Liu v Jiang
[2013] NSWDC 184
•20 August 2013
District Court
New South Wales
Medium Neutral Citation: Liu v Jiang [2013] NSWDC 184 Hearing dates: 13 - 16 May, 19 & 20 August 2013 Decision date: 20 August 2013 Before: Neilson DCJ Decision: I give verdict and judgment for the plaintiff against the defendant for $220,845.50
Application for indemnity costs is refused
I order the defendant to pay the plaintiff's costs of the proceedings on the ordinary basis
Catchwords: CIVIL - Personal injury - Motor vehicle accident - Fact-finding - Issue of plaintiff's previous medical history - Assessment of credibility of plaintiff - Issue of language difficulties faced by plaintiff and issues regarding translation - Question of plaintiff's pre-accident work history - Plaintiff and defendant having different versions of how accident occurred - Very low impact collision - Defendant having similar language difficulties to plaintiff - Both drivers guilty of negligence - Question of apportionment - Each driver equally responsible because each failed to keep a proper lookout - In pari delicto - Plaintiff entitled to recover 50% of damages which she would otherwise recover Legislation Cited: Motor Accidents Compensation Act 1999 Category: Principal judgment Parties: Ping Liu (Plaintiff)
Min Jiang (Defendant)Representation: Mr A Lidden SC & Mr A Foel (Plaintiff)
Ms C Allan (Defendant)
Brydens Compensation Lawyers (Plaintiff)
Sparke Helmore (Defendant)
File Number(s): 2011/405729
Judgment
The plaintiff brings an action for damages for personal injury which she claims she sustained in a motor vehicle accident on 16 December 2008. That day was a Monday. The plaintiff's damages are governed by the Motor Accidents Compensation Act 1999.
This is a somewhat unusual case as there are only two relevant witnesses on the question of liability. Those witnesses are the plaintiff and the defendant. The plaintiff was born in Shanghai on 11 August 1964. At the time of the motor vehicle accident in question she was 44 years old. She has just turned 49 years. The defendant was born in the People's Republic of China on 8 June 1968. At the date of the accident she was 40 years old and is currently 45 years old. The plaintiff initially came to Australia in 1990 but returned sometime thereafter to China. She returned to live permanently in Australia in 1996. The defendant moved to live permanently in Australia in 1996. She had left China in 1993 when she moved to the Netherlands, but in 1996 left the Netherlands to migrate to Australia. The plaintiff and the defendant share much in common. A large thrust of the defendant's case concerns the credibility of the plaintiff. Indeed the credibility of the plaintiff, the defendant submits, is crucial to my determination of the question of liability. Ms Allan, learned counsel for the defendant, commenced her address essentially by pointing to questions concerning the plaintiff's credit. Mr Lidden SC, who, with Mr Foel, appeared for the plaintiff, adopted the same course of action. It is convenient that I also follow upon that same course.
In this motor vehicle accident, the plaintiff alleges that she injured her neck and her left shoulder. In her claim form, executed on 9 June 2009, the plaintiff answered question 34 in this fashion:
"Q. Have you had another injuries, disability or illness, before or since the accident, to the same part[s] of your body?
A. No."
The plaintiff was assisted in completing that claim form by her solicitor, Mr Stephen Young, whom the plaintiff told me spoke her language, Mandarin. There is now no dispute that in the past the plaintiff has had problems with her left shoulder. Records have been produced on subpoena by the Multicare Family Medical Centre at 240 Liverpool Road, Ashfield. It would appear that the plaintiff mainly consulted Dr Chan at that clinic. The records of the clinic go back to at least 1997. On 30 January 2002 there is a complaint about the plaintiff's left shoulder being the site of pain. There is reference to an ultrasound showing a large subdeltoid bursa and a problem with the coracoacromial ligament. There is further reference to the plaintiff's left shoulder on 2 February 2002, when it was noted that it was interfering with her housework, and also on 23 February 2002. The next relevant entry appears to be on 10 August 2002, again about the plaintiff's left shoulder. On 10 August 2002 an ultrasound of the left shoulder was performed. The report of that investigation was made by Dr Roger Head. He records a moderate, contained effusion within the subacromial bursa, the walls of which were thickened.
On 31 August 2002 the plaintiff again attended at the clinic with that ultrasound investigation and was prescribed physiotherapy which would appear to have been carried out at Canterbury. There were attendances again for the plaintiff's left shoulder on 5 September and 14 September 2002. On 20 May 2003 a further ultrasound of the plaintiff's left shoulder was carried out and again reported by Dr Head. The report was addressed to Dr Chan. The comment made by Dr Head is this:
"The symptoms today are suspicious of adhesive capsulitis or acute synovitis. If they fail to resolve, intra-articular long-acting steroid injection may again give relief, and this time it would be aimed at the gleno-humeral joint rather than the subacromial bursa."
The records of the clinic then show the plaintiff as attending again upon Dr Chan on 28 May 2003, where this complaint of left shoulder pain is categorised as a "second episode". On 30 May 2003 the plaintiff attended upon Dr Head, who injected 10 milligrams of Kenacort into the gleno-humeral joint. Dr Head's report continues thus:
"The procedure was well tolerated and uneventful, and the patient reported immediate relief, suggesting that synovitis or capsulitis would be the most likely diagnosis."
However, the plaintiff went to see the clinic again on 4 November 2003 and reported that her left shoulder was still aching. The plaintiff returned to the clinic about her left shoulder some eleven months later on 12 October 2004. There was a complaint of increasing left shoulder pain persisting. There was a suggestion in the notes that further physiotherapy was to be carried out. Following up that consultation, and perhaps on the following day, Dr Chan wrote a medical certificate using Centrelink stationery certifying the plaintiff as fit for restricted work only on account of the condition of her left shoulder and upper arm. According to exhibit 12, records of the Department of Human Resources of the Commonwealth of Australia, the certificate issued by Dr Chan certified the plaintiff as unfit for work from 18 October 2004 to 17 January 2005.
The records of the clinic at 240 Liverpool Road, Ashfield do not make any further reference to the plaintiff's left shoulder prior to the occurrence of the motor vehicle accident on 16 December 2008. However, between 17 October 2004 and 16 December 2008, there are a number of attendances by the plaintiff at the clinic. There were nine such attendances. None of them, as I have just said, was for anything to do with the plaintiff's left shoulder, or her neck.
The plaintiff was cross-examined about her earlier left shoulder complaints. She admitted some earlier complaints in chief and admitted further complaints in cross-examination. It was put to the plaintiff that she denied to Dr Mastroianni and Dr Marsh that she had any such complaints but the plaintiff explained any such denial by reason of the fact that her problem in the past had been different and had gone away. It is clear, however, when one reads the reports of Dr Mastroianni and Dr Marsh, that the plaintiff did deny to those medical practitioners any earlier complaint concerning her left shoulder condition. However, there is no consistent pattern of any such denial. For example, the plaintiff saw Dr Alex Woo on 8 February 2012 and also on 7 March 2012. Dr Woo prepared a report bearing date 12 March 2012. In that report he says this:
"She had [a] history of left shoulder pain in 1999/2000. She was treated with injection [sic] and recovered."
The plaintiff saw Dr Mohammed Assem for the Motor Accidents Authority on 15 October 2012. Dr Assem obtained his history about the plaintiff's earlier left shoulder problems.
"She has a history of a previous injury to her left shoulder that occurred in 1999 or 2000. The injury occurred while digging a hole in her garden. She received physiotherapy treatment that she found beneficial. An ultrasound examination on 14 August 2002 showed thickening of the subacromial bursa with moderate fluid effusion.
A repeat ultrasound on 20 May 2003 was suspicious of adhesive capsulitis or acute synovitis. She was given a cortisone injection to the left shoulder with an improvement in her symptoms. She claimed that there was no longer any pain, weakness or restriction in movement. She did not consult her local doctor again for any further treatment."
The plaintiff was also interviewed by Ms Carolyn Grinter, an occupational therapist, on 24 January 2003. Inter alia, Ms Grinter obtained this history:
"She states that she injured her left shoulder many years ago while gardening however she made a full recovery with no physical restrictions."
I observe in passing that that one sentence I have quoted ought to have been divided by counsel into two sentences.
Where a plaintiff consistently seeks to conceal a pre-existing injury or medical condition, a court is entitled to be completely sceptical about such a plaintiff's candour and such a plaintiff's reliability and honesty. However, on this issue the plaintiff has not sought conceal the pre-existing problem at all. The question becomes one of detail and perhaps, as has been submitted by learned senior counsel for the plaintiff, one of language and translation. The plaintiff admits, in essence, to most of the practitioners an earlier problem with her left shoulder for which she was treated and from which she recovered. Objectively, when one looks at the clinical notes of the practice at 240 Liverpool Road, Ashfield, one can see that there was recovery after October 2004. The issue in the plaintiff's mind may have been when did she recover, was it 2002 or 2003 or 2004? The plaintiff sought to say in evidence that her condition in the past was different to her condition at the current time. The dichotomy voiced in the evidence is between "infection" and a "complete tear of the tendon".
The evidence at the current time is that there is a full thickness tear of the supraspinatus tendon. The diagnosis in the past is essentially of bursitis or synovitis, each a form of inflammation. One wonders whether the plaintiff would know the difference between an infection and an inflammation. One must consider whether the distinction can be drawn in a foreign language such as Mandarin and, if so, whether that is a learned distinction or a popular distinction. I would take the a priori view that formal Chinese would be able to draw the distinction between "inflammation" and "infection", but whether that difference would be known in popular speech amongst those without medical knowledge is a moot point. The difference in pronunciation and the appropriate ideograms are completely beyond my ken. I am aware of the richness of the English language to have many words which mean much the same thing to connote various shades of meaning, drawing as we often do, not only from the Teutonic roots of the English language but also from the vocabularies of Latin, French, Greek and other Indo-European languages.
Another consideration which must arise is the extent of the qualifications and capacities of interpreters and the fact that often different interpreters are used at different stages in a case such as the present one; that there might be one interpreter for one set of medical examinations, a different interpreter for another set of medical examinations, one interpreter to translate when the plaintiff is being interviewed by lawyers and another translator to be used in court. I have not actually voiced the obvious but the obvious is this: the plaintiff was born in Shanghai in China. Her native language is Mandarin and she usually was accompanied by an interpreter when attending medical examinations and a Mandarin interpreter was used when she gave evidence, although often the plaintiff was prone to answer in English and sometimes answers are recorded partly in English given by the plaintiff and partly in Mandarin which has been interpreted by the official court interpreter. It would be completely unsafe in the circumstances to lay too much emphasis on what would appear, on its face, to be an inconsistency when there are language difficulties involved, cultural difficulties involved and no consistent pattern.
Another alleged source of inconsistency leading to an attack upon the plaintiff's credit was the issue of her attending at the Royal North Shore Hospital immediately after the motor vehicle accident in question. In the plaintiff's car was her daughter, who was then three and a half years old. The plaintiff's daughter, Jennifer, was a backseat passenger. I assume that she was in some sort of child chair or child restraint. The evidence before me suggests that Jennifer may have struck her head and had a bruise. An ambulance attended and Jennifer was taken to hospital. As anyone would expect, the child's mother, the plaintiff, rode with Jennifer in the ambulance and attended with Jennifer at the casualty department and stayed with Jennifer until she was discharged from casualty.
After describing what happened in the accident the plaintiff said that after the accident, someone called for an ambulance, which "came very soon". The plaintiff was then asked whether she noticed anything that was wrong with her body. She said this, "I, I didn't know at that time." The evidence then continued thus:
"Q. By the time the ambulance arrived how were you feeling?
A. INTERPRETER: I, I didn't know at that time.
Q. You were then taken by ambulance to hospital, weren't you?
A. INTERPRETER: Because at that time I was looking after my baby in the car.
Q. Ms Liu, please concentrate on my question. Did the ambulance then take you to hospital?
A. WITNESS: Mm.
A. INTERPRETER: Yes.
Q. By the time it arrived how were you feeling?
A. INTERPRETER: I didn't know how I felt.
Q. Well, how long did it take you, Ms Liu, to decide that you knew how you felt?
A. INTERPRETER: The following day I felt pain all over my body.
Q. Could you be more specific, please? Which regions in the particular were most painful?
A. INTERPRETER: The whole body.
Q. Yes. Did they admit you into the hospital, Ms Liu--
A. INTERPRETER: Yes.
Q. --or did they send you home?
A. INTERPRETER: I was observed at the hospital for three hours, me and my child."
It is clear that Mr Lidden SC was asking the plaintiff a question, "Did they admit you into hospital, Ms Liu, or did they send you home?" and the plaintiff prematurely interjected with a positive, "Yes," and then the second part of her answer came out through the interpreter. This was taken as an assertion by the plaintiff that she had been admitted to hospital herself and was the subject of formal treatment by the hospital. However, it became abundantly clear that the plaintiff did not make any complaint to any medical practitioner or paramedic, such as a registered nurse at the hospital, about any physical complaint she had as a result of the motor vehicle accident. Indeed, a document produced on subpoena by the Royal North Shore Hospital confirms that it had no record of having treated the plaintiff at that or any other time.
It has been submitted that the plaintiff sought to mislead the Court as to her being treated at the hospital in order to exaggerate the extent of her injury. However, there is not again another consistent pattern. I have already pointed out that the histories recorded by Dr Mastroianni and Dr Marsh contain a denial of any earlier injury or problem with the plaintiff's shoulder. However, each of those practitioners has a history consistent with the proposition that the plaintiff had no treatment at the hospital. The relevant part of Dr Mastroianni's history is this:
"Ms Liu states that she was worried about her baby daughter who was in a baby seat in the back and wasn't concerned about herself.
Someone called an ambulance and her daughter was taken to Royal North Shore Hospital. She went with her daughter in the ambulance.
After assessing her daughter they were sent home. Ms Liu was not examined at the hospital."
The history recorded by Dr Nigel Marsh, who saw the plaintiff for the defendant's solicitor, is this:
"Ms Liu said that she was not in fact examined or sent for X-rays. She and her daughter were discharged after a few hours."
It appears also to me that the histories given by the plaintiff to Dr Mohammed Assem and Ms Carolyn Grinter are consistent with the histories recorded in this regard by Dr Mastroianni and Dr Marsh. Dr Assem's history is this:
"She was transported in the ambulance with her daughter to Royal North Shore Hospital where her daughter was noted to have bruising to her right forehead."
Ms Grinter's relevant history is this:
"Ms Liu's daughter was taken by ambulance to Royal North Shore Hospital and Ms Liu went in the ambulance with her. Ms Liu's daughter was assessed and then they were both discharged home."
Again, language has a large part to play in accurate history taking and accurate record making. The plaintiff said that she was seen in hospital. Undoubtedly she was seen in hospital by those who were attending upon her daughter. To be seen means to be observed. One can be observed but an experienced English speaker would know that to be observed in hospital technically means to be under the formal care and supervision, which means the same as observation, by medical staff. The next problem of course is the question of being sent home from the hospital might be used unidiomatically by those not familiar with the subtleties of the English language as being discharged home, but of course a discharge from the hospital has certain formalities attached to it which one not familiar with English phraseology may mistake for meaning being sent home with the best wishes of the hospital staff. As has been submitted by Mr Lidden SC, for the plaintiff, this cannot be the basis of any adverse credit finding.
The defendant also refers to the question of the plaintiff's pre-accident work history. The evidence on that might be thought to be garbled but there is only one area where there is the actual confusion and that area of actual confusion is of no moment. As I have earlier said, I do know that the plaintiff came to Australia initially in 1990 then left and returned to Australia in 1996. The evidence tells me that in her first period in Australia in 1991 and 1992 she worked at the Dragon Restaurant in Chinatown part-time on Saturdays and Sundays but at the same time she was working at another restaurant or restaurants from Monday to Friday. One restaurant identified is the Grand China Restaurant at Crows Nest. However, the evidence concentrated on the plaintiff's work history after her return to Australian in 1996. The plaintiff initially said that her last job before stopping work was at a restaurant in Ashfield. There appears to be no dispute that the plaintiff last physically worked in Australia in 2003: that can be found at line 35 on p 41 of the transcript.
According to the plaintiff's evidence, her work at the Shunde Chinese Restaurant in Ashfield was as a waitress. It was part-time for three days a week, for each of two shifts, one from 10.00 until 3.00 and the other from 5.30 until 10.00. The plaintiff said she did that work for six months. Her other work after 1996 but before 2003 was for a lingerie shop or chain of lingerie shops, which had premises both at Bankstown, Roselands and at Hurstville. The plaintiff's particular job in this lingerie chain was to sell brassieres; that caused some confusion as the interpreter kept referring to "bras" but his pronunciation of that word sounded like the word "brass". It took some short time to sort out that confusion. With that chain of lingerie shops the plaintiff worked four days per week for six hours per day. She gave her period of employment in that business for a period of some three years between 1999 and 2003. That would appear to have been the plaintiff's most recent employment in Australia, merely looking at things chronologically.
The only confusion was whether the work at the Shunde Chinese Restaurant preceded the work with the lingerie chain or succeeded the work with the lingerie chain. Again, little turns on that. It is common ground that the plaintiff lost the jobs because the restaurant shut down and because of a reduction of the lingerie chain from three shops to one shop. There are other explanations for why the plaintiff did not work after 2003. On or about 1 April 2003 the plaintiff consulted the clinic at 240 Liverpool Road, Ashfield, concerning a pregnancy. Unfortunately, that led to miscarriage in May 2003. However, the plaintiff's daughter, Jennifer, was born on 1 July 2005. It would appear that the plaintiff's attempts to become pregnant and the pregnancy itself were another one of the reasons why she stayed out of the workforce after 2003. The plaintiff gave up working essentially to care for her child when she was young. Even then she was obtaining benefits from the Department of Social Security because of her shoulder condition, and after the birth of her child she was being paid a single parent's benefit. Again I find no real credit issue when considering the plaintiff's pre-accident employment history.
Another issue that the defendant puts forward as a credit issue concerning the plaintiff was her evidence about her intention of re-entering the workforce. In her evidence-in-chief, the plaintiff said on p 8 of the transcript that she intended to return to the workforce part-time when her child was three years old and full-time when her child was between eight and ten years old, but she then refined that down to eight at the top of p 9 of the transcript. The plaintiff has not given consistent histories of that. The plaintiff told Dr Mastroianni, Dr Assem and Ms Grinter that she intended to return to the workforce when her child entered school. The fact is that at the time of the motor vehicle accident the plaintiff's child was three and a half years old and she had not yet returned to the workforce. However, again there might have been a problem. When the plaintiff said, "when her child went to school", did she make the formal distinction which a native born Australian would make between entering school at kindergarten or entering a pre-school at some earlier age, which is a modern and increasing pattern and, as I understand it, to be the pattern of life in mainland China.
Indeed, the plaintiff's evidence was that before the motor vehicle accident her child was attending "childcare", although she did not know whether that was childcare or pre-school or merely child-minding. However, that would indicate that as far as the plaintiff was concerned her child was being looked after and it is not inconsistent with the plaintiff's having an intention to re-enter the workforce when her child was three, albeit that she had not yet obtained such work. That is an inconsistency but the inconsistency does not reflect adversely on the plaintiff's credit. It is just something that has been left up in the air, unexplored. Furthermore, I hazard the observation that Mr Lidden SC is not the most gentle examiner-in-chief and can sometimes be somewhat curt. The cross-examiner's approach to the plaintiff was such as not to elicit much cooperation from the plaintiff in the elucidating of the truth. Put bluntly, the plaintiff did not appear to respond well to many aspects of being interrogated either by her own counsel or by learned counsel for the defendant or indeed by me.
Another area that is said by the defendant to reflect adversely on the plaintiff's credit was the question of domestic assistance. However, when looked at properly, one can see that there was an inconsistency in the plaintiff's evidence-in-chief. That is hardly consistent with the plaintiff deliberately setting out to mislead the Court. For example, this evidence was given on p 10. The plaintiff described her townhouse as having a front and back garden. There was a covered area at the back where there was a barbeque and which appears to have been made into a small kitchen. The evidence continued thus:
"Q. And so before this accident who was responsible for maintaining the front and back garden?
A. INTERPRETER: Myself.
Q. And the covered area that you had the small barbeque and kitchen, who was responsible for maintaining that?
A. INTERPRETER: Myself."
I must point out very gently to those listening to me at present that I am responsible for everything that happens in my Court. However, most things that happen in my Court are done either by my Associate or by the Court officer; they are not often done by me myself, even though I may direct that they be done. Being responsible for something does not mean that one does it oneself.
The form of Mr Lidden's questions was not appropriate. He should have asked as to who did the work in the front and back garden and who did the work maintaining the barbeque area at the back. At p 24 the plaintiff told me that her flatmate, Mr Jing Hua Shao, moved into the property to share the townhouse with her and her daughter in July or August 2008. Mr Shao himself told me that he thought he moved in August or September 2008. One can safely therefore assume that he moved in in August 2008. Initially, when Mr Lidden was asking questions, the plaintiff said that only she and her daughter were living at that address before the accident. That is at p 9. However, at p 24 the plaintiff admitted that he had moved in prior to then. The plaintiff admitted eventually that prior to the motor vehicle accident the plaintiff's flatmate was doing the lawn mowing of both the front and the back gardens and, if he did not do it, some other person was paid to do it. The plaintiff went on to estimate that the plaintiff's flatmate, Mr Shao, spent about six or seven hours per week doing the vacuuming and mopping and other work at her house and that essentially became the basis of the plaintiff's claim for attendant care services. However, in cross-examination the plaintiff admitted that that was only an estimate.
She admitted at the foot of p 72 that she did not calculate the amount of work he did for her and when asked if it could be four hours per week, for example, she said that she did not know if it were only four as she had not calculated the time that he actually spent doing things in her house. Mr Shao eventually gave evidence and said that what he was doing since the motor vehicle accident he had been doing before the motor vehicle accident, which makes the plaintiff's claim for care somewhat untenable. However, the plaintiff said inconsistent things in chief but did not seek to hide from the fact that her flatmate had been living at her premises prior to the accident and was helping her prior to the accident.
Another issue arose concerning Mr Shao and that was whether he was the father of the plaintiff's child and if the plaintiff and Mr Shao were, in essence, de facto spouses. That was largely based on a history recorded by Dr T O Clark, a consultant forensic psychiatrist who interviewed the plaintiff on 24 February 2010 at the request of the plaintiff's solicitors. He prepared a report bearing date 27 March 2010. At the foot of p 2, Dr Clark records this history:
"She is divorced and her ex-husband lives in China.
Her daughter, who is not yet at school, is by her present boyfriend. She described her boyfriend/partner as supportive.
However, she has a bad temper and they have verbal fights. She stated that they have rows, but she keeps her temper to the home. 'Not with the neighbours'.
She and her partner no longer sleep together. She has no libido."
It is true that the plaintiff had married. She married in 1993 but divorced in 2000; that is her sworn evidence. The plaintiff's chronology, MFI 1, identifies the name of the husband but that name was not given in evidence. The problem with Dr Clark's report is that it contains a large number of matters all of which are completely inconsistent with other facts and other histories. For example, Dr Clark has this history:
"She says she has developed diabetes since the accident and is on medication."
Ten months after the plaintiff was interviewed by Dr Clark she was interviewed by Dr Marilyn Moore, a psychiatrist for the Motor Accidents Authority. Dr Moore makes it clear that the plaintiff told her that the diabetes that the plaintiff had was "gestational only" and had resolved. The existence of gestational diabetes is confirmed in a letter from Dr Hui of a medical clinic at Campsie, who says that the plaintiff had gestational diabetes in 2006. The referral letter was from Dr Hui to Dr Vincent Fong, an endocrinologist, and bears the date 20 January 2012. According to the history recorded by Dr Clark, the plaintiff had put on "some 20 kilograms in weight". The plaintiff is not a large woman. For her, 20 kilograms would probably be about one-third of her total size. That evidence is quite incredible, and furthermore is inconsistent with Dr Moore's history, which has the plaintiff having "stable" weight. Dr Clark records the plaintiff had suicidal ideation. However, Dr Moore's history is this:
"She has not experienced passive suicidal ideation and places great emphasis [on] the importance of the bond between herself and her daughter."
Anyone who has listened to this case will be aware of the extent of the bond of the plaintiff for her daughter and of the plaintiff's concerns for her daughter, her concern for her daughter being her primary obsession, so to speak, on 16 December 2008. I cannot attribute any weight to that part of Dr Clark's report that refers to the plaintiff having suicidal ideation. In such circumstances, how can I rely upon Dr Clark's history of the relationship of the plaintiff and her flatmate? Furthermore, Dr Moore has a history that the plaintiff's child had no contact with her father, who lives in China. That was the plaintiff's position, that she has had no contact with her child's father since the child was begotten. This is a case, I am afraid, where there has been confusion and the confusion can be seen in language and the need to translate language. Unfortunately, languages change.
When I was a teenager in my twenties a man could have a girlfriend and lady could have a boyfriend and that merely meant that they were friends of the opposite sex who got on well with each other. It did not mean that they were in a sexual relationship. One of the things that first struck me when sitting in crime with a jury was the fact that Crown Prosecutors would refer to people as being in the "relationship of boyfriend and girlfriend", by which they implied that if one had a boyfriend one was having sex with him or if one had a girlfriend one was having sex with her. Another anecdote to show how words change is this: partner means a person with whom one is in partnership. There is a Partnership Act 1892 governing the relationship of partners. Some ten years ago I was told of an occurrence concerning two male solicitor friends of mine. Each of those gentlemen was a happily married heterosexual. They were in partnership because they were solicitors in a firm of which each was a partner. Unfortunately, one of the gentlemen had a heart attack and was admitted to hospital. His partner went to visit him to see how he was recovering. When he attended at the hospital the nurse admitting persons into the intensive care unit asked of the male solicitor's relationship to the other male solicitor. The male solicitor visitor innocently replied, "He is my partner," which brought the response from the nurse, "You had better not go in there at the moment. He is with his wife." The word "partner" did not refer to somebody with whom one was in a sexual relationship or was a de facto husband or wife. These days it often means that. In fact, more recently I have heard the time "life partner" to refer to such a person. How these concepts move between English and Mandarin Chinese I do not know.
The confusion that has arisen could be well explained by the need to translate such nuances into a foreign language where the nuance may not exist or have a completely pejorative connotation which the person might not wish to admit to. Again, I find no credit issue involved concerning the identification of the plaintiff's child's father. I do not accept it was Mr Shao and I accept on the evidence of both the plaintiff and Mr Shao that they are merely "landlord and tenant" or "flatmates" and have no intimate personal relationship.
I turn, having made those observations, to the question of the occurrence of this motor vehicle accident and to the question of liability. The collision between the plaintiff's vehicle and the defendant's vehicle occurred on the intersection of Dickson Avenue and Clarendon Street, Artarmon. Dickson Avenue runs eastward from the Pacific Highway at Artarmon. There are crossroads with Clarendon Street and Reserve Road, and Dickson Avenue ends at its intersection with Waltham Street. Clarendon Street runs south from Hotham Parade, Artarmon. It has intersections with Sawyers Lane, Whiting Street, Dickson Avenue, Carlotta Street and Campbell Street, ending at the northern boundary of the ABC TV Studios.
The intersection of Dickson Avenue and Clarendon Street is governed by "Stop" signs. The "Stop" signs are eight in number. They govern traffic driving east along Dickson Avenue and traffic driving west along Dickson Avenue. They govern traffic driving south along Clarendon Street and traffic driving north along Clarendon Street. Each branch of this crossroads is governed by a "Stop" sign. That peculiar, if not, irregular piece of traffic control engineering defeats the usual rules which govern priority at intersections. Intersections ought be governed by traffic control lights, by one set of "Stop" signs, or by a roundabout, but this piece of traffic engineering requires each person approaching the intersection to stop and give way to every other person approaching the intersection. It is a piece of traffic engineering created to cause not safety but panic and uncertainty. Why no one bothered to join the relevant traffic engineering authority in question I have no idea. I suspect it would be the local government body concerned.
The plaintiff's case is that she approached this intersection travelling uphill; that is, westwards on Dickson Avenue. The plaintiff said that as she drove up to the "Stop" sign that confronted her, she stopped. She said that she looked "at both sides" and saw no vehicle. She said that she looked to her left and could see for six car lengths along Clarendon Street to her left. She then said that she looked to her right and could see for six car lengths along Clarendon Street in that direction. She saw no vehicle approaching the intersection from either her left or her right. She also said that there was no traffic travelling in the opposite direction to her along Dickson Avenue, that is, travelling east along Dickson Avenue downhill. The plaintiff said that she then proceeded slowly. The plaintiff then said:
"I had crossed the middle of the intersection and then there was a bang. A collision happened."
She said that her car was hit on its right side and was turned through 180 degrees, it had turned around so that it was looking back the way it had come from; that is, it turned from travelling westward to be facing in an easterly direction. A photograph, exhibit C, of damage to her vehicle was then tendered. That shows damage to the offside passenger door and to the offside wheel arch and the area above the offside wheel arch, which I take to be either part of the boot of the vehicle or part of the hatchback of the vehicle. The vehicle is described as a Holden Cruze but I am unfamiliar with such vehicles. The plaintiff went on to say this:
"Q. After the accident did you see the car that had hit you, when everything was stopped?
A. INTERPRETER: It didn't stop. It drove, it drove on for, for a long distance and, and then stopped, it was about two or three hundred metres."
The plaintiff then said that she did not look at the damage to the other vehicle but she swapped licence details with the other driver and that other driver also spoke Mandarin. The plaintiff said that neither of them spoke about the accident itself.
In cross-examination the plaintiff said that the accident occurred at around 3pm. She was asked whether she saw two vehicles, one behind the other, stopped at the intersection on Dickson Avenue heading like her, up the hill, ahead of her. The plaintiff said that she did not see any other cars. It was then suggested to the plaintiff that there may have been a car travelling in the opposite direction in Dickson Avenue stopped at the "Stop" sign but the plaintiff said that she did not remember any other car being present at the intersection when she started to cross it. The plaintiff was then asked whether she observed a vehicle travelling along Clarendon Street from her left. Again the plaintiff denied that there were any other vehicle there at the time. The plaintiff was then asked when did she observe the defendant's vehicle and said that she only observed it, "after she crashed into my car". At p 79 the following evidence was given:
"Q. As you were stopped at the stop sign, is it your evidence that, as you looked up Clarendon Street to your right, you did not see the defendant's vehicle?
A. INTERPRETER: That's correct.
Q. And your evidence yesterday was to the effect that you were able to see up Clarendon Street for about six car lengths; is that correct?
A. INTERPRETER: Yes.
Q. And there was nothing obstructing your vision; is that correct?
A. INTERPRETER: I didn't see her, her car. Her car was going very fast. I believe her car was going very fast otherwise she wouldn't have--
A. WITNESS: Smashed my car for 180 degree. She's, she's go very fast, speed very fast otherwise she couldn't hit my car for 180 degree, spinning my car.
Q. Madam, you don't know how fast she was going, do you, because you didn't see her car; isn't that your evidence?
A. WITNESS: Well, if this is a stop sign, she should have be stopped. If she stop sign - it's, it's a stop sign. If she stop, it'd wouldn't occur, okay, hit my car for 180 degree except that she drive the Ferrari car."
The plaintiff's attention was then called to the evidence that she had given in chief about how far the defendant had travelled down Clarendon Street to the south before coming to a halt. She agreed that she might be mistaken as to how far the defendant's vehicle had driven down Clarendon Street. She was then cross-examined about a statement that she is alleged to have made to the Local Court, saying that she thought the defendant drove down along Clarendon Street for some 10 metres. The plaintiff then said, through the interpreter, that it was for more than 10 metres but did not say for how much further the defendant drove along Clarendon Street. Again, further cross-examination was directed to movements of other cars at the intersection but the plaintiff was adamant that there was no other vehicle at the intersection at the time that she approached it and that she saw no other car prior to hearing or feeling the collision between the defendant's vehicle and her vehicle, the plaintiff being adamant that she did not see the defendant's vehicle prior to the impact.
The defendant's case is different. The defendant was driving a gold coloured Holden Captiva registered number BEK 23 P. She was travelling south along Clarendon Street. She said that she observed the "Stop" sign and, in obedience to it, stopped. She said she saw another vehicle driving towards her in the opposite direction; that is, driving northwards along Clarendon Street. She also saw two vehicles stopped on her left in Dickson Avenue and one car stopped on her right in Dickson Avenue. She described the car stopped on her right as a normal sedan. She then said that she saw the car coming from the opposite direction and then she started crossing over the intersection. The defendant said that, "When I almost got to the 'Stop' sign opposite, opposite me, I collided with another vehicle."
One aspect of the evidence that was not explored was what the defendant meant by the words, "When I almost got to the 'Stop' sign opposite". However, the inference I draw is that what the defendant was saying was that when she had almost reached the holding line across Clarendon Street that was facing vehicles travelling north along Clarendon Street; that is, the defendant was saying that she had almost reached with the front of her car the southern end of the intersection itself. The defendant made it clear that she did not see that vehicle until after she collided with it. When she collided with it, she said that she stopped, that when she stopped she was still within the intersection, and that she then alighted from her vehicle. The defendant then said that she observed damage to her vehicle, which was still driveable after the accident. The defendant was then asked whether she moved her car at any stage from the intersection, to which she replied that she moved it to the left-hand side of the road "in front of me", meaning the left-hand side of Clarendon Street south of the intersection.
The defendant made a statement to police. That statement became exhibit Q. It contains six paragraphs. The first paragraph is background and the paragraphs numbered 4, 5 and 6 are short questions asked by the constable of police who made the entry in his notebook. Paragraphs 2 and 3 are this:
"I stopped at the 'Stop' sign for the Dickson Avenue intersection. I saw that there were two cars stopped beside each other on Dickson Avenue going towards the Pacific Highway. I moved forward through the intersection.
A small silver four-wheel drive came into the intersection from the other side of the two cars. I was definitely in the intersection before it was. The front of my car hit the rear driver's side of the four-wheel drive."
It is correct, as Mr Lidden SC pointed out in cross-examination, that there is no reference in that statement to any vehicle travelling eastward along Dickson Avenue stopped at the "Stop" sign on the defendant's right, nor is there any mention of a vehicle travelling northwards along Clarendon Street coming towards the intersection and driving into it.
One thing I found curious about the defendant's evidence was the impression that the vehicle which she said was travelling north along Clarendon Street must have played in her assessment of the safety of the defendant's proceeding into the intersection. This evidence was given at p 103:
"Q. And what happened was - is this right - you saw the car coming in the opposite direction to you into the body of the intersection; is that right?
A. INTERPRETER: Yes.
Q. And so you thought, well, if it's safe [for] that car, it's safe for me; is that right?
A. INTERPRETER: No.
Q. Well, why did you move out at that stage when you saw that other car coming in the opposite direction to you moving out into the intersection?
A. INTERPRETER: Because one vehicle stopped at my right and the two vehicle [sic] stopped at my left, another vehicle in my opposite direction started crossing intersection so I drove off--
Q. That vehicle approaching you or coming the opposite way was very important in your decision to move off into the intersection, wasn't it?
A. INTERPRETER: No.
Q. Well, it [sic] coming into the intersection meant, didn't it, that the other cars - the ones to the left and the right - were going to have to wait for it?
A. INTERPRETER: Yes.
Q. Now, you are making up that car which you say was proceeding in the opposite direction to you, aren't you making it up?
A. INTERPRETER: That's not correct."
Faced with stationary traffic on one's right and stationary traffic on one's left but seeing another motorist enter the intersection from the opposite direction, which would mean that the traffic on one's left and right, that is, to the second motorist's right or left, would have to give way, would encourage a person such as the defendant to move into the intersection. One would have thought that that was of some moment because a person such as the plaintiff would have been required to give way to a person travelling north along Clarendon Street if that vehicle was already in the intersection. However, the defendant made no mention of any such vehicle to the police.
Mr Lidden SC has criticised the defendant for "reconstructing" this accident by putting forward the proposition that the plaintiff's vehicle must have travelled on the left-hand side of two vehicles, one behind the other, stopped on the eastern side of Dickson Avenue and then darted out in front of the plaintiff into the intersection whilst those two original vehicles stopped at the "Stop" sign on the eastern side remained stationary. To some extent, that could be called a reconstruction. However, it is a reconstruction based on the premise that the vehicles which the defendant saw stopped at the "Stop" sign on her left remained stationary and that a vehicle suddenly appeared "from nowhere", which is the vehicle that the defendant struck, and that the only place that the "vehicle from nowhere" could come was from the left-hand side of the two stationary vehicles on the defendant's left.
The problem that then arises is that the defendant asks me to accept that there were these two stationary vehicles on the eastern side of the intersection, stationary in Dickson Avenue, and that the collision would have occurred in front of them. Indeed, the collision, one would think, would have blocked their further progress along Dickson Avenue up to the Pacific Highway, yet neither of these two vehicles is identified by shape, size, make or colour and there has been no attempt made to identify the driver of either of the vehicles or any passenger or passengers that were being carried by any one of the drivers, nor is there any evidence adduced from any person who may have been near the intersection to witness what occurred. One would think that if a collision occurred immediately in front of one, blocking one's further progress, that one would at least alight from one's vehicle and go to inquire as to the health and safety of those involved in the collision and perhaps remove objects blocking the intersection to permit one to proceed ahead. However, perhaps Mr Lidden SC was right when he said that we live in harsh times, when there is no consideration given by many motorists to those who are unfortunately involved in collisions. However, no evidence was adduced that these other vehicles involved drove off without stopping or did not stop and render assistance or did not even drop a business card into the hand of either the plaintiff or the defendant.
The defendant sought to call corroborative evidence from Mr Xin Wu Kang, who was a friend of the defendant who was a passenger in the back seat of the defendant's vehicle at the time of this collision. The collision occurred over four and a half years ago. It would appear that the first time Mr Kang had his attention drawn to what occurred in the collision was when he was approached by the defendant on the evening of 14 May 2013, prior to giving evidence on the following day. Essentially, all that Mr Kang can remember is the defendant's vehicle stopping before the defendant's vehicle was involved in the collision. Mr Kang said he was sitting in the back seat of the defendant's vehicle talking to a friend of his who was also sitting next to him, also in the back of the defendant's vehicle. According to a statement made by the defendant on 5 August 2009, eight months after the accident, that friend of Mr Kang was sitting in the front passenger seat not in the back seat next to Mr Kang. I have difficulty in accepting that Mr Kang had a clear recollection of the defendant stopping at the "Stop" sign and then shortly afterwards moving forward and the collision occurring. Why should he remember that pause and then the shortness of an interlude between that pause and the collision? There is no suggestion by him that he had his eyes on any particular thing; no suggestion, for example, that he observed the "Stop" sign himself or saw any other vehicle. However, there are some things that I can accept from Mr Kang's evidence. The first thing is that he said that the defendant was driving slowly. I take that to mean that she was driving cautiously, not driving as if she were driving a Ferrari motorcar on a race-driving circuit. Mr Kang also said that after the collision the defendant's vehicle stopped in the intersection and that the defendant got out of the car, and that the vehicle was in the middle of the intersection and that someone asked her to move the car out of the intersection onto the side of the road ahead, which is what occurred. Upon those things Mr Lidden did not cross-examine Mr Kang.
Mr Lidden SC criticises the evidence of the defendant because of an inconsistency between what is recorded in the police notebook; the defendant's saying, "There were two cars stopped beside each other on Dickson Avenue," and what she said in her statement of 5 August 2009, which is also consistent with her evidence-in-chief and the effect of her evidence in cross-examination. The defendant said in that statement that she travelled about 7 metres in total before the crash and she had been driving at about 10 kilometres per hour. In par 25 of the defendant's statement, which is exhibit 4, the two vehicles that she saw to her left were one behind the other, blocking her view of what may have been, from her view, behind them or, from their view, beside them.
The first thing I can positively find is that this was a very low impact collision. The damage to the plaintiff's vehicle shown on exhibit C is, in the grand scheme of things, minor. The damage caused to the defendant's vehicle was also minor. Paragraph 28 of exhibit 4 is this:
"My car had some minor damage to the front, the headlight on the driver's side had popped out but it wasn't smashed. There were some scratches where the number plate was, it had been moved a little."
In the next paragraph, the defendant confirmed that there was no smashed glass or any other debris caused as a result of the collision other than the damage to the plaintiff's vehicle. I accept that the mere geometry of the collision may have caused the plaintiff's vehicle to make a U-turn. I do not accept, however, that the defendant kept driving on up into the southern section of Clarendon Street for 300 metres or 200 metres or even for 10 metres. I accept that the defendant's vehicle became stationary in the intersection and was only moved subsequently in order to unblock the intersection. It follows that the plaintiff has exaggerated.
I cannot accept that the plaintiff looked to her right and saw nothing. If she came up to the "Stop" sign and stopped and looked to her right, she must have been able to see at least approaching, if not stationary, the vehicle of the defendant. To suggest that the defendant's vehicle could appear in Clarendon Street and go into the intersection and collide with the plaintiff's vehicle, when it had not been visible at all when the plaintiff stopped and immediately prior to her proceeding into the intersection, is just unacceptable. Therefore, I accept that the plaintiff herself failed to keep any or any proper lookout. However, it is patently clear to me that the defendant also failed to keep any or any proper lookout. If one accepts that the defendant did stop at the intersection and did then move off travelling at about 10 kilometres per hour, one would expect the defendant to have seen the plaintiff's vehicle coming out on her left and passing on front of her immediately prior to the collision. However, the defendant did not see the plaintiff at all prior to the collision when most of the plaintiff's car would have had to pass in front of her eyes.
If we recall that it is the right front driver's side of the defendant's vehicle that collided with the posterior section of the driver's side of the plaintiff's vehicle, for such a collision to occur the vast length of the plaintiff's vehicle had to pass in front of the eyes of the defendant. If she were only travelling at 10 kph she could easily have applied her brakes, which would have avoided the collision. She could have, as suggested by Mr Lidden, turned to the left and avoided the collision. A mere turn of even a little way to the left would have avoided the rear of the plaintiff's vehicle.
The real question that remains is whether I ought accept the defendant's averment that there were two vehicles stationary at Dickson Avenue on her left and that the plaintiff emerged from beyond them. There is much force in Ms Allan's submission which mirrors, really, the submissions put to me on behalf of the plaintiff. The defendant is not a native speaker of English. Her native language, like the plaintiff's, is Mandarin. She might labour under exactly the same linguistic and cultural difficulties as did the plaintiff. Ms Allan properly points out that the difference between "beside" and "behind" is a difference of only letter from the English alphabet. The handwriting is not that of the defendant but of the constable of police, and the defendant herself said that she relied on him to record accurately what she had told him. Another problem that arises is whether the constable of police comprehended exactly what the defendant told him.
The plaintiff bears the onus of proof. It is the plaintiff who must persuade me, on the balance of probabilities, that the defendant has been negligent. The defendant raises an assertion that there were these two vehicles present. The plaintiff says that no such vehicles were present. Has the plaintiff made it more probable than not that these vehicles were not present? I could only so find by preferring the plaintiff's evidence to the defendant's evidence on this issue, when I have already found that the plaintiff has grossly exaggerated the speed at which the defendant's vehicle was travelling and where the defendant's vehicle ended up. In those circumstances, I am prepared to accept the defendant's argument that there were these two vehicles stationary on the southern side of Dickson Avenue waiting to cross over Clarendon Street and that the plaintiff emerged from the left of those vehicles; that is, further on the southern edge of Dickson Avenue, and came into the intersection and that caused this collision to occur.
In other words, I have formed the view that both drivers, that is, both the plaintiff and the defendant, have been guilty of negligence. The question then becomes, how ought the negligence be apportioned? On one view of it, each driver was equally responsible because each of them failed to keep a proper lookout. As was said in the course of argument, they were in pari delicto. The plaintiff submitted that there was greater negligence in the defendant because the plaintiff had almost succeeded in passing wholly over the centreline of Clarendon Street and hence avoid any danger from the defendant as the defendant was driving south along Clarendon Street. There is force in that submission. It draws clearly to attention the fact that the plaintiff was able to drive most of her car clearly across the path of the defendant's vehicle without the defendant realising or observing that the plaintiff was there.
On the other hand, the defendant argues that a greater responsibility for this collision lies with the plaintiff because she proceeded into the intersection when her passage into the intersection is masked from the defendant by the stationary vehicles on the defendant's left, closer, one would think, to the centreline of Dickson Avenue than was the plaintiff. There is force in that submission as well, but if the defendant was not keeping a proper lookout, which is one finding I have made, then she would not have observed the vehicle that she could see move off into the intersection. It appears that the defendant saw that the vehicles on her left had stopped and presumed that they would remain stationary. If a vehicle that she could not see might dart out in front of the defendant, then equally a vehicle that she had seen, if she were not keeping a lookout, might dart out in front of her. There was no evidence given, for example, by the plaintiff that she kept her eyes glued to the vehicles on her left, lest they move off. One would think that if she was looking other than dead ahead of her she might be looking to cars on her right, which might think that they had the right of way over her, applying the old rule of giving way to the right, bearing in mind that no one had priority at this intersection because of its unusual traffic engineering.
This is a balancing exercise. The significance of the plaintiff's almost passing wholly across the centreline of Clarendon Street loses, to some extent, its significance when one considers that there is no evidence from the plaintiff at what speed she was travelling. Was she travelling slowly or quickly? I do not know. There was no attempt made by her to identify her speed. I have come to the view that the appropriate finding is that each of the plaintiff and the defendant is equally responsible for this motor collision. I therefore revert to the first position posited that the parties were in pari delicto. The plaintiff therefore is entitled to recover 50% of the damages which she would otherwise recover.
What I think the appropriate thing to do is to tell you what sum I have reached and then see if you want reasons. If so, I shall give them tomorrow morning.
The total I reached is $441,691 and I divide that by two, which is $220,845.50.
Stood over part heard to 21 August 2013 at 10am.
Yesterday evening shortly before 6.00 I announced my findings of the questions of liability. I then advised the parties as to the amount of damages that I had assessed and accordingly the quantum of the judgment that would be entered in favour of the plaintiff. I asked counsel whether they required formal reasons for judgment on the question of damages and both indicated that they did so, indicating, I expect, that both are dissatisfied with the end result. I turn then to assess the quantum of the plaintiff's damages.
As I mentioned yesterday, the plaintiff was, at the time of the motor vehicle accident in question, 44 years old. She is now 49 years old. I mentioned a number of things yesterday about the plaintiff's background and her work history. I need not repeat any of that. Immediately after the collision the plaintiff was most concerned about her daughter, Jennifer, who was then some three and a half years old. Jennifer had a bruise on her forehead and when an ambulance arrived Jennifer was taken to the Royal North Shore Hospital where she was observed in the Accident and Emergency Department for some three hours. Jennifer was accompanied at all stages of that process, that is, both in the ambulance and at the hospital, by her mother, the plaintiff.
The plaintiff did not make any complaint to either the ambulance officers or any official at the Royal North Shore Hospital about having any pain in any part of her body. In essence, the plaintiff acceded to the proposition that she felt no immediate pain. However, on the following day she felt pain, in essence, through the whole of her body, she told me. She went back to the clinic at 240 Liverpool Road, Ashfield and saw Dr Berenson, a female general practitioner. According to the medical certificate executed by Dr Berenson on 17 December 2008, the plaintiff was suffering from soft tissue injuries to her neck, her upper arms and her upper back. Dr Berenson, in the certificate, expressed a rosy prognosis in that she thought that the plaintiff would be indisposed by her complaints for a short term of approximately six weeks.
The plaintiff accepted that she was told by Dr Berenson to return to the clinic if she did not recover from her complaints. The plaintiff conceded that she did not recover from her complaints but did not return to see Dr Berenson or anyone at that clinic. On 27 April 2009, some four months after the collision, the plaintiff attended upon Dr Ven Tan at the Healthpac Medical Centre, which has clinics at Hurstville, Chatswood and in Goulburn Street. The letterhead of that clinic has a title in Chinese ideograms and the vast majority of the practitioners nominated on the letterhead have surnames indicating an East Asian background. The inference to be drawn is that the plaintiff attended upon the clinic because she could confer with a medical practitioner there in her own language, Mandarin.
According to Dr Tan, the plaintiff suffered from whiplash injury obviously to the cervical spine, upper back pain, that is, pain in the thoracic spine, a soft tissue injury to her left shoulder, and she suffered from headaches and insomnia and made complaints of a psychiatric or psychological nature which Dr Tan diagnosed, perhaps on the advice of another practitioner, as post traumatic stress disorder. At his initial examination, Dr Tan confirmed that the plaintiff had stiffness and tenderness in her neck and left shoulder and back muscles due to pain, with a resultant decrease in her range of movements. He believed that these findings were consistent with the effects of injuries sustained in the motor vehicle accident.
Dr Tan in his first report of 22 October 2009, addressed to the defendant's insurer, indicated that prior to the motor vehicle collision the plaintiff had no incapacity for work but after it she was only able to work on a part-time basis because of her pain. There is no suggestion that Dr Tan had seen the plaintiff prior to the motor vehicle collision, so the doctor's opinion that the plaintiff had "no incapacity" prior to the collision could only be based on history. Dr Tan arranged for a CT scan of the plaintiff's cervical spine and shortly thereafter for an ultrasound of her left shoulder. The CT scan of the cervical spine was performed on 27 April 2009 by Dr Plehwe. Dr Plehwe reports the scan as showing some narrowing of the C5-6 disc space with slight marginal spurring of the adjacent bony surfaces. At the C2-3 level there was reported to be a broad-based but fairly small subannular disc protrusion. There was also a small bony spur on the posterior border of the third cervical vertebra. At C5-6 there was prominence of the disc with a small subannular bulge mildly indenting the thecal sac. I am not sure what Dr Plehwe means by "subannular bulge" or "subannular disc protrusion". A disc comprises an annulus fibrosis, which encloses a nucleus pulposus. Generally a disc protrusion occurs when there is a tear of the annulus, allowing part of the nucleus to herniate through the tear in the annulus onto an adjacent nerve structure such as a nerve root. However, this does not need to be considered any further because there is a binding assessment from Dr Assem on behalf of the Motor Accidents Authority in which Dr Assem diagnoses that the plaintiff had a whiplash injury to her cervical spine resulting in a protrusion of the C5-C6 disc.
The ultrasound of the plaintiff's left shoulder was performed by Dr Plehwe on 11 May 2009. That suggests thickening of the overlying tendon sheath of the long head of the biceps, thickening of the subscapularis tendon, and a full thickness tear of the anterior supraspinatus tendon measuring 20 millimetres by 6 millimetres by 18 millimetres. The remaining tendon was reported as being heterogeneous and appeared somewhat thickened. There was also thickening of the overlying subacromial bursa and there was impingement with 90 degrees of abduction. The conclusion reach by Dr Plehwe is this:
"Large full-thickness tear in the anterior supraspinatus tendon in the critical zone. Changes of tendinosis and inflammation of the subacromial bursa. There is bursal bunching and impingement at 90 degrees of abduction."
I pointed out yesterday that the diagnosis of the plaintiff's left shoulder complaints between 2002 and 2004 appears to have been of either subacromial bursitis or synovitis or capsulitis of the gleno-humeral joint space. The findings of thickness throughout aspects of the plaintiff's shoulder joint do indicate a long-standing problem, probably secondary to the problem first noticed by the plaintiff in 2002. Suffice it to say, however, that the binding assessment made by Dr Assem accepts that the near full-thickness tear of the supraspinatus tendon was caused by the motor vehicle accident.
Dr Tan referred the plaintiff to Dr Clive Sun, a consultant in rehabilitation medicine and pain medicine. The plaintiff first saw Dr Sun on 16 May 2009. She was able to communicate with him in the Mandarin language. Dr Sun obtained a history of, inter alia, low back pain and there is a strong suggestion that the plaintiff may have had some low back muscular strain but she recovered from that fairly quickly and it no longer plays any part in the plaintiff's complex or in any relevant diagnosis. The fact that the plaintiff recovered from low back pain indicates that her continuing complaints about her neck and left shoulder should be given greater credence as she was prepared to concede an amelioration in some of her conditions. By the time the plaintiff saw Dr Sun, she complained of intermittent neck pain and occipital headaches. She told the doctor that she had difficulty with her housework and remained too scared to drive. Eventually the plaintiff returned to driving a motor vehicle.
Dr Sun prescribed tramadol and physiotherapy and hydrotherapy. Later Dr Sun placed the plaintiff on a trial of Norspan patches but that prescription needed to be modified by halving the dosage and reinstating a part of the tramadol medication. On 28 August 2009, Dr Sun sent the plaintiff for a bone scan. That is reported by Dr Kaushik as showing focal uptake in the left greater tuberosity, which could be caused by supraspinatus enthesopathy. There was also some mildly increased soft tissue uptake suggestive of post traumatic inflammatory change in the plaintiff's neck. Essentially, those findings are consistent with the plaintiff's complaints about her left shoulder and her neck. By 31 October 2009 Dr Sun was suggesting that the physiotherapist upgrade the patient's therapy to a gym-based exercise program.
In a report dated 2 October 2010, Dr Tan expressed a guarded prognosis as the plaintiff still had pain when he last saw her on 14 August 2008, some eight months after her accident. As I mentioned yesterday, on 24 February 2010 Dr Clark examined the plaintiff at the request of her solicitors. I expressed a number of criticisms yesterday of Dr Clark's history taking and I can put no weight on his history nor his opinion concerning the plaintiff's psychiatric condition. For example, Dr Clark expressed the view that the plaintiff was "incapable of independent existence and needs support in most domestic and personal functions". That is not the plaintiff's position at all. She has continued to care for herself and her daughter since the accident. The only assistance she has had is from her tenant or flatmate, Mr Shao, who assisted her by doing mopping and vacuuming and garden work and sometimes with the shopping and sometimes by providing a meal to the plaintiff and her daughter or perhaps yum cha.
Dr Clark diagnosed a post traumatic stress disorder leading to an episode of major depression. I am constantly pointing out that, why does one need two diagnoses when one would suffice? An episode of major depression would explain the plaintiff's symptom complex. A diagnosis of PTSD might also explain the plaintiff's symptom complex. Why postulate that there was first a PTSD and then an episode of major depression? In any event, I have been assisted by a number of other reports of a psychiatric nature. The first is from Dr Marilyn Moore, a psychiatrist, who saw the plaintiff for the Motor Accidents Authority on 12 January 2011. Dr Moore diagnosed an adjustment disorder with depression and anxiety secondary to chronic pain. Dr Moore thought there was a whole person impairment (WPI) of 7% as a result of the motor vehicle accident. The defendant has qualified a Dr Sydney Smith, a consultant psychiatrist. Dr Smith agreed with Dr Moore that the plaintiff was suffering from an adjustment disorder predominantly with anxiety but also with a degree of depression and irritability. Dr Smith first saw the plaintiff on 3 March 2012 more than a year after Dr Moore's assessment. By the time the plaintiff saw Dr Smith she was again driving motor vehicles but did so slowly causing other motorists to object by sounding their horns.
Dr Smith obtained this history from the plaintiff:
"I wish this case finished. I just want to leave it. (When the litigation is over) I will enjoy my life whether rich or poor, I'll be happy."
That led Dr Smith to express this view:
"She thus has only mild residual features of that Adjustment Disorder and she feels quite confident that her emotional symptoms will abate completely once the litigation is finalised, so that she no longer has to think about the events of the day of the accident. I agree that this is likely. She thus does not require any future psychiatric or psychological treatment."
Dr Smith saw the plaintiff again on 19 March 2013. On that occasion he expressed this view:
"This history indicates that she has only mild residual symptoms of an Adjustment Disorder and it is to be hoped that with further sessions with Dr Wong, perhaps on a fortnightly basis for the next six months, her symptoms will abate completely."
I accept that the plaintiff did develop an adjustment disorder as diagnosed by Dr Marilyn Moore. I accept further that the plaintiff's condition is improving and will substantially improve further when this litigation is finalised, God willing, today. Dr Smith indicates some further sessions with Dr Wong, whom the plaintiff has been seeing in recent times. The relevant part of Dr Sydney Smith's more recent history is this:
"She told me that she sees Dr Wilson Wong but she is not sure if he is a Psychologist or Psychiatrist. She sees him once a fortnight for a half to one hour at a time. She started seeing him two or three months ago. He talks to her and he gave her some relaxation tapes. When I asked if the tapes help she laughed and stated that when the tape finishes she still has the pain. She then stated her belief that if she was free of pain she would be back to normal and able to go out to work."
The inference I draw from that history is it is likely that Dr Wong is in fact a psychologist. I believe that with some treatment the plaintiff's psychiatric condition will clear up within six months of the end of this litigation.
I return now to consider the plaintiff's further treatment of her physical ailments. The plaintiff saw Dr Sun again in October 2010 when he again referred the plaintiff to Canterbury Hospital for hydrotherapy and restarted the plaintiff on tramadol medication. Dr Sun saw the plaintiff again on 14 January 2012 when she still had ongoing symptoms in her neck and left shoulder and "low back". Again, the plaintiff was referred for physiotherapy and for instruction in home exercises and Dr Sun advised a trial of a new medication. In 2012, the plaintiff was referred by a new general practitioner to Dr Woo. Dr Alex Woo saw the plaintiff on 8 February 2012 and 7 March 2012. In between those two visits, Dr Woo arranged for the plaintiff to undergo an MRI of the cervical spine and an MRI of her left shoulder. Each of those investigations was carried out on 21 February 2012. The MRI of the neck is reported thus:
"Broad-based right-sided disc protrusion posterolaterally and extending into the foramen at C5/6 impinging the right C6 spinal nerve."
The MRI of the plaintiff's left shoulder is summed-up thus:
"Near-full thickness high grade bursal-sided insertional tear of the supraspinatus anterior to mid component with moderate tendinosis in its remaining fibres. Mild tendinosis of anterior infraspinatus and diffusely of subscapularis. No rotator cuff muscular atrophy. Long head of biceps, labrum and gleno-humeral chondral surfaces are maintained. Inferolateral tilt of the acromion and subacromial enthesophyte where there are flat under surface acromion (type 1). Moderate subacromial-subdeltoid bursitis."
Like Dr Assem, Dr Woo diagnosed a C5-6 disc protrusion and tear of the rotator cuff of the left shoulder caused by the motor vehicle accident now in question. Dr Woo expressed the view that the plaintiff had recovered from a soft tissue injury to her back. Dr Woo expressed the view, contrary to what had been said a number of years earlier by Dr Clark, that the plaintiff had no problem with her personal care. Dr Woo noted that the plaintiff used to work in retail sales and he thought she was fit to do such work with a restriction of lifting to 5 kilograms and no lifting above shoulder height.
The remaining assessments are that of Dr Assem, to which I have referred, and from an occupational therapist and from Dr Mastroianni, an occupational physician, qualified by the plaintiff's solicitors, and from Dr Nigel Marsh, an occupational physician, qualified by the defendant's solicitors. Dr Mastroianni saw the plaintiff on 27 March 2012 and Dr Marsh saw her on 15 May 2012. Dr Mastroianni believed the plaintiff had permanent restrictions in tasks requiring fixed neck posture, such as working on computers, and with repetitive movements involving the left arm or activities which required her to use her left arm above shoulder height. He accepted that she was unable to do any heavy lifting. Those essentially are the restrictions that Dr Woo placed upon the plaintiff. Dr Mastroianni believed the plaintiff had a capacity to work part-time on alternative duties. One of the substantial differences between the opinions of Dr Mastroianni and Dr Marsh concerns language and the plaintiff's ability with the English language. The problem with language is one that I discussed at some length yesterday. Dr Mastroianni expressed this view:
"Ms Liu told me that she intended to rejoin the workforce, although she hasn't applied for any jobs.
She wants to work in real estate or as a shop assistant, having worked as a shop assistant in the past.
Ms Liu speaks broken English and her English comprehension is limited.
She could work part-time as a real estate agent in the Chinese speaking community only. She would have difficulty communicating fluently with English speaking clients or with clients of a non-English origin and not of Asian origin.
In my opinion she is not suitable to work as a real estate agent as her English is limited.
In my opinion, in the open labour market she would find it very difficult to find a job in real estate.
With regard to her working as a shop assistant, again because of her limited English, she could work in a Chinese speaking store. She could work in a store selling women's clothing provided she is not required to do any heavy lifting and put stock away.
Considering her command of English, physical injuries and lack of transferrable skills, I consider her employability to be minimal in the open labour market."
According to Dr Marsh, the plaintiff had "a very good command of English". He noted that the interpreter was only required on occasions. Dr Marsh expressed this view about the plaintiff's work ability:
"I see no reason why Ms Liu could not engage in work if she chose to do so. She would need to be restricted and avoid heavy physical activity. I would suggest that she would need a lifting limit of 5kg and to avoid any repetitive lifting. She would also need to avoid excessive stretching or any use of the arms above shoulder height. She would need to avoid any heavy pushing or pulling.
She may benefit from assistance in trying to find suitable employment. She has a very good command of English and I do not consider that this would be a real barrier in finding suitable employment. As she has not worked for some considerable period of time, I would suggest that initially she would need to be employed on a part-time basis of say four hours, five days per week."
The only other thing I need say about the plaintiff's medical condition is that she has been diagnosed with a thyroid condition, Graves' disease. For that she was referred to Dr Vincent Fong, an endocrinologist at Hurstville. She first saw Dr Fong on 23 March 2010. Dr Fong prescribed medication. The most recent report I have from him bears date 24 May 2012 and Dr Fong said that the plaintiff had been "well of late" and did not prescribe any medication, which has been the case since 4 March 2011. In essence, it appears to me that the plaintiff's thyroid condition does not interfere with her residual earning capacity nor does it complicate the medical conditions caused by the motor vehicle accident now in question. Dr Sydney Smith thought that that might be the case and has suggested having further investigations but that has never occurred and there is nothing to suggest that the plaintiff's current symptoms are in any way mediated or aggravated or the like by her thyroid condition.
Important in the assessment of the plaintiff's damages is the question of when would she have returned to the workforce and what work would she have returned to. The plaintiff, as I mentioned yesterday, said in her evidence-in-chief that she intended to return to the workforce when Jennifer was three years old but Jennifer was three and a half years old at the time of the motor vehicle accident now in question and the plaintiff had not returned to work. As I mentioned yesterday, the plaintiff told Dr Mastroianni, Dr Assem and Dr Grinter that she intended to return to work when Jennifer went to school but I pointed out yesterday that it was unclear whether she meant by that kindergarten or some form of preschool. However, bearing in mind that the plaintiff bears the onus of proof, I cannot be persuaded on the balance of probabilities that the plaintiff intended to return to the workforce until Jennifer started school, which was in February 2011.
The question then is: to what work would the plaintiff have returned? Considering her age and the nature of her problems at the current time she would now be unfit to work as a waitress in a Chinese restaurant. Furthermore, uninjured, I believe, bearing in mind her age and background, she would be unlikely to work as a waitress again. It appears to me likely that she would have returned to the workforce in the retail trade, perhaps in a job like the one she had in the past, working in a ladies' lingerie shop selling bras. The plaintiff pointed out that some shop work in the fashion industry required working with her left arm above shoulder height when it was necessary to hang up garments that have been taken down from racks in order to be tried on or inspected by customers. The plaintiff volunteered that she could perhaps work in the cosmetic industry selling fragrances to ladies and there is merit in that suggestion.
I believe it likely that, uninjured, the plaintiff would have returned to work in the retail industry, in the fashion industry working with ladies attire. Injured, her ability to obtain that work is reduced because she could only work with very light clothing such as lingerie and she could not work with anything that needed to be regularly hung up, that is, put back on hangars on racks. She could, I accept, work in the fragrance industry but again that would be limited, that is a more restricted workforce, that is a smaller workforce than the workforce in ladies' wear and her work would be largely, in my view, restricted to working with persons with an Asian background. Having said that, I could readily see the plaintiff selling fragrances and the like at somewhere like Sydney International Airport, not far distant from where she lives.
I turn then to the heads of damages proposed by the plaintiff. Because of binding assessments from the assessors appointed by the Motor Accidents Authority, the plaintiff is entitled to general damages. The maximum that can be recovered for general damages is $462,000. Unlike the Civil Liability Act, the Motor Accidents Compensation Act does not require me to compare the plaintiff's case against a most extreme case of pain and suffering and loss of amenity of life. The plaintiff submitted that she is entitled to $250,000, whereas the defendant submitted that she is entitled to $50,000. The first thing to bear in mind is the plaintiff's age. She had entered middle age, 44 years of age, at the time of the accident and she is now 49 years old. Her life expectancy is 39 years. I accept that for that 39 years the plaintiff will have pain from her C5-6 disc protrusion and from the condition of her left shoulder. However, that pain might abate with time or become more tolerable.
Equally, one must postulate that the plaintiff could develop other conditions which would be more discomforting and more troublesome and one must accept that the plaintiff's shoulder could become degenerative in any event and certainly osteoarthritis or spondylitis of the cervical spine as well as the thoracic and lumbar spine is a concomitant of the normal aging process. In other words, the plaintiff may have eventually, in perhaps her seventh decade, developed cervical pain in any event. I have already mentioned that I accept the plaintiff developed an adjustment disorder but that will evaporate within six months of the conclusion of this litigation. It must be borne in mind, as far as the plaintiff's left shoulder is concerned, that the plaintiff is right hand dominant so her left shoulder is not called upon as much as her right shoulder and a problem with a dominant upper limb is more troublesome and painful than a problem with a non-dominant upper limb.
Doing the best I can, I assess the plaintiff's general damages as being $120,000. The plaintiff's out-of-pocket expenses have been agreed at $4,848. The plaintiff's claim for future out-of-pocket expenses is $30,000. Mr Lidden SC conceded that essentially was just an estimate, plucked from the air. There is no suggestion that the plaintiff needs or will require any future surgery. The plaintiff has in the past had extensive physiotherapy and hydrotherapy but they have not caused her condition to ameliorate. Physiotherapy and hydrotherapy should not be used as merely palliative treatment: that can be done with medication. There does not appear to me to be any need for any extensive physiotherapy or hydrotherapy in the future.
The plaintiff's treatment should be directed more to controlling symptoms through medication; that will require visits, of course, to her general practitioner, check-ups from time to time with a specialist, such as Dr Sun or Dr Woo. The plaintiff may require, as pointed out by Dr Sydney Smith, some further attendances upon Dr Wong, her psychologist, but they will be limited to the next six months. The need for future treatment is accordingly, in my view, not particularly great. I also bear in mind that the treatment over the last four and a half years has amounted to less than $5,000. Doing the best I can, I allow $10,000 for future out-of-pocket expenses.
The next claim is for past wage loss. The plaintiff claims $350 a week for 4.66 years. The question is, what would the plaintiff have been earning but for injury? Both counsel and I resorted to p 11 of the Furzer Crestani Assessment Handbook of October 2012. That shows that as at 19 May 2012, average adult female earnings were $1,228.40 per week. That gives net average female earnings of $980 per week. The plaintiff's last employment in the retail trade was working six hours per day for four days per week, that is, for 24 hours per week. If one admits $980 for a 38 hour week, the figure for a 24 hour week is $620. I accept that, uninjured, the plaintiff's current ability to earn would be $620 per week and that obtains for the immediate past as well. I accept that the plaintiff has, in essence, lost half of her earning capacity. I accept, therefore, a weekly loss of $310 net.
For past wage loss, I am prepared to allow two years at $310 per week. I have already pointed out that Jennifer started school in February 2011. Between then and now is a period of 31 months or just over two and a half years. Very properly, Mr Lidden SC conceded that the plaintiff might have, even uninjured, difficulty finding employment once she decided to return to the workforce. Accordingly, I believe it appropriate to allow two years' past wage loss and that amounts to $32,240.
Past superannuation is 11% of that sum, that is, $3,546.
For future wage loss I allow $310 per week for 18 years at the 5% discount rate, which gives me a multiplier of 625. I then reduce that total by 15% to allow for the vicissitudes of life. That gives me a lump sum of $164,688, which is over $20,000 less than the plaintiff claimed in her schedule of damages, MFI 2.
Future superannuation is 13.77% of that sum and that amounts to $22,678.
The remaining claims concern domestic assistance. For past domestic assistance, the plaintiff's schedule claims $36,348. Very properly, Mr Lidden SC told me that the appropriate way to proceed was to "forget it". He was not pressing the claim because the threshold had not been reached.
In lieu, Mr Lidden was claiming rent loss of $14,539, representing a loss of $60 per week for 4.66 years. I averted to this yesterday but suffice it say, again, that the plaintiff's flatmate, Mr Shao, who commenced living with the plaintiff in August 2008, initially paid $60 per week in rent plus half of the utilities, electricity and water. The plaintiff estimated that that amounted to a total weekly rent of $90. Since the accident, the plaintiff has only increased Mr Shao's rent to $100 per week inclusive of utilities and also inclusive of Internet usage, the Internet having been connected to the plaintiff's townhouse. The plaintiff estimated that if Mr Shao paid her a full and proper rent he would be paying $160 per week.
Mr Shao does the vacuuming and mopping and the outside work in the plaintiff's front and back gardens, mainly lawn mowing. For that the plaintiff allows him the reduced rent of $100 per week. In essence, the plaintiff is foregoing $60 per week rent in order to get Mr Shao to do things that she used to do; namely, the mopping and the vacuuming, even though she used not to do the gardening but, before the advent at least of Mr Shao, she was paying a gentleman $40 to mow the front and back lawns. I therefore think it proper to allow the plaintiff's loss of rent of $14,539, which in essence she has foregone in order to have Mr Shao continue to provide things to her which he was providing to her on a voluntary basis prior to the accident. If the plaintiff had increased the rent to its proper extent, one might see Mr Shao as being reluctant to do the work the plaintiff can no longer do, or causing him to go elsewhere if he had to pay a commercial rent and do unpaid work for the plaintiff.
The remaining claim is for future domestic assistance. The plaintiff relies upon the assessment of Ms Grinter, an occupational therapist, who visited the plaintiff at her home on 24 January 2013. Ms Grinter, in essence, estimates that the plaintiff requires six hours domestic assistance per week for the future even though in the past the assessment only came in at 5.37 hours. This caused Ms Allan, counsel for the defendant, to make a submission, which had implicit in it cynicism of the assessment reaching the required statutory threshold. Ms Grinter's assessment indicated that the plaintiff required reimbursement for a massage cushion of which there was not a mention in evidence, reimbursement for the installation of timber floors in the plaintiff's townhouse to assist her with her cleaning, again not the subject of any evidence other than what is canvassed in Ms Grinter's report, and two and a half hours domestic assistance a week to vacuum and mop the floors, clean the shower recess, clean the kitchen cupboard, the oven and the refrigerator, changing the bed linen and hanging the sheets and towels on the clothesline.
Again, the only thing that the plaintiff mentioned as being something beyond her capacity was the vacuuming and the mopping. Ms Grinter said that the plaintiff required someone to do 30 minutes of ironing a week. The plaintiff herself made no complaint about any inability iron and there is no medical evidence to that effect. Ms Grinter also said the plaintiff requires 1.5 hours of shopping a week, but the plaintiff and Mr Shao make do between them and that to me is a perfectly normal relationship for two persons occupying a house. Ms Grinter also expressed the view the plaintiff required 30 minutes or window, screen and blind cleaning and spring cleaning each week. There is no evidence about any of those things. There was also a suggestion by Ms Grinter that the plaintiff required 30 minutes of car cleaning a week but again that was no the subject of any evidence. For all I know, the plaintiff, both before and after the motor vehicle accident now in question, readily drove her car through a carwash.
The remaining assessment of Ms Grinter concerned the need for garden maintenance including sweeping the paved areas and trimming trees, which again is something that Mr Shao has been doing. So enamoured of Ms Grinter's assessment was Mr Lidden that he claimed not six hours per week for future domestic assistance but four hours per week for future domestic assistance. At the moment, the plaintiff is completely in the hands of her flatmate, Mr Shao. Will Mr Shao stay permanently as the plaintiff's flatmate or might he move on? There is no evidence either way but one cannot postulate that a rent paying tenant would stay at the plaintiff's premises indefinitely. The plaintiff gave this evidence on the issue of future care:
"Q. What's your view about paying someone to do those heavier household chores rather than getting your friend to do them?
A. INTERPRETER: I am not - I don't have money to pay for someone else to do the work.
Q. And if you did?
A. INTERPRETER: If I have the money, I, I will pay someone else. If I don't have the money, I can't."
Accordingly, the plaintiff, if she were awarded damages for future domestic assistance would pay someone to do that. That clearly is something that arises from the effects of this motor vehicle accident and the plaintiff needs to be protected, lest Mr Shao give up his position as the plaintiff's tenant. However, bearing in mind the tasks described by both the plaintiff and Mr Shao and how long it takes Mr Shao to do the mopping and the vacuuming and the lawn mowing, it appears to me that I ought only allow two hours per week at $38 per week for future paid domestic assistance. Two hours per week for 39 years at $38 per week amounts to a lump sum of $69,152.
I constantly remark that I am mathematically challenged. My Associate added the totals I have just announced together and they amount to $441,691. For reasons given yesterday evening, the plaintiff is entitled to verdict in her favour but the damages are to be reduced by 50% for contributory negligence. Accordingly, the plaintiff is entitled to a verdict for $220,845.50. I have inquired of junior counsel for the plaintiff and the solicitor for the defendant if any further reasons for judgment are required. I am told that none are so required.
For those reasons, I give a verdict and judgment for the plaintiff against the defendant for $220,845.50.
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Decision last updated: 03 October 2013
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