine showed no abnormalities but the CT scan of the lumbo-sacral spine showed a small partially calcified disc herniation at the L5-S1 segment.
35 On 11 January 1995 the plaintiff was further examined by Professor Ghabrial, Director of the Department of Orthopaedic Surgery at Royal Newcastle Hospital. Dr Ghabrial’s examination of the plaintiff revealed a decreased range of motion in her neck in all directions with left paraspinal muscle spasm and tenderness. Dr Ghabrial further found that the plaintiff has some loss of the normal lumbar lordosis with minor paraspinal lumbar spasm and a moderately restricted spinal range of motion and a slight limitation of straight leg raising with positive tension signs bilaterally. A neurological assessment of the lower limbs showed no abnormalities and femoral stretch and sacro-iliac tests were normal. Dr Ghabrial advised the plaintiff that she should preserve conservative management and instead be referred for rehabilitation assessment and management. The plaintiff was then referred to Dr Kemp an upper limb surgeon, who performed an arthroscopy and acromioplasty on the plaintiff’s left shoulder in 1995.
36 Dr Kemp in his report of 23 March 1995 reported the plaintiff’s shoulder to be in pretty good condition and that her range was very close to full and that she was moving fairly easily
37 On 26 April 1995, the next occasion Dr Ghabrial reviewed the plaintiff, he discussed with her the merits and dangers of surgical intervention after being advised that her symptoms persisted. In relation to the effect of those symptoms on the plaintiff’s life, Dr Ghabrial expressed his opinion, in his report of 19 May 1995, as follows;
“I believe that she is likely to continue with residual disabilities regarding her neck and back injuries as well as the left shoulder injury. It is unlikely that she will come to any surgery for her neck. However I could not exclude the option for the left shoulder and the lumbo-sacral region.”

38 Dr Ghabrial opined that the plaintiff was not fit, at that stage, for any work involving any lifting over 5kg, excessive bending and excessive use of her right upper limb. Dr Ghabrial assessed the plaintiff’s permanent impairment of her back to be at 25%, her neck at 20% and permanent loss of efficient use of the left lower limb at 15%. Dr Ghabrial suggested that the plaintiff continue with her treatment and rehabilitation program and return for review.
39 When Dr Ghabrial next examined the plaintiff on 16 August 1995 he opined that she be referred to a neurologist for her headaches and to a rehabilitation physician concerning management of her lower back pain. As for surgery Dr Ghabrial stated in his report of 16 August 1995 as follows;
“Surgery is reserved for severe pain and sciatica and I do not think she is in that category to rush towards this surgery for her lower back.”
40 Dr Ghabrial then referred the plaintiff to Dr Dianne Pacey, consultant rehabilitation physician.
41 In her examination of the plaintiff on 14 September 1995, Dr Pacey found the plaintiff to have a depressed effect demonstrating considerable pain behaviour. Dr Pacey found that the plaintiff had a protracted posture, loss of lumbar lordosis, stiffness of spinal movement and limited extension. Normal range of movement of the cervical spine was assessed at 50%. Dr Pacey diagnosed the plaintiff to have suffered extensive soft tissue injury to the spine with CT scan evidence of disc herniation at L5-S1 and probable zygapophyseal joint disruption of the cervical spine. Dr Pacey also diagnosed a left supraspinatus tear.
42 Dr Pacey recommended the plaintiff undergo a supervised rehabilitation program involving a graduated exercise program, and the involvement of a social worker to look at pain management, supportive counselling and psychosocial issues. Dr Pacey also recommended referral for z joint diagnostic blocks to relieve the headaches.
43 On 24 November 1995 the plaintiff was examined by Dr John Christie, neurosurgeon at the request of Dr Shah. Dr Christie who found the plaintiff to have poor range of voluntary neck movement and a poor range of voluntary left shoulder elevation opined that there was little he could do for the plaintiff by way of treatment and held the view that surgery was unlikely to improve the situation.
44 On that same day, being 24 November 1995 the plaintiff was also examined by Dr Peter Burgess, who found the plaintiff to be quite disabled with neurological symptoms in both hands representing a 10% permanent loss of efficient use of both her arms and a 25% permanent impairment of her neck.
45 In relation to her left shoulder Dr Burgess, diagnosed that the plaintiff had developed a left shoulder post-traumatic capsulitis with partial tear of the supraspinatus tendon causing impingement on shoulder abduction and some degree of trauma to the acromioclavicular joint. Dr Burgess recommended the plaintiff try depo-cortisone and local anaesthetic injections. As to the plaintiff’s injury to her back, Dr Burgess diagnosed the plaintiff as suffering from classical signs of disc prolapse with left sciatica representing a 20% permanent impairment.
46 Dr Burgess also found the plaintiff to be showing signs of reactive anxiety and stress and felt it essential for the plaintiff to consult a psychologist or psychiatrist.
47 On 20 December 1995 the plaintiff was examined by Dr Gordon Kerridge, at the request of the defendants solicitors. Dr Kerridge was of the view that the plaintiff has most definitely suffered a severe sprain injury of the neck and a partial tear of the supraspinatus section of the rotator cuff, and possibly an injury to her back. Dr Kerridge assessed the plaintiff’s injury to her neck at about 15% impairment, a 10-15% impairment of her back and a 20% loss of efficient use of her left arm.
48 On 26 March 1996 the plaintiff attended the Department of Rehabilitation Medicine at Prince Henry Hospital where she was examined by the Director, Professor Richard Jones.
49 On 12 March 1997 the plaintiff was again examined by Dr Ghabrial at the request of her solicitors. Continuing to complain of neck, back and shoulder pain, Dr Ghabrial found the plaintiff had suffered soft tissue injury to the neck, a partial tear of the rotator cuff of the left shoulder and an injury to the L5/S1 disc with disc prolapse and impingement on the left S1 nerve.
50 In his report of 12 March 1997 Dr Ghabrial opined that the permanent impairment of her back was 25%, her neck 20%, the permanent efficient use of her left lower limb at or above the knee was 15%, and the permanent loss of the efficient use of the left upper limb at or above the elbow at 20%. Dr Ghabrial opined that although the plaintiff’s condition had stabilised and future complications are highly unlikely the plaintiff was likely to continue with her present residual disabilities.
51 On 14 November 1997 Dr Ghabrial assessed permanent impairment of the back at 25%, the neck 20%, permanent loss of the efficient use of the left upper limb at or above the elbow at 20% and permanent loss of efficient use of the left lower limb at or above the knee at 15%. Dr Ghabrial was of the view that whilst the plaintiff’s condition was reasonably stable he could not exclude the possibility of further surgical intervention for her lower back. Dr Ghabrial maintained the same views in his final report of 7 April 1998.
52 The plaintiff also underwent a number of psychiatric assessments, one of whom Dr Peter Corrigan, consultant psychiatrist, assessed the plaintiff on several occasions, the first being in March 1995 in conjunction with the Lake Macquarie Mental Health Team, after she had taken an overdose of medication in an attempt to end her life. Dr Corrigan then assessed the plaintiff on 26 July 1995, 10 August 1995, and 28 September 1995.
53 On the last occasion Dr Corrigan assessed the plaintiff, that is on 28 September, he was of the view that the plaintiff’s mental state had not significantly improved but had been aggravated by termination of her employment and significant financial stressors and by chronic pain and disability. Dr Corrigan diagnosed the plaintiff as having an adjustment disorder with depressed mood and warranted supportive psychotherapy as well as psychological strategies at coping with pain.
54 In her first assessment on 31 October 1995, Dr Howard Smyth, the duty registrar noted the plaintiff’s physical mental and social decline since the accident as well as a history of personal difficulties with repeated suicide attempts predating the vehicle accident. Dr Smyth diagnosed an adjustment disorder with mixed emotional features on a background of borderline personality disorder. Dr Smyth could not however find a reason to admit the plaintiff on this occasion under the Mental Health Act since she was not displaying overt suicidal tendencies and instead put her in contact with the Lake Macquarie Mental Health Team.
55 On 8 November 1995 the plaintiff was sent to James Fletcher Hospital by Dr Pacey on a Schedule 11 being a mentally disordered patient as she was expressing suicidal ideation. Despite describing feelings of hopelessness and powerlessness in the face of stress Dr Slowiaczek, the duty doctor at James Fletcher felt the plaintiff displayed considerable ambivalence about suicidality and he did not consider the plaintiff displayed worrying evidence of a major depression. Dr Slowiaczek recommended the plaintiff continue to receive help from the Lakes Mental Health Team.
56 The plaintiff underwent a further psychiatric assessment on 24 January 1996 at the request of her solicitor. This assessment was performed by Leonard Lambeth at Warners Bay. In his report of 30 January 1996 Lambeth diagnosed the plaintiff as being depressed and opined that she required further treatment with antidepressant medication and psychotherapy on a weekly basis. According to Lambeth the plaintiff’s existing depressive personality “laid the foundation for her to become depressed in the face of almost any adversity.”
57 When he next assessed the plaintiff the following year on 17 February 1997 Lambeth’s prognosis that the plaintiff was depressed had not changed and recommended further psychotherapy. At the time of this assessment the plaintiff had ceased seeing her psychiatrist, Dr Corrigan and was not taking anti-depressant medication.
58 Ignoring Lambeth’s advice, the plaintiff did not have regular psychiatric treatment nor did she attend Shortland Clinic.
59 On 12 August 1997 the plaintiff was again assessed by Lambeth. Lambeth’s opinion of the plaintiff remained unchanged and totally rejected the idea as propounded by Collin Bass that the plaintiff was suffering from Factitious Disorder and/or Malingering.
60 In his last report of 24 May 1998 Lambeth after having assessed the plaintiff on 21 May 1998, and noting that the plaintiff had again ignored his instructions to seek regular psychiatric help, opined that whilst the plaintiff has improved somewhat, she remained depressed. Lambeth continued to ho1d the view that the depression was exacerbated by her depressive personality. Lambeth recommended the plaintiff trial proper SSRI antidepressants (Prozac and the like) as well as cognitive behavioural treatment to help her not to think negative and maximise her abilities.
61 The evidence of Dr Lambeth is that the plaintiff had a history of depression dating back to 1987 and as such the plaintiff was vulnerable to psychological disorder and depression. Dr Lambeth was of the opinion that there is an inter-reaction between chronic pain and an inability to cope and that the plaintiff had an inability to respond to everyday routine. Dr Lambeth further opined that when the activities on video were described to him, of the plaintiff looking happy, friendly and communicative and interacting with other people, he said that it was not inconsistent with the depression described in his report. Dr Lambeth conceded that in expressing his views that he was dependant on the veracity of what he was told by the plaintiff.
62 The defendant then called a Dr Kerridge who was asked in addition to the opinion he had expressed, about the symptoms which the plaintiff had described to him and about his opinion of the plaintiff, having watched the videos exhibited before the court. Dr Kerridge was told of the sort of work that the plaintiff had been doing and opined that he could see no evidence to show that the plaintiff was unfit, although he would not be able to make a positive physical diagnosis. Dr Kerridge further expressed the view that the plaintiff seemed to be able to do everything she had wanted. His view that there was no similarity in the presentation that the plaintiff have to him and what he saw on the video.
63 Dr Kerridge’s evidence was that the plaintiff had told him that she had a level of pain at constantly seven or eight on a scale of nought to ten but sometimes worse. Dr Kerridge, who I accept as a dispassionate witness whose evidence was not intended and clearly did not intend to favour either party, was of the view that if the plaintiff were suffering pain at a level of about eight to ten then she would not have been able to carry out the physical activities observed on the videos.
64 Dr John Shand gave evidence as to his examination of the plaintiff on behalf of the solicitors for the defendant. His evidence was that the plaintiff had given him a series of complaints and that he carried out a physical examination. Dr Shand’s opinion as set out in his reports based on the history he was given and an examination of the other reports was that the plaintiff did suffer from major depression and that the accident and injuries had been a major contributing factor of her depression although in his report of 14 March 1996 he said that he did not know the precise date of the onset of depression.
65 Dr Shand expressed the view that she was under the care of the psychiatrist Dr Kerrigan and that she should be continued on antidepressant medication. His later opinion on 5 August 1997 was that the accumulated information which Dr Shand then had supported a diagnosis of a long standing personality disorder with multiple overdoses and a psychiatric history that goes back at least to 1997 and probably well before that into her childhood which contained a dysfunctional family with whom she only had very rare contact.
66 In his further report of 15 May 1998, Dr Shand’s examination showed the plaintiff’s range of movements to be full and painless although tender to palpitation on the right side of the lumbo-sacral spine. His view was that with the possible exception of the left shoulder and to a lesser extent the neck and lower spine the results of his examination did not support significant disorder. His view then was that the diagnosis of a secondary psychiatric disorder was doubtful.
67 The evidence of Dr Owen White in his report of 14 January 1998 was that the plaintiff did not suffer a physical or psychiatric disorder as a consequence of the motor vehicle accident on 20 May 1994 which is significant enough for her to prevent her from living a normal life.
68 Dr Colin Bass is of the view that the plaintiff suffers a Factitious Disorder and Malingering behaviours pre-dating her car accident in May 1994 and that the plaintiff is suited to positions such as those previously held by her and capable of carrying them out.
69 I have not attempted to summarise all of the vast amount of medical evidence tendered in the proceedings and have selected some of that evidence to demonstrate the nature of the difficulty the court has in assessing that evidence and the basis for any findings.
The Plaintiff under Cross-Examination
70 The plaintiff, in the course of cross-examination demonstrated, in the manner of giving evidence and in her evidence that she gave, including a series of admissions which contradicted much of her evidence in chief, that she had exaggerated and in some cases fabricated some of her evidence. Examples of this are in relation to her claim that her vehicle was hit at some 80 or 90 kms per hour. When it was demonstrated to her that this was patently absurd, her evidence was that all vehicles travel at that speed at that location. She had, in fact, not seen the vehicle before the collision.
71 When asked about some of the history that the plaintiff had given some of the examining doctors her answers were evasive such as at transcript, p.42 when she answered “It may have been possible”, “That may have been possible at that time”, “I honestly couldn’t say” and “I can’t remember.”
72 In relation to the examination by Professor Jones at the Department of Rehabilitation of Prince Henry Hospital it was clear that some of the history which the plaintiff gave Professor Jones was an embellishment and exaggeration of the restrictions and pain which the plaintiff. When challenged in cross-examination about her physical capacities the plaintiff again became evasive in her manner and the phrasing of her answers. On almost each occasion when the plaintiff had to admit incapacity, she would mitigate her answer by indicating that she would “pay for it” later, in terms of pain to reduce the implication that she was not suffering as much as she alleged. In cross-examination about fishing activities which the plaintiff said she carried out, the plaintiff said that she had observed someone with a camera pointing the camera in her direction.
73 The plaintiff was cross-examined about a series of videos which were taken of her over a period of November 1995 to early 1997. The videos were exhibited before me and played in court.
74 The first of these videos showed the plaintiff gardening, crouching, bending and freely walking. The video also showed her stretching upward to her clothes line, lifting a sizeable aluminium ladder which she carried without any apparent difficulty, climbing to the top of the ladder and extending her arms upwards to work on blinds.
75 Another video showed her at a garage sale bending, lifting and stretching without apparent restriction, moderately heavy objects and generally conducting herself in a relaxed and apparently happy disposition. A further exhibited video showed the plaintiff fairly progressed during her pregnancy, carrying a birdcage moving freely, and moving in a relaxed and easy manner. The video showed her lifting bending and crouching with no apparent restriction and fairly free arm movements extended above her head touching her hair.
76 A further video showed the plaintiff moving freely, reaching and carrying objects, putting objects into a car boot with ease, and stretching and moving forward at fairly awkward angles. A further exhibit showed the plaintiff shopping, demonstrating the ease of her turning her head when working in the garden. It showed her moving fairly quickly bending and carrying out various garden activities. A video also demonstrated the plaintiff fishing, lifting a stroller, bending and stretching with apparent perfect ease. This latter video was the occasion when the plaintiff became aware that she was being filmed.
77 When further cross-examined about what was depicted on the videos it is apparent that the plaintiff, when giving her evidence in chief, had been conscious that she would face some video evidence. She endeavoured to qualify any negative evidence such as at p.71 of the transcript, “Q. You certainly weren’t depressed on that day were you ?” When asked about her activity on film her answer was, “Not that it showed.” She was also asked on p.71 of the transcript “Did you have headaches in January 1996 ?” to which she answered “I have headaches all the time.” At a further stage when asked about what she could do, her answer was at p. 73 “I do everything now whether it causes me pain or not.”
78 From the examination and cross-examination of the plaintiff and the evidence of the private inquiry agent who took the film of the plaintiff with the birdcage and talking, I find that the plaintiff has exaggerated and embellished considerably her injuries. Obviously the plaintiff has only been filmed on days when she is able to work in the garden, and it is not possible to say that she is not in some pain and that on occasions when she doesn’t go out are days when she suffers from more pain than when she does go outside.
79 The plaintiff unquestionably had periods of depression leading to the suicide attempts. This condition preceded the accident anf continued afterwards. It is not inconsistent with such people that they have ebullient periods and the plaintiff clearly is, from looking at her manner in the witness box and on the video, an effervescent, outgoing ,energetic sort of person who I accept would do things even though she may be in pain, but clearly the answers which she has given to most of the doctors were an attempt by her to give a considerably worse picture than she in fact endured.
80 It is clear from the list of disabilities, exhibited before me, that she showed to Professor Jones that she was conscious of presenting her injuries in the worst possible light. It is also clear that her evidence on the limitations of her lifting capacity are also not consistent with the video evidence.
81 The plaintiff largely presented visually as a relaxed, happy, industrious person who demonstrated not the slightest restriction in her movement, even though, obviously, there may have been such restrictions which were not noticeable.
82 The plaintiff clearly did suffer a substantial injury to her shoulder, her spine and neck. The operation which she had performed on her appears to have relieved some of the symptoms and restrictions in her shoulder. I do not doubt that there was ongoing pain and other symptoms. The difficulty with the plaintiff’s case is to assess the extent of those symptoms of pain, headaches and the like.
83 A person who had pre-existing neck injuries and who always had headaches has a difficult task of demonstrating injury resulting from the actions of the insured driver.
84 The plaintiff has demonstrated a list of symptoms which are not easy to corroborate since the history given to many of the doctors who have not necessarily any basis for questioning that history provided to them largely depend that history in the forming of an opinion. Some of the doctors have in fact carried out physical examinations and determined inconsistencies between what the plaintiff has said and her demonstrated abilities both in the surgery under examination and in the videos.
85 I find the plaintiff’s credibility to be seriously impaired which required the reading down of much of her evidence as to the damages she suffered.
Damages
86 The plaintiff has clearly suffered a severe injury to her neck, shoulder and the lumbo-sacral region of her spine as a result of the collision which occurred on 20 May 1994. I consider that her ability to lead a normal life has been significantly impaired for a period of more than six months by the injuries suffered in the accident.
87 The plaintiff was unable to work for periods of time before ceasing employment in November 1994 with her employer and had several periods of treatment for the physical injuries she sustained and would have been unable to work for some period which is not easy to define after the operation which ensued.
88 The plaintiff already clearly suffered from a depression condition with episodes of suicide before the collision the subject of these proceedings and already had migraines and headaches and neck pains from the pre-existing injury.
89 She has endeavoured to sheet home the cause of her continuing problems as submitted by Counsel for the defendant, to this collision. The videos demonstrate that only a short while after the symptoms were explained to doctors examining her that she is quite capable of physical activity contrary to the history given to almost all of the doctors.
90 The plaintiff has partly contributed to her own suffering by her failure to mitigate damages and in ignoring the advice given to her as to treatment, particularly in that given by her psychiatrist Dr Corrigan. The plaintiff has chosen not to mitigate damages for her own reasons, whether understandable or otherwise, but nevertheless has chosen to continue without assistance for her depressed state by way of medication, counselling and future treatment.
91 She has however suffered a severe injury and I find there has been exacerbation of the pain symptoms from which she suffered prior to the accident. I consider that the amount of damages to be awarded for non-economic loss as a proportion of the maximum amount which may be awarded for a most extreme case is, taking into account the pain and suffering and the fact that there is ongoing depression exacerbated by continuing pain symptoms is 25% and the amount therefore I allow is the sum of $65,000.00

Past Economic Loss
92 The plaintiff was earning $508.00 net per week at the time of the accident and had the use of a company car although that use was in fact restricted in terms of her engagement but probably not in fact. I consider that the use of a company car is probably worth about $120.00 per week. I do accept the contention based on average NSW female weekly earnings as submitted by the Counsel for the plaintiff that the plaintiff would have increased her average weekly earnings based on the progress of female average weekly earnings at a rate of 1.17.
93 I do not, however, consider that the plaintiff has been unfit for work for the whole of that period. She clearly has been looking for work, on her own evidence, but in my view has not made a serious attempt to find employment. She says that she is going to move to South Australia or Victoria but when asked about why she was seeking employment, in Newcastle she indicated that nothing was set in concrete. The plaintiff was able to work until November 1994 then clearly had problems that were pain related and in part caused an exacerbation of a pre-existing physical and psychological condition.
94 I consider that she was unable to work from November 1994 until a period of two months after the arthroscopic acromioplasty which took place on 9 March 1995, being a period of seven months at what I assess as an average for that period to be the amount of $515.00 net per week plus $120.00 net per week for the use of the car. I consider that the plaintiff, in terms of the wide range of skills and the fitness which she has demonstrated that the plaintiff would have been able to return to some part time work of the order of 20 hours per week for a period of six months thereafter.
95 I consider that her adaptability as demonstrated by her earlier work history would enable the plaintiff to in fact obtain suitable employment on a part time basis. Waitressing, bar tendering and sales promotions clearly would provide her with ample opportunity. Such period would probably be without a car and she would lose the benefit of $120.00 per week.
96 Thereafter, I consider the plaintiff now capable of working full time notwithstanding the exacerbation of her pre-existing physical condition and psychological condition.
97 I find that the plaintiff has not demonstrated, notwithstanding the injury, that this would result in loss of her employment. The credibility of the plaintiff was seriously shaken both in cross-examination and by virtue of the significant variation of her history as given to various doctors and the actuality demonstrated by the videos. It is submitted by Mr Dodd for the defendant that there would be a significantly higher level of vicissitudes because of her pre-existing physical and psychological condition.
98 I accept that this is correct and that the plaintiff will continue to have a potential for changes of employment and unemployment during the periods of her depression. I consider, however, that the exacerbation of her pain symptoms through the shoulder and spine injuries are such that in conjunction with the pre-existing psychiatric condition that she is likely to have an exacerbation of periods of unemployment and job loss.
99 I consider that it is almost impossible on the evidence that can be presented in a case such as this to quantify this in loss of hours per week. I consider it therefore appropriate to allow a lump sum for future economic loss to compensate the plaintiff for the non-earnings periods as a result of the exacerbation of her pain existing depression condition, and thus I allow a sum by way of cushion, of the amount of $40,000.00 to include the loss of use of a motor vehicle and additional medication during those periods of unemployment.
100 It is submitted without challenge that the plaintiff’s actual post injury earnings were the sum of $9,44.00. I don’t know in the period since reservation of judgment if there has been any change of this amount and therefore I grant leave to the parties to bring this amount up to date.
101 Fox v Woods has been calculated on the basis of a full wage loss and therefore I allow the parties liberty to agree or make submissions as to an appropriate amount.
102 I allow interest on past economic loss at the rate of 4.125% agreed between the parties.
103 The parties have agreed that the payback under the Workers Compensation Act was at the 13 October 1998, the sum of $120,060.08. This sum will need to be brought up to date of judgment and I grant the parties liberty to provide evidence as to this amount.
104 I grant the parties liberty to apply in respect of any other matter not covered by the findings above.
105 The orders that I therefore make are as follows;

1. Verdict for the plaintiff.
2. I allow the sum of $65,000.00 for non-economic loss.
3. I allow the sum of $40,000.00 for future economic loss.
4. I grant the parties liberty to apply in respect of the calculation of damages in respect of the findings above.
5. The defendant is entitled to deduct payments made under the Workers Compensation Act and the amount of the s.66 and 67 payment under that Act.
6. Any claim as to interest is reserved.
7. Costs are reserved.

oOo

Last Modified: 06/04/1999