Matthews v Dent
[2010] NSWDC 68
•7 May 2010
CITATION: Matthews v Dent & Anor [2010] NSWDC 68 HEARING DATE(S): 16 and 21 September 2009
JUDGMENT DATE:
7 May 2010JURISDICTION: Civil JUDGMENT OF: Levy SC DCJ DECISION: 1. Verdict and judgment for the plaintiff in the sum of $715,687;
2. The defendants are to pay the plaintiff’s costs on the ordinary basis unless otherwise ordered;
3. The exhibits may be returned;
4. Liberty to apply on 7 days notice if further orders are required.CATCHWORDS: TORT – motor vehicle collision - DAMAGES – assessment of damages for personal injury under Motor Accidents Compensation Act 1999 – physical and psychological injuries – conflicting medical evidence – medical witnesses not called to explain opinions – loss of earning capacity – domestic assistance – future treatment – assessments required despite absence of definitive evidence as to costing LEGISLATION CITED: Evidence Act 1995
Motor Accidents Compensation Act 1999CASES CITED: Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 53
Angel v Hawkesbury Council [2008] NSWCA 130
Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320
Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25
Larson v Commissioner of Police [2004] NSWCA 126
Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352
Majkic v Bonnano [2008] NSWCA 253
Mason v Demasi [2009] NSWCA 227
Morgan v Gibson [1997] NSWCA 212
Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164
Strinic v Singh [2009] NSWCA 15
Watts v Rake [1960] HCA 58; (1960) 108 CLR 158PARTIES: Helen Rose Matthews (Plaintiff)
Linda Dent (First defendant)
Edward Thomas Rodham (Second defendant)FILE NUMBER(S): 5313 of 2008 COUNSEL: Mr A Lidden SC with Mr P Khandar (Plaintiff)
Mr A Bowen (Defendants)SOLICITORS: LJ Sharpe & Co (Plaintiff)
Lee & Lyons (Defendants)
JUDGMENT
Table of Contents
A. INTRODUCTION [1] – [14] Nature of the case [1] – [2] Issues [3] – [8] Credibility of testimony [9] – [12] Summary of findings [13] Assessed heads of damage [14] B. EVIDENCE REVIEW [15] – [158] Overview of evidence [16] Review of oral evidence [17] – [73] The plaintiff, Mrs Helen Matthews
[18] – [58]
Personal history
[18]
Work history
[19] – [22]
Health, social, family circumstances, and earning capacity
[23] – [29]
Pre-injury work duties
[30] – [36]
Motor vehicle collision in question
[37] – [38]
Plaintiff’s awareness of the events
[39]
Injuries and immediate after effects
[40]
Treatment and rehabilitation
[41] – [44]
Disabilities
[45] – [52]
Post-injury attempts at carrying out work
[53] – [54]
Post-injury activities
[55]
DVD showing selected activities – comments by plaintiff
[56] – [58] Mrs Melissa Jones
[59] – [68] Mrs Lorraine Holloway
[69] – [73] Medical evidence – reports and materials [74] – [158] Treatment reports
[75] – [101]
Dr Yap
[76]
Dr Mudbidri
[77]
Dr Zaka
[78]
Dr Cotterell
[79] – [84]
Dr McCombe
[85] – [90]
Mr Hewitt
[91] – [94]
Medical investigations
[95] – [101] Commonwealth Rehabilitation Service reports
[102] – [106] Reports obtained by plaintiff’s solicitor
[107] – [112]
Dr Conrad
[108] – [109]
Dr Clark
[110] – [112] Reports and materials obtained by solicitor for defendant
[113] – [158]
Records of Dr Zaka
[114]
Records of Dr Cotterell
[115] – [116]
Records of Dr Gunasena
[117]
Dr Jackson – MAS Assessment
[118] – [125]
Associate Professor McPhee
[126] – [140]
Dr Virgona
[141] – [151]
Ms O’Dwyer
[152] – [158] C. FINDINGS ON CONFLICTING EVIDENCE [159] – [213] Resolution of medical issues arising from reports [160] Resolution of conflicting physical medical opinion
[160] – [170] Resolution of conflicting psychiatric opinions
[171] – [202] DVD evidence [203] – [211] Life span of plaintiff [212] D. DAMAGES ASSESSMENT [213] – [313] Damages assessment [213] Non-economic loss
[214] – [222] Past loss of earning capacity
[223] – [241] Future loss of earning capacity
[242] – [257] Past superannuation losses
[258] Future superannuation losses
[259] Past domestic assistance
[260] – [295] Future domestic assistance
[296] – [300] Future treatment
[301] – [311] Past out-of-pocket expenses
[312] Summary of damages assessment [313] E. DISPOSITION & ORDERS [314] – [315] Disposition [314] Orders [315]
A. INTRODUCTION
Nature of case
1. The plaintiff, Mrs Helen Matthews, claims damages for physical and psychological injuries she sustained in a highway collision that occurred at about 4.00am on Wednesday 29 June 2005. At that time, the plaintiff was a front seat passenger in a motor vehicle being driven by her daughter, the first defendant, who was driving the second defendant’s motor vehicle south on the Pacific Highway near Ballina, NSW.
2. The plaintiff’s daughter lost control of the vehicle as she drove on a muddy road surface and in doing so, the vehicle slewed and then slid into collision with the trailer portion of a passing northbound semi-trailer vehicle. As a consequence, the plaintiff claims to have suffered physical and psychological injuries, for which she claims damages pursuant to the provisions of the Motor Accidents Compensation Act 1999 [“MAC Act”].
Issues
3. The defendants have admitted liability for the plaintiff’s injuries. The principal issues for determination concern the nature and extent of the plaintiff’s injuries, the extent to which she has suffered past and future loss of earning capacity, and the extent of her need for past and future domestic assistance and future treatment.
4. The parties elected not to call oral evidence from the medical experts whom they had respectively retained to examine the plaintiff. This was in the context where there was conflict of opinion between the respective reports of those experts. That conflict was most pronounced in the case of the psychiatric opinions. The failure of the parties to call these experts to clarify the basis of their differing opinions has added to the analytical burden in this case : Majkic v Bonnano [2008] NSWCA 253 per Bell JA at [26]. This has necessitated a detailed review of the body of the evidence as a whole.
5. The defendants claimed that the plaintiff had recovered from any psychiatric disorder she may have had as a consequence of the collision. The defendants based that submission on the report of the psychiatrist whom they had qualified to examine the plaintiff, yet the defendants declined to call that psychiatrist or to seek the opportunity to cross-examine or traduce the contrary psychiatric opinion to the effect that the plaintiff continued to suffer from post-traumatic stress disorder, a dysthymic disorder and chronic depression.
6. To a lesser extent, a similar problem emerged regarding conflicting expert opinion concerning the plaintiff's ongoing neck, left shoulder and back problems, particularly as these problems impacted upon the plaintiff’s earning capacity and her need for domestic assistance.
7. In the state in which the parties left the evidence, these issues had to be resolved by determining which of the expert opinions were the most persuasive: Larson v Commissioner of Police [2004] NSWCA 126 per Tobias JA at [48].
8. In similar cases of this kind but where the damages claimed are relatively modest, an expedient and pragmatic approach, as was adopted by the parties in this case, may be understandable. However, in this case, where the damages claimed were substantial, different considerations arise.
Credibility of testimony
9. The credibility of the testimony of the plaintiff was an issue in this case. The challenge to the credibility of her testimony was in part based on a series of DVD images showing activity on her part. The challenge to the plaintiff’s credit was also in part based upon the content of histories recorded by medical examiners. Where those examiners were not called to clarify the matters in contention, credit challenges of that nature are necessarily rendered problematic : Mason v Demasi [2009] NSWCA 227; Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320.
10. In the circumstances of this case, where it became necessary to undertake a detailed evidence review, I have found the plaintiff to be a credible witness and I have accepted her evidence as being truthful. I consider that the DVD evidence shown by the defendants, and which provided an insight into some of the plaintiff’s activities, did not materially contradict her evidence, nor did it demonstrate that the plaintiff had exaggerated her evidence as was claimed on behalf of the defendants.
11. In these circumstances, having undertaken a detailed review of the evidence of the plaintiff, her daughter, her sister and having compared this evidence with matters of history recorded in the various expert reports tendered, I have found a general consistency in the description of the plaintiff’s complaints, both in her evidence and as summarised in the reports. In these circumstances I consider that I am able to confidently rely upon the plaintiff’s evidence and those summaries, except where I have found a report to be deficient for reasons stated.
12. Having accepted the plaintiff to be a credible witness, with the preceding qualification identified, I felt I could confidently rely upon the representations recorded in the histories of the plaintiff’s complaints as recorded by the assessing doctors when they surveyed the range and detail of her disabilities: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25 per Heydon JA at [70]; s 60 of the Evidence Act 1995. In my view, the plaintiff gave her evidence reasonably and with a tone of restraint and understatement when she related her problems.
Summary of findings
13. I have found that the collision in question has caused the plaintiff to suffer significant soft tissue neck and back injuries which have aggravated underlying degenerative changes in the plaintiff’s spine and which continue to have an ongoing adverse impact upon the plaintiff’s day to day activities and well-being. These injuries involved disc bulges and protrusions to various levels in the plaintiff’s neck and back. I have also found the plaintiff has suffered a significant psychological injury as a consequence of the collision on seeing her family members injured and put in peril. The result for the plaintiff has been post-traumatic stress disorder, dysthymic disorder, anxiety and depression, which are recognised psychiatric conditions. I have found the physical effects of her injuries have had a significant past and continuing adverse impact upon the plaintiff’s earning capacity and have resulted in the need for past and future domestic assistance and future treatment. I have assessed the plaintiff’s entitlement to damages in the amount of $715,687.
Assessed heads of damage
14. A total of 9 claimed heads of damage required assessment. The parties made disparate submissions on quantum. The heads of damage claimed by the plaintiff and the submissions of the parties, are listed below together with paragraph references to my assessment of the various heads of damage claimed:
Head of Damage Claimed by Plaintiff Paragraphs (a) Non-economic loss (b) Past loss of earning capacity (c) Future loss of earning capacity (d) Past loss of superannuation (e) Future loss of superannuation (f) Past domestic assistance (g) Future domestic assistance (h) Future treatment (i) Past out-of-pocket expenses Totals
B. EVIDENCE REVIEW
15. Before arriving at my findings on the issues for determination I consider it necessary to set out a summary of my review of the evidence.
Overview of evidence
16. The plaintiff gave evidence and was cross-examined. Her daughter Melissa Jones also gave evidence, as did the plaintiff’s sister, Lorraine Holloway. The parties each tendered voluminous bundles of medical reports, which raised conflicting opinions on medical issues concerning the diagnosis of ongoing disabilities. No medical witnesses were called to give oral evidence to assist in the task of reconciling conflicting medical opinions. The defendants tendered the plaintiff’s income-tax returns as a bundle, without analysis. I have set out my summary of the medical and allied evidence and my conclusions drawn from that evidence, between paragraphs [74] and [202] of my reasons.
Review of oral evidence
17. In the paragraphs that follow between [18] and [73] I set out a summary of the oral evidence.
The plaintiff, Mrs Helen Mathews
Personal history
18. The plaintiff was born in 1952. At the time of the injury she was aged 53 years. At the time of the trial she was aged 57 years. She had left school at the age of 16 years. She first married in 1971. The children of the first marriage were born in 1971, 1973 and 1974. She remarried in 1985 and she had her fourth child in that year. She has since separated from her second husband.
Work history
19. The plaintiff's work history commenced when she was aged 16 years. She had a history of steady employment in a variety of occupations. She has held positions as a shop assistant for a major chain store, she worked variously in a clerical position for a printing company, as a waitress, farm work collecting eggs, as a packer in a cheese factory, as a cashier for a department store and she has worked at a mail centre in Canberra. She has also worked as a shoe fitter for a department store, she has worked in a plant nursery serving customers, she has worked as a cashier/console operator at a petrol station, she has worked on the production line of a clothing factory and packaging goods in a pharmaceutical factory.
20. Before her injury, the plaintiff was motivated to continue to work in the employment capacities I have outlined because, for many years, she had to support herself and her children.
21. In the late 1990’s, the plaintiff had enrolled at the University of Western Sydney to study a course, which would have led to the degree of Bachelor of Applied Science in the field of diversional therapy. She enrolled in that course in the hope of gaining work in a field that was mentally stimulating for her. She stated that she discontinued the course in 1997 because she needed to return to work to earn wages in order to support herself financially.
22. Before her injury the plaintiff had been working for a pharmaceutical factory, packing shampoos and similar goods on a production line. That was full time night work, Monday to Friday. She ceased that work just before Christmas of 2004 in order to travel to Queensland to assist one of her daughters with childcare as her daughter was at that time having family difficulties. Although the plaintiff was not working at the time of her injury, it was clear from her work history that she had an earning capacity that she could have exercised when she became free to do so.
Health, social and family circumstances impacting on earning capacity
23. In October 1994 the plaintiff suffered a slip and fall injury when she tripped whilst walking on a footpath at night. In that incident, she injured her neck and her back. As a result, she had some time away from her work in a department store. At around this time she was having some emotional difficulties due to marriage problems. Her marriage had broken down and she also had a nervous breakdown. It appears that she had glandular fever at this time as well. The circumstances resulted in the need for the plaintiff to receive psychiatric treatment. These events kept her out of the workforce for a few years. As a consequence of the slip and fall injury, for a time, the plaintiff had some ongoing symptoms concerning her neck and her back.
24. Towards the end of 1997, the plaintiff re-entered the workforce and obtained work at a plant nursery, in a full-time casual position serving customers. She said that by this stage, she had ceased experiencing problems with her neck and with her back. She had also ceased receiving psychiatric treatment at around that time, but was still taking antidepressant medication, which she took for a further one and a half years, before ceasing to take it.
25. After working in the plant nursery for about 2 years, in order to try something new, the plaintiff took up employment with a major supermarket chain as a console operator at a petrol station working approximately 20-25 hours per week. She held that position for approximately 4 years. In 2003 she switched employment to work as a night packer of a production line for a clothing manufacturer. She worked on night shifts so she could look after her family during the day. She then switched this employment to work night shifts for the pharmaceutical company for which she was carrying out packing work. She ceased this work at Christmas 2004 when she travelled to Queensland to live with one of her daughters at a time of crisis in that daughter’s family.
26. In March 2005, each of the plaintiff’s two daughters, who then lived and who are still living in Queensland, had suffered a foot injury. On consecutive days each of them had suffered a foot fracture. As a consequence of these circumstances, the plaintiff took up the responsibility of assisting each of her daughters to run their households and to care for their children.
27. Between March 2005 and June 2005, the plaintiff was kept fairly busy looking after her two daughters and her five grandchildren, four of whom were at school.
28. Although this remained the position up until the time of the collision, which is the subject of these proceedings, as her daughters were recovering from their injuries, the plaintiff had commenced looking to obtain work just before the motor vehicle collision. She was hoping to be in the workforce within a couple of weeks at around the time the collision occurred, because her daughters were starting to recover from their injuries.
29. At the time of the subject collision, the plaintiff was on her way to Sydney to visit her own mother. The plaintiff also stated that it was her intention two live in Queensland to be near her sisters and their children. She stated that she believed that she would have found nightshift employment for 40 hours per week were it not for the collision. At the time of the trial she stated that as a result of the injuries she has received in the collision, she believed she would not be able to go back to her pre-injury employment.
Pre-injury work duties
30. It is relevant to the claim for loss of earning capacity to review the range of physical activities the plaintiff was accustomed to performing before she was injured.
31. When the plaintiff was employed by the printing company, she carried out debt recovery work involving a range of clerical activities. When she worked at the plant nursery she was involved in lifting bags of potting mix, soil, woodchips, fertiliser and the like. When the plaintiff worked at the mail centre she was mainly involved in desk duties and filing in pigeon-holes.
32. In her employment for the clothing manufacturer and the pharmaceutical company, where she was performing night packing work, the plaintiff worked full time over the course of five nights a week. In the service station job, she used to operate the dip stick to measure the quantity of petrol in the underground tanks, she did all the daily weekly and monthly paperwork, including running the shop, stock taking, keeping the shelves stocked and the accounting associated with that business.
33. The service station job also required her to manipulate a large trolley that had to be pulled out and stacked up with large bottles of oil on a daily basis. This trolley would have to be pulled into the front of the forecourt of the service station. I infer from the description that this was a heavy work task. She also had to take delivery of stock and to bring stock into the shop of the service station and to stock the shelves and refrigerator. This work also involved lifting boxes, placing them in her car, unloading them, including heavy crates of milk.
34. When the plaintiff worked as a shoe fitter for the department store, she was required to climb up and down ladders and put away boxes of shoes as well as bringing down boxes of shoes for customers to try. She had hoped to continue with this employment until she retired. She stated that she had planned continuing to work in order to save some money to avoid being dependent on the aged pension.
35. It is clear that in the years before her injury in the subject collision, despite her earlier injuries, the plaintiff had a capacity to carry out a relatively unrestricted range of work in a wide range of occupations.
36. Since the injury, she has been dependent upon a government disability support pension which she stated was not to her liking.
Motor vehicle collision in question
37. In the early hours of 29 June 2005, the plaintiff was a passenger in a motor vehicle being driven by her daughter Linda. The vehicle was travelling south along the Pacific Highway near Ballina on the way to Sydney, where the plaintiff was intending to visit her mother. Whilst driving on a muddy section of the roadway, due to sliding the vehicle collided with the trailer portion of a semi-trailer truck travelling in the opposite direction. As a result of the collision the vehicle in which the plaintiff was travelling was crushed to a degree. The defendants have conceded negligence and there is no need to further describe the circumstances of the collision other than to record that the events were extremely shocking to the plaintiff.
38. In cross-examination, the plaintiff disagreed with the proposition that the collision simply involved the front of her daughter's vehicle clipping the side of the semitrailer thus causing her daughter's vehicle to start to spin. She agreed that at the scene she declined the suggestion that an ambulance be called. She also agreed that she left Ballina without receiving medical treatment before getting on a plane to travel to Sydney.
Plaintiff’s awareness of the events of the collision
39. The plaintiff stated that in the events of the collision, she was aware of the approach of the trailer at an angle. She said she was aware of the impact. She stated: “I thought we were dead. I'd could (see) my daughter going to be decapitated.” She closed her eyes whilst the car spun around. She stated that she could hear metal crunching very loudly. She was aware of an airbag having gone off at the driver’s wheel. When she opened her eyes she could see that the vehicle was on the other side of the road, in a ditch and facing north. She said she could not move. For a few minutes she was dizzy from the spinouts of the vehicle and from shock. She said she felt numb and couldn't speak. She said she was aware of her baby granddaughter being taken out from the back of the vehicle.
Injuries and immediate effects of injury
40. The plaintiff said that following the collision, she was aware of soreness from her head all the way down her body. She said she felt very unwell, was in a lot of pain and felt very sore all over. She described her emotional state as being “terrible”. Her predominant physical problems concerned her neck, head and back. She said she experienced problems with lifting her left arm, difficulty standing up or sitting down and had pain down the back of the leg. She said she had great difficulty showering, dressing and looking after herself. She remained in Sydney for a month, during which time her mother and her mother's carer looked after her. She described her emotional state as being “Not really well.”
Treatment and rehabilitation
41. Whilst in Sydney, on the day following her injury, the plaintiff consulted a general practitioner, Dr Yap. She stated that he had told her that she “had a whole spinal whiplash”. She stated that whilst she was in Sydney she suffered from bronchitis and was very sick. This apparently impeded her from seeking out medical treatment for her injuries. On her return to Brisbane she saw Dr Zaka, and later, after changing general practitioners, she saw Dr Cotterell. On medical advice she underwent physiotherapy but this was not of much assistance. She said she was also advised to obtain a neck collar and she did this. She subsequently saw another general practitioner, Dr Gunasena.
42. The plaintiff’s general practitioner referred her to an orthopaedic surgeon, Dr McCombem, but no active treatment was recommended. She said she has also tried antidepressant medication but has found this does not help. The drug in question, Endep, had caused her to experience side effects, including a feeling of grogginess and an inability to function or think clearly.
43. Throughout the remainder of 2005 the plaintiff said she had experienced ongoing problems as described and which were not improving but were worsening.
44. The plaintiff stated that shortly before the trial, she saw a Dr Saunders, who had recommended that she take antidepressant medication. She stated that it was her intention to pursue antidepressant treatment.
Remaining disabilities
45. The plaintiff stated that she currently experiences a lot of pain in her neck. She stated that she cannot completely turn her neck to the left without experiencing pain going down into her shoulder. She also described that pain as radiating down to the left shoulder blade and lower back. She stated that her neck does not feel normal. She stated that the pain never leaves her, even on a good or moderate day, and it gets worse by the evening or earlier in the afternoon depending upon her level of activity. She stated that at its worst, the pain gives her migraines around the vicinity of her ear.
46. The plaintiff said that this state had been static for about six months before the trial. She said that she still has pain radiating down her left arm and her neck pain has been constant over the preceding six months. She stated that she still cannot stand for long periods without having to sit down, and this situation is becoming chronic for her. She also stated that she is never free of back pain and it gets worse depending upon the activity in which she is involved. The back pain was described as being in the mid thoracic region and down to the lumbar region. She describes this pain as being intermittent.
47. The plaintiff also described experiencing bad nightmares in which she is aware of crashes, voices, metal and involving her daughter. These nightmares commenced straight after the accident and initially occurred every night but now she stated that she experiences these every few weeks, depending upon whether she has been driving or whether she has seen a truck. She has become depressed and suffers from anxiety. Her nightmares affect her sleeping patterns.
48. The plaintiff described how her leisure activities have been affected by her injuries. She stated that she can no longer do what she wanted to do. Going to the beach was not the same for her. She was unable to run around on the beach and swim with her grandchildren. She ceased providing assistance to her daughters and her grandchildren. She stated she was unable to resume housework assistance for her daughter. However, she still minds her 9 and 10 year old grandchildren after school whilst her daughter is at work.
49. She stated that her ability to do housework, including vacuum cleaning, sweeping and walking is affected by her experience of chronic pain which causes her to become laid up afterward for days or weeks. She stated that she does simple tasks like cleaning her bath, wiping the basin and toilet but finds it difficult to clean the shower. She stated that she is unable to carry out normal shopping tasks and these days only gets “Little bits and pieces”.
50. She stated that she experiences some difficulty cooking meals and has to sit down and have breaks when carrying out these tasks.
51. In cross-examination, the plaintiff disagreed with the proposition that after the October 1994 injury her neck and back had never returned to the pre-injury state. She denied the defendants’ suggestion that she had a diagnosis of conversion disorder with depressive features after the October 1994 fall. That evidence was not contradicted.
52. The plaintiff agreed that in February 2007, when she saw Dr McPhee at the request of the defendants, she had truthfully told him that her symptoms had improved “50 to 60 per cent”. She added that it was difficult to place a range on her condition because it was intermittent and was never the same every day, some days it was worse than others and it was very hard for her to gauge the degree of disability.
Post-injury attempts at carrying out work
53. The plaintiff agreed that in May 2006 her general practitioner Dr Cotterell suggested she should seek suitable part-time work for up to 8 or 10 hours per week. In compliance with that suggestion, the plaintiff stated that she attempted to do voluntary work for the Red Cross but found she was unable to do this because she could not stand up in order to carry out the task of stapling tags on clothes.
54. In cross-examination the plaintiff disagreed with the proposition that as at February 2006, she was able to carry out light work for 12 to 15 hours per week. She agreed that in January 2007 she had participated in a Commonwealth Rehabilitation Service [CRS] functional capacity evaluation with a view to obtaining work. It was through CRS that she obtained a training “lollypop” position directing traffic at pedestrian crossings outside schools but found that she could not pursue that activity.
Post-injury activities
55. The plaintiff was cross-examined concerning a number of her post-injury activities. She agreed that she could undertake mopping activity in small areas. She stated that if she carried out sweeping she would have to endure after effects. She stated that her ability to carry out vacuuming was dependent upon how her back was at the time, as such activity had after effects for her back. She agreed that she could carry out cooking activities but qualified this by saying that she had to sit down and have rests. She agreed that she had tried to carry out a larger shopping. She stated that she could sometimes prepare family meals. She stated that when she did the laundry she experienced pain. She carried out washing for her grandchildren every day.
DVD showing selected activities
56. The plaintiff was shown some DVD sequences taken on 23 January 2007 at the request of the defendants : Exhibit “3”. She agreed that those sequences showed she was driving. She denied that she had no difficulty driving. These sequences also showed her carrying some shopping parcels. She stated that she experienced great difficulty in reaching into a supermarket freezer bin to select items as was shown on the DVD. She agreed that she could push a shopping trolley but did not agree that this was something she could do without difficulty.
57. The plaintiff agreed that the DVD showed she was able to drive to the shops from her daughter's home. This involves a journey of some 25 minutes in the car. She disagreed with the suggestion that this was something she could do without difficulty. She stated that at the time when the DVD sequences were filmed, she was taking medicine every day in order to assist her to cope.
58. When specifically questioned on her ability two manipulate a full laden shopping trolley, she pointed out that her daughter usually pulled this as well. She also stated that such activity caused her to suffer pain. She described her pain as occurring every day to different degrees, escalating with activity. She was shown some DVD film of collecting some shopping out of the back of a hatchback vehicle. When cross-examined about her ability to drive for 25 minutes to the shopping centre, she stated that she could do so because she took frequent sit and rest breaks, and usually took more medication.
Plaintiff’s daughter – Mrs Mellissa Jones
59. Mrs Melissa Jones, a daughter of the plaintiff, gave evidence of the plaintiff’s pre-injury and post-injury status.
60. Mrs Jones was taken to the events of the 1990’s when her mother had fallen on a footpath and had injured herself. At that time Mrs Jones was aged about 25 or 26 years and was living in Queensland but said she used to visit her mother a lot in Sydney.
61. It was against that background that she described her mother as having had some physical and emotional problems before the motor vehicle collision but she encapsulated this by stating that when the plaintiff moved to Queensland she moved by herself and without assistance.
62. Mrs Jones confirmed the effect of the evidence given by the plaintiff that in March 2005, both she and her sister had suffered foot injuries. Before those foot injuries she described the plaintiff as having looked after her and her two children by taking full responsibility for the running of the home, in addition to helping her other sister and children, who lived some five minutes drive by car from her home.
63. Mrs Jones described her knowledge of the plaintiff’s pre-injury activities. She stated that before her injuries in 2005, the plaintiff did a lot of housework for her, including a lot of heavy lifting around the house, cooking, vacuuming, washing and “everything”. She described her mother as being a very able person, capable of doing many things before the injury. She described her mother as being very well and very stable before the injuries in question.
64. Mrs Jones learned about the injury to her mother at about 4.00am on the morning in question but did not see her mother until about six weeks afterwards, by which time she had returned to Queensland in what she described as a very debilitated state. Mrs Jones had the perception of the plaintiff at that time as being in a lot of pain, crying a lot and complaining of pain and discomfort. She described the plaintiff as having been very depressed on her return to Queensland. She observed the plaintiff to have been consumed with pain and restricted in her activities.
65. Mrs Jones described the plaintiff as doing very little around the house in the early period after her injury, and still having restrictions at the present time even though from time to time she attempts to undertake aspects of housework until it appears to cause her pain.
66. Mrs Jones described how, since the injury in question, after her own recuperation following her foot injury, that is by about October 2005, she was providing her mother with domestic assistance comprising cleaning and cooking, clearing up, food preparation, washing, hanging washing, sorting the dried washing, folding and ironing, and shopping, for about 15 or 16 hours per week after the injury. Mrs Jones stated that she carried out quite a number of household tasks for the plaintiff of this nature for about 18 months. The evidence as to the nature, extent and time involved concerning these domestic activities was difficult to clearly interpret. Mrs Jones conceded that some of the work that involved domestic activity to assist the plaintiff was also provided for the benefit of other household members.
67. Significantly, Mrs Jones was able to describe the detail of the activities that were shown on the DVD that was taken by investigators acting on behalf of the defendants. She confirmed that the cereal boxes which the plaintiff was shown to have carried under her left arm whilst walking up the access way to the house were not heavy at all. She also confirmed that she had herself carried the groceries from the car up the driveway into the house because her mother couldn’t carry awkward things up the steep access. Mrs Jones stated that whilst she and her mother lived together for the present time, her plans were to move away from Queensland and to live with her boyfriend in South Australia where he had obtained work.
68. Significantly, Mrs Jones denied the suggestion that her mother had not ever really recovered from the stressful emotional condition she suffered after being injured in 1994. She also denied that the plaintiff’s emotional problems that had arisen after the 2005 motor vehicle collision had improved.
Plaintiff’s sister – Mrs Lorraine Holloway
69. Mrs Lorraine Holloway, the plaintiff’s sister, gave evidence concerning the plaintiff’s pre-injury status, which included her work history as well as her physical and psychological health. The perspective from which she gave this evidence was her familiarity with the plaintiff before her injuries and her contact with the plaintiff every six months since the injury, and regular telephone contact, at least monthly.
70. Mrs Holloway described how, when the plaintiff was in Sydney, she took her to a chiropractor for back massage and for x-rays. She conceded that she did not have a day-to-day relationship with the plaintiff because of the geographical separation between them, the plaintiff residing in Queensland.
71. Mrs Holloway described the plaintiff as being a very active, energetic and happy person, a good homemaker who also gardened and entertained, who had a lot of friends, who worked hard, including in physical occupations. She described the plaintiff as having had “her life back together” after the 1994 fall and before the 2005 injury.
72. Mrs Holloway described the plaintiff’s physical state as having deteriorated between 2005 and the present time. She stated that she had observed the plaintiff had become very rigid in her movements, did not go out very often and took painkilling medication. She described a change in the plaintiff’s personality, accompanied by depression, chronic pain, unhappiness and loss of interest. She conveyed the impression that the plaintiff had appeared to have aged somewhat since being injured in the collision. Mrs Holloway had not noticed a lot of improvement in the plaintiff’s physical and emotional state in the year or so before the trial.
73. Mrs Holloway denied she was tailoring her evidence to assist the plaintiff’s case.
Medical evidence
74. In the paragraphs that follow I set out my review of the medical evidence. That review involves the treatment reports, medical investigation reports, CRS reports, and reports and records obtained by the respective solicitors for the parties.
Treatment reports
75. The plaintiff has been assessed and treated by general practitioners, a chiropractor, a physiotherapist and an orthopaedic surgeon.
Dr Yap – first treating general practitioner in Sydney
76. On 30 June 2005, after her arrival in Sydney on the day following the collision the plaintiff consulted Dr Robert Yap, a general practitioner. Dr Yap provided a report dated 30 May 2007 in which he outlined his clinical contact with the plaintiff. He took a history of the plaintiff complaining of neck, shoulder and lower back pain. He diagnosed her as suffering from a whiplash type injury to the neck and lower back. He prescribed Naprosyn for pain and recommended physiotherapy. Following the plaintiff’s return to Queensland at the end of July 2005, she again returned to see Dr Yap on a couple of occasions when she was in Sydney in February and October of 2006, at which time he provided her with prescriptions.
Dr Mudbidri – medical practitioner and chiropractor
77. On 7 July 2005 the plaintiff saw Dr Samantha Mudbidri, a medical practitioner who was also a chiropractor. She carried out a three level examination of her spine on that occasion. Dr Mudbidri noted abnormalities of spinal tilting and curvature at various levels. The report does not offer any opinion on whether or not these observations were due to muscle spasm. It appears this referral was at the request of Mr Jamal Sabsabi, a chiropractor. Mr Sabsabi’s notes reveal a record of the plaintiff having complained of moderate pain and restriction of movement in the cervical spine and severe pain and restriction of movement in the lumbar spine. A diagrammatic representation of the plaintiff’s complaints show the affected areas to have been the right side of the face, the left clavicular and scapular regions and the thoraco-lumbar spines. It is not possible to interpret the symbol notations that were employed by Mr Sabsabi to record the findings on examination.
Dr Zaka – general practitioner
78. On 1 and 2 August 2005, following her return to Queensland at the end of July 2005, the plaintiff attended the Beenleigh After Hours Medical Centre where she was seen by Dr Tabinda Zaka who took a history that included intermittent complaints of low back pain and improved neck pain. A diagnosis of whiplash injury was made. Heat packs and analgesia were recommended as treatment. The plaintiff was advised not to undertake any heavy lifting, pulling or pushing activities.
Dr Cotterell – general practitioner
79. On 11 August 2005, the plaintiff saw Dr Sue Cotterell, a general practitioner. Dr Cotterell referred the plaintiff to Mr Hewitt for physiotherapy treatment. Dr Cotterell arranged for a CT scan to be obtained of the plaintiff’s lumbo-sacral spine. I will refer to the findings of those scans in my summary of the medical investigations that were undertaken on the plaintiff.
80. Dr Cotterell prepared a report dated 31 May 2006 in which she summarised the history and her clinical contact with the plaintiff. She stated that when she first saw the plaintiff on 11 August 2005 she was complaining of nightmares related to be collision and was having difficulty sitting or standing for any length of time and had pain down her legs, mainly on the right side. Dr Cotterell noted her findings on examination, which included restricted movements of the neck and back with tenderness across the shoulders and spine. She diagnosed a musculo-ligamentous soft tissue injury to the neck, upper shoulders, thoracic and lumbar spines.
81. Dr Cotterell also noted the plaintiff needed analgesia for muscle spasm and pain. In November 2005 she noted that the plaintiff was limping when walking and was experiencing a number of symptoms which included left facial and left arm numbness, left-sided neck pain, limitation of back movements and decreased sensation in the left leg. She also reported that the plaintiff was continuing to suffer from back pain and was stooped over after 10 minutes of walking. After arranging for investigations and trials of various medications, Dr Cotterell referred the plaintiff to Dr McCombe, an orthopaedic surgeon. She also prescribed exercise and hydrotherapy.
82. Dr Cotterell stated that she suspected the plaintiff would have ongoing back and neck pain and sciatica of an intermittent nature. In May 2006 she felt it was too early to give a definitive opinion as treatment may have helped and, by inference, may possibly continue to be of help in alleviating the plaintiff’s symptoms.
83. Dr Cotterell’s report stated that the plaintiff would be able to start part-time work providing suitable employment could be got for 8 to 10 hours per week, not involving sitting or standing for any length of time, no lifting of weights heavier than 5 kgs, or lifting anything above the shoulders, perhaps doing office work, provided it was not of a repetitive nature.
84. Dr Cotterell stated that she did not feel there was any overlying functional or psychosomatic component to the plaintiff’s presentation. She noted that the plaintiff was assiduously attending physiotherapy and doing the prescribed exercises. She noted the plaintiff reported experiencing anger and nightmares. She noted that the plaintiff had “up” days and “down” days. She stated that she considered the plaintiff’s presentation to be a normal reaction of a person who had been fit and well and who was having ongoing back pain resulting from injuries sustained in the collision.
Dr McCombe – treating orthopaedic surgeon
85. On 7 November 2005 the plaintiff was seen for assessment and treatment by Dr McCombe, an orthopaedic surgeon. Dr McCombe saw the plaintiff again on 28 August 2006 for the purpose of preparing a report for the plaintiff’s solicitor. That report was dated 24 August 2006.
86. At the first consultation in 2005, Dr McCombe took a history of post-injury neck and low back problems and pain radiating into the left shoulder and left leg, these symptoms having begun about 2 days after the injury. He also recorded a history of left-sided headaches and worsening of the low back pain with lifting activities. He noted the plaintiff was taking Digesic and diazepam. There is no dispute that these respective medications are for pain relief in the case of Digesic, and for muscle relaxation or as a calmative, in the case of diazepam.
87. At his first consultation, Dr McCombe noted on examination that the plaintiff’s whole spine was stiff and painful. He noted extension movements were difficult and painful. He noted tenderness in the mid-cervical, lower thoracic and the whole of the lumbar regions. He reviewed the radiology scans and identified a left sided foraminal disc protrusion at the L3/4 level. He recommended conservative treatment.
88. At the consultation on 23 August 2006, Dr McCombe took an updated history from the plaintiff in which he recorded pain in the left shoulder girdle, left and right buttocks, intermittent radiation into the left leg, and intermittent sensations of pins and needles in her hands. He recorded that she complained of aggravation of these problems on standing for more than 15 minutes. He noted the complaint of difficulty sitting for more than half an hour and walking for about 750m. He noted the complaint of difficulty with domestic tasks. He noted the plaintiff’s intake of 12 paracetamol tablets per day, 2-4 Nurofen tablets per day and the occasional dose of Mersyndol. He observed a positive left femoral stretch test in his examination.
89. Dr McCombe diagnosed the plaintiff as having had a whiplash injury of the whole spine with pain experienced particularly in the thoracic and lumbar spines. He stated that no treatment was likely to modify the outcome of the condition. He also stated that the plaintiff would require intermittent analgesia, probably of the paracetamol and codeine type, in the foreseeable future. Although he identified a possibility of some minor improvement over the ensuing 12 months, he stated that the prognosis was for long-term pain. He expressed pessimism about the plaintiff being able to find any job for which she would be suited, and which she would be able to do, noting that she was clearly not fit to return to her previous employment as a warehouse packer.
90. Significantly, Dr McCombe observed that the plaintiff was not coping well with her pain. He was cautious not to apply the label of psychosomatic functional disorder or abnormal illness behaviour because it was important to understand, that it was likely in his view, that the plaintiff was suffering from an underlying organic injury.
Mr Hewitt - physiotherapist
91. On 15 August 2005, at the referral of Dr Cotterell, the plaintiff first consulted Mr Scott Hewitt, a physiotherapist. Mr Hewitt asked the plaintiff to complete a questionnaire concerning her presenting state of health.
92. The plaintiff’s responses to the questionnaire indicated to Mr Hewitt that she had taken painkilling medication without effect on the pain. She indicated that she found it painful to look after herself, could only lift light weights, she spent most of the day in bed or in a chair, pain prevented her from sitting for more than 10 minutes and standing for more than 10 minutes, she slept less than 2 hours even with medication, pain had restricted her social life, her pain was getting neither better nor worse, and she was restricted with travelling for more than half an hour.
93. Mr Hewitt informed the CTP insurer that he found objective evidence that the plaintiff was in a flexed position when he examined her, at which time she was “10-15º off straight”. Mr Hewitt did not indicate which part he was considering when he wrote those remarks however, I infer from the recorded remarks regarding the subjective symptoms to the lumbar spine, the neck, fatigue and pain in both legs, that he was referring to the spine.
94. Mr Hewitt formulated a treatment plan that involved mobilisation and stability exercises with the aim of achieving a full range of movement over the course of a number of weeks of recommended treatment. Mr Hewitt’s notes were in evidence but were poorly copied and difficult to read. His record card indicated that there were at least 14 treatments administered to the plaintiff before he noted his card with the words “Allianz will not pay”, at which time his treatment appeared to have stopped.
Medical investigations
95. The plaintiff has a number of medical investigations of her post-injury problems.
96. On 12 August 2005 Dr Landy carried out a CT scan examination of the plaintiff’s lumbosacral spine at the request of Dr Cotterell. This was reported as showing postero-lateral disc protrusion/herniation at the L4/5 level on the left involving the inferior aspect and lateral to the intervertebral foramen. The CT scan was also reported as showing that at the level L4/5 there was an annulus disc bulging indenting the anterior aspect of the thecal sac, more prominent on the left than on the right, with some degenerative changes at the apophyseal joints.
97. On 7 February 2006 Dr Landy carried out further CT scanning of the lumbosacral spine due to left and right-sided sciatica and buttock pain. He reported that at the L3/4 level there was some lateral disc bulging with some focal protrusion postero-laterally on the left and narrowing of the intervertebral foramen inferiorly. At the L4/5 level he reported some annulus disc bulging evident with slight flattening of the anterior aspect of the thecal sac. He again noted degenerative change in the apophyseal joints. At the L5/S1 level he noted some annulus disc bulging and decrease in vertebral disc height.
98. On 3 November 2006 Dr Dunn was asked to undertake further CT scanning of the lumbosacral spine. The background history was that of low back pain, radiating down both legs and a previous focal disc protrusion at L3/4. His findings indicated an increased lumber lordosis and forward sacral tilt which he indicated could lead to significant instability and early degeneration within the lower lumbar facet joints. He noted the presence of disc bulging at the levels previously reported upon, and he indicated that the appearance was probably not significantly changed from the previous scans.
99. On 22 May 2009 Dr de Silva undertook CT scanning of the plaintiff’s cervical spine. He noted some facet joint degeneration at the C2/3 facet. He also noted mild disc herniation posteriorly at the C3/4 level. There was also left sided C 3/4 facet joint degeneration.
100. On 25 May 2009 Dr Ho reported upon MRI scanning of the plaintiffs lumbar spine. The clinical history was that of an acute exacerbation of chronic low back pain. The conclusion following the scanning was L4/5 and L5/S1 facet arthrosis. Abnormalities were also noted at the levels L1/2, being a depression deformity of the L2 endplate indicating interosseous disc herniation and L4/5 posterior disc bulging.
101. On 25 May 2009 Dr Nguyen reported on a whole-body study SPECT scan. Clinical indication for this was chronic lower back pain, thoracic and cervical pain with acute exacerbations. Arthritic changes were noted in various parts of the body, including in the neck and back.
Commonwealth Rehabilitation Service reports
102. On 9 January 2007 Centrelink referred the plaintiff to the CRS for a job capacity assessment report. It was difficult to form a complete view of that assessment because only three of the nine pages of the report were tendered.
103. Part of the CRS report acknowledged that for the plaintiff to cope with work-related stress and pressures, she would need some work capacity support for a duration of longer than 24 months, whatever that meant. In the general assessment summary of the report, on the assumption that the plaintiff’s disability “can be partially compensated for, or accommodated by the provision of disability specific intervention … it is anticipated the client will have a future capacity for work of 8-14 hours per week in an open employment situation.” It was noted that the assessor thought the plaintiff would benefit from continuing to participate in vocational rehabilitation and that she would continue to benefit from continuing with her current treatment for her pain. The qualifications of the author of the report were not stated and the author gave no acknowledgement of the expert witness code.
104. On 5 December 2007 the plaintiff underwent a functional capacity evaluation concerning the chronic pain experienced in her back, her hip, her neck and her shoulder. That assessment was originally commenced on 5 January 2007 but, owing to the irritability of the plaintiff’s condition on that date, a follow-up appointment was booked for 14 May 2007, when “her condition was less irritable”. The assessment was carried out, on behalf of the CRS by Mr Anton Nguyen, a physiotherapist. The report summarised the plaintiff’s reported limitations in her ability to carry out the activities of daily living. The history was summarised as follows:
“…She reports significant restrictions with vacuuming, washing, ironing, shopping and gardening. She has moderate restrictions with cooking, cleaning, making the bed and looking after her grandchild. She has slight restrictions with self care such as cutting her toenails and shaving her legs. Helen reports that she has trouble with sleeping. She takes sleeping tablets on a regular basis to help her sleep. Her sleeping averages 3-4 hours a night. Helen is unable to return to sleep when she wakes up due to pain. She reports that she is able to sit for 30 minutes. Stand for 5-10 minutes. Lift up to 4 kg and carry 2kg. Helen reports that she is unable to drive a manual car, due to flare up of back and hp ain. She is able to drive an automatic car for 2-30 minutes. Helen reports occasional difficulty with stairs.”
105. The physical symptoms of back pain, sciatica, shoulder and neck pain and related headaches were reviewed, as were the recorded flare-ups of the condition that the plaintiff was experiencing whilst attempting to do some volunteer work.
106. The vocational assessment was framed in terms of statistical descriptors “Based on the summary of definitions of work and physical demand characteristics.” The meaning of this expression was not explained. Qualified in that way, the author of the report expressed the opinion that the plaintiff would be able to work in a retail/sales position as long as it did not involve lifting more than 3 kgs. It was noted that she was suitable for sedentary work with no lifting of anything greater than 3 kgs “on a rare basis”. Other job restrictions were also noted concerning the ability to change positions frequently and to allow time for stretching. The report concluded that the plaintiff would benefit from job training or a gradual return to work programme to improve her physical work tolerance and to monitor her progress. Clearly, the report was inconclusive and was not intended to be a definitive assessment of the plaintiff’s capacity to work.
Reports obtained by plaintiff’s solicitor
107. The solicitor for the plaintiff obtained a number of medico-legal assessments and reports. These are summarised in the paragraphs that follow.
Dr Peter Conrad – consultant surgeon
108. On 16 February 2006, at the request of her solicitors, the plaintiff was examined by Dr Peter Conrad, a consultant surgeon. Dr Conrad’s report of that consultation was dated 17 February 2006. In that report, after reviewing the plaintiff’s history, and recording his findings on examination, which included the presence of moderate paravertebral muscle spasm, a restriction of spinal and related movements, with hyer-reflexia in the left leg, Dr Conrad expressed the view that the plaintiff had sustained a significant whiplash injury of the neck, left shoulder strain and a back strain, associated with a disc prolapse as was shown on the CT scan. He also noted left-sided sciatica. He suggested the need for ongoing physiotherapy on an as needed basis. Dr Conrad expressed the view that the plaintiff was fit for only light work, starting at about 12-15 hours per week but perhaps very likely as part of a structured rehabilitation programme. He predicted that she should (after participating in that programme) be in a position where she would be able to stand or sit at will, and lift anything more than 5 kgs in weight or do repetitive lifting or bending. He stated that she would not be able to lift her left arm above shoulder level and she would not be able to do “full on process work or factory work”. In his view the plaintiff’s prognosis was uncertain at the time.
109. At the request of her solicitors, Dr Conrad examined the plaintiff again on 28 May 2009. The report following that consultation was dated 29 May 2009. After reviewing her history again, Dr Conrad noted the plaintiff had more limitation of movement in all directions of her cervical spine due to pain. He also noted the presence of a paravertebral muscle spasm and a loss of range of movement in an asymmetrical fashion. His examination of the plaintiffs’ lumbar spine noted moderate paravertebral muscle spasm was present. Dr Conrad reviewed the radiology evidence as set out on page 2 of this report. In addition to reiterating his earlier conclusions with regard to the plaintiff’s potential to do about 12-15 hours per week of light work, with the qualifications on her ability to stand or sit at will and with lifting restrictions, he also stated that she should not use heavy industrial vacuum cleaners and polishers. He stated that the work that he foreshadowed in this regard should be part of a structured rehabilitation programme. He also noted that if the plaintiff’s daughter was not available to assist with the heavier parts of housework, she might need about 6 hours per week of home care assistance.
Dr Thomas Clark – consultant psychiatrist
110. On 16 August 2007, at the request of her solicitors, the plaintiff was examined by Dr Thomas Clark, a consultant psychiatrist. Dr Clark’s report of that consultation was dated 2 September 2007. In his report, Dr Clark set out the history of the events provided by the plaintiff of the collision, and characterised this as akin to a near death experience for the plaintiff. He noted the history of her development of insomnia, hypervigilance and an inability to relax. He noted that she had developed pain and also considerable psychiatric distress and many symptoms of a traumatised state. He characterised this distress as having become chronic, and evolved into a chronic depression known as dysthymia. He noted that the plaintiff had low self-esteem and no-confidence, and that this interfered with her life such that at times, she was overtly depressed and crying.
111. Dr Clark stated that the plaintiff presented with the signs and symptoms of an anxiety state. He diagnosed her as having post-traumatic stress disorder with depression to the point that she developed an anxiety state, panic attacks and become chronically depressed and withdrawn. In his view, the depression, which has been evident for a long time, was caused by the collision. He recommended that she should see a psychiatrist for treatment. Within the parameters of the DSM IV, he characterised her diagnosis as being a dysthymic disorder. In his opinion this disorder had reached a state of maximal medical improvement. He stated that there was no evidence of a pre-existing condition.
112. On 29 May 2009, the plaintiff was re-examined by Dr Clark. His report following that examination was dated 2 June 2009. After reviewing the earlier history, Dr Clark noted that the plaintiff was hypersensitive to touch even to the point of no longer going to a hairdresser but rather, a short visit to a barber. In his view the plaintiff exhibited signs and symptoms of an anxiety state. He noted that her earlier presentation of hypersensitivity had caused her to develop avoidance strategies, including to the point where she did not read much or watch disturbing television programs. Dr Clark reiterated his earlier diagnosis of post-traumatic stress disorder with depression. He characterised the disorder as being chronic.
Medical materials and reports obtained by solicitor for defendants
113. The defendants tendered the clinical notes and records of three of the plaintiff’s treating general practitioners, as well as reports from a specialist spinal surgeon, a psychiatrist and an occupational therapist. Within the clinical records tendered by the defendants there was also a report from a specialist in musculoskeletal medicine. That report was commissioned by the Motor Accidents Authority to determine the nature and extent of the plaintiff’s injuries.
Records of Dr Zaka – treating general practitioner
114. Copies of the clinical records were tendered by the defendants relating to the plaintiff and produced on subpoena by Dr Tabinda Zaka. These records consisted of clinical progress notes for medical consultations covering the period between 1 August 2005 and 29 January 2007, which was after the plaintiff obtained some initial medical assistance in Sydney. The first entry in the records of Dr Zaka concerned a consultation on 1 August 2005 following the plaintiff’s return to Queensland from Sydney. Dr Zaka noted the history of a whiplash injury involving the neck and back. In my view, there was nothing in these records that could be read as being contradictory of the plaintiff’s claim.
Records of Dr Cotterell – treating general practitioner
115. Copies of the clinical records relating to the plaintiff and produced on subpoena by Dr Sue Cotterell were tendered by the defendants. These records were paginated and comprised some 90 pages. The records comprised consultations with Dr Cotterell and other medical practitioners in her practice, and spanned the period 18 June 2004 to 28 May 2007.
116. Whilst these voluminous records obviously include consultations for matters unrelated to the subject injury, in my view they also contain records of medical consultations sought by the plaintiff relating to her post-injury problems and her need for painkilling medication, along with related referrals. The purpose behind the defendants’ tender of these records was not clear. In my view there was nothing in these records that could be read as being contradictory of the plaintiff’s claim.
Records of Dr Gunasena – treating general practitioner
117. Copies of the clinical records were tendered by the defendants relating to the plaintiff and produced on subpoena by Dr Lalitha Gunasena. These records consisted of clinical progress notes for medical consultations covering the period 17 January 2007 and 21 December 2007. Whilst some of the consultations concerned unrelated matters, these records documented the occasional prescription of painkilling medication and the complaints of long-term neck, back and shoulder pain. In my view there was nothing in these records that could be read as being contradictory of the plaintiff’s claim.
Dr Peter Jackson – specialist in musculo-skeletal medicine
118. Dr Gunasena’s records included copies of certificates of determination dated 5 March 2007, issued following medical assessment of the plaintiff on 2 March 2007 by Dr Peter Jackson, a specialist in musculoskeletal medicine. He was engaged by the Motor Accidents Authority Medical Assessment Service to examine the plaintiff to determine the nature of her injuries, the cause of those injuries, the degree of stability of the effects of those injuries, and the degree of permanent impairment that remained as a consequence of those injuries.
119. Dr Jackson reviewed the plaintiff’s complaints, took a history from her and reviewed a number of radiology scans. The complaints made by the plaintiff to him essentially related to her neck, lower back and left shoulder. She complained of continuing to suffer left-sided neck pain, particularly on movement and referred pain, particularly in the region of the left shoulder. Dr Jackson also noted the history of left gluteal pain that is invariably present. He also noted complaints of frequent insomnia and fatigue and the need to take analgesic medication.
120. Dr Jackson also noted the plaintiff’s complaint of impairment concerning activities of daily living, comprising activities such as bathing, grooming, dressing, eating, reading, writing, using keyboard, standing, sitting, declining, walking, stooping, squatting, kneeling, reaching, bending, twisting, leaning, carrying, lifting, pushing, pulling, grasping, holding, pinching, driving and participating in sports or hobbies other than walking.
121. Dr Jackson’s findings on clinical examination of the plaintiff’s neck revealed a slightly protracted posture, tenderness, asymmetry, reduced motion and increased muscle guarding between left-sided C5/6/7 and tender muscle induration of the left trapezius, sternocleidomastoid and scalene group of muscles.
122. Dr Jackson’s findings on clinical examination of the plaintiff’s lumbar spine revealed left pelvic obliquity or non-parallel muscle arrangement, with side bending the lumbar spine to the right and rotated to the left. He noted that palpation of the lumbar spine revealed painful induration of the left-sided paravertebral and gluteal muscles.
123. Dr Jackson reviewed medical reports and certificates from Dr Yap, Dr Cotterell and Dr McCombe in addition to the radiology scans provided to him.
124. Dr Jackson concluded that his clinical findings were consistent with the plaintiff’s injuries and history, and that the findings on examination were internally consistent. In his diagnosis, the plaintiff had aggravation of pre-existing degenerative change at the C3/4 and C4/5 levels of the cervical spine, lumbar spine injuries comprising left-sided paranormal disc protrusion at L3/4, L3/4 and lateral L3/4 disc bulge and L4/5 disc bulge and protrusion.
125. Dr Jackson considered that all of the complaints of injuries, namely to the neck, lower back and lumbar spine, and the left shoulder strain, were caused by the collision in question, with the proviso that he thought that on the balance of probabilities the various disc lesions were pre-existing. He did not think that there were any complaints made by the plaintiff which were unrelated to the collision in question.
Associate Professor McPhee – consultant spinal surgeon
126. The plaintiff was seen by Associate Professor Bruce McPhee on two occasions at the request of the defendants. As a consequence, Associate Professor McPhee produced two reports following his examinations of the plaintiff. He also produced some follow-up correspondence with the solicitors for the defendants in answer to questions that had been asked of him. This material was tendered by the defendants.
127. Associate Professor McPhee is an orthopaedic surgeon. He noted that his clinical practice was exclusively in spinal surgery.
128. The first report of Associate Professor McPhee was dated 19 February 2007 and related to an examination of the plaintiff by him on 14 February 2007. After taking a history of the incident and of her current clinical complaints, which related to the neck, the scapular region and the low back, he also noted that the plaintiff took prescription and non-prescription medication daily, and that she had difficulty with household and domestic tasks. He also noted that she was currently attending the CRS and was not working. He reviewed the radiology scans and noted the degenerative changes in the facet joints at C3/4 and C4/5, as well as a prominent left postero-lateral bulge at the L3/4 disc as well as minor posterior bulging at the L4/5 and L5/S1 disc. He also noted a moderate degree of degenerative change in all facet joints, most marked at the L4/5 level.
129. Associate Professor McPhee stated his opinion that, on the balance of probabilities, the pre-existing degenerative changes in the neck and back have been aggravated by the road traffic injury due to soft tissue strains. He did not explain how he undertook the weighing of the relevant factors that enabled him to reach that balanced conclusion. He referred to statistical studies concerning the course over which such injuries take to improve, noting that a small proportion of patients continued to have symptoms long-term. Associate Professor McPhee acknowledged that it was reasonable to assume that the plaintiff may have an incapacity for the most robust and heavy tasks of domestic work.
130. Associate Professor McPhee stated that the plaintiff had suffered a soft tissue strain of the neck and back which, based on statistically scaled instruments of relative measurement, classified her “as having a minor disability”. With regard to the consistency of the plaintiff’s presentation in the consultation he stated :
It was demonstrated during the examination that the claimant’s range of lumbar spine movements was not consistent with her full capabilities. This casts some doubt on the validity of any observation relating to the range of movements in her neck and lumbar spines. Other than these findings no other significant inconsistencies were noted. These observations do not constitute abnormal illness behaviour. Although there is no evidence of significant functional overlay, I suspect there is a level of stress which is tending to dictate the level (sic) activities she undertakes.”“ Consistency of Presentation
131. Associate Professor McPhee did not explain which of the particular lumbar spinal movements was not consistent with the plaintiff’s full capabilities. Therefore, it is not possible to rationally analyse or fully determine the probative value of his statement that sought to cast some doubt on the validity of observations made relating to the range of movements in the plaintiff’s neck and back. This aspect of his opinion was clouded by the limited nature of his explanation. His statement appears to have been based on inconsistencies he said he observed in relation to lumbar spine movements. He claimed that this cast doubt on the validity of observations relating not only to the movements of the lumbar spine, but also concerning the neck movements. However, the nexus of his observations concerning the lumbar spine as relating to the neck remained unexplained.
132. On 18 March 2009 Associate Professor McPhee re-examined the plaintiff at the request of the solicitor for the defendants. He produced a report of that consultation which was dated 19 March 2009. In updating the clinical history following this consultation, he noted that although there had been some 50-60 per cent improvement in symptoms from the time of injury to the time of the last consultation the plaintiff had with him, on 2 February 2007, there had been no improvement since. The plaintiff’s symptoms still related to the neck, the left shoulder, the back, and right buttock pain. The history of denial of any past history of medical low back pain was confirmed.
133. In his second consultation, Associate Professor McPhee noted the range of the plaintiff’s lumbar spine movements was generally reduced. He also noted that there was a general reduction in all movements of the neck. He also noted that the left shoulder showed restricted elevation by flexion or adduction. He reviewed radiology scans and noted abnormalities concerning lordosis and kyphosis but did not comment on whether or not these were underlying problems or whether they were postural issues to do with muscle spasm or guarding, or otherwise.
134. Following his second consultation he reiterated his earlier view that there had been an aggravation of pre-existing cervical and lumbar degenerative changes due to a whiplash injury that occurred on 29 June 2005. He then referred to the statistical prognosis of such injuries and noted that in all long-term studies, between 40 per cent and 70 per cent of patients may have ongoing symptoms, including neck, shoulder, low back and leg pain.
135. Associate Professor McPhee stated that it was conceivable that the plaintiff may have a functional incapacity for robust physical tasks or manual activities above shoulder level, these tasks including bending, lifting, carrying and pushing. However, he stated that there was nothing on examination which he thought would preclude her from undertaking sedentary work which may include some light or occasional moderately physical tasks. He qualified this statement to depend upon the plaintiff’s ability to tolerate pain when she undertakes such activities. He referred to the phenomenon of psychological and social factors which may serve to reinforce invalidity. Considering her age, and her qualifications and ongoing disability, he predicted that the probability of the plaintiff finding suitable employment would be low, or virtually zero.
136. In considering the plaintiff’s presentation at the consultation, Associate Professor McPhee softened his earlier statement casting doubt on the validity of his observations concerning range of movements of the neck and back. In this regard, in his 2009 report he stated:
The claimant’s presentation is consistent with the history and radiological findings. The level of incapacity may be a little more than might be anticipated given her clinical and radiological findings. Although there is no clinical evidence of significant functional overlay, there is a level of stress which is tending to dictate the level of activities Ms Matthews is prepared to undertake.”“ Consistency of Presentation
137. Associate Professor McPhee was provided with further information by correspondence. The letters from the solicitor for the defendants that generated this correspondence were not tendered in evidence.
138. On 13 May 2009 Associate Professor McPhee wrote an explanatory letter to the solicitor for the defendants, confirming that in his opinion, according to the applicable statistical instruments and measurement of impairment, the combined impairment of both the cervical and lumbar spine in the plaintiff was 10 per cent of the individual as a whole.
139. On 6 July 2009 Associate Professor McPhee undertook a review of the reports of Dr Conrad and some of the radiological reports that I have already reviewed. In his letter of 6 July 2009 he sought to imply that the examination carried out by Dr Conrad was inadequate because it was exceptionally brief concerning its description of examinations of the spine and made no reference to cross-checking of findings under distraction, compared to his own examination technique. In the absence of explanatory evidence concerning the reliability or unreliability of one examination technique compared to another, I am not prepared to speculate on whether or not such a criticism is valid.
140. In his 6 July 2009 letter, Associate Professor McPhee considered that any restrictions in the plaintiff’s left shoulder movements were pain related and were referred from the cervical spine rather than due to localised shoulder pathology. For the purpose of these proceedings is not necessary that I attempt to reconcile any debate between Associate Professor McPhee and Dr Conrad as to any differences they may hold concerning the appropriate statistical measurement percentage impairment, concerning the cervical spine in the absence of left shoulder pathology. For the purposes of assessment in this case, it is sufficient to have regard to the complaints, the history and questions of diagnosis, rather than to refer to statistical descriptors.
Dr Angelo Virgona – consultant psychiatrist
141. On 13 April 2009, at the request of the solicitor for the defendants, the plaintiff was examined by Dr Angelo Virgona, a consultant psychiatrist. Following a one hour consultation with the plaintiff, Dr Virgona issued his report to the solicitor for the defendants on the same day. Dr Virgona took a history of the occurrence of the incident, the course of subsequent events relating to injury, treatment and disability, and focused on the psychological issues.
142. Dr Virgona noted that after the incident in question the plaintiff became afraid of trucks on the road and had lasting nightmares, but these became less frequent. He noted that she had explained how she had learnt to cope with these problems on her own, without psychological help.
143. On specific questioning, Dr Virgona elicited that the plaintiff’s concentration becomes affected by pain, she experiences occasional anger, she has had panic attacks at the sight of trucks on the road, such attacks being accompanied by palpitations and hyperventilation and these days, when she feels the onset of anxiety she is able to talk herself out of it, and calms down. He noted the past history of nervous breakdown in 1994, in association with a marital breakdown, a fall, the occurrence of glandular fever, early menopause, depression and the excessive use of sedatives for a brief period. He noted that these events had resulted in three brief hospitalisations, which were secondary to suicide attempts. Following the receipt of psychiatric treatment for 12 months, and following the taking of prescribed antidepressants, she had no further such problems.
144. Dr Virgona noted that at the time of his examination, that the plaintiff was taking Panadeine Forte tablets, between two and six times a day as prescribed, together with Stilnox for sleep, Nurofen for pain and diazepam for her back.
145. Dr Virgona a reviewed the plaintiff’s medical, family and personal history. He also reviewed personality factors and undertook a mental state examination. He noted that she was moved to tears briefly when talking about the collision. He made no adverse comments about these matters.
146. Dr Virgona reviewed the medical documentation provided to him by the solicitor for the defendants. He remarked that the materials from Dr Yap, Dr Zaka and Dr Gunasena made no mention of psychological symptoms. He acknowledged that the records of Dr Cotterell made reference to the plaintiff having felt “like a stunned mullet after the accident initially but after a while she seemed fine”. That quotation was obviously his summation of history because it appears to intermix an account of history with an element of conclusion.
147. The report of Dr Virgona incorporated an inaccurate summation of the opinion expressed by Dr McCombe. In this regard, Dr Virgona summarised the opinion of Dr McCombe as being “he was of the view that there were inconsistent findings, that she was not coping well with her pain and that there were some features of ‘abnormal psychosomatic illness behaviour’”. In contrast to that summary, the relevant portion of the report of Dr McCombe that had been summarised by Dr Virgona, in fact stated :
“You also specifically ask for an opinion as to whether any functional, hysterical or psychosomatic condition is affecting your client. This is always difficult to say with any degree of certainty. She does appear to be rather anxious and frightened by the pain. The history of being in bed for three to four days at a time after doing vacuuming or mopping is suggestive of an inability to cope with her pain. There were certain inconsistent features on examination in terms of the location of the tenderness in that it was not particularly repeatable; however this is not an uncommon finding. I would express the view that she is not coping well with her pain and this latter inability to cope is in fact as (sic for a ) psychological problem that could by some be construed to be psychosomatic or function (sic) and hysterical. However, she would not fit the true definition of a functional hysterical person. There are some features of abnormal psychosomatic illness behaviour, though it is important to understand that she (sic) likely suffers from an underlying organic injury.”
148. In my view, when this portion of Dr McCombe’s actual report is read in context, it reveals Dr Virgona’s summary omitted important aspects of qualification of the views expressed by Dr McCombe which Dr Virgona appears to have overlooked. Dr McCombe’s reference to some features of abnormal illness behaviour was qualified by the emphasis on the likelihood that the plaintiff suffers from an underlying organic injury which places an entirely different perspective to the mention of abnormal illness behaviour.
230. Thirdly, I consider that the significant work restrictions identified by Dr Conrad, Dr McCombe, Dr Jackson and Associate Professor McPhee support the conclusion that from a practical perspective, it is unlikely that the plaintiff would have been placed in employment.
231. In these circumstances I consider that the defendants’ submission to the effect that the plaintiff had a partial residual earning capacity that arose at about 1-2 years after her injury should be rejected as that submission is dependent upon a theoretical capacity of no practical application, as is evidenced by the inability of the CRS or the plaintiff to find such suitable employment until now. I also base my rejection on the opinion of Associate Professor McPhee who significantly discounted the practicalities of the plaintiff’s prospects for placement in suitable employment.
232. In my view, the plaintiff has taken reasonable steps to attempt to mitigate her claim for loss of earnings: s 136 of the MAC Act. She has attended the CRS and has undergone vocational capacity and functional assessments. She had earlier attended physiotherapy treatment until the CTP insurer declined to pay for the treatment. She continued to take medication and she has sought medical consultations. She has stated that she intends to follow up on a recent medical recommendation for psychological treatment. The CRS has not been successful in placing her in the restricted categories of employment within the medically identified restrictions on the parameters for her potential employment.
233. Quite apart from the question of fitness for light duty employment, as was suggested by the defendants, and which I have rejected, the plaintiff has submitted that the amount suggested by the defendants to compensate the plaintiff for past loss of earning capacity was too low.
234. In order to test the defendants’ submissions as to the appropriate measure of the claimed loss, it is relevant to analyse the figures contained in the plaintiff’s income tax returns that were tendered by the defendant: Exhibit “2”. The relevant notices of assessment for the relevant tax years covered by the exhibit were not tendered. I have set out the following tabulation to summarise the plaintiff’s gross income and the tax withheld from that income between 1999 and 2005 as appears in Exhibit “2” to give an indication of the plaintiff’s pre-injury pattern of earnings.
1. 2. 3. 4. 5. 6. 7.
235. It is apparent from this tabulation that the weekly amount of $400 per week suggested by the defendants as the base rate to measure the plaintiff’s loss is too low and is unreflective of the plaintiff’s pre-injury earning capacity.
236. The inadequacy of the defendants’ suggested analysis is revealed to be incorrect when it is recognised that the plaintiff’s earnings for the year ended June 30th 2005 were derived before Christmas 2004, which was when she finished work in order to travel to Queensland.
237. Once this is recognised, the tabulated net earnings of $19,242 between 1 July 2004 and 31 December 2004, in respect of some 26 weeks, equates with a weekly rate of about $740 per week net, which seems to me to be commensurate with what would be expected as earnings for semi-skilled night shift factory work.
238. Having identified the net rate of $740 per week in this way, in my view this renders the submitted rate of $500 per week net as claimed by the plaintiff to be more than reasonable. In my view the lesser rate of $500 per week net claimed by the plaintiff fairly recognises that the plaintiff voluntarily left her employment that paid the higher rate before she was injured which means that she may not have been able to readily secure such well paid employment again, either at all, or quickly. For this reason, I consider that the rate of $500 per week net as submitted by the plaintiff is a fair and reasonable rate for assessing her damages for past loss of earning capacity.
239. The injury occurred on 29 June 2005. The evidence does not precisely disclose the intended duration of the plaintiff’s trip to Sydney to visit her mother, which was at the time when the injury occurred. In these circumstances it is necessary to arrive at a reasonable estimate. With this in mind I consider that the plaintiff would probably have returned to Queensland within 2 months of the date of her injury and at that time she would most probably have actively sought work, as by then her daughters would have fully recovered from their injuries, and her evidence was that she needed to work.
240. Given the plaintiff’s impressive work record, her work ethic, and also the breadth of her work experience in a variety of jobs, also taking into account the imponderables of the employment market, I consider it reasonable to infer that she would most probably have found employment again within a further 2 months, namely by the end of November 2005, had she remained uninjured.
241. The period from 1 December 2005 to the commencement of the trial is the equivalent of 197 weeks. After deducting an amount to represent the first 5 days of loss, as is required by s 124 of the MAC Act, this reveals an assessment of $500 per week net over 196 weeks in the amount of $98,500. I therefore assess the plaintiff’s damages for past loss of earning capacity in the sum of $98,500.
Future loss of earning capacity
242. The plaintiff makes a claim for future loss of earning capacity formulated as being for $650 per week net over 10 years of remaining working life until age 67 years. The projection of $650 per week net at 5 per cent over 10 years (x 412.9) less 15 per cent for vicissitudes, yields the claimed amount of $228,130.
243. The defendants submitted that the appropriate period for assessment of damages for future loss of earning capacity was until age 65 years, namely a further 8 years. The defendants submitted that the medical evidence demonstrates the plaintiff has a residual earning capacity for light sedentary type work. On that basis, the defendants submitted that the appropriate allowance was for partial loss of earning capacity in the amount of $200 per week at 5 per cent over 8 years (x 345.6) less 15 per cent for vicissitudes, which yields an amount of $58,752.
244. As the first step in the assessment process, it becomes necessary to determine the likely period over which, uninjured, the plaintiff would have been likely to have continued to exercise her earning capacity until retirement from the workforce. The defendants have submitted that period to be 8 years to age 65 years. That position was consistent with the age of 65 years which was mentioned by the plaintiff in her evidence. On behalf of the plaintiff it was contended that the relevant period should be 10 years to age 67 years, in accordance with current economic trends in an ageing population and in response to public encouragement from the government for workers to postpone their retirement and their ultimate reliance on the aged pension. Having regard to the plaintiff’s evidence, which I accept, that she needed to work in order to accrue savings for her retirement, I infer and find that, uninjured, the plaintiff would have continued to work until age 67 years, rather than to age 65 years.
245. In order to assess the plaintiff’s claim for future loss of earning capacity it is necessary to identify a base rate of earnings for projection. The submissions of the parties, namely the full time rate of $650 per week net put forward on the part of the plaintiff, and the part time restricted duties rate of $200 per week net put forward on the part of the defendants, were not based on actual comparable rates. Instead, these figures were adjusted figures that were contended as being appropriate rates for assessment.
246. It therefore becomes necessary to reconcile the differences in these two approaches.
247. The starting point for this reconciliation is to seek an understanding of the basis of the defendants’ position. It seems that the contended loss of $200 per week net is based on the notion of a capacity for part-time work of about 15 hours per week, which is the rough equivalent of working 2 days per week. When analysed in this way $200 per week is the equivalent of a full time earnings rate of a little over $8 per hour net if it is to represent 25 hours of lost earnings, being the notional weekly balance lost after allowing for 15 hours of part time work. This analysis reveals the defendants’ assumption to be a rate of $320 per week for a full time 40 hour week. ($200 ÷ 25 hours = $8 per hour)
248. When analysed in this way, the defendants’ position is revealed to be arbitrary and unrelated to the reality of the plaintiff’s lost capacity for uninjured earnings at a much higher rate, possibly approaching $740 per week net. It is on account of this analysis that I reject as demonstrably unreasonable, the rate proposed by the defendants as it seems to me to be manifestly unreasonable as a basis to compensate the plaintiff for future loss of earning capacity.
249. This then leads to the need to determine whether the plaintiff’s loss should be assessed as being a full loss, as was claimed on her behalf, or a partial loss as was submitted on behalf of the defendants.
250. In my view, properly understood, the views of Dr McCombe, Dr Jackson and Dr Conrad, which indicate the plaintiff may have a degree of residual earning capacity, indicate that any potential residual earning capacity in the plaintiff is theoretical only, and unlikely to be productive of significant residual earnings. I consider this to be so because, in my view, the restrictions they propose on the contemplated work activities indicate it is unlikely the plaintiff would ever be able to significantly exercise such a residual earning capacity. In this regard, I prefer the opinion of the defendants’ expert Associate Professor McPhee, who has predicted, reasonably in my view, that the probability of the plaintiff obtaining suitable employment would be low, or virtually zero.
251. Having reached the conclusion that the plaintiff has no real prospect of deriving any significant income from any residual earning capacity, which I consider to be minimal on the medical evidence I have cited, it remains to assess the plaintiff’s future loss of earning capacity in monetary terms, including the appropriate rate to be projected for calculation of the future loss.
252. Subject to three qualifications that I shall identify, I have concluded that the plaintiff’s submission of a rate of $650 per week is a reasonable basis for projection, especially when compared with her pre-injury earnings rate which has been shown to have been of the order of up to $740 per week net.
253. The first qualification is that, having left her employment as a night shift packer, it has to be recognised that the plaintiff might not have obtained such work again. This is a factor for which a non-vicissitudes discount should be applied, I consider that a reduction from $740 per week to $650 per week is a sufficient recognition of that factor.
254. The second qualification is that in light of the medical evidence indicating that it was probable that the plaintiff had underlying degenerative changes in her spine, in my view, in this case it has to be recognised that a greater than usual discount for possible adverse vicissitudes needs to be applied to reflect the possibility that either through work or advancing age, such degenerative changes may have affected the plaintiff’s ability to continue to work, even absent injury. In this regard, instead of applying a conventional discount of 15 per cent for possible adverse vicissitudes, I propose to apply a discount of 20 per cent on account of this factor.
255. The third qualification is that I consider that some small allowance should be made to reflect the possibility that, intermittently, and to a minor degree, the plaintiff may find some small degree of residual earning capacity. I propose to allow an offset of $50 per week as an average figure to reflect this possibility.
256. Following this course, I consider the appropriate formulation of the claim for future loss of earning capacity to be $650 per week net, less $50 per week net for the possibility of residual earnings, i.e. $600 per week net, projected at 5 per cent over 10 years (x 419.2) less 20 per cent for vicissitudes, yielding the amount of $213,792.
257. I therefore assess the plaintiff’s damages for future loss of earning capacity in the sum of $213,792.
Past superannuation losses
258. The convention is for the loss of past employer funded superannuation to be assessed at 11 per cent of the amount assessed to represent past loss of earning capacity. Accordingly, applying that approach, 11 per cent of $98,500 is $10,835. I therefore assess the plaintiff’s damages for past superannuation loss in the amount of $10,835.
Future superannuation losses
259. Consistent with the approach taken with respect to the assessment of past loss of employer funded superannuation, applying the same convention to the calculation of future superannuation losses, 11 per cent of $213,792 yields an amount of $23,517. I therefore assess the plaintiff’s damages for future superannuation loss in the amount of $23,517. This sum has already been discounted for vicissitudes.
Past domestic assistance
260. The plaintiff makes a claim for damages for past domestic assistance. The claim was initially formulated as being for 8 hours per week at $22 per hour over 220 weeks totalling $38,720. The plaintiff later reformulated the claim in the amount of $81,460 in respect of three relevant periods.
261. The first submitted period was in respect of the initial 6 months, between 29 June 2005 and 29 January 2006. The claim in respect of that period was for 30 hours per week over 26 weeks at $22 per hour, namely $17,160. The calculation contains an error as the period is in fact 30 weeks so the sum should be $19,800.
262. The second submitted period was for the ensuing 18 months between 1 February 2006 and 1 August 2007. The claim in respect of that period was for 19.5 hours per week over 72 weeks at $22 per hour, namely $30,900. The period is actually 78 weeks and the actual calculation is $33,462.
263. The third submitted period was between 1 August 2007 and the trial on 16 September 2009. The claim in respect of that period was for 16.5 hours per week over 92 weeks at $22 per hour, namely $33,460. The period was actually 110 weeks and the calculation should therefore be $39,930.
264. The submitted amounts totalled $81,460. The adjusted submissions totalled $94,192.
265. The first matter to observe about this component of the plaintiff’s claim is that any damages for past care must be precisely calculated so as not exceed the rate prescribed by s 128(4)(a) and s 128(5) of the MAC Act.
266. The defendants have submitted that the plaintiff has not made good her claim for the submitted amount of $81,460 for past domestic assistance provided to her by family members. In this regard, the defendants pointed to the state of the evidence and to the absence of any evidence from the plaintiff’s daughter concerning the detail of the care she claimed to have provided to assist her mother with tasks such as washing clothes, doing the shopping, personal care and the like.
267. Instead, the plaintiff’s daughter gave evidence that she provided some 15-16 hours per week of care to the plaintiff over a period of 18 months. The problem with that evidence was that this care was undifferentiated as to its description and clearly related to the needs of other members of the family rather than just to the plaintiff. This is not a case where, for example, the running of the plaintiff’s household required certain assistance which required replacement of labour even though part of it was for the benefit of others : Morgan v Gibson [1997] NSWCA 212. In this instance, the plaintiff joined her daughter’s household, and it was her daughter who provided assistance to the plaintiff, presumably including from the period when the plaintiff was in Sydney before she returned to Queensland and thereafter.
268. The defendants have also submitted that the plaintiff’s evidence on this topic has been left in an unsatisfactory state. The defendants submitted that the calculation posited by the plaintiff was based on error, and as such, should not be accepted. The defendants further developed this submission by pointing out that the plaintiff gave no evidence as to any breakdown of time which was required by her for gratuitous assistance following the collision, and in the period leading up to the time of the trial.
269. In my view, an examination of evidence indicates that the defendants’ submissions concerning the unsatisfactory state of the evidence is undoubtedly correct. The evidence does not provide any rational basis for assessing the past care claim. This is an issue on which the plaintiff bears the onus of proof. In this case, I accept the defendants’ submission that such proof is absent.
270. Notwithstanding the defendants’ submission as cited above, an evaluation of the claim must be attempted in order to try and quantify it, if it is possible to do so.
271. In submissions, the defendants initially conceded the plaintiff’s need for past care at 3.5 hours per week but pointed out that these hours did not exceed the statutory threshold required for an award of damages for past gratuitous care: s 128(3) of the MAC Act. The plaintiff could not point to any evidence to the contrary of that position. If that position had prevailed, I consider that on the evidence, the plaintiff would not have been able to obtain an award of damages for past domestic assistance for a considerable period following her injury.
272. Notwithstanding the position identified by the defendants, as summarised in the preceding paragraph, and notwithstanding the state of the evidence, the defendants decided to abandon that position and conceded an allowance of 8 hours per week for past gratuitous care, but limited to a period of 8 months from the time of injury until February 2006, which was the time when the defendants argued that Dr Conrad had certified the plaintiff to be fit for light duties.
273. In this regard, the defendants conceded that the appropriate sum to be awarded for those 8 months was $5760, being 8 hours per week for 32 weeks at the rate of $22.50 per hour. The plaintiff has not adduced evidence to the contrary of this position, and in view of that concession by the defendants and in view of the state of the evidence, I propose to allow a sum along these lines, but adjusted to ensure that the maximum rate provided by s 128 of the MAC Act is not exceeded. The adjusted amount for this period is $5757, as calculated in Table I annexed to my reasons.
274. The defendants submitted that thereafter, namely after 17 February 2006, they rely upon the report of Ms O’Dwyer and submit an appropriate amount for the remaining and 176 weeks from 17 February 2006 to the date of the trial is $13,860, being 3.5 hours per week over 176 weeks costed at $22.50 per hour. The period is actually 186 weeks which adjusts the submitted calculation to be $14,647.
275. The defendants further submitted that in the absence of any professional’s qualified assessment of the plaintiff’s care needs, the defendants’ expert, Ms O’Dwyer should be accepted as to the manner in which the claim for past care should be quantified. I should observe that a professionally qualified assessment is not necessarily the required test upon which to base an award of damages of this kind.
276. I consider the defendants’ submission concerning the period of care from 17 February 2006 to the trial to be flawed and based on an incorrect foundation. It is necessary to review the medical and allied evidence to demonstrate that flaw concerning the position of the defendants on the plaintiff’s claim for past care.
277. I consider that the appropriate starting point for an evaluation of the plaintiff’s claim for past domestic assistance is to undertake a survey of the array of the expert views on the subject, in the chronological order in which those views arise.
278. On 17 February 2006, Dr Conrad expressed the opinion that in the event the plaintiff’s daughter would be unable to assist with the heavier part of housework and shopping, the plaintiff would need about 6 hours per week of home care assistance. This was the first time an expert witness had turned their mind to the issue of the plaintiff’s need for domestic assistance.
279. On 24 August 2006, Dr McCombe took a history that the plaintiff could not manage to lift a bag of groceries and she experienced a great deal of difficulty mopping or vacuuming. He expressed no opinion on whether the plaintiff actually needed domestic assistance but this evidence does provide a basis for drawing inferences in that regard.
280. On 19 February 2007, Associate Professor McPhee took a history from the plaintiff of difficulty she experienced with carrying out household chores such as vacuuming, mopping, carrying the groceries. However, he noted that she had an ability to wash up, to cook, to do some washing and to do some hand washing. He noted that it was reasonable to assume the plaintiff would have some incapacity for the most robust and heavy tasks involved in domestic activities. He did not venture an opinion concerning a recommendation or a prescription for domestic assistance for the plaintiff.
281. On 5 March 2007, Dr Jackson noted in the plaintiff a range of impaired activities involving daily living tasks concerning bathing, grooming, dressing, eating, writing and grasping, amongst other things. He made no particular recommendations concerning the provision of domestic care on account of this assessment.
282. On 21 April 2008, Ms O’Dwyer considered that the plaintiff required the provision of an average of 3.5 hours per week of domestic assistance for domestic cleaning, shopping, spring cleaning and gardening.
283. On 29 March 2009, Associate Professor McPhee noted that the plaintiff had some difficulties with activities such as difficulty putting on her bra and carrying light objects such as a 2 litre container of milk but that she was able to do many of the light chores of housework except that vacuuming or lifting groceries was difficult. Again, he made no recommendations concerning the provision of domestic assistance to the plaintiff.
284. On 13 April 2009 Dr Virgona considered that, based on psychological considerations, the plaintiff had no need for domestic assistance.
285. On 29 May 2009, Dr Conrad reiterated his earlier opinion concerning his recommendation of the provision of 6 hours per week of home care assistance for the plaintiff.
286. The foregoing review of the expert evidence tendered in the proceedings reveals a contest between the opinion of Dr Conrad, a surgeon, who recommended the provision of 6 hours per week for domestic assistance to the plaintiff and the opinion of Ms O’Dwyer, an occupational therapist, who recommended the provision of 3.5 hours per week for such assistance.
287. I have concluded that in the context of this array of opinion evidence, I prefer the opinion of Dr Conrad on the issue of the plaintiff’s past care needs. I have reached this conclusion for a number of reasons which follow.
288. First, in outlining his opinion on the issue, Dr Conrad has applied his medical expertise to an assessment of the plaintiff’s care needs. In doing so, his opinion spans a period of some three and a quarter years between 17 February 2006 and 29 May 2009 which is the date of his second report, whereas Ms O’Dwyer’s opinion is anchored at a single point in time, namely 21 February 2008, which was the date of her single examination of the plaintiff.
289. Secondly, since Dr Conrad has had the opportunity of seeing the plaintiff on more than just one occasion over this period of time, I consider he has had a considerable clinical advantage over Ms O’Dwyer in making an assessment of the plaintiff’s care needs.
290. Thirdly, Dr Conrad has clearly applied his medical knowledge to the problem of assessing the plaintiff’s medical state, her capabilities and her limitations when expressing his opinion on the plaintiff’s care needs. In this regard I consider that his vantage point for making that assessment had greater professional breadth and medical insight than did a non-medical assessment such as that undertaken by Ms O’Dwyer, without intending any criticism or disrespect to her.
291. Fourthly, Dr Conrad’s opinion appears to me to be more holistic in the sense that he carried out his assessment in conjunction with an evaluation of the plaintiff’s potential for residual restricted work fitness, a matter that is, in my view, related to the question of capability for undertaking physical activity that had the potential to cause physical discomfort or pain.
292. Fifthly, I feel more able to comfortably rely upon the opinions of Dr Conrad because those opinions have not been relevantly contradicted by any other medical witness who has assessed the plaintiff for the purpose of these proceedings.
293. In these circumstances I have concluded that I prefer the opinion of Dr Conrad to that of Ms O’Dwyer on the question of the appropriate estimation of the plaintiff’s need for past domestic assistance. In conjunction with the little evidence the plaintiff gave on the subject of past care, and the evidence given by the plaintiff’s daughter to the effect that she provided more extensive care during the period in question obviously including other family members, I consider that the opinion of Dr Conrad provides the most reliable basis upon which to make an assessment of how much of the care that was actually provided, as was described by the plaintiff’s daughter, as distinct from the degree of care that was actually needed by the plaintiff. I consider that Dr Conrad’s evidence serves as a reliable guide to the evaluation in this regard.
294. Accordingly, based upon Dr Conrad’s opinion, I consider the claim for past domestic assistance should be assessed on the basis of 6 hours per week over the period of 185 weeks between 17 February 2006 and the time of the trial. The adjusted amount for this period is $25,563, as calculated in the annexed Table II to my reasons.
295. For the foregoing reasons, I reject the plaintiff’s claim for past care in the amount of $81,460 or even the adjusted amount of $94,192. I also reject the defendants’ submission that this care should be assessed in the amount of $19,620. Instead, I allow the aggregate of the amounts in Table I and Table II for the initial 8 months conceded by the defendants but adjusted in the manner I have identified in the sum of $5757, and the amount that I have identified as being the appropriate assessment for the period between 17 February 2006 and the time of the trial, namely, $25,563. These amounts total $31,320. I therefore assess the plaintiff’s entitlement to damages for past domestic assistance, gratuitously provided by family members, in the amount of $31,320.
Future domestic assistance
296. The plaintiff made a claim for the cost of future domestic assistance. This claim was formulated as being for 8 hours per week over the remainder of the plaintiff’s probable life span of 31 years on the 5 per cent tables (x 833.8) without any discount for any vicissitudes, which yields the sum of $233,465.
297. The defendants have submitted that an appropriate allowance for future domestic assistance would be 3.5 hours per week at the rate of $35 per hour over 31 years (x 833.8) but discounted by 5 per cent to reflect submitted likely improvement in the plaintiff’s condition and the independent emergence of care requirements that would arise as a consequence of the ageing process. This calculation yielded the submitted amount of $76,605.
298. The defendants have submitted that the sum allowed for future domestic assistance should be discounted to make an allowance for the consequences of the ageing process in recognition of the fact that the plaintiff had underlying degenerative changes in her spine which may have caused her to have a need for such services in any event. In my view the defendants bear the evidentiary onus for establishing the legitimacy and need for such a discount and, on the evidence in this case, the defendants have failed to adduce that evidence : Watts v Rake [1960] HCA 58; (1960) 108 CLR 158; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164. Accordingly, I decline to apply a discount of the kind submitted by the defendants in the circumstances of this case.
299. I consider that the appropriate method by which to assess the plaintiff’s claim for future domestic assistance is to allow 6 hours per week for such assistance at the agreed cost of $35 per hour, which is the equivalent of $210 per week. That approach is based upon and is consistent with my finding by which I have preferred the evidence of Dr Conrad to the evidence of Ms O’Dwyer, but applying the agreed commercial rate for the future loss calculation instead of the statutory rate pursuant to s 128(4) of the MAC Act. In my view there is no basis within the detail or the preponderance of the evidence to allow a discount to reflect the prospect that the plaintiff’s condition may improve.
300. Accordingly, the projection of $210 per week at 5 per cent over 31 years (x 833.8) yields the sum of $175,098. In accordance with principle, this sum does not require discount on account of possible adverse vicissitudes. I therefore assess the plaintiff’s entitlement to damages for future domestic assistance in the amount of $175,098.
Future treatment
301. The plaintiff made a general claim for the cost of future treatment in the global sum of $20,000. This sum was to cover the cost of consultations with general practitioners, physiotherapy and future psychological treatment. This was analysed as being the approximate equivalent of a projection of $25 per week over the plaintiff’s remaining 31 years or probable life span.
302. In contrast, the defendants submitted that a buffer amount of $3000 would be a sufficient sum to compensate the plaintiff for her need for future treatment. The defendants support that submission by referring to the minimal treatment incurred by the plaintiff to date. In this regard it was submitted that physiotherapy was only given in the months following the injury, and since then there has been very little in the way of treatment for either the physical or the psychological injuries.
303. In my view there are problems associated with each of these submitted approaches.
304. First, neither of the submissions made on behalf of the plaintiff or the defendants take into account the cost of what appears to be a considerable intake of medication. Dr Clark identified the cost of the plaintiff’s need for psychotropic medication at $200 per month. Dr Virgona identified the plaintiff’s intake of Panadeine Forte at between 2 and 6 per day and identified the plaintiff to be taking Stilnox for sleep, Nurofen for pain and diazepam for her back. Neither party has allowed for the cost of any of these medications in their submissions. Apart from Dr Clark’s estimate for psychotropic drugs, no evidence has been adduced as to the cost of these medications.
305. Second, the defendants’ submissions as to the plaintiff’s future treatment costs proceed from a false premise. In submitting that the plaintiff’s future need for physiotherapy should be seen as being unnecessary having regard to the fact that she only received physiotherapy for a few months after her injury, the defendants’ submission fails to have due regard to the unchallenged evidence from within Mr Hewitt’s notes which suggest that physiotherapy treatment, which was medically prescribed, had ceased because the CTP insurer, Allianz, had refused to pay for such treatment. In my view this reveals the defendants’ submissions on future treatment to be afflicted by false assumption and I therefore reject the submission as unreasonable.
306. It is clear on the evidence that the plaintiff should be awarded a sum to cover the cost of future treatment. The difficulty is that there is only limited evidence concerning the costing aspects of the plaintiff’s need for future treatment.
307. She obviously needs to see a general practitioner from time to time if for no other reason than to at least renew and supervise her prescriptions for Panadeine Forte and diazepam, if not other medications, and to possibly refer her to other specialists such as a psychiatrist and / or someone such as Dr McCombe. There is no evidence as to the frequency of the need for, or the cost of, such consultations.
308. Dr Clark has identified the need for future sessions with a psychiatrist every 2 or 3 weeks for 9 months, at $400 per session. The costing for this item ranges between $5200 and $7800 depending upon which variable is selected. The average of these two alternatives is $6500.
309. I have already identified the lack of basis in the evidence to analyse the true cost of the plaintiff’s need for future medications. Dr Clark has identified the cost of medications at $200 per month. It is not clear as to whether this recommendation refers only to psychotropic medications, or whether it also includes painkilling medications. Further, Dr Clark’s view of the period to be allowed medication costs is open to interpretation, namely, indefinitely or for about 2 years. His recommendation in this regard is expressed ambiguously.
310. On the one hand, the medication costs identified by Dr Clark at $200 per month or $46.15 per week, if assumed to be taken indefinitely, when projected at 5 per cent over 31 years (x 833.8) yields the sum of $38,479. On the other hand, if the intention of the recommendation was for 2 years, then $46.15 costed at 5 per cent over 2 years (x 99.4) is $4587. The difference is significant. However, the state of the evidence, and the absence of evidence of the costs of the other medications taken by the plaintiff complicates the task of assessment. Reference to past treatment costs incurred is of no assistance as the total is undifferentiated.
311. In view of the paucity of evidence as to the cost of future treatment, rather than speculate on the likely costs I consider that an appropriate conservative buffer to allow the plaintiff the reasonable cost of intermittent medical consultations for review and prescription renewal, possible referrals, possible physiotherapy treatment, consultations with a psychiatrist and a component for recurring medication costs, is an amount of $15,000. I therefore assess the plaintiff’s entitlement to damages for future treatment expenses in the sum of $15,000.
Past out-of-pocket expenses
312. The plaintiff’s claim for out-of-pocket expenses has been agreed in the sum of $7625. I therefore assess the plaintiff’s damages for out-of-pocket expenses in the sum of $7625.
Summary of damages assessment
313. My assessment of the Plaintiff’s damages is summarised as follows:
(a) Non-economic loss (b) Past loss of earning capacity (c) Future loss of earning capacity (d) Past loss of superannuation (e) Future loss of superannuation (f) Past domestic assistance (g) Future domestic assistance (h) Future treatment (i) Past out-of-pocket expenses Total
E. DISPOSITION & ORDERS
Disposition
314. The plaintiff’s damages are assessed in the amount of $715,687. She is entitled to a judgment in that amount, with costs.
Orders
315. I make the following orders:-
(a) Verdict and judgment for the plaintiff in the sum of $715,687;
(b) The defendants are to pay the plaintiff’s costs on the ordinary basis, unless otherwise ordered;
(d) Liberty to apply on 7 days notice if further orders are required.(c) The exhibits may be returned;
TABLE I
PERIOD WEEKS WEEKLY
s.128(4)
RATEHOURLY
s.128(4)
RATE1. 30.06.2005 to 19.08.2005 7.14 $871.90 $21.80 2. 20.08.2005 to 18.11.2005 12.85 $874.60 $21.87 3. 19.11.2005 to 17.02.2006 12.85 $878.10 $21.95 32.84
TABLE II
PERIOD WEEKS WEEKLY
s.128(4)
RATEHOURLY
s.128(4)
RATE1. 18.02.2006 to 19.05.2006 12.85 $868.90 $21.72 2. 20.05.2006 to 18.08.2006 12.85 $884.00 $22.10 3. 19.08.2006 to 17.11.2006 12.85 $892.30 $22.31 4. 18.11.2006 to 17.02.2007 13.00 $916.10 $22.90 5. 18.02.2007 to 18.05.2007 12.71 $918.90 $22.97 6. 19.05.2007 to 17.08.2007 12.85 $929.70 $23.24 7. 18.08.2007 to 16.11.2007 12.85 $929.30 $23.23 8. 17.11.2007 to 15.02.2008 12.85 $937.80 $23.45 9. 16.02.2008 to 16.05.2008 12.71 $921.60 $23.04 10. 17.05.2008 to 15.08.2008 12.85 $933.50 $23.34 11. 16.08.2008 to 21.11.2008 13.85 $938.50 $23.46 12. 22.11.2008 to 20.02.2009 12.85 $946.40 $23.66 13. 21.02.2009 to 15.05.2009 11.85 $939.00 $23.48 14. 16.05.2009 to 16.09.2009 17.57 $959.90 $24.00 184.49
0
12
2