London v Gates

DIANE EVA LONDON v SAM GATES
[2011] ACTSC 190 (25 November 2011)

DAMAGES – personal injury – rear-end motor vehicle collision – whiplash injury to neck and back – no issue of principle.

No. SC 52 of 2008

Judge: Master Harper
Supreme Court of the ACT

Date: 25 November 2011

IN THE SUPREME COURT OF THE     )
  )          No. SC 52 of 2008
AUSTRALIAN CAPITAL TERRITORY           )

BETWEEN:DIANE EVA LONDON
Plaintiff

AND:SAM GATES
Defendant

ORDER

Judge:  Master Harper
Date:  25 November 2011
Place:  Canberra

THE COURT ORDERS THAT:

Judgment be entered for the plaintiff in the sum of $246,912.68.

The plaintiff claims damages for injuries which she suffered when she was a front seat passenger in a car which was struck with considerable force from behind while stationary. The collision occurred on 17 February 2006 at the roundabout on Parkes Way at the southern end of Anzac Parade, Parkes. Liability is admitted.
The plaintiff was born in 1980 in Poland, and came to Australia with her family as a migrant when she was six. She has lived in Canberra since she was eleven. While still at school she won a scholarship to the School of Music within the Australian National University, and completed Australian Music Examination Board examinations in piano. She gave piano lessons, and partly funded her years at university in that way. She graduated in law at the end of 2003 and in actuarial studies during 2004. She completed the Graduate Diploma in Legal Studies course and was admitted as a legal practitioner in 2006.
During 2003, before completing her university degrees, she was offered and took up a position with the Motor Trades Association of Australia Superannuation Fund as a policy and research officer, doing work which utilised her legal and actuarial skills. In March 2005 she moved to a position with Energy Networks Association, a peak industry body providing national representation for electricity and gas companies. By the time of her car accident, the plaintiff was earning about $74,000.00 gross per year including superannuation. This was increased to $85,000.00 in December 2006 and to about $105,000.00 at the beginning of 2008.
The plaintiff’s evidence was that she was aware of pain in the neck immediately following the impact with the defendant’s vehicle. Her mother, who was also injured, drove to Calvary Hospital where the plaintiff was given a neck brace. X-rays of the cervical and thoracic spine were normal. She was given Panadeine Forte for pain relief. She said that the pain was in her neck and upper back along the shoulders, worse on the left.
On 2 March 2006 she saw a doctor, although not her usual general practitioner who was unavailable. She was prescribed painkillers. On 7 March 2006 she saw Dr Ragg, her usual general practitioner. By then she was also complaining of headaches. Dr Ragg prescribed further strong painkillers and anti-inflammatories, and referred her for physiotherapy. She had about ten sessions of this, without relief and, she said, aggravating her symptoms.
In January 2007 Dr Ragg sent her to a doctor with experience in acupuncture. This gave her temporary pain relief, and she had about ten acupuncture treatments.
In August 2007 Dr Ragg referred her to a clinical psychologist, Dr Jillian Fleming, who saw her on about ten occasions, talking about pain management techniques. By this time the plaintiff was conscious of symptoms of depression and anxiety. She was having trouble, she said, coping with her work. Her neck pain and headaches were not improving. She said that her job at Energy Networks Association was extremely demanding. She was working more than forty hours per week, with a considerable amount of interstate air travel. She was also studying during evenings and on weekends.
Her job required computer research, reading and typing. Sometimes she was aware of pain in the lower back. From the beginning of 2008, with her salary increase came further responsibilities, more interstate meetings and longer working hours. She said that all of this made her neck pain, stiffness and tenderness and her headaches worse. She had time off for treatment, which included sessions with an osteopath as well as physiotherapy and psychological counselling. She said that on 5 May 2008 she saw Dr Ragg, who recommended she resign from her job. He handwrote a note to this effect. The plaintiff said that at this time she was sleeping poorly, was depressed, in pain and chronically exhausted. From the day Dr Ragg recommended she resign, she did not return to work. She took four weeks sick leave and then left. Her supervisor at ENA tried to talk her out of resigning but she had made her mind up.
She found after her resignation that her position improved to the extent that she felt less anxious and was able to sleep better, although she still had her physical symptoms at the same level. She described it as a terrible thing that she had had to resign from a job which she enjoyed and found intellectually stimulating, and which provided a social environment also. Her job was an enormous part of her life, and she knew that there were further opportunities for advancement with the Association. It was a job ideally suited to her skills and qualifications.
By the time of the hearing the plaintiff had not gone back to any paid employment. She was continuing to see Dr Ragg regularly, and was taking painkillers and anti-inflammatories on prescription, as well as a number of natural medicines. She was having sessions with a massage therapist about once a fortnight.
In September 2008 she was put through an assessment by a rehabilitation team, Fit to Manage, arranged by the defendant’s insurer. She went to sessions with this organisation twice a week for some months but found it of no benefit, with no reduction in her physical symptoms.
Not long before the hearing the plaintiff joined a gymnasium where she was given stretching exercises by an instructor, but again without any benefit.
She said that she had enrolled in a fitness program at the Canberra Institute of Technology at the beginning of 2010, but ceased because, she said, she “was suffering so much back pain and neck pain that it just became impossible”. It was painful both while doing the exercises and for several weeks afterwards.
The plaintiff said that before the accident she had been giving piano lessons, but she gave this up after the accident because it was too painful for her and she was not able to continue. She also gave up regularly playing the piano for her own enjoyment. She still had a piano at home but no longer played it. She also had a computer at home, which she sometimes used, but only for short periods because of neck and upper back pain. By the time of the hearing she had recently taken on two beginner students for piano lessons, giving them one half-hour lesson each a week at $24.00 a lesson. Prior to the accident she had been teaching advanced students and preparing them for higher-grade music examinations.
Prior to the accident the plaintiff enrolled in an advanced diploma of naturopathy course at the Canberra Institute of Technology. She had long had an interest in naturopathy and alternative therapies as a hobby. After the accident she withdrew from the course because of her injuries.
In February 2008 the plaintiff commenced a Master of Business Administration degree course at the University of Canberra. This was funded by her employer, and would have helped in her career advancement. The course could be undertaken full-time in two years but the plaintiff intended to spread it over four years and fit it in with her work. In late May 2008 she withdrew from the course because she could not continue. She was suffering too much pain and it was impossible for her to finish it. The course had involved attending each Saturday for about six hours of lectures.
In August 2009, the plaintiff resumed her studies in naturopathy, and completed the course in February 2010. She said that she had difficulty undertaking the study, and that the reading and completing of assignments exacerbated her back pain.
Her evidence was that she intended to use her qualification as a naturopath to start a small part-time home business. She had prepared a room at her home, prepared client forms, purchased natural medicines and joined the Natural Therapies Association. She had taken out insurance and developed a business plan. She intended to give advice about nutrition and “lifestyle”, and to dispense herbal medicine. She would be unable to offer massage or other physical therapy, as it would be too painful for her.
She was asked in chief about her pre-accident sporting and recreational activities. She said that she had regularly played tennis and attended a gym for aerobics. She had regularly run. She had also carried out renovations around her house. She had bought the house in 2004 intending to renovate it, and had taken the project a considerable distance before the accident but had been unable to complete it because of pain.
She said that she had not been able to engage in aerobics or weight training to the extent she had before the accident. She did not engage in any sport, because of pain.
She needed help around the house from her partner. They lived separately but he was very much part of her life and helped with heavier household duties such as cleaning, bed making and gardening. The plaintiff had done all of her household work without assistance before the accident.
The plaintiff said before the accident she had an intention to buy a similar house to her present house as an investment property, and to renovate it. She had been unable to do so, both because she could no longer do the physical work due to pain, and because she could not afford it after resigning from her job. Following the accident she had virtually ceased any social contact with friends. She had had a reasonably active social life, having regard to the long hours she worked, before the accident, with work friends and university friends, but by the time of the hearing felt isolated. She said she no longer had those friendships and that she had “basically got no friends”. She was living on Centrelink benefits, having been on Austudy until she finished her naturopathy course. She was still able to drive for short distances but long-distance driving was no longer open to her because of neck and upper back pain and headaches. She was quite unable to contemplate returning to a job like her pre-accident job and was reconciled to the fact that she had no prospect of earning an income of anything like the amount she had been on before.
The plaintiff is a highly intelligent and attractive young woman and she made a favourable impression on me during her evidence in chief. However in the course of a thorough and competent cross-examination, her credit was severely damaged. She initially agreed that her neck pain had been very severe during the first month after her accident, after which it improved somewhat, but reached a plateau where it had remained, such that she was in constant discomfort and frequently in pain. Her pain relief had only ever been temporary. She had developed low back pain within a couple of months of the accident which had remained with her and was brought on by prolonged sitting. She still had neck pain on rotation to the left and right. She spent her time doing “a bit of work” preparing for her naturopathy business. She went to the shops when necessary. She did stretches every day, and meditation from time to time. She might occasionally go to lunch at a cafe, or to a film.
Counsel for the defendant asked whether she and her partner exercised together. She said that they went walking together, for 30 or 40 minutes, perhaps up to an hour. An hour and a half would be her maximum for such a walk. Asked whether she might have been able to walk for an hour and a half to a shop and then back she agreed that she could do this. She said that she might go for a half-hour walk three times per week. It was a brisk walk rather than a stroll and she engaged in walking to try and keep fit and keep her weight down. Her condition had been static for almost four years by the time of the hearing. She was able to spend about an hour in front of her computer. She had not ridden her bicycle for a number of years, although she had made some attempts since the accident.
The plaintiff was taken to a report by Dr John Bentivoglio, an orthopaedic surgeon she had seen at the request of the defendant’s solicitors in February 2007. The history which Dr Bentivoglio took from the plaintiff included the following:

Her sporting and recreational activities included running, weight training and going to the gym and doing aerobics. She has been unable to continue doing these activities since her injury. She also rides a bike and walks. She has been capable of continuing doing this since the time of her injury.

The plaintiff in the witness box confirmed the accuracy of the history, qualifying the reference to cycling by saying that she had attempted this only on a few occasions, some years earlier, but had been unable to continue with it. She found that turning and looking left and right caused tension, as did bumps from the impact on the concrete. She found that cycling was too much, giving rise to pain afterwards, and she decided to give it up after making a good attempt at it. Cycling had caused jarring to her neck.
Counsel for the defendant then asked the plaintiff whether she had participated in a fun run at the end of 2006. She agreed that she had done so, over a five-kilometre course, but said that she had walked it rather than run it. She then qualified this by saying she had tried “a little bit of jogging, very light jogging” but had then walked. She was unable to recall her time, or how much of the course she had jogged. She denied having done any training for the event.
She was then asked how many fun runs she had competed in since the accident. Her response was that she thought she had entered perhaps one other. She did not recall when it was.
It was put to her that the fun run in question had taken place on 3 December 2006 at Weston Park, and had been a six-kilometre event, which she had completed in 7 minutes 57 seconds. She adhered to her evidence that she had walked the course, with some light jogging. It is apparent from written records in evidence that what counsel put to the plaintiff was correct and I accept it.
The plaintiff was then asked whether she could remember any other running events she had entered since the accident. She said she could not remember but there might have been one other event which she had walked, with an attempt at some jogging.
She was asked if she had competed in another fun run on 1 April 2007, over five kilometres, which she completed at a faster rate of 7 minutes per kilometre. She said she did recall another fun run but nothing specific about it. She was unable to comment on whether 7 minutes per kilometre was faster than a walking pace. She may have done some light jogging but not a full run. She said that her osteopath had recommended activities for short periods to see how she coped. She had recently attempted running at a gym with a fitness instructor but said that “running’s just been horrible the whole time” since the accident. She tried a five or ten-minute light treadmill jog but had serious pain after it and was unable to continue.
Counsel for the defendant than asked her what other running she had done since the accident. She replied that occasionally she would try and go for a walk with a light jog as well. Asked specifically about any other running events since 2006 she said she did not recall any others.
Counsel then asked her whether she had entered a half-marathon. She acknowledged this and apologised for having forgotten about it. She said she had walked that course with a slight jog as well. She agreed that the half-marathon course was about 21 kilometres, and that she had entered it as a team contestant with another employee from ENA, Elizabeth Adams. She accepted that their average time for the event had been 6 minutes 4 seconds per kilometre, the whole event taking 2 hours and 8 minutes. Nevertheless she denied that she had run the course, saying that she had walked it briskly. She would not accept that 6 minutes a kilometre was a serious running pace. She was equally reluctant to accept that she would not have entered a half-marathon if she had had problems with her neck. It was put to her that she and her team partner had beaten quite a number of other teams in the half-marathon. She said that she did not recall this. She had recently walked a half-marathon distance and had a specific recollection that it could be walked briskly in about two hours. The half-marathon she had entered with her teammate, had not, she said been a competitive event. Counsel put to her that when running, every step would jar her neck. Her answer was “depending how hard running. If you’re sort of running as a, not high impact, not running fast, but it still would, it’s still jarring, yes”.
She was asked how much training she had done for the half-marathon, and said that she did not recall. She conceded that she would have done some exercise, possibly including some light jogging, but she did not recall any serious training.
A little later in the cross-examination, the plaintiff, shown records of the half-marathon, seemed to realise that the average time of 6 minutes and 4 seconds per kilometre had been an average between her time and that of her running partner, Ms Adams, who had, she said, finished well ahead of her.
Counsel put to the plaintiff that she had not needed a day off work after the half-marathon. She said she did not recall, but would have taken painkillers.
The plaintiff agreed that when she decided to resign from her job with ENA in May 2008 she was not having any physiotherapy or acupuncture, or treatment by an osteopath. She had seen Dr Ragg only a couple of times during the first part of 2008. She agreed that she had asked him specifically to write a letter supporting her resignation. The purpose of the letter was to explain her decision to resign to her superiors at ENA. She accepted that she had not taken any significant amount of sick leave during 2008 prior to her resignation.

The plaintiff agreed that she had re-enrolled in the naturopathy diploma course before making the decision to resign her employment, but she denied that her resignation was influenced by any intention to establish a practice as a naturopath.

It was put to her that she had completed the Legal Workshop course at the Australian National University in 2006, after her car accident, with a high distinction, three distinctions and two credits. She said that she could not remember when she completed the course or what her results had been but she accepted that the University records in this regard were accurate. She was unable to recall doing her Legal Workshop course at the same time as she was working long hours with ENA.

She also accepted that, in setting up for her naturopathy practice, she had established credit card facilities for patients and had joined the Australian Traditional Medicine Society, as a result of which rebates for patients would be available from most private health funds.

Counsel for the defendant tendered a printout of four pages from a website set up by the plaintiff for her new venture, the Canberra Specialist Natural Medicine Centre, which offered facilities for making an enquiry or an appointment on line. Payment could be made by cash or credit card, with the initial appointment taking up to an hour and a half, and subsequent appointments half an hour. Appointments were offered from Monday to Saturday. This was put to the plaintiff, who agreed with what it said but made the point that she intended to operate the practice only part-time and would not be working on all days other than Sundays. She was not expecting many patients.

She said that because of her neck pain, she was unable to contemplate working full-time as a naturopath, and would be quite unable to work in a job like her previous job at the ENA. She thought that she would be unable to work as a lawyer because she would not be able to cope with working for long hours at a computer. She was unaware of any opportunities for part-time work as a lawyer, and conceded that she had not investigated the availability of part-time employment.

She agreed that by the time of the hearing she was no longer having psychological counselling. She felt that her psychologist had done all that could be done for her. Her anxiety was reduced and she no longer suffered from nightmares.

In re-examination, the plaintiff gave evidence that she had done a great deal of running before her car accident. She had often gone running for an hour, perhaps three or four times a week. She enjoyed it, getting what she called “the good endorphin feeling”. Running improved her mood and concentration, and her general sense of wellbeing. She had run fast rather than jogged.

She was asked what her expectations were about earnings from her practice as a naturopath. She said that the maximum she would want to take on was one client a day, so that she might earn $15,000.00 to $20,000.00 a year. She would be unable to offer massage and other physical therapy.

Counsel for the plaintiff called Mr Garth Crawford, who had been the plaintiff’s supervisor at ENA. He left ENA at about the same time as the plaintiff’s resignation but re-joined after about 18 months. He described the plaintiff as a very good employee, with exceptional work performance prior to the accident, diligent, intensely focused, and effective at meeting deadlines. He had recommended salary increases for her following performance reviews. He believed that if she had not left when she did, she would probably have been promoted to a director-manager position with a salary of about $120,000.00 to $130,000.00. She might have been promoted to his position after he left.

Asked about the plaintiff’s car accident, Mr Crawford said that he thought he had heard about it at the time. He recalled no change in her work performance immediately, but gradually over time she took increasing medical and recreational leave. In the three or four months before she left in May 2008, the increasing leave she took interfered with her duties, although when she was working she was as capable and diligent as before. Even with her time off, he could not recollect missed deadlines or poor performance. It was more a matter of having reduced the amount of work he would otherwise have delegated to her, which increased the pressure on him. His recollection was that during the plaintiff’s last three or four months with ENA, he noticed that she seemed to be moving a little more slowly, and appeared “a bit more tender about how she moved her back and neck”.

Mr Crawford agreed in cross-examination that the plaintiff had undergone a performance review at the end of 2006, after which she had been awarded a 15% salary increase on the basis of outstanding performance during that year.

He recalled the plaintiff attending a conference at Darling Harbour with him in November 2007 over a period of three days, at which she performed well, including making a presentation at one session.

He was vaguely aware of the plaintiff running in some event with Ms Adams and another employee, Alex Curran, but had no particular interest himself in running. It was a topic of conversation at ENA that the three, including the plaintiff, went running at lunchtime. He could not recall precisely when this was but thought that Ms Adams had not started employment with the ENA until 2006. He recalled seeing them in the office in their running clothes.

I had the benefit of medical reports from the general practitioner, Dr Ragg, the acupuncturist Dr Lieu and the psychologist, Dr Fleming. Reports were also tendered by counsel for the plaintiff of two specialists who had examined the plaintiff for the purposes of the case: Dr GG Griffith, consultant surgeon, and Dr W Knox, psychiatrist. Dr Ragg and Dr Griffith also gave evidence by telephone.

Dr Ragg reported to the plaintiff’s solicitors in April 2006. He had first seen the plaintiff following the accident on 7 March 2006. He found some limitation of all movements of the cervical spine, and mild tenderness of the paravertebral muscles from C3 to C7. His diagnosis was that the plaintiff had suffered a moderate soft-tissue injury to the cervical region, warranting physiotherapy and anti-inflammatory medication.

He next saw her on 3 April 2006. Her symptoms had not improved much. Clinical examination was the same. She had had one session of physiotherapy and Dr Ragg suggested that she go more frequently. She told him that her pain was interfering with her work and studies. He thought that she would need physiotherapy for six to eight weeks but should make a complete recovery.

He reported again on 12 May 2008. He noted that the symptoms had not settled within a matter of months as he had expected. The plaintiff complained of discomfort in the neck and into the shoulders every day. Physiotherapy had not helped significantly. Acupuncture had given temporary relief only. The incessant pain had caused the plaintiff psychological distress, and Dr Ragg had referred her in August 2007 to Dr Fleming. An MRI in January 2008 had been normal, but the neck pain and psychological distress continued. Dr Ragg said that he found it difficult to predict when her symptoms would abate.

Interestingly, although he did not mention it in the report, the report of 12 May 2008 was written a week after the letter he handwrote for the plaintiff in relation to her employment, which read as follows:

Dianne[sic] has had a number of health issues over the last 18 months, including chronic neck pain and depression. After prolonged discussion on the matter, I have advised her to resign her current position. She is not fit to return to work for at least the next 4 weeks.

Other documents in evidence include a certificate from Dr Ragg’s practice, over the hand of another doctor, Dr Helen Mooney, dated 23 May 2008 as follows:

Dianne[sic] has had a number of health issues over the last 18 months, including chronic neck pain and depression. After prolonged discussion on the matter, I have advised her to suspend her current unit of study for this semester.

It was of course soon after that that the plaintiff resigned from her employment with ENA. She wrote a letter of resignation to the Chief Executive dated 2 June 2008 which included a paragraph as follows:

The reason for my resignation is due to my health, which is now preventing me from performing my required duties. My ill health is due to a car accident I was involved in during February 2006 which has resulted in health problems including neck and upper back pain and depression.

In his oral evidence, Dr Ragg was asked about the “prolonged discussion” in relation to the plaintiff’s resignation. His recollection was that at the time the plaintiff:

. . . had several different reasons that she was not happy with her position. One was because of her ongoing pain. Secondly, she was finding it a very stressful job for other reasons as well as significant pain. And she decided to have a change of career. . . . Every day that she went to work sitting at her desk doing her work she was having pain in her neck and arms...and because of other stress factors as well we both agreed it was a good idea for her to change careers.

In cross-examination, Dr Ragg agreed that the plaintiff had consulted him early in 2007 about health issues unrelated to the car accident, including bladder spasm and vaginismus.

Dr Ragg was completely unaware that the plaintiff had competed in the Canberra Half-Marathon in May 2007. He said that he would be surprised and impressed to learn that she could run 21 kilometres, and that it was inconsistent with her complaints of constant neck symptoms. She also did not mention to him that she had participated in fun runs earlier in 2007, or that she had been running once a week during lunchbreaks.

Dr Ragg said that he had other patients who ran half-marathons. He agreed that this was a physically demanding activity, perhaps even at the extreme level, and that it could jar the neck and the spine generally. He would not expect a person who had problems in the lumbar or cervical spine to be able to run in a half-marathon. Dr Ragg gave as one of the reasons he had discussed with the plaintiff for her resignation her feeling that although she had the academic ability to continue with her job at ENA, it was not what she wanted to do.

On 5 May 2009 Dr Ragg made a consultation note of a history that the plaintiff was sleeping eleven to twelve hours a night. He believed that she was developing chronic fatigue syndrome. The plaintiff had told him that she had had to stop her study of naturopathy at that time because of extreme lethargy. He agreed that one of the things the plaintiff told him was that she avoided running because it caused her pain although she was trying to keep fit by regular walking. He said that even walking the half-marathon course, as the plaintiff had said she had done not long before the hearing, would be inconsistent with the level of complaints that the plaintiff was maintaining in March 2010.

Dr Griffith saw the plaintiff for her solicitors on two occasions, in August 2006 and June 2008. Both were lengthy consultations, about one and a half hours each. Dr Griffith took a detailed history and carried out a thorough physical examination on each occasion. He first saw her about six months after the accident. She was still significantly symptomatic but he thought that she would make a full recovery over perhaps eighteen months. He suggested that she might be helped by a small dose of an antidepressant and by injections of local anaesthetic and depot-steroid into the cervical and cervico-dorsal muscles.

When he saw her for the second time, she had recently resigned from her job, she told him because of self-doubt that she could perform at the required level. She told him that she had become highly introspective, suffered from panic attacks and found it too stressful to continue. She had not been able to concentrate at work and felt that she had been “at breaking point”. She complained of reasonably severe symptoms of neck pain and aching discomfort in the low back. On examination, her range of neck movement had improved since he first saw her. She continued to complain of headaches, which were slowly improving. He thought that she would continue to improve. It was fortunate that an MRI scan in January 2008 had established that there was no significant structural injury as a result of the motor vehicle collision.

Dr Griffith’s oral evidence was that about half of persons suffering neck and back injuries form a rear motor vehicle impact are still symptomatic after two years, and about 30% after three years. It is hence unsurprising that a particular patient will remain symptomatic within that time frame. A further feature is that radiology taken within a week or so of such an injury will often appear normal, particularly in young people, whereas changes may be evident two years or so after the injury, in the form of small bony spurs or other degenerative changes. It is quite likely that degenerative changes seen in a young person will be post-traumatic rather than simply spontaneous. Stretching can be helpful, to minimise muscle spasm, and walking would also usually be recommended. Jogging will depend upon the extent of symptoms, and whether the patient finds that symptoms are aggravated. Jogging is unlikely to cause further injury but may add to further pain perception.

Dr Griffith did not agree that it would be unusual for low back symptoms to emerge for the first time something like two months after a collision. He said that it was often the case that more severe injuries occupy the attention of the patient initially. As the injuries which were more serious earlier begin to settle with treatment, other injuries can become evident. The plaintiff’s complaints of low back symptoms some two months after the accident were consistent with the sort of injury she described. The low back injury was likely to have been a bruising injury from which the plaintiff would be expected to have recovered over time.

Counsel for the defendant asked Dr Griffith whether he would have expected the plaintiff to be able to return to her pre-accident activities of running, cycling, aerobics and walking. The doctor’s response was that this would depend on her ability to tolerate pain. She would probably not be able to undertake activities involving high impact, such as jogging. He agreed that running causes jarring through the body, including the lumbar and cervical spine. The capacity of any individual patient to cope with such activity would depend on their pain tolerance. Wide individual variances could be expected. Dr Griffith would have expected competing in a half marathon to cause significant aggravation of symptoms and he would normally advise a patient not to engage in such activity.

Dr Lieu, the acupuncturist, is also a registered medical practitioner. He performed ten sessions of acupuncture in the first half of 2007, and reviewed the plaintiff in May 2008. She told him that she had engaged in a lot of exercise before her accident, including running, tennis, gymnastics and aerobics. Since the accident she had had to give all this up because of chronic pain and could only continue with walking. She was unable to do gardening or driving for anything other than short distances.

Dr Jillian Fleming is a clinical psychologist. She diagnosed the plaintiff in August 2007 as anxious and depressed. She thought that the level of depression was directly related to the plaintiff’s pain following her injuries in the motor vehicle collision. Her treatment was aimed at setting realistic goals and expectations, and teaching the plaintiff ways of coping during the treatment process, such as pain management strategies, relaxation training, problem solving and goal setting. As part of the history she took from the plaintiff, she noted that the plaintiff was no longer able to run or exercise.

Dr Knox saw the plaintiff in April 2009. In addition to the plaintiff’s neck pain and headaches, with some lower back pain, attributed to the motor accident, he recorded a history of gynaecological health problems including dermatitis of the genital area and vaginismus. Part of the history he took was that the plaintiff had been put off work by her general practitioner in May 2008. He diagnosed an adjustment disorder with mixed anxiety and depressed mood, which he regarded as entirely the result of the motor accident. His prognosis was that the plaintiff would continue with very significant physical and mental health problems for the foreseeable future and perhaps permanently. She might be helped by antidepressant medication, which she had chosen not to take until then.

Dr Bentivoglio saw the plaintiff twice at the request of the defendant’s insurer and solicitors, in February 2007 and September 2008. When he first saw her, he diagnosed at least a musculoskeletal strain of the cervical spine in the car accident, with a possibility of some degree of disc damage. There was no evidence of nerve root irritation or compression, and no treatment was appropriate. He thought that her neck symptoms would eventually settle to an acceptable level over time, although the time span might be quite prolonged. He specifically disapproved of acupuncture and stretching exercises as a treatment regime.

By the time he saw her on the second occasion she had given up work. He recorded that her sporting and recreational activities had included running, weight training, gym work and aerobics, none of which she had been able to continue since her injury. She was still capable of walking and had elected no longer to ride a bike. She was no longer capable of playing social tennis.

Dr Bentivoglio remained of the opinion on this occasion that the plaintiff had sustained a musculo-ligamentous strain of the cervical spine, and that her symptoms would eventually settle completely without the need for any treatment. He could not really understand why her symptoms had not settled within three months of the accident, and could not explain her continuing neck complaints. Having been informed of the normal MRI scan of the cervical spine he could see no basis for any restrictions on her work or leisure capacity. Her prognosis was excellent and the MRI scan indicated complete recovery already.

In his telephone evidence, Dr Bentivoglio confirmed that he had not been informed of the plaintiff’s participation in two fun runs and a half-marathon between December 2006 and May 2007. He said that running jarred the neck and back and was particularly unpleasant for people with neck and back problems, for whom running would be contraindicated. The level of symptoms of which the plaintiff complained would prevent her from engaging in any substantial running, and would be likely to give her a headache into the bargain.

He said that a brisk walking speed would be about ten minutes for a kilometre. Seven to eight kilometres would be regarded as a running speed and not a walking speed. Running at that speed would exacerbate neck and back symptoms after about five minutes and the person would not be able to continue running. The symptoms could not be tolerated.

Dr Bentivoglio also said that a person could not embark on a two-hour running event without training. It would be desirable for the person to train at two-thirds of the length of the proposed run. He said that a person who could run a half-marathon would be perfectly capable of running at lunchtime and undertaking clerical-administrative work at a desk in front of a computer. Such a person would also be capable of vacuuming, cleaning a bathroom and other housework.

Dr Bentivoglio accepted in cross-examination that individuals have different pain thresholds, and that there are some people who complain of great pain on walking even short distances whilst others can walk for very long distances without pain.

The plaintiff was seen in March 2009 by Dr John McMahon, a clinical psychologist, at the request of the solicitors for the defendant. Dr McMahon saw the plaintiff over an extended period and subjected her to a range of clinical tests. He found that she was suffering from a chronic pain disorder associated with both psychological factors and a general medical condition, being her whiplash injury. He accepted that she might previously have met the criteria for an adjustment disorder with anxiety and depressed mood, but said that this had been successfully treated by Dr Fleming and had substantially resolved. The plaintiff’s anxiety and depression had been attributable to secondary losses due to her injury but had resolved into insignificance by the time he saw her. Her psychological prognosis was fair to good.

Dr Knox was provided with a copy of Dr McMahon’s report for comment in April 2010, although he did not see the plaintiff again. Where there was a difference of opinion between Dr Knox and Dr McMahon, Dr Knox disagreed with the latter and adhered to his original opinion.

Counsel for the defendant called a young lady employed by his instructing solicitors in a paralegal capacity, Ms Lara Deards, who had competed in the 2008 and 2010 Canberra half-marathons. Her evidence was that each race was 21.1 kilometres. She had completed the 2008 race at a pace of 7 minutes 3 seconds per kilometre. She had been suffering from some kind of injury, and had walked for about two minutes but had run the rest of the way, taking two hours and twenty minutes to complete the course. She had trained for the race with a group for about three months, and had trained on her own for some months prior to that. Her group began running about fifteen kilometres a week, building up to about thirty kilometres a week before the race.

She also competed in the 2010 half-marathon over the same distance. Her time that year was two hours and three minutes, or 5 minutes 51 seconds a kilometre. That had been her best time, and she had run very hard for the whole race to achieve it. She confirmed that the half marathon was a running event and not a walking event. At the time of the hearing Miss Deards was aged twenty-nine, about the same age as the plaintiff. She thought that she would still have to run the whole way to record a time of seven minutes per kilometre. She finished on each occasion towards the middle of the field.

That is a summary of the evidence. It falls to me to resolve the inconsistencies and arrive at findings of fact on the balance of probabilities.

A plaintiff who holds back from telling the full story to her solicitors and counsel, and to her treating and assessing doctors, and indeed to the court, can scarcely complain if she is met with some scepticism about the balance of her evidence, and about her credibility generally. There is no question that the court would have been placed in a position where the plaintiff’s damages would have been assessed without any knowledge of her participation in two fun runs and a half-marathon, and her running with colleagues in her work lunchbreaks, if those matters had not been brought out by counsel for the defendant in cross-examination. I reject out of hand the plaintiff’s evidence that she simply forgot about those highly significant events. I am left without any other explanation than that she intended to mislead the court about her physical capacity, what she was capable of doing and what she did do, in the hope of inflating her damages. A plaintiff who approaches her case in that way runs the risk that other parts of her case which may be entirely genuine will not be accepted.

The evidence about those matters makes it easier for me to find that Dr Ragg’s apparent recommendation that she resign from her employment was in fact something which she sought and to a degree manipulated.

The successful attack on credit casts doubt upon all of her evidence, particularly where it is not independently corroborated.

Having said that, I am satisfied on the evidence that the plaintiff was a passenger in a vehicle which was struck from behind whilst stationary in a severe and heavy impact, and that she suffered a relatively typical, for such an accident, whiplash injury to the neck and probably also the lower back. I am satisfied that she sustained a soft-tissue injury to the muscles and ligaments surrounding the cervical spine and leading to the shoulders. I am also satisfied that there was some injury to the low back, but I am influenced by the fact that the plaintiff did not mention any low back symptoms in chief to the view that the low back injury was a relatively minor one from which she has now fully recovered.

I accept the plaintiff’s evidence about the effect of the injuries upon her during the early months after the accident. I am satisfied that her complaints of neck pain and restriction of movement were genuine, and that she suffered from headaches from time to time.

The plaintiff did not make any claim for workers’ compensation, although she would have been entitled to do so in the context of a journey injury. I suspect that she may have been unaware that she had any such entitlement, and perhaps such a claim would not have been of much value to her considering she had little expense for treatment and little time off work in the early stages. She instructed her present solicitors very soon after the accident (Dr Ragg’s first report to the solicitors was prepared on 17 April 2006, only two months after the accident). I must therefore assume that she was aware of and to some degree focused upon her claim for damages from that early time. Her solicitors indeed arranged for a specialist medico-legal assessment by Dr Griffith within six months of the accident, although the plaintiff at no time had any treatment by a medical specialist. All of the specialist reports were brought into being by solicitors or insurance companies.

Whilst I accept the early medical evidence, including the first reports of Dr Ragg and Dr Griffith, and the reports of Dr Lieu and Dr Fleming, I cannot ignore the fact that by December 2006 the plaintiff was able to participate in a six-kilometre fun run. I reject her evidence that she walked the distance with a little light jogging. I have no doubt that she ran the distance to the best of her ability at that time. I must also take account of the fact that she entered a five-kilometre fun run in April 2007, and even more significantly, that she entered a half-marathon in May 2007. Again I reject her evidence that she walked and partly jogged, and find on the facts that more probably than not she ran to the best of her ability during both of those events. I must also take account of the fact that she deliberately, to my mind, chose not to tell any of the doctors about those events, and also chose not to tell her solicitor or counsel, or the court, until she was caught out. I had the impression during her cross-examination that she was minded to admit no more than she had to until it became clear to her what information counsel for the defendant had available to him, and that she relied heavily on a stated inability to remember when she found herself in difficulty.

At the same time, counsel for the defendant very fairly acknowledged that the plaintiff had suffered genuine injuries in the motor accident and that she might still be suffering from symptoms by the time of the hearing, although she had exaggerated those symptoms in her evidence.

The plaintiff continued in her employment for nearly two and a half years after the accident. There is no objective evidence that she had any real trouble coping with her work responsibilities until the beginning of 2008. By then, she seems to have had a number of health problems. It was not suggested by counsel for the defendant that she contrived the termination of her employment for the purpose of establishing a substantial claim for loss of earning capacity, and I do not think for a moment that that was her motivation.

I accept that the plaintiff developed a depressive or anxiety condition which required treatment in the form of psychological counselling, and that this was a consequence of her physical injuries. Dr Fleming’s treatment is properly to be seen as a consequence of the defendant’s negligence. I accept the view of Dr Fleming, Dr Knox and Dr McMahon that the plaintiff’s anxiety and depression were secondary to, and, I find, proportional to the severity of her physical injuries. The plaintiff herself conceded that Dr Fleming had treated her successfully and taken the treatment as far as it could reasonably be taken. It seems to me that by about the end of 2007 the plaintiff had generally recovered from the psychological sequelae of her physical injuries.

So far as the assessment of damages is concerned, probably the most important question for me to answer is whether the motor vehicle collision was the cause, or a cause, of the termination of the plaintiff’s employment with ENA in June 2008. There is no doubt that the decision to resign was the plaintiff’s. There is no suggestion that her employment was at any risk of termination by her employer. As was submitted by counsel for the defendant, she was under no obligation to provide a written explanation for her decision to leave. She could have simply given appropriate notice. I accept the plaintiff’s evidence that she has no intention of returning to that employer. It seems to me likely that the fact that the plaintiff was pursuing damages in the present proceeding was at least a factor in her seeking to obtain a written recommendation from Dr Ragg that she should resign.

Factors militating against the conclusion that the motor accident played any causative part in the plaintiff’s decision to resign are her capacity to run a half-marathon in May 2007, and the glowing performance review, and consequent salary increase, which she received from the employer at the end of that year.

Counsel for the defendant did not suggest, nor do I think, that the plaintiff decided to resign from her employment purely to lay the ground for a substantial claim for loss of future earnings. I accept that a major factor in her decision to resign was her increasing inability to cope with the stress of the work. There were other things happening in her life about which the court did not hear in detail. There was no explanation for the absence of any evidence from her partner, and I draw the available inference that any evidence he might have given would not have assisted her case. I hasten to add that this is not to suggest for a moment that any evidence he might have given would have damaged her case. However, the evidence is that at relevant times he was staying overnight with the plaintiff three or four times a week and could have been expected to have give relevant evidence about what was going on in her life during the months leading up to her resignation.

Despite this, I am satisfied that the injuries which the plaintiff suffered in the motor accident, and their consequences two years later, were among the reasons for the plaintiff’s decision to resign from her employment. This is not to say that she might not have chosen to resign at about the same time even if she had not been injured in the car accident. But the injuries, combined with other factors including her gynaecological problems which I think were probably causing pressures within her relationship with her partner, and the demands of her employment, in the event together influenced her to make the decision to resign.

The damages flowing from her decision to resign must be moderated to take account of the likelihood that at some point, either when she resigned or later, the plaintiff might well have decided to resign even if she had not been injured. The other contributing factors included her interest in establishing a practice as a naturopath, something which had been in her mind for a number of years.

The assessment of damages for loss of earning capacity must take account of her likely future earnings. I do not accept the plaintiff’s evidence that she will limit her neuropathy practice to one patient a day, or about an hour a day. She has shown in the past that she is focused and ambitious, and I have no doubt that she will do what she can to build the practice up. She may do very well out of it.

The evidence places me in something of a quandary in making a factual finding as to the plaintiff’s present level of neck pain and other symptomotology caused by the car accident. The doctors generally agree that there is nothing objective upon which to base their opinions and that they are generally reliant on what the plaintiff tells them. The plaintiff’s credit has been severely damaged in cross-examination. Doing the best I can, I find that the plaintiff has some continuing neck pain from time to time, aggravated by prolonged sitting, for example at a computer, and that she may occasionally have headaches. The thrust of the medical evidence is that her condition can be expected to continue to improve, although she may have symptomatic episodes at decreasing intervals, and of decreasing severity, indefinitely. She is clearly vulnerable to anxiety and depression, and it is possible though probably not very likely that her decreasing symptoms caused by the accident will trigger future such episodes, perhaps in combination with other stresses in her life. I think it unlikely that she will require future psychological treatment.

Having made those findings, I proceed to assist damages. I invited submissions from counsel as to an appropriate range for general damages for pain and suffering and loss of enjoyment of life. The ranges put reflected the submissions of counsel as to the findings I should make, which will explain to some extent the differential between counsel. Counsel for the plaintiff submitted that the appropriate range was $80,000.00 to $100,000.00, with half apportioned to the past and half to the future. Counsel for the defendant submitted that $60,000.00 was a more appropriate figure, and that it should be apportioned about two thirds to the past and one third to the future. On reflection it seems to me that a reasonable figure for general damages is $70,000.00, of which I apportion $40,000.00 to the past and $30,000.00 to the future. The past component attracts interest of $5,000.00, taking account of the fact that the past component should be regarded as weighted a little more heavily to the period immediately after the accident.

It is agreed between the parties that the out-of-pocket expenses incurred by the plaintiff or on her behalf amount to $11,223.68, of which $5,862.00 has been paid by the defendant’s insurer. A small amount of the balance has been paid through health insurance, but the plaintiff has herself paid about $4,900.00, upon which she is entitled to interest at the prescribed commercial rate of 9% per annum. In the absence of agreement or precise evidence about the dates of payment by the plaintiff, the simplest approach is to treat that amount as having being paid relatively evenly over the period since the accident, with some weighting towards the earlier period.

It seems to me inappropriate to include in the damages the amount the insurer has already paid. Accordingly I allow for past expenses $5,362.68, plus interest of $1,300.00.

A substantial claim was foreshadowed in the Statement of Particulars for future treatment expenses, which has not been made out on the evidence. The plaintiff may need to take painkillers and anti-inflammatory medication on occasion in the future. I allow $1,000.00 for future treatment.

The plaintiff also foreshadowed a significant claim for past and future domestic care and assistance provided by her partner. As I have said, he was not called to corroborate this, and having regard to the damage to the plaintiff’s credit in cross-examination, I treat her evidence about it with some scepticism. Nevertheless, I am satisfied that during the early months and years after the accident she did need some care and some assistance around the house, and I allow $3,000.00 inclusive of interest for the past. I am not satisfied that any future allowance is justified on the evidence.

As to lost earnings to date, counsel for the plaintiff submitted that I should allow the difference between the plaintiff’s likely earnings if she had stayed at ENA, and her likely earnings as a naturopath. Counsel for the defendant submitted that on the evidence such an approach could not be justified, and that without it I should simply arrive at a figure in the nature of a buffer. I am persuaded that notwithstanding my finding that the car accident was a contributing cause of the plaintiff’s decision to resign, when one puts into the balance all of the other factors I have discussed, the approach suggested by counsel for the defendant is the appropriate one. As a starting point I accept on the evidence that the plaintiff would probably have earned about $80,000.00 per year if she had stayed with ENA, including superannuation but after deduction of income tax. It is now some three and a half years since she resigned. I weigh in the balance the possibility that she would have decided to resign anyway, either when she did or at some later time, regardless of the car accident.

I also take account of the fact that I am satisfied that the plaintiff has a residual earning capacity, which she has chosen not to exercise, for example working part-time in the legal profession. I take judicial notice of the fact that not all employment in the law is as intense or demanding as one is aware it can be with some of the national and international firms of solicitors, or as the plaintiff’s work was at ENA. Nor does all legal work require prolonged sitting at a computer. Further, I think it likely that the plaintiff has mitigated her loss to some degree by earnings since the trial as a naturopath. Doing the best I can, I allow $100,000.00 for impairment of earning capacity for the past. Despite the assessment of so general a figure, I am satisfied that the plaintiff is entitled to interest on it at the prescribed rate of 9% per annum, and allow interest of $11,250.00.

An award to compensate the plaintiff for loss of earning capacity for the future is even less suited to precision. The plaintiff is now 31. Her working future is about 35 years. Having regard to my findings about her present symptoms and disabilities, I cannot justify a substantial award for impairment of an earning capacity. I allow a further $50,000.00, which includes any negative effect on her ultimate superannuation benefits, for that head of damage.

The individual components of the award are:

General Damages $70,000.00

Interest on general damages $5,000.00

Past out-of pocket expenses $5,362.68

Interest $1,300.00

Future treatment expenses $1,000.00

Griffiths v Kerkemeyer component including interest
$3,000.00

Past economic loss $100,000.00

Interest thereon $11,250.00

Future economic loss $50,000.00

$246,912.68

Whilst that figure may appear a large amount for a young woman who was capable of running a half-marathon within fifteen months of her accident, I am nevertheless satisfied on consideration that the amount represents a proper reflection of the impact of the defendant’s negligence upon the plaintiff. There will be judgment for the plaintiff for $246,912.68. I repeat that this amount does not include, and is additional to, the expenses already paid by the insurer of $5,861.00.

I shall hear the parties about costs.

I certify that the preceding one hundred and ten (110) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.
Associate:
Date: 25 November 2011

Counsel for the plaintiff:  Mr SH Pilkinton
Solicitors for the plaintiff:  Maliganis Edwards Johnson
Counsel for the defendant:  Mr RA Cavanagh
Solicitors for the defendant:  Moray & Agnew
Date of hearing:  3, 4, 5 May 2010
Date of judgment:  25 November 2011

General Damages	$70,000.00
Interest on general damages	$5,000.00
Past out-of pocket expenses	$5,362.68
Interest	$1,300.00
Future treatment expenses	$1,000.00
Griffiths v Kerkemeyer component including interest	$3,000.00
Past economic loss	$100,000.00
Interest thereon	$11,250.00
Future economic loss	$50,000.00
$246,912.68

[2011] ACTSC 190

November 25, 2011