Kiiver and King

[2013] ACTSC 142

SARAH KIIVER v MELIAME LAGONI KING

[2013] ACTSC 142 (1 August 2013)

DAMAGES – personal injury – rear-end motor vehicle collision at low speed – whiplash associated disorder – history of depression prior to accident

Civil Law (Wrongs) Act s 45
Safety, Rehabilitation andCompensation Act 1988 (Cth) s 50

Blundell v Leighton [2013] ACTCA 1
Fox v Wood (1981) 148 CLR 438
Koeck v Persic (1996) Aust Torts Reports 81-386
Mahoney v J Kruschich (Demolitions) Pty. Ltd. (1985) 156 CLR 522
Shorey v PT Limited (2003) 77 ALJR 1104; 197 ALR 410
Waters v Dalli [2009] ACTSC 158

No. SC 200 of 2010

Judge:             Master Mossop           
Supreme Court of the ACT

Date:              1 August 2013

IN THE SUPREME COURT OF THE     )
  )          No. SC 200 of 2010
AUSTRALIAN CAPITAL TERRITORY )          

BETWEEN:  SARAH KIIVER

Plaintiff         

AND:  MELIAME LAGONI KING

Defendant

ORDER

Judge:  Master Mossop
Date:  1 August 2013
Place:  Canberra

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $422,934.96.

1. Unless any party makes an application to be heard in relation to the question of costs before 4pm on 4 September 2013 the defendant is to pay the plaintiff’s costs of the proceedings as agreed or assessed.

1. There be the usual order as to interest.

1. This case involves an assessment of damages arising out of a motor vehicle accident on 28 March 2007.  The accident was a minor rear-end collision which occurred when the plaintiff was a passenger in a vehicle which was struck from behind whilst waiting to turn right from Anzac Parade into Parkes Way.  Liability was admitted.  There was a serious contest of the extent of damages.

1. The case was commenced by the plaintiff and then taken over, with the consent of the plaintiff, by Comcare and run in the plaintiff’s name pursuant to s 50 of the Safety, Rehabilitation andCompensation Act 1988 (Cth).

Facts

1. The plaintiff was born in 1971 and at the time of trial was 42 years old.  She arrived with her family in Australia in 1973 and attended Holt primary school.  She attended Merici College in Braddon and completed year 10 in 1986.  She then completed two years of a spray painting apprenticeship before working in an administrative capacity at a Canberra law firm for two years.  In January 1991 she went overseas for about two and half years and while overseas worked in the hospitality industry.  She returned to Australia in July 1993 and returned to work at the same law firm in Canberra, this time as the secretary to one of the partners.  She continued working there until 1998. 

1. During that time she purchased a house in Higgins and renovated the house.  That involved undertaking landscaping work and renovating the kitchen, laundry and toilets.  Some of this work was undertaken with the assistance of a friend or her father but it was mainly just her.  Examples of the work that she undertook included ripping up the carpets and plastering walls.  She said that the work was heavy but she loved it.

1. In 1997 she suffered from a migraine and was treated with an injection at Calvary Hospital.  Her mental health deteriorated in 1998.  Prior to that date she had not been prescribed medication for her mental health although there was a very significant history of mental health problems in her family.  On 28 February 1998 she presented at the Calvary Hospital being depressed and suicidal.  She was admitted to the hospital and stayed there over the weekend before being discharged.  She attributed one of the causes of her mental state as being the break-up of a relationship but there was no other identifiable trigger.  She was discharged with a prescription for Zoloft. 

1. In March 1999 she presented at Calvary Hospital after having taken an overdose of Mellaril, an anti-psychotic and anti-anxiety medication.  She could not really recall any trigger for this event although she said that it may have been connected with the same relationship as the admission in 1998.

1. In 1999 she spent five months working at the Department of Health before transferring to the Australian Taxation Office.  There she obtained a nine-month contract at the APS 4 level which involved working in an administrative support capacity.

1. In 1999 she was involved in a motor vehicle accident in Civic.  She described the accident as being “T-boned” by another driver.  The impact occurred on the driver’s side of the car.  She had three or four months off work.  She took analgesics and was subsequently able to return to full-time work.

1. In 2000 she obtained a six-month contract at the APS 6 level.  At this stage she was still taking psychiatric medication.  The plaintiff said that she took this medication all the time except for a couple of months.  The records of her GP disclose that she took no antidepressant medication for at least an eight month period from April 2001.  In terms of the drugs that she was on she said that she, over time, changed from Zoloft to Prozac and then to Efexor.

1. In 2001 she returned to the same law firm which she had been previously employed and worked there for a two-month period.  In May 2001 she commenced with the Department of Defence at the APS 4 level providing what she described as “project support”.  This involved organising training and coordinating that training across Australia.  At this stage she described her neck and back as being in good condition.

1. In November 2001 she was involved in a motor vehicle accident in Nowra.  She was there for work and was a passenger in a car being driven by another departmental employee.  They were returning to a motel in Nowra before returning to Canberra.  A P-plater driving a 1970s Volvo rear-ended them.  She did not suffer any injuries.  Whilst she reported the incident to her employer she did not need to make any workers compensation related claim.

1. She was also involved in a motor vehicle accident in Belconnen in early December 2001.  She was driving her Alfetta and her foot got caught between the accelerator and the brake.  She panicked and rolled into the back of a vehicle in front of her at some traffic lights.  The Alfetta was damaged but she was not injured.

1. On 17 December 2001 she obtained a new job within the Department of Defence as a trainer on a financial system known as SAP.  This was a full-time job.  She described herself as being in good health physically and psychologically at this stage.  On 23 April 2002 she successfully completed the probationary period for this job.

1. At about this time she purchased a house in Mont Street in Yass.  This was another house which she renovated.  The renovations involved putting a new slab at the back area of the house, and while she obtained some assistance from her then partner and his dad, she did significant physical work on this project including all the tiling in the back toilet.

1. In July 2003 she commenced work on a new job at the Defence Materiel Organisation.  She was involved in project management relating to the development of a particular piece of defence equipment.  She was involved in coordinating the project.  She worked full-time.  That involved working 37.5 hours a week but longer when she was required to travel to Adelaide to see the defence contractor involved in the project.

1. It was at about this time that she met David Villanti.  Whilst she was still in a relationship with someone else at that time, they maintained e-mail communication and their relationship became an intimate one in 2004.  In 2004 she moved in with him and the couple married in December 2005.  The house in which they lived was one which he had purchased in 2002.  The couple engaged in renovation of that property including rendering brickwork, electrical work, plumbing, decorating inside the house and landscaping the outside of the house.  Some of some of the work that the plaintiff undertook, particularly the rendering, was heavy work.  She described her body strength at that stage as being “very strong”.  Mr Villanti described her mood as being generally fine and said that he had observed her pushing a full-sized wheelbarrow, picking up rocks, digging, painting plastering inside the house, rendering cement walls.  The plastering and rendering were skills which she taught him at that time.  Mr Villanti described the plaintiff’s concentration during this period as good.  She was focused.  He was suffering the effects of post traumatic stress disorder including depression and she provided support to him.

1. Sometime in 2004 or 2005 Mr Villanti purchased some exercise equipment including a running machine and an item which he described as a “Uni Gym”.  The latter piece of equipment was an exercise machine which permitted the user to lift weights from a bench press position, pull down weights from above the user’s head and lift weights with the quadriceps muscles of the leg.  At this time Mr Villanti was the principal user of the equipment although on occasion both would “muck around together” on it.  The plaintiff had significant upper body strength and was capable of lifting 80 kg when doing a pulldown exercise.  This was about the same as Mr Villanti could achieve.

1. In November 2004 the plaintiff was promoted to the APS 6 level in the Defence Materiel Organisation.  She was there working for a division head.

1. Shortly before her marriage in December 2005 she was promoted to the level of Executive Level 1 in the Defence Materiel Organisation.

1. In early 2006 she was referred by her general practitioner to a Dr Saboisky, a psychiatrist, to investigate whether or not she suffered from bipolar disorder.  She had some time off work at that stage although the evidence does not disclose how much.  She saw Dr Saboisky twice and they discussed possible treatment for bipolar disorder.  She did not subsequently return to see Dr Saboisky.

1. She described her health as being physically good in 2007.  She described her mental state as being good once she had been stabilised on Efexor.  She did suffer from flare-ups of her depression for a week or two but this was managed by a temporary increase in the dose of Efexor, a drug which she had been initially prescribed by Dr Ragg.  In early 2007 the dose that she was taking was 75mg per day although on the day of the accident in March she had taken 150mg.

1. As at March 2007 her job title was “Deputy Director Quality Management”.  She was at the EL1 level and her responsibilities were quality management in the Helicopter Systems Division of the Organisation.

1. On 28 March 2007 she was involved in another motor vehicle accident.  This is the accident to which this case relates.  Her husband, David, picked her up from work.  She was a passenger in the vehicle.  Both had their seat belts on.  They had driven down Anzac Parade towards Lake Burley Griffin and were waiting to turn right at the roundabout at the intersection with Parkes Way.  She was turned slightly to the left in her seat, watching a blue car which had nearly passed out of the roundabout, when her vehicle was rear-ended.  She heard a thump.  Mr Villanti who was driving and braced by having his hands on the steering wheel was thrown forward and back.  At the time neither the plaintiff nor Mr Villanti considered that the accident was particularly significant.  Mr Villanti drove the car round the corner to the left and parked on the grass to exchange details with the driver of the vehicle behind.  Mr Villanti gave evidence that there was not enough damage to his vehicle to get it repaired.  He could not recall any specific damage to the vehicle at all.  He saw an indentation in the plastic of the defendant’s vehicle at about the point where the tow ball would have been likely to strike it.

1. Later that day the plaintiff noticed that she was becoming “nauseous and headachy”.  Mr Villanti said that her complaint was of a sore upper body, headache and blurred vision but I prefer the plaintiff’s evidence that her complaint at that time was limited to nausea and headache.

1. The following morning she was stiff and sore in her neck.  Her low back was aching and she had a headache.  She went to see Dr Ragg who suggested that she apply heat packs, take painkillers and get massaged.  Mr Villanti reported the accident to the Tuggeranong police station. 

1. Dr Ragg’s notes provide a useful contemporaneous record of her progress from that time onwards.  In relation to the consultation on 29 March 2007, the day after the accident the notes record:

In MVA - hit from behind while stationary yesterday on way home from work O/E: tender swelling above lower cervical spine. 

No bony tenderness.  Neuro [tick] Px analgesia/heat/C 5/7.

1. She was seen by Dr Ragg on 4 April 2007 who recorded the plaintiff’s condition as  “still stiff + sore in neck and [unreadable]”.  On 10 April 2007 she saw him again and was referred to Sportscare Physiotherapy.  At the next consultation on 16 April 2007 she was noted as “no better” and seeing “Bodyworks” in two days.  On 26 April 2007 Dr Ragg recorded “only slow improvement”.  On 11 May 2013 she was recorded as making a “gradual recovery” but “Neck still stiff”.  The Doctor recommended trying a return to work three days per week four hours per day.  His notes refer to an anticipated review appointment on 31 May 2007. 

1. On 15 May 2007 the plaintiff attempted to return to work but was only able to stay there for a short time before requesting Mr Villanti to collect her from work. 

1. On 16 and 21 May she again attempted to return to work but was only able to stay there for two hours. 

1. On 21 May 2007 she saw Dr Ragg, presumably after she had gone to work.  Dr Ragg recorded her as “Getting neuropathic pain in [right] side of face and neck and into [right] infrascapular region.  Pulling hair up into ponytail [leads to] severe occipital headache for [four hours]”.

1. On 14 June 2007 Dr Ragg saw the plaintiff again who attended with Melina Tsembis, an employee of the Department’s rehabilitation provider. Dr Ragg recorded the plaintiff as improving and attempting to return to work for three days per week for four hours per day from 18 June 2007.  The plaintiff, once again, attempted to do so but only attended on the Monday of the week, not attending on Wednesday and seeing a doctor on the Friday, 22 June 2007. The doctor that she saw on that day was a locum for Dr Ragg, Dr Berenson, who certified her as unfit for work and, when he reviewed her in early July, recorded that she needed an ergonomic assessment at work and at home.  She was subsequently recorded as still having neuropathic pain and needing assistance to clean the house.

1. She also saw Derek Zorzit at Capital Fitness Consultants for remedial massage and strengthening exercises.  She saw him about once a week for about a month.  Mr Zorzit reported to Dr Ragg in April 2007, recommending strengthening as well as remedial massage.  

1. In addition to her 75mg of Efexor the plaintiff was also taking Panadol or Panadeine every day.  She found that after she saw Mr Zorzit for a massage that she was tender and sore and tended to get a “thumping headache” which led to a migraine.

1. In June 2007 her claim under the Safety, Rehabilitation and Compensation Act 1988 (Cth) was accepted in relation to “neck sprain” and “lumbar sprain”. In August 2007 she was prescribed Tegretol, an anticonvulsant, at the minimum dose but obtained no benefit from this.

1. In September or October 2007 she again attempted a graduated return to work.  That did not go well.  Pain and headaches were her main problem.  Her neck and back pain got worse when she was sitting.

1. Mr Villanti noticed a significant difference in the plaintiff after the accident.  By early 2008 he noticed that her physical strength had gone and that she had a reduced capacity to concentrate. 

1. In February 2008 the plaintiff saw Dr Judith May of “Sportsmed ACT”.  She was at this stage complaining of cervical spine pain creating headaches and pain which referrred to the right shoulder, lateral arm and little and ring fingers, as well as lumbar spine pain referring to her buttocks, posterior thighs, calves and plantar aspects of both feet.  By that time she has attempted three returns to work and was working two days a week for 2 to 3 hours.  Dr May described her as having “chronic pain to her cervical and lumbar spine”.

1. In February 2008 she was referred to Dr Keith Chan who reported to Dr Ragg and Comcare in March 2008.  When he saw her she was taking a cocktail of medications which she had been prescribed in order to control her pain: Tegretol (300mg at night), Panadeine Forte (four to eight tablets daily), Burofen (two tablets daily), Endone (one to two tablets weekly, sometimes up to eight), Mersyndol (two tablets taken instead of Panedeine).  She was stable on 150mg per day of Efexor.  He reported that “the referral pain in the head from the neck certainly suggests involvement of the upper cervical facet joints which are commonly involved in whiplash-type injuries.”  He recommended diagnostic fluoroscopic guided facet joint blocks or medial nerve branch blocks.  He suggested that she might benefit from the trial of a long acting opiate medication such as transdermal Norspan patches.  The plaintiff saw Dr Chan over about eight months. 

1. In early 2008 Dr Chan gave her injections into her neck on four occasions.  Three injections were given on the right side of the neck and one on the left.  She also got about six injections into a lower back.  She understood that she was being injected with a nerve blocking drug.

1. On 6 April 2008 she had had an injection on the left hand side of her neck.  That was done under x-ray.  She suffered what she described as incredible pain being shooting pain on the left hand side of her shoulder, face and neck and a migraine.  Mr Villanti took her to the Calvary Hospital.  She was given  codeine phosphate, Panedeine Forte and morphine, and discharged the same day. 

1. During this period she was not working and was receiving compensation from Comcare.  For the first 45 weeks she received 100% of her wages plus any medical expenses.  After that she received 75% of her wages plus any medical expenses.

1. In May 2008 she commenced on Norspan patches, starting at a 5 or 10mg patch and increasing up to 20mg per week.  Dr Chan reported in mid-May 2008 that she was on 20mg per week.  Ultimately she progressed up to 40mg per week.  When she was using these patches she could not recall whether or not she had stopped Tegretol but was taking Endone, MS Contin, Mersyndol, Panadeine Forte, Panadol and  Restavit.  She was taking Restavit in order to assist her with sleeping as she had difficulty getting into a comfortable position.  When she lay on her back her neck would be sore but when she lay on her side her back would hurt.

1. Unsurprisingly, having regard to the cocktail of medication that she was taking, including several varieties of narcotic analgesics, she described that by August 2008 she was starting to get “very fuzzy” mentally.  She was not working.  She said she would not have been productive.  However she wanted to work and wanted to get back to her life.

1. In August 2008 Dr Ragg reported to Comcare that “the prognosis of full recovery from this injury is guarded.  Severe neuropathic pain is very difficult to treat and Ms Kiiver is showing minimal improvement so far despite her full co-operation with treatment.”

1. In August 2008 Dr Chan increased her Norspan dosage to 25mg weekly.  The Norspan had kept pain in her neck and back under control when she was inactive but the pain still increased as she increased her activities. 

1. On 12 September 2008 she suffered a fall in her garage.  Mr Villanti took her to the hospital.  The notes of Dr Ragg and a letter of Dr Chan indicate that this is likely to have been caused by Gabapentin, a further drug which the plaintiff was prescribed by Dr Chan in August. 

1. In November 2008 Dr Chan reported to Dr Ragg that the plaintiff had been prescribed Norspan at a dosage of two 20mg patches per week.  He reported that she tried to stay active by doing one main activity a day such as walking the dog, gardening or doing some housework.  She was, at that stage, still reporting pain in her neck that radiated in a semi-circular pattern into her forehead, a migraine headache and lower back pain as well as numbness. 

1. In December 2008, under Dr Chan’s supervision, she was continuing on two 20mg patches of Norspan each week. 

1. In January 2009 she saw Dr Geoffrey Speldewinde who diagnosed her as having a chronic widespread pain condition.  He said “this is most likely associated with but not necessarily caused by her major depression.” 

1. In February 2009 she saw Dr Virginia Pascall, an occupational physician, to whom she was referred by her Department of Defence case manager.  At that stage she is recorded as thinking about returning to work and contemplating that on bad days she might be able to work from home.  She reported that she had bad days twice a week and needed up to eight  Panadeine Forte.  She reported neck pain as having definitely improved with the use of Norspan although it still aggravated easily.  Activities such as vacuuming or taking linen off the bed worsened her headache.  She continued to be on 40mg of Norspan per week.  That was in addition to the dosage of Panadeine Forte on bad days.  I will return to Dr Pascall’s report below. 

1. The evidence about what occurred between February 2009 and April 2010 was not particularly detailed. 

1. In March and April 2009 the plaintiff made another attempt to return to work although by mid-May she was certified once again as unfit for work.  There was then another attempt to return to work in August 2009.  Dr Ragg identifies that between April and August 2009 she had increased neck pain and occipital headaches and in mid-June 2009 exacerbated her low back pain when she picked up a bucket.  By October 2009 she was suffering from profound depression and was then unfit for work until January 2010.  At the end of January 2010 her condition was slowly improving and was certified as able to return to work three hours per day three days a week. 

1. She reported to Dr Smith that up until September or October 2009 she was able to cope with her pain and disability.  Then, without any obvious trigger, she developed the worst episode of depression she had had to date.  She said that her depression lifted in October 2010. 

1. In February 2010 she attended the emergency department of Calvary Hospital and was identified as at risk of self harm or suicide saying that she had run out of Efexor because she didn’t have money to buy her prescription.  She was given a seven-day supply of Efexor and discharged.  She then remained unfit for work from April 2010 until September 2010. 

1. In April 2010 she saw Dr Zoltan Zsadanyi, a psychiatrist, who had been asked by the Department of Defence to conduct a psychiatric assessment.  Dr Zsadanyi advised her that the Norspan that she was taking could be exacerbating her depression.  She subsequently reduced her intake and felt a lot better.  It appears that that reduction was the point at which she embarked on a program of reducing not only Norspan but also Seroquel and Efexor.  Dr Smith, a doctor she saw for medicolegal purposes, reported that “she told her doctors to “jam” their medications in a certain place” at about this time.  That reduction in drug intake led to a gradual improvement in her overall condition.  By March 2011 she was only taking slow-release Panadol Osteo and 15mg of MS Contin SR at night. 

1. By 2010 Mr Villanti observed that the plaintiff was starting to get back to normality and was making efforts to get back to work.  Mr Villanti said that by 2011 “it was like the Sarah I knew before” had returned.

1. In early October 2010 she had commenced a graduated return to work, four hours per day three days per week.  At that stage she did not need any physical therapy, hydrotherapy or massage. By the time she saw the first of the doctors who examined her on behalf of the defendant, although she was still suffering from headaches she described herself as having got herself “back into shape and [was] able to mow, prune and weed”.

1. In December 2010 she was off work for a couple of days due to a flare-up of her neck pain.  In January 2011 she increased to four days per week and six hours per day.  In February 2011 she was certified as fit to return to pre-injury duties from 3 March 2011. 

1. In July 2012 she was certified as unfit for three days by Dr Philip Toua, her new GP, as a consequence of the injury of March 2007.  She was certified unfit again for a day on 27 July 2012 and from 6 to 13 August 2012 and 20-21 August 2012, in each case as a result of the accident.

1. In January 2013 Mr Villanti completely moved out of the Canberra house in which he and the plaintiff had lived as he had purchased a property in Sydney.

Proceedings

1. Proceedings were commenced by the plaintiff on 19 March 2010. At that stage she was represented by the firm of solicitors for whom she used to work. In 2012 her solicitors changed as a consequence of Comcare prosecuting the proceedings in her name pursuant to s 50 of the Safety, Rehabilitation and Compensation Act 1988 (Cth). That section has the effect that where compensation has been paid to an employee in circumstances that appear to create a legal liability in a person to pay damages in respect of the injury and a claim has been made by the employee but “has not been prosecuted”, Comcare may take over the conduct of the existing claim. This was done with the consent of the plaintiff. As a consequence the plaintiff’s original solicitors ceased to act and the case was taken over and conducted by the Australian Government Solicitor acting for Comcare. Instead of bearing all of the risks and obtaining all of the benefits of the proceedings, if any, the plaintiff was, after that time, only entitled to any surplus that might be left over after the amounts paid to her by Comcare had been recovered and then, in relation to any such surplus, she would be subject to a preclusion period in relation to benefits under the Act.

Assessment of lay witnesses

1. The two principal lay witnesses called in the plaintiff’s case were the plaintiff herself and her ex-husband David Villanti.  Both were subject to long and detailed cross-examination by counsel for the defendant.  Although this cross-examination demonstrated some minor inconsistencies in their evidence, I formed the view that each of them was honestly attempting to accurately recall the events in question.  Understandably, having regard to the passage of time and the level of detail with which they were being cross-examined, their recollections were not perfect. 

1. The plaintiff impressed me as a witness who calmly and disinterestedly gave her evidence.  She was frank and appeared to give answers to the best of her recollection even where the answers that she gave would not advance her forensic position.  She was tolerant of the long and detailed cross-examination to which she was subject and fairly answered the questions that were posed of her.  The cross-examination of her did not, in my view, damage her credibility.  Rather it had the effect of reinforcing my impression that she was an honest witness and her evidence was reliable. 

1. In final submissions the defendant submitted that the plaintiff “feigned injury from the outset” or, if she suffered some injury, that she “then deliberately sought to intentionally overstate her injury with a view to jumping on the Comcare gravy train”.  The defendant submits that “tell-tale signs of that mendacious approach are scattered throughout the evidence”.  The submissions of the defendant as to the “tell-tale signs” were as follows. 

(a)     The plaintiff “sought subtly to convey to all of the doctors whom she consulted that the accident in question was far more significant than in reality it was”.  I do not accept that this was the case.  The plaintiff was obliged to recount on numerous occasions the history of the accident and to respond to the questions asked by numerous doctors who then recorded what they understood was the effect of her answers.  It is not surprising that there might be differences in emphasis between what is recorded in the doctors’ reports.  In those reports it is clear that the accident was a relatively minor one.  The reference in the report of Ms Tsembis, the Department’s rehabilitation consultant, to the plaintiff’s car being written off must have arisen from some communication error or misunderstanding.  It did not reflect any attempt to mislead on the part of the plaintiff.  There was in my view, no cogent evidence that the plaintiff attempted to enhance either this claim or the claim for compensation from Comcare by overstating the significance of the accident. 

(b)     The defendant submitted that her “half-hearted attempt to return to work on 2007 is symptomatic of her intention to remain off work and in receipt of compensation for as long as her doctors would certify her unfit”.  I do not accept the characterisation of her attempt in May 2007 as a half-hearted one.  It was clear that the plaintiff had little recollection of this attempt to return to work.  There was nothing in the evidence to suggest it was “half-hearted”.  She was cross-examined about her first attempt to return to work. This was described in oral evidence as 11 May 2007 but the documentary evidence indicates it was on 15 May 2007. Although she was only cross-examined on her attempt about the first day that she attempted to return to work, after that she attempted on 16 and 21 May 2007 to attend work, on each occasion for two hours, prior to being certified again as unfit for work.  In June 2007 she once again attempted to return to work but only managed to attend on one day before again being certified as unfit. The plaintiff demonstrated significant persistence in wanting to return to work and made numerous attempts to do so. 

(c)     The defendant pointed to surveillance video of the plaintiff taken in October 2010 (more than three years after the accident) suggesting that her evidence in relation to using a handle when getting into the car to avoid pain was damaging to her credibility.  She was also shown on the video assisting a motorist whose car had broken down by pushing it, along with a male, to get it off the road.  It is important to note that this video was taken long after the accident, at a point where not only was her depression the factor preventing her returning to work, but when even that was resolving to the extent that she had commenced on a graduated return to work.  Having regard to the way in which she was cross-examined I did not find her answers in relation to the video or the content of the video itself to be damaging to her credibility.

(d)     The defendant submitted that the plaintiff “universally asserted that she had no pre-existing neck or back complaints at the time of the subject accident” and that this was clearly false and was misleading to the doctors that she consulted.  This submission was made in the light of two documents namely, Exhibit A – a workplace assessment form from 2004 and Exhibit 6 page 79, a claim for workers compensation dated 14 May 2007.  I do not accept that this evidence warrants the criticism made in the defendant’s submissions.  Clearly enough she had an ergonomic assessment in 2004 following complaints of discomfort, inter alia, in her neck and lower back.  This assessment was done in the light of the history of the 1999 accident and her successful return to work after that.  It does not say anything about her situation in 2007.  I did not find it surprising or damaging to her credibility that she had very little recollection of the assessment.  In relation to the entry in the claim for workers compensation in 2007, she was asked whether she had a “similar symptom, injury or illness” and asked to describe that symptom, injury or illness and the parts of the body affected.  She recorded in relation to an accident which corresponded to the 2001 accident in Nowra “back + neck – MVA Nov 2001”.  In her oral evidence, however, she said that she had not had any time off work and although she had notified her employer of the accident had not made any claim in relation to it.  I do not think her entry on the workers compensation form damages her credibility.  Rather, it demonstrates a concern to fully disclose matters potentially adverse to her claim for workers compensation, even when they were minor and did not lead to any time off work.  Thus neither document demonstrates any pre-existing injury at the time of the accident, in the sense of any injury giving rise to any symptoms at the time of the accident.  Further, in so far as they might relate to the accuracy of the history given to doctors, it is clear that the 1999 accident was fully disclosed and that the Nowra accident was minor and any non-disclosure was understandable.  No doctor was cross-examined to the effect that his or her opinion would have changed if the history of another motor vehicle accident in 2001 which led to no time off work had been disclosed by the plaintiff.

(e)     The defendant submitted that the plaintiff’s demeanour in the witness box including her “combative and evasive style” were matters which were damaging to her credit.  I do not accept that submission.  Instead my impression of her was the reverse.  I found that the plaintiff gave proper answers and was tolerant of a long and persistent cross-examination. 

(f)     The defendant submitted that a report dated 1 September 2009 reporting on an assessment of her physical capacity was “a false and misleading demonstration designed to perpetuate the perception of an ongoing incapacity for work”.  I do not accept that submission.  The report of 1 September 2009 was a report from a rehabilitation consultant to the Defence Materiel Organisation.  It was designed to assess the plaintiff’s current functional capacity and her capacity to return to her pre-injury clerical position in the organisation.  The report did not demonstrate that the plaintiff gave any false or misleading demonstration.  The report indicated that she “participated well, attempting all tasks requested.”  The author of the report also made an assessment of whether or not the plaintiff had been limited by what she was willing to do rather than what she was able to do.  The report author said that she “does not feel that Ms Kiiver was self-limiting.”  The report did indicate that the plaintiff demonstrated poor manual handling techniques when lifting objects that she was required to.  It did indicate that she had demonstrated a capacity to perform work as a clerical staff member in an unrestricted capacity but that she had lifting restrictions and required adequate rest breaks.  It strongly recommended that she undergo manual handling training when returning to work.  There is nothing in the report that indicates to me that the plaintiff was doing anything other than trying her best and I do not accept the submission that was made by the defendant based on it.  Indeed the content of the report tends to reinforce my impression that the plaintiff cooperated well in attempts to get her back to work, including a long assessment such as that described in the report.

1. Finally, although it did not receive specific mention in the defendant’s submissions, the plaintiff was cross-examined with some vigour on the proposition that the first time that she had mentioned being turned to the left at the time of impact was when she saw Dr Pascall in 2009.  It was suggested to her that “there’s no record anywhere of you saying it before that appointment with [Dr Pascall] when she asked you those questions”.  The plaintiff said that she would have said to “[a]nyone that asked me to describe seating positions or anyone that asked those questions”.   The cross-examiner persisted with the suggestion that her answers to Dr Pascall about her sitting position were first made to Dr Pascall in 2009 but never before.  The clear implication being that she had invented the detail to assist her claim to injury.  The transcript records the following question and answer:

And that’s when you started to tell people that you were seated partially turned to the left with your knees against the door on the passenger side of your car, isn’t it?---I’ve always said that I’ve done that, anyone who’s asked, I don’t ---

Well, I’m putting to you that it started then and you’ve perpetuated it thereafter.  Every doctor you saw after that, you made that part of the history, but not before.  Do you agree or disagree?---I disagree.  It was - that’s how I was sitting in the car.

1. The assumption put to the witness that there was no record of the plaintiff having previously described herself as being turned to the left at the time of the accident was demonstrably false.  When she saw Dr Berenson, the locum for Dr Ragg, on 22 June 2007 she was asked about this issue.  The Doctor recorded “passenger.  Looking to L”.  The meaning and significance of that note was made clear in the medical certificate issued on that day which, when describing the injury, said “MVA – rear ended – neck turned L – SB [seatbelt] and HR [headrest] in place”.  This record was repeated in the next medical certificate issued by the Doctor on 28 June 2007.  Obviously this record is much closer to the time of the accident than Dr Pascall’s report and consistent with the evidence given by the plaintiff that whenever asked by doctors in sufficient detail about the accident she gave a description of having been turned to the left.  Thus not only was the suggestion being put to the witness, that there was no record of her describing being turned to the left prior to seeing Dr Pascall in 2009, incorrect, but the records that did exist (and to which the plaintiff was not referred in cross-examination) reinforced the accuracy of the plaintiff’s evidence.

1. As a consequence I reject the submissions made by the defendant which are recorded at [65] above.

1. The evidence of Mr Villanti corroborated the plaintiff’s evidence in significant respects.  Mr Villanti was a member of the Australian Army from 1978 until 2004.  He reached the rank of warrant officer class two.  He served in Rwanda in 1994 and was based in Kigali.  As a consequence of his military service he suffered from post traumatic stress disorder and was discharged from the army in 2004 or 2005.  He was married to the plaintiff from December 2005 until being divorced in 2011.  However the couple were effectively separated from sometime in 2008 and 2009.  They did, however, continue to share a residence when Mr Villanti was in Canberra. The evidence of Mr Villanti comparing the position of the plaintiff before and after the accident is significant.  He was a person who had the closest ongoing dealings with the plaintiff.  He was frank about those areas where his recollection was not perfect.  He was divorced from the plaintiff but appears to have maintained a civil relationship with her.  His impressionistic evidence of the change that occurred following the accident in the period up until October 2010 is therefore significant and I give it considerable weight.  Initially, when giving his evidence, Mr Villanti appeared to be rather too keen to tell his story.  However as his evidence progressed, and in particular as a consequence of the course of cross-examination, it became clear that he was doing his very best to honestly recall the events about which he was asked.  There were some aspects of detail in relation to which his recollection did not extend but those matters were matters limited to questions of detail and did not reflect in any significant way on his credibility or the overall reliability of his evidence. 

1. The defendant also gave evidence relating specifically to the circumstances of the accident.  Her credibility was not challenged in cross-examination although it was put to her that her evidence as to the accident was inconsistent with a document that she had completed closer to the time.  There was nothing particular about her demeanour that affected my assessment of the reliability of her evidence.  I will return to her evidence when considering in more detail the circumstances of the accident.

Medical evidence

1. Three features of the medical evidence led in this case are, in my view, significant.  First, the plaintiff’s condition is closely documented in the contemporaneous notes of Dr Ragg and the other treating doctors who saw her.  Second, the expert medical evidence led by the defendant was evidence arising from consultations which only occurred from late 2010.  By this stage not only was the plaintiff’s depression, as opposed to her pain, the matter which made her unfit for work, but even that had begun to resolve. In early October 2010, some three weeks before her consultation with the first of the defendant’s doctors she had commenced a graduated return to work, four hours per day three days per week.  On about 3 March 2011 she had returned to full time work.  Third, there was clear concern expressed by some doctors about the doses of medication that she was being prescribed and the effect that such doses might have on her capacity to deal with her pain and depression.

Dr Ragg

1. Dr Ragg’s evidence was significant because he was the plaintiff’s general practitioner over a number of years.  He was responsible for seeing her on a regular basis and responsible for the ongoing management of her depression and pain.  His clinical notes were in evidence.  He commenced treating the plaintiff in 1999 and last saw her on a date in 2010.  During that period he saw her on approximately 99 occasions.  His evidence was that she had a long-standing depressive condition and probably on each occasion when he saw her she was suffering from depression even though that might not have been her presenting complaint and hence may not be recorded in his notes.  He was responsible for managing her levels of antidepressant drugs as well as dealing with her pain.  At various times he referred her to other doctors and health practitioners.  There was nothing in the Doctor’s notes or in his oral evidence that indicated that the plaintiff’s complaints were other than genuine. 

1. There were periods between April 2001 and the beginning of 2002 when the plaintiff had ceased taking Prozac and was not on any antidepressants.  In 2004 she commenced using Efexor.  By 2005 her dosage was up to 225mg per day.  By 2006 she was on Epilim and was prescribed Stilnox although she soon stopped taking Epilim because it was making her “too dopey”.  In 2006 her depression was noted as persisting.  In March 2007 shortly before the accident she had a long consultation in which she was counselled concerning depression and possible pregnancy.

1. Following the motor vehicle accident, the medical certificates that Dr Ragg issued referred to soft tissue injury to her neck and lower back caused by motor vehicle accident or neck and back pain.  That was the case up until mid-October 2009 when in addition to recording “soft tissue injury to cervical spine” he also gave a medical certificate based on “profound depression since at least 1/8/09.”  He continued to record both the soft tissue injury and unfitness for work due to depression.  In September 2010 he records fitness to return to work on a graduated basis from the end of September 2010.

1. In Dr Ragg’s report to the defendant dated 5 October 2010 he said:

Ms Kiiver’s history is complicated.  I have no doubt that her neck and back pain and her neuropathic pain are a direct result of the motor vehicle accident of 28 March 2007.  She had been in several previous motor vehicle accidents but did not have any on-going symptoms from those.

Her pre-existing Depressive Illness may well have been a factor in the slowness of her recovery from her injuries.  However, the narcotics prescribed for her pain have probably increased her Depression.

1. In oral evidence he said that in 2009 the plaintiff had improved and then in late 2009 her depression became worse again.  In relation to that period he said: “Really, the depression is being contributed to by the high doses of narcotics.  That is certainly possible”.  This was clarified later in his evidence:

You’ve described it as a possibility, what about a probability?‑‑‑I understand those words and I’m not sure that I’m going to be able to help you on this.  This is a lady who didn’t develop profound depression because she was on medication, she had profound depression intermittently for many years beforehand and I absolutely accept that narcotics can increase depression in some people but if you’re asking do I probably think her depression was accentuated by narcotics to a higher level, no I don’t.  That’s true and I think that if they had a small effect on it I would think that her condition probably also had a significant effect on her depression too.  This is a woman who was previously very active, who was not able to be active in the way that she wanted to be and that would contribute to her depression but I’m not sure how much I can say with the narcotics.

Okay, and just leading on from that, Doctor, would you assign that inactivity to the narcotic analegesia that the plaintiff, Ms Kiiver was being prescribed?‑‑‑The major reason for her inactivity was her ongoing pain from her initial injury.  It is absolutely true that pain on high doses of narcotic would also decrease her activity but the main thing that stops her doing activity was the pain.

And activity such as working?‑‑‑Yes.  Social activity too and physically she was a lady who was very outgoing in a previous life and physical activity and certainly work as well, yes.

Dr Pascall

1. As indicated above Dr Pascall, an occupational phyisician saw the plaintiff in January 2009 at the request of the Department of Defence.  In her view, the most pronounced or evident diagnosis was analgesic habituation and possibly narcotic addiction.  She said:

combined with her underlying depression, her psychological and substance problems are the primary cause for her experiencing such unremitting pain that she use, for much of the time, only partially or inadequately functional.

She also said:

I doubt her depression per se is a significant barrier, but her means of coping with pain is pathological and unfortunately is being supported by medical practitioners who have a belief in a series of analgesic and interventionist therapies as a means of managing soft tissue and musculoskeletal pain. 

The more she seeks to numb her pain with analgesics or techniques to provide analgesia, the more pain she will suffer. Whilst the reverse is not correct, that is, avoiding the analgesia and other techniques will not make the pain abate, it would allow her to make more rational decisions and function in a more normal manner...  It would also allow her to resume the steps she needs to take to improve the function of her cervicothoracic spine.

1. She was not required for cross examination and did not give oral evidence.

Dr Barnsley

1. Associate Professor Les Barnsley, a consultant rheumatologist, reported to Comcare on 29 April 2009.  He said:

Ms Kiiver has complaints of neck pain and I believe she has cervicogenic headaches.  These are not uncommon following motor vehicle accidents and can be caused by injury to one of several structures in the upper part of the neck.  The fact that she developed a headache shortly after the accident and that she was rotated at the time would increase the probability that she would have had a injury to one of the upper cervical articulations.

… I am therefore unable to specify exactly which structure is causing the pain in her upper neck, but the pattern of involvement would suggest a level between C0 and C3.  The radiation up over the head is not unusual and is well-described in patients suffering from upper cervical neck pain.

1. He expanded on this in his oral evidence saying:

This is called a cervicogenic headache, so headaches whose origin is in the cervical spine and its - the mechanisms probably relates to cross-talk between pain signals coming from the neck through - and the sensory nerves of the-of the head and face, which are in close proximity in the upper cervical cord.  So where people describe pain that starts in the neck and radiates out over the head that would be a very common - a very common clinical picture and well recognised as being a source of -and it would be - it would be a cogent clinical picture to have somebody complain about neck pain and - and head pain.

1. He considered the link between depression and pain.  He said that patients who suffer from depression are more likely to experience problems with pain and vice versa.  He did not, as at April 2009, believe that her depression was the major determinant of her current symptoms.  In oral evidence he maintained that there was a tight link between depression and pain.  In assessing the role of depression in relation to the symptoms that she was, at that stage, suffering he questioned her about her history, noting that the past symptoms of injury and back pain had settled.

1. He saw it as significant that Ms Kiiver developed a headache shortly after the accident.  In oral evidence he said “if one’s looking for indicators that dictate who’s going to get more chronic symptoms, a couple of them are that early headache - so the presence of a headache early on, after the onset of symptoms is a risk, it has been noted as a risk factor for ongoing neck symptoms.”  

1. He was asked in cross-examination about the effect of a passenger being turned to the left when suffering an impact from behind.  He said:

But in terms of your question about being rotated, when you rotate the neck you tension a bunch of the structures already, including ligaments within the spine, and it significantly increases the probability that you will suffer an injury for a given impact.

1. In a second report dated 25 April 2013, he said that she would continue to suffer from flare-ups indefinitely and when that occurred it would probably be reasonable for her to have one or two days off every few months.

Dr Zsadanyi

1. Dr Zoltan Zsadanyi reported to the Department of Defence in April 2010.  He recorded that in late 2009 she started experiencing severe depressive symptoms.  By April 2010 she was noting some improvements in her mental state as a consequence of starting to leave the house more and some changes to her mood.  The doctor noted that he was concerned that she was prescribed 40mg of Norspan on a weekly basis and said “some of her mental state changes could be in relation to side effects of this medication or interactions between the Norspan, her antidepressant and her Seroquel.”  In oral evidence he accepted that by the time he saw her, the principle matter preventing her returning to work was her depression.

Dr Burke

1. The plaintiff saw Dr Nicholas Burke, an occupational physician, on 14 April 2010 at the request of the Department of Defence.  He said in relation to the accident:

[i]n this it is probable she suffered soft tissue injury in the lumbar spine and possibly cervical spine.  She has made an extremely protracted and partial recovery from this.  She continues to describe ongoing symptoms in the cervical and lumbar regions. 

The major factor as at the time that he saw her that was preventing a return to work was her depressive disorder.  He noted that the principal matters that needed to be treated were her depressive disorder and her pain related condition.  He noted “she needs to rationalise the treatment for her pain-related conditions (Norspan.  In my opinion, intensive treatment from a consultant psychiatrist along these lines would be the most likely agent for this form)” (sic). 

1. In oral evidence he was asked questions about the potential effects of taking the drugs that the plaintiff was taking as well as interactions between them. 

Mr Sparkes

1. Mr Sparkes was a clinical psychologist.  He saw her on approximately six occasions in total up until May 2009.  He recorded that she did not wish to discuss other emotional or psychiatric issues.  He recorded that she attributed knee and ankle pain to the accident.

Dr Stubbs

1. Dr Stubbs prepared a report dated 27 October 2010 for the defendant and he was called by the defendant.  In that report he recorded a diagnosis of chronic whiplash associated disorder and assessed her as not requiring any further treatment.  He accepted that she she had symptoms but both on a psychiatric scale and assessment of activities of daily living had no significant disability. 

1. He annexed to his report a review article by Bannister and others on the causes, outcome and prevention of whiplash injury entitled “Whiplash injury” from the Journal of Bone & Joint Surgery (2009) 91-B: 845-50.  He noted that Bannister:

shows a number of features associated with prolonged duration of symptoms: a history of prior neck pain, previous third party claims and major psychiatric disturbances.  From the Banister and other articles you will note that the symptomatology becomes fixed by six months, those that will recover will already have done so and those that still have continuing symptoms at six months will continue to complain of symptoms.

1. In oral evidence he explained that “the other half continue to have complaints but generally if you look at subjective factors, for instance, return to the workforce, analgesic medications, lifestyle factors and so forth there is usually a suitable improvement in those”. 

1. He said that he “would be more inclined” to relate her perceived disability over the last few years to her depression and marital breakup than the motor vehicle accident.

1. He said he had seen many patients with whiplash over 40 years.  His diagnosis was one of chronic whiplash associated disorder.  He draws a distinction between that and a chronic whiplash injury.  The disorder is one where the patient who has previously suffered a whiplash incident continues to complain of pain when there are is no detectable evidence of an injury.  He agreed with various propositions which were put to him based upon the terms of the journal article which he referred to in his report

1. He agreed that if patients were still reporting pain after three months then 50% of those patients would recover and 50% of those patients would continue their complaints although they would be likely to improve over time.  He said for whiplash injury there was a clear relationship between the energy of the impact and the continuation of symptoms because there was a clear relationship between the energy of impact and tissue injury.  However there was no such relationship with whiplash associated disorder.

1. He said that he had not seen any published studies indicating that people with hypermobility were more susceptible to joint injury or were more likely to have back and neck pain.  He was not aware of any study indicating that the position in which a person was sitting at the time of impact affected the nature of the injury.  In particular he was not aware of any studies that recorded an increase in injury if somebody was turned sideways.  He was not asked whether, notwithstanding having not seen published studies on these issues, he had clinical experience which permitted him to express an opinion on them.

1. He was asked about his opinion on the basis that the facts relating to the accident were those contested for by the defendant.  He was asked “taking all of these factors into account, is that the sort of accident which in your years of experience is likely to result in a whiplash type injury?”  In his answer he drew the distinction between an injury and an ongoing complaint.  He had described the plaintiff as having a chronic whiplash associated disorder and in relation to that he said that there was “no relationship in the motor vehicle - between energy and impact and whiplash associated disorders and we can say there is a very clear relationship between energy of impact and tissue injury.”  In relation to whiplash type injury his answer to the question was no.  He was then asked “if you do not have any whiplash type injury what would be the source of pain which might result in a whiplash associated disorder? - Well, the answer is, nobody knows and that’s why the treatment for this condition is so all over the place.”

1. In the defendant’s written submissions the defendant submitted that this answer “betrayed the black art mumbo-jumbo involved in accepting the concept of a whiplash associated disorder”.

1. I do not accept this criticism.  It is very clear from Dr Stubb’s  evidence and the review article from the Journal of Bone & Joint Surgery to which he referred that the description of whiplash associated disorder is one which has a degree of acceptance in circumstances where it is not possible to identify a tissue or joint injury giving rise to the complaints of pain and that there is a clear relationship between physical and psychological components.  The journal article indicates a series of factors which increase the risk of chronic symptoms which include previous neck pain, previous psychiatric history, previous whiplash injury and early onset of symptoms.

DrMellick 

1. Dr Ross Mellick, a consultant neurologist, saw the plaintiff in late November 2010.  He recorded that the main existing symptom was a headache occurring about once a week.  He concluded that there was no indication of any existing physical abnormality arising from the motor vehicle accident of 28 March 2007.  He was unable to identify any neurological abnormality and emphasised that the plaintiff’s stated intention to resume work as soon as possible was entirely in keeping with her clinical presentation.

Dr Smith

1. Dr J Sydney Smith, a psychiatrist, saw the plaintiff in February 2011.  He recorded that the plaintiff reported a severe relapse of depression in late 2009 which continued until October 2010.  He said:

[g]iven that she has been prone to relapses of her Major Depression since her teenage years, it is difficult to attribute the 2009 relapse to any effect of the accident, especially given the time lapse.  However, it is possible that her narcotic intake made her more susceptible.

1. Dr Smith reviewed the plaintiff and prepared a further report in July 2011.  He said:

[i]t was not until two and a half years after the accident that she suffered a significant relapse into depression.  Given this long interval it is likely that this relapse was unrelated to any effect of the accident, especially as she informed me that there was no obvious trigger to this particular episode.

Dr Toua

1. Medical certificates issued by Dr Toua in July and August 2012 indicate that she is unfit for work due to be motor vehicle accident as a consequence of, it appears pain and headaches.  He did not give oral evidence.

The accident

1. In her workers compensation claim form completed on 14 May 2007 the plaintiff recorded “our car being struck from behind which forced me forward.  I was wearing a seat belt at the time.”

1. In oral evidence the plaintiff described the position in which she was sitting as:

I was sort of - yes I was twisted.  My knees were against the door and I was looking that way and I was watching the blue car finish going through the roundabout before we could go. 

As to the nature of the impact she said “it was a thump, but it didn’t seem that bad.”  In cross-examination she said that the seatbelt tensioned up when she was hit from behind.

1. Mr Villanti said “I do remember a rather big jolt from the back coming forwards.  I was a little bit more fortunate, I had my hands on the steering wheel so the jolt was not as bad for me.” In cross-examination he said “it was enough of a bump to bring me forward and back, and I was braced on the steering wheel.” He could not recall whether the seatbelt tensioned up as a consequence of the collision. He said that there was no damage sufficient enough to get the car repaired but asserted that there was some sort of minor damage to the rear of bumper bar although he could not identify any particular damage.

1. In a motor accident report form dated 3 September 2007 the defendant said in relation to the accident:

I was looking to my right, after a short while I saw a large gap in the roundabout traffic.  I put my foot off the brake and slightly on the accelerator, I assumed the car in front of me had entered the roundabout, but they hadn’t by this time.  I then bumped into their car.

1. In oral evidence the defendant said in relation to the severity of the impact that it was “not enough for me to make my body thrust forward or whiplash from my seatbelt”.  She did not remember the seat belt tightening.  She said that all she had done was take her foot off the brake and that that led her to bump into the car in front.  She disagreed with the proposition that she had put her foot on the accelerator.

1. She described the damage arising from the accident as there being a slight rounded dent from the tow ball of the car in front.  She said that the tow ball had not gone through the plastic but it had made a circular dent.

1. The evidence establishes that there was a dent in what was described as the “plastic override” to the defendant’s bumper bar.  There was minor and trivial damage to the car in which the plaintiff travelled but nothing worth getting repaired.

1. The defendant relied upon the report of Dr Andrew McIntosh an Associate Professor in Biomechanics in the School of Risk and Safety Sciences at the University of New South Wales.  Dr McIntosh made a series of assumptions about the accident largely consistent with the evidence in the case.  He estimated that the change in velocity for the plaintiff’s vehicle as being between 2.7 and 8.2 km/h.  He thought it was highly probable that the change in velocity was no greater than 5.5 km/h.  In his report he gave a brief review of significant academic literature on the biomechanics of whiplash associated disorders.  He referred to studies which involved volunteer tests and found that with changes of velocity of 5km/h neck motion remained in the voluntary range and any incidences of neck pain were minor and short lived.  Another study suggested that changes of velocity of 8km/h might be the threshold above which minor injury commences.  A study of 34 real world rear-end impacts in Sweden found that neck injuries with symptoms of duration greater than one month only occurred when a change in velocity was greater than 10 km/h although a follow up report found that the risk of suffering whiplash symptoms of greater than one month following a rear-end collision with a change of velocity of 5km/h was less than 10%.  The report identifies that it is more difficult to injure the thoraco-lumbar spine in low velocity motor vehicle collisions than the cervical spine due to its relative size and weight bearing function and the fact that it is generally well supported by the seat.  He concluded that on balance it is likely that the plaintiff would not have been injured by the collision, that the plaintiff’s neck and lumbar spine would not have experienced high forces and the range of any motion arising from the collision would have been well within normal physiological range.  He said “[i]n my opinion there is only a very small likelihood that the plaintiff sustained the physical injuries allegedly arising from the motor vehicle accident having regard to the circumstances of the collision”.  Dr McIntosh did not give oral evidence and was not required for cross-examination.

1. Based on the evidence about the nature of the collision, the defendant submits that the plaintiff in fact suffered no real injury.

1. That was supported to an extent by the evidence given by Drs Stubbs, Barnsley, Burke and Mellick.  Those doctors were asked to assume facts consistent with the defendant’s evidence (although not completely consistent with the plaintiff and Mr Villanti’s evidence) and asked whether, in their opinion an impact of that nature would give rise to a whiplash injury or muscular or ligamentous damage.  Dr Stubbs said that there would be no whiplash injury but, as noted above, went on to discuss whiplash associated disorder.  Dr Barnsley said that no muscular or ligamentous type injury would have occurred although he did note that if the plaintiff was turned to the left during the accident then that significantly increased the probability of injury for a given impact.  Dr Burke agreed that you would not expect a front seat passenger to suffer muscular or ligamentous injury even if turned to the left.  Dr Mellick said that it was unlikely that muscular or ligamentous injury would occur even if turned to the left although he seemed to recognise that turning left might be a factor that increased the prospect of injury.  

1. Whilst I accept the force of the defendant’s submission in the light of the uncontradicted evidence of Dr McIntosh and the evidence of the medical doctors, there are two factors which lead me to conclude that the plaintiff did in fact suffer an injury which gave rise to a whiplash associated disorder.  First, I have accepted as reliable and truthful evidence the evidence of the plaintiff and Mr Villanti that the plaintiff suffered the onset of headaches and nausea shortly after the accident.  That is consistent with her having suffered an injury as a consequent of the accident.  Second, the notes of Dr Ragg indicate that on examination she was tender and had swelling above the lower cervical spine and that within the next week she was still stiff and sore in the neck.  In the light of this evidence I do not accept that the accident was so minor as to make it impossible that the plaintiff suffered an injury.  She did suffer some muscular or ligamentous injury at this point. 

1. It is in the light of this finding that I approach the evidence about the nature of the accident.  Having regard to the evidence of both Mr Villanti and the plaintiff that the impact was enough to throw them forward, it is, in my view, unlikely that the impact was caused solely by the automatic “creep” of the defendant’s vehicle without any acceleration.  That acceleration may well have been minor but nevertheless some acceleration was involved.  As a consequence, I find that the description of the actions of the defendant given in her motor accident report form to her insurer on 3 September 2007 to the effect that she took her foot “off the brake and slightly on the accelerator” is more accurate than her denial in oral evidence that she had accelerated at all.  However, in my view it is not necessary to make any more particular findings in relation to the accident other than that it was sufficient to give rise to the symptoms recorded by the plaintiff shortly after the accident and in the following days as recorded in Dr Ragg’s notes and that the pain in her neck and headaches continued following the accident in the way recorded in Dr Ragg’s notes and as described the plaintiff.

Causation

1. In Shorey v PT Limited (2003) 77 ALJR 1104; 197 ALR 410, the High Court was dealing with a psychiatric disorder alleged to have arisen out of a fall in a shopping centre. The plaintiff had succeeded at trial but that decision had been overturned by the New South Wales Court of Appeal. A majority of the High Court allowed the appeal and set aside the orders of the Court of Appeal. The plaintiff in the present case relied upon the judgment of Gleeson CJ, McHugh and Gummow JJ where their Honours said (at [2]):

Accepting, as did the Court of Appeal, the finding of the trial judge that the appellant genuinely experienced the extreme, and in some respects bizarre, symptoms of which she complained, and that she was not malingering, the question became whether the fall for which the respondents were responsible was a cause of the appellant’s condition as it manifested itself at trial. That there were other factors which contributed to that condition was beyond doubt; but if it were correct to conclude that the fall was a cause of the condition, then the appellant was entitled to succeed.

1. Counsel for the plaintiff emphasises the reference to “a cause of the condition” in the last sentence.  The plaintiff also relies upon the reasons of Kirby J in that case.  His Honour, also part of the majority, said (at [41]):

The search for a single cause: It is a basic principle of the law governing the recovery of damages that a claimant does not have to prove (as Dr Phillips seemed at first to assume was the law) that an impugned event was “the” cause, in the sense of the one and only cause. It is enough that the claimant shows that the event is “a” cause of the condition for which damages are claimed: March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506 at 511; Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 6-7; Henville v Walker (2001) 206 CLR 459 at 480 [60]- [61], 490 [97].

1. I did not understand the defendant to dispute the proposition that it was only necessary to establish that the negligence of the defendant’s was a cause of the injury and disability suffered by the plaintiff.  In particular, it was only necessary to establish that the motor vehicle injury was a cause rather than the cause of the very significant episodes of depression that the plaintiff suffered, particularly in the period October 2009 to April 2010.  However, it is necessary for the plaintiff to establish that it was “a necessary condition of the happening of harm” suffered by the plaintiff: Civil Law (Wrongs Act) s 45. This mirrors the application of the “but for” test: Blundell v Leighton [2013] ACTCA 1.

1. The plaintiff also relied upon the decision in Mahoney v J Kruschich (Demolitions) Pty. Ltd. (1985) 156 CLR 522 at 528-534 for the proposition that if the medical treatment given to the plaintiff exacerbated her condition then that exacerbation was a reasonably foreseeable consequence of the original injury and was a matter for which the defendant was liable. In particular, my attention was drawn to page 529 of the decision where the Court said:

In particular circumstances, minds may differ as to whether a subsequent injury was foreseeable or whether it is too remote to be regarded as a consequence for which an earlier tortfeasor may be held liable. When an injury is exacerbated by medical treatment, however, the exacerbation may easily be regarded as a foreseeable consequence for which the first tortfeasor is liable. Provided the plaintiff acts reasonably in seeking or accepting the treatment, negligence in the administration of the treatment need not be regarded as a novus actus interveniens which relieves the first tortfeasor of liability for the plaintiff’s subsequent condition. The original injury can be regarded as carrying some risk that medical treatment might be negligently given ....  It may be the very kind of thing which is likely to happen as a result of the first tortfeasor’s negligence .... That approach is consistent with the view taken in workers’ compensation cases that the total condition of a worker whose compensable injury is exacerbated by medical treatment, reasonably undertaken to alleviate that injury, is to be attributed to the accident ..., although medical negligence or inefficiency can be held to amount to a new cause of incapacity in some circumstances: ... (citations omitted)

1. I am satisfied that the plaintiff suffered an injury in the accident on 28 March 2007 that led to her suffering headaches and neck pain following the accident.  I accept the evidence of Dr Stubbs that her condition, at least after an initial period, could accurately be described as whiplash associated disorder.  I am satisfied that her complaints of pain were genuine.  Her doctors prescribed her with drugs to manage that pain which, although assisting her to manage the pain, led to her being less able to maintain a level of activity and engagement necessary to be able to return to work.  I accept that the cognitive effects of those drugs and the inactivity and disengagement caused by both the plaintiff’s experience of pain and the effects of the drugs led to a worsening of her psychological state.  I accept the evidence of Dr Pascall, Dr Smith and Dr Zsadanyi that the continued use of Norspan in the period May 2008 to mid 2010 made it more difficult rather than less difficult for the plaintiff to regain the capacities that she had prior to the accident.  I am also satisfied that the plaintiff was continuing to follow her doctors’ advice, in particular that of Dr Ragg and Dr Chan, in relation to the taking of the combination of analgesic medications up until the point where she chose to reduce the use of those drugs.  In following the advice of her doctors she was acting reasonably.  There was no evidence that she had seen the report of Dr Pascall or been told the things in Dr Pascall’s report in early 2009.  Even if she had, I would have found her continued reliance upon Dr Ragg and Dr Chan to be reasonable.

1. Although, her episodes of uncontrolled depression sometimes developed without any particular cause, I am satisfied that one of the causes of the onset of depression in late 2008 was the pain that the plaintiff continued to suffer as a consequence of the accident and the regime of drugs that she was taking to manage that pain. I don’t think it is realistic to say that her ongoing experience of pain and disability and her resulting disengagement from the workforce was not “a” cause of her falling into the uncontrolled depression. I do not accept Dr Smith’s opinion that the outbreak of depression in 2009 was likely to be unrelated to the accident. Further, I am satisfied that the accident and subsequent pain was a necessary condition for the depression and that the statutory requirement for causation in s 45(1)(a) is satisfied. As a consequence, in my view the defendant is liable for the losses that the plaintiff suffered during the whole of the period from the accident in March 2007 until her return to work in March 2011.

General damages

1. The history recounted above indicates that prior to the accident the defendant was in reasonable health.  Although she had previously been involved in a serious motor vehicle accident in 1999 she did not have any recurrent symptoms arising from that accident.  She was physically very strong and able to undertake all the usual tasks at home as well as physical labour involving considerable strength.  She was married.  At work she was successfully pursuing a career in the Defence Material Organisation.  She had successfully risen from being an APS 4 to being an Executive Level 1 in a six-year period.  She had successfully progressed through the salary increments that were available under the relevant certified agreement.  Although since 1998 she had been suffering from significant depression, after 2000 that was managed reasonably well with medication.  Although there were periods when she still suffered depressive illness to an extent which prevented her from going to work that was the extent of her disability. Because of the availability of sick leave, those periods were not productive of financial loss.  It is notable that it did not prevent her from achieving promotions at work.  As a consequence of the accident not only did she suffer neck pain and, to a lesser extent, back pain sufficient to disable her from working but, due to a combination of her previous predisposition to depression and the drug regime that she was on in order to manage her pain, she fell into a very significant period of depression between October 2009 and October 2010.  Although there were ups and downs within this period it was only by October 2010 that she was able to participate, successfully this time, in a return to work which led her back to full-time work by March 2011.

1. In assessing general damages it is necessary to take into account the prospect that having regard to the plaintiff’s history of depression that there may well have been periods during the period March 2007 until March 2011 when, notwithstanding the absence of the motor vehicle accident, she would nevertheless have suffered as a consequence of a period or periods of uncontrolled depression.  Taking into account the length of time during which she suffered either pain or depression or both, the clear severity of that depression and, on the other hand, the prospect that she may in any event have suffered during that period I assess general damages at $65,000 with $60,000 of that attributable to the past.  The approximately 6.25 years since the accident generates an award of interest of $7500.

Past treatment expenses

1. Exhibit M demonstrated that Comcare had paid $27,720.66 for treatment costs.  Further there was a Notice of Past Benefits from Medicare dated 16 February 2010 showing an amount owing of $1532.30.  I am not satisfied, having regard to the payment of medical expenses, including pharmacy bills, by Comcare that I should allow any further amount for “incidentals” as claimed by the plaintiff.  Therefore the total amount awarded in relation to past treatment expenses is $29,252.96.

Future treatment expenses

1. The plaintiff claimed a buffer for future treatment expenses for analgesia or anti-inflammatory medication, attendances at her general practitioner and massage therapy.  The most recent evidence is that of Associate Professor Barnsley.  He considered that it is more likely than not that she will have ongoing symptoms at about her current level.  He said that the current medications are likely to need to be continued for the foreseeable future.  At the time that the plaintiff saw him she was using Diazepam for acute flares of her neck pain and taking Panadol and Neurofen as required, usually about twice a week.  In the light of Associate Professor Barnsley’s evidence only a very small buffer is warranted in relation to future treatment expenses and I would allow the sum of $2000 which makes provision for the relatively minor expenses of medication and some additional attendances at her general practitioner.

Past economic loss

1. In relation to past economic loss the evidence discloses that her loss of earnings which were compensated for by Comcare is an amount of $225,307.03.  This is the amount paid by Comcare and hence is a gross rather than after-tax figure.  Fox v Wood (1981) 148 CLR 438 articulates the correct approach as being to first calculate the after-tax loss of earnings to the plaintiff and then, when there is a workers compensation payback, to award an additional amount to take into account the increase in the plaintiff’s loss by reason of the receipt and repayment of compensation. In the present case the loss was particularised as the gross amount paid by Comcare which accurately reflects the precise dates and times on which the plaintiff worked or did not work. For this reason and the absence of any alternative calculations by the parties, I will make an award of the amount paid by Comcare and not make any separate Fox v Wood award since to do so would provide double compensation to the plaintiff for the difference between the amount of after-tax income received and the amount repayable to Comcare. 

1. Because Comcare only paid 75% of her pre-injury wage after a period of 45 weeks, there was a gap between what she was paid by Comcare and the amount that she would have been paid had she continued in employment.  In addition to that loss, because the plaintiff was unable to work she was not able to achieve pay increases as a result of “performance progression” under the Defence Enterprise Collective Agreement.  Prior to the accident she had achieved the relevant standards necessary to obtain those increases in salary and it is likely that, but for the accident, she would have continued to do so.  Based on the calculations in Exhibit 5, which I accept, I find that by reason of the gap between the amount paid by Comcare and her pre-injury salary as well as her loss of the progressions that she would otherwise have obtained her loss is $80,371 gross.  The plaintiff’s submission is that I should award an amount of $60,000 to reflect her net loss which would equate to a taxation impact on this additional income of 25%.  The basis for this calculation was not disclosed in evidence or submissions.  However these amounts, depending on whether the component of the income was more or less than $80,000 per annum, would have been taxed at a marginal rate of either 30 or between 37 and 40 cents in the dollar.  In the absence of any more precise evidence, and recognising that there is inevitably some imprecision, working on an average rate of taxation of 33 cents in the dollar leads to an award of $54,000 as compensation for this loss of additional income and I award that amount.

1. In my view, there should be some reduction of the amount of past economic loss to take into account the possibility that during the period March 2007 until March 2011 there would, even without the accident, have been periods during which the plaintiff’s depression prevented her from working.  To make such an adjustment is consistent with the decision of the Full Court of the Federal Court in Koeck v Persic (1996) Aust Torts Reports 81-386, in particular the reasons of Miles CJ at 63,359-63,360. The evidence about the plaintiff’s history of depression prior to the accident indicates that there were occasions when there were identifiable triggers and there were occasions when there were not. I accept that as at March 2007 the plaintiff’s depression was relatively under control. I say “relatively” because it is clear that notwithstanding being treated with drugs, in particular, Efexor, the plaintiff continued to suffer bouts of depression which meant that she had time off work. It is likely that, even without the accident, there would have been periods when she had to take time off work. That would have only been productive of financial loss, and hence only require an adjustment to past economic loss, if the periods that she needed to take off work exceeded her sick leave entitlements. There was no evidence as to what those entitlements were and her payslips disclose that she had a limited accrued balance of sick leave which could be used in circumstances where there was a substantial flare-up in her depressive condition. Recognising that any adjustment of this nature involves an imprecise assessment of contingencies, in my view a reduction of $7000 in the past economic loss is appropriate. This roughly corresponds to a 30% chance that she might have been required during the period 2007 to 2011 to take three months unpaid sick leave.

1. In round dollar terms this gives a total amount for past economic loss of $272,307 ($225,307+$54,000–$7,000).  I will award interest on the component of this amount which the plaintiff has not had access to, namely, the $54000.  This loss was accrued between the end of January 2008 and the beginning of July 2010, approximately 29 months.  Interest calculated from May 2009 gives a sum of $19150and I will award that amount.  

Superannuation

1. In relation to past loss of superannuation Master Harper described as “the conventional approach” in Waters v Dalli [2009] ACTSC 158 at [46] making an award at the rate of 11% of the amount awarded for economic loss. The plaintiff claimed to be entitled to superannuation component in relation to the whole of the past economic loss. This is not an issue on which either party made any submissions. The pay slips buried at tab 28 of Exhibit 8 appear to show that during the whole of the period deductions were made, and contributions by the employer recorded, in relation to the plaintiff’s membership of the “PSS” superannuation scheme, a superannuation scheme open to Commonwealth public servants in positions such as that held by the plaintiff. The employee contributions recorded show that the contributions were made during the period of her incapacity which is, in part, covered by these payslips, on the basis of the plaintiff’s annual salary rather than on the basis of the 75% figure that she was receiving from Comcare. Thus, leaving aside any additional salary that she might have achieved as a result of performance progression, it appears that the plaintiff has not suffered any loss of superannuation. There was no evidence that would allow me to assess the possibility of any loss arising from the payment by Comcare at 75% of pre-injury salary in relation to this particular superannuation scheme. In relation to the loss of income arising from the failure to achieve performance progression, in the absence of evidence as to how the PSS scheme operates or the consequences of a slightly lower salary for an employee of the age and length of service of the plaintiff, I cannot be satisfied that there is an additional loss of superannuation benefit that will be incurred by the plaintiff when she retires.

Future economic loss

1. The plaintiff submitted that I should award a buffer for future economic loss and loss of superannuation.  I’m not satisfied that I should do so.  The assessment of Associate Professor Barnsley was that from a purely physical perspective he would not expect her to need to miss a great amount of work although when she does have flare-ups it would probably be reasonable for her to have one or two days off every few months.  I’m not satisfied that this level of disability will be productive of any financial loss and hence do not award a buffer in relation to future economic loss.

Gratuitous care

1. In relation to past gratuitous care the plaintiff submitted that I should allow five hours per week at $25 per hour for 130 weeks.  There was no issue that $25 dollars an hour was an appropriate rate.  The evidence of Mr Villanti was that although the division of labour within the household was 50:50 prior the accident, following the accident he did approximately 85% of the work.  His evidence was that the period during which the plaintiff needed most assistance was 2008. 

1. In 2007 Mr Villanti was doing a certificate III in performing arts at the Academy of Theatre Production.  He spent Tuesday to Thursday in Sydney.  The pattern of spending between three and three and a half days a week in Sydney continued after he completed that course and up until 2010 as he was then involved in performing in plays in Sydney. 

1. As a consequence of the plaintiff’s disabilities Mr Villanti provided assistance to the plaintiff which he had not previously provided namely washing, ironing, caring for their two dogs and taking her to appointments.  He described this as at least eight hours a week in 2007, increasing after the plaintiff had commenced on Norspan to 12 hours per week in 2008.  In 2009 and 2010 it had reduced back to around eight hours per week.  He said that when she was off Norspan she got better and he “laid off”.  He observed that more recently when he had attended the house there was nothing to do around the house because she had done it.

1. In cross-examination, when asked to break down in detail precisely the additional work that he was doing in 2008 beyond that which he would have done pre-accident he said he would do one to one and a half hours of ironing, one hour of attending to their dogs, “Chaos” and “Mayhem”, one hour of clothes washing, one hour of dishwashing, one and a half to two hours of yard maintenance and approximately half an hour of transporting the plaintiff to doctors or shopping when she was not otherwise able to take herself.  This gives rise to between six and seven hours additional work for him each week.  Having regard to the fact that 2008 was the year in which he had to do the most for the plaintiff I will allow an average of four hours per week over the three-year period from the date of the accident until March 2010 at which time the plaintiff was physically improving.  This gives an amount of $15,600 and generates an interest component of $6350.

1. I’m not satisfied that any allowance should be made for future gratuitous care.  A claim is made for future domestic or handyman assistance for the rest of the plaintiff’s life.  I am satisfied that a limited award should be made under this head having regard to the fact that Associate Professor Barnsley says that she is likely to need one to two hours per month of assistance with some of the heavier gardening tasks.  The defendant agreed that a reasonable rate for such assistance would be $35 per hour and I will allow an average of half an hour per week for a period of seven years.  Beyond that I’m not satisfied that the need for such assistance can be attributed to the accident in March 2007.  That gives an award of $5775 ($17.50 x multiplier of 330).

Summary

1. In summary the components of the award are as follows:

1.        General Damages

(a) Past   $60,000

(b) Future   $5000

2.        Interest on past general damages  $7500

3.        Past economic loss (including Fox v Wood)         $272,307

4.        Interest on past economic loss  $19150

5.        Domestic assistance

(a) Past  $15600

(b) Future  $5775

6.        Interest on past domestic assistance  $6350

7.        Treatment expenses

(a)   Past  $29,252.96

(b)   Future   $2000             

Total  $422,934.96

Orders

1. The orders that I make are:

1.        Judgment for the plaintiff in the sum of $422,934.96.

2.        Unless any party makes an application to be heard in relation to the question of costs before 4pm on 4 September 2013 the defendant is to pay the plaintiff’s costs of the proceedings as agreed or assessed.

3.        The usual order as to interest.

I certify that the preceding one hundred and thirty-six numbered (136) paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Master Mossop.

Associate:

Date:                 1 August 2013

Counsel for the plaintiff:  Mr P Nolan  
Solicitor for the plaintiff:  Australian Government Solicitor
Counsel for the defendant:  Mr J Pappas
Solicitor for the defendant:  Sparke Helmore
Date of hearing:  3 June – 7 June 2013
Date of judgment:  1 August 2013