James v USM Events Pty Ltd
[2022] QSC 63
•14 June 2022
SUPREME COURT OF QUEENSLAND
CITATION:
Sally James v USM Events Pty Ltd [2022] QSC 63
PARTIES:
SALLY JAMES
(plaintiff)
v
USM Events Pty Ltd(defendant)
FILE NO/S:
BS 1129/20
DIVISION:
Trial Division
PROCEEDING:
Civil
ORIGINATING COURT:
Supreme Court of Queensland at Brisbane
DELIVERED ON:
14 June 2022
DELIVERED AT:
Brisbane
HEARING DATE:
24, 25, 26, 27, 28, 29 May 2021
Further submissions – 4 June 2021, 8 June 2021
Further hearing – 7 April 2022
JUDGE:
Brown J
ORDER:
The order of the Court is that:
1. The parties are to provide a draft order by which the defendant is to pay the plaintiff damages, having checked the calculations in [562] of these reasons, within fourteen days of the date of these reasons.
2. The parties should provide submissions as to costs within fourteen days of the date of these reasons.
CATCHWORDS:
TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – where plaintiff claims damages for physiological and psychological injuries suffered while competing in a duathlon organised by the defendant – whether the plaintiff’s injury, if any, was suffered as a result of the collision with the para-athlete – whether the scope of the duty owed by the defendant extended to the plaintiff – whether the defendant breached the duty of care owed – whether any breach by the defendant caused an injury to be suffered by the plaintiff
TORTS – NEGLIGENCE – DEFENCES – OBVIOUSNESS – OBVIOUS RISK – whether risk of collision between an able-bodied athlete and a para-athlete would have been obvious to a reasonable person in the position of the plaintiff – whether voluntary assumption of risk
TORTS – NEGLIGENCE – DEFENCES – INHERENT RISK – whether risk of collision between an able-bodied athlete and a para-athlete was a materialisation of an inherent risk in the conduct of the duathlon
TORTS – NEGLIGENCE – CONTRIBUTORY NEGLIGENCE – Where the defendant claims the plaintiff was contributorily negligent – whether the plaintiff was contributorily negligent and what apportionment should be allotted
DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF EARNINGS AND EARNING CAPACITY – Where the plaintiff suffered physical injuries, including cervical spine and lumbar spine injuries, and psychological injuries – Where damages assessed pursuant to the Civil Liability Act 2003 (Qld)
Acts Interpretation Act 1901 (Cth) s 2C
Australian Constitution s 109
Competition and Consumer Act 2010 (Cth) ss 87E, 87ZA,139A, Sch 2, 2, 3, 15, 60, 61, 64, 137C, 236, 237, 267, 275
Consumer Guarantees Act 1993 (NZ) ss 28, 29
Civil Liability Act 2003 (Qld) ss 9, 10, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 59, 60
Civil Liability Regulation 2014 (Qld) Sch 4
Civil Proceedings Act 2011 (Qld) s 61
National Disability Insurance Scheme Act 2013 (Cth) ss 11, 103, 104, 106, 108, 109, 111, 116
Trade Practices Act 1974 (Cth) s 74
Trade Practices Amendment (Australian Consumer Law) Bill (No. 2) 2010 (Cth)Uniform Civil Procedure Rules1999 (Qld) rr 5, 149, 157, 376
AB by her tutor Mb v State of New South Wales [2018] NSWSC 765, cited
Agar v Hyde (2000) 201 CLR 552, cited
Alameddien v Glenworth Valley Horse Riding Pty Ltd (2015) 324 ALR 335, considered
Anderson v Mount Isa Basketball Association Incorporated [1997] QCA 340, cited
Blatch v Archer (1774) 1 Cowp 63, cited
Castle v Perisher Blue Pty Ltd [2020] NSWSC 1652, cited
Collins v Clarence Valley Council (2015) 91 NSWLR 128, considered
Coles Supermarkets Australia Pty Ltd v Bridge [2018] NSWCA 183, cited
Cook’s Construction Pty Ltd v SFS 007.298.633 Pty Ltd (formerly t/as Stork Food Systems Australasia Pty Ltd) (2009) 254 ALR 661, cited
Felhaber v Rockhampton City Council [2011] QSC 023, cited
Klein v SBD Services Pty Ltd [2013] QSC 134, cited
Let’s Go Adventures v Barrett [2017] NSWCA 243, considered
Meandarra Aerial Spraying Pty Ltd v GEJ & MA Geldard Pty Ltd [2013] 1 Qd R 319, cited
Menz v Wagga Wagga Show Society Inc (2020) 103 NSWLR 103, cited
McQuilty v Midgley & Anor [2016] QSC 36, cited
Moore v Scenic Tours Pty Ltd (2020) 268 CLR 326, considered
Motorcycling Events Group Australia Pty Ltd v Kelly (2013) 86 NSWLR 55, cited
Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471, cited
Nicolich v Webb [2019] WADC 58, cited
Nucifora & Anor v AAI Limited [2013] QSC 338, cited
Perisher Blue Pty Ltd v Nair Smith (2015) 90 NSWLR 1, cited
PWJ1 v The State of New South Wales [2020] NSWSC 1235, cited
Rickhuss v Cosmetic Institute Pty Ltd (No 2) [2020] NSWSC 393, considered
Roads v Traffic Authority of NSW v Dederer (2007) 234 CLR 330, considered
Rootes v Shelton (1967) 116 CLR 383, considered
Rossi v Westbrook & Anor [2013] QCA 102, cited
Scenic Tours Pty Ltd v Moore (2018) 361 ALR 456, considered
Sharp v Home Care Service of NSW [2018] NSWSC 1319, cited
Singh v Lynch (2020) 103 NSWLR 568, cited
Sutherland Shire Council v Heyman (1985) 157 CLR 424, cited
Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd [2020] NSWSCA 263, considered
Tapp v Australian Bushmen's Campdraft & Rodeo Association Limited [2021] HCATrans 190, cited
The State of Queensland v Kelly [2015] 1 Qd R 577, cited
The Thistle Company of Australia Pty Ltd v Bretz & Anor [2018] QCA 6, cited
Thompson v Woolworths (Queensland)Pty Ltd (2005) 221 CLR 234, cited
Towers v Hevilift Ltd [2020] QSC 77, cited
Trevali Pty Ltd (trading as Campbelltown Roller Rink) v Haddad (1989) Aust Torts Reports 80-286, considered
Uniting Church in Australia Property Trust (NSW) v Miller (2015) 91 NSWLR 752, cited
Vairy v Wyong Shire Council (2005) 223 CLR 422, cited
Van Gerven v Fenton (1992) 175 CLR 327, cited
Wade v J Daniels Associates Pty Ltd [2020] FCA 1708, cited
Wilson v Nilepac Pty Ltd (t/as Vision Personal Training) Crows Nest [2011] NSWCA 63
Whisprun Pty Ltd (formerly Northwest exports Pty Ltd) v Dixon (2003) 200 ALR 447, cited
Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460, cited
Wyong Shire Council v Shirt (1980) 146 CLR 40, consideredCOUNSEL:
M Grant-Taylor QC with G C O’Driscoll for the Plaintiff
A P Collins for the DefendantSOLICITORS:
Travis Schultz & Partners for the Plaintiff
Carter Newell Lawyers for the Defendant
Background
The applicant, Dr Sally James (“Dr James”), had, after some years of personal difficulties, determined to change her lifestyle, lose weight and become fit. One of the ways she determined to do this was taking up participation in triathlons. She completed her first triathlon in March 2016 at Mooloolaba. She subsequently competed in a number of triathlons which included the Gold Coast Triathlon – Luke Harrop Memorial (“GCT”) in 2017. In February 2018, she competed in the GCT held at Mitchell Park, Broadwater Parklands at Southport. Due to water conditions, the event was changed to a duathlon the day before the race. It, therefore, only involved a run leg, a cycling leg and a further run leg. Dr James was disappointed as swimming was her strongest sport. However, given she had already travelled to the Gold Coast she decided to compete on 25 February 2018. While undertaking the return leg of the first run leg, she was running into the Broadwater carpark area with a number of people. She heard yelling and swearing that startled her. She was knocked over by para-athlete in a racing wheelchair, Mr Bill Chaffey. She remembered Mr Chaffey, ricocheting out of his wheelchair and hitting the ground but little else. That is said to have resulted in a brain and psychiatric injury as well as some other relatively minor injuries.
The defendant, USM Events Pty Ltd (“USM”), was the organiser and operator of the event. USM does not dispute that it owed Dr James a duty of care but does dispute the extent of the duty owed. The issue for this court is whether the injuries suffered were caused as a result of any breach of duty by USM, and if so, the extent of the injuries suffered.
Dr James sues USM claiming damages for negligence and as a result of a breach of Section 60 of the Australian Consumer Law (“ACL”),[1] which is pleaded as an implied term of the contract.
[1]Schedule 2 of the Competition and Consumer Act 2010 (Cth) (“CCA”).
USM accepts that it owed a duty of care to avoid the foreseeable risk of injury to Dr James in relation to the event. That was largely where any agreement in relation to the issues of the case ended. It, however, disputes the extent of the duty of care pleaded by Dr James and that it breached any duty of care. USM has raised a number of defences based on obvious and inherent risk and that Dr James had voluntarily assumed the relevant risk by entering the competition. It is also alleged Dr James’ damages should be reduced for contributory negligence. There is also significant dispute as to what, if any, injuries were suffered by Dr James as a result of the collision with Mr Chaffey on that day and the effect that that has had on her ability to work. In addition to disputes as to the quantum of damage in terms of the injuries suffered and Dr James ability to return to work, there is a dispute as to whether the damages should include a payment to the National Disability Insurance Agency (“NDIA”) in anticipation of the NDIA seeking recovery of the payment of monies and whether future expenses should be calculated by reference to the payment provided under the NDIS plan. There is also an issue as to how Dr James’ bankruptcy is appropriately dealt with in terms of damages, if at all.
The issues that must be decided in relation to this matter are as follows:
(a)the extent of any duty of care owed and whether there was a breach of that duty by USM;
(b)whether any breach by USM caused an injury to be suffered by Dr James;
(c)do any of the defences under the Civil Liability Act 2003 (Qld) (“CLA”) apply;
(d)what was the injury suffered by Dr James, if any, as a result of the collision with the para-athlete;
(e)what is the appropriate quantum of damages;
(f)should damages be reduced as a result of Dr James failing to take reasonable care for her own safety;
(g)has Dr James established a claim under s 60 of the ACL on the basis that the service of providing an event was not rendered with due care and skill; and
(h)if a claim can be made under s 60 of the ACL, do any of the defences under the CLA apply or is there any other matters which would exclude liability or limit the quantum and how is damages to be calculated.
Issues arose at the end of the trial as to the pleading of the purported cause of action under the ACL, whether Dr James could raise a case based off USM’s knowledge of Mr Chaffey, and a contention that there could be a painted line between the para-athletes in wheelchairs and other athletes.
Prior to considering the above issues, I will consider the evidence.
Uncontroversial facts
The following facts were admitted in the pleadings or subsequently were accepted as uncontroversial in final submissions.
USM was experienced in the design and conduct of triathlons and conducted the holding of such events as a business for profit. USM has regard to Triathlon Australia’s Event Operations Manual, which does not provide for any specific width for a course when there is a combined able-bodied and para-athlete event. USM had held combined events prior to the present.
There were multiple categories of competitors to allow elite competitors to compete in the GCT as well as all members of the community of all ages including people with disabilities. Competitors paid an entry fee to compete. The rules of competing in triathlons in Australia which applied were primarily the Triathlon Australia Race Competition Rules (the “Rules”).
Participating athletes had been sent an Athlete Information Guide in relation to the event in January.[2]
[2]Exhibit 47.
The GCT had been designed in 2017 with some further insubstantial adjustments in 2018 in preparation for the course being used for the Commonwealth Games. Hosting the triathlon involved a process of seeking permits from the Department of Transport and Main Roads (“DTMR”) as well as working with the Queensland Police Service (“QPS”) and the Council.
The course had however changed from the course originally designed for the triathlon to a duathlon just prior to the GCT.
According to Ms Daamen, another competitor, athletes were notified of the decision to change the event to a duathlon on the afternoon before the event, via Facebook and email. Dr James was sent an email notifying of the change of course. I accept that Dr James did not however, become aware of the decision until the morning of the competition. By the time of the GCT Dr James had been competing in triathlons for almost two years.
As a result of the course being changed from a triathlon to a duathlon:
(a)the athletes completed the course in an anti-clockwise as opposed to a clockwise direction;
(b)the swim leg was removed;
(c)there were two run legs, one of two and a half kilometres followed by the cycle leg of 20 kilometres and a final run leg of five kilometres (which required the running of the two-and-a-half-kilometre leg twice); and
(d)Dr James’ category was the sprint category which changed from wave starts (as occurred in the GCT for the swim leg) to rolling starts in each category.
The change to the course which was announced over a public speaker system approximately every five minutes as new athletes moved to the starting area.[3] At least some athletes were told the afternoon before of the change. The GCT was an all-age event with amateur and elite triathletes of all ages and was open to para-athletes.
[3]Affidavit of Rebecca Laura Van Pooss sworn 27 May 2021 (“Van Pooss Affidavit”) at [68(a)].
If the event had proceeded as a triathlon, able-bodied athletes and para-athletes would have been on the course at the same time.[4]
[4]Van Pooss Affidavit at [73].
The para-athletes were generally part of the overall wave start but started at the beginning of wave starts.[5] With the change to the duathlon, the para-athletes still started using a ‘wave start’ but the remaining event for able-bodied athletes in the sprint category were started by ‘rolling starts.’ According to Ms Van Pooss, the para-athletes in wheelchairs were started earlier to minimise the time they were on the course with the able-bodied athletes.
[5]T4-91/30-36; Exhibit 46.
The rolling starts would have increased the number of athletes on the course at least at the start and for a period thereafter. There is a natural dissipation of athletes over time on the course.
The duathlon involved athletes of varying abilities and the category in which Dr James was competing consisted of 1,271 athletes, however there were up to 1,462 athletes spread across the course with the para-athlete and enticer categories of athletes having had earlier starts. The 1,271 athletes in the sprint category commenced rolling starts at 8:13am, with Dr James commencing at 8:33am.[6]
[6]Van Pooss Affidavit at [37].
USM accepts that given both the para-athletes and able-bodied athletes had to complete the same two and a half kilometre run leg of the course twice, there was a probability that some of them would come across each other on the last leg. The cycling course was separate.
In the area where the incident occurred the athletes had turned left on an angle from Marine Parade and then after 30 to 40 metres of proceeding in a straight line, there was an ‘s’ shaped curve which narrowed to five to six metres for 30-40 metres with curbing on the left and barriers to the right (the “s-bend”). After proceeding through the s-bend, the athletes on the first leg proceeded in a generally straight path to the transition area, whereas those on the final leg had to make a turn to travel towards the finishing line.
There were barriers to separate the running field and the cyclists as they entered into Mitchell Park and the s-bend. There was a combination of witches’ hat cones or crowd control barriers to point the demarcation in key position points to separate outbound and inbound runners.[7] There were no barriers or other separation devices positioned on the course to separate para-athletes from able-bodied athletes.
[7]T5-28/38-43.
Dr James did fall in the first leg of the run as a result of a collision with Mr Chaffey. He was on the final leg of the race and travelling at significant speed. There is little doubt he was seeking to overtake runners, including Dr James, when the accident occurred. As a consequence of the collision, he flew through the air and crashed into the barriers separating the cyclists from the runners.
This judgment, out of necessity and only because of the issues involved, makes a distinction between para-athletes in wheelchairs and able-bodied athletes[8].
[8]Which is consistent with the terminology adopted by the parties.
Disputed facts
A brief summary of principal relevant facts which are in dispute include the following;
(a)the circumstances in which the collision between Mr Chaffey and Dr James occurred (the incident);
(b)whether Dr James was travelling two abreast of two other runners and not keeping to the race line at the time of the collision;
(c)whether Dr James stepped to the right in response to calling out by Mr Chaffey as he came behind;
(d)whether Dr James stumbled forward after the collision prior to falling:
(e)whether Dr James hit her head and momentarily lost consciousness after the collision;
(f)what Mr Chaffey was doing in the lead up to the accident;
(g)whether Dr James knew or ought to have known that para-athletes in wheelchairs were competing on the course at the same time as her event and were likely to be in proximity to her on the run leg;
(h)whether Dr James knew that there was a risk of a contact with a para-athlete in a wheelchair as a result of which she may trip and fall;
(i)whether USM knew of the risk of a collision between para-athletes in wheelchairs and other runners who were able-bodied and the risk of injury;
(j)whether the use of barriers to separate para-athletes in wheelchairs and other athletes who were able-bodied on the run leg were capable of being safely used on the s-bend;
(k)any injuries suffered as a result of the collision; and
(l)the circumstances in which Dr James ceased to work as a psychologist and when.
Dr James’ version of events
Dr James gave evidence. The credibility of her evidence was strongly in issue.
Dr James was 55 years of age at the time of trial. She was 51 at the time of the accident. She was an able sportswoman. After immigrating to Australia, she married in 2000 and in 2006 gave birth to twin boys.
Between 1989 and 1993 Dr James had worked for Westpac Bank as a Customer Service Officer. She then commenced a Bachelor of Arts in Leisure Management at Griffith University. She took an elective in sports psychology and determined that she wished to become a psychologist. She commenced a Bachelor of Behavioural Science at Griffith University in 1994. Throughout her studies she continued to engage in sport. She graduated with a bachelor’s degree in psychology with Honours. In 2004, she was awarded a doctorate in clinical psychology. She also obtained certificates in exercise fitness and nutrition.
Dr James had worked as a psychologist in multi-disciplinary clinics. After graduating she moved to the Sunshine Coast in 2005 and worked at a school and a clinic in Brisbane, then shifted to a multi-disciplinary clinic on the Sunshine Coast as well as having some academic roles. In 2012, together with other practitioners, she established the Centre for Positive Change. She had particular expertise in working with children with autism spectrum disorders and Asperger’s and also travelled to Brisbane to work for one and a half days a week in 2013.
In 2017, she had developed a program called Mind Body Wellness Program, which was a mixture of personal training, nutrition and psychology. She had, prior to the accident, intended on focusing on developing that and gave workshops and engaged in doing retreats. She was hoping to work three days a week in order to balance it with her boys going to high school.
She was involved in the Australian Psychologists’ Society and was voted in as Chair in January 2018 for the Sunshine Coast branch.
Dr James was diagnosed with attention deficit hyperactivity disorder (“ADHD”) in 2012 by Dr Cash.[9] She had no major health issues prior to 2018, although she had suffered an inflammation near her shoulder in 2016 which resolved.
[9]She was also treated for premenstrual dysphoric disorder.
In 2014, Dr James’ marriage broke down. As a result of that and the stress she was under, she gained a lot of weight and was drinking reasonably heavily until she decided to turn her life around in 2015. She did certificates in exercise which gave her a personal training certificate. After that, Dr James engaged in exercise, nutrition, sleep and meditation to restore her health.
As part of her personal health program, Dr James began training for triathlons in 2016. After Dr James had competed in the Mooloolaba triathlon in March 2016, she found that she loved the sport and began to train semi-seriously and continued to participate in triathlons up until February 2018. In 2016 and 2017, she particularly engaged in Gatorade triathlons and performed strongly in her age group. She also engaged in the GCT, the Mooloolaba triathlon and the Noosa triathlon. Since the incident at the GCT in 2018 she has not participated again in triathlons.
The accident
As to the accident in question, the 2018 GCT course was proposed to be substantially the same as the 2017 course. The 2017 GCT involved a swim of 750 metres, 20 kilometres on the bike and five kilometres on the run leg. The course was intended to be used for the Commonwealth Games later in 2018.
According to Dr James, the weather leading up to the 2018 GCT was very wet. She drove down to the Gold Coast the day before. She registered on the Saturday for the triathlon which was to occur on the Sunday and took all her preparatory steps. She checked her phone and emails before she went to bed. Her coach, Mr Dimitri Simons, texted her with her time for a wave start. She did not see any information from the organisers informing her that the triathlon had changed to a duathlon.
On the Sunday morning she carried out her usual routine before competing in the race. She did not think she would have checked her emails, but she would have checked her text messages to see if her children had texted her. She got a text from the coach asking where she was at approximately 6.10 am when she was on her way to the course. When she arrived at the venue, her coach informed her that the event had changed to a duathlon.
Changing from a triathlon to a duathlon meant that the swim leg would no longer occur and that there would be a short run leg at the start of two and a half kilometres, the cycling leg of 20 kilometres and then a final run leg of five kilometres. The course was to be undertaken in an anti-clockwise rather than clockwise direction.
Traditionally, the race would commence with a wave start for the various categories. However, that was altered such that the runners were started using a staggered start in pairs, which were supposed to be five seconds apart although that narrowed to two to three seconds at one stage until it was realised that the starts were too close together.
Dr James was not happy with the change because the swim leg was her strongest and she was a slow runner. She stated there were a lot of people there and she could hear people calling out categories. She changed into her running shoes and pumped up her bike tyres and was doing a warmup when she heard her age category being called for the start. Each category was based on age and was identified by hat colour. According to Dr James, it was a bit chaotic with lots of people in the start area. She lined up with another woman who was in the category after her. They were told to go and as they left the starting line, they threw their hat into the bin. Dr James said she started running and just followed all the other runners when the incident occurred.
Dr James said they had to run out of the carpark, up onto Marine Parade and then went up and followed a turnaround point at the end. She said there was a large number of people there. She was surprised to see a visually aided athlete on the course. She was on the return leg of the first run, past point 34[10] on the map of the course which was Exhibit 1 and proceeded to the bend which was marked 50-106 on Exhibit 1. She was following everybody. She said there were lots of people around her. She said that there was a bush area where it was marked 40-49 and she could not see around the corner. She was keeping her line which was on the left because she was a slow runner. It was not in contention that there was an informal protocol whereby runners stayed to the left and passed on the right.
[10]Exhibit 1. The map was not apparently available before the race, and it was not established whether or not it was to scale.
As Dr James came around the bend marked 50 on the course map,[11] she heard somebody yelling to “Get the fuck out of the way. Move out the fucking way” very loudly behind her and the use of other rather colourful language. She recalled being startled. She then saw a man in a wheelchair ricocheting across her right-hand side, flip out and hit the ground on her right-hand side. He was later identified as Mr Chaffey. Evidence from both parties indicated that he was an elite athlete who competed at a high level. Dr James described what she saw in the following way:[12]
“And I see him flip out, right, what I called – I texted my friend afterwards – ricochet, flip out and then hit the ha – the ground – the concrete really hard. I couldn’t see his legs. I’ve never seen anyone in a wheelchair like that before. Never in my life have I seen – you know, in a race seen anyone like that. But his legs were underneath, and so when he was on the floor he was all, like, you know, crumpled up. I seen that and then I don’t have much else memory, apart from what I’d call an out-of-body looking down at the … para-triathlete … and then the next memory I’ve got is I’ve got a memory of him coming back towards me… I’ve got no recollection of what happened between him crashing his - crashing his wheelchair. And then the next picture I’ve got is him coming back towards me, where the number 7 is on that line” [of the venue map].[13]
[11]Exhibit 1.
[12]T 1-4/5-19.
[13]Exhibit 1.
Dr James identified herself as the lady on the ground in a photograph taken shortly after.[14] Mr Chaffey was also on the ground. Dr James could not recognise the other competitors in the photograph. One of them was Ms Daamen who also gave evidence. Dr James could recall being passed by quite a lot of young people. The cyclists in the photograph were divided by a barrier and were on a different part of the course. She recalls there was a lot of noise. She was trying to get around the corner and get into transition and finish that part of the course. She recalls a lot of people around her, more than she had experienced in previous races.
[14]Exhibit 2.
She could recall Mr Chaffey coming back swearing after the turnaround. She thinks he missed the exit to the finish.
According to Dr James, she was not aware that the course she was competing on was simultaneously occupied by para-athletes in wheelchairs, nor that had been the case in prior GCTs, including in the GCT in 2017. Her recollection was that in 2017 the para-athletes competed the day before. Ms Van Pooss’ evidence was that para-athletes in wheelchairs had competed on the course with able-bodied athletes in 2017. There was also a separate unrelated event run by USM the day before where the para-athletes in wheelchairs competed separately from other athletes.
Dr James’ recollection after the incident was patchy. USM contends the lack of memory was exaggerated. Dr James stated that she had a memory of being on her bike and being scared because there were lots of people going fast. She could not recall what occurred in the transition between the run and the bike. She recalls when she got off the bike after the bike leg feeling pain in her back and putting her shoes on and running out. The last leg was five kilometres which involved two laps. Her only recollection was at some point in the run leg she walked because her back was hurting. She recalls getting to the recovery area and lying on the ground looking at the sky. She recalls seeing her coach, getting her bike and walking down the highway for a while with her coach. She recalls driving home and having tinnitus in both ears. She does not recall arriving home. She said the tinnitus started straight after the accident and has continued to the present time.
Dr James sent an email to Triathlon Australia to complain about the course on Sunday 25 February 2018.[15] That email said, inter alia:
“It was at the end of the first run when I was running into the carpark area towards the transition area that I was hit and knocked to the ground by a para-triathlete moving at a very fast speed in his racing wheelchair. I was entering a bend on a downward slope when the accident occurred. I heard was the para-triathlete shouting before he hit me. I was knocked hard to the ground and sustained injuries. What was most distressing to me was to witness the para-triathlete in his wheel chair ricochet into the side barrier, flip over and the man fall out onto the tarmac. I ran over to his aid, but other people were lifting him up and putting him back into his wheelchair. He was swearing and shouting at everyone and continued to do so as he took off in his wheelchair. I believe the commentator saw some of this incident as he made a comment about the para-triathlete falling out of his wheelchair in the past.
My complaint is about the safety of the course and allowing Para-triathletes to race in super vast [sic] vehicles with typical triathletes.
Both the run and bike course were very narrow to accommodate such a vast number of triathletes let alone with para-triathletes racing in wheelchairs at 30kph. Because of this I was shouted at, knocked over, injured and witnessed another para-triathlete crash terribly – the may could of hit his head and died. This incident impacted on my overall race performance, I completed the raced with injury and great emotional distress. I will (sic) [16] be able to finish the triathlon season, finish the gatorade series and participate in the Mooloolaba Triathlon. It is possible I may not compete again. I am devastated by today’s incident, my complaint is a bid to ensure the same situation does not occur again or a fatality occur. The entire course was poorly times, planned and unsafe…”
[15]Exhibit 5.
[16]Given the sentence that followed it appears that the word “not” was omitted.
Triathlon Australia directed her to contact Ironman Oceania. She sent them a similar email.[17] She received a phone call from Rebecca Van Pooss after sending the email. Dr James stated that she can remember the conversation because she wrote it down. Dr James recalled Ms Van Pooss was very apologetic. She enquired after Mr Chaffey and said she was told by Ms Van Pooss “He goes very fast. He goes hard. He always comes out of his wheelchair.” [18] She said Ms Van Pooss was laughing which she thought was inappropriate. Ms Van Pooss told Dr James that Mr Chaffey was fine. She told Ms Van Pooss that she thought she had injuries to her shoulder, and she could not compete in a Gatorade triathlon at Mooloolaba. Ms Van Pooss told her that they would refund her for that race and pay her medical expenses. She then received an email from her. I accept that the conversation she described with Ms Van Poos occurred. It was not challenged in cross-examination. Ms Van Poos agreed that the conversation had occurred and did not dispute its contents save that she would not have spoken of Mr Chaffey in a disrespectful way.
[17]See Exhibit 3.
[18]T1-50/1-8.
The email sent by Ms Van Pooss on 28 February 2018 to Dr James stated:
“As discussed on the phone we had calculated the timing on releasing athletes as a rolling start based on the number we had competing and the time we needed everyone to have completed the course to still meet our road reopening times. This rolling start should have reflected what course conditions would have been as a triathlon format. At some point during the rolling start the time between starting athletes was shortened by a couple of seconds which had a considerable impact to the flow of athletes on to the course and the conditions they then faced out there. Unfortunately by the time we realised there had been a miscommunication amongst the team we were unable to rectify the situation as athletes had already started. Had this shortening of the spacing not occurred the course would have much better catered for the number of athletes and different formats we had racing. … Once again I’d like to apologise to you for your race experience on the Gold Coast.”[19]
[19]Exhibit 3.
Dr James subsequently received refunds for the fee paid to participate in the Mooloolaba triathlon.
According to Ms Van Pooss in her evidence, the email was badly worded and after looking at the data she considered the course could cater for the number of athletes on the course. I will consider that in the context of Ms Van Pooss’ evidence.
Dr James did not recall very well how she felt three days after the incident. She stated that her physical injury that was of most concern was her left clavicle which she had previously injured in the Raby Bay triathlon. She still had tinnitus in her ears. She said it was painful on the back of her head at the crown on the left side. She also recalled that she had some sore on her left bum cheek area and lower spine:[20]
“But not so sore that I couldn’t walk or anything. It was just sore, and my head was throbbing, and my ears were, you know, tinnitus all the time.”
[20]T1-52/10-13.
On the Sunday after the event, she discovered and took a photo of her leg which showed bruising on the right lower leg.[21]
[21]Exhibit 4.
She stated she went back to work in the week following 25 February, although had no recollection of it.
Dr James described her time back at work as being surreal. She said it was a challenge because she had a sore head. She was vague and trying to apprehend what she was being told and trying to do counselling, but nothing worked. She found it very hard to focus and listen because she had a sore head. According to her “Everything was just not right.”
The tinnitus continued and still does. It alternates between being very low pitched and very high pitched.
She saw her General Practitioner (“GP”) Dr Chant, soon after the incident. She states that Dr Chant advised her to return to work to keep her brain active but reduce her caseload. Dr James said she could not remember being told that but said that her medical records referred to the recommendation to reduce her patient load to four to six patients a day.
According to Dr James, Dr Chant referred her to the psychiatrist who had previously diagnosed her with ADHD, Dr Cash. Dr Cash referred her to a psychologist, Dr Hall, for cognitive therapy, because she was having flashbacks of Mr Chaffey crashing. Dr Hall told her he thought she had concussion. Dr James also saw a sports medicine doctor, Dr Dwyer, for her collarbone injury. She was also referred by Dr Dwyer to a physiotherapist, Mr Hill. Neither Dr Cash, Dr Hall or Dr Dwyer were called to give evidence.
Dr James was subsequently referred by Dr Cash to a neuropsychologist, Dr Georgius, because she had said she was having trouble with words and memories. Dr Georgius told Dr James that she had a traumatic brain injury (“TBI”) and that she should keep working but reduce her clients to two to three clients in the morning. She recommended that she go into post-traumatic stress disorder (“PTSD”) treatment. Dr Georgius gave evidence in the proceeding.
In September, she saw Dr Hinds, Dr James’ GP after she changed from Dr Chant and was closer to home. She had gone to see him because she was having difficulties in September 2018 which she describes as suffering vicarious[22] trauma when she was speaking to clients. He put on a medical certificate that she was unfit to practice.
[22]Which she referred to as “vicatious” originally.
Dr James was worried about developing PTSD. Dr Georgius apparently recommended to Dr Cash that Dr James engage in a PTSD program. That is supported by Dr Georgius’ report.
Dr James thought she should close her practice because she was not getting well so she could focus on getting well. She stopped taking new clients, stopped doing public presentations and was just seeing her long-term clients. She informed patients she was going to close her practice. She provided referral information. She said some patients she could not refer on at that point because they were at different points in their treatment and needed reports done or had complicated cases such that she continued to work in a very reduced capacity.
As a result, she started to experience financial difficulties and get behind with her credit card payments, a loan and a debt to the Department of Health which required her to pay $250 a week.
Dr James reduced her clients between September and November. It was a point of controversy as to when Dr James said she ceased to see patients. While in her evidence in court she stated it was in November, the statement of loss and damage (as amended) referred to her ceasing to see patients in September 2018. Dr James suffered significant cross-examination in relation to the disparity.
As Dr James found she could not meet her debts at the time, she accessed money from family and her superannuation to pay for medical support. She stated she got to a point where she could not see her way out of her financial difficulties, so she decided to file for bankruptcy in November 2018.
Dr James undertook the three-month outpatient program for PTSD at Buderim private hospital from December 2018. Her expectation was that she would “fix myself like a good psychologist, and I would return to work after the program.”[23] She stated she worked really hard in the program. She said that while she benefitted a lot from the program, listening to other people’s trauma in group work gave rise to her having images and flashbacks from their trauma.
[23]T1-66/19-20.
According to Dr James, the program did not result in her reducing the symptoms to the level such that she did not still meet the criteria for PTSD.
Dr James was also referred to Ms Callaghan, a physiotherapist who specialised in vestibular dysfunction, following her having spatial difficulties, getting dizzy and having vertigo when walking her dog. According to Dr James, Ms Callaghan told her that she had a TBI post-concussion syndrome with vestibular “something” and visual processing difficulty. She was not called to give evidence.
Dr James was on Centrelink payments for a while and then received a disability support pension. Dr James also applied for total and permanent disability benefits through her superannuation which was ultimately successful. She also applied for the National Disability Insurance Scheme (“NDIS”) in 2019. She was accepted as a participant in January 2020. Documents in relation to Dr James’ earnings and the benefits she received were admitted in evidence.[24] She confirmed the schedule of expenses prepared by her solicitors.[25]
[24]Exhibit 6.
[25]Exhibit 7.
Dr James was extensively cross-examined. Dr James made a number of concessions when she gave evidence.
Dr James agreed that triathlons were an inclusive process where athletes of various standards were invited to compete.
Dr James agreed she received competitor’s guidelines for the events which was standard for participating in USM events.
According to Dr James, she travelled as fast as she could, but on the inside because she was not a fast runner. She stated that if you came across somebody who was running slower than you, they would pass you on the right-hand side. She understood that to be the protocol amongst competitors. She said her usual practice was that she would keep to the left because she was a slower runner.
Dr James did not agree that she was not surrounded by a lot of other athletes on the first leg and leading up to when the incident occurred. Dr James stated that because there had been a rolling start, where according to her recollection there was only a gap of two metres between runners as they took off in pairs, people were far more bunched up than they were in a triathlon. In Dr James’ experience, the swim leg tends to separate people a lot further, as it is the first leg of a triathlon.
Dr James accepted that the incident took place two kilometres and three hundred metres into the run. USM contends that the crowd would have dissipated in the course by the time that the accident occurred which was on the return stretch of the first leg of the run, near white chevrons seen in the photographs. While Dr James stated that was normally the case, she did not agree that was the case in the 2018 GCT. She stated there were a lot of people bunched up together. At least in one of the photographs of the accident, there seems to be Mr Chaffey, Dr James and three or four other people.[26]
[26]Exhibit 2.
It was ultimately uncontentious that the area where the incident took place is estimated to be five to six metres wide. The bike riders were separated from the runners and para-athletes by aluminium barriers (which Mr Chaffey had collided with when the incident occurred).
In Dr James’ experience, she had never been clipped by a runner or run into from behind when undertaking a triathlon but accepted it was a risk. According to Dr James, that was because on a triathlon people were more spread out.
Dr James could not recall para-athletes being on the 2017 Gold Coast triathlon course and recalled watching them the day before competing separately from able-bodied athletes in 2017. That was in fact verified by Ms Van Pooss insofar as a separate competition had taken place in 2017 the day before the GCT. Photos taken from the 2017 competition[27] and video evidence showed para-athletes finishing with able-bodied athletes. There was evidence that para-athletes were competing on the same day as able-bodied athletes in Mooloolaba, Noosa and the GCTs in 2016-2018.[28] Dr James however maintained that she had not previously seen para-athletes in wheelchairs on the course at the same time she was on the course and did not see any para-athletes in the rolling start of the duathlon. She did not recall that there were able-bodied athletes and para-athletes in the same course for the 2016 Noosa triathlon or Mooloolaba triathlon for the sprint category in which she was competing.
[27]Exhibit 48.
[28]Exhibit 46.
Given the relatively small number of para-athletes in wheelchairs who had an earlier start, Dr James’ evidence that she did not see them is credible, particularly in the absence of evidence of details of the number of para-athletes in wheelchairs who competed and the time they competed indicating to the contrary. While Ms Daamen gave evidence she had been on a course on some occasions with para-athletes in wheelchairs, her evidence was of a general nature. There was some support that the change in the course and arrangements resulting in the able-bodied athletes and para-athletes in wheelchairs was out of the ordinary insofar as Ms Lisa Groom, one of the athletes who assisted Mr Chaffey back into his chair, commented to Dr James in a text message that she considered that “the whole change of plan when they dropped the swim meant it was crazy that we were all concentrated on the course together with the wheelies. I had a couple of other close calls with them but they were trying to avoid people too. I’m sure they would have complained to the organizers as it was a dangerous situation for all.” Ms Groom was not called to give evidence, however the text exchange was admitted into evidence.
Ms Groom also made a suggestion in her text that after Mr Chaffey had yelled “to the right” Dr James may have stepped to the right.[29] Dr James could not recall one way or another whether she stepped to the right in front of Mr Chaffey and his wheelchair.
[29]Exhibit 13.
The expert called on behalf of Dr James contended that able-bodied athletes and athletes in wheelchairs should not be on the course at the same time. USM particularly focussed on that being Dr James’ case. However, according to Dr James her objection was not to the fact that para-athletes in wheelchairs were on the course, although she could not recollect that having happened previously, but the fact that there was insufficient room for both the able-bodied athletes and para-athletes in the turning part of the course where her fall occurred. In her view, if there had just been able-bodied athletes there would have been sufficient room for them to move safely around the bend, but that was not the case with the para-athletes in wheelchairs as well.
Dr James stated in cross-examination that she has no recollection of the point of impact on the course. She had no recollection of running three abreast or any recollection of overtaking anybody. Her recollection was that she remembered there was a load of bushes and as she came around the corner, she heard Mr Chaffey shouting and that was it. She has no memory as to what actually occurred at the point of impact.[30]
[30]T2-64.
Credit
Dr James was extensively cross-examined as to credit.
USM submits that the court should conclude that Dr James engaged in a selective process of recalling or reconstructing events in an attempt to maximise certain issues which she perceives are beneficial to her case. In particular, USM relies upon:
(a)Dr James’ evidence that para-athletes had never previously participated in an event with able-bodied triathletes, including those in which she had competed;
(b)that Dr James reverted to the fact that she has a brain injury when she could recall considerable detail about events leading up to the race and her initial participation and other matters post-injury, but not specific details about events and work she performed after the injury. In particular, USM contended that the evidence as to the O reports showed a determined effort by Dr James to avoid disclosing that type of information because it would reveal her capacity far beyond what she was communicating to the court and medical experts. USM contends Dr James deliberately stated that she had ceased clinical practice in September 2018 in the statement of loss and damage when it was not true;
(c)the failure to call her coach, Mr Dimitri Simons, with whom she spoke after the event and Dr Cash, her treating psychiatrist;
(d)her evidence as to her dealings with the Commonwealth Department of Health, as a result of which she agreed to repay money where her explanation was said to lack credibility and casts doubt upon the credibility of all of her evidence; and
(e)the disclosure of her treatment of treating the O children and providing reports after the time she was said to have ceased practice as a psychologist in the statement of loss and damage casts doubt upon the credibility of all of her evidence, particularly in terms of the effects of any injury she suffered.
According to Dr James, USM’s submission suffers from the fact that:
(a)it was not demonstrated by any objective evidence that Dr James’ evidence that she was not aware that para-athletes in wheelchairs competed in triathlons;
(b)USM did not put to Dr James that the result of her collective injuries would not have an effect upon her memory;
(c)Dr James undertook a three-month PTSD course, never returned to work, has been bankrupted, has the care of her two children and as a result of not being able to meet rent had to move back with her husband from whom she was separated, all of which indicate that it is unlikely she has engaged in an elaborate ruse to succeed in this litigation; and
(d)it was not put to the experts that the existence of the O reports in late 2018 indicated she had the capacity of returning to work.
I generally found Dr James to be an honest witness and accept her version of events in relation to the lead up to the incident with Mr Chaffey and the symptoms she suffered thereafter., There were some aspects of her evidence which were unreliable or caused me to be circumspect. I accept her evidence and recollection were genuinely afflicted by her medical condition. That is supported by expert evidence which I discuss below. Her evidence was not therefore always reliable given her patchy recollection of the incident and what occurred afterwards. However, that said, she generally did not seek to give self-serving answers in relation to the conduct of the event and was prepared to make concessions.[31]
[31]For example, T1-80/1-12; T2-31/24-31; T2-35/30-35; T2-38/20-29; T2-39/14-20; T2-108/38-41; T3-51/1-35; T3-66/10-26.
On occasion I did consider that she did seem to revert to having a brain injury when questioning became stressful to her, such as the questioning in relation to the structure of her business and the employment of other psychologists said to result in money being paid back to the Department of Health by her.[32]
[32]For example, T3-65/39-40; T2-87/41-42 “I have a lot of brain fog and a lot of mental fatigue when it came to those sort of details”.
The evidence showed she saw patients from the O[33] family in November 2018 and December 2018 and had provided relatively detailed reports to the GP which were dated 30 December 2018, specifically a “Ten Session Psychological Report”. USM contends that showed a deliberate intention to inflate her claim and that she had deliberately withheld the fact that she had seen the patients and written a report until she was told that USM had subpoenaed a particular doctor, who was their referring practitioner.
[33]The names have been anonymised given the personal medical information of those individuals. Accordingly, the children and relevant reports are referred to as the ‘O children’ and the ‘O reports’ respectively herein. Dr James also saw a Victims Assist client in November 2018 which she disclosed.
Dr James’ evidence-in-chief had indicated that she had reduced her patients right down in September through to November, but not that she had stopped seeing patients altogether, notwithstanding that her statement of loss and damage referred to September 2018 as the end date. Her explanation for the omission is that she had not recalled treating them and the fact that they had not been recorded through the Medicare printout because they had paid cash. She stated that the three children had been having ongoing treatment with her which she had to finalise. She stated the statement of loss and damage was a typo and it should have been November 2018.
Dr James swore an affidavit prior to trial providing an explanation as to her non-disclosure of details of work that had not been disclosed prior to her accident and provided further records and schedules.[34] She blamed her difficulties with memory and lack of record keeping. She stated it was possible there was still work she may have performed but which she did not recall. It was generally consistent with her evidence given in cross-examination.
[34]Exhibit 54.
I accept Dr James did not recall having done the work in relation to the O children given she was undertaking the PTSD program at Buderim hospital in December 2018, and there were a significant number of consultations after September 2018. I consider however, Dr James’ evidence that the reference to “September 2018” was a typographical error which should have been “November 2018”, was not credible. I consider she sought to put that forward to deflect cross-examination knowing that the September 2018 date was not correct. However, I am not prepared to infer that the lack of reference to the O children in her disclosure was deliberate to inflate her claim. The consultations are relatively small in number, and their omission would not have escalated her damages in any significant way. While Professor Whiteford and Dr Bell both found her ability to produce the reports surprising given the symptoms described by her to them, they did not say that the condition did not afflict her memory in such a way that her explanation for failing to recollect was not consistent with her condition. Professor Whiteford considered the writing of the reports was inconsistent with what she had described to him in terms of her loss of capacity at the end of 2018. While he did not suggest it caused him to revisit his opinion in its entirety, he was clearly circumspect.
Dr Georgius was not cross-examined about whether the reports on the O children changed her opinions, even though she was the expert who had carried out an extensive assessment of Dr James to determine whether she had suffered brain damage. She had, however, had found no cognitive impairment notwithstanding she considered Dr James had suffered a TBI as a result of the accident and considered that a large number of her symptoms were due to a psychological injury. It is also evident from Dr Georgius’ second assessment that as time went on and Dr James did not feel she was recovering, she became more anxious about her mental state. That together with this litigation is likely to have distorted her recollection and caused her to exaggerate symptoms to some extent but not significantly.
There was also an attack upon her in relation to her claiming for bankruptcy. It was suggested by USM that her filing for bankruptcy and strategic and on advice, which was rejected by Dr James. There was medical evidence from Dr Georgius supporting the fact that she was advised that she should stop seeing patients. It would also be an extreme act given she was divorced and had two sons. Her ceasing to work and filing for bankruptcy not only affected her but her sons. To the extent that there is a suggestion that she had deliberately filed for bankruptcy to elevate her claim I do not accept it.
The most concerted attack against Dr James was in relation to a debt to the Department of Health of some $103,610.65. That was in respect of claims that were made from Medicare using Dr James’ provider number, which had to be repaid. According to Dr James, notwithstanding the services were provided by psychologists employed by her, the services had been claimed using her Medicare number, rather than their individual numbers. She further stated that she did not have access to those psychologist’s files who had been subcontractors to her, in order to demonstrate to Medicare that the services had been provided. Her explanation was jumbled and not particularly persuasive but was reasonably consistent given she was cross-examined about it at length and was not demonstrated to be untrue by any objective evidence. Her explanation however, as to why she did not protest to the department or appeal their decision which was attributed to the accident the following year, was not credible given the 2018 incident occurred after this time. However, the submission of USM that because of Dr James’ illogical explanation for why money was owed to the Department of Health, the court should take the view that that tainted her evidence overall, when the events concerned took place prior to the accident occurring, seeks to take the matter too far.
There is no doubt, the dealings with the Department of Health were a matter of sensitivity to Dr James and she was uncomfortable in revisiting the events however she was not unresponsive. The events cast doubt on the reliability of her financial records and management skills, but it is a long leap to suggest that fact alone or together with the non-disclosure of the O children consultations demonstrated she was dishonest and none of the evidence she gave should be accepted as being credible. I do not find that none of her evidence was credible.
However, it must be borne in mind that there was objective evidence that an accident occurred at the GCT where Dr James appeared to be at least clipped by Mr Chaffey’s wheelchair well after the agreement was reached with the Department of Health. While she has seemingly suffered significant injuries from an incident after which she had got up and finished the race there was medical evidence provided to support it. While it is true, as a number of doctors accepted, that their reports relied on what they were told by Dr James, the cross-examination did not show any significant inconsistency in what they were told by Dr James and her evidence in this court.
However, I given I have found some exaggeration in the evidence given and some minor untruths, I have been careful to assess her evidence and have done so by reference to how it related to each of the issues which the court has to decide and considered it having regard to the evidence as a whole.
As to her recall being patchy after the incident, despite the fact she could recall details prior to the accident, the only medical practitioner who suggested that was disingenuous was Dr Atkinson. Dr Georgius, the neuropsychologist, thought it was consistent with her condition. While on occasion when she was being heavily cross-examined, she reverted to “I can’t remember” or “I have a brain injury”, there was no discernible pattern as there were a number of facts that she could not recall that were of no significance. To the extent it is suggested that the lack of memory was contrived to tailor the medical diagnoses in her favour I do not accept it. Her patchy recall was consistently the subject of complaint by her to the medical experts, the majority of which accepted it was consistent with her injuries. Dr James was distressed and, in some respects, appeared obsessed by the fact she had diagnoses of a TBI and PTSD, notwithstanding she had been given assurances by Dr Georgius that she did not suffer cognitive impairment. It was clearly a source of angst, as was apparent from her anxiety about having cognitive problems and not recovering when she saw Dr Georgius . Dr James’ lack of memory, while consistent with some of the diagnoses given by medical experts, was not always to her advantage. In some respects, it would have been more advantageous to her case if she positively remembered things such as the details of the accident and how she fell. While it was positively put to Dr James that she had deliberately not disclosed the work done with the O children to inflate her claim, it was not put to her that she did not suffer from a lack of memory from her injuries. Regardless, I am not satisfied that she was engaging in a selective process of recalling or reconstructing events in an attempt to maximise her case.
Dr James did make appropriate concessions, accepting that litigation was a stressor in her life[35] and also did not seek to overstate the current state of her physical injuries when asked in cross-examination.[36]
[35]T3-72/37-44; see also for example concession T1-79 that there was no difficulty navigating the course absent Mr Chaffey, and that she was to take care of herself and keep an eye out for other competitors.
[36]T3-70/1-15.
The package provides for various supports to be provided to the participant which will not necessarily be the subject of compensation at common law. For example, Dr James had her support coordinator in court with her on one occasion. No evidence was provided as to whether such a service was rendered necessary as a result of the injuries suffered.
Mr Huezo confirmed that the value of Dr James annual plan was an amount of $216,264.47. of which Dr James had utilised $176,544.17.[264] The plan is self-managed, and it is within the discretion of the participant as to how it is used. The fact that the participant chooses to expend money on certain items does not establish that they are casually linked to the injury suffered.
[264]T4-56.
The evidence establishes that Dr James applied for the NDIS as a result of the injuries she suffered. Dr James contends that the package serves as a guide to compensate her in the future with an appropriate discount, because if it was not for the incident, she would not have had to obtain the NDIS package. However, the parameters of the needs of a participant are driven by reports of health practitioners as well as the participant themselves[265] Mr Heuzo conceded that as part of this process, medical professionals may provide divergent views as to an applicant’s situation.[266] Those reports have not been identified as being part of the evidence before this court. Mr Heuzo conceded that “there is an independent assessment program in the works…But that hasn’t been widely rolled out as of yet”.[267] To the extent Dr Cash completed the form identifying the impairment and types of assistance needed he was not called. Dr Cash identified ADHD as an additional impairment for which Dr James requires stimulant medication.
[265]Exhibit 37.
[266]T4-52/40-47; 4-53, 27-36.
[267]T4-52/32-48.
The assumption that the amount paid under an NDIS plan simply equates to the compensable expenses including for services and assistance is evidence of the amount payable as part of a damages claim is a misconception. That there is a link between the disability for which the NDIS plan provides an amount for services as a result of the disability and the injuries suffered as a result of the incident may be accepted. However, the amount provided for services does not necessarily equate to compensable needs. What the money the subject of the plan is spent on is within the discretion of the recipient. In her submission to the NDIA, Dr James identifies services which she thinks will improve her wellbeing,[268] but they do need necessarily equate to a need suffered as a result of the injuries suffered. While it may include amounts for services or expenses for needs which are reasonably necessary as a result of the injuries suffered, however I do not consider that the amount of the payment under the NDIS plan in the circumstances provides an evidential basis for the determination of future expenses. While the plaintiff has provided for a generous discount to take account of the fact some of the expenses in the package would not be compensable that does not overcome the fact that the evidence does not establish the threshold requirement that it is a compensable that what is claimed is causally linked to the injuries suffered and reasonably necessary. The onus is on the plaintiff.
[268]See, for example, Exhibit 38: Social community and civic participation to engage in community/social or recreational activities within the community.
A review of the schedule provided of payments made is not on its face obviously required as a result of the injuries incurred. The proper approach should have been for Dr James to prove the need for services or expenses which are reasonably necessary as a result of the injuries suffered, not to ask the court to assume that the assessment by the NDIA is the value of the needs of her as a result of her injuries that have been rendered reasonably necessary for her condition. Had Dr James approached the question in this way, the NDIA would then be able to assess whether any of those amounts were included under the NDIS plan.
Future medical expenses
It is apparent from the report of Dr Bell that Dr James will require ongoing treatment for PTSD which the evidence supports is the principal condition from which she suffers which will require ongoing treatment. He estimated the costs of treatment were $24,800, including medication.[269] He considered that treatment of a general practitioner, psychiatrist and psychologist would be a two-year program.[270] While Professor Whiteford’s diagnosis is of a general anxiety disorder he did not cavil with the fact she would require ongoing treatment, only that it would be different treatment from PTSD.
[269]Exhibit 22.
[270]T3-87.
I will therefore award an amount of $30,000 for future medical expenses.
NDIS recoverable charge amount
The NDIA may issue a charge to recover money paid out in the past. Dr James claims the amount that may be the subject of recovery by the NDIA. USM however contends that no amount should be included in any award of damages. In particular USM contends that there is no evidence of the content of the NDIS plan being casually linked to the loss.
The NDIA maintains an entitlement to exercise its charge at a figure of $176,544.17.[271] Mr Heuzo confirmed that was the amount of funds directly paid out as part of Dr James’ plan was $176,544.17,[272] and that this was the amount cited in the NDIA’s letter of 21 May as being the estimated recoverable amount if Dr James succeeded in litigation.[273]
[271]Exhibits 39 and 42.
[272]Transcript 4-58/14-24.
[273]Transcript 4-48/33-40; T4-55/5-12.
That does not necessarily mean it will do so. Whether reimbursement is sought by the NDIA is subject to the CEO’s discretion which is designed to ensure the NDIS will not duplicate funding for supports that are or should have been funded by a compensation claim. Mr Heuzo confirmed that as Dr James could remain an NDIS participant until at least the age of 65, it is possible for the recoverable amount to increase over time.[274]
[274]Transcript T4-49/37-41; T4-50/18-29.
Pursuant to s 104 of National Disability Insurance Scheme Act 2013 (Cth) (“NDISA”) the CEO by written notice may require the participant or prospective participant to take action specified to claim or obtain compensation. Section 104 (3) and (4) provide that:
Section 11(a) of the NDISA defines “compensation” to mean a payment in respect of compensation or damages in respect of personal injury.
There is no evidence of a notice having been given under s 104 NDISA.
Sub-sections 106(1) and (2) of the NDISA provide that:
“Recovering past NDIS amounts from certain judgements
(1) This section applies if:
(a) an amount of compensation is fixed under a judgement (other than a consent judgement) given in respect of a personal injury that has caused, to any extent, a participant's impairment (whether or not the participant was a participant at the time of the injury); and
(b) before the day of the judgement, NDIS amounts (the past NDIS amounts) had been paid in respect of supports in relation to the participant's impairment; and
(c) the judgement specifies a portion (the past NDIS support component) of the amount of compensation to be a component for supports of a kind funded or provided under the National Disability Insurance Scheme.
(2) An amount (the recoverable amount) is payable by the participant to the Agency. The recoverable amount is an amount equal to:
(a) unless subsection (4) or (5) applies--the sum of the past NDIS amounts, reduced as mentioned in subsection (3) (if applicable); or
(b) if subsection (4) or (5) applies--the amount worked out in accordance with whichever of those subsections is applicable.”
Section 108 of the NDISA provides that the amount payable by a person under s 106 is a debt due by the person to the agency.
Section 109 of the NDISA provides that:
“CEO may send preliminary notice to potential compensation payer or insurer
(1) If:
(a) a participant or prospective participant makes a claim against another person (the potential compensation payer) for compensation; and
(b) the claim relates to the participant's or prospective participant's impairment;
the CEO may give written notice to the potential compensation payer, stating that the CEO may wish to recover an amount from the potential compensation payer.
(2) If:
(a) a participant or prospective participant makes a claim against another person (the potential compensation payer) for compensation; and
(b) the claim relates to the participant's or prospective participant's impairment; and
(c) an insurer may be liable, under a contract of insurance, to indemnify the potential compensation payer against any liability arising from the claim for compensation;
the CEO may give written notice to the insurer, stating that the CEO may wish to recover an amount from the insurer.
(3) A notice under subsection (1) or (2) must contain:
(a) a statement of the potential compensation payer's or insurer's obligation under subsection 110(1) or (2), as the case requires; and
(b) a statement of the effect of section 111 (recovery) so far as it relates to the notice.”
No notice under s 109 has been provided.
Sub-sections 111(1), (3) and (4) of the NDISA provides that:
“CEO may send recovery notice to compensation payer or insurer
(1) If:
(a) one or more NDIS amounts have been paid to a person in respect of a participant's impairment; and
(b) a person (the compensation payer):
(i) is liable to pay compensation to the participant in relation to the impairment; or
(ii) if the compensation payer is an authority of a State or Territory--has determined that a payment by way of compensation is to be made to the participant in relation to the impairment;
the CEO may give written notice to the compensation payer that the CEO proposes to recover from the compensation payer the amount specified in the notice.
…
(3) If a compensation payer or insurer is given notice under subsection (1) or (2), the compensation payer or insurer is liable to pay to the Agency the amount specified in the notice.
(4) The amount to be specified in the notice is the lesser of the following:
(a) an amount equal to the sum of the NDIS amounts referred to in paragraph (1)(a) or (2)(a);
(b) an amount equal to the recoverable amount in relation to the judgement, consent judgement or settlement to which the liability relates.”
Section 116 NDISA provides an overall discretion to the CEO not to enforce provisions for repayment if it is considered appropriate to do so in special circumstances.
The difficulty is that the NDIA has not committed to a position as to whether or not it will seek recovery of the amount already paid under the NDIS scheme.[275] Dr James contends that it will in all likelihood do so based on exhibit 39 and 42. Those exhibits only identify the amount paid out and the fact that the NDIA may claim part of the compensation.
[275]Which was the subject of comment by Johnson J in AB by her tutor Mb v State of New South Wales [2018] NSWSC 765 and Lonergan J in Sharp v Home Care Service of NSW [2018] NSWSC 1319 in the context of a settlement. In neither case did the NDIA clarify whether and, if so, in what amount they sought to recover amounts paid. No amounts were ordered. In the latter case, her Honour concluded there was no basis for there to be any amount to be recovered. In both cases the court made comment that if the NDIA considered a payback was due that the CEO consider exercising his or her discretion under s 116 of the Act not to seek repayment: see Sharp at [51]. Johnson J stated that since the NDIS had not provided a committed position the court did not need to consider it: see [17]
The evidence of Mr Huezo did not give any further clarity to the position.
Dr James had the benefit of an NDIS package, and the evidence supports the fact that services have been provided. The application completed by Dr Cash suggests it was sought based on the injuries suffered in the accident, but it is apparent there were medical reports provided which were not the subject of evidence in this court.[276] However the Court has found that Dr James has suffered a minor brain injury and PTSD as a result of the incident, which is referred to in the supporting evidence form.[277] However there is no evidence of the link between Dr James’ conditions and the services provided.
[276]Although reference was made to ADHD.
[277]Exhibit 41.
The assessment by the NDIA was not the same criteria as the provisions for assessing damages. Further Mr Huezo stated that the amount of the package is assessed differently from the court and the amount paid by the NDIA may not be the amount sought under any charge.
The recoverability of a charge remains a matter within the discretion of the agency. As has been pointed out in other decisions and academic writings the situation is highly unsatisfactory. Medicare can provide an amount which should be refunded in advance of a trial. It is not evident why the NDIA cannot do so. While counsel for Dr James can be assured that a charge reflecting payments made by the NDIA will issue, that is not a sufficient basis for the court to conclude it will issue.
I was referred to no cases to assist me in this regard. While I note that Justice Henry included an amount for an NDIS charge in the damages in Towers v Hevilift Ltd,[278] that was by agreement.
[278][2020] QSC 77.
In the circumstances I am not satisfied that there is sufficient evidence of a claim being made by the NDIA. The NDIA should take into account the Court’s position in this regard in determining whether it would be appropriate to issue a notice after judgment is given, particularly as steps were taken by the plaintiff to try and resolve the position of the NDIA prior to trial.
Past expenses otherwise
Dr James claims an amount of $70,202.90 as recorded in Exhibit 7, all of which is compensable. USM points out that amounts are included which prima facie are not clearly matters which have not been established to be compensable. For instance, it includes amounts for supplements, NAC Gold Adult membership, running shoes and a distance professional training programme. I will reduce the amount payable to $65,000.
Interest on out-of-pocket expenses
In calculating interest on past special damages, there must be brought to account the amounts of the benefits paid by Medicare Australia ($14,224.17) and Dr James’ private health insurer, Teachers’ Health ($15,684.20). This means that interest should be calculated on only $65,000 minus ($14,224.17 + $15,684.20 = $29,908.37) = $35,091.63
Allowing 5 per cent per annum on $35,091.63 over 1,188 days yields $5,710.80.
Summary
To summarise, Dr James’ damages ought to be compensable as follows:
Head of Claim
Amount
General damages for pain, suffering and loss of amenities:
$28,800
No interest payable
$0
Past economic loss
$274,812
Interest to be calculated by the parties
$0
Past loss of employer’s contributions to superannuation
$0
Future economic loss and impairment of earning capacity
$658,028.39
Future loss of employers’ contributions to superannuation
$0
Past gratuitous care and services
$0
Future expenses (including services and assistance)
$30,000
NDIS charge for past expenses
$0
Past special damages otherwise
$65,000
Interest
$5,710.80
$1,062,351.20
As the basis on which I have calculated damages differs from the position submitted by the parties I will allow the parties to check the above calculations and to submit an order within fourteen days of the date of these reasons.
The parties should provide submissions as to costs within fourteen days of the date of these reasons.
Orders
The parties are to provide a draft order by which the defendant is to pay the plaintiff damages, having checked the calculations in [562] of these reasons, within fourteen days of the date of these reasons.
The parties should provide submissions as to costs within fourteen days of the date of these reasons.
3
3
1