Klazidis v Hellenic Club Ltd t/as Alpha Restaurant

[2020] NSWDC 43

District Court

New South Wales

Medium Neutral Citation:	Klazidis v Hellenic Club Ltd t/as Alpha Restaurant [2020] NSWDC 43
Hearing dates:	27-28 February 2020
Date of orders:	20 March 2020
Decision date:	20 March 2020
Jurisdiction:	Civil
Before:	Smith SC DCJ
Decision:	1. Verdict for the plaintiff. 2. The defendant pay the plaintiff damages in the amount of $47,868.45.
Catchwords:	TORTS – Negligence – Personal Injury – expert reports – experts not required for cross examination – requirement to prove facts of underlying opinion – credibility finding.
Legislation Cited:	Civil Liability Act 2002 (NSW), ss 5D, 15(2)
Texts Cited:	DSM-IV: Diagnostic & Statistical Manual of Mental Disorders, Text revision, 4th ed DSM-V: Diagnostic & Statistical Manual of Mental Disorders, 5th ed
Category:	Principal judgment
Parties:	Fotina (Tina) Klazidis (Plaintiff) Hellenic Club Ltd t/as Alpha Restaurant (Defendant)
Representation:	Counsel: Mr L Morgan (Plaintiff) Mr A Ahmad (Defendant)   Solicitors: Turner Freeman (Plaintiff) Holman Webb (Defendant)
File Number(s):	2019/106449
Publication restriction:	Nil

Judgment

1. On 6 April 2016 the plaintiff was given a notice of termination of her employment for reason of redundancy. She had been working as the office manager of a real estate agent in the inner west of Sydney for approximately three years. On the evening of the following day, she and two former colleagues went to dinner at Alpha Restaurant in the city. As a waiter was bringing a drink to the plaintiff he accidentally dropped the glass onto the table. The glass shattered on impact. A shard from the glass went into the plaintiff’s left thumb causing a complete rupture of the extensor pollicis longus tendon which required debridement and repair under surgery.

2. The plaintiff commenced these proceedings in 2019 seeking damages for non-economic loss, economic loss both past and future, domestic care and out of pocket expenses. The defendant has admitted liability and accepts that the non-economic loss suffered by the plaintiff is 25% of a most extreme case and is entitled to out of pocket expenses ($4,868.45) but argues that the plaintiff is not entitled to any other damages.

3. The plaintiff has exaggerated the effects of her injury and has not established either that she has any need for domestic assistance or has suffered a loss of earning capacity as a result of her injury. For those reasons, there will be judgment in her favour limited to an award for non-economic loss and out of pocket expenses.

Background

4. The plaintiff was born in Adelaide in 1970. When she was 20 she moved to Sydney with her boyfriend whom she later married. Apart from some time in 1998 after the birth of her son, the plaintiff worked consistently in various positions. In 1998 after her return to work she worked as a personal assistant to the Human Resources Manager in a large law firm in Sydney. The plaintiff suffered a back injury during the course of that employment. It was common ground that that injury had no impact upon the claims in these proceedings.

5. From 2005 to 2013 the plaintiff worked as the manager of a chair massage vending business which she operated with her husband. When her marriage ended in 2012 her husband kept that business and she left and took up employment as an office manager for a real estate agent, Ray White Inner West.

6. The plaintiff’s duties at Ray White included providing administrative and executive assistant support to two directors of the firm and effectively managing its several offices. She processed monthly reports, payroll, and other matters, managed and trained a number of staff, answered telephones, responded to email enquiries and undertook certain marketing activities. The plaintiff was proud of her work and, on the evidence which I accept, she was very competent at it.

7. On 6 April 2016 the plaintiff received a letter of termination by reason of redundancy; she was given two weeks’ notice as well as a redundancy payment of $11,678.94. That amount represented seven weeks payment based upon her three years’ of service together with an amount for an extra week given that she was over the age of 45 years at the time. Her nett pay per week was, at that time, $1,234.00.

The Accident and the Injury

8. On 7 April 2016 the plaintiff’s thumb was injured in an accident already described above. The plaintiff went from the restaurant to the Emergency Department of St Vincent’s Hospital where she had her wound cleaned and x-rayed. She was provided with a referral to the Sydney Hospital hand clinic. On 9 April 2016 her thumb was operated on by Dr Tawfik at the Sydney Hospital. She left hospital the same day with an appointment to see Dr Tawfik on 18 April 2016.

9. On 12 April 2016 the plaintiff went to see her general practitioner (GP), Dr Calligeros, who wrote that the plaintiff presented with her “left hand in a splint but complaining of right arm pain and tenderness along the veins”. He diagnosed thrombophlebitis and cellulitis.

10. She went back to see Dr Tawfik the following day. Dr Tawfik stated the following in his report to Dr Calligeros:

“On the right side she has developed thrombophlebitis and cellulitis likely from IV cannula … recommended that Fotina obtain a resting splint to wear for the next 24 - 48 hours … recommended she elevate the hand above the level of her heart for the next 24 - 48 hours.”

11. The plaintiff makes no claim in respect of the injury to her right arm.

12. On 14 April 2016 Dr Calligeros noted that he had seen the plaintiff and that the cellulitis in her right arm had settled but the thrombosed vein was persisting.

13. On 18 April 2016 the plaintiff attended on Dr Tawfik whose notes state:

“… Her wound has already sealed and healed well. She has dissolving monocryl sutures and I have placed a simple steristrip over the top and trimmed the ends.

…

The right hand cellulitis has settled with no erythema, reduced swelling and a return of her normal skin creases. …”

14. On 16 May 2016 the plaintiff again saw Dr Tawfik. In his report, Dr Tawfik stated:

“… She is going to see a psychologist to help with her post traumatic stress and anxiety.

She is currently looking for a job.

She is spending time in a thumb based splint. The IP joint is very stiff and I have encouraged her to really work on range of motion.

… There is no evidence of infection. It is my understanding that she has had serial ultrasounds with no progression which is good. I did reassure her that the pain should settle with time and that it can take many months for the superficial blood clots to resorb. Tina was discussing seeing a vascular surgeon for this which in my opinion would be a good idea for reassurance.

Tina will continue to work on hand therapy and I will review her in 4 weeks time. …”

15. The plaintiff again saw Dr Tawfik on 14 June 2016 who wrote:

“… Her range of motion in her left thumb is improving and she is no longer in a splint.

A week ago she started to develop pins and needles in her left hand particularly at night which sometimes wakes her up and requires her to shake her hand. It does sound like early carpal tunnel syndrome. She had no symptoms prior to this injury.

She is also developing pain over the 1st extensor compartment which is tender today indicating early de Quervain’s of the left wrist.

She has not yet seen a vascular surgeon for the superficial blood clots in the dorsum of her right hand.

For the carpal tunnel syndrome, if symptoms do not improve in the next 2-3 weeks then I would recommend nerve conduction studies and I have given Fotina a referral for this. …”

16. On 12 July 2016 Dr Tawfik wrote:

“I reviewed Fotina today whose left thumb range of motion continues to improve. She continues to have carpal tunnel symptoms particularly at night with pins and needles in the digits and numbness in her thumb. She also has ongoing left de Quervain’s symptoms.

I have given her a referral for nerve conduction studies and I have recommended she purchase a splint for the thumb and wrist to wear at night. …”

17. On 10 August 2016 the plaintiff attended a hand therapist, Vanessa Grant. In her report Ms Grant wrote:

“… Her post operative rehabilitation was complicated by a painful infection of the IV access site to the right hand. Initially Fotina required a period of immobilisation of both hands and significantly impaired her ability to complete ADLs for herself and her son. She had difficulty coping from the initial stages. Her tendon repair is now healed however her function remains affected by the development of secondary dequervains in the left thumb and carpal tunnel syndrome of the right hand.

From the initial appointment Fotina presented as highly anxious, teary and distressed about how she will manage. She was reluctant to complete her rehabilitation exercises due to heightened pain levels and a fear disrupting her repair. Close to the time of her injury she had also been retrenched from her job.

Fotina’s mental health has progressively worsened over the last 4 months. Her mood is low, she remains teary and anxious. She has been actively looking for work, attended interviews but unable to secure work. Her financial situation is strained and she is now reliant on her parents for assistance. Fotina is accepting that she needs to receive psychological treatment but at this stage is financially limited to proceed. …”

(Without alteration)

18. On 25 August 2016 the plaintiff again saw Dr Tawfik who wrote:

“I reviewed Fotina today. She has not yet had the nerve conduction studies for the left hand but does continue to have carpal tunnel symptoms. This does respond to a Grenace splint which she wears towards the end of the day and night. Her de Quervain’s pain is settling and her range of motion is improving. She continues with hand therapy and a home exercise programme.”

19. On 20 October 2016 the plaintiff again saw Dr Tawfik. Dr Tawfik wrote in his report:

“Fotina continues to have carpal tunnel symptoms with pain radiating up her left forearm. I have given her a referral to Prince of Wales Public Hospital so she can have nerve conduction studies performed under Medicare and I have also referred her to Sydney Hospital’s Hand Therapy Department for ongoing treatment of de Quervain’s and EPL tendinosis. …”

20. On 27 January 2017 the plaintiff saw Dr O’Connor, another GP practising at the same practice as Dr Calligeros. Dr O’Connor recorded:

“… This lady reports low mood and symptoms of anxiety over the last 5 months, which has worsened over the last 6-8 weeks. With thoughts of not wanting to be here, however, no current plan and has protective factor in her Son. Emergency contacts discussed. Kindly requesting review of this lady and advice regarding development of coping strategies to manage her symptoms of anxiety and come to terms with her current previous health issues. Mental health care plan attached.”

Attached to her report there was a mental health plan which stated:

“Low mood, teary. Adjustment disorder following injury to left hand, requiring surgical repair and significant rehabilitation. Complicated by infection at IV site. Unable to work. Subsequent financial strain. Feeling lonely. Difficulty sleeping, initial insomnia and waking throughout the night. Fatigue.”

21. Dr O’Connor referred the plaintiff to a clinical psychologist, Mr Muhamad Ziedni, who the plaintiff saw over six fortnightly sessions starting on 10 February 2017.

22. In the meantime, the plaintiff had seen Dr Tawfik again on 6 February 2017 who noted the following:

“I reviewed Fotina today. She has not yet obtained nerve conduction studies. She has asked me to refer her to someone closer to the city so I have referred her to Sydney Neurology for nerve conduction studies for possible left carpal tunnel syndrome. She continues to have pins and needles and numbness at night. She now describes a heavy sensation in her hand and difficulty with fine motor control and says that her fingers do not move when she wants them to such as when typing. She does have a normal sensory and motor examination today when examining the ulnar nerve. She has not been able to make an appointment with hand therapy at Sydney Hospital and tells me that she will return to Vanessa at Sydney Hand Therapy. I will review her once she has had the nerve conduction studies.”

23. The plaintiff resumed treatment with Mr Ziedni on 28 March 2018 and again consulted Dr Tawfik on 14 May 2018. Dr Tawfik reported:

“…

She continues to have altered sensation and numbness in her left hand which she describes as all the fingers with what she says is a flickering sensation over the proximal forearm. I was unable to see this today. She feels her hand does not move as normal when she tries to type.

Clinically, she has altered sensation in a median, ulnar and radial nerve distribution to light touch. Motor function of the median, radial and ulnar nerve is essentially intact. Finger and thumb range of motion are normal. …”

The plaintiff underwent nerve conduction studies which were essentially normal. Dr Tawfik went on to say:

“… She has a negative TineI’s over the ulnar nerve at the elbow.

I am not sure why Tina continues to have these neurological symptoms. I suggested a formal neurologist review to see if there was a more proximal cause for her ongoing symptoms if she feels the symptoms are troublesome enough. …”

Employment after the accident

24. As noted above, the plaintiff told Dr Tawfik that she was looking for a job in May 2016 and told the hand therapist, Ms Grant in August 2016 that she had been actively looking for work and had attended interviews but was unable to secure work.

25. In September 2016 the plaintiff submitted a number of job applications with Seek, an online employment agency. These applications were in respect of a number of different roles including personal assistant/senior administrator, area maintenance manager and retail lease administrator.

26. In her oral evidence the plaintiff said that she made many applications for jobs from about September 2016.

27. She did not, however, obtain employment until 14 September 2017 when she was employed as a client officer by Aerocare undertaking work for Tiger Air Australia. The plaintiff’s curriculum vitae says that her duties in this job include check-in supervisor, airport movement co-ordinator, marshalling, boarding and disembarking flights, other duties including baggage claims, assisting customers with special needs, problem solving and handling complaints.

The plaintiff’s evidence

28. The plaintiff’s evidence is critical to her case. Her evidence was necessary to provide a basis for the assessment of any loss that she suffered as a consequence of the negligence of the defendant and in particular, whether any injuries she suffered impacted on her ability to work. The importance of her evidence is heightened by the fact that the plaintiff’s medical evidence, some of which is set out above, was admitted on the basis that it could not be relied upon to establish the truth of what the plaintiff had told each of the doctors and other health professionals. For that reason, I have paid close attention to her evidence. While I do not give much weight to minor inconsistencies in her evidence given the passage of time, my overall impression of the plaintiff was that she was not a credible witness and that she exaggerated her injuries to such an extent that I cannot rely upon her evidence unless there is some corroboration of it. The bases for that impression include the following.

29. In her evidence in chief the plaintiff said that she was unable to mop, iron, unload clothes from the dryer, fix beds and was unable to move a pot from the stove or the oven. In respect of paid work, she said that she could not do the roles that she used to including answering telephone calls, typing as she used to be able to do or to do paperwork.

30. In spite of that evidence, she accepted under cross-examination that before she obtained the job at Tiger Air she had applied for jobs such as to be part of the wait staff of the Merivale Group and accepted that that might include carrying numerous drinks, glasses or plates. When it was suggested to the plaintiff that she applied for those jobs because she felt able to do those things, she equivocated, saying that ability was very different to requiring. In other words, her evidence was that she applied for jobs that she could not do because she was desperate for paid employment.

31. I note that the plaintiff had also applied for jobs as an executive assistant in hospitality, work at a real estate agent, food and beverage attendant at Qantas and sales positions at Max Mara and Prada.

32. I accept that making those job applications may have been driven by pressure to obtain work to support herself and her son; however, I do not accept that she felt unable to perform work that might have been required as a member of wait staff or a food and beverage attendant which clearly would have included carrying heavy items. Those job applications were, in other words, completely inconsistent with the plaintiff’s evidence about her abilities.

33. So too was the evidence about her current employment. Under cross-examination she was asked whether she picked up bags by herself and she said that she did with her right hand if they were not heavy. The plaintiff accepted that she used a walkie talkie but again said that she used her right hand. She accepted that she used the telephone, something inconsistent with her evidence in chief. The plaintiff also said that she supervised people but denied that she typed during the job.

34. After she gave this evidence some surveillance footage of the plaintiff at work was played to her. This footage (Ex 8) showed the plaintiff lifting baggage with her left hand (6.02), using a walkie talkie with her left hand (7.55), typing with both hands (6.38), using a telephone in both her right hand (16.27) and left hand (21.27). It shows the plaintiff carrying, a large plastic water bottle in her left hand for some time (23.09), using her mobile phone with her left hand (23.45), carrying her phone and water bottle with her left hand (25.19), a shirt top, takeaway lunch and bottle in her left hand (25.31), her purse and lunch (27.20), a shoulder bag (28.28) and shopping bag (28.32) all with her left hand, sometimes when her right hand was free. She is shown supervising another employee for over 20 minutes (40.30ff) and indeed lifting what appeared to be a relatively heavy office type chair, at one point holding it up with her left hand alone (53.10). I consider that the footage was entirely inconsistent with the plaintiff’s evidence in chief and indeed, with a good deal of her evidence in cross-examination.

35. The plaintiff sought to explain these inconsistencies by saying that she had not said that she could not use her left hand, but only that it hurt if she used it. However, that explanation was false. Her evidence was, as I have summarised, that she could not use her left hand to perform a number of tasks. This explanation casts further doubt on her credibility.

36. The plaintiff was also an unreliable historian in consultation with various health professionals.

37. As I have recorded above, the note of Dr Tawfik was that on 16 May 2016 the plaintiff told him that she was at that stage, looking for work. He also said that she was going to a psychologist. There is no other evidence that the plaintiff was going to a psychologist at that stage and, to the contrary, the evidence suggests that the first time she saw a psychologist was in February 2017. The plaintiff’s evidence in cross-examination in respect of what Dr Tawfik wrote about her looking for work was that she did not remember doing it as early as May 2016 but that she had been intending to do so. That may well be the case; however, accepting, for present purposes that Dr Tawfik wrote what he heard, this demonstrates that the plaintiff was not telling Dr Tawfik the truth. At the very least, she was embellishing the truth for some purpose which is not apparent to me. Alternatively, she told Dr Tawfik the truth and lied in her evidence.

28. Dr McGlynn, a hand surgeon qualified by the plaintiff, wrote in his report (Ex 1, p 3) that the plaintiff told him that she had “started to look for new employment six months before gaining employment in September 2017”. She told Mr Ziedni, her treating psychologist, that she was incapable of participating in any job search activities and only did so when required for the purposes of receiving Centrelink payments: Ex 1, p 43. The other evidence establishes that the plaintiff did not receive Centrelink payments until 2017 and the plaintiff gave evidence that she had made hundreds of job applications in the period starting September 2016.

29. The plaintiff told Dr Dinley, an occupational therapist qualified by the defendant, that she had become depressed after her mother left and financially struggled as she only had Centrelink payments and did not have the motivation or physicality to apply for employment: Ex 10, p 35. Once again, that is inconsistent with the plaintiff’s own oral evidence including that she had been financially supported by her parents and did not apply for Centrelink payments until much later.

30. The plaintiff told Dr Bertucen, a consultant psychiatrist qualified by her, that she eschewed dating or interpersonal relationships as she perceived herself as ugly and disfigured: Ex 1, p 33. However, she told her GP in January 2017 that she had had the same partner for 5 years (Ex 9). In her evidence the plaintiff explained that she was not in a relationship with that person. I infer that she was having a sexual relationship with that person, a fact inconsistent with what she told Dr Bertucen. She also told her GP in July 2019 (shortly after she had seen Dr Bertucen) that she was seeing a male partner occasionally (Ex 9, p 6) and her medical records show that she had had a pregnancy test in August 2018 (Ex 9, p 12).

31. The medical reports from Dr Tawfik also reveal that in mid-2016 he had given her a referral for nerve conduction studies. The plaintiff did not, however, undertake the tests until 2017. The plaintiff’s evidence was that she did not undertake those studies for some time because she could not afford to. However, that is inconsistent with the evidence of the notes of Dr Tawfik who noted on 20 October 2016, as set out above, that he had given her a referral to a hospital so that the nerve studies could be undertaken on Medicare. In other words, she had the opportunity in October 2016 to have the nerve studies undertaken without paying for them herself. Further, Dr Tawfik noted in early 2017 that she still had not undertaken the studies, apparently because the hospital which he had referred her to was inconvenient to her and she asked for a referral to a closer hospital.

32. In her evidence in chief, the plaintiff gave evidence that in April 2016 she had been looking elsewhere for work because she had an inkling that she might be made redundant. She said that recruiters had lined up three interviews for her but she did not attend them because of her injury. However, this evidence changed in cross-examination where she said that she had spoken to recruiters “just in case” to look out for any positions and that she had several positive responses from those recruiters by telephone calls who, according to her evidence, were going to line up interviews. That is a minor inconsistency which, of itself would not cause me to doubt the plaintiff’s credit, but seen with each of the other matters detracts from her general credibility.

33. The plaintiff also said in evidence in chief that in March 2019 she moved house from Marrickville to Mascot for two reasons: first, it was easier for work, and secondly, because the new flat was easier to maintain. However, under cross-examination she conceded that she had to leave her home in Marrickville because the owners had sold it. She effectively conceded that this was the real reason for her moving and that her evidence in chief was false.

34. Taking these matters together, and having regard to the plaintiff’s demeanour while giving evidence, I have formed the view that, at the very least, the plaintiff embellished her evidence in important respects. Most importantly, she has exaggerated the impact and duration of the injury to her left thumb. She did so in order to enhance her case.

Expert evidence

45. Each party relied on a number of expert reports. None of the authors of those reports was required for cross-examination. The immediate consequence of that is that the Court is left to determine any inconsistencies between the opinions given without the benefit of hearing from the experts themselves. Further, it means that there was no conclave or agreed position on any aspect of the medical evidence. Whether or not an expert is required for cross-examination is a matter for the party on whom an expert report is served. It appears to be more and more common for parties not to seek to cross-examine experts on their opinions. That may lead to a faster and cheaper hearing; however, it carries with it a number of risks.

46. The first of those is, of course, that where there are competing opinions, each of which is adequately explained, the party with the onus of proof risks a finding that the burden has not been met.

47. Secondly, in the absence of oral evidence, it is difficult, if not impossible for competing opinions to be adjusted and for there to be some jointly agreed position. That, in turn, means that each party may be required to prove the facts underlying the opinion relied on. That is especially so where, as here, a report is admitted on a limited basis so as not to establish the truth of any hearsay material in it.

48. As will be seen, the plaintiff’s decision not to require the defendant’s experts for cross-examination has had the ultimate effect that I give little weight to some of the opinions of those experts and, ultimately, that the plaintiff has not established her claims. The germane parts of each report are set out below.

Physical injury

49. In respect of the plaintiff’s physical injuries, the plaintiff relied on a report from Dr McGlynn, a plastic, reconstructive and hand surgeon. Dr McGlynn saw the plaintiff on 25 February 2019 and provided a report on 27 February 2019. The critical aspects of his report are as follows:

“EXAMINATION

…

On inspection there was a scar running across the dorsum of her left thumb 1cm distal to the MCP joint, 20 mm x 1 mm, hypopigmented, flat with no trophic features. There was no other visible abnormality on the left hand.

There was some restriction of active left thumb movement. IP joint flexion was from +20° to 80° on the right and +20° to 50° on the left; MCP joint flexion was from 0° to 40° on both sides; CMC joint adduction was to 0cm right and to 3 cm on the left; radial abduction was 60° on the right and 50° on the left; thumb opposition was 8 cm on the right and 6 cm on the left.

The active ranges of finger, wrist, elbow and shoulder joint movements were normal and the same on both sides.

Maximum grip strength was 25 kg on the right and 9 kg on the left.

Because of her complaint of inability to move left fingers from side to side, abduction and adduction strength of her fingers was tested. She was able to actively abduct and adduct all left fingers with similar force against resistance as for the right hand.

There was subjective reduction in sensations of the left thumb, index and middle fingers and adjacent dorsum of hand with sensation appreciated as being ‘different’. This is the sensory distribution of the superficial radial nerve. I explained to her that this was inconsistent with the site of the thumb laceration and was unlikely to be due to that injury. Any injury to the superficial radial nerve supplying all these areas would have to be near the wrist to produce the sensory symptoms that she complained of.

…”

(Emphasis in original)

50. Dr McGlynn expressed the opinion that the plaintiff had “some loss of left thumb active range of movement and reduced left hand grip strength”. He said that based on his findings at the examination, “she requires a 5 kg lifting, carrying, pushing, pulling limit with the left hand”. He said that the reduced range of movement and reduced left hand grip strength were entirely due to the thumb laceration sustained on 7 April 2016.

51. The defendant qualified Dr Walker, a consultant neurologist who saw the plaintiff on 3 September 2019 and provided a report on the same day. The summary of his opinion formed at the examination was as follows:

“Ms Klazidis suffered a laceration to the dorsum of her thumb as a result of an accident on 7 April 2016. She lacerated the extensor pollicis longus tendon which had to be sutured. This tendon is involved with the extension of the distal thumb, and has nothing to do with grip, which is a flexion action. There was no suggestion that any nerve was injured in the accident, and her sensory symptoms developed some weeks later and remain to this day unexplained. The main problem was that she had lost her job the day before the accident, and of course found it difficult to find work, and all of this seemed to have a very negative effect upon her mental health, which became the major issue.

She has been left with very little in the way of any physical disability.”

52. The main difference between the two opinions is that Dr McGlynn considered that there was a loss of grip strength which was caused by the accident whereas Dr Grant was of the opinion that grip strength had nothing to do with the injury suffered. Unlike Dr McGlynn, Dr Grant explained the basis for his opinion and for that reason his opinion deserves greater weight. For that reason, I accept his opinion that the laceration of the extensor pollicis longus tendon had nothing to do with grip and that the injury to that tendon did not affect the plaintiff’s grip at all. I also find that the plaintiff has been left with very little by way of physical disability.

Psychological evidence

53. The plaintiff relied upon two reports: one from Mr Ziedni, the plaintiff’s treating psychologist and Dr Bertucen, a consultant psychiatrist. Mr Ziedni prepared a report dated 12 March 2019. He explains that the plaintiff had completed an examination with him on 24 July 2017 and had resumed treatment with him on 28 March 2018. He refers to an interview with the plaintiff (Ex 1, p 40.1) and says that he undertook a number of tests of the plaintiff but it is not entirely clear when that interview took place. I deduce that it was in early 2019, between 11 January 2019 when he was first qualified and 12 March 2019 when he prepared his report.

54. His diagnosis was that the plaintiff manifested “symptoms consistent with a reactive depression or non-melancholic depression” which he explained was not a “pure” type of depression. He said, at Ex 1, p 42.3, that at least three months following the accident he believed that she suffered symptoms consistent with the Diagnostic and Statistical Manual IV Text Review of Acute Stress Disorder [1] and that by the time she saw him (February 2017) “she continued to manifest symptoms of reactive depression or non-melancholic depression”. He diagnosed a major depressive episode based upon his clinical interview and evaluation with the Mood Assessment Program. Mr Ziedni said that, at the time he first saw the plaintiff he “considered that she had no capacity to return to any type of employment” and “showed no physical or psychological capacity to participate in any job search activities”. Further, that she was “unable to move her right thumb and experienced difficulties in dealing with her pain that were constant and incapacitating”: Ex 1, p 43.1.

    1. DSM-IV: Diagnostic & Statistical Manual of Mental Disorders, Text revision, 4th ed.

55. He said, at Ex 1, p 43.8, that it was likely that the accident that occurred to the plaintiff, had been the main contributing factor to her incapacity until the time when she initiated looking for work, and that the accident itself, was the onset of her psychological reactions and suffering.

56. Mr Ziedni said that it was likely that the plaintiff only had moderate prognosis as she continued to rely upon her son to do activities around the house and has not returned to a full-time work capacity: Ex 1, p 44.2.

57. Dr Bertucen, the consultant psychiatrist qualified by the plaintiff, had a more conservative opinion about the plaintiff’s mental state. He noted that the term “reactive depression”, used by Mr Ziedni in his report, was not a term currently utilised in the accepted psychiatric/DSM-V [2] literature [3] . Further, from a psychiatric perspective, his opinion was that the plaintiff did not have any restrictions with regard to her capacity for work in occupations familiar to her such as personal assistant or clerical roles. He opined that the plaintiff had suffered from a chronic adjustment disorder, which had evolved over time into a major depressive disorder, currently in partial remission but which has not resolved.

    2. DSM-V: Diagnostic & Statistical Manual of Mental Disorders, 5th ed.

    3. Mr Ziedni based his opinion on the earlier version of that text: DSM-IV.

58. As a result, Dr Bertucen felt that there was an indication for regular psychiatric treatment to benefit the plaintiff including psychological therapy and an overall assessment by a psychiatrist regarding pharmacotherapy.

59. The defendant qualified Dr Smith who examined the plaintiff on 17 September 2019 and prepared a report the following day. In addition to his examination, he also reviewed and apparently relied upon a number of documents including the reports of Dr McGlynn, Mr Ziedni and Dr Calligeros.

60. Dr Smith came to an even more conservative view of the plaintiff’s mental well-being than Dr Bertucen. He explained his opinion, at Ex 10, p 58.9, that, from a psychological point of view, the plaintiff had developed a modicum of psychological symptomatologies consistent with an adjustment disorder with mixed depressed and anxious mood, mild in duration. He disagreed with the opinion of Mr Ziedni and Dr Bertucen that there was, or had been a major depressive disorder, explaining that there were a number of symptoms required for that diagnosis which were absent in the material before him. Further, he rejected the possibility of a post-traumatic stress disorder in the absence of certain symptoms.

61. Dr Smith expressed an opinion that the plaintiff’s prognosis was relatively good and did not expect any deterioration to occur: Ex 10, p 60.4. He also said that the plaintiff was not incapacitated to undertake her work as a result of the accident in question, but noted that she required a return to work plan that provides gradual return to full-time capacity. He said that she is capable of working full-time and with no restrictions from a psychiatric point of view: Ex 10, p 60.6.

62. These opinions give a range of views about the seriousness and duration of the psychological impact of the plaintiff’s injuries sustained on 7 April 2016. A difficulty that impacts upon each of the opinions is that they are, to varying degrees, reliant upon the histories provided by the plaintiff herself. As I have explained, to the extent that those histories are contained in the reports, especially those prepared for the plaintiff (and which were provided to Dr Smith), they could not prove the truth of the histories given by the plaintiff. Nowhere in her evidence did the plaintiff give the same history as was given to each of these doctors and, in particular, to her treating psychologist Mr Ziedni. On that basis alone, the weight to be given to these reports is significantly affected. There can be little weight given to Mr Ziedni’s opinion which was largely based on the history given by the plaintiff. That also impacts on the other psychiatric reports, which were also based to a significant degree upon the histories provided by the plaintiff.

63. Further, for the reasons given above, the plaintiff gave inaccurate histories to a number of health professionals including Mr Ziedni. In particular, Mr Ziedni appears to have been under the impression that the plaintiff was unable to work at all, and indeed was entirely incapable of applying for work. I do not accept that that was the case.

64. That said, there is a consistent strand of material which was before each of the experts in this respect to the effect that the plaintiff was at least feeling depressed, low in mood and ruminative after her injury. Given that consistency, I am satisfied on balance that the plaintiff did experience an adjustment disorder with mixed depressed and anxious mood. In his report, Dr Smith came to that opinion and said that it was “mild in duration”. He did not explain precisely what that meant, but I infer from his report and in particular his conclusion, that the plaintiff was not affected in her work by that disorder, that it had entirely resolved at least by September 2017 when the plaintiff commenced working for Tiger Air and at the latest by the time Dr Smith saw her in September 2019.

65. Neither Dr Bertucen nor Dr Smith give an opinion that any psychological impact of the injury meant that the plaintiff was unable to perform work or, indeed, that her capacity to work was in any way reduced. It was only Mr Ziedni who gave an opinion to that effect. However, for reasons that I have given, I give Mr Ziedni’s opinion about that no weight. As a consequence, and because I have not had the benefit of oral evidence from any of the experts or indeed a joint opinion about any matter, I am not satisfied that any psychological impact suffered by the plaintiff led to any incapacity to work.

Occupational therapy evidence

66. The plaintiff relied upon a report from an occupational therapist, Venesha Moodley dated 29 October 2019. That report can be dealt with very briefly. Ms Moodley gave an opinion that the plaintiff’s injuries had given rise to a need for domestic assistance both in the past and in the future. However, her opinion is based upon certain functional difficulties, most specifically the plaintiff’s lack of grip strength and fine motor coordination involving the left hand. There are two problems with this. First, her opinion relies upon the history given to her by the plaintiff and for reasons I have explained, that history has not been proven to my satisfaction or at all. Secondly, the medical evidence that I have accepted does not establish that the injury to the plaintiff’s thumb caused any loss of grip strength or indeed any fine motor coordination involving the left hand. For that reason, any need for domestic assistance was not caused by the injury suffered on 7 April 2016.

67. In light of my conclusion about Ms Moodley’s evidence, it is unnecessary for me to address the defendant’s evidence being a report dated 14 August 2019 from Dr Dinley.

Conclusions on the plaintiff’s injuries and damages

68. The plaintiff suffered a laceration to the dorsum of her thumb as a result of the accident on 7 April 2016. This required her to wear a sling for a few days and a splint for some weeks or months afterwards. She subsequently suffered a number of symptoms including tingling, numbness and loss of grip strength that were not caused by that injury. The plaintiff also suffered a mood disorder for a short time, exacerbated by her inability to find work; however, neither this nor or her hand injury interfered with her ability to work, to find work or to perform domestic work after her mother left to return home to Adelaide. The plaintiff has little or no ongoing disability.

69. Put in terms of the Civil Liability Act 2002 (NSW) (CLA), the negligence of the defendant was a necessary condition of the injury to the plaintiff’s left thumb and the mood disorder suffered by her for a short time: s 5D(1)(a). It is also appropriate for the scope of the defendant’s liability to extend to those matters: s 5D(1)(b). However, the defendant’s negligence was not a necessary precondition to any loss of grip strength or fine motor coordination of the plaintiff’s left hand or of any inability of the plaintiff to perform work: s 5D(1)(a).

68. On the basis of those findings, the plaintiff has not established the need for any commercial domestic assistance, future medical or other expenses, or any loss of earning capacity. Her claims for damages for commercial care, future expenses and past and future loss of earnings are rejected. The plaintiff conceded that she had not established an entitlement to past gratuitous care: s 15(2) CLA.

69. The defendant conceded that the plaintiff is entitled to be reimbursed for out of pocket expenses in the amount of $4,868.45.

70. The defendant also conceded that, in light of the plaintiff’s injuries, seen as a whole, her economic loss represented 25% of a most extreme case. In my view, that figure is on the generous side; however, given the concession, I will make an award for non-economic loss on that basis. The plaintiff will be awarded $43,000.00 in respect of non-economic loss.

71. There will be a verdict for the plaintiff and an order that the defendant pay the plaintiff damages in the amount of $47,868.45.

**********

Endnotes

Decision last updated: 30 March 2020