Lawson v Bourke - [2008] NSWDC 100

CITATION: Lawson v Bourke [2008] NSWDC 100

HEARING DATE(S): 26-29 November 2007, 3-7 & 10 December 2007

JUDGMENT DATE:
18 June 2008

JURISDICTION: Civil

JUDGMENT OF: Sidis DCJ

DECISION: 1. Stood over to a date to be fixed to finalise the calculation of the judgment sum, deal with issues of costs and to enter final orders.
2. My reasons are published.

CATCHWORDS: MOTOR VEHICLE ACCIDENT - Credit - Whether plaintiff feigning physical/psychiatric injury and disability - Weight to be placed on psychological testing

LEGISLATION CITED: Motor Accidents Compensation Act 1999

PARTIES: Merrill Dawn Lawson
Kristy Bourke

FILE NUMBER(S): Newcastle 102/07

COUNSEL: H Halligan (Plaintiff)
S E McCarthy (Defendant)

SOLICITORS: Brazel Moore (Plaintiff)
McLachlan Chilton (Defendant)

JUDGMENT

1 Merrill Dawn Lawson was involved in a motor vehicle accident on 7 September 2002. She was a passenger in a car driven by her husband John Lawson. Their car was struck from the rear by a car driven by Kristy Bourke. There was some dispute concerning the precise circumstances of the accident but it was not disputed that the defendant was in breach of her duty of care to the plaintiff.

2 The plaintiff complained of significant physical and psychological injuries as a result of the accident. The issues were:

1 Whether the plaintiff’s evidence of injury, damage and loss should be believed.

2 The circumstances of the accident and the plaintiff’s immediate post accident presentation.

3 The nature of the injuries and disabilities suffered by the plaintiff as a consequence of the accident.

4 The compensation, if any, to be awarded for non-economic loss, past and future income loss, past and future domestic and attendant care services and past and future medical and other expenses.

3 The plaintiff was 48 years old at the time of the accident. She was 54 at the time of hearing. She was educated to School Certificate level and worked in a number of unskilled occupations, including a period as a nursing aide.

4 The plaintiff suffered a back injury in 1995 in the course of her employment as a nursing aide. She brought a claim for workers compensation that was settled in 1998.

5 While resident in Queanbeyan prior to the accident the plaintiff was a member of a rock and roll club where she attended weekly dance classes. She said that her employment related injuries resolved after 1998 and did not interfere with this activity. On returning to live in New South Wales, the plaintiff continued to dance socially.

6 The plaintiff’s evidence was that her activities at the time of the accident included working long hours in the family pest control business, attending the local club on Saturday nights, where she continued to dance, gardening, attending dinner parties, fishing in the boat she owned with Mr Lawson, playing with and occasionally caring for her four grandchildren.

ISSUE 1 – CREDIT

7 Determination of the veracity of the evidence presented by and on behalf of the plaintiff was essential to the assessment of her claim. In addition to the questions of credit that arose directly out of the plaintiff’s claims relating to the accident, the defendant raised issues involving the plaintiff’s business dealings, her attitude towards her taxation obligations, her dealings with Centrelink and her dealings with the defendant’s insurer.

8 This evidence indicated that the plaintiff and Mr Lawson were persons who were dishonest in the pursuit of their commercial, financial and personal affairs.

Dealings between Fumapest Hunter Pty Limited and Fumapest Group Pty Limited

9 The basis of the plaintiff’s claim for loss of income earning capacity was that at the time of the accident she and Mr Lawson were directors and shareholders in Fumapest Hunter Pty Limited, a company that profitably operated a pest control business under a franchise agreement with Fumapest Group Pty Limited in circumstances that provided each of them with a significant income. The plaintiff and Mr Lawson guaranteed the performance by Fumapest Hunter of its obligations under the agreement to Fumapest Group.

10 The franchise arrangement commenced on 1 August 2001 and formally ended in July 2003. It required that Fumapest Hunter pay to Fumapest Group a franchise fee of 10% of the gross turnover of the business. Clause 3.3 of the agreement provided for an advertising levy of 5% of turnover. Clause 12 provided for expenditure of this levy on advertising and administration.

11 Documentary material and the evidence of Mr DuBois, a director of Fumapest Group, indicated that the gross takings of the business of Fumapest Hunter were within expected ranges and that they were higher in the summer months of trading than in winter.

12 The plaintiff and Mr Lawson denied that they struggled financially at any stage while operating the business.

13 Mr DuBois said that Fumapest Hunter was in default in the payment of its franchise fees for a substantial part of the currency of the franchise agreement. Promised payments were not made, letters were received stating that a cheque would be sent but no cheques arrived. According to Mr DuBois, he was given excuse after excuse for why Fumapest Group was not paid. Mr DuBois said that Fumapest Group terminated the franchise arrangement by letter dated 30 July 2003. At that date, royalty payments were due from May 2002.

14 Copies of correspondence between Fumapest Hunter and Fumapest Group were produced by Mr DuBois to confirm his evidence. The correspondence indicated that, while receiving significant amounts in turnover, Fumapest Hunter was not meeting its contractual obligations.

15 No satisfactory explanation for this was offered by the plaintiff or Mr Lawson.

16 Mr Lawson claimed that Fumapest Hunter was in dispute with Fumapest Group over the cost of advertising in the Yellow Pages. He claimed that the 5% advertising levy was intended to cover this cost. However, clause 12.3 of the franchise agreement made it clear that responsibility for this cost was allocated to Fumapest Hunter. The plaintiff agreed that Fumapest Hunter did not pay any accounts for Yellow Pages advertising. She could not explain why the accounts had not been paid. She said Fumapest Hunter had sufficient funds to meet this expense.

17 Mr DuBois denied that he had been notified verbally or in writing of any such dispute.

18 Mr Lawson initially denied any responsibility for non-payment of royalties from May 2002. He claimed that payment of accounts was the responsibility of the plaintiff. This contradicted evidence that he and Ms Mason, the plaintiff’s sister, took over the administrative side of the business after the accident. Mr Lawson later said that he had instructed the plaintiff not to pay anything to Fumapest Group because of the dispute concerning the advertising bill. He said the non-payment of royalties and the advertising levy cancelled out the money that Fumapest Group owed Fumapest Hunter for advertising expenses. This statement was clearly a nonsense in the light of evidence that Fumapest Hunter at no stage paid the advertising accounts and, on Mr DuBois’ evidence, did not dispute its obligation to pay those accounts.

19 Mr Lawson denied that he and the plaintiff had acted dishonestly in withholding moneys due to Fumapest Group. He said he had told Mr DuBois what he was doing. He initially denied receiving any demands for payment from Fumapest Group, later agreeing that he had in fact seen them.

20 The evidence of the plaintiff and Mr Lawson on this topic was obviously untrue.

Hot Shots Pest Control

21 The plaintiff claimed that Fumapest Hunter ceased to trade because she and Mr Lawson could no longer continue with it. Mr Lawson said the plaintiff’s health reached the point where he was required to care for her and he was no longer able to give his attention to the business. He therefore forwarded a letter of resignation to Mr DuBois dated 15 July 2003.

22 Records of Fumapest Hunter that were in evidence included:

23 The only records of any trade after 6 February 2003 were pink copies of invoices or quotations dated in February, March, April and May 2003. The invoices indicated that some payments for services provided were made by cheque, some by credit card and some in cash. No bank statements were produced for this period of trade.

24 It was noted that these documents were not supplied to Mr Perry, the accountant retained to prepare tax returns for Fumapest Hunter. They were not produced to the defendant prior to the hearing. Mr Lawson denied that he had fabricated these documents in order to provide support for the plaintiff’s claim. The plaintiff could not explain why, if the business continued to trade, there were no other records for Fumapest Hunter between February 2003 and July 2003. Mr Lawson’s only explanation was that these documents were lost.

25 The plaintiff said she had probably abandoned the business mentally in February 2003. She denied that she had been aware that customers were left without service or that she and Mr Lawson had moved suddenly with notifying Fumapest Group or Mr DuBois.

26 The plaintiff said that the name Hot Shots Pest Control rang a bell with her. She said she was aware that Mr Lawson and her son, Shannon, were planning to go into business together and that they were looking for a name. She denied knowing that Shannon had registered Hot Shots Pest Control as a business name eight days prior to 6 February 2003.

27 The plaintiff denied any knowledge of a business operated by Mr Lawson and Shannon on the Central Coast under the name Hot Shots. She denied that she had undertaken office work for Hot Shots. She denied that she was aware of Mr Lawson’s daily business activities at that time or that she saw him driving with an advertisement for Hot Shots on the side of his vehicle. She then modified her answer by stating I’m absolutely positive; I’m not sure; I don’t remember.

28 The plaintiff said that she did not remember if an advertisement had been placed in the Yellow Pages for Hot Shots. She knew that this would have been expensive but did not know if she and Mr Lawson paid for it.

29 Mr Lawson denied that he walked out of the Fumapest Hunter business and abandoned its customers. He said that Hot Shots was Shannon’s business and, because Shannon was unlicensed, he supported him by allowing him to rely on his pest control operator’s license. He knew that an advertisement for Hot Shots had been placed in the Yellow Pages and said he paid the deposit of $1,200 or $1,400 for Shannon.

30 This occurred, he said, at a time when Shannon was living with him and the plaintiff at Wamberal. This was not so, according to the plaintiff’s daughter, Miss Jodi Mason. Miss Mason said that the business of Fumapest Hunter had ceased a few weeks or a couple of months after the accident. Shannon and his wife stayed with the plaintiff and Mr Lawson for about three weeks during a period when they were planning to move to the Central Coast. They were looking for permanent residences so they were out house hunting for most of the time. Miss Mason knew nothing of Hot Shots. She said she assumed that she would know if Mr Lawson and Shannon were conducting a business together under this name.

31 Shannon was not called to give evidence. It was said that he lived in Canberra and he remained in current contact with the plaintiff.

32 Mr Lawson denied that he had any share in the Hot Shots business notwithstanding that he paid for advertising, an office and the six telephone lines referred to in the advertisement that were installed at his home. He said that of these six lines, one only was for Hot Shots and the balance for Fumapest Hunter.

33 Mr Lawson denied that the plaintiff helped out in the office of the Hot Shots business. He said she was too depressed. He said the business had never flourished, that only about 15 jobs were done and they were paid for in cash in respect of which no tax was paid. All paperwork for the business was lost.

34 There were many inconsistencies in the evidence contained in the medical reports concerning the plaintiff’s situation as far as the pest control business was concerned and the question of whether or not she was aware of the Hot Shots operation.

35 Dr Isaacs reported that in December 2002 the plaintiff was working in the office of the business with assistance from her sister. Mr Peres in June 2003 reported that the plaintiff was unable to perform any functions in relation the business since the accident and that she wanted to return to managing the office that her sister was currently managing. Ms Bell in July 2003 referred to income generated from part time work that Mr Lawson was doing. In August 2003 Ms Bell reported that the plaintiff answered the telephone twice in the previous week, had responded to inquiries and booked a pest inspection. Further, the plaintiff was spending long periods of time in the office using the computer, sitting in the office chair and talking to her sister. Mr Peres reported in September 2003 that the plaintiff had the capacity to take a few calls for the family business. Dr Spitaller in September 2003 reported that the plaintiff was at that time working as an office manager for her husband’s pest control business. Mr Silcock reported in February 2004 that the plaintiff wanted to return to managing the family pest control business and that she could not be drawn on any other vocational option.

36 All of these reports were inconsistent with the claim that the plaintiff knew nothing of the Hot Shots business, since, on any version of the date at which Fumapest Hunter ceased to trade, it was not later than the end of July 2003.

37 Representatives of the defendant’s insurer reported similar inconsistencies. Ms Nicholson noted that the plaintiff stated on 16 September 2003 that she had resumed some work in the family business and was answering telephones. The plaintiff told her on 23 October 2003 that she was answering some telephone calls for the business. There was criticism of Ms Nicholson on the basis that her notes also recorded complaints of pain and reliance on medication. Those notes did, however, make it clear that in September and October 2003 the plaintiff was participating in a business that, by then, was not the business of Fumapest Hunter.

38 Ms Barrett said that on 23 September 2003 she telephoned Mr Lawson, who answered the call with the words: Hot Shots. On 18 February 2004, she telephoned the plaintiff who answered the call with the words: Hot Shots.

39 The evidence of the plaintiff and Mr Lawson on this topic was obviously untrue.

The letter of resignation

40 Mr DuBois told the court that Fumapest Group terminated the franchise agreement by letter dated 30 July 2003 because the phone lines had been disconnected for non payment of the account when a cheque was dishonoured. He said that Fumapest Group then paid this account. The account for Yellow Pages advertising had not been paid in the sum of $14,229. Fumapest Group paid this account. No monthly royalty summary sheets had been received for April, May or June 2003. No copy invoices were received for the period between 6.2.03 and 6.03. No royalty payments had been received since May 2002. Legal proceedings were threatened but not pursued for reasons of commercial reality.

41 Mr Lawson claimed that he had terminated the franchise by a letter sent in May 2003. The letter was called for but initially not produced. Mr Lawson said that the letter had been given to the plaintiff’s solicitor. This evidence was given on 3 December 2007. When recalled on Monday, 5 December 2007, Mr Lawson produced a letter, Exhibit JJ. It was dated 15 July 2003. Mr Lawson said he had sent this letter to Mr DuBois both by post and facsimile. The plaintiff’s solicitor was not called as to whether the letter was in his possession.

42 Mr Lawson said that he had not traded as Fumapest Hunter after May 2003 and he therefore initially thought the letter had been dated in May. He said he drafted and typed the letter after a telephone conversation with Mr DuBois about a Hot Shots advertisement. He said he told him that this was his son’s business. He also told Mr DuBois that he would resign from the franchise since he was not doing justice to the business because he was suffering from angina and the plaintiff was having problems.

43 Mr Lawson denied that the letter was written at a later stage as a cynical attempt to list the plaintiff’s complaints. He stated emphatically: we did not receive any letters from Mr DuBois.

44 When shown the letter of termination produced by Mr DuBois, Mr Lawson stated that it was the first time he had ever seen it. He agreed that the signature on an Advice of Receipt document of Australia Post indicated that he received a letter on 31 July 2003 and accepted that if the letter of 30 July 2003 came with the confirmation slip he obviously received it.

45 Asked if the evidence he had given was therefore false, he responded that quite possibly he had received the letter but had never read it.

46 The evidence of Mr Lawson on this topic was obviously untrue.

Taxation Obligations

47 Fumapest Hunter filed no tax returns or business activity statements for the period in which it traded. The plaintiff and Mr Lawson filed no personal tax returns for that period. No goods and services tax was remitted to the Australian Taxation Office.

48 They conceded that they were aware that these were obligations to which they were required to attend but said they did not get around to attending to them.

49 The plaintiff conceded that she had acted dishonestly in collecting goods and services tax that had not been passed on to the Australian Taxation Office. She expressed regret at this dishonesty.

50 Mr Lawson conceded that he knew that he had been collecting goods and services tax for the government and accepted that it could be said that he and the plaintiff chose to keep these funds. He said he had never considered whether this was dishonest.

51 Tax returns have since been prepared by an accountant instructed by the plaintiff and Mr Lawson. The accountant, Mr Perry, confirmed that he had specific instructions not to file the tax returns. The plaintiff was unable to explain why this instruction had been given notwithstanding that four years had passed since the business ceased. Mr Lawson said that he told Mr Perry not to file tax returns because he had no money to pay the tax.

52 Mr Lawson, taken to evidence in banking records, agreed that he and the plaintiff had been putting substantial sums of money into poker machines at various clubs while they had not been meeting their commercial and taxation obligations. He said he had been aware of his obligations in relation to goods and services tax but that he did not know how to go about remitting this tax to the taxation authorities.

53 The evidence of the plaintiff and Mr Lawson on this topic confirmed that they failed to meet their taxation obligations.

Centrelink

54 Before starting in the Fumapest Hunter business, the plaintiff relied upon a disability support pension. The pension was withdrawn in circumstances where Centrelink claimed that she had received it fraudulently. Repayment of $20,000 was demanded. The plaintiff said she is repaying this amount out of her current pension.

55 She said she had not to date disputed Centrelink’s claim but she proposed to do so at some time in the future in order to clear her name. Her delay in taking this action was because of her level of physical and mental suffering since the accident.

56 Mr Lawson said that in 1997, 1998 or 1999 he had attended with the plaintiff at the Tuggerah office of Centrelink to make sure that the plaintiff was receiving the correct entitlements. Some months later a woman came to their home and it transpired that he had inadvertently claimed workers compensation and ticked a box to indicate that he and the plaintiff were married.

57 This evidence was confused and difficult to follow but it appeared to suggest that the plaintiff did indeed receive a pension to which she was not entitled. It cast sufficient doubt on the plaintiff’s denial of overpayment and her intention to take action to clear her name to lead me to reject that evidence.

Advances by the defendant’s insurer

58 The defendant’s insurer provided a number of advances to the plaintiff on account of the ultimate settlement of her claim. The advances were made in response to claims of financial hardship.

59 One such claim was made on the plaintiff’s behalf by her then solicitors, Stacks, by letter dated 27 May 2003. It was claimed that the plaintiff was unable to work because of the injuries sustained in the accident and that Mr Lawson was required to take extended periods of time away from his business to care for the plaintiff. For the purposes of the claim, the plaintiff provided what were said to be two payslips issued by Fumapest Hunter for work done by Mr Lawson in the weeks ending 14 May 2003 and 21 May 2003.

60 There was evidence that strongly suggested that Fumapest Hunter no longer traded in May 2003. If it was trading, according Mr Lawson, very few jobs were being done. The plaintiff said that she and Mr Lawson were not paid wages in any formal sense by Fumapest Hunter. There were no other payslips for Mr Lawson in evidence.

61 Further, there was evidence that indicated that Mr Lawson was in fact continuing to undertake pest control work in the name of Hot Shots for a considerable period after May 2003.

62 It must be concluded therefore that the payslips were prepared for the specifically dishonest purpose of misleading the defendant’s insurer and inducing it to make advance payments on the basis of financial hardship.

Issue 1 - Findings

63 The evidence reviewed in this issue established that Mr Lawson lied to the court concerning:

1. The circumstances in which the franchise agreement between Fumapest Hunter and Fumapest Group was terminated. He deliberately lied when he denied receipt of Fumapest Group’s letter of termination of the franchise agreement. I prefer the evidence of Mr DuBois on this topic, including his evidence that he did not receive a letter of resignation from Mr Lawson. I find that Mr Lawson fabricated the letter, Exhibit JJ.

2. A dispute with Fumapest Group concerning the payment of advertising accounts. Mr Lawson’s own evidence on this topic was inconsistent. It was not supported by any documentary material and it was contradicted by Mr DuBois.

3. The circumstances in which the business of Hot Shots Pest Control was set up. Shannon, although apparently available, was not called to confirm that the business was set up for his benefit. There was no independent evidence that Shannon ever had anything to do with the business. The business continued to operate from premises occupied by the plaintiff and Mr Lawson for many months after Shannon had returned to Canberra. I find that the business of Hot Shots Pest Control was owned and operated by the plaintiff and Mr Lawson at least from July 2003 and, on the probabilities, from 7 February 2003.

64 The evidence reviewed in this issue established that the plaintiff lied to the court concerning:

1. The extent of her knowledge of the operations of Hot Shots Pest Control. The many references in the medical reports and in other evidence to the family pest control business and to the plaintiff’s participation in it at times when it was beyond dispute that Fumapest Hunter was no longer operating established that her evidence on this topic was false.

2. The extent to which she was aware that Fumapest Hunter had not paid the royalties due to Fumapest Group. Her claim for loss of income earning capacity was based on an assertion that she was in total control of the administrative aspects of the operations of Fumapest Hunter.

65 The credit of the plaintiff and Mr Lawson was undermined by:

1. Their evidence concerning the Centrelink payments.

2. Their evidence concerning their disregard of their taxation obligations.

3. The circumstances in which they procured payment of an advance from the defendant’s insurer.

66 In assessing the plaintiff’s claims of injury and disability the question to be determined will be whether she and the witnesses called to support her claims also deliberately lied to the court concerning the physical and psychological consequences to her of the accident.

ISSUE 2 – THE ACCIDENT

How it occurred

67 The accident occurred when the plaintiff was a passenger in a Ford Fairmont sedan driven by Mr Lawson. Their car was stationary on the Esplanade at Warners Bay, waiting for the car ahead to make a right hand turn, when the car driven by the defendant ran into the rear.

68 The plaintiff claimed that she had no memory of the accident itself. Mr Lawson and the defendant gave different accounts of the severity of the impact between their respective vehicles.

69 Mr Lawson’s evidence was that the force of the impact was sufficient to lift the back wheels of the Ford, and spin it side ways so that it slid down the road and into the rear of another car.

70 The defendant gave her evidence by telephone link. I was therefore unable to make any visual assessment of her demeanour. She said she had driven her Mitsubishi Mirage through a roundabout and was not driving fast immediately prior to the accident. She assessed her speed at about 30 kmh. She said application of her brakes, rather than impact with the Ford, stopped her car. She described what she said was not a full impact. The bonnet of her car dipped on application of the brakes and, because her car was smaller, it slid under the back of the Ford, which then pivoted on the bonnet and turned sideways.

71 The defendant agreed that her car was towed away because of the damage to the bonnet. She agreed that the Ford was turned at an angle. She said there was limited damage to the rear of the Ford. She saw some dents under it. She agreed that she had not inspected the Ford to check for other damage.

72 The defendant denied telling police that she had been travelling at 40 – 60 kmh. She denied that any third vehicle was involved. She said that if the Ford had collided with a third vehicle, the driver of that vehicle did not wait and was not present when police arrived. She assumed therefore that it was not damaged.

73 The defendant read a summary in the police report making reference to a third vehicle. She maintained that the police had said nothing to her about the presence of a third vehicle.

74 The police report referred to a third vehicle providing its registration number, and the name and address of the driver. The Collision Summary Details are recorded as:

About 2.38 pm on Saturday the 7 September, 2002 Vehicle 3 travelling east on the Esplanade at Warners Bay slowed and stopped for another vehicle turning right in front of her in the same direction into a parking bay on the Lake edge
Vehicle 2 also slowed and stopped behind vehicle 3
Vehicle 1 Travelling east at a speed stated between 40KPH and 60KPH
Collided with vehicle 2 pushing vehicle 2 into vehicle 3.
Vehicle 1 and 2 towed from scene
Vehicle 1 at fault.

75 There was no reference in the police report to a second, sideways impact between the Ford and the third vehicle.

76 The notes of plaintiff’s general practitioners made when the plaintiff consulted them shortly after the accident contained no reference to this second sideways impact. Dr Jagavkar reported that the plaintiff told him that she was a passenger in a car driven by her husband when a car from behind hit the car that in turn hit the car in front. Dr Sandner reported a history that the plaintiff was in a car that had spun around after being hit by a car that failed to brake and that she hit her head on the windscreen.

77 Subsequent histories taken by medical practitioners referred to an impact between the passenger side of the Ford and the car in front. As time passed, the histories appeared to relate to an accident of increasing severity. Dr Pacey in February 2003 reported a history that the defendant’s vehicle impacted with the rear of the Ford which caused them to spin and impact with another vehicle in front of them.

78 Dr Morse in May 2004 reported that after the car was struck from behind:

It was spun around and hit again. She was thrown about.

79 Dr Cousins in December 2004 reported:

They were hit from behind at significant speed and were pushed sideways down the road and then hit by another car that crashed into the passenger door.

The immediate post accident presentation

80 Again there was a discrepancy between the evidence of the plaintiff and Mr Lawson and that of the defendant.

81 The plaintiff’s first memory after the accident was that she sat on a fence by the side of the road. She remembered that police and an ambulance arrived and that she felt pain in her left shoulder and into her left arm. She said she did not require the services of the ambulance officers.

82 Mr Lawson said that he went to the plaintiff’s side of the car, opened the door after the impact and had to shake her to encourage her to become mobile. He said she was distressed and complained of a sore elbow and shoulder. After leaving the car the plaintiff walked to the fence and sat on a fence post until her daughter came to drive them home.

83 Mr Lawson agreed that the plaintiff spoke with the defendant. He said she was concerned because the defendant had children in her car. She held her elbow throughout this conversation.

84 The defendant did not see the plaintiff get out of the Ford. She said the plaintiff initially remained in the car but not long after the accident she saw her standing at the side of the Ford. In response to the defendant’s inquiry, the plaintiff told her she was fine. The defendant said the plaintiff did not appear to be distressed. The plaintiff told her that she did not need an ambulance. She observed that the plaintiff rubbed her left shoulder for about the first minute. She showed no other sign of injury.

85 The defendant said she observed the plaintiff walking around normally after the accident.

86 The plaintiff said that after she was taken home she developed significant pain in her low back, left shoulder and neck. She said that Mr Lawson took her to the John Hunter Hospital that night where a collar was placed on her neck. After waiting for treatment for several hours she left and went home.

87 Mr Lawson said that when they arrived home after the accident the plaintiff complained of left shoulder and left elbow pain, nausea and dizziness. Some time later he took her to the John Hunter Hospital where they waited for treatment for five hours before going home.

88 The records of the John Hunter Hospital indicated that in fact the plaintiff did not present for treatment until two days later, on 9 September 2002. Tested, Mr Lawson said he thought they went on the same night but it could have been the next or two nights later. He insisted that they waited for five hours although the hospital notes indicated that they arrived at 5.10 pm and left, against advice, at 7.40 pm.

89 The plaintiff denied having told doctors that she had went to the hospital on the night of the accident in order to enhance the impression of the severity of her injuries.

Issue 2 - Findings

90 The speed of 40 – 60 kmh recorded in the police report established that there was an impact of some force with rear of the Ford in which the plaintiff was travelling.

91 On the basis of the material in the police report, I accept that there was a further impact with a third vehicle.

92 In the absence of reference in the police report or in the immediate post accident medical histories, I do not accept that there was any impact with the passenger door of the Ford, that the Ford spun around or that it was pushed sideways down the road.

93 Having regard to the overall lack of credit of the plaintiff and Mr Lawson, I prefer the evidence of the defendant concerning the plaintiff’s immediate post accident presentation.

94 I reject the evidence of Mr Lawson that was clearly intended to convey that it was apparent from the outset that the plaintiff suffered serious injury. I regard it as improbable that, had the plaintiff been rendered dazed and immobile by the accident, she would have declined the services of ambulance officers.

95 I reject the evidence of the plaintiff and Mr Lawson that they attended at the John Hunter Hospital on the night of the accident and that they waited for up to five hours for treatment. This evidence was also clearly intended to convey that it was apparent from the outset that the plaintiff suffered serious injury.

96 There was no evidence to suggest that the plaintiff displayed any obvious significant injury at the time of the accident.

ISSUE 3 – THE CLAIMS OF INJURY AND DISABILITY

97 The plaintiff’s claims of significant physical and psychological injury and disability were problematic for a number of reasons.

Presentation

98 The plaintiff’s presentation to the court was extreme. Her presentation was also the subject of much comment in the medical reports in evidence.

99 The plaintiff wept frequently while giving evidence to the court. She carried with her a hand towel into which she buried her face when weeping, on which she blew her nose and with which she wiped her face as she recovered.

100 In the course of cross examination the plaintiff regularly shouted and cried out. The questions asked in cross examination appeared to cause her distress, confusion and indignation. On many occasions she was unable to provide answers to relatively simple questions.

101 When she appeared to be struggling to answer questions because of confusion or fatigue she was allowed rest periods. On a number of occasions she broke down to the point where assistance was necessary.

102 On 29 November 2007, she denied that her purpose for being at court was to secure financial compensation. She denied knowing why she was there. She became indignant and hysterical and said she thought she was dealing with the allegations of social security fraud made against her by Centrelink. She left the witness box and collapsed in the public area of the court.

103 The plaintiff gave the impression that on many occasions she avoided answering the questions of the cross examiner by providing non-responsive answers, selectively claiming that she could not remember events, engaging in argument, breakdown and hysteria.

104 Many of the medical reports dealt with both the plaintiff’s physical and psychological presentation.

105 Ms Grant, psychologist, interviewed the plaintiff on 16 March 2004, described her observations of the plaintiff as follows:

She arrived in a wheelchair and was assisted by her husband. While in the waiting room she was observed to be sitting with her eyes closed. When asked if she was able to walk into the treatment room, her husband answered that she was unable to get out of the wheelchair. Her husband pushed the wheelchair into the room and asked her if she would prefer to sit on one of the chairs. She became very distressed at this request and shouted “no”. He then left, arriving back only after the appointment had finished. She was dressed casually but neatly and remained in the wheelchair until the end of the appointment. At this time she requested to use the toilet and was observed to get out of her wheelchair, push it out of the room, through the hall and to the bathroom, leaving it outside the bathroom while she used the toilet. She then pushed the wheelchair through the hall and reception area, outside the front and sat back in her wheelchair to await her husband’s arrival.

106 Dr Cousins reported in December 2004 that the plaintiff was using a walking frame, claiming that she was unable to stand without support.

107 Ms O’Dwyer, occupational therapist, assessed the plaintiff at her home on 16 December 2005. She described the plaintiff’s presentation as extremely distressed and at times hysterical so that the majority of the assessment was spent on reassurance and attempts to calm her.

108 When the plaintiff presented for examination by Dr Harvey-Sutton on 18 January 2006 she attended with a seated walker. Dr Harvey-Sutton reported that the plaintiff was able to walk from the waiting room to the consultation room holding onto the furniture and that she was able to walk independently in and about the consultation room. She was too afraid to climb onto or off the examination couch and requested that she be examined sitting on her seated walker.

109 Dr Potter reported on his examination of the plaintiff on 18 January 2006 as follows:

The plaintiff presented in the consulting room, sat down with her frame and wept. There was relentless crying, tears and despair thereafter. … The patient was in tears from start to finish.

At times, the presentation was monosyllabic. At times, the patient had significant pauses in memory of events.

Merrill Lawson also highlights repeatedly her absolute despair and withdrawal of any interest in daily activities.

110 Ms Farrelly, psychologist, interviewed the plaintiff on 28 January 2006. She reported that the plaintiff presented walking slowly with a walking frame. Her report continued:

Before coming into my office, she was heard to be sobbing loudly in the waiting room, with her husband in attendance. On request, she came into my office, escorted by her husband, and she transferred to a chair.

Her husband returned to the waiting room.

She stated loudly “I’ve done all these assessments before; why do I have to do them again?” Her sobbing increased, and she was almost incoherent. She became louder, and in my opinion, this was an attempt to sabotage the assessment. Her husband had gone to move the car from a loading zone. He told Mrs Lawson that he was about to do this, in my presence.

Mrs Lawson embarked on a tantrum, calling for her husband. She was reminded that he was moving the car. Just before this tantrum began, she was being asked about where she lived, how recently she had moved and the date of the subject motor vehicle accident and about her panic attacks. She was very vague about these details, and when pressed, it was then that she started screaming her husband’s name. She got up and moved in her frame to the waiting room, still screaming her husband’s name. Her husband eventually returned and calmed her with hugs and consoling words, and advised her to return to my room, saying “It’s all just AAMI rubbish, but you have to do it or it won’t be over for you”. Mrs Lawson’s behaviour was extremely histrionic and manipulative. There was another tantrum in the middle of the session, and one again at the end. At the time of the first tantrum, she was describing symptoms associated with panic attacks. She regressed into loud tears, and yelled “I feel unsafe here!”, and she moved into the waiting room, where I brought her a glass of water, as requested. She shouted “I don’t like you. Don’t come near me.” She screamed “John! John!” After her husband pacified her, she moved back to my office. I requested him to ask her to not scream. He replied “I can’t. That’s the way she is. I get it too.”

111 The plaintiff did not use a walking frame when entering and leaving the witness box. She did from time to time obtain support from structures within the court room. She was questioned about the use of a walking frame in the public area outside the court. She said she used it to overcome balance problems caused by the pain that she suffered. In addition the frame took pressure off her back. The plaintiff agreed that she walked in a shopping centre shortly prior to the hearing without the aid of a walking frame but said that she obtained a shopping trolley as quickly as possible in order to obtain the necessary support.

112 The plaintiff was observed to walk normally and without assistance when she left the witness box on 29 November 2007 in the course of an angry and hysterical outburst.

Physical Injuries and disabilities

113 The plaintiff complained of unremitting pain, increasing in severity from the time of the accident to the date of the hearing. She said the pain affected:

1 Her neck where she suffered from constant pain and limited range of movement, particularly to the left.

2 Her left shoulder, which she was informed was frozen, so that she could move it only with great pain. It was painful to the touch.

3 Her low back in an area between her hip and coccyx where the pain was constant. Her range of movement was also limited in this area.

4 Headaches that were constant.

114 The plaintiff complained that she was unable to lie down because of pain in her neck, left shoulder and back so that she no longer used a bed but slept in a recliner chair set at a 45 degree angle. She said she was able to sleep only for limited periods.

115 When awake, her activities were limited by pain. She said she did nothing, spending most of the day in the recliner chair, crying and grieving. She could not read because of her inability to concentrate. She could not follow television programs.

116 The plaintiff said she has not visited a club for many years and has not been fishing since the accident.

117 Mr Lawson described the plaintiff’s daily activities as watching television or playing with a computer.

118 The plaintiff’s claims of physical injury were complicated by her pre-accident medical history, by evidence of inconsistency in presentation and by the absence of objective clinical findings to explain both the presence of her pain and its severity.

Pre-Accident Medical History

119 There was evidence that the plaintiff suffered from pre-existing conditions affecting her cervical and lumbar spine. The condition of both had been the subject of a claim for workers compensation based upon a lifting injury said to have occurred in 1995 in the course of the plaintiff’s employment as a nursing aide. The claim in respect of injury to the lumbar spine was accepted and settled in 1998. It was not accepted that the condition of her cervical spine was employment related.

120 Reports prepared by medical examiners for the purposes of the workers compensation claims were in evidence. Dr Guirgis reported in December 1995 that the plaintiff complained of back and neck pain, with excruciating pain in the sacro-iliac joints on both sides. Dr Giurgis diagnosed musculo-ligamentous strain in the cervical spine with deep myo-fascial scarring aggravating a pre-existing spondylosis. He diagnosed a posterior disc protrusion at L5/S1.

121 An ambulance service report of 2 July 1997 recorded that the plaintiff had been unable to stand after sitting for two hours and a complaint of chronic back pain for two years.

122 Dr Bodel on 13 August 1997 referred not only to the complaints concerning the plaintiff’s neck and back but also to a 5% permanent loss of efficient use of the left arm above and below the elbow and incorporating the left hand.

123 Dr Searle on 22 October 1997 recorded that the plaintiff informed him that she had given up dancing and gardening because of the work related injury. He described symptoms that were very similar in nature to those claimed by the plaintiff in the current proceedings. They included constant neck pain with associated headaches and pain spreading into the trapezius region, more on the left side than the right and down her arms to the tips of her fingers. Low back pain was described as constant but worse with prolonged sitting, standing, walking for 10 minutes, bending or lifting or when the plaintiff coughed or sneezed. Lumbar pain was said to spread into the hips and groins and down the front of each thigh and occasionally below the knee. There was a complaint of numbness and paraesthesia in the left leg. Dr Searle’s prognosis was for no change in the plaintiff’s condition for some time except that the symptoms and disability would gradually increase as degenerative changes affected the injured levels of the plaintiff’s spine. Of note was Dr Searle’s final paragraph:

Physical examination also provides evidence that not all of the symptoms and disability are organically based. There may be some degree of psychological overlay. One of the common causes of psychological overlay is prolonged pain and disability. Because of this it is difficult to determine what proportion of the above impairments is organically based and what is not.

124 An ambulance report of 22 May 1998 recorded a fall by the plaintiff and complaints of back and neck pain. The plaintiff was admitted to Gosford District Hospital where clinical notes recorded that the plaintiff’s medication included Mersyndol Forte.

125 The plaintiff denied that she suffered any significant symptoms from these conditions prior to the accident. She informed a number of medical practitioners that her back and neck symptoms were minimal prior to the accident. They included Dr Isaacs, Dr Ghabrial, Dr Smith, Ms Bell and Dr Cousins. This evidence was contrary to the report of one of her general practitioners, Dr Jagavkar, in which he stated that the plaintiff had a history of cervical and lumbar disc problems for which she was using a fair amount of analgesics.

Post-Accident Medical History

126 Dr Jagavkar’s opinion was that the accident had aggravated the pre-existing conditions and caused stiffness in the plaintiff’s left shoulder.

127 Dr Sandner, the general practitioner consulted on 9 September 2002, diagnosed significant soft tissue injuries. Another general practitioner, Dr Proctor, reported that in December 2002 the plaintiff was complaining of pain levels that were so significant that he arranged for the plaintiff to be admitted to the Toronto Private Hospital. The plaintiff discharged herself from this hospital because she was unable to sleep.

128 The plaintiff was then referred to a number of specialists, including Dr Isaacs, Dr Christie and Dr Spittaler, none of whom offered treatment. Dr Spittaler said that he did not think the neck and arm symptoms would be improved by any treatment. He did not indicate why he formed this opinion.

129 X-rays, CT scans and MRI investigations undertaken since the accident have thrown little light on the causes of the plaintiff’s pain.

130 Attempts were made to assist the plaintiff in overcoming her reported pain levels through a course in pain management at Berkeley Vale Private Hospital, rehabilitation through the services of Dr Pacey, Fit for Work, Ms Bell, occupational therapist, and counselling through the services of a number of psychologists.

131 These services did not assist the plaintiff. To the contrary, her condition appeared to deteriorate steadily from the time of the accident.

132 The majority of medical experts referred to emotional and psychological elements of the plaintiff’s presentation and the need to address those elements before any improvement in her physical condition could be contemplated.

133 It was on this basis that Fit for Work and Ms Bell recommended that their services be suspended in about mid-2003, although there was evidence of a further referral to Fit for Work in early 2004, also without apparent benefit to the plaintiff.

134 The reports of those treating the plaintiff detailed complaints of increasing severity of pain in various parts of her body. There were some periods when the plaintiff appeared to improve only to relapse again at a later stage. Dr Pacey in February 2003 noted complaints of pain in the plaintiff’s left shoulder, neck, back of the head, the whole of the lumbar spine and legs into the ankles, and the left arm extending into the thumb. In addition the plaintiff complained of occipital headache and that she was unable to move her left shoulder. Dr Pacey reported that the plaintiff demonstrated significant pain behaviour. She assessed the plaintiff as suffering from a so called chronic pain syndrome on a background of pre-existing low back and neck pain. She recommended a pain management program.

135 The plaintiff was admitted to the Berkeley Vale Private Hospital for pain management in May 2003, after assessment by Dr Smith who reported that she had been extensively investigated and that no finding of surgical pathology had been made. He noted that medications such as Oxycontin, MS Contin and Physeptone had not been of benefit. Dr Smith’s report at the conclusion of the program stated:

After the first week Mrs Lawson made good progress and her husband was quite euphoric about her positive progress. Unfortunately her progress was not so positive on the second week of the program. On return from weekend leave Mrs Lawson basically remained in bed for the entire Monday and for the rest of the second week she remained extremely pain focussed and quite inconsistent about her pain medications. She wished to have the pain medications reduced but at the same time requested further analgesia.

136 Dr Smith reported that the plaintiff became more positive and made more progress after sessions with the clinical psychologist but that she left the hospital before discharge consultation and she did not attend a subsequent outpatient appointment.

137 Later medical consultants recorded that the plaintiff informed them she had obtained little benefit from the program provided at Berkeley Vale Private Hospital.

138 This was to be the pattern for the plaintiff’s presentation and treatment.

139 There was reference in the report of Dr Proctor of November 2003 that the plaintiff was referred to Dr Spittaler because she did not want to go back to Dr Christie, that she changed psychologists because she was not getting on with the current one and that she was referred by Dr Singh, psychiatrist, to Northside Clinic for treatment of depression but she did not like the environment and did not stay. Dr Proctor reported in March 2004 that he referred the plaintiff to Dr Iyer, psychiatrist. There was reference in the evidence to three consultations with Dr Helm, psychiatrist, in Newcastle.

140 Medico-legal experts provided little assistance in determining the true nature of the plaintiff’s injuries. Dr Ghabrial, examining the plaintiff in April 2004, made reference to conditions affecting the plaintiff’s cervical spine, shoulders, hands (in the nature of bilateral carpal tunnel compression of the median nerves), lower lumbar region, knees and left ankle. He assessed the plaintiff at 30% whole person impairment. He attributed all but one-tenth of this assessment to the accident. There was no evidence that the plaintiff suffered injury to her knees or left ankle in the accident. The plaintiff fractured her left ankle in February 2004 in an unrelated incident. It was not suggested by the plaintiff that the carpal tunnel compression was related to the accident. Further, Dr Ghabrial recorded a history of minimal symptoms in the plaintiff’s back and neck prior to the accident. This was contrary to the evidence of the plaintiff’s general practitioner at the time. Dr Ghabrial’s assessment was therefore of no assistance.

141 Dr Potter in January 2006 had some difficulty examining the plaintiff. He reported that she presented in the consulting room, sat down in her frame and wept. The plaintiff cried relentlessly after that with tears and despair. Coupled with this the plaintiff complained of extreme pain throughout her body. Notwithstanding the difficulties, Dr Potter undertook an examination of the plaintiff. He said the plaintiff’s presentation could not be explained by simple degenerative changes in the back and neck. Nor could she be classified as having aggravated a pre-existing spondylitic change. He could not explain the plaintiff’s complaints of restriction in her neck, back and shoulders. He could not explain the sensory loss of which she complained or the extraordinary giving way to clinical testing in arms and legs. He stated that there was no definable structural impairment in anatomical, clinical or musculoskeletal terms that could explain the plaintiff’s claimed incapacity. Further there was no organic explanation on which to base a measure of whole person impairment.

142 Dr Potter did not accept that from a physical point of view the plaintiff was in any way incapacitated either domestically or economically.

143 Dr Harvey-Sutton examined the plaintiff in November 2003 and January 2006. She noted that the plaintiff’s psychological condition appeared to dominate and that her physical condition was not consistent with the alleged injuries and disabilities. Dr Harvey-Sutton accepted that a component of her condition was related to the accident but stated that there were significant pre-existing conditions. She said the condition of the left shoulder, referred to as frozen, should settle with time.

144 In January 2006 Dr Harvey-Sutton reported that the plaintiff’s condition had deteriorated but said that it was her emotional and behavioural disorder and not any physical or musculoskeletal disorder that was impacting on her capacity for employment. The prognosis, she said, depended on whether the plaintiff attended for regular psychiatric treatment.

The psychiatric condition

145 The plaintiff claimed that as a consequence of the accident she suffered a serious psychiatric injury. The symptoms claimed included:

Anxiety and stress
Depressed and despairing mood
Severe and disabling panic attacks
Nightmares disturbing her capacity for sleep
Fear of blue cars
Fear of leaving her home
Loss of all social activity
Fear of travelling in cars as a passenger
Poor concentration, affecting her capacity to read and follow television programs
Loss of libido
Poor short term memory
Weight gain
Self harm, previously taking the form of picking at the skin on her arms, subsequently involving cutting her thighs at the tops of her legs

146 The court was informed that Dr Samuels (referred to by Dr Walden as Dr Samuell) examined the plaintiff on behalf of the Medical Assessment Service and that he assessed her psychiatrically at greater than 10% whole person impairment. Dr Samuels’ report was not in evidence.

147 The plaintiff conceded that she suffered from panic attacks for many years prior to the accident. She claimed that they were infrequent and that she managed them with minimal medical treatment.

148 The plaintiff said that it was necessary that someone be at home with her at all times, although recently she has been able to be left for short periods if the telephone is close at hand. She showed me the scars on her arms resulting from her self harming activities. She claimed that she continued to self harm by cutting the tops of her thighs.

149 The plaintiff retained her driving licence although she rarely used it. She did drive for ten minutes to Erina Fair for shopping but said that she did not cope well. She also conceded that she shopped alone in September 2007 after Mr Lawson suffered a heart attack. She said she took Valium and Physeptone before leaving her home and was in fear and distress throughout this shopping expedition.

150 She agreed that, notwithstanding her fear of travelling in cars, she had travelled long distances, a number of times to Queanbeyan, Dubbo and Parkes.

151 Mr Lawson described the plaintiff as a shell of her former self and an emotional wreck. He said her condition had deteriorated over time and she was very tearful and down all the time. She constantly attempted self mutilation.

152 Ms Janice Mason said the plaintiff became withdrawn within one week of the accident but she appeared to be coping a little better by the time she gave her evidence in December 2007. Ms Mason described a period of six or seven months, between January 2003 to June or July 2003, when the plaintiff lived on the Central Coast as dreadful for her.

153 The plaintiff’s daughter, Miss Jodi Mason, gave evidence that was contradictory. She initially stated that she attended at the plaintiff’s home frequently so that she had the opportunity to observe her closely before and after the accident. She said that before the accident the plaintiff was very busy working in the business, constantly attending to phone calls and paperwork in her office and that she was unaffected by her earlier back injury.

154 The changes in the plaintiff after the accident she described as horrific. Her social life had ceased, she became distressed when Miss Mason took her to the shops, she no longer minded her grandchildren and she was very nervous as a passenger in a car, panicking frequently. Immediately after the accident she did very little in the business. Miss Mason said she did not see the plaintiff answer the phone or attend to paperwork. Contrary to her earlier evidence, she said this was because her opportunities for observation were limited by the distractions of her children and she was unable to pay close attention to what the plaintiff was doing when she saw her, infrequently, in the office sitting at her desk. She said the plaintiff would spend one to one and one half hours in the office and then lie down before going back into the office.

155 Miss Mason also described a period when the plaintiff was on heavy medication for pain. During this period the plaintiff spent much of her time in bed and she was not with us in the mental capacity.

Expert evidence

156 The plaintiff relied on the assessment of her condition made by Dr Morse, whom she consulted once in May 2004. The defendant relied on the assessment of Dr Walden whom the plaintiff consulted once in November 2003. Each consultation was of approximately 60 to 90 minutes duration.

157 There were also reports of a number of psychologists who either examined the plaintiff for medico-legal purposes or provided counselling for various periods.

158 There were no reports from any treating psychiatrist.

Diagnoses

159 The plaintiff offered a diagnosis of her own after at one point in her evidence she demanded to know why the defendant’s solicitor was staring at her. She subsequently volunteered the following:

I have a lot of fears ….If I can just elaborate a little bit further. I don’t know whether anybody’s noticed I have my eyes closed a lot because I don’t like to look at people, I don’t like people looking at me. I’m extremely paranoid. Obsessively paranoid. So I would have to say I don’t like anybody looking at me but that is not the only reason why I don’t leave the house. The house is my safe zone

160 Paranoia was not a diagnosis propounded by any medical expert.

161 Dr Morse diagnosed the plaintiff as suffering from a Pain Disorder, Major Depression with Melancholia and Panic Attacks with Agoraphobia. His prognosis for the plaintiff was poor. He thought that nothing would change the plaintiff’s physical and emotional state. He suggested, however, that intensive psychiatric treatment might lead to some improvement.

162 After interviewing the plaintiff, Dr Walden expressed opinions similar to those of Dr Morse although she said she arrived at her conclusions with difficulty. Dr Walden’s initial diagnoses were Pain Disorder and Anxiety and Depressive Disorder not otherwise specified. Like Dr Morse, she was of the opinion that the plaintiff’s prognosis was poor because the plaintiff’s symptoms were unusual and she failed to respond to treatment.

163 Dr Walden subsequently rejected the diagnoses of Dr Morse. She supported the diagnosis of Borderline Personality Disorder that had originally been mooted by Ms Farrelly. After receipt of further information, Dr Walden pointed to reports that indicated that the plaintiff was inaccurate in the information provided and unreliable in her history such that, coupled with other unusual aspects of her case, it was impossible to rate her level of impairment. She concluded by stating:

At this stage I think it is more probable than not that there is no genuine psychiatric disorder caused by the accident. Rather there is a pattern of abnormal illness behaviour and conscious reporting of inaccuracies regarding her feelings and functioning for gain in a lady with pre-existing personality disorder.

164 There were difficulties with each of these diagnoses.

165 Dr Morse based his diagnosis of Pain Disorder on the extreme distress displayed by the plaintiff and the reports of specialists who questioned the presence of underlying pathology sufficient to cause extreme levels of pain. He noted the variable success of pain management. He stated that his diagnosis of Pain Disorder did not imply that there were not originally severe physical injuries that caused underlying continuing pathology and ongoing pain, suggesting that psychological, emotional, social and relationship factors were exacerbating the pain.

166 Dr Morse’s diagnosis of Major Depression with Melancholia was based on the significant symptoms described by the plaintiff and the plaintiff’s claim that she had previously not suffered from any depressive disorder. His diagnosis of Panic Attacks with Agoraphobia was based on the statement of the plaintiff and Mr Lawson that, although she suffered from panic attacks before the accident they were very infrequent and easily controlled and she had no particular treatment for them.

167 I was faced with a number of difficulties in accepting the opinions of Dr Morse. They were:

1. He agreed that he accepted the plaintiff at face value in arriving at his diagnoses but said that his diagnosis of Major Depression had not been made lightly. Dr Morse was left with the impression that the plaintiff and Mr Lawson had not lied to him. I was left with the impression that they lied both to me and to Dr Morse.

2. Dr Morse agreed that he did not witness the plaintiff’s claimed symptoms of panic attack and that he had not been able to test a number of her symptoms, such as insomnia, fatigue and memory impairment. He said she did not present to him as histrionic, rather she was depressed and angry. He was unable to explain the range of reactions displayed by the plaintiff in the course of giving her evidence. He offered the suggestion that it was the consequence of the effect of the extended period over which she was required to give evidence on her underlying depression, anxiety and panic attacks.

3. Dr Morse’s diagnosis of Pain Disorder was based on his acceptance that the plaintiff initially suffered severe physical injuries. There was no medical evidence that the plaintiff ever suffered physical injuries of any severity. Dr Isaacs in November 2002, Dr Christie in December 2002 and Dr Spittaler in September 2003 reported that they found little by way of structural or neurological abnormality other than degenerative changes in the plaintiff’s cervical spine. None of these specialists made any reference to complaints of back pain.
4. The diagnosis of Panic Attacks depended upon information supplied to Dr Morse that the plaintiff was not much troubled by them prior to the accident. This was contrary to the evidence contained in the clinical notes of Dr Proctor indicating that he was consulted in June, July, August and on 5 September 2002, two days prior to the accident, for treatment of the plaintiff’s panic attacks.

Borderline Personality Disorder

168 Dr Walden made particular note that the plaintiff informed her that as a child and adolescent she was exposed to domestic violence involving her parents. This lead Dr Walden to conclude that the plaintiff’s pre-accident panic attacks and her history of exposure to domestic violence throughout her childhood and adolescent years created a vulnerability that affected her perception of the seriousness of the accident and that this was the major cause of her psychological decompensation.

169 Notwithstanding the criticisms made by Dr Morse, she was inclined to agree with the diagnosis of Borderline Personality Disorder, pre-existing the accident, suggested by Ms Farrelly. She said it was common that patients with this Disorder had intense emotional instability that at times resembled panic attacks and agoraphobia.

170 Dr Walden agreed with Dr Morse that it was difficult to come to a concluded diagnosis of Borderline Personality Disorder in the course of one interview but pointed out that:

1. Aspects of the plaintiff’s behaviour were observed repeatedly in different situations and as more information was gathered it was possible to state that it was probable that the disorder was present.

2. She had special expertise and training in the diagnosis and treatment of persons suffering from severe personality disorder.

3. The plaintiff’s self-mutilating behaviour was inconsistent with the diagnosis of Major Depressive Disorder but was very consistent with that of Borderline Personality Disorder.

4. The progressive deterioration in the plaintiff’s condition was unusual.
5. Borderline Personality Disorder does not develop in the fifth decade of life or in response to trauma.

171 The difficulty with this diagnosis was that it depended upon information that Dr Walden reported that she received from the plaintiff that she had been exposed to domestic violence between her parents during her childhood and adolescence. The plaintiff denied that she told Dr Walden that she had been exposed to any significant domestic violence involving her parents. She denied that any such violence had occurred.

Treatment

172 Treatment for the plaintiff’s claimed psychiatric injury appeared to have been spasmodic.

173 Dr Morse reported the plaintiff’s symptoms and noted that the plaintiff informed him that she received no real treatment for her nervous or emotional state because she could not afford it. She was bitter that a psychologist provided by the insurer had written a nasty report. She was upset and distressed that she received no help for her emotional state. Dr Morse was informed that the plaintiff was to see a psychiatrist in Newcastle in the week following his interview of her. He was informed that the plaintiff had been treated as an inpatient at a pain clinic for two weeks but that the insurer had ceased further funding for this treatment. This was contrary to the evidence contained in Dr Smith’s report indicating that the plaintiff did not present for the post discharge consultation. It was also contrary to Dr Walden’s report that the plaintiff described the treatment at the Berkeley Vale Private Hospital as a waste of time.

174 Dr Morse could not explain the failure of various anti-depressant medications to relieve the plaintiff’s symptoms. He suggested that this could be the result of the types and doses prescribed and their side effects.

175 When he prepared his report in 2004 Dr Morse stated that the plaintiff was in need of urgent psychiatric treatment. He expressed surprise that, having regard to the severity of the plaintiff’s symptoms, she had not been treated. He thought that a person suffering to the extent that she claimed would want to be treated. He said her resistance to treatment could be the result of negative reaction to practitioners who had examined her, naming Ms Farrelly as an example.

176 There was some treatment but there was no evidence of diagnosis by treating psychiatrists or of the plaintiff’s progress while under treatment. There was reference to a number of consultations with a publicly funded psychologist in Dubbo, where the plaintiff lived for a period of time after the accident. Dr Singh, psychiatrist, referred the plaintiff to the Northside Clinic for treatment but she did not like the environment and did not stay. She did not consult Dr Singh further. Dr Proctor reported in March 2004 that he referred the plaintiff to Dr Iyer, psychiatrist. There was no evidence that this doctor was consulted and no report from Dr Iyer was in evidence. There was reference in the evidence to three consultations with Dr Helm, psychiatrist, in Newcastle. No report from Dr Helm was in evidence. No report from the Dubbo psychologist was in evidence. The only reports of treating practitioners were those of psychologists, Ms Napier who treated the plaintiff in 2003 and of Ms Lioulios who was consulted in Queanbeyan during a period in 2005.

177 There was evidence that requests for funding for psychiatric treatment were made to the defendant’s insurer by Dr Suleman of Queanbeyan in September 2005, apparently after treatment by Ms Lioulios concluded, and by Dr Handcock of Dubbo in March and June 2006. There was also evidence of a telephone demand made by the plaintiff and Mr Lawson to the insurer’s client manager, Ms Roberts, in April 2007, accompanied by threats of suicide and of reporting to a television station, if the plaintiff’s demands for funding for psychiatric treatment were not met. It appeared that funds were not forthcoming in response to these requests.

178 While, assuming the plaintiff’s symptoms to be genuine, one might be critical of the insurer in failing to respond to these requests, there was no explanation for why the plaintiff did not seek treatment through the public health system.

Malingering

179 Dr Walden’s opinion was moderated upon the receipt of further information that suggested to her that the plaintiff’s level of function was better than previously indicated. She said that this information suggested that there was inconsistency in the plaintiff’s presentation and an element of conscious exaggeration that accounted for her unusual presentation and the development of unusual features within a very short time after the accident. Dr Walden maintained this opinion after receiving a copy of Dr Morse’s report. She noted that Dr Morse did not refer to the inconsistencies or the plaintiff’s unusual history and presentation.

180 It was argued that I should disregard Dr Walden’s opinions because they were affected by negative summaries of materials provided to her by Ms Nicholson, a rehabilitation advisor employed by the defendant’s insurer. This information summarised reports of Ms Napier, psychologist, and notes made by Ms Nicholson following home visits to the plaintiff.

181 Ms Nicholson was called to give evidence. She produced her handwritten notes. They indicated that the information provided to Dr Walden did not mention that the plaintiff was taking high doses of anti-depressant medication, that she intended to trial hydrotherapy, that she claimed a reduction in her social interaction, anxiety travelling in cars, difficulties with concentration so that she was unable to return to work, a complaint of frozen shoulder and a comment that the plaintiff considered depression to be a life long condition.

182 Notwithstanding these shortcomings in the information provided by Ms Nicholson, there were in evidence reports independent of her to support Dr Walden’s conclusions concerning the inconsistent and fluctuating nature of the plaintiff’s presentation.

183 By the time of Dr Walden’s final reports of 7 April 2006 and 22 January 2007, she had been provided with a large number of these reports, including those of Ms Napier, Dr Potter, Dr Harvey-Sutton, Ms O’Dwyer, Ms Farrelly. Dr Proctor, Dr Smith, Dr Girdler, Ms Cadby, Dr Samuell, Dr Morse and Professor Cousins. Dr Walden reviewed these reports and said they displayed a clear pattern of Abnormal Illness Behaviour but that this was not of itself an injury or illness. Rather it was a description of a type of behaviour and it could encompass symptoms that were consciously feigned to elicit care and attention, the unconscious element being the need for this attention. There was reasonably good evidence to support the view that the plaintiff consciously grossly exaggerated, if not feigned, her symptoms and that she had a clear financial incentive to do so. Dr Walden concluded that the plaintiff was probably malingering and that her behaviour did not amount to an illness.

The Test of Memory Malingering

184 Dr Morse took issue with the value of the Test of Memory Malingering in assessing whether the plaintiff was genuine in her reported symptoms. This test was administered to the plaintiff by psychologists, Ms Grant in March 2004, Ms Lioulios between June and August 2005 and Ms Farrelly in January 2006.

185 Ms Grant described the test as a systematic method of discriminating between patients with bona fide memory impairment and those who were malingerers. She said it was sensitive to malingering and insensitive to neurological impairment. She administered the test in response to the plaintiff’s complaints of impaired memory and of an undetected head injury sustained during the accident. Ms Grant reported that the plaintiff obtained scores that were significantly lower than expected and that: Such scores are usually obtained only from demented individuals. Ms Grant suggested that the plaintiff deliberately attempted to present a more negative picture of her memory abilities.

186 Ms Lioulios did not report the scores achieved on her testing but said the results indicated mildly reduced effort indicating that the plaintiff’s capacity for meaningful participation in rehabilitation was low.

187 Ms Farrelly reported scores of 22, 28 and 23 that she said were indicative of malingering and were such that patients with dementia would outperform the plaintiff. Ms Farrelly described Ms Lioulios’ report of the results of the TOMM as coy and said that it indicated that on this occasion also the plaintiff was malingering her memory impairment. She described the test as straightforward and relatively simple and said that it was designed for one specific purpose, namely, to investigate whether a patient’s claim of memory impairment was genuine. Its purpose was not to test the plaintiff’s capacity for participation in rehabilitation.

188 There was debate between Dr Morse and Dr Walden concerning the significance of the results of the TOMM. Dr Morse, although conceding that he was unfamiliar with the test and did not use it as part of his practice, said that the results reported were not important in dealing with the treatment of persons such as the plaintiff. Further, it might not be valid in a person with the plaintiff’s physical and psychiatric symptoms. He said it was possible that the plaintiff lacked interest or motivation in undertaking the test. Dr Morse agreed that, if the test had some integrity, the results indicated that the plaintiff fabricated or exaggerated her complaint of memory impairment but said exaggeration by the plaintiff did not mean that she was not suffering from a significant emotional disorder that was affecting her life.

189 Dr Walden was prepared to take into account the results of the tests administered on three different occasions and indicated that she regarded those results as clear evidence that the plaintiff was malingering a memory deficit.

Other Anomalies

190 Dr Walden identified some features of the plaintiff’s presentation that affected her conclusions. She recorded that the plaintiff could not recall having had any panic attacks in the few years prior to the accident and that the plaintiff denied any prior psychiatric history or treatment with anti-depressant medication. This was contrary to the evidence of Dr Proctor that the plaintiff was being treated for panic attacks in the months immediately preceding the accident by trialling a number of anti-depressants.

191 Dr Walden said the plaintiff’s complaints of agonising pain appeared to be excessive and she described as most unusual her claim of marked social withdrawal and agoraphobia within two days of the accident. Dr Walden said:

…the history does not make sense and I wonder if there is additional information that has not been forthcoming from Mrs Lawson.

192 Ms Napier, psychologist, treated the plaintiff for a period commencing in July 2003. Ms Napier reported that the plaintiff was significantly improved by the end of August 2003. Her depressive condition had improved and she was engaging in social activity. She continued with anxiety, fears of travelling in a car and pain that disturbed her sleep. She suffered a sudden reversal in October 2003 after she narrowly avoided involvement in another car accident. Ms Napier reported:

…she also reported feeling “terribly afraid of settlement”. She commented that she believed that the doctors would not understand how damaged she is. Her husband has confirmed her fears by commenting “it could be decided on a whim.” She was very frightened she would be left with no money. Although she denied that this fear contributed to her anxiety symptoms, she reported her fears of settlement with considerable emotion.

Ms Napier described the plaintiff as a person with little resilience to stress and much passivity.

193 Similar observations were made by Ms Grant concerning the difficulties that the plaintiff might have in engaging in treatment because of her low energy level, passivity and withdrawal. She reported:

Her self-esteem is quite low and she views herself as ineffectual and powerless to change the direction of her life. The disruptions in her life have left her uncertain about her goals and pessimistic about what the future holds.

194 Ms Grant reported her difficulty in identifying precisely the nature of the plaintiff’s problems because of the inconsistencies in her presentation, her performance in psychometric testing and her recall of information. She said the plaintiff’s presentation was not to be expected from a person involved in a relatively minor accident that was not life threatening. Ms Grant noted that the plaintiff had experienced symptoms of anxiety before the accident and that this decreased her ability to cope with her situation after the accident. However, there were inconsistencies in the plaintiff’s performance of tests compared with the results of the TOMM. The difficulties with concentration and memory displayed in completing the TOMM were not present when she undertook the Personality Assessment Inventory. The PAI, she said, usually posed difficulty for clients with concentration and memory concerns.

195 Ms Farrelly administered other tests in addition to the TOMM. She reported inconsistencies in the following:

1. The Sickness Impact Profile resulted in a score of 47, described by Ms Farrelly as extreme and non-credible and as higher than that scored by her testing of an incomplete paraplegic.

2. The results of the Minnesota Multiphase Personality Inventory-2 were similarly distorted. Ms Farrelly reported that, if taken at face value, they would indicate that the plaintiff was floridly psychotic, which was obviously not the case. An alternative explanation was that the plaintiff was resistant to the testing procedure.

Issue 3 - Findings

196 Physical injuries:

1. The evidence did not support the plaintiff’s claims of significant physical injury and ongoing related disability resulting from the accident.

2. On the basis of evidence of the general practitioners consulted immediately after the accident I find that the plaintiff suffered aggravation of the pre-existing conditions of her back and neck, some left shoulder stiffness and soft tissue injuries.

3. The evidence did not establish why those injuries have not resolved in the ordinary course, except that which suggested that the resolution of the plaintiff’s psychological condition would lead to the resolution of her complaints of physical pain.

197 Psychiatric injuries:

1. The difficulties with Dr Morse’s diagnoses to which I have already referred were such that those diagnoses are rejected.

2. The diagnosis of Borderline Personality Disorder would explain much of the plaintiff’s extreme behaviour. It is, however, rejected because the plaintiff denied the fundamental factual basis for the diagnosis.

3. The results of the TOMM established that the plaintiff was malingering in claiming impairment to her memory as a result of the accident. In this respect, the opinion of Dr Morse is rejected. He agreed that he was not familiar with the test, either as to its administration or the interpretation of its results. The test was sufficiently widely regarded to have been administered by three independent psychologists, including one who treated the plaintiff. Dr Harvey-Sutton accepted the test as a valid means of assessing whether this part of the plaintiff’s claim was genuine.

4. After taking into account the results of the TOMM and other tests administered to the plaintiff, her repeatedly inconsistent and exaggerated presentation and overall lack of credit, I have determined that the opinion of Dr Walden is to be preferred to that of Dr Morse.

5. I find that the plaintiff’s complaints of severe psychiatric injury resulting from the accident were not genuine and they are rejected.

6. It was apparent from the evidence that the plaintiff did suffer from some pre-existing psychological condition as demonstrated by the history of panic attacks and the descriptions in the psychologists’ reports of her passive nature, low self esteem and diminished resilience to stressful situations. I am prepared to accept on the balance of probabilities that the accident did cause the plaintiff to suffer from some aggravation of this condition, particularly during the first six months of 2003.

ISSUE 4 – ASSESSMENT

Non Economic Loss

198 The findings that I have made in relation to the physical and psychological damage to the plaintiff as a result of the accident indicate that she suffered from conditions from which she ought to have recovered within a relatively short period of time.

199 There were indications in the evidence that the plaintiff’s condition did in fact start to improve towards the middle of 2003.

200 Doing the best that I can, I assess her non economic loss on the basis that the plaintiff substantially recovered her physical and psychological health within 18 months of the accident.

201 I assess the plaintiff’s non economic loss in the sum of $60,000.

Income Loss

202 The plaintiff’s claim of loss of income capacity was problematic because of the all pervading credit issues and the absence of evidence to support her claims. Those claims were that she had not worked since the accident, the Fumapest Hunter business was closed down as a result and she would be unable to engage in meaningful employment in the future.

203 The plaintiff was educated to Year 10 and obtained her school certificate. She was employed in clerical positions until she became a nursing aide. Aside from time out of the work force when her children were born she continued in employment until 1995 when she injured her back.

204 She was not engaged in paid employment again until she and Mr Lawson commenced the pest control business conducted through Fumapest Hunter. This business commenced in 2001 after the plaintiff had been trained on an unpaid basis over a period of eleven months.

The plaintiff’s pre-accident workload

205 The plaintiff’s evidence was that prior to the accident, after a considerable period of training, she undertook all of the office and administration work for Fumapest Hunter. She said this work occupied her for long hours over six days per week.

206 The evidence was that Fumapest Hunter was established on 1 August 2001 and operated in the Hunter Region and to the west of the Hunter. The plaintiff worked from an office in the various homes that she and Mr Lawson occupied. The homes were equipped with six telephone lines, one of which serviced the facsimile machine. Her days started at 6 or 6.30 am and she took telephone calls commencing from at 7 am. The plaintiff received inquiries from customers, typed up quotations, co-ordinated and paid the pest control technicians, attended to banking and credit card payments and kept the books of the business. Those books included the booking in book (also referred to as the daily work customer booking sheets), batch header sheets from which the royalties payable to Fumapest Group were calculated, log books, cheque books and deposit books.

207 The log books were entered up daily and contained records of the address of each job, the nature of the service to be provided, the technician who carried them out, and the price quoted and the amount paid.

208 The plaintiff claimed that she kept absolutely all of these records prior to the accident.

209 The plaintiff used a computer to type documents. She used software provided by Fumapest Group to prepare a daily work report. Green copies of the batch header sheets were sent to Fumapest Group monthly.

210 The pest control technicians comprised Mr Lawson and up to three others, depending upon the workload. Aside from Mr Lawson, she paid the technicians weekly in cash on a commission basis.

211 The plaintiff’s sister, Janice Mason, came to live in the Lawson home about six months prior to the accident. The plaintiff said that Ms Mason had little involvement in the business prior to the accident because she had not received appropriate training. She said that the only function performed by Ms Mason was taking telephone messages, rarely or about one per day.

212 Ms Mason said that initially she did nothing to assist the plaintiff in the business before the accident. After a while she became bored and began to go into the office where the plaintiff was working. The plaintiff started to show her how to do a few things. She was allowed to take messages from telephone calls that she passed on to the plaintiff. When the plaintiff became very busy, Ms Mason started writing up some of the records of the business.

213 The books indicated that Ms Mason in fact wrote up a considerable number of the records of the business prior to the accident. The plaintiff agreed that Ms Mason’s handwriting appeared on pre-accident batch header sheets, booking sheets and almost exclusively in the log books.

214 The evidence of the plaintiff and Ms Mason in this regard was further undermined by the terms of an email sent by the plaintiff to Mr DuBois on 24 April 2002. The plaintiff informed Mr DuBois that she was to be hospitalised for a period and stated:

…I have an excellant (sic) lady in the office to handle everything whilst I am in hospital, who also happens to be my sister, Janice, with my daughter Melanie in attendance as well, a real family affair isn’t it. I am writing this email as I will be in an out of the office most of the day today, leaving Janice in charge …

215 Ms Mason denied that she was paid for any of this work.

216 The plaintiff’s evidence that she did all of the administrative work for Fumapest Hunter prior to the accident was clearly not true.

The date from which the plaintiff ceased employment

217 The plaintiff initially stated that she worked for about two weeks after the accident and that she then ceased work permanently. This claim was also made to a number of the doctors who examined her. She subsequently stated that she was unsure how long she worked after the accident. She said she continued in her office role until she had no idea what she was talking about and that she had no concept of time.

218 She said that Ms Mason then helped in the office much more and that she answered telephones and took messages that were relayed to Mr Lawson on his mobile phone.

219 Mr Lawson said the quality of the plaintiff’s work declined gradually after the accident. She became unreliable and had particular difficulty taking instructions from clients. He began receiving complaints from clients about six to eight weeks after the accident. It came to the point where the plaintiff was unable to continue.

220 Ms Mason said that within a few days to a week of the accident the plaintiff was unable to concentrate sufficiently to operate the telephones.

221 Taken to records of Fumapest Hunter, the plaintiff agreed that her handwriting appeared on a substantial number of them up the end of December 2002. At this time, she said, she was suffering from extreme weakness in her hands and was unable to write and had problems with concentration. The plaintiff was subsequently diagnosed as suffering from carpal tunnel syndrome, a condition that she acknowledged was unrelated to the accident.

222 The plaintiff agreed that she continued to type documents, including quotations, because Ms Mason could not type. She agreed that she continued to take calls on the six telephone lines, deal with inquiries, prepare quotations and make entries on the booking in sheets. She continued to take credit card payments and attend to matters of banking. Copies of email correspondence produced by Mr DuBois confirmed that the plaintiff continued to communicate with Fumapest Group after the accident. The plaintiff signed and typed quotations on behalf of Mr Lawson. There was correspondence with Fumapest Group dealing with outstanding royalty payments and with Pacific Access Pty Limited dealing with payment for Yellow Pages advertising. All of this correspondence post dated the accident.

223 The plaintiff stated that when she and Mr Lawson moved to Dubbo the business of Fumapest Hunter was closed down. There was no evidence of the precise date of this move. The plaintiff said they lived there for a period of 12 months before moving back to the Central Coast. Letters from Dr Handcock with an address in Dubbo were dated March and October 2006 respectively, suggesting that the plaintiff lived there during 2006.

224 Mr Lawson said the business continued until he resigned by letter to Fumapest Group. He initially believed that this had occurred in May 2003 but subsequently located his letter of resignation that was dated July 2003. The circumstances of this letter of resignation have already been discussed.

225 The plaintiff and Mr Lawson said that the Fumapest Hunter business ceased because they could not physically continue with it.

226 There appeared to be no records of any operations of Fumapest Hunter after 6 February 2003. The plaintiff was unable to explain this sudden cessation of records. Mr Lawson suggested, alternatively, that records were not kept because the plaintiff was no longer able undertake the office work of the business or that the records were lost. The evidence strongly pointed to this as the date from which the plaintiff and Mr Lawson commenced operating the business of Hot Shots Pest Control.

227 The first of these explanations was contrary to the evidence that Ms Mason stepped into the plaintiff’s position in keeping the records of the business. The loss of the documents is dealt with elsewhere in these reasons.

228 It was apparent however, that the evidence of the plaintiff and Ms Mason that the plaintiff was unable to fulfil her pre-accident role in the business within a short period after the accident was untrue.

The profitability of the Fumapest Hunter business

229 The records of Fumapest Hunter indicated that the number of jobs booked in increased after the accident. It was acknowledged by Mr DuBois that the business was seasonal and that an increase in workload during the summer months was to be expected. Mr DuBois also stated that the numbers of jobs recorded as having been booked in during the course of the Fumapest Hunter business were within the range expected of franchisees.

230 It appeared therefore that, at least to the end of January 2003, whatever may have been the plaintiff’s condition, the turnover of the business was not adversely affected.

231 The only evidence of the financial returns from the business of Fumapest Hunter was contained in the tax returns for the company prepared by Mr Perry, accountant, for the financial years 2002 and 2003.

232 The 2002 return reported a gross income of $272,945 and expenses of $272,945. This result was achieved by distributing to the plaintiff and Mr Lawson in equal shares the surplus of income over expenditure so that they were each shown as receiving $69,994.

233 The 2003 return reported a gross income of $106,827 and expenses of $106,827. By the same method the plaintiff and Mr Lawson were shown as receiving $32,494.

234 Attached to the tax return for Fumapest Hunter for 2002, titled Acknowledgment of Information Provided to BDO Kendalls (NSW) for the Preparation of 2003 Income Tax Return, was a document listing the information provided to Mr Perry. This document noted a significant number of deficiencies in that information including the absence of income books, invoice books and summaries of income for parts of the period, invoices for acquisitions for part of the period, no reconciliations of GST, PAYG-Withholding or Superannuation, incomplete records and the specific instructions to prepare tax returns but not to lodge them. Mr Perry confirmed that Mr Lawson signed an acknowledgement in this form for the 2002 and 2003 tax returns.

235 Questioned about the whereabouts of the missing documentation, the plaintiff referred the matter to Mr Lawson.

236 Mr Lawson stated that Fumapest Hunter’s records were packed in boxes during the various moves made by the couple between 2002 and the time at which the accounting materials were produced to Mr Perry. Some of the boxes were lost. They remained lost to the date of the hearing.

237 The absence of these materials undermined significantly the accuracy of the expenses of the business listed in the tax returns.

238 The plaintiff said that she paid meticulous attention to keeping the records of the expenses of the business. Mr Lawson said that the receipts for the expenses were placed into envelopes by himself, the plaintiff and the plaintiff’s daughter Melanie during the course of each month. He said they were kept in one central location and he removed none of them before he had handed to Mr Perry a box full of these envelopes.

239 Mr Perry said he received invoices and receipts in a number of boxes in no chronological order, some were in envelopes, but overall the boxes were in a mess. According to Mr Perry, his staff sorted the invoices and receipts into chronological order and placed them into a series of envelopes.

240 Mr Perry also identified a number of missing documents, including cheque books, deposit books, bank statements for the months of September and October 2002 and invoices for purchases of chemicals, motor vehicle expenses and other expenses of that nature. Mr Perry stated that, in the absence of these invoices, the only way of quantifying the expenses involved was by inquiry of Mr Lawson. His calculations were based on the information provided by Mr Lawson.

241 The expenses listed by Mr Perry in the tax returns contained no specific entry for the provision of motor vehicles. The plaintiff said that three or four vehicles were used in the business, one of them purchased on a hire purchase arrangement. There were no specific expenses listed for the costs of registration, insurance, fuel and maintenance of these vehicles. There were no specific expenses listed for the cost of chemicals. Mr Lawson agreed that this expense amounted to 10% to 15% of the turnover of the business. He initially estimated that the monthly expenditure on chemicals ranged from $50 to $2,000. He subsequently agreed that it was never as low as $50. No specific expenses were listed for the cost of hiring plant and machinery or for mobile telephones.

242 These expenses were paid from the cash receipts of the business that were never banked. Mr Lawson said that invoices for these payments were provided to Mr Perry. Mr Perry specifically denied having received invoices for these expenses. I had no reason to doubt the evidence of Mr Perry.

243 In addition to these deficiencies in the income tax returns, it was apparent that they did not make provision for liabilities of Fumapest Hunter. Mr Lawson agreed that, when the business ceased, he owed an unspecified amount of money to Globe Chemicals. No provision was made for unpaid income tax, goods and services taxes, superannuation or royalties owed to Fumapest Group.

244 The result of these deficiencies was that, as agreed by Mr Perry, the financial results of Fumapest Hunter as expressed in the 2002 and 2003 tax returns were entirely inaccurate.

245 Significantly, Mr Perry was not provided with any records indicating that Fumapest Hunter traded after 6 February 2003.

The income received by the plaintiff from the Fumapest Hunter business

246 As indicated, I was unable to place any reliance upon the tax returns of Fumapest Hunter for 2002 and 2003 in determining the plaintiff’s pre-accident income earning capacity, claimed as $935.90 per week. I was invited to reduce this claim, for the period of July 2003 to date by 25% to take account of the incomplete records.

247 Having regard to the significance and number of expenses and liabilities not taken into account in the preparation of the tax returns, I propose to reduce the sum claimed by 60%.

The plaintiff’s post accident income earning capacity

248 I was faced with similar difficulties in assessing the plaintiff’s income after the accident and her continuing income loss, if any, arising from the accident.

249 The evidence already referred to established that the plaintiff did continue to work in the Fumapest Hunter business at least until December 2002.

250 In spite of her denials of any knowledge of what business was being operated after that date, there are many indications in the medical reports that the plaintiff worked in the family pest control business beyond December 2002.

251 Dr Spittaler reported in September 2003 that he was informed that the plaintiff worked as an office manager for her husband’s pest control business. By that date, on any version of what happened to Fumapest Hunter, it had ceased to operate. Mr Peres, physiotherapist in June 2003 reported that the plaintiff claimed to have been unable to perform any functions in the business since the accident and that she wanted to return to managing the office that her sister was running. Ms Bell, occupational therapist, reported that the plaintiff and Mr Lawson earned income from a part time pest control business and that in the week before her consultation on 17 July 2003, the plaintiff had answered the telephone twice, responded to inquiries and booked a pest inspection. Ms Bell also reported that the plaintiff said she was spending large periods of time in the office using the computer, sitting in the office chair and talking to her sister. Dr Walden reported in November 2003 that she was informed that Mr Lawson had started a new business. Mr Silcock, physiotherapist, reporting on the plaintiff’s vocational options in February 2004, stated that plaintiff wished to return to managing the family pest control business and that she could not be drawn on any other vocational option.

252 The plaintiff possessed clerical, administrative and computer skills as well as experience in the operation of a small business. These skills suggested that the plaintiff’s most likely future income earning circumstances were employment in clerical work.

Findings – Income loss

253 The plaintiff’s pre-accident medical history indicated that her income earning capacity was already limited by conditions affecting her neck and back which precluded her from heavy physical work.

254 The plaintiff’s claim that she single-handedly managed the administrative side of the business of Fumapest Hunter is rejected. There was clear evidence that Ms Janice Mason provided a substantial degree of assistance to the plaintiff.

255 The plaintiff’s claim that she was unable to continue her role with Fumapest Hunter within a short period after the accident is rejected. There was clear evidence that she continued with this work until Fumapest Hunter ceased its operations.

256 There was one area of consistency concerning the plaintiff’s medical condition, namely in the evidence of Ms Janice Mason and Miss Jodi Mason, who both stated that the plaintiff suffered from significant difficulties in a six month period in 2003. There was also evidence that, while the plaintiff appeared to be continuing to participate in the family pest control business, she was reliant on pain relieving and anti-depressant medication. I accept that it was probable that her income during this period was diminished.

257 Assessment of the quantum of the plaintiff’s past income loss was very difficult because no reliance could be placed on the tax returns prepared by Mr Perry.

258 Doing the best I can with the material available I have assessed the plaintiff’s past income loss at 60% of the amount claimed.

259 The recovery of that loss is limited to the period of 18 months after the accident. I have already decided that the plaintiff ought reasonably to have recovered from any injuries suffered in the accident within this 18 month period. At that stage, but for the feigning of her symptoms, the plaintiff would have been capable of returning to the administrative clerical work that she was undertaking prior to the accident.

260 I find that there is no continuing loss of income earning capacity resulting from the accident.

Personal and Domestic Assistance

261 The plaintiff claimed considerable sums for past and future personal and domestic assistance.

Domestic Assistance

262 The plaintiff’s evidence concerning her role in the household was contradictory and confused. She initially stated that prior the accident she did all of the housework and most of the cooking. Asked about her sister’s role, she said that Ms Mason did some of the housework. She later said that Ms Mason took over the majority of the housework. Asked about her capacity for housework having regard to the back injury she suffered in 1995, the plaintiff said that Mr Lawson did most of the heavy housework, such as vacuum cleaning, mopping, cleaning windows and lifting furniture before Ms Mason moved in.

263 Mr Lawson said that prior to the accident the plaintiff did all of the housework effectively and without complaint of back pain, aside from normal aches and pains. He subsequently said that the plaintiff and Ms Mason did the housework but he did not know the proportions in which they shared the work because he was never at home.

264 Ms Mason said that when she first moved in the plaintiff did all of the housework although she occasionally did some washing. Otherwise she spent much of her time reading or she sat in the office with the plaintiff. She also occasionally cooked. She agreed that a statement to the effect that she did the majority of the housework, except the cooking, after she moved in and that she liked housework would be false.

265 Miss Jodi Mason said that she observed the plaintiff doing most of the housework before the accident with her Aunt Janice doing light cleaning such as dusting and tidying the kitchen now and again and all of the washing. She said Ms Mason was not really good at major cleaning. She said the plaintiff had no problem doing the vacuum cleaning and housework such as that.

266 There were various versions of how the housework was done after the accident.

267 The plaintiff said that she did none of the housework or cooking. She offered only that she might occasionally wipe over the kitchen bench. Her diet consisted of fruit, chocolate milk and cornflakes and she prepared these items herself. Mr Lawson did all other food preparation and all other housework. She said she was unable to hang out washing because she feared that she would fall over and she feared going out of the house. She agreed that she could load washing into the washing machine and remove it and place it in a basket.

268 The plaintiff said this situation continued until Mr Lawson suffered a heart attack and required major surgery, when her daughter Jodie took over the housework. She tried to help Mr Lawson after his surgery by doing shopping at Erina Fair and some light housework.

269 Mr Lawson said that after the accident Ms Janice Mason did all of the housework until she returned to Dubbo in August 2004. He had done all of it since that date. His chores he described as washing, ironing, vacuum cleaning, shopping, paying the bills, washing up, cooking, sweeping and mopping, bed making and changing. He agreed that the plaintiff loaded the washing machine and did some dusting. He estimated the time he spent at 3 to 3.5 hours per day.

270 Mr Lawson was questioned about his capacity to do this work in the light of a claim that he made arising out of a slip and fall incident that occurred in 1997. It appeared that as a result of this incident, Mr Lawson claimed that he suffered from severe neck pain and headaches, sleep disturbance, and low back pain extending into his thighs. He denied that he had exaggerated or fabricated these claims.

271 Ms Janice Mason said that after the accident she took over all of the housework except the cooking. Mr Lawson cooked. She did the vacuum cleaning, dishes, washing, ironing and mopping. Ms Mason estimated the time spent at 2 to 2.5 hours per day on weekdays and 1 hour or more at weekends.

272 Ms Mason agreed that at Christmas 2002, three months after the plaintiff’s accident, she fell and suffered back and sciatic pain. Centrelink granted her a disability pension in February 2004 because of this injury to her back as well as her left arm. Ms Mason said that she continued to do the housework although with pain and that sometimes she let things go, not cleaning the bedrooms or vacuuming cleaning for up to two weeks.

273 Miss Jodi Mason said that she started helping her mother out within two weeks of the accident. She went to the plaintiff’s home during the day about three times a week to tidy the house, vacuum clean, make the beds, hang out the washing, put away dishes, take out the garbage. She said she continued to provide this level of assistance with housework, although because she was now in paid employment, the days on which she helped had changed. Miss Mason said she spent about 1 to 1.5 hours on housework on each of these three days. Ms Mason subsequently said that she had been doing this housework for a period of two years or more.

Personal Assistance

274 The plaintiff said that she was able to shower independently provided someone was in the house. She was not able to bathe because she could not get in and out of the bath. She was able to dress although she did not wear clothes unless she was going out to medical appointments, preferring to stay in night clothes. Whether she needed help putting on her shoes depended on her pain level.

275 Mr Lawson said that he supervised the plaintiff’s showering and dressing. He said that she was able to attend to these functions independently but unless he encouraged her, she did not shower. At times she spent the whole day in her nightdress.

276 Ms Janice Mason said that the plaintiff had needed personal assistance from time to time because there were some stages when she was in such a state that she needed help with showering, drying and dressing. This continued up to the time Ms Mason left the household in 2004. Ms Mason also said that during the period from January 2003 and June or July 2003, when the plaintiff was really bad, she was required to sit with the her for anything up to two hours.

The telephone call to Mr Graziano

277 Mr Graziano was a team manager employed by the defendant’s insurer to whom responsibility for the plaintiff’s claim was allocated. His evidence was that pursuant to s 83 of the Motor Accidents Compensation Act 1999 he approved payments made on the plaintiff’s behalf for medical expenses. He also approved a number of lump sum payments to or on behalf of the plaintiff in advance of settlement on the basis of financial hardship.

278 In 2004 Ms Janice Mason and the plaintiff argued and Ms Mason left the Lawson home. In January 2005, after another dispute, Ms Mason telephoned Mr Graziano and said that she wished to withdraw a statement she made about the level of care she provided for the plaintiff. She told Mr Graziano that she had not in fact provided those care services. She said what she described as nasty, vindictive things. She described the plaintiff as a drama queen, and a good actress and said that Mr Lawson was always talking about money. She also told Mr Graziano about a loan of $30,000 that she had provided to the plaintiff and Mr Lawson in 2002.

279 Ms Mason said that she very much regretted having said these things to Mr Graziano. She said she lied to him to cause trouble for the plaintiff. She said she did this because it was a feature of her personality to cause mischief and exaggerate at that time. Since witnessing the dignity of her father’s death she had changed her attitude. Lying was no longer a feature of her personality. She denied that she lied to the court in any part of her evidence.

Expert Evidence

280 There was no current expert evidence to deal with this part of the plaintiff’s claim.

281 The plaintiff relied on reports of Ms Cadby, occupational therapist, dated August 2004. Mr Davy, accountant, costed Ms Cadby’s assessment in a report dated June 2005.

282 Ms Cadby’s report was based on assumptions that included significant physical injuries, including the left ankle fracture, in addition to psychiatric injuries with little prospect of improvement. She noted that she was informed that the plaintiff was responsible for most domestic tasks prior to the accident and that after the accident she became fully dependent upon Mr Lawson for assistance so that he was required to abandon his business. Ms Cadby described the plaintiff’s experience of pain as overwhelming so that she exhibited self limiting behaviours and was dependent on her family for household tasks and emotional support. The plaintiff displayed significant distress associated with pain, significant activity limitation and avoidance behaviour.

283 The plaintiff informed Ms Cadby that she undertook some limited household tasks and that she had attempted to maintain her normal household regime for the first few weeks after the accident with minimal assistance. Thereafter her requirements were significant. She assessed the plaintiff’s requirements for personal care, domestic assistance, house and property maintenance and occasional activities at 6.6 hours per week for the period between 12 September 2002 to 14 October 2002, and at 27.10 hours per week from 15 October 2002 to August 2004, the date of her report. Her assessment for future needs was 12.20 hours per week.

284 In addition, Ms Cadby recommended that certain aids be provided to assist the plaintiff to perform more easily her domestic work and to manage her personal care.

285 The defendant relied on the assessments provided by Ms O’Dwyer in December 2005 and Dr Harvey-Sutton in January 2006.

286 Ms O’Dwyer, occupational therapist, visited the plaintiff at her home in Dubbo in December 2005. She described the plaintiff as distressed and, at times, hysterical with the majority of the two hour interview occupied in calming her. Ms O’Dwyer reported difficulties in undertaking her assessment because of inconsistencies in the plaintiff’s presentation and her limited opportunity for observation.

287 Ms O’Dwyer assessed the plaintiff’s need for domestic assistance at two hours per week on the basis of the clinical pathology disclosed in medical reports and the level of functioning of the plaintiff that was reported in 2003. To deal with the plaintiff’s psychological presentation, she recommended intensive psychiatric treatment with a further assessment to follow. She stated that recommendations for care would reinforce the plaintiff’s current situation.

288 Dr Harvey-Sutton noted that the plaintiff’s capacity for housework was affected prior to the accident by the pre-existing injuries to her back and neck. She accepted as reasonable the assessment of 6.6 hours per week to meet all of the plaintiff’s needs from the time of the accident and for a further two to three years. She rejected the assessment of 27.10 hours per week on the basis that it was not justified by the injuries suffered in the accident.

289 Dr Harvey-Sutton also accepted as reasonable the aids proposed by Ms Cadby, limited also to the period of two to three years.

290 The limit of further assistance to a period of two to three years was based on Dr Harvey-Sutton’s recommendation that provision be made for the plaintiff to have intensive psychotherapy over a period of two years at a cost of $3,000 and for reconditioning when her psychological problems were overcome at a cost of $1,500.

Findings - Care

291 There was much inconsistency in the evidence concerning the extent to which the plaintiff was responsible for housework prior to the accident. Ms Janice Mason’s statement that the information provided to Mr Graziano was totally untrue left her evidence on this topic without credit.

292 Regardless of this evidence, my function is to decide the extent to which the plaintiff reasonably required domestic or personal care as a result of injuries suffered in the accident.

293 The plaintiff claimed support from Dr Harvey-Sutton’s assessment of the plaintiff’s needs for attendant care at 6.6 hours per week past and future. Examination of Dr Harvey-Sutton’s report of 19 January 2006 made it clear that this assessment was influenced by the disabilities suffered by the plaintiff prior to the accident and to a major extent by the plaintiff’s presentation as disordered emotionally and behaviourally. I have rejected the plaintiff’s claims that this presentation was the result of the accident.

294 The plaintiff’s pre-existing condition of her back and neck resulted in a pre-accident requirement for assistance with heavy housework.

295 I do not accept that there was evidence to indicate that the plaintiff was at any stage rendered entirely incapable of performing housework. The plaintiff herself accepted that she remained capable of some light housework.

296 I am not satisfied that the plaintiff established that a need arose as a result of the accident for assistance with personal or domestic care to the required threshold level of six hours per week for a period of six months provided for in s 128 of the Motor Accidents Compensation Act 1999

297 Having rejected the plaintiff’s claims of ongoing disability resulting from the accident, it follows that I find that there is no associated need for future care or for the aids suggested by Ms Cadby.

Medical expenses

298 Medical expenses to the date of the hearing were claimed in the sum of $57,007.55. This figure was mathematically agreed but the defendant did not accept that the whole of this sum was related to the treatment of injuries or disabilities resulting from the accident.

299 I allow the plaintiff’s medical expenses for a period of 18 months from the date of the accident. In the absence of the necessary information from which to calculate the amount to be allowed, the parties are requested to consult and agree upon the appropriate figure.

300 For reasons already stated I make no allowance for medical expenses that may be incurred by the plaintiff in the future.

Issue 4 - Summary

301 Compensation to be awarded to the plaintiff is assessed as follows:

Non Economic Loss $60,000
Past Out of Pocket Expenses (to be calculated)
Future Out of Pocket Expenses nil
Past Economic Loss $13,731
Future Economic Loss nil

Equipment nil

ORDERS

302 The proceedings are adjourned to a date to be fixed to finalise the calculation of the judgment sum, deal with issues of costs and to enter final orders.

303 My reasons are published.

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CITATION:	Lawson v Bourke [2008] NSWDC 100
HEARING DATE(S):	26-29 November 2007, 3-7 & 10 December 2007
JUDGMENT DATE:	18 June 2008
JURISDICTION:	Civil
JUDGMENT OF:	Sidis DCJ
DECISION:	1. Stood over to a date to be fixed to finalise the calculation of the judgment sum, deal with issues of costs and to enter final orders. 2. My reasons are published.
CATCHWORDS:	MOTOR VEHICLE ACCIDENT - Credit - Whether plaintiff feigning physical/psychiatric injury and disability - Weight to be placed on psychological testing
LEGISLATION CITED:	Motor Accidents Compensation Act 1999
PARTIES:	Merrill Dawn Lawson Kristy Bourke
FILE NUMBER(S):	Newcastle 102/07
COUNSEL:	H Halligan (Plaintiff) S E McCarthy (Defendant)
SOLICITORS:	Brazel Moore (Plaintiff) McLachlan Chilton (Defendant)