Khalil v Taoube
[2012] NSWDC 60
•07 May 2012
District Court
New South Wales
Medium Neutral Citation: Khalil v Taoube [2012] NSWDC 60 Hearing dates: 16, 17, 18, 20, 23, 24, 25, 26 May, 2, 3, 7, 8, 24 June, 8, 9 August, 28 October, 11, 25 November 2011; 15 March 2012 Decision date: 07 May 2012 Jurisdiction: Civil Before: Levy SC DCJ Decision: 1.The plaintiff's motion filed on the 12th day of the hearing, 8 August 2011, seeking a MAS re-assessment, is dismissed;
2.The plaintiff is to pay the defendant's costs of the dismissed motion;
3.Verdict for the plaintiff in the assessed amount of $102,704.19;
4.After applying a credit due to the defendant in the amount of $4220.20 pursuant to s 83 of the Motor Accidents Compensation Act 1999, judgment for the plaintiff for the remaining balance, in the sum of $98,483.99;
5.The defendant is to pay the plaintiff's costs of the proceedings on the ordinary basis unless otherwise ordered;
6.The exhibits may be returned;
7.Liberty to apply on 7 days notice if further orders are required.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: TORTS - motor vehicle accident - breach of duty of care admitted - determination of dispute as to nature, extent and effects of injuries sustained by plaintiff - numerous credit issues raised by defendant - whether plaintiff's claim requires rejection; DAMAGES - assessment of claimed heads of damages Legislation Cited: Civil Liability Act 2002, s 5D, s 5E
Civil Procedure Act 2005, s 56
Evidence Act 1995, s 41(1)(b), s 60, s 128, s 135(c)
Health and Other Services (Compensation) Act 1995, s 38
Motor Accidents Compensation Act 1999, s 61, s 83, s 119, 128, s 136Cases Cited: Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 53
Allied Pastoral Holdings Pty Ltd v Commissioner for Taxation [1983] 1 NSWLR 1
Browne v Dunn (1894) 6 R 67
Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320
Dairy Farmers Co-Operative Milk Co Ltd v Aquilina [1963] HCA 59; (1963) 109 CLR 458
Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25
Goodridge Areospace Pty Limited v Arsic [2006] NSWCA 187; (2006) 66 NSWLR 186
Graham v Baker [1961] HCA 48; (1961) 106 CLR 340
Mackenzie v R [1996] HCA 35; (1996) 190 CLR 348
Mason v Demasi [2009] NSWCA 227
Oceanic Sun Line Special Shipping Company Inc v Fay [1988] HCA 32; (1988) 165 CLR 197
Strinic v Singh [2009] NSWCA 15
Whalan v Kogarah Municipal Council [2007] NSWCA 5Texts Cited: Dorland's Illustrated Medical Dictionary, 28th Ed, WB Saunders, 1988 Category: Principal judgment Parties: Miriana Khalil (Plaintiff)
Hamed Taoube (Defendant)Representation: Mr M Cranitch SC with Mr A Campbell (Plaintiff)
Mr W Fitzsimmons with Mrs C Allan (Defendant)
Gerard Malouf & Partners (Plaintiff)
McLachlan Chilton (Defendant)
File Number(s): 2010/239860 Publication restriction: No
Judgment
Table of Contents
A
INTRODUCTION
Nature of case
[1] - [5]
Complexity and attempts to narrow issues
[6] - [19]
Issues - as initially defined by the parties
[20] - [23]
Issues - as ultimately identified
[24] - [25]
Evidence overview
[26] - [30]
Credit overview
[31] - [42]
Summary of findings
[43] - [47]
Assessed heads of damage
[48] - [50]
Procedural ruling for concurrent psychiatric evidence
[51]
Procedural motion seeking a further MAS assessment
[52] - [53]
B
FACTUAL MATTERS
Facts
[54] - [359]
Plaintiff's background and pre-injury circumstances
[55] - [67]
Trial interrupted by plaintiff's indisposition
- undisclosed childbirth
[68] - [84]
Evidence of the events of the accident
[85] - [92]
Claimed injuries
[93] - [96]
Initial assessment and treatment of the plaintiff
[97] - [121]
Subsequent treatment received by the plaintiff
[122]
Chronology of medical and allied assessments
[123] - [309]
Joint report following meeting of psychiatrists
[310] - [313]
Concurrent evidence of 5 psychiatrists
[314] - [359]
C
FINDINGS ON ISSUES CALLING FOR DECISION
Issue 1 - Credit of the plaintiff on multiple issues
[360] - [683]
(1) Plaintiff's capacity to understand English
[363] - [371]
(2) Events of the accident
[372] - [376]
(3) Content of recorded medical histories
[377] - [386]
(4) Plaintiff's physical injuries
[387]
(5) Plaintiff's physical disabilities
[388] - [390]
(6) Plaintiff's pre-accident psychological issues
[391] - [399]
(7) Post-accident psychological disabilities
[400] - [410]
(8) DVD evidence of plaintiff's activities
[411] - [422]
(9) DVD evidence of observation of premises
[423] - [429]
(10) Claim for domestic assistance
[430] - [439]
(11) Aspects of claim for economic loss
[440] - [447]
(12) Plaintiff's living arrangements
[448] - [469]
(13) Medication issues
[470] - [478]
(14) Driving and motor vehicle ownership
[479] - [487]
(15) Plaintiff's claimed social isolation
[488] - [501]
(16) Plaintiff's activities of daily living
[502] - [518]
(17) Plaintiff's physical presentation
[519] - [536]
(18) Plaintiff's poor recollection
[537] - [553]
(19) Alleged personal relationships
- including alleged relationship with defendant
[554] - [576]
(20) Plaintiff's past pregnancies
[577] - [602]
(21) Concealed pregnancy and paternity thereof
[603] - [620]
(22) Alleged lies, untruths and false evidence
[621] - [654]
(23) Allegations of mendacity made by Dr Haik
[655] - [678]
Conclusions on plaintiff's credit
[679] - [683]
Issue 2 - Circumstances of the collisions
[684] - [693]
Issue 3 - Injuries sustained by the plaintiff
[694] - [756]
Issue 4 - Disabilities
[757] - [842]
Issue 5 - Assessment of damages
[843] - [947]
Plaintiff's life span
[844]
Mitigation
[845]
Future loss of earning capacity
[846] - [874]
Past domestic assistance
[875] - [917]
Future domestic assistance
[918] - [934]
Past out-of-pocket expenses
[935] - [943]
Summary of assessment
[944] - [947]
D
DISPOSITION, COSTS & ORDERS
Disposition
[948]
Costs
[959]
Orders
[950]
A. INTRODUCTION
Nature of case
The plaintiff, Mrs Miriana Khalil, a motor vehicle passenger, claims damages against the defendant, Mr Hamed Taoube, the driver of the vehicle, in respect of injuries she received in a motor vehicle accident on 1 November 2006. The proceedings are governed by the provisions of the Motor Accidents Compensation Act 1999 ["MAC Act"].
The accident involved two collisions, the first occurred when the driver's side of Mr Taoube's vehicle was struck by another vehicle as those vehicles negotiated an intersection roundabout. The second collision occurred when Mr Taoube's vehicle then spun out of control and into a further collision involving contact with a power pole.
The CTP insurer of Mr Taoube's vehicle admitted breach of duty of care in respect of the collisions. Notwithstanding that admission, the insurer devoted significant resources to strenuously contesting the plaintiff's claim for damages, citing credit issues.
The plaintiff's case developed a bizarre facet when, on Friday 20 May 2011, which was the 6th day of the trial, and the second day of her cross-examination, the plaintiff was temporarily excused from attending for continuing cross-examination because she needed to seek medical attention. This was said to have been because she was stressed, depressed, physically ill, and therefore unable to continue to give evidence.
Subsequently, it transpired that on that day, the plaintiff had gone to hospital where she was delivered of a child by caesarean section in circumstances where, immediately beforehand, the legal representatives of the parties had not known she was pregnant. It was not until the proceedings resumed on the following Monday, 23 May 2011, and after the proceedings had then continued for a further 2 days of cross-examination of the plaintiff, that the fact of the birth of the plaintiff's most recent child was revealed by the answer to a chance question.
Complexity and attempts to narrow issues
The inherent complexity of the proceedings was well understood by the legal representatives of both parties long before the trial was due to commence.
It was plain that in the lead-up to the trial, the parties had not adequately come to grips with their obligations to seek to simplify the complexity of the proceedings in an attempt to achieve a just, quick and cheap resolution of the litigation: s 56 of the Civil Procedure Act 2005. Prior to the trial, the parties had not made any significant efforts to seek to narrow the issues, or to confine the extent of the medical evidence that was to be adduced in oral form.
This was apparent from the several pre-trial directions hearings, and the need for the parties to obtain variations to timetabling orders for compliance with case management directions in what was foreshadowed to be an unusually lengthy 4 week trial, in a motor vehicle personal injury case, where the issues to be tried were limited to damages.
The plaintiff had retained successive solicitors and each of those firms had retained consultant psychiatrists to provide opinions in addition to the opinion of the plaintiff's treating psychiatrist as to the nature of the plaintiff's ongoing disability. There had been no pre-trial attempt to arrange for a joint expert report concerning the opinions of the 5 consultant psychiatrists who were ultimately called to give evidence. The parties had not considered nor sought to arrange for the evidence of those experts to be given concurrently, despite clear indications that such a course was justified in the interests of streamlining the case and the parameters of the areas of disputed medical issues.
On the eve of the trial, the parties had been directed to attempt to reach areas of agreement by seeking to identify the facts not in dispute, and to identify the issues calling for determination.
In purported compliance with those directions, at the commencement of the trial, only a very limited statement of agreed facts was produced by counsel for the parties. This was in the form of a written document that comprised MFI "2", and which was in the following brief and unrevealing terms:
"(1) The plaintiff was born on 15 September 1973.
(2) The plaintiff was a front seat passenger in a motor vehicle driven by the defendant which was involved in an accident on 1 November 2006.
(3) The plaintiff sustained injury in the aforesaid accident."
Since the parties had taken some time and trouble to pre-prepare a large bulk of documentary evidence in the form of indexed exhibit bundles, it was unfortunate that only the very few facts cited in the preceding paragraph were the subject of agreement, and that so many other facts were said to remain in bona fide dispute.
The plaintiff's exhibits bundle, Exhibit "C" comprised 22 medical reports (152 pages). The defendant's medical exhibits bundle, Exhibit "3" comprised 19 medical reports (279 pages). The defendant tendered a bundle of miscellaneous documents, Exhibit "6", (234 pages). The defendant also tendered as Exhibit "7', a folder of 12 surveillance reports relating to many days of surveillance film taken of the plaintiff, and also static or unmanned surveillance at her several known addresses (136 pages).
The transcript of the proceedings was voluminous, and it reflected the detail of the many areas of disputed fact, credit and interpretation of events that the defendant's insurer sought to place in contention in the litigation.
The plaintiff's evidence in chief economically comprised some 37 pages of transcript. The transcript of the cross-examination of the plaintiff occupied several hundred pages. This was the subject of a number of complaints by counsel for the plaintiff concerning repetition and prolixity of questioning: T71.19 - 71.22; T74.16; T165.5. The plaintiff also voiced her own complaints concerning repetitive cross-examination on a number of occasions: T173.35; T199.32; T328.36; T333.16. On one such occasion she stated "... I can't keep coming and sitting there and answering the same questions over and over again": T333.16. Although some latitude was given for cross-examination on matters of credit, at various stages, attempts were made to restrict or disallow repetitive cross-examination: T70.12; T71.29; T74.19; T233.16; T353.49; T354.6; T354.15.
Of the 7 consultant psychiatrists who had examined and reported upon the plaintiff's condition, only 5 were compellable as witnesses, as the other 2 psychiatrists were Medical Assessment Service (MAS) assessors. An order for concurrent expert evidence was made during the trial. Ultimately, those 5 expert psychiatrists gave their evidence concurrently. The direction for concurrent evidence was persistently resisted by the legal representatives of the defendant. I was informed that such resistance was maintained both before and after the direction had been made for concurrent evidence.
Notwithstanding repeated complaints by counsel for the defendant of unfairness in relation to the order for concurrent expert evidence, including claimed procedural unfairness, a matter to which I shall in due course return, I found that the format and content of the concurrent evidence of the psychiatric experts to be a very helpful aide in the task of sifting the content of, and the basis for, the respective psychiatric opinions concerning the plaintiff's condition.
The medical evidence tendered by the parties was voluminous. The defendant considered the statements recorded within the histories in those reports to be crucial to the outcome of the proceedings. It is therefore necessary that I undertake the task of examining that body of evidence in some detail in order to understand the basis of the respective medical opinions before arriving at my findings on the credit challenges that the defendant's representatives made to the evidence of the plaintiff.
My summary of that process of analysis, which is perhaps longer than might have been usual for a less complicated case, appears between paragraphs [97] to [359] of these reasons.
Issues - as initially defined by the parties
At the commencement of the trial, and in purported compliance with directions given before the trial, counsel for the respective parties also produced a document in the very briefest of terms, in which they had jointly, and somewhat simplistically, defined the agreed issues for determination in the proceedings as comprising an abstracted single catch-all umbrella issue, which was stated in MFI "3", as follows:
"The nature and extent of injuries and disabilities caused by the motor vehicle accident on 1 November 2006"
That statement of the issues proved to be an oversimplification. It belied the true parameters of the contest between the parties, which involved a much greater degree of undefined complexity, including a significant number of sub-issues concerning the credit of the plaintiff. The document provided almost no assistance to the court in defining the true issues to be determined in the proceedings.
At the outset of the trial, senior counsel for the plaintiff drew attention to an apparent concern in the plaintiff's camp that the defendant's CTP insurer was seeking to run an unpleaded defence of fraud against the plaintiff's case: (T1.39). What then followed was an attempt, in vain, to seek a more precise definition of the issues at an early stage of the hearing: (T2.5 - T2.44):
"HIS HONOUR: Well, I'm a bit puzzled as to why these three cases which are for assessment should take three to four weeks.
CRANITCH: Well, precisely. I am somewhat puzzled because I can understand it if it was alleged to have been a fraud case of some sort where - well, you might have spend a bit of time on it. But since it's not alleged - I'm told by my learned junior - I don't know how accurate it is - he's got the statement of issues - that the only issue is, as I understand it, disability.
HIS HONOUR: Well, I better hear from Mr Fitzsimmons as to what he thinks the issues are.
FITZSIMMONS: Your Honour, as your Honour will see there are three cases listed. There's the mother's case and two children's cases. Your Honour, the issue is essentially one of injury and the extent of disability in each of the cases.
HIS HONOUR: So to be specific, are you alleging, as Mr Cranitch apprehended, that if there was any aspect of the claims made to be fraudulent?
FITZSIMMONS: Your Honour, we will seek to put before your Honour some evidence and cross-examination particularly of the plaintiff of what we would say, your Honour, is an embellishment or exaggeration in terms of the extent of injury or disability. So, your Honour, that's essentially the case that we will be running that, your Honour, at the end of the day having the heard the plaintiff's evidence and any other evidence and having seen material which we will seek to tender that your Honour in due course, your Honour could not be satisfied of the plaintiff's statements as to the extent of disability which she alleges which gives rise to the claim.
HIS HONOUR: So, I take it from what you've just said that you concede the plaintiff was injured as claimed?
FITZSIMMONS: We concede, your Honour, that the plaintiffs sustained some injury in the accident, yes.
HIS HONOUR: So am I getting from this that there are credit issues.
FITZSIMMONS: Yes, your Honour. Very much so."
The reference to there being 3 cases to be determined, was a reference to the 2 claims that were brought on behalf of the plaintiff's children, in addition to the present proceedings. Those additional claims did not occupy any actual hearing time, and they were settled on terms approved by the List Judge during the course of this hearing without any evidence being taken in relation to those 2 cases. Properly, the terms of those settlements were not disclosed to me.
Issues - as ultimately identified
Since the legal representatives of the parties had not, before the conclusion of the evidence, identified with any useful degree of specificity, the issues to be determined in the proceedings, I have gleaned the ultimate issues requiring determination to be as follows:
Issue 1 - The credibility of the plaintiff's testimony, having regard to the matters of relevance within multiple areas of attack upon the credibility of her evidence. This is a matter to which I shall shortly return at paragraph [34] of these reasons, where I have sought to identify and isolate the principal topics that were entailed in the insurer's credit attack upon the plaintiff;
Issue 2 - The circumstances, nature and force of the collisions in which the plaintiff came to be injured;
Issue 3 - The particular areas of the plaintiff's body that were injured in the collisions;
Issue 4 - The nature and extent of the plaintiff's remaining disabilities that are due to the effects of the accident. These matters required the resolution of conflict within the body of opinions of medical experts in order to determine which opinions should be preferred;
Issue 5 - The assessment of the plaintiff's entitlement to damages in respect of the following 4 claimed heads of damage:
(i) Future loss of earning capacity
(ii) Past domestic assistance
(iii) Future domestic assistance
(iv) Past out-of-pocket expenses.
A number of sub-issues also arose within the above issues. Some of the matters arising within Issues 2 to 5 overlapped with the credit issues that I shall shortly identify at paragraph [34] of these reasons. Where it was considered appropriate to do so, I have analysed these matters in the context in which they arose. Before outlining the credit issues I shall identify the parameters of the evidence adduced in the proceedings.
Evidence overview
In the case for the plaintiff, in addition to the plaintiff's own oral evidence, which was taken over a number of days, oral evidence was also given by Mr Mohamed Taoube (the son of the defendant driver), Mrs Salwa Ishak and Mrs Ezze Yasier, the latter two persons being friends of the plaintiff. The evidence from those witnesses was directed to the damages issues concerning the claim for domestic assistance. Oral evidence was also given by Mr Youseff Hage Youseff, a pre-accident prospective employer of the plaintiff. The defendant had required Dr Donald Faithfull, a consultant orthopaedic surgeon who had assessed the plaintiff on behalf of her solicitors, to be cross-examined. Dr Elias Matalani, a consultant occupational physician who had also examined the plaintiff at the request of her solicitors, was similarly required for cross-examination by the defence.
There were no lay or factual witnesses called in the case for the defendant. The legal representatives of the defendant had suggested that Mr Taoube was in a domestic relationship with the plaintiff, and therefore declined to call Mr Taoube as a witness in the case for the defendant. The plaintiff denied there was a relationship of other than friendship between herself and Mr Taoube and his family. The CTP insurer did not seek to invoke the provisions of the MAC Act to deal with that or any other credit-related matter by seeking to cross-examine the insured driver: s 119 of Pt 4.6 of the MAC Act.
The 5 consultant psychiatrists who gave their evidence concurrently were Dr Ishrat Ali, the plaintiff's former treating psychiatrist, Dr Klaas Akkerman, Dr Michael Prior and Dr Thomas Clark, all of whom had been at various times retained by the solicitors who had variously acted for the plaintiff, and Dr Robert Haik, who had been retained by the solicitor for the defendant.
There was substantial agreement between the majority of those witnesses, except in respect of the evidence of Dr Haik, a matter to which I shall return when evaluating that array of evidence and also in connection with my evaluation of the credit attack made on the plaintiff through the evidence of Dr Haik.
I will refer to the remainder of the evidence, which was of a voluminous documentary nature, where it becomes relevant and necessary to do so.
Credit overview
The defendant mounted a broad-based attack upon the credit of the plaintiff, including an extended and prolix cross-examination that was in parts repetitive. This was a matter about which the plaintiff's legal representatives and the plaintiff herself were critical. That attack was further developed in written and oral submissions. The defendant's written submissions included an extensive section attacking the credit of the plaintiff: Defendant's written submissions, paragraphs [117] to [397].
The defendant submitted that the plaintiff's credit "has been overwhelmingly impugned to such a degree that the court is not in a position to accept any of the plaintiff's evidence or the medico-legal evidence" which based that medico-legal evidence. For the reasons I have identified at paragraphs [361] to [683] of my reasons, I have not accepted that submission as I found it to be overly simplistic in view of the issues raised.
Overshadowing the defendant's credit attack on the plaintiff is the fact that the plaintiff was in an advanced state of pregnancy when she gave her evidence. She was certified to be medically unfit to attend court during a significant part of the period she was cross-examined: Exhibit "D". She concealed both of these facts for a number of days. These are matters that require consideration in the assessment of the plaintiff's credit as a witness.
The defendant's attack on the plaintiff's credit canvassed challenges to the following 23 topics emerging from within the evidence:
(1) the plaintiff's capacity to understand English;
(2) the events of the accident;
(3) the recorded medical histories;
(4) the plaintiff's physical injuries;
(5) the plaintiff's physical disabilities;
(6) the plaintiff's pre-accident psychological issues;
(7) the plaintiff's post-accident psychological disabilities;
(8) DVD footage showing the plaintiff's activities;
(9) DVD footage showing static observation of premises;
(10) the claim for domestic assistance;
(11) aspects of the claim for economic loss;
(12) the plaintiff's living arrangements;
(13) the plaintiff's medication usage;
(14) driving and motor vehicle ownership;
(15) the plaintiff's social isolation;
(16) the plaintiff's activities of daily living;
(17) plaintiff's physical presentation;
(18) the plaintiff's poor recollection of events when cross-examined;
(19) alleged personal relationships, including with the defendant;
(20) the plaintiff's past pregnancies;
(21) concealment of the plaintiff's most recent pregnancy, and the paternity thereof;
(22) allegations that the plaintiff lied, told untruths and gave false evidence;
(23) allegations of mendacity made by Dr Haik.
The general method by which the defendant's submissions proceeded to attack the plaintiff's credit, was to refer to summarised statements of the medical histories the plaintiff had provided to the various medico-legal specialists who had examined her, to refer to her oral evidence in which she was said to have either adopted or provided affirmation of those histories as statements summarised by the medico-legal experts, to compare that evidence with the argued unambiguous inconsistencies in the evidence of the plaintiff as revealed by more objective evidence, and to compare those matters with the plaintiff's responses given in evidence when her evidence was confronted and tested during cross-examination.
In seeking to sustain the attack on the plaintiff's credit, the defendant tendered voluminous surveillance evidence that involved both observational footage of the plaintiff's activities, and which also involved prolonged static surveillance footage of the various premises where the plaintiff was thought to reside.
Portions of the static surveillance footage were the subject of some agreements reached between counsel for the parties during the course of the trial. This obviated the need for the court to view many days of uneventful surveillance footage that revealed no relevant activity. That agreement arose after counsel for the plaintiff was afforded the opportunity to view that extensive footage outside of court sitting times. There was relatively limited evidence of the activities of the plaintiff in the DVD footage that was shown. This is a matter to which I shall return when considering the submissions concerning the credit of the plaintiff.
The credit attack on the evidence of the plaintiff was far-reaching and was obviously well planned. It threw up many issues, including peripheral issues, which the defendant sought to make contentious.
The detail and extent of that credit attack highlighted the oversimplified portrayal of the statement of the issues that was the subject of agreement between counsel at the commencement of the trial, and which I have cited at paragraph [20] above, and which I consider could not be reasonably described as having fulfilled the obligations of the parties arising under s 56 of the Civil Procedure Act 2005.
I have given careful consideration to the matters raised in the credit attack on the evidence of the plaintiff. In view of the breadth and detail of that attack, my approach to the analysis has been to first review what turned out to be the undisputed background and factual matters, to then review the detail of the medical evidence, and to consider the surveillance evidence and other evidence, before then setting out my reasons for arriving at my credit findings on the individual issues that arose for consideration.
The effect of that approach has perhaps added considerably to the bulk of my reasons, but this was nevertheless necessarily required because of the nature and extent of the material, and because the findings as to the credit of the plaintiff must precede any findings concerning the nature and extent of the plaintiff's injuries, her disabilities, and the consequential matters relating to the assessment of her claims to entitlement to damages.
My findings on the issues that I have identified as calling for decision, are summarised in the paragraphs that follow.
Summary of findings
On Issue 1, on the matter of the credibility of the evidence of the plaintiff, I have found that in some respects, but not overwhelmingly so, as was submitted by the defendant, her credit has been shown to have been damaged on a number of matters that were largely peripheral to the true issues calling for decision. I have not accepted the defendant's blanket submission that the plaintiff's claim should be rejected in its entirety, and that the claim should therefore be dismissed due to her evidence being discredited. My reasons for those findings appear at paragraphs [361] to [683] of my reasons.
On Issue 2, I have found that the accident in question involved two sequential collisions, each being of some force, which caused damage to the vehicle in which the plaintiff was a passenger. My reasons for such findings appear at paragraphs [684] to [693] of my reasons.
On Issue 3, I have found that as a result of the cumulative effects of the respective collisions, in addition to minor grazing to her right knee, the plaintiff suffered a minor injury to her head, and sustained soft tissue injuries to her neck, her shoulders, her abdomen, her chest, her thoracic and lumbar spines, and she was subjected to the effects of jarring from the respective impacts of these collisions. My reasons for such findings appear at paragraphs [694] to [756] of my reasons.
On Issue 4, I have accepted that the plaintiff has been left with ongoing disabilities of a chronic nature from her soft tissue injuries. I have also found that she has also developed a severe psychological reaction following the collision, and as a result of the effects of her injuries and disabilities. I have accepted the preponderance of the medical evidence to the effect that the plaintiff has developed a chronic post-traumatic stress disorder, or PTSD, with an associated major depression, and that she has been left with a specific phobia associated with motor vehicle travel. My reasons for such findings appear at paragraphs [757] to [842] of my reasons.
On Issue 5, I have assessed the plaintiff's entitlement to damages in the total sum of $102,704.19 which after deduction of a statutory defence for payments made pursuant to s 83 of the MAC Act in the amount of $422,020, results in a judgment in her favour in the amount of $98,483.99. My reasons for such findings appear at paragraphs [843] to [939] of my reasons.
Assessed heads of damage
The damages submissions of the parties are listed below, together with the paragraph references to my assessments of the various individual heads of damage that were claimed by the plaintiff. The plaintiff's claim was for the assessment of 4 heads of damage, as follows:
Head of Damage claimed by plaintiff
Plaintiff's Submissions
Defendant's Submissions
Award
Paragraphs
(a) Future loss of earning capacity
$150,000
$Nil
$25,000
[846] - [874]
(b) Past domestic assistance
$159,712
$Nil
$33,352.14
[875] - [917]
(c) Future domestic assistance
($678,672)
$Nil
$37,500
[918] - [934]
(d) Past out-of-pocket expenses
$6,852.05
$6,852.05
$6,852.05
[935] - [943]
Totals
($995,236.05)
$Nil
$102,704.19
The figures which I have included in parenthesis in the above tabulation, are the result of calculation of the elements of the claim as was submitted on behalf of the plaintiff.
The defendant has conceded that the plaintiff had incurred an amount of $6852.05 for past out-of-pocket expenses, but argued that after applying the statutory credit owing to the CTP insurer in the amount of $4220.85, pursuant to s 83 of the MAC Act, the balance of $2631.20, which consisted of the Medicare charge, was likely to be waived as a "small amount" pursuant to s 38 of the Health and Other Services (Compensation) Act 1995, thereby justifying the entry of a judgment for the defendant in the proceedings, assuming no other heads of damage attracted any monetary assessments. The plaintiff disputed those contentions and that conclusion, and I have not accepted the defendant's contention in this regard.
Procedural ruling for concurrent psychiatric evidence
During the course of the trial, on the 15th day, and as had been indicated in accordance with the direction given to the parties at the commencement of the trial, a formal order was made for the parties to arrange for a meeting to take place between consultant psychiatrists, and for the evidence of 5 consultant psychiatrists to be given concurrently: Uniform Civil Procedure Rules 2005, Pt 31 r 35(c). That order was made in order to seek a narrowing of the issues that emerged from the various psychiatric reports and to aid in an understanding of the matters truly in dispute between the respective experts, as this related to the wider objects of s 56 of the Civil Procedure Act 2005.
Procedural motion seeking a further MAS assessment
At the commencement of the case on 16 May 2011, Mr Cranitch SC foreshadowed that an application would be made pursuant to s 61(4) of the MAC Act seeking to set aside an existing MAS Certificate issued by Dr Enrico Parmegiani on 20 August 2009. He also foreshadowed seeking an order pursuant to s 61(6) of the MAC Act for the court to substitute its own findings in relation to the plaintiff's degree of permanent impairment greater than 10 per cent. The effect of such orders, if granted, would have enabled the plaintiff to claim damages for non-economic loss. At the outset, the defendant indicated that such a course would be opposed.
On 8 August 2011, on behalf of the plaintiff, junior counsel for the plaintiff, Mr Campbell, ultimately sought and obtained leave to file a notice of motion in court seeking the above orders. The argument on that motion was deferred until final submissions. Ultimately, on 9 August 2011, Mr Cranitch SC appeared and announced that the plaintiff would not be proceeding with that notice of motion. Accordingly, that motion is now formally dismissed, with any costs incurred by the defendant in respect of that motion to be paid by the plaintiff.
B. FACTUAL MATTERS
Facts
In the paragraphs that follow, I set out my review of the evidence and my findings on factual matters.
Plaintiff's background and pre-injury circumstances
The plaintiff was born in Beirut, Lebanon, in 1973. She is the youngest of 8 children. By a family arrangement, she married an older cousin, an Australian citizen, in Lebanon, when she was aged 16 years. There were 3 surviving children of that marriage. Her first 2 children had died in Lebanon at the respective neonatal ages of about 20 days and 21 days, respectively due to intracranial and intra-abdominal haemorrhages when the plaintiff was aged 16 years and 17 years.
In 1993, the plaintiff arrived in Australia to join her husband. That marriage broke down on account of her husband's gambling activities, his alcoholism and his imprisonment. The plaintiff subsequently divorced her husband in Australia. There was a history of her husband having behaved violently towards the plaintiff and the children, both before and after the divorce.
Before the accident the plaintiff was in good health. She used to run for exercise on a daily basis. She was aged 33 years at the time of the accident. After the accident the plaintiff became aware that she was pregnant. However, that pregnancy ended in a miscarriage. The plaintiff was aged 38 years at the time of the trial.
At the commencement of the trial, the plaintiff's surviving children were her sons aged 19, 14 and 13 years. The eldest of those children is severely disabled with cerebral palsy. As a result of the plaintiff being unable to care for that son after the break-up of her marriage, from the age of 11 years, he has been in institutional care, as it had been difficult for the plaintiff to cope with his care needs as a single parent. Before the accident the plaintiff had occasionally cared for her disabled son on weekends. This is a matter to which I shall return when assessing which psychiatric opinions should be preferred.
Before the accident the plaintiff attended to all of her household and domestic tasks herself. She also managed her youngest son's soccer team, an activity which she ceased after the accident. To the observation of her friend Mrs Ishak, she was a happy person who coped with her family and domestic responsibilities despite the earlier difficulties she had encountered in her life.
Before the accident, the plaintiff had been fully engaged in her child rearing responsibilities. However, in 2001 and 2004 she had also completed some TAFE courses. Respectively, these were in floristry and in language, literacy and numeracy: Exhibits "A" and "B". In 2005 she also attended TAFE and completed a 3 month computer skills course.
At the time of the accident the plaintiff was hoping to obtain work either in a florist's shop, or in a small supermarket, working hours that were compatible with her after school childcare responsibilities. Her ultimate aim was to start her own business, and for this she needed to acquire some experience. Her only previous work experience had been to assist in her sister's jewellery shop in Lebanon. She had not ever worked in Australia in the 13 years before the accident.
The defendant tendered some pre-accident records relating to the plaintiff from the Westmead Obstetrics and Gynaecology Clinic. These showed that in November 2004, the plaintiff was planning a pregnancy and was given some medical advice in this regard. The context of that consultation was her earlier obstetric history of some problems with childbirth, all of which had occurred whilst she was in Lebanon. In this context it was noted that subsequent pregnancies resulted in caesarean deliveries at Westmead without problems.
At the time of the consultation in November 2004 it was noted the plaintiff was "currently with another partner for 3 years" and was fearful of being pregnant because of possible complications of caesarean section. The nature of that previous relationship was not explored in the evidence as it was not relevant to any matter in issue. The notes of the Westmead clinic indicated that some reassurance was given to the plaintiff on that occasion: Exhibit "6", Tab 3, page 12. This is a matter to which I shall return in outlining my credit findings concerning the evidence of the plaintiff.
At the time of the accident, and at the time of the trial, the plaintiff resided in Department of Housing accommodation. The plaintiff's living arrangements were a matter that the defendant went to significant lengths to make the subject of credit challenges to the plaintiff's evidence, including through extensive surveillance evidence, matters to which I shall return in due course in connection with my credit findings.
On 31 October 2006, which was the day before the accident, the plaintiff had lodged a request with the Department of Housing seeking relocation of her accommodation. This was because she was being harassed by her ex-husband whom she said was on drugs and was violent: Exhibit "6", Tab 4, pages 13 - 14.
The context of that application was that on 20 October 2006 the plaintiff apparently ascertained that her ex-husband had just been released from gaol and had been sitting outside her house. The unchallenged evidence is that she had an apprehended violence order against him at that time. On 20 October 2006, a general practitioner, Dr Sellathurai, gave her a prescription for a medication, the name of which was difficult to decipher. When she returned to see Dr Sellathurai on 31 October 2006, a history was recorded in the notes at Exhibit "6", Tab 5, page 17, which I interpret to read as follows:
"Still feeling v agitated & having nightmares since starting Luvox."
This matter, and the prescription for Luvox, was a matter that was not made the subject of cross-examination of the plaintiff and it was not a matter upon which the expert psychiatrists were asked to comment. The evidence did not disclose the intended psychopharmalogical or any other possible actions of that medication, and in view of the state of the evidence, it is not permissible for me to draw any conclusions as to what that medication was prescribed for, one way or the other: Strinic v Singh [2009] NSWCA 15.
Trial interrupted by "indisposition" of plaintiff - undisclosed childbirth
During the course of the trial, on the 5th day, namely Friday 20 May 2011, the plaintiff was excused from giving evidence in order to obtain medical assistance because she was "stressed and physically ill". The proceedings started on that day with senior counsel for the plaintiff making statements to the court that were of some significance to the plaintiff's credit. For that reason I shall set out those statements, which were made in the following terms, and which appear at T223.24 to T223.34:
"CRANITCH: My junior had a communication from my solicitor a short while ago before we left to come down here saying the plaintiff is not feeling well and is feeling stressed and is not sure that she is going to be able to give evidence today. I'm waiting for my solicitor to come and give me instructions about that because he speaks her language. So it may well be, your Honour, that the plaintiff is not up to giving evidence today. I'm not quite sure what the problem is. I understand it's some stress issue but given the nature of the case being run by my learned friend, I want to make sure she's on top of her ability to give evidence."
The above statements by senior counsel, which were made on the plaintiff's instructions, were reiterated at T225.42, in the following terms:
"CRANITCH: Yes, thank you, your Honour. As I indicated this morning, the plaintiff has told my instructing solicitor and I've now had a chance to confirm (sic for confer) briefly with her - that she's not, that she doesn't feel she could give cogent evidence today and, your Honour, I wonder if I might ask her a few short questions about that, once the interpreter has been sworn?"
After the interpreter and then the plaintiff were sworn, at T227.5 to T227.32, the following short evidence was led from the plaintiff as to the nature of her most recent indisposition:
"Q. Ms Khalil, before Court commenced this morning, you spoke to your solicitor and you indicated to him that you might have some difficulties about giving evidence today. Is that correct?
A. INTERPRETER: Yes.
Q. And, as I understand from having spoken to you very briefly outside the Court, you are stressed and depressed and you feel physically ill. Is that correct?
A. INTERPRETER: Yes.
Q. And you indicate to me you did not feel you would be able to give your full attention to the questions being asked of you today?
A. INTERPRETER: Yes.
Q. Do you think you will be in a better position to attend to giving evidence if you were able to come back on Monday and not give evidence today?
A. INTERPRETER: Yes.
Q. Was that a yes? I'm sorry?
A. INTERPRETER: Yes.
CRANITCH: Yes. Sorry, well, that is the evidence, your Honour.
HIS HONOUR: Yes. Are you contesting any of that, Mr Fitzsimmons?
FITZSIMMONS: I have no questions, your Honour.
THE WITNESS WITHDREW"
The reasons given by the plaintiff for seeking an adjournment were not further explored at that time, and the requested adjournment was granted as it was clearly indicated and appropriate.
On the following Monday, 23 May 2011, which was the 6th day of the trial, the plaintiff returned to court. The cross-examination of the plaintiff then continued for another 2 days before, on the 8th day of the trial, counsel for the defendant indicated that subject to reviewing some hospital notes produced at the Registry, he had concluded his cross-examination of the plaintiff: T337.50 - T338.1; T343.35.
At that point Mr Fitzsimmons took the opportunity of reviewing some further hospital notes that had been produced to the Registry on subpoena. He then continued with his cross-examination of the plaintiff. That cross-examination proceeded on the assumption that the plaintiff was still pregnant, which Mr Fitzsimmons positively put, as follows, at T338.20:
"FITZSIMMONS
Q. The position is that you are currently pregnant aren't you?
A. INTERPRETER: I was.
Q. You were pregnant at the time you went to hospital a number of weeks ago weren't you?
A. INTERPRETER: Yes.
Q. That was the condition for which you went to hospital wasn't it?
A. INTERPRETER: I had a very sore stomach before that, yes.
Q. No, Ms Khalil, please. The evidence you gave the other day when I asked you some questions about what the condition was, you said it was a condition with your abdomen. Do you remember that?
A. INTERPRETER: Yes, yes, the stomach, yes.
HIS HONOUR: Isn't that where pregnancy usually appears?
FITZSIMMONS
Q. Why didn't you disclose, Ms Khalil, that in fact you were pregnant at the time?
A. INTERPRETER: You asked me, "Why did you go?" and I told you I had a problem with my abdomen.
Q. Who's the father of the child?
CRANITCH: I object to that, your Honour.
HIS HONOUR: Mr Fitzsimmons, what is the relevance of that question?
FITZSIMMONS: Your Honour, I'd like to deal with it in the absence of the witness, your Honour."
A discussion then ensued to the relevance of the question that had been asked concerning the paternity of the plaintiff's child, which until that time, was still assumed to be an unborn child. In due course I rejected the paternity question as being improper because it was irrelevant to the stated issues in the case, and irrelevant to any fact in issue, amongst other grounds: s 41(1)(b) and s 135(c) of the Evidence Act 1995: see separate ruling given on 25 May 2011: T350.1.
Two days later, on 25 May 2011, and on the assumption that the plaintiff was still pregnant, Mr Fitzsimmons resumed his cross-examination of the plaintiff.
In those events it later emerged that the plaintiff's evidence as to having had "a sore stomach" and to having had a problem with her "abdomen" had not been entirely candid. The plaintiff's subsequent explanation for the way the evidence of her recent childbirth emerged, and for the plaintiff not mentioning the fact that she had a recent caesarean section delivery was that she was simply addressing the questions that had been asked of her. This is a matter to which I shall return in setting out my credit findings.
In the course of that additional cross-examination, a dramatic and surprising revelation then occurred, in which it transpired that the plaintiff had been delivered of a child by caesarean section on 20 May 2011. As these events are of some considerable relevance to the assessment of the credit of the plaintiff, for convenient reference and context, I have set out in full the relevant tract of her cross-examination, appearing from T352.43 - T355.41 as follows:
"FITZSIMMONS
Q. Ms Khalil, do I understand your evidence to be that since 6 May, you've had a further two admissions to hospital where you've gone by ambulance? Is that right?
A. INTEPRETER: Yes.
Q. When were those admissions?
A. INTEPRETER: I don't remember the date after that, but I remember the last one was on 20 May.
Q. That was last Friday, when you were excused from your attendance at Court in the morning?
A. INTEPRETER: Yes.
Q. And when was the occasion before that?
A. INTEPRETER: I don't remember exactly the date.
Q. Well, Ms Khalil, just so you understand, you went to hospital on 6 May 2011. This hearing started on 16 May 2011. Was it some time between 6 May and 16 May?
A. INTEPRETER: Yes.
Q. For the first of those visits - that is the first visit since after 6 May - to which hospital did you go?
A. INTEPRETER: The same hospital, Liverpool Hospital.
Q. Are you sure about that?
A. INTEPRETER: I'm not sure whether twice or three times, but it was twice probably.
Q. Ms Khalil?
A. INTEPRETER: I can't remember exactly.
Q. Ms Khalil, I just asked you a question about an attendance at hospital that has occurred in the last two weeks. Do you understand? And you said it was Liverpool Hospital. Was it Liverpool Hospital or not?
A. INTEPRETER: Yes.
Q. How many days was it after 6 May that you went on the second occasion?
A. INTEPRETER: I don't remember. I don't remember how many days after.
Q. And for what condition did you go on the second occasion?
A. INTEPRETER: The same thing. I had abdomen pain.
Q. What was your condition that took you to the hospital?
A. INTEPRETER: Because I was pregnant and I felt pain in my abdomen.
Q. How long did you stay at hospital on that occasion?
A. INTEPRETER: Couple of hours and I was released.
Q. and then the third occasion, as I understand, was last Friday. Is that right?
A. INTEPRETER: Yes.
Q. And to which hospital did you go on that occasion?
HIS HONOUR: She's already said the same hospital, Mr Fitzsimmons. I reject the question. We mustn't have repetition.
FITZSIMMONS
Q. Did you go to Liverpool Hospital last Friday?
HIS HONOUR: I reject the question.
FITZSIMMONS: Well, your Honour, with respect, the answer that the witness gave earlier was that in terms of Liverpool Hospital, she did not know whether it was still three occasions.
HIS HONOUR: You have already established from prior questions this morning and the answers to those questions that all of her attendances were at the same hospital, and we've identified it as Liverpool. And I therefore reject the repetitive cross-examination.
FITZSIMMONS
Q. Ms Khalil, what was the condition for which you went to the hospital last Friday?
A. INTEPRETER: The same thing. I had pain in my abdomen and I went to hospital.
Q. How long were you there on that occasion?
A. INTEPRETER: I was - I'm still - until now I'm there but they let me come so I can come here. They let me out of hospital so I can come in here. They give me some release to come here.
FITZSIMMONS: Sorry?
CRANITCH: That's very dangerous. I'm just making the comment it's very dangerous.
FITZSIMMONS
Q. Ms Khalil, the position is that at the time that you first went to hospital a number of weeks ago, you were about 37 weeks pregnant, correct?
A. INTEPRETER: I don't remember how - how many weeks, but I was admitted to hospital.
Q. You're still pregnant, aren't you?
A. INTEPRETER: No.
Q. Have you had the child, Ms Khalil?
A. INTEPRETER: Yes.
Q. When did you have the child?
A. INTEPRETER: Friday.
[Emphasis added]
HIS HONOUR
Q. Do you mean by that answer last Friday, which was 20 May?
A. INTEPRETER: Yes, actually the 20th.
HIS HONOUR: Well, I'm just wondering whether we should proceed in these circumstances.
CRANITCH: Your Honour, I suspect she might also have had the child by caesarean section, which is even more interesting.
HIS HONOUR: Well, in my quick look through the clinical notes, I saw there were four prior caesarean sections, so it's a reasonable assumption that that would be so. Ms - well, I'll leave it to counsel.
CRANITCH: Well, your Honour. I need to talk to my client and frankly I think it's very dangerous that she's here.
HIS HONOUR: Yes, well, Mr Cranitch, I think you should speak to her on that issue and I'm going to adjourn for a moment.
CRANITCH: Thank you, your Honour.
HIS HONOUR: So you can do so. Let me know when you're ready.
THE WITNESS WITHDREW
SHORT ADJOURNMENT
HIS HONOUR: What's the position?
CRANITCH: Your Honour, I did speak to the plaintiff. The plaintiff is not well, needless to say. She has had a Caesarean section.
HIS HONOUR: I must say, she wasn't looking terribly--
CRANITCH: She hasn't been looking well for the last few days and I understand why. However, Your Honour if the cross-examination was confined to another half an hour or so, she'd much rather get it finished, obviously. But I'm told and I accept from my learned friend that the impact of this news has a significant bearing upon other sectors of the case and I accept that."
In this way, bizarrely, and much to the surprise of the cross-examiner, and very much to the surprise of the plaintiff's own counsel and solicitors, given that on the second day of the trial, at T71.43, I was informed by Mr Cranitch SC that the plaintiff was not pregnant, it transpired, that on 20 May 2011, at Liverpool Hospital the plaintiff had been delivered of her sixth and fourth surviving child by caesarean section.
It is plain that until the plaintiff was asked in cross-examination to confirm that she was still pregnant, she did not volunteer the fact that she had very recently been delivered of her last child. The interpretation of that evidence is a matter to which I shall return in stating my credit findings.
After these revelations, the proceedings were then stood over to 26 May 2011. A medical certificate was then tendered to show that the plaintiff was not fit to attend court from 20 May 2011 until 2 June 2011: Exhibit "D". The proceedings were then stood-over in order that they be resumed again on 2 June 2011, in conformity with that medical certificate.
The medical certificate that comprised Exhibit "D" was not challenged by the defendant. In my view that certificate of the plaintiff's medical unfitness to attend court raised a possible question of the reliability of the evidence given by the plaintiff during the certified period of her unfitness to attend court on the hearing days consisting of 23, 24 and perhaps 25 May 2011. This is a matter to which I shall later return in stating my credit findings.
The foregoing circumstances led to an assertion by counsel for the defendant to the effect that the plaintiff had deliberately concealed the fact of her latest pregnancy out of an alleged concern on her part, that the fact of her pregnancy might have been perceived to have an adverse influence on the outcome of her claim for damages for loss of earning capacity: T369.16. This too is a matter to which I shall return in my consideration of the challenges the defendant made to the plaintiff's credit.
On 2 June 2011, the cross-examination of the plaintiff resumed: T367 - T390. Notwithstanding the dramatic events that had transpired as described in the preceding paragraphs and extracts, the plaintiff was not re-examined on any issue: T389.50 to T390.1.
As a result, there was no evidence obtained from the plaintiff as to her physical or emotional state when she gave her evidence on the days in respect of which she was certified as being unfit to attend court. This turned out to be a matter of some significance because the defendant directed submissions that were critical of the content and credibility of that testimony.
Evidence of the events of the accident
The plaintiff's account of the circumstances of the accident was that she was a passenger in a vehicle that had entered the roundabout in question when her vehicle was hit by another vehicle in that roundabout. She said this caused her vehicle to then spin and hit a telegraph pole: T24.5 - T24.21. The plaintiff's account of the events of the collision, as was summarised by the preponderance of the various medical and allied examiners who had assessed her, was in broad terms, as stated by those examiners, and that evidence was generally consistent with the plaintiff's own description.
The plaintiff stated that she and her children had to be cut free from the vehicle wreckage by Fire Brigade personnel following the accident. That evidence was not challenged.
On 8 November 2006, the plaintiff completed, or more correctly, was assisted to complete, a Motor Accident Personal Injury Claim Form: Exhibit "1". In answer to Question 15 on that form, which called for the plaintiff to provide a description of the accident, she stated:
"I was a passenger in a car travelling along Gladstone St Cabramatta towards a roundabout in John St. As the car entered the roundabout, it was hit by another car".
In her answer to Question 14 on that form, the plaintiff, or more correctly, someone on her behalf, provided the following diagram of the accident scene, which provided some added perspective to the relatively bland description of the circumstances as provided by the plaintiff's answer to Question 15 in Exhibit "1":
Without the above diagram, and without the additional material contained in the police report relating to the accident, the circumstances of the accident could well have been viewed as being of only minor consequence. On page 19 of Exhibit "1", the Motor Accident Personal Injury Claim form, where a brief description of the damage to the vehicle was called for, that damage was simply described as being to the "front end".
The unchallenged description of the circumstances of the accident as contained in the police COPS report, which was tendered as part of Exhibit "6" at Tab 1, was as follows:
"...
About 7pm on Wednesday the 1st of November 2006, Veh1 was travelling north on Gladstone Street in Cabramatta, about to enter a roundabout at the intersection with John Street. At this time Driver1 noted Veh2 approaching along Gladstone Street toward him on the other side of the roundabout.
Veh2 entered the roundabout and turned across the path of Veh1. Veh1 was unable to stop and swerved to the right, but still collided lightly with the rear nearside of Veh1 just behind the rear wheel.
This caused Veh1 to swerve again to the left. The passenger in Veh1 screamed, which caused Driver2 to panic and accelerate. Veh1 then collided with Obj3, causing slight damage to Veh1 and no visible damage to Obj3.
..."
That report described the plaintiff as having sustained a severe neck injury, of having been trapped in the vehicle, and of having to be released from the vehicle by Fire Brigade personnel as set out in the following extract that I have emphasised below, comprising page 2 of the police report, which was located at Tab 1 of Exhibit "6", and which included the following statement:
"...
When police attended, the passenger in Veh 1 [the plaintiff] informed police that she was feeling pain in her neck and leg. An ambulance attended, as well as fire brigade (Rescue), who extracted the passenger from Veh 1 by cutting the "B" pillar..."
The police report had described the damage to the front of the plaintiff's vehicle as being minor or slight, and it stated that there was no visible damage to the power pole. Whatever the extent of the damage to the plaintiff's vehicle in those events, it appears that there was sufficient concern over the plaintiff's injuries that arrangements were made for the Fire Brigade to cut the B pillar on the passenger side of the vehicle in order to free the plaintiff from her entrapment in the wreckage of the vehicle.
Claimed injuries
In her oral evidence the plaintiff said that after the collision she went numb, started to shake, and felt completely terrified: T24.25. The plaintiff said she hit her head on the dashboard, all her body was aching, she noticed pain on her left side, including her hand, her upper arm and her leg, and her left knee was aching and numb. She said she was unable to move: T25.18. she said she was aware of her children screaming: Report of Dr Prior 23 September 2009. She said a paramedic gave her morphine and placed her in a neck brace: T7.27; T24.28 to T25.35.
Dr Faithfull, a medico-legal expert, raised the alternative possibility that the plaintiff may have in fact struck her head on the door of the vehicle. The plaintiff also claimed to have suffered a blow to her left knee when that knee hit the dashboard in the collision. She also claimed to have suffered an injury to her left shoulder, as well as straining injuries to her cervical, thoracic and lumbar spines.
In the Motor Accident Personal Injury Claim form that was prepared by someone on her behalf before it was completed by the plaintiff signing it on 8 November 2006, the plaintiff listed her injuries in more simplistic terms as being to the neck, back, right shoulder and shock: Exhibit "1", page 12, Question 25. It appears from the content of that form and from the plaintiff's evidence, that someone had assisted her in completing the details required by that form, following which she signed the document.
Before arriving at my findings on the nature, extent and the ongoing effects of the injuries the plaintiff sustained in the accident, it is necessary to review the plaintiff's evidence as a whole, together with the relevant detail within documentary evidence including the initial assessments and the treatment of the plaintiff, as well as the summaries of the medical histories and any related evidence on those matters.
Initial assessment and treatment of the plaintiff
The plaintiff was first assessed by ambulance personnel at the scene. The ambulance transport report shows that the ambulance officers attended to the plaintiff (and I interpolate, to her children as well) over the course of some 49 minutes of attendance before departing the scene for the journey to Liverpool Hospital. She remained at that hospital for 2 days, before discharging herself because of her stated need to attend to her parental responsibilities.
Whilst there was no explanation from within the ambulance report that confirmed the attendance of the Fire Brigade at the scene, it seems possible that the departure of the ambulance from the accident scene may have been delayed by the need to cut the plaintiff free from the wreckage of her vehicle.
The ambulance report recorded that at the scene, the plaintiff complained of neck pain with sensory loss in both arms and legs, the left and right regions of her upper back, abdominal pain and chest pain. It was recorded that she had a full recall of events of the accident and it was recorded that she denied a loss of consciousness. An intravenous cannula was inserted, and the plaintiff was given a number of drugs, including methoxyflurane and morphine. The ambulance report recorded her as having worn a lap sash seatbelt.
The diagrammatic representation within the ambulance report of the plaintiff's sites of pain was initially difficult to read because of the quality of the photocopying and due to hole punching of a part of the page. On 15 March 2011, an undamaged copy of that document was tendered: Exhibit "9". I interpret the markings on the diagram in Exhibit "9", and its predecessor, to show the plaintiff had pain in the neck, both shoulders, the right side of the chest and abdomen, her left lower chest, and to either her left groin, pelvis or left upper thigh region.
It is apparent that the above summary of the notations on the ambulance report do not necessarily represent a complete picture of the sites of the plaintiff's complaints of pain at the scene of the accident. I consider that to be the position in view of the evidence of Dr Faithfull, at T463.30, in which he explained that where ambulance officers were concerned with matters such as a cervical pain with sensory loss to the arms and legs, a complaint of pain in the knee "might actually be lost".
The Liverpool Hospital clinical notes concerning the plaintiff's admission on the day of the accident reveal that the plaintiff had been assessed by a triage nurse at 20:13 hours on 1 November 2006 which was just 2 minutes after she had been taken off the ambulance stretcher at Liverpool Hospital: Exhibit "9".
The nursing assessment note of the emergency department triage record sheet stated:
"LOW SPEED C/O NECK PAINS AND PINS AND NEEDLES TO ALL LIMBS CHEST PAIN WORSE ON INSPIRATION ABDO PAIN TRAUMA TEAM ACTIVATED 5MG MORPH AND 10MG MAX VIA CDA."
The Liverpool Hospital discharge summary, which appears to have been written up retrospectively, probably because the plaintiff had signed herself out of hospital earlier than was planned, confirmed that various imaging studies had been carried out in the form of plain x-rays, ultrasounds and CT scans of the cervical spine, abdomen and pelvis.
The diagrammatic form within the nursing notes, that was intended to be completed by the nursing staff to record the sites of complaints of pain, had not been filled in. It is speculative as to whether information as to the location of pain sites would have been available to the nursing staff at that initial stage as the plaintiff had earlier been given doses of the painkilling medication morphine.
A similar pain site diagram completed at a secondary survey carried out by a medical examiner at a later but unstated time, noted mild tenderness in the sternum, bilateral tingling in both hands, mild tenderness of the upper thoracic spine, moderate tenderness of the right side of the cervical spine, and tenderness of the lumbar spine.
Whilst the plaintiff was an inpatient at the hospital, and in addition to the above observations, there were notes made by medical staff of several physical surveys carried out on the plaintiff's condition. Those surveys had been carried out by a surgical registrar. The first of these surveys was at 20:30 hours on 1 November 2006, and the second one was untimed. There was no evidence called to elucidate as to whether or not, or if so to what extent, the plaintiff would still have been affected by the earlier administration of morphine at these times.
The first survey identified the plaintiff's complaints of chest, back and neck pain. The notes of the second survey appear at page 29 of Exhibit "6". The notes of the plaintiff's complaints taken at that second survey require some interpretation. They reveal that the plaintiff was tender over her entire spine. The surgical registrar, Dr Kozmen, drew an annotated freehand diagram in the notes following his physical examination of the plaintiff. An extract of that diagram is as follows:
The above diagram is open to interpretation. I interpret the notation of the words "non tender" in juxtaposition to the diagram of the plaintiff's head and face to mean that the plaintiff's head, or at least her face, was physically examined, following which a conclusion was drawn to the effect that this examination elicited no responses consistent with tenderness in that region. This begs the question as to why the plaintiff's face or head was examined in the first place.
The two interpretations that immediately arise are firstly, that the examination in question was part of a routine examination that was ordinarily carried out in accordance with a hospital or medical protocol in such circumstances. A second interpretation is that there may have been some complaint or indication of a head or facial injury which made such an examination relevant or necessary, and which resulted in an examination of that area of her body.
Either of these two explanations are possible. No medical evidence was directed at the interpretation of this note. It is not permissible for me to draw inferences on these matters in order to prefer one speculative interpretation over another, without a valid basis for doing so. In considering the above diagram for its significance, it seems to me that such a basis exists, as appears from the rest of those notes and the further diagnosis within.
In my view the "non tender" handwritten notation under present review was most probably made as a result of a medical need to examine that area. I consider it was unlikely that the examination in question would have been undertaken if the plaintiff had not received, or had been thought to have received, an injury to her face or head.
This leaves a question as to why an examination of the plaintiff's head or face was not undertaken at an earlier time such as on arrival at the hospital or by ambulance personnel at the scene. In this context, it is possible the plaintiff had not initially complained of a head or face injury. Alternatively, the fitting of a hard collar by ambulance staff may have been influential as to whether such an examination was fully possible.
It is apparent that according to the ambulance records, the plaintiff was given a number of drugs between 19:30 hours and 19:40 hours on 1 November 2006, including morphine. Furthermore, a reading of pages 36 - 40 of the hospital notes shows that between 20:19 hours and 21:40 hours on 1 November 2006 the plaintiff was given some further doses of morphine.
No evidence was called on the duration of the therapeutic action of the various doses of morphine that had been given to the plaintiff, or of the effects of such doses, either individually or as an accumulation, on general awareness of pain, discomfort, concentration, or consciousness. In the absence of such evidence I can only proceed upon a commonsense analysis that does not draw upon any medical or scientific assumptions that are not in evidence: Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 53, at pages 563-564 and 569; Strinic v Singh [2009] NSWCA 15.
On that approach, I consider that it is possible that the effects of the earlier administration of the painkilling medication morphine may not have initially enabled all of the plaintiff's complaints of pain to be fully documented as to the respective locations of such pain.
Reference to the rest of the diagram of the second physical survey of the plaintiff by the surgical registrar on 1 November 2006 also provides some assistance to interpreting the above "non tender" reference in connection with the diagram of the face as it is replicated on the same page in connection with an examination of the plaintiff's upper and lower legs, where the notation "non tender" also appears. The entire diagram is as follows:
My interpretation of the notes and symbols in that regard suggests that the surgical registrar appears to have determined that in respect of both of the plaintiff's legs, her pulses (perhaps pedal pulses) were normal, as were the neurological findings on examination.
Absent from the notes of that second survey was any diagrammatic representation of the plaintiff's upper limbs. This assists me to draw the conclusion that the examination undertaken at that second survey was probably directed to those parts of the plaintiff's body that raised some concern over injury. In this regard, on a commonsense analysis, it seems reasonable to assume that the earlier notation of the sensation of pins and needles in all of the plaintiff's limbs was an obvious reference to a possible spinal injury, which may be an explanation as to why there was no detailed survey of the plaintiff's upper limbs. In any event, it is not necessary to decide this point.
Having regard to the timing of that second survey, or the timing of the first survey for that matter, both of which followed injections of morphine, it may well have been the case that the plaintiff's complaints of pain may not have been fully identified at the times she was examined. This is a matter that could be of significance in considering the nature of the attack on the plaintiff's credit as well as being of some reliance to the findings concerning Issue 3.
For present purposes, it is sufficient to say that because of the "non tender" notations on the diagram I have referred to, it would be inappropriate to simply reject outright the proposition that the plaintiff sustained an injury to her head as claimed.
Subsequent treatment received by the plaintiff
After her discharge from hospital, the plaintiff saw her general practitioner, Dr Rahman, who referred her to an orthopaedic surgeon, Dr Maniam, and to a psychiatrist, Dr Ali. The plaintiff also attended the Westmead Traumatic Stress Clinic for treatment of her post-accident psychological problems. These matters are described in the ensuing paragraphs and in the chronological sequence in which they have arisen.
Chronology of medical and allied assessments
In the paragraphs that follow, after setting out a review of the initial x-rays, ultrasounds and CT scans taken in hospital, I have also set out a chronological account of the ensuing medical and allied assessments of the plaintiff that have been undertaken by the various treating doctors, medico-legal experts who were retained to examine and assess the plaintiff at the request of the various solicitors for the respective parties, including for the CTP insurer and the Motor Accidents Authority ["MAA"] in the form of the Medical Assessment Service ["MAS"] assessor's reports appointed by the MAA.
The necessity for review of the historical detail involved in this approach arose from the nature of the defendant's credit attack upon the plaintiff's case. That attack was largely reliant upon summaries of the plaintiff's medical histories prepared by the various medico-legal examiners who had provided reports, concerning the plaintiff's case.
This approach is also required as a convenient pre-cursor for resolving matters of conflicting medical opinions within the voluminous medical reports and evidence as to the nature and extent of the plaintiff's injuries and disabilities due to the accident.
Various radiological reports tendered by the plaintiff
The 10 post-accident reports of radiological investigations undertaken of the plaintiff whilst she was at Liverpool Hospital were tendered as part of the plaintiff's evidence bundle: Exhibit "C", pages 144 - 154. These investigations variously comprised x-rays, CT scans, MRI scans and ultrasound scans taken of the plaintiff's cervical, thoracic and lumbar spines, her shoulders, her chest, abdomen and pelvis.
A review of pages 152 -154 of Exhibit "C" show, that whilst the plaintiff was at Liverpool Hospital on 1 November 2006, various imaging studies were performed on the plaintiff as follows.
(a) At 20:17hrs on 1 November 2006, which was a little over an hour after the accident, a mobile x-ray machine was used in the hospital to take supine x-ray scans of the plaintiff's chest, pelvis and/or sacroiliac joints, perhaps whilst the plaintiff was in the casualty department: page 153 of Exhibit "C". The reporting radiologist, Dr Tew, advised "No focal bony abnormality seem".
(b) At 20:51hrs on 1 November 2006, x-rays were taken of the plaintiff's cervical, thoracic and lumbar spines: page 152 of Exhibit "C". This was ambiguously reported as "No definite acute fracture is identified". It was further observed that "Mild osteophytic lipping is noted in the mid and lower dorsal column". Dr Saks, the reporting radiologist advised "Correlation with the clinical site of concern must be made".
(c) At 21:50hrs on 1 November 2006, 3 different types of CT scans were taken of the plaintiff. These were first, non-contrast CT scans taken of the plaintiff's cervical spine, secondly, non-contrast CT scans taken of the plaintiff's abdomen and pelvis, and thirdly, CT scans taken of the plaintiff 's abdomen and pelvis with contrast.
It is of some relevance, to the task of making findings as to the nature of the injuries the plaintiff received in the accident, to note that these investigations were carried out in light of the clinical history of the plaintiff having been involved in a motor vehicle accident, with associated upper midline tenderness, with tingling in both arms, as well as a generalised abdominal tenderness. The formal comment on these scans by the reporting radiologist, Dr Archer, was that there were: "No definite findings of acute cervical spine or intra-abdominal traumatic injury".
Dr Rahman - plaintiff's family doctor
On 5 November 2006, some 4 days after the accident, the plaintiff consulted her general practitioner, Dr Bassel Abdul Rahman, who provided a short historical letter dated 6 December 2007 to the plaintiff's former solicitor.
That letter, which was tendered by the defendant, referred to Dr Rahman's findings on examination as comprising tenderness over the plaintiff's cervical spine with mild restrictions in neck movements without neurological deficits. Dr Rahman also described tenderness over both humeral heads with restriction of shoulder movements. He described prescribing strong analgesic medications, and noted that the plaintiff had required a cortisone injection for the shoulder, which I infer from the context of the 5th paragraph of Dr Rahman's letter, was to her left shoulder. He also noted that the plaintiff also received some physiotherapy treatment. There was no report of the detail of that treatment.
Dr Rahman diagnosed the plaintiff as having a whiplash injury and supraspinatus tendonitis of the left shoulder. He predicted a very good prognosis, with the need for further physiotherapy to the neck and shoulder.
On 9 November 2006, Dr Rahman issued a medical certificate that followed his examination of the plaintiff on 5 November 2006. In that certificate, he stated that he had diagnosed the plaintiff to have sustained a whiplash injury and an injury comprising a muscular lower back strain and a right shoulder strain: Exhibit "1", page 17.
There were no further letters tendered from Dr Rahman and it is not known whether the plaintiff's present solicitors had asked him to issue further updating letters or reports concerning the plaintiff. Neither party called Dr Rahman to give oral evidence on factual matters concerning history or treatment, however, his patient clinical records for the period up until 2 May 2010 were tendered: Exhibit "6", Tab 9, pages 47 - 75.
Bankstown Women's Health Centre
On 9 November 2006, which was just 9 days following the accident, the plaintiff attended at the Bankstown Women's Health Centre. The referral of the plaintiff to that centre was made by an officer of the Department of Housing who was processing the plaintiff's application for housing relocation from Villawood to another suburb, which was considered to be possibly safer for her.
At the time of the plaintiff's attendance at the centre, it was noted that she was "extremely distressed as she explained that her ex-husband had again been released from gaol and was now harassing her". At that time it was also noted that the plaintiff and her children were "extremely frightened and vulnerable as the ex-husband has a long history of extreme violence for which he has been gaoled several times". The report went on to record that the plaintiff had reported that her ex-husband had in the past tried to kill her, and that he had physically attacked the children. As a result, the officer of the Department of Housing recommended the plaintiff be moved from her current housing and to another area as soon as possible: Exhibit "6", Tab 8, pages 45 - 46.
Dr Maniam - treating orthopaedic surgeon
On 1 December 2006, at the referral of Dr Rahman, the plaintiff was assessed by Dr Vijay Maniam, an orthopaedic surgeon. In his report dated 19 October 2007, Dr Maniam noted the x-rays and ultrasonography that accompanied the plaintiff had findings of significance in the form of osteophytes at the level L3/4, and supraspinatus tendonosis. He did not explain the significance of those findings in terms of aetiology.
Dr Maniam diagnosed the plaintiff's problems to be a musculo-ligamentous strain of the cervical, thoracic and lumbar spines and traumatic bilateral impingement in the shoulders. At that time his focus for treatment of the plaintiff was her shoulders, and this included prescribing anti-inflammatory medication.
Neither party called Dr Maniam to give oral evidence on factual matters concerning the history he had taken from the plaintiff or the treatment he had provided, if any.
Dr Maniam's clinical records for the period December 2006 until 17 January 2011 were tendered: Exhibit "6", Tab 11, pages 76 - 93.
Dr Maniam's handwritten clinical records are very neatly written but they are in places difficult to decipher. Nevertheless, it is apparent that on the first consultation with the plaintiff, in December 2006, he recorded her symptoms as relating to the neck, the lumbar spine and the left shoulder. Those were observations he made again in February and April 2007.
On what appears to be 22 February 2007, significantly, Dr Maniam made the handwritten notation "knees ". This suggests at that time Dr Maniam examined both of the plaintiff's knees and found no abnormality or complaints of pain in either of her knees. This note was not the subject of cross-examination or submissions. It is unchallenged evidence which is available for consideration on the timing of onset and causation of the plaintiff's left knee complaints.
(c) On 12 March 2009, Dr Ali expressed the view that the plaintiff was mildly impaired in her ability to cope with self care and personal grooming, and she needed prompting to go out;
(d) On 12 March 2009, Dr Matalani expressed the opinion that the plaintiff's injuries and resultant symptoms have given rise to a requirement for her need for domestic assistance in the vicinity of 6-8 hours per week. In this regard, he cited activities that included cleaning, the more difficult general household duties such as vacuuming, mopping, scrubbing laundry work, hanging clothes, washing windows, cleaning toilets and bathrooms;
(e) On 23 September 2009, Dr Prior commented upon the plaintiff's social functioning, and needing friends to assist her with cooking and cleaning, shopping and the like, due to lack of motivation or energy on her part, including for personal grooming. He expressed the opinion that if the plaintiff's condition remained unchanged, and she did not respond to treatment, she may continue to require the informal support of friends in her domestic functioning, including with self-care, and with the care of her children;
(f) On 12 November 2009, Dr Ali again expressed the view that the plaintiff would need assistance with care, although his opinion was not specific as to the details;
(g) On 12 August 2010 Mrs Cogger carried out an occupational therapy assessment of the plaintiff's domestic assistance needs. She noted an array of reported difficulties in the table located between pages 7 and 10 of her report: Exhibit "C", pages 34 - 37. She estimated the plaintiff's care dependence on others to be of the order of 15 hours per week: Exhibit "C", page 40. It must be recognised that a good deal of that assistance is on account of the plaintiff's non-compensable left knee injury;
(h) On 24 February 2011, Dr Faithfull was of the view that the plaintiff's housework was affected in the areas of vacuuming, sweeping, cleaning the bathroom and the toilet, and she would have difficulty with heavy housework.
The medical and allied evidence against the view that the plaintiff needs domestic assistance is as follows:
(a) On 22 June 2007, Dr Pierides expressed the opinion that the plaintiff could return to all activities without restrictions;
(b) On 11 December 2008, Professor Harris was of the opinion that the plaintiff required significant support with household tasks, such as with cooking and cleaning, and with transport;
(c) On 12 December 2009, Dr Pierides expressed the view that there was nothing to suggest the plaintiff needed to be inactive at home, and she should return to normal activities;
(d) On 26 March 2010, Professor Harris stated that he could not attribute the plaintiff's need for domestic assistance to the accident on 1 November 2006. His earlier opinion dated 24 February 2011 was not significantly different;
(e) On 4 February 2011, Dr Pierides expressed the view that he could see no reason for the plaintiff to need domestic assistance;
(f) On 15 February 2011, Dr Haik expressed the view that the plaintiff did not need any assistance with any daily or self care tasks;
(g) On 26 March 2011, Dr Pierides suggested the plaintiff should return to normal everyday activities;
(h) Dr Marsh and Dr McClure made no relevant comments on the plaintiff's need for domestic assistance.
The plaintiff was assessed on three occasions by Ms MacMaster, the occupational therapist appointed by the defendant for the purpose of evaluating the claim for domestic assistance. The dates of those assessments were 4 March 2009, 15 April 2010 and 23 February 2011. The first two assessments took place at the plaintiff's Revesby address, and the third assessment took place at the plaintiff's Mt Pritchard address. Ms MacMaster's assessment was necessarily limited to matters of physical function as she was not qualified to comment on psychiatric issues.
Ms MacMaster's initial review of the medical reports provided to her led her to state that there were inconsistencies reported in the plaintiff's history Exhibit "3", page 65. Initially, those inconsistencies were not specifically identified by her, and the remainder of the introduction section to her first report made reference to comments made by Dr Pierides and Dr Marsh concerning embellishment in the plaintiff's presentation, and considerable exaggerated pain behaviour: Exhibit "3", page 65. Ms MacMaster appeared to have adopted those comments.
Ms MacMaster went on to say that she had nevertheless relied upon her own observations in forming her views as to the plaintiff's domestic assistance needs: Exhibit "3", page 67. That comment was reiterated in relation to her second and third reports: Exhibit "3", pages 116 and 160.
Ms MacMaster's first report confirmed the presence of abnormal pain behaviours or emotional overlay in the plaintiff on formal testing for such matters: Exhibit "3", page 68.
In her first report, Ms MacMaster recorded the plaintiff's complaints as comprising constant pains in the low back, neck, left shoulder, and left knee, as well as headaches and depression: Exhibit "3", page 73-74. Ms MacMaster prepared a tabulation of commonplace tasks of everyday living in which she identified the plaintiff's perception of her own limitations for those tasks in comparison to her own observation of the plaintiff carrying out those tasks during the consultation. That tabulation identified differences in the plaintiff's reported and observed tolerances for sitting, standing, partial squatting, and self-limited attempts at bending, lifting, carrying and retrieving items from the floor: Exhibit "3", pages 75-76. That tabulation was also developed in Ms MacMaster's second and third reports.
In her first report, Ms MacMaster concluded that there was a difference between the plaintiff's reported ability to undertake self-care tasks as set out in the medical reports she had reviewed, and the plaintiff's claims of need for assistance in the consultation under present review, concerning the activities of daily living: Exhibit "3", page 82. Ms MacMaster identified what she characterised as inconsistencies in the speed of the plaintiff's gait, and facial grimacing (Exhibit "3", pages 86-87).
Ms MacMaster's initial report concluded that "it would appear [the plaintiff] has exaggerated her situation" regarding her plans for work (Exhibit "3", page 99), and she made a generally sceptical commentary on the plaintiff's situation, referring to being unconvinced that the plaintiff stays in her room all day crying and without interest in anything as claimed. She also pointed to significant abnormal pain behaviours, and what she described as embellishment of symptoms and inconsistencies in the reported history. She stated the plaintiff appeared to be seeking secondary gain in the invalid role in circumstances where there was no physical pathology. Ms MacMaster indicated that she doubted the plaintiff maintained her abnormal pain behaviour behind closed doors: Exhibit "3", pages 96 - 99.
My reading of Ms MacMaster's first report does not indicate that Ms MacMaster provided the plaintiff with any opportunity to comment upon those adverse views and assumptions, and it would appear that the sceptical stance that she has adopted has emanated from the reports of Dr Haik, Dr Marsh and Dr Pierides that had been provided to her by way of background materials: Exhibit "3", pages 103-104.
Ms MacMaster's second report, which was as a result of the assessment carried out on 15 April 2010, was in essentially the same terms. She stated that she had observed the plaintiff to have a slightly flat affect with some incongruity of expression: Exhibit "3", page 117. Ms MacMaster re-iterated that the plaintiff was independent in all her personal care needs: Exhibit "3", page 134. Ms MacMaster stated that on the basis of discrepancies and reports of abnormal pain/illness behaviour and self-limited behaviour and her own findings, she "cannot substantiate the need for any domestic assistance": Exhibit "3", page 145. Notwithstanding her reiteration of her earlier remarks concerning embellishment and secondary gain issues, at Exhibit "3", page 146, Ms MacMaster made the following alternative qualifying remarks as a proviso to her opinions:
"If however she is given the benefit of doubt and in view of a reported protracted post traumatic disorder, I have to rely on the expertise of her psychiatrist and/or psychologist to determine the appropriate intervention. It would be preferable if this could be coupled with a proactive program to facilitate a return to exercise and normal daily activity but she must be motivated to participate in such a program."
Ms MacMaster's third report, which was as a result of the assessment she had carried out on 23 February 2011, was also essentially in the same terms as her two previous reports. At page 7 of her report (Exhibit "3", pages 161-162) Ms MacMaster recorded the following observations concerning the plaintiff's general presentation at this interview:
"Mrs Khalil presented as a thirty seven year old woman of average height and above average build.
On my arrival she answered the door and returned to sitting on a lounge with a blanket over her.
She stated she had the flu although she did not exhibit obvious flu symptoms. She however drank water from a bottle beside her on several occasions.
She walked with a left antalgic gait pattern. She continues to take her weight predominantly through her right leg in standing but her posture appeared symmetrical.
Her affect appeared flat although there was some incongruity of affect with occasional smiling.
There were no behaviours present consistent with physical discomfort exhibited such as regular change of posture. She again demonstrated excellent sitting tolerance of in excess of one hour prior to being asked to move by me to undergo some formal testing of movement.
She continues to exhibit abnormal pain behaviour through grimacing, holding onto her back with her right hand, self-limited movement and through her high ratings of the emotive aspects of the Short McGill Pain questionnaire.
She exhibited some inconsistent movement e.g. she said she could not move her neck to the right well but later demonstrated informally her ability to rotate her neck to the right to a greater extent when dressing and also when negotiating stairs.
On formal examination of her left shoulder movement she exhibited restricted movement but her left shoulder movement was observed to be greater when performing a functional task at her kitchen cupboard (see photographs within report). At this stage she suddenly exhibited a restriction in her right shoulder where on formal testing her right shoulder was within normal limits."
On her third assessment Ms MacMaster confirmed the plaintiff's earlier history of chronic low back, neck, left shoulder and knee pains as still currently affecting the plaintiff at that time, with continuation of the earlier identified state of depression. Ms MacMaster obtained a history from the plaintiff to the effect that she obtained the assistance of friends with domestic tasks and continued avoidance of such tasks by the plaintiff: Exhibit "3", pages 189-193.
On the third assessment Ms MacMaster again drew attention to an apparent inconsistent speed of the plaintiff's "slightly antalgic left sided gait pattern". This was a reiteration of comments made in her earlier reports. Ms MacMaster also drew attention to the plaintiff's reiterated claim for some 28 hours of domestic assistance per week: Exhibit "3", pages 197-198.
After reviewing what she described as continuing inconsistencies in the plaintiff's history, apparently arising from the medical reports briefed to her, Ms MacMaster reiterated her previously expressed view that the plaintiff did not have any requirement for personal care assistance, and had only needed a limited amount of post-accident domestic assistance in the past (for which no claim is made) in respect of heavier housework tasks to an extent that did not meet the assessment threshold under s 128(3) of the MAC Act 1999: Exhibit "3", page 203.
In assessing Ms MacMaster's reports I considered she had taken an adverse view of the plaintiff, stating that she felt the plaintiff was "highly likely" to be choosing to remain an invalid for monetary gain: Exhibit "3", page 193. I considered Ms MacMaster's reports should be given reduced weight because it was plain she took a negative view of the plaintiff's presentation and her analysis proceeded on that basis without any counter-balancing discussion to exclude such factors in favour of the view she has stated.
In reviewing the conflicting evidence of the plaintiff's need for past domestic assistance I do not accept the evidence tendered by the defendant to the effect that the plaintiff did not require any domestic assistance. In my view that evidence takes a view of the issue that is too simplistic because the psychiatric evidence that I have accepted indicates that the plaintiff has been significantly affected in her ability to carry out her day to day domestic activities as a result of her PTSD, depression and her reduced motivation, which is a function of her depression.
I have reached this conclusion on an acceptance of the evidence of the plaintiff as supported and confirmed by the unchallenged evidence of Mrs Ishak, Mrs Yasier and Mr Mohamed Taoube.
In addition, I have placed significant weight upon the opinion of Dr Ali, the plaintiff's treating psychiatrist, who was of the view, in March 2009, that on psychiatric considerations, the plaintiff was mildly impaired in her ability to cope with self care, personal grooming and needed prompting for tasks and activity. He confirmed that view in November 2009. I consider that Dr Ali was in an advantageous position to make that observation as the treating psychiatrist who had been seeing the plaintiff regularly in clinical consultations for treatment of her PTSD and her depression over a significant period of time. I also accept that such problems have continued to affect the plaintiff until the present time.
For the reasons that follow, I prefer the views of Dr Ali to the views of Dr Pierides, Professor Harris and Dr Haik on this issue.
Dr Pierides' views were not the subject of detailed reasons and they did not take into account the plaintiff's psychological illness, and as such, in my view, did not represent a complete or balanced assessment of the issue.
Whilst Professor Harris conceded that the plaintiff required significant support for household tasks, he was of the view that this was not as a result of accident related disabilities. That view took no account of the plaintiff's psychological disabilities, which I have found have continued to adversely affect her since the accident, as an incident of her PTSD and depression.
I do not consider that the views of Dr Haik can be accepted on the issue of the plaintiff's need for domestic assistance because clearly, those views have been influenced by the adverse view Dr Haik has taken of the plaintiff's credit, a view that I have not accepted for the reasons I have given.
I have considered Ms MacMaster's opinions on the issue of domestic assistance. In my view it is plain that Ms MacMaster formed an adverse view of the plaintiff and attributed base motives to her concerning the pursuit of the invalid role to seek monetary gain. I have given little weight to Ms MacMaster's opinions in that regard because her views to that effect seemed to me to be adversarial rather than providing a balanced discussion on that issue, which in any event, is a credit issue for the court to determine.
Having concluded that the plaintiff is entitled to damages for past domestic assistance, it remains to assess those damages, including assessment of the plaintiff's submission that such damages should be quantified at 28 hours per week from the time of the accident until the date of the trial.
There are two key difficulties that face the plaintiff's claim in this regard. The first is the finding of the plaintiff's left knee complaints, which are significantly influential on her capacity for physical activity, and therefore, I infer, on her ability to perform housework. The second such difficulty is the imprecise nature and state of the evidence as to the actual domestic assistance that has been provided to the plaintiff to date in terms of the time actually expended on the provision of actual assistance.
The combined effect of the evidence of the plaintiff, Mrs Ishak, Mrs Yasier and Mr Mohamed Taoube is that they have been attending the plaintiff's premises for an average of in excess of 28 hours per week. That said, the evidence does not go so far as to say that during those times, actual assistance was actually being provided to the plaintiff during all of those hours without a social component being included in that estimation. Even allowing for the fact that some of the assistance provided to the plaintiff was in the form of encouragement, for example to prompt the plaintiff on matters of personal hygiene, grooming and an increased level of activity, I gained the impression from the imprecise content of the evidence, that a significant proportion of the presence of these persons at the plaintiff's home also involved some socialisation.
The defendant's liability for domestic assistance should be based upon the premise that any domestic assistance to be quantified in an award of damages would be performed efficiently, without a significant social component.
When the above considerations are taken into account, I am unable to accept that the plaintiff has actually needed, and has actually received, the equivalent of 28 hours per week of domestic assistance from the accident until the present time. Instead, I gained the impression that the presence of Mrs Ishak, Mrs Yasier, Mrs Barakat, Mrs Habib and Mr Mohamed Taoube, when providing assistance, had a social component, for which the plaintiff's submission must be discounted. Furthermore, an additional discount must be made on account of the plaintiff's need for domestic assistance on account of her left knee complaints that do not form part of this assessment.
As the evidence on these matters is in an imprecise state, the options appear to be either reject the plaintiff's claim for domestic assistance in its entirety as the underlying detail of it has not been proven, or to make a conservative estimate of what appears to be a reasonable number of hours per week for such services in recognition of the fact that the plaintiff has needed and has received such services, albeit that a precise calculation of the hours provided is not possible.
Given the medical evidence that the plaintiff has the condition PTSD and depression, and a chronic pain syndrome, and is not fully able to carry out her domestic tasks on account of those conditions, and because of problems associated with her neck and her back and her left shoulder, I consider that to award the plaintiff no damages for past domestic assistance would result in an injustice to her. I am fortified in that view by the evidence I have summarised and accepted at paragraph [883] of my reasons.
This then leads me to consider the second option, namely that of making an estimate, albeit an arbitrary one for the purposes of assessment. In my view this is the preferred approach because when the evidence on this issue is read as a whole, it leaves me with the firm impression that even after discounting for all of the above considerations, the threshold required by s 128(3) of the MAC Act has nevertheless been met, even though it is not possible to identify the precise calculation that reveals the extent of the hours that would have been required, or the extent to which the threshold has been exceeded.
In these circumstances, where the evidence is in an imprecise state, having determined in fairness to the plaintiff that it would be unjust to deny the plaintiff any such damages, I also consider that in fairness to the defendant, such damages should be confined to the minimum threshold of 6 hours per week identified by s 128(3) of the MAC Act. I take that approach recognising that compensation should be reasonable, and precision is not always achievable because of the state of the evidence.
On the foregoing approach I have calculated the value of 6 hours per week at the rate provided by s 128(3) of the MAC Act in the Appendix to these reasons. The amount revealed by that calculation is $33,352.14.
I therefore assess the plaintiff's damages for past domestic assistance in the amount of $33,352.14.
Future domestic assistance
The plaintiff's claim for future domestic assistance was put as a continuum of the claim for past domestic assistance, namely for 28 hours per week. The plaintiff further submitted that there was no reason to suggest that the level of care provided to the plaintiff in the past will not be required into the future.
I have already analysed the lay and expert evidence in support and against an award in respect of past domestic assistance. In my view, that analysis holds good for the claim for the assessment of future domestic assistance, with the exception of a number of discounting factors to which I shall shortly refer.
The rate claimed for future domestic assistance, namely $23 per hour, was less than the rate currently prescribed by s 128(3) of the MAC Act, namely $25.64, and by definition, was therefore reasonable, especially when compared to the customary rate of around $35 per hour as is frequently seen in such cases.
Although this component of the claim was particularised as being claimed at commercial rates for such assistance, no arguments or calculations identifying any commercial rates were included in the submissions on behalf of the plaintiff for this head of damage.
Although there was no submitted calculation for this head of damage, the implication of the submissions made by the plaintiff was that the future domestic assistance claim should be projected over the plaintiff's remaining life span of 50 years.
The projection of the value of 28 hours of care per week at $23 per hour, namely $644 per week, on the 5 per cent tables over 50 years (x 976.2), yields the undiscounted sum of $628,672.
In contrast to the plaintiff's submission, on behalf of the defendant it was submitted that there should be no allowance made for future domestic assistance because the threshold provided by s 128(3) of the MAC Act is unlikely to be met. That submission was based upon the opinions of Ms MacMaster.
In my view, the plaintiff's submitted calculation seeking a projection over her remaining life span of 50 years seems to me to be excessive, and requires discounting on several bases.
The first basis of discount is that the submitted projection assumes that the chronicity of her physical and psychological problems will never remit but will remain disabling for the remainder of her life. In my view, such an assumption is not supported by the expert evidence. In this context, the term "chronic", without explanatory medical evidence, does not necessarily equate to a lifetime of disabling symptoms. For such a conclusion to arise, specific medical opinion is required, which is absent here. There is no firm evidence upon which such a long projection could be justified.
On the contrary, Ms Cogger's considered recommendation for future domestic assistance is for the provision of 15 hours per week of such assistance for a period of 6 years.
That recommendation was put forward on the basis of there being a further 6 years until the plaintiff's youngest child reached the age of 18 years, by which time it was anticipated that the plaintiff would have undergone a programme of rehabilitation, the combination of these events indicating a decrease in need for such assistance.
The second discounting factor is the non-compensability of the plaintiff's left knee complaints. In my view, there should be a substantial discount of the hours for projection on that account. As with the claim for past domestic assistance, the apportionment on account of the left knee problems is not readily achieved on a precise basis, however, a broad approach is indicated, even if this appears arbitrary. That is a function of the evidence.
I therefore propose to adjust the period of need suggested by Ms Cogger to a longer period of 7 years to reflect the fact that her opinion was given in 2010 and in the interim, the plaintiff has had another child, which may to a degree, prolong her need for assistance. Given that Dr Akkerman has suggested the plaintiff would need such assistance for "at least two years", I consider that an allowance of 7 years is fair and reasonable: Exhibit "C", page 16.
In apportioning the suggested projection of 15 hours per week I propose to reduce this to a projection of 6 hours per week in conformity with my findings in respect of past care, thus removing the large component of the need for domestic assistance I consider to be referrable to the plaintiff's left knee complaints.
Also included in that discount is an allowance for the fact that the figures being considered are necessarily averages, which could vary within a range over those years, including on account of a possible remission or reduction in the level of symptoms over time, or even a predominant worsening of left knee symptoms over time, thus eclipsing the other matters for which damages are being awarded in this case.
The resultant actuarial projection of $23 per hour for 6 hours per week on the 5 per cent discount tables for 7 years (x 309.4) yields an amount of $42,697. I consider that this sum should be further reduced and rounded down to $37,500 on account of the usual possible adverse vicissitudes.
I therefore assess the plaintiff's damages for future domestic assistance in the amount of $37,500.
Past out-of-pocket expenses
The parties agreed that the plaintiff had incurred out-of-pocket expenses in the amount of $6852.05: T517.40; T521.
The defendant conceded that of the amount claimed by the plaintiff as out-of-pocket expenses, the CTP insurer had paid an amount of $4220.85, which it was submitted, should be credited to the defendant in any judgment in favour of the plaintiff in these proceedings: s 83 of the MAC Act.
The defendant submitted that as a consequence, the balance of the claim by the plaintiff was in the residual amount of $2631.20.
The defendant consequently submitted that in the event that it was found that the plaintiff was not entitled to any monetary compensation in respect of the other claimed heads of damage, by reason of the operation of s 38 of the Health and Other Services (Compensation) Act 1995 (Cwth), there should be a verdict and judgment entered for the defendant in these proceedings.
I have concluded that the defendant's argument which I have summarised in the preceding paragraph is a spurious one and should be rejected for the reasons that follow.
Section 38 of that act provides:
"Waiver-small amounts of compensation
38. (1) Despite Divisions 1 and 2, those Divisions do not apply in relation to a claim for compensation in respect of an injury if:
(a) a judgment or settlement has been made in respect of the claim before a notice under section 11 or 12 would, but for this section, have been required to be given to the Commission; and
(b) the amount of compensation fixed by the judgment or settlement is a small amount; and
(c) the amount of compensation so fixed is the entire amount of compensation in respect of the injury.
(2) An amount of compensation is a small amount if it is less than the amount prescribed for the purposes of this subsection by the regulations."
In my view, it is plain from the terms of s 38, and from the manner of operation of Divisions 1 and 2 of that Act, that judgments of amounts of less than $5000 in cases such as this, the Health Insurance Commission ["HIC"] will not require reimbursement of such a "small amount" of out-of-pocket expenses. It is also plain that the decision not to seek reimbursement of such an amount is one that must be made by the HIC, and not by a court assessing and awarding damages.
In any event, for the reasons I have stated, I do not accept the submission on behalf of the defendant that only $2631.20 should be assessed as being the amount due to the plaintiff on account of her claim for out-of-pocket expenses. That said, in identifying the ultimate judgment amount due to the plaintiff, my orders will reflect the operation of s 83 of the MAC Act concerning the credit due to the defendant in the amount of $4220.85.
I therefore assess the plaintiff's damages for past out-of-pocket expenses in the amount of $6852.05.
Summary of damages assessment
My assessment of the plaintiff's damages is summarised as follows:
(a) Future loss of earning capacity
$25,000.00
(b) Past domestic assistance
$33,352.14
(c) Future domestic assistance
$37,500.00
(d) Past out-of-pocket expenses
$6,852.05
Total
$102,704.19
The medical evidence supported a claim for future treatment expenses, for example, the report of Dr Davis recommended physical therapies at an estimated cost of $1200 per annum together with additional recurring costs of $1240 per annum for consultations and medications (Exhibit "C", pages 110 and 111). Dr Matalani recommended referral to a multi-disciplinary pain management team at a one-off cost of between $7000 and $8000 and other recurring expenses for consultations with specialists and medication (Exhibit "C" pages 101 - 102). Dr Clark, Dr Prior and Dr Akkerman made recommendations for future psychiatric treatment: Exhibit "C", pages 14, 101 and 118. No submissions were advanced on behalf of the plaintiff in respect of those matters and I have assumed those matters were not pressed in view of the fact that no submissions or supporting schedules were put forward by the plaintiff seeking to quantify a head of damage for those amounts.
I do not propose to include any damages for those amounts as this evidence was not the subject of submissions by either party. In that regard, the plaintiff's submissions were restricted to future loss of earning capacity and past and future care: Plaintiff's written submissions, paragraph 73.
Similarly, no submissions were made seeking superannuation losses on any amount assessed for future loss of earning capacity. Presumably, this was because any such allowance would be subsumed in the global lump sum assessment for loss of earning capacity.
D. DISPOSITION, COSTS & ORDERS
Disposition
The plaintiff has established her entitlement to an assessment of damages in the amount of $102,704.19. After giving effect to the terms of s 83 of the MAC Act, by which the defendant is entitled to a credit of $4220.20, this identifies the amount of the plaintiff's entitlement to a judgment in her favour in the proceedings in the amount of $98,483.99.
Costs
As the plaintiff has succeeded on every substantive issue that was contested by the defendant in these proceedings, she is entitled to an order that the defendant pay her costs of the proceedings on the ordinary basis, unless a party can show an entitlement to a different order, for which there should be liberty to apply.
Orders
I make the following orders:
(a) The plaintiff's motion filed on the 12th day of the hearing, 8 August 2011, seeking a MAS re-assessment, is dismissed;
(b) The plaintiff is to pay the defendant's costs of the dismissed motion;
(c) Verdict for the plaintiff in the assessed amount of $102,704.19;
(d) After applying a credit due to the defendant in the amount of $4220.20 pursuant to s 83 of the Motor Accidents Compensation Act 1999, judgment for the plaintiff for the remaining balance, in the sum of $98,483.99;
(e) The defendant is to pay the plaintiff's costs of the proceedings on the ordinary basis unless otherwise ordered;
(f) The exhibits may be returned;
(g) Liberty to apply on 7 days notice if further orders are required.
APPENDIX
CALCULATION OF VALUE OF PAST GRATUITOUS DOMESTIC ASSISTANCE / CARE ACCORDING TO MOTOR ACCIDENTS ACT 1999, s 128
[6 hours per week]
PERIOD
WEEKS
WEEKLY
s.128
RATE
HOURLY
s.128
RATE
AMOUNT FOR 6 HOURS PER WEEK
1.
02.11.2006 to 17.11.2006
02.14
$884.00
$22.10
$283.76
2.
18.11.2006 to 17.02.2007
13.00
$892.30
$22.30
$1739.40
3.
18.02.2007 to 18.05.2007
12.71
$916.10
$22.90
$1746.35
4.
19.05.2007 to 18.08.2007
13.00
$918.90
$22.97
$1791.66
5.
19.08.2007 to 16.11.2007
12.85
$929.70
$23.24
$1791.04
6.
17.11.2007 to 15.02.2008
12.85
$929.30
$23.23
$1791.03
7.
16.02.2008 to 16.05.2008
12.71
$937.80
$23.44
$1787.53
8.
17.05.2008 to 15.08.2008
12.85
$921.60
$23.04
$1776.38
9.
16.08.2008 to 21.11.2008
13.85
$933.50
$23.34
$1939.55
10.
22.11.2008 to 20.02.2009
12.85
$938.50
$23.46
$1808.77
11.
21.02.2009 to 15.05.2009
12.00
$946.40
$23.66
$1703.52
12.
16.05.2009 to 21.08.2009
13.85
$939.00
$23.48
$1951.19
13.
22.08.2009 to 20.11.2009
12.85
$959.90
$23.99
$1849.63
14.
21.11.2009 to 19.02.2010
12.85
$969.40
$24.23
$1868.13
15.
20.02.2010 to 21.05.2010
12.85
$989.90
$24.74
$1907.45
16.
22.05.2010 to 20.08.2010
12.85
$986.90
$24.67
$1902.06
17.
21.08.2010 to 19.11.2010
12.85
$985.50
$24.63
$1898.97
18.
20.11.2010 to 18.02.2011
12.85
$996.40
$24.91
$1920.56
19.
19.02.2011 to 16.05.2011
12.28
$1025.90
$25.64
$1889.16
TOTAL
$33,352.14
**********
Decision last updated: 08 May 2012
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