Macri v Mckinlay
[2020] ACTMC 11
•27 May 2020
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Macri v Mckinlay & Anor |
Citation: | [2020] ACTMC 11 |
Hearing Dates: | 4 – 5 April 2019, 6 November 2019 |
DecisionDate: | 27 May 2020 |
Before: | Magistrate Morrison |
Decision: | See paragraphs [70] and [87] |
Catchwords: | CIVL LAW – NEGLIGENCE – motor vehicle accident – breach of duty of care admitted – causation – whether accident capable of causing injury and disability claimed by plaintiff – inconsistency between plaintiff’s oral testimony and contemporaneous medical notes – Mason v Demasi [2009] NSWCA 227 distinguished –quantum assessment |
Legislation Cited: | Evidence Act 2011 (ACT) s 79 |
Cases Cited: | AB v Australian Capital Territory [2018] ACTSC 16 Geddes v Taleni [2017] ACTSC 183 Griffiths v Kerkemeyer [1977] HCA 45; 139 CLR 161 Haider v Gudelj [2019] ACTSC 213 Jones v Dunkel [1959] HCA 8; 101 CLR 298 King v Barrie [2019] ACTSC 36 Mason v Demasi [2009] NSWCA 227 Nouri v Australian Capital Territory [2018] ACTSC 275 Payne v Parker [1976] 1 NSWLR 191 R v Greentree [2017] ACTSC 274 Re an application for leave to appeal by Insurance Australia Ltd [2017] ACTCA 57; 83 MVR 1 Utting v Clarke [2016] ACTSC 168 |
Parties: | Emma Macri (Plaintiff) Monika Mckinlay (First Defendant) Insurance Australia Limited trading as NRMA Insurance (Second Defendant) |
Representation: | Counsel D Shillington (Plaintiff) K Rewell SC (Defendants) |
| Solicitors Maliganis Edwards Johnson (Plaintiff) HWL Ebsworth Lawyers (Defendants) | |
File Number: | CS 3 of 2018 |
MAGISTRATE MORRISON:
Introduction
The plaintiff claims that she suffered physical injuries and psychological effects as a result of a motor vehicle accident on 29 January 2015. She says that the stationary vehicle in which she was a passenger was struck by a reversing vehicle being driven by the first defendant.
It is not in dispute that the vehicle being driven by the first defendant came into contact with the vehicle in which the plaintiff was a passenger while the former was reversing. The first defendant admits a breach of a duty of care. What has been in contest is whether, and the extent to which, the plaintiff suffered the injuries and effects of which she complains as a result of the impact between the two vehicles.
Scope of the dispute
The evidence in the plaintiff’s case comprises the oral testimony of the plaintiff, Mr Johnny Horvath, Dr Robin Higgs, orthopaedic surgeon, and Ms Leesa Morris, forensic psychologist. It also includes the report of Dr Higgs dated 23 February 2017, the report of Ms Morris dated 28 December 2016, and various other medical records, including clinical notes, which comprise Exhibit P1. The driver of the vehicle in which the plaintiff was a passenger, Ms Rachel Pettit, did not give evidence.
The evidence in the defendants’ case comprises the oral testimony of the first defendant and Adjunct Associate Professor Robert Anderson, photographs of damage to both vehicles, and the report of Adjunct Associate Professor Anderson dated 9 August 2018. For convenience, I refer to Adjunct Associate Professor Anderson in these reasons simply as Professor Anderson.
For the record, in chambers, and with the consent of both parties, I admitted into evidence in the defendant’s case an AFP Crash Report dated 29 January 2015 and a report by CEO Investigations dated 22 April 2015. I received the former of these into evidence as Exhibit D11 and the latter as Exhibit D12.
In their defence to the plaintiff’s claim, the defendants say that the impact between the vehicle being driven by the first defendant and that in which the plaintiff was a passenger did not cause the consequences of which she complains because it was a very low level impact. In support of that assertion, and relying upon the evidence of Professor Anderson, they say that the impact was of such a low level that it was, in fact, not capable of causing those consequences.
It follows that my findings about the precise nature and extent of the impact between the vehicles is crucially important.
The evidence which is relevant to those findings is the oral testimony of the plaintiff and the first defendant, the photographs, and the oral testimony and report of Professor Anderson. I do not regard the evidence of Dr Higgs as relevant for this purpose. He has impressive multi-disciplinary qualifications, but it is apparent that, in this instance, the opinion he expresses is based upon various assumptions and does not assist on the question of the nature and extent of the impact between the vehicles.
Against the background of the above, and in the absence of any evidence from Ms Pettit, the view formed of the credibility of both the plaintiff and the first defendant also assumes much importance. I refer again later to the absence of evidence from Ms Pettit.
Evidence of the plaintiff
Evidence-in-chief
The following constitutes a summary of what the plaintiff said in her evidence-in-chief.
On the day of the incident, the plaintiff was sitting in the front passenger seat of a Holden Commodore Acclaim which had been driven by her friend, Ms Pettit, to a McDonald’s carpark in the suburb of Braddon in the Australian Capital Territory. The plaintiff and Ms Pettit had bought some food and then sat in the car to eat it. The plaintiff was not wearing a seatbelt. She heard an argument taking place in the carpark and then saw the Toyota Rav 4 reversing very quickly towards the vehicle she was in. She and Ms Pettit yelled out for the driver to stop and Ms Pettit sounded the horn of the Commodore, but the rear of the Rav 4 struck the driver’s side of the Commodore.
The plaintiff said that she felt the Commodore move from the impact; her coffee and chips were spilt, and her left side and shoulder came into contact with the passenger side door of the Commodore adjacent to where she was seated. Ms Pettit’s arm was outside the car and was injured when the Rav 4 hit the Commodore.
The plaintiff and Ms Pettit got out of the car and spoke to the other driver. The other driver was “horrible” to her and Ms Pettit. The other driver did not at first want to provide her details, but did eventually do so. The plaintiff rang police twice but they told her to make a report online.
The plaintiff and Ms Pettit eventually drove off, went down the road and stopped. Ms Pettit’s right arm was in pain as a result of the collision and she and Ms Pettit sat in the car for an hour.
The plaintiff felt no immediate pain and did not immediately attend hospital or any medical practitioner. The following day she felt like staying in bed for the whole day. She did not think that there was much wrong, but she felt worse rather than better over the next few days and did not really move from bed for that time.
As I understood her testimony, the plaintiff said the post-accident pain which eventually developed started high on her left side and then developed down the left-side of her body and her lower back. She also started to get pins and needles in both arms and sometimes in both legs as well as headaches.[1] She said that “the pain ended up being in both my legs and both my arms from the pins and needles and the back. It’s hard to explain but I definitely had a pain problem”. She said she also had shoulder pain.
[1] Transcript 4 April 2019, 27.
She saw her general practitioner, Dr Luz Espino, and also went to the Aboriginal Health Service. She received painkillers.
The symptoms of which she complains persisted until she had injections in her lower back in December 2016 and improved thereafter.[2] Her neck does not give her problems. Her back pain persists but at a much-reduced level.
[2] Transcript 4 April 2019, 31.
In addition to those physical effects she also suffered difficulties when travelling in a motor vehicle. She described the difficulties as being “clenchy” and “very jumpy”. She also agreed with a proposition that she was anxious.[3] Those difficulties continued for six to eight months after the accident.
[3] Transcript 4 April 2019, 32.
Before the accident she could do all the usual household chores. After the accident she required assistance with some activities.
Assessment of the plaintiff’s credibility
I pause to note here for context that the first defendant said in her evidence-in-chief that she reversed her car “gently”, that she heard a bang, and then drove her car forward back into the parking space.[4] She said the impact was “very, very minor”.
[4] Transcript 4 April 2019, 80.
It is apparent that the plaintiff is not a sophisticated person. Her testimony about her background evokes sympathy. Colloquially, she has had a hard life. She presents as someone who is unaccustomed to precision in the use of language. I have made allowance for those things in my assessment of her testimony.
The plaintiff accepted under cross-examination that her memory of the incident at the time of the hearing was poor, but said that was not the case immediately after the incident.[5] In addition, the plaintiff gave her testimony in a somewhat rambling fashion, and, in answering questions, had a tendency to digress. She had to be told on several occasions to stop what she was saying to bring her back on topic. I was left with the impression that her digressions were something of a personal idiosyncrasy rather than an indicator of prevarication on her part.
[5] Transcript 4 April 2019, 44.
Senior counsel for the defendants points to two particular aspects of the evidence which he says undermine the plaintiff’s credibility.
The first aspect of the evidence is the speed at which the first defendant’s vehicle was travelling. The collision took place in the carpark of a McDonald’s restaurant in the city. It is not in dispute that the first defendant’s vehicle was being reversed out of a car space. The first defendant said that she was reversing out between two cars – that is, one car parked on either side of hers. That was accepted by the plaintiff. A diagram depicting a plan view of the carpark is in evidence as Exhibit D4. It is unchallenged. It is drawn to scale. It demonstrates that the distance between the rear of the car parking space from which the first defendant’s car reversed and the point of impact with the second vehicle is about equal to the length of the car parking space – that is, a little over one car-length.
The first defendant took photographs of the damage to her vehicle. They are in evidence as Exhibits D5, D6, and D7. It was not put to the first defendant that the photographs did not accurately depict the damage caused by the collision. The damage they depict is very slight, comprising what was, in my opinion, fairly described by senior counsel for the defendants as “stress marks”. That background is relevant because of what the plaintiff said in her testimony about the speed of the first defendant’s vehicle.
In the course of cross-examination, the plaintiff described the speed of the first defendant’s car in the following ways:
(a)“[t]his lady was going very, very fast”;[6]
(b)“the car was going very fast”;[7]
(c)“she came very fast out”;[8]
(d)“she was going so fast we thought ‘oh my god’ …”.[9]
[6] Transcript 4 April 2019, 46.
[7] Transcript 4 April 2019, 47.
[8] Transcript 4 April 2019, 48.
[9] Transcript 4 April 2019, 49.
In addition, the report of Ms Morris includes the following description of the collision given to Ms Morris by the plaintiff:
When she started reversing, she was going so fast we thought “oh my god”. I think I went to yell and then “smash”, she hit us really badly.
Further, the plaintiff’s description of the collision to Dr Mohamad Mourad, orthopaedic surgeon, had included an assertion that the first defendant’s vehicle had “come flying” towards her and Ms Pettit’s car.
Given the circumstances surrounding the collision, including the proximity of the two parked cars to the first defendant’s vehicle, the distance travelled by it between its stationary position and the point of collision, and the extent of the damage to the first defendant’s vehicle, it is highly unlikely that the first defendant’s vehicle was at any time travelling at what could accurately be described as “very fast” or even “fast”.
I am conscious of the plaintiff being under a disadvantage as a witness for the reasons referred to earlier. I also accept that the words used to describe something such as the speed of a vehicle, especially if spoken off-the-cuff, may give an inaccurate impression – perhaps even wildly inaccurate – without necessarily indicating any fabrication or unreliability of the testimony of the witness.
In the present case, however, the various descriptions of high speed were given by the plaintiff repeatedly in her testimony and they were given in response to propositions drawing her attention to the defence assertion that the first defendant’s vehicle was in fact travelling at only a slow speed and no more than walking pace. It cannot be said of her answers under oath that they were an off-the-cuff opinion.
The second aspect of the plaintiff’s evidence pointed to by the defendants as undermining her credibility is that of the timing of her first complaint about what she says are the consequences of the collision.
The plaintiff says she consulted her general practitioner, Dr Espino, on 5 February 2015 – that is, seven days after the collision. Dr Espino’s clinical notes are in evidence as part of Exhibit P1. The relevant entry is at page 68 of Exhibit P1. They record the “[r]eason for visit” as “GP Mental Health Care Plan”. The notes include the following entry:
She gives a history of recent MVA:
NOI- MVA
TOI- approx. 1:45 PM
DOI- 29/01/2015
POI- Civic Carpark Near McDonald
Her friend and her (passenger) were having lunch in her frind’s [sic] car when another car which was reversing came too fast and hit the driver’s side and injured her friends [sic] arm. Her friend went to Calvary hospital. They rung [sic] the police but nobody came.
It is apparent from the other parts of the notes that the consultation dealt with matters relevant to a mental health plan. The notes make no reference to any complaint by the plaintiff during that consultation about any pain or discomfort suffered by her. The plaintiff’s testimony was that she was suffering pain at that point in time.
The plaintiff’s testimony about whether she had told Dr Espino she was suffering pain at that first consultation is not clear. The cross-examination of the plaintiff on this point was clearly directed to whether she had told Dr Espino about her pain at the consultation on 5 February 2015. It is apparent that she at times gave answers saying that she had told Dr Espino about her pain, but it was not clear that she was referring to that consultation on 5 February 2015. I do not necessarily attribute that to evasiveness on her part. As I have said, she was not a sophisticated or well-educated person.
The overall tenor of her testimony on the point was, however, that she had told Dr Espino on 5 February 2015 and had been prescribed painkillers. I conclude that the effect of her evidence is that the occasion on which she was prescribed painkillers was when she had told the doctor about the pain. Such a temporal connection is logical. The clinical notes in evidence do not show any painkillers prescribed on the occasion of the 5 February 2015 consultation. They do show the plaintiff reporting back pain and painkillers being prescribed on the occasion of the consultation which took place 47 days after the collision on 17 March 2015.
I was referred by counsel for the plaintiff to the decision of the New South Wales Court of Appeal in Mason v Demasi [2009] NSWCA 227 (‘Mason’). In Mason, the Court was dealing with inconsistencies between accounts given by the plaintiff to (and between) health professionals and her oral testimony.
With respect, what is before me can be distinguished somewhat. The inferences I am asked to draw are based not upon some inconsistency between the plaintiff’s descriptions given to Dr Espino of what took place or of her injuries or their effects and those given in her oral testimony. Rather, the inferences I am asked to draw are based upon the absence of any such descriptions in Dr Espino’s notes. What Dr Espino’s notes unquestionably establish is that, at the consultation on 5 February 2015:
(a)the doctor was told of the motor vehicle accident by the plaintiff; and
(b)no note was made by the doctor in the records produced to the court of the plaintiff having complained of any injury as a result of it.
The inferences I am invited to draw by senior counsel for the defendants are that:
(a)despite making a point of telling the doctor about the accident, the plaintiff made no complaint of any pain or injury; and
(b)the plaintiff made no complaint because she had not in fact suffered any pain or injury.
In Mason, his Honour Basten JA states that what can be inferred from the notes of health professionals should be approached with caution for several reasons, including the following:
(a) the health professional who took the history has not been cross-examined about:
(i) the circumstances of the consultation;
(ii) the manner in which the history was obtained;
(iii) the period of time devoted to that exercise, and
(iv) the accuracy of the recording;
(b)the fact that the history was probably taken in furtherance of a purpose which differed from the forensic exercise in the course of which it was being deployed in the proceedings;
(c) the record did not identify any questions which may have elucidated replies;
(d)the record is likely to be a summary prepared by the health professional, rather than a verbatim recording, and
(e)a range of factors, including fluency in English, the professional’s knowledge of the background circumstances of the incident and the patient’s understanding of the purpose of the questioning, which will each affect the content of the history.[10]
[10] Mason [2009] NSWCA 227 at [2].
That list sets out what are common-sense reasons for the cautious approach to be taken in circumstances such as those in Mason. His Honour’s observations have been referral to with approval on a number of occasions in this jurisdiction.[11]
[11] See Utting v Clarke [2016] ACTSC 168 at [30] per Elkiam J; Geddes v Taleni [2017] ACTSC 183 at [13] per Elkiam J; R v Greentree [2017] ACTSC 274 at [27] per Elkiam J; AB v Australian Capital Territory [2018] ACTSC 16 at [10] per Elkiam J; Nouri v Australian Capital Territory [2018] ACTSC 275 at [98] per Elkiam J; Haider v Gudelj [2019] ACTSC 213 at [117] per Elkiam J; see also King v Barrie [2019] ACTSC 36 at [38] per Crowe AJ.
I note in passing the comments made by his Honour Mossop J in Re an application for leave to appeal by Insurance Australia Ltd [2017] ACTCA 57; 83 MVR 1. In that case, his Honour considered an application for leave to appeal from the decision of a single judge of the Supreme Court of this jurisdiction. In the application for leave, it was submitted that the primary judge had erred in concluding that a contradiction arose (presumably in relation to oral testimony) by virtue of the existence of expert medical reports and the results of examinations, because that conclusion was inconsistent with the observations of his Honour Basten JA in Mason. His Honour Mossop J observed at [31]:
So far as the decision in Mason v Demasi is concerned, this decision does not lay down any fixed rule. It quite reasonably promotes caution in relation to apparent inconsistencies between medical records or between medical records and oral testimony having regard to the various factors there outlined. How significant any of these considerations will be in any particular case will be acutely fact sensitive. The decision in Mason v Demasi does not undermine the general proposition articulated by his Honour, namely, that histories and examination findings of a plaintiff which have already been given or made will demonstrate a contradiction with surveillance video if it exists even if that material is disclosed prior to the hearing.
In any event, and also as a matter of common-sense, for the reasons already stated the observations set out in Mason have limited application in the circumstances before me. Even allowing that Dr Espino may have thought (and perhaps intended) that the consultation with the plaintiff would be limited to consideration of her mental health plan, in circumstances where there can be no doubt that she was told of (and recorded) the plaintiff’s involvement in a motor vehicle accident, it is implausible that she would not also make some record of anything said to her by the plaintiff about any pain or injury she experienced.
In the circumstances, I find that the plaintiff told Dr Espino on 5 February 2015 about the collision on 29 January 2015, but that she did not at that consultation complain about any pain or injury.
The two aspects of the plaintiff’s evidence to which I have referred are not merely peripheral matters. Her exaggeration in her evidence about the speed of the vehicle and my conclusion that, contrary to her evidence, she did not complain of injury at her first consultation after the accident with Dr Espino are a cause for doubt about the reliability of her evidence on other matters.
Evidence of the first defendant
I turn to my assessment of the first defendant’s evidence. Several aspects of her evidence have influenced my assessment. They include:
(a)Her description of the accident in the online AFP Report, which appears as:
I was reversing my car and looking into rear view mirror, it appeared clear. I heard conversations so I took my foot of [sic] the gas, seconds later I hit a car which. It was a dark car against dark background of the building across the road. It was stopped in my reversing space. (emphasis added)
(b)Her insistence under cross-examination that she had checked her mirrors “both on the side, as well as my reverse mirror” before reversing her vehicle.[12]
[12] Transcript 4 April 2019, 90, 94.
(c)Her reluctance under cross-examination to accept that she had said in her evidence-in-chief that she had heard “a bang”.[13]
[13] Transcript 4 April 2019, 91.
(d)Her responses to questions about having told an investigator that following the impact her car moved forward. That exchange was:
[MR SHILLINGTON:] You've told the investigator that following the impact your car moved forward, although not violently, do you remember that? Do you remember telling the investigator that?---I moved the car forward to return to my parking spot.
No, just in relation to the actual collision you said, 'I just heard a noise. The car moved forward, but it wasn't violent.' That was the description of your car after the collision, wasn't it?---Well, if that's what is written then, then I would say that I would have said that; yes, at the time.[14]
(e)Her prevarication in answering questions in cross-examination about what she had said to an investigator about panel damage. That exchange was:
[MR SHILLINGTON:] Do you remember telling the investigator this; you said, 'I didn't see anything that was the shape of my bumper that was in there, so I'm assuming that the impact bent the panel and popped it out.' Do you remember telling the investigator that?---Yes, there was a mark on my car. That could have happened.
So you were assuming that there was a significant impact to cause a dent in the car the plaintiff was a passenger in, weren't you?---I think if it was significant, there would have been damage that I would have to go and fix. I didn't have to fix any damage.
Well, why did you assume that there would have been an impact dent to the panel that it had popped out?---I don't know. I've seen lots of movies and scenarios, and perhaps that was just one of the things that I related it to.
Can I suggest to you that you thought there would have been a dent in the vehicle because the force of the impact was significant enough to create a dent in the plaintiff's vehicle, do you agree with that?---I'm not sure.[15]
[14] Transcript 4 April 2019, 92
[15] Transcript 4 April 2019, 93.
The combined effect of the evidence to which I have referred left me with the impression that the first defendant was not being entirely candid in her testimony and in particular that she was reluctant to make any concession which attributed blame to herself for the accident despite the obvious evidence to that effect.
Evidence of Professor Anderson
It is convenient at this point to turn to the evidence of Professor Anderson comprising his report and his testimony.
There was an objection to the evidence of Professor Anderson on the basis, as I understood it, that his opinion was not based upon specialised knowledge which was in turn based upon his study, training, or experience. A voir dire was held. I was satisfied that the opinion expressed in Professor Anderson’s report met the admissibility test in s 79 of the Evidence Act 2011 (ACT).
In his report Professor Anderson summarises his conclusions in this way:
10.2There would have been no mechanism of injury present in the subject crash. The forces would have been very low and would have induced no vehicle accelerations inducing any articulations of the occupants’ bodies, nor displacements that would have caused any contact with the interior.
10.3To the extent that the claimant exhibits symptoms of injury, it is my opinion that the mild forces in the subject incident are irrelevant to the aetiology of those symptoms.
Counsel for the plaintiff says that the assumptions on which the report is expressed to be based are not made out by the evidence. In particular, he points to that part of paragraph 8.3 of the report where the Professor says, “A restitution coefficient of 0 may be assumed noting that there is unlikely to have been any rebound of any significance”. As I understand the submission, it is that, based upon the concessions extracted from the first defendant in cross-examination, there is likely to have been a rebound of significance, and if that is the case, then the premise upon which the opinion is based is flawed.
There are two difficulties for the plaintiff with this submission. The first is that the description of the collision relied upon by Professor Anderson is that contained in the first defendant’s interview with the accident investigator. Whilst the first defendant does maintain in the interview that she was “slow coming out” of the carpark, she does include in it that “it just felt like my car bounced off another car” and that she “heard a noise, the car moved forward but it wasn’t violent”.
The second difficulty for the plaintiff in the submission is what was said by Professor Anderson in his oral testimony when cross-examined on the point. When asked about whether he accepted that the first defendant’s description that her vehicle had bounced off the other vehicle meant that there was a significant impact, Professor Anderson responded by saying that it depended upon what the first defendant meant by that statement. He went on to say that he had in any event based his opinions upon the depiction of the damage and not on “the narratives”.[16]
[16] Transcript 4 April 2019, 121.
Professor Anderson was asked whether he accepted that, if the left side of the plaintiff’s body had struck the side door, then the vehicle she was in must have moved as a result of the impact. His response was this:
If I may, a comment on that is that the impact was of the right side of the vehicle and the simplest way to think about the dynamics of what happens next with the occupants is that they move towards the point of contact and in the opposite direction to the force. So her - if there was any movement, she would have moved to her right within - relative to the interior of the vehicle. In effect, what's happening is the vehicle is moving from under her so the left moves away and she - if there was movement, she would have felt like she was swaying to her right.[17]
[17] Transcript 4 April 2019, 122.
He was also asked about whether there would then have been a corresponding movement of the plaintiff’s body back in the opposite direction, including perhaps as a result of the operation of the vehicle suspension without movement of the wheels of the vehicle. His response was:
Perhaps if she was already leaning against the door when there may have been - the …(inaudible)… having moved away and then maybe come back into contact. It's a little bit difficult to speculate about what the exact mechanism would have been in this case because, as I said, based on the damage and the dynamics of the interaction as it's been described in the report, I can't quite see how there would have been any significant relative relationship between the occupants and the interior.[18]
[18] Transcript 4 April 2019, 122.
Professor Anderson was also asked whether he accepted that physical injury might have resulted if the left side of the plaintiff’s body had struck the door. His response was this:
Well, accepting all of the things you say, I would disagree with the final proposition for a specific reason in that injury is caused because, in the simplest terms, relative speed is built up between the body and whatever it strikes. If you hit it slowly it's less risk of injury than if you hit it at speed. If you're sitting in a vehicle, you're a short distance away from the interior and so whatever the motions are, you're really only moving - if you only accelerate over a short distance - the accelerations in this accident were very low, acting over a very short distance, very little speed can be developed. So while there may well be contact, if that is the assumption, I cannot see a physical mechanism for any significant speed to be developed between her shoulder and the door.[19]
[19] Transcript 4 April 2019, 122.
Professor Anderson was also asked whether a whiplash type injury might have resulted without the plaintiff’s body coming into contact with the body of the vehicle. His response was this:
Your Honour, a whiplash type of injury does require the - if you like, the - some translation of the vehicle from under the occupant, and obviously most commonly in a rear end collision. There are specific mechanisms that arise in a rear end collision with the seat back pushing on the thoracic spine that put the neck into a certain kind of posture very quickly that is thought to cause the injury. That mechanism doesn't exist in the same way in any - or it doesn't exist the same way in a side impact crash. So what - for a large - sorry, for an injury to the neck the expectation would be there would have to be some large - what we call like a hyper - lateral hyperflexion of the neck. So that's the accepted mechanism in side impact. So that the thorax is restrained, the shoulder is restrained in some way and then the - - -
[HIS HONOUR:] And it causes the weight of the head - - -?---Yes.
- - - to extend the muscles on the side?---Correct. In this case what we're talking about would be the vehicle bearing on her left shoulder, if that is the contact point, and being sufficient movement of the vehicle body - so the chassis of the vehicle - to sort of leave her head behind and then sort of dynamically force her into that posture. There is no evidence of that kind of - the kind of forces to produce those kinds of mechanisms in the neck from the depicted damage.[20]
[20] Transcript 4 April 2019, 123.
Finally, Professor Anderson was asked whether he accepted that injury was possible even in low threshold accidents. His response was this:
There's a threshold. The threshold is typically accepted to be around about we call a change in speed of 8 kilometres per hour.[21]
[21] Transcript 4 April 2019, 123.
Professor Anderson was properly qualified as an expert to give the opinions he expressed. His report explains the methods he applied. The reasons given in the report rationally explain the conclusions he reached.
I have taken into account the phenomenon of confirmation bias in the answers Professor Anderson gave under cross-examination which went beyond the contents of his report. His further opinions expressed in his testimony were, however, also rationally supported by the explanations he gave in that testimony.
Comment on the plaintiff’s medical evidence
I pause here to repeat that the medical evidence in the plaintiff’s case included reports of orthopaedic surgeon Dr Robin Higgs, general medical practitioner Dr Mourad, and forensic psychologist Ms Leesa Morris. Dr Higgs and Ms Morris were cross-examined. The diagnoses of the injury and effects referred to in that evidence are based upon the plaintiff’s self-reporting of symptoms and do not add anything by way of independent support to what the plaintiff says was the mechanism of her alleged injuries and effects.
The failure to call Ms Pettit
No evidence was given in the plaintiff’s case by Ms Pettit. Senior counsel for the defendants submits that because she was not called the Court is required “to draw an inference that Ms Petit's [sic] evidence, if given, would not have assisted the plaintiff's case”.[22] In making that submission, Mr Rewell SC relied upon the principle in Jones v Dunkel [1959] HCA 8; 101 CLR 298.
[22] Transcript 6 November 2019, 165.
The pre-requisites for the principle to be applied were set out in Payne v Parker [1976] 1 NSWLR 191 by his Honour Glass JA at 201:
Whether the principle can or should be applied depends upon whether the conditions for its operation exist. These conditions are three in number: (a) the missing witness would be expected to be called by one party rather than the other, (b) his evidence would elucidate a particular matter, (c) his absence is unexplained.
Gendered language aside, I am satisfied that the pre-requisites are met in this case.
My consideration of the evidence takes into account the reasoning so authorised, namely an inference that the testimony of Ms Pettit would not have assisted the plaintiff’s case.
The effect of drawing that inference in this case is material. Ms Pettit was in the driver’s seat of the vehicle in which the plaintiff was a passenger. The first defendant’s vehicle struck her vehicle at a point which was adjacent to the driver’s seat. Ms Pettit was therefore closer to the point of impact than the plaintiff. The plaintiff said that both she and Ms Pettit saw the first defendant’s vehicle reversing towards them. Against that background, Ms Pettit would be expected to have been in a very good position to have given evidence about things such as the speed of the first defendant’s vehicle and the force of impact and the effect of it upon the occupants of her vehicle.
I do have some reservations about the testimony of first defendant for the reasons already given. I also have significant reservations about the testimony of the plaintiff for the reasons I have already given.
In those circumstances, the evidence by way of the expert opinion of Professor Anderson, and the photographs indicating the extent of the physical damage to the vehicles, assumes much importance. That evidence supports the defence argument that the extent of the impact between the two vehicles was very minor, and, in turn that it was not the cause of the injuries or symptoms of which the plaintiff complains. I find to that effect. I reach that conclusion with greater confidence because Ms Pettit was not called in the plaintiff’s case by way of reasoning that the testimony of Ms Pettit would not have assisted her case.
The effect of my conclusion is that the plaintiff’s claim against the defendants is dismissed.
Quantum assessment
However, for completeness, I move to the quantum of the plaintiff’s claim. My assessment of quantum is carried out on the hypothetical basis that:
(a)I accept the plaintiff’s testimony about what she says are the consequences of the accident;
(b)I find, as a result of the accident, she suffered the physical injuries described by Dr Higgs in his report dated 23 February 2017;
(c)I find that her back pain continues at a very low level but her other symptoms had resolved by the hearing date; and
(d)I find, as a result of the accident, she suffered from the “Specific Phobia, Situational” and the “Adjustment Disorder with Anxiety” referred to in the report of Ms Morris, but that, in accordance with the testimony of the plaintiff, the effects of those conditions had not extended beyond eight months post-accident.
The plaintiff described herself as a very active person before the birth of her child.[23] She said that she had no problems with her back, other than the temporary effects of minor injuries. She said she experienced a “big family breakdown” in 2014, and as a result started using the drug ice. She described getting into trouble with CPS (meaning, I infer, Child and Youth Protection Services) and going to Court and attending counselling. She said that immediately prior to the accident she was still very active and had no “ongoing issues” with her back, or, as I understood her testimony, her neck.[24]
[23] Transcript 4 April 2019, 15.
[24] Transcript 4 April 2019, 18.
She said that at the time the first defendant’s vehicle struck the car she was in she had moved sideways and that the left side of her body hit the passenger door.[25] As I understood her testimony it was that her left shoulder area came into contact with the door.[26] She did not feel any immediate pain, and she went home after the accident.[27] She described feeling “sort of a bit sore” but didn’t know if it was “just total, like, stress”. She went on to say that on the next day it felt like her “whole body” was “quite sore” and that she didn’t really move from her bed for “around 3 days”.[28] Over that three-day period, she said her pain got worse.
[25] Transcript 4 April 2019, 23
[26] Transcript 4 April 2019, 24.
[27] Transcript 4 April 2019, 24.
[28] Transcript 4 April 2019, 25.
It was not easy to get a precise description from the plaintiff of the site of her pain. As I understood the explanation she gave, she experienced pain on the left side of her head from behind her ear extending downwards to include her neck and left shoulder and the left side of her chest and to her left hip. She also developed a sensation of pins and needles in both arms and sometimes both legs.[29] She went on to describe pain in her back and legs and headaches.[30] She said the headaches lasted for a year after the accident.[31] She was prescribed painkillers.
[29] Transcript 4 April 2019, 27.
[30] Transcript 4 April 2019, 28.
[31] Transcript 4 April 2019, 29.
She described how her back pain persisted but that the pins and needles sensation and other pain went away, although as I understood her testimony, the neck pain also persisted for a while longer.[32] By way of treatment, in December 2016 injections were administered to her lower back with the aid of a computed tomography scan which “eased the pain … right down”.[33]
[32] Transcript 4 April 2019, 30-31.
[33] Transcript 4 April 2019, 30.
After the accident she said that when travelling in a car she “was a bit on edge” and “very jumpy”. She said that effect continued for about 6 or 8 months.[34]
[34] Transcript 4 April 2019, 32.
In January 2017 she was a passenger in another vehicle which was involved in a collision. A vehicle collided with the rear of the vehicle she was in. Her head hit the dashboard of the vehicle.[35] She says that her head hurt for a while after that accident but that she did not at that time injure her lower back or neck. She did have pins and needles and a headache but no “major side effects”.[36]
[35] Transcript 4 April 2019, 33.
[36] Transcript 4 April 2019, 34.
She continued to receive treatment in relation to her lower back by way of therapeutic massage. She has continued to take pain medication for lower back pain. Her neck pain has resolved.[37]
[37] Transcript 4 April 2019, 34.
Before the accident she was able to do all the usual household chores.[38] After the accident she was only able to do “light stuff” and family and friends attended every day to help with other tasks. That was for perhaps an hour or two per day or as much as four or five hours if “they were doing the yard”.[39] She said that assistance continued until “about 2016, maybe [2017]”.[40]
[38] Transcript 4 April 2019, 35.
[39] Transcript 4 April 2019, 36.
[40] Transcript 4 April 2019, 37.
The plaintiff’s claim for damages includes a claim for a Griffiths v Kerkemeyer [1977] HCA 45; 139 CLR 161 component for a period of four years. The evidence supports such a claim but not for that length of time.
As previously noted, the plaintiff’s medical evidence included reports by Dr Higgs and Ms Morris. Dr Higgs report is dated 23 February 2017. It includes a more precise, and in some respects more extensive, description of the symptoms about which Ms Macri complained to him than I have set out above as condensed from her oral testimony. There are however no glaring inconsistencies and, as I have already recorded, the plaintiff is not a sophisticated person or well educated. It is reasonable to expect that she would find it easier to describe her symptoms in a doctor’s surgery than a witness box. have proceeded on the basis that the doctor’s reports accurately reflect her symptoms.
Dr Higgs’ opinion is that the plaintiff suffered a soft tissue musculoligamentous injury to her neck and lumbosacral spine and right upper extremity brachialgia associated with the neck injury. He approved of physiotherapy treatment and an appropriate program of spinal exercises. Under the heading of “prognosis” Dr Higgs recorded that:
Ms Macri’s treatment has not yet been completed. The lady is soon to consult a Physiotherapist.
Ms Macri’s conditions have not stabilised. I recommend that Ms Macri be seen and reassessed in 6 months’ time.
I read that prognosis against the background of Ms Macri’s testimony about her current level of symptoms.
The report of Ms Leesa Morris is dated 28 December 2016. She makes diagnoses as follows:
· 300.29 Specific Phobia, Situational
· 309.24 Adjustment Disorder with Anxiety
· 305.70 Stimulant Use Disorder, Amphetamine-type substance, mild, in sustained remission
As indicated earlier my assessment of quantum is made on a hypothetical basis which includes that, as a result of the accident, Ms Macri suffered from the “Specific Phobia, Situational” and the “Adjustment Disorder with Anxiety” referred to in the report of Ms Morris, but that, in accordance with her testimony, the effects of those conditions did not extend beyond eight months post-accident.
Against the background of the above I assess damages as follows:
General damages: $45,000.00 Interest on general damages (I treat the plaintiff’s loss as if wholly past) 5.25 years at 4 per cent $9,450.00 Out-of-pocket expenses (as claimed) $5,232.00 Griffiths v Kerkemeyer component (2 hours per week for 2 years at $35.00 per hour) $7,280.00 Total $66,962.00
Orders
I heard no argument about costs. In the circumstances, the orders I make are as follows:
(a)I give judgment for the defendants against the plaintiff; and
(b)the plaintiff is to pay the defendants’ costs; but
(c)order (b) does not take effect if either party contacts my associate within 14 days to re-list the matter to seek some other costs order.
| I certify that the preceding eighty-seven [87] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Magistrate Morrison Associate: Angus Brown Date: 27 May 2020 |
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