McPherson v Dowell

[2018] NSWDC 348

District Court

New South Wales

Medium Neutral Citation:	McPherson v Dowell [2018] NSWDC 348
Hearing dates:	19 September 2018 – 20 September 2018; 30 October 2018 – 1 November 2018
Date of orders:	21 November 2018
Decision date:	21 November 2018
Jurisdiction:	Civil
Before:	Dicker SC DCJ
Decision:	(1) Judgment for the plaintiff against the defendant. (2) I reserve the question of costs for further submission or agreement. (3) The parties are to bring in agreed short minutes of order within 14 days reflecting these reasons for decision. (4) The parties have liberty to apply to the Associate to Dicker DCJ on three business days’ notice. (5) Exhibits to be returned after 28 days.
Catchwords:	Torts – negligence – motor vehicle accident – plaintiff with very extensive prior medical history – serious injury to left knee about two weeks prior to subject accident – serious injury after motor vehicle accident - proper approach – liability not in issue – contributory negligence in issue – whether substantial discount in damages warranted
Legislation Cited:	Motor Accidents Compensation Act 1999 (NSW) Civil Liability Act 2002 (NSW)
Cases Cited:	Allen v Chadwick (2015) 256 CLR 148 Croucher v Cachia [2016] NSWCA 132 Cubillo v Commonwealth of Australia (No 2) [2000] FCA 1084; (2000) 103 FCR 1 Curtis v Harden Shire Council [2014] NSWCA 314 Dal v Chol [2018] NSWCA 219 Danckert v Tonkin [2015] NSWSC 1570 Gulic v Angelovski [2018] NSWCA 161 Hyjer v Lopes [2018] NSWDC 8 Jay v Baker [2018] NSWDC 270 Malec v JC Hutton [1990] HCA 20; (1990) 169 CLR 638 Metaxoulis v McDonalds Australia Ltd [2015] NSWCA 95 Metro North Hospital and Health Service v Pierce [2018] NSWCA 11 Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164 Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 Serrao v Cornelius (No 2) [2016] NSWCA 231 Smith v Zhang [2012] NSWCA 142 Strong v Woolworths Ltd (2012) 246 CLR 182 Trazivuc v Motor Accidents Authority [2010] NSWCA 287 Wallace v Kam (2013) 250 CLR 375 Watts v Rake [1960] HCA 58; (1960) 108 CLR 158
Category:	Principal judgment
Parties:	Gael McPherson (Plaintiff) Margaret Dowell (Defendant)
Representation:	Counsel: K Balendra (Plaintiff) J Catsanos (Defendant)   Solicitors: Slater & Gordon (Plaintiff) McCabe Curwood (Defendant)
File Number(s):	2018/00009544

Judgment

1. In these proceedings, the plaintiff, Ms Gael McPherson, brings a claim for damages in negligence under the Motor Accidents Compensation Act 1999 (NSW) (“MACA”) for injuries allegedly sustained in a motor vehicle accident which occurred on 26 April 2013 in Collins Street in Kiama in New South Wales. It is alleged by the plaintiff that she was struck by a car driven by the defendant who was reversing out of an angled car space on the side of the street as is typical in many New South Wales country towns. Ms McPherson asserts that after she was struck by the car on her right side she then fell to her right, sustaining a number of injuries.

2. Breach of a duty of care is not in issue and has been admitted by the defendant on the pleadings. However, contributory negligence by the plaintiff is claimed by the defendant.

3. The plaintiff has a very extensive prior medical history. The relevance of that history to the plaintiff’s continuing disabilities and any damages awarded is central to the issues to be considered by the court. The plaintiff asserts that she was injured in the motor vehicle accident and has a number of serious continuing disabilities as a result. The defendant asserts that the plaintiff has not suffered any ongoing disabilities arising from the accident. It is asserted that all of the plaintiff’s problems can be blamed on her prior medical history or accidents which have occurred later.

The pleadings

4. The plaintiff relies on a Statement of Claim filed on 10 January 2018. The plaintiff pleads that on 26 April 2013 she was crossing Collins Street in Kiama and was struck by the defendant’s reversing vehicle. It is pleaded that as a result of the incident the plaintiff suffered injury, loss and damage. The particulars of negligence pleaded include a failure to keep a proper lookout, a failure to brake first to avoid the collision and failing to steer or manoeuvre the defendant’s vehicle so as to avoid colliding with the plaintiff.

5. A Statement of Particulars was also filed on 10 January 2018. Injuries to the left shoulder, left knee, right hip, neck, right thumb, thoracic spine, lumbar spine and psychological injuries are particularised. The disabilities said to arise from the injuries are extremely extensive and include pain and discomfort in the lower back, right hip, right knee, right upper leg, as well as restriction of movement in the right leg and knee and chronic pain which varies in intensity from moderate to severe. Restrictions in undertaking most tasks are also particularised.

6. A Defence was filed on 28 March 2018. A breach of duty of care is admitted (paragraph 2) but the defendant denies that a breach of duty of care caused any injury, loss or damage. Contributory negligence is also relied upon. This Defence will be considered further below.

7. The plaintiff filed a Schedule of Damages on 14 September 2018. The plaintiff does not claim non-economic loss. The plaintiff claims damages in that schedule for:

1. Past out-of-pocket expenses;

2. Future out-of-pocket expenses;

3. Future care and assistance, including commercial domestic assistance for four hours a week, monthly car washing and for seven hours per week for caring for horses owned by the plaintiff. The latter claim relating to caring for horses was eventually not pressed.

Defendant's Statement of Issues

8. The defendant handed up a Statement of Issues at the hearing. This lists the issues in dispute as follows:

“LIABILITY

1.  The circumstances of the subject accident.

2.  Whether and if so to what extent, the defendant's breach of duty was causative of injury.

3.  Whether the plaintiff was guilty of contributory negligence and if so, the appropriate reduction to be applied

QUANTUM

4.  The nature and extent of any injuries and disabilities caused by the subject accident.

5.  The nature and extent of any pre-accident medical conditions suffered by the plaintiff and how they ought be taken into account when assessing damages in the context of the principles discussed in Seltsam Pty Limited v Ghaleb [2005] NSWCA 208 at [93] -[109].

6.  The nature and extent of any post-accident injuries and conditions suffered by the plaintiff and whether they constitute a Novus Actus Interveniens, or alternatively how they ought be taken into account when assessing damages.

7.  The plaintiff’s most likely future circumstances but for the accident.

8.  Whether and if so, to what extent the treatment and out of pocket expenses claimed to date and into the future are:

8.1  causally related to the subject accident.

8.2  reasonable and necessary.

9.  Whether the plaintiff requires future care and if so:

9.1  what is the proper measure of the plaintiffs need for care.

9.2  whether the claim for care of horses is compensable.

9.3  whether and to what extent the need for care is causally related to the subject accident.

9.4  whether it is appropriate to make an award of damages for care on a commercial basis.”

9. As indicated above, the plaintiff has an extensive prior medical history. This will need to be considered in some detail to determine both the plaintiff's medical conditions prior to the accident and her most likely position but for the accident.

Evidence for the plaintiff

Oral evidence of the plaintiff

10. The plaintiff gave oral evidence over a number of days. The plaintiff was a loquacious and expansive historian. She tended to give lengthy answers to many questions and provided much irrelevant information and some clear exaggeration. The plaintiff appeared to be an intelligent woman and gave her evidence fairly confidently. I will make more comments on the plaintiff's evidence and its reliability further below.

11. The plaintiff gave evidence that she lived in Nowra, was retired and was a horse keeper. She was born in July 1949 which made her 69 years old at the time of the final trial and 63 at the time of the motor vehicle accident in question. Ms McPherson said she was single, lived alone and did not have any children. She said she lived in a Department of Housing property.

12. Ms McPherson said that she left school at 17 and commenced work at Civil and Civic as a record-keeper handling all the drawings coming from the architects and engineers. She said she stayed at Civil and Civic for between one and a half and two years. Thereafter, Ms McPherson said that she moved to Woolworths to train as a buyer. Ms McPherson said that she worked as a buyer for Woolworths until she was involved in a very serious motor vehicle accident in December 1972. She was off work for about eight months: T8.2.

13. The plaintiff said that she “died a few times” after the 1972 motor vehicle accident and severely injured her face by striking it on the steering wheel of the car. Ms McPherson said that she had “about 80 fractures, like shatter fractures, mostly in the skull” in the accident: T8.24.

14. Ms McPherson said she was very fit at the time, having been involved in competitive rowing and in show jumping. The plaintiff asserted that she “repaired literally within five days even where a steering wheel had gone through my face. So they pulled everything out without anaesthetic, pulled my face back out”: T8.17. Clearly this was an exaggeration as the medical evidence showed.

15. The plaintiff said that she made a motor accident claim in 1976 and received damages. Although the plaintiff denied any brain damage in the accident, she stated that doctors had found that she had a “brain fluid leak” which was repaired by Dr Noel Dan. The plaintiff said that she also had her teeth reconstructed and the insertion of crowns.

16. The plaintiff said that she was invited back to work at Woolworths and had further facial surgery whilst working there. The plaintiff said that she has always been involved in breeding and showing of horses.

17. After leaving Woolworths, the plaintiff said she had various positions including working for a family business, for Mercedes Benz and for a barrister in Warrawong. Ms McPherson said the last time she was in paid employment was in about June 2010: T10.41.

18. Ms McPherson said that in 2001 she started receiving a disability pension from Centrelink: T11.34-.50; T12.16. Ms McPherson said that she understood that the disability pension was because of a brain fluid leak into a sinus cavity which seems to be a problem which initially arose out of the 1972 accident: T12.11.

19. Ms McPherson gave some evidence about her previous residences. She said she was now living in Nowra at a Department of Housing property fitted with disability aids: T12.33. Previously, she had lived in various properties in Nowra, Bomaderry, and at Jaspers Brush at a winery. Ms McPherson said she moved a caravan and her horses to the winery at Jaspers Brush in April 2010. She stayed in the caravan on weekends. Ms McPherson gave evidence that in March or April 2013 she moved permanently into her caravan there and was involved in breeding horses. At one stage she had up to 40 horses. Because of work she did at the Jaspers Brush winery, she did not have to pay agistment fees to have the horses there or rent: T13.40-T14.50.

20. Ms McPherson gave evidence in relation to a significant accident which she had in early April 2013. Later evidence suggested this was on or slightly before 10 April 2013. She stated that she was coming out of a shed carrying some objects and she slipped and fell down between some pallets. Ms McPherson said she struck her right elbow on a pallet and “smashed my left leg”: T17.39. Ms McPherson said that she “could see my leg in two pieces at the knee, like looking at each other”. The plaintiff said she was in “agony” and called an ambulance which collected her and took her to hospital. The ambulance staff, according to the plaintiff, gave her morphine for the pain. The plaintiff said that at the hospital she was placed in a full leg brace on the left leg (described elsewhere as a Zimmer splint) and provided with two crutches and told to attend the Wollongong Hospital outpatients’ fracture clinic a few weeks thereafter: T18.2; T18.45-T19.30. Despite having the leg brace and the crutches, the plaintiff said that she was still able to do her shopping, drive vehicles and feed her horses: T19.48.

21. The plaintiff then gave evidence in relation to the motor vehicle accident, the subject of the proceedings, which occurred on 26 April 2013. The plaintiff said she had to get CTP insurance on her car and went to Kiama. She went to the NRMA and paid for the insurance. She was walking on the left crutch with the left leg brace.

22. The plaintiff gave detailed evidence in relation to the accident. She said that an elderly gentleman said he wanted to help her cross the road after she had paid her insurance. As they were walking across the road, the defendant reversed her vehicle. The plaintiff claimed that the defendant reversed in three stages looking in the rear mirror and turning to look towards the rear at her over her shoulder. The plaintiff said that she was initially moving with the gentleman an adequate distance away from the defendant's car before it began reversing. The plaintiff drew the path of the reversing vehicle on a diagram which became Exhibit B in the proceedings.

23. The plaintiff claimed that as the defendant's car was reversing she struck it on the rear of the car and the side whilst yelling out. However, it kept reversing and she pushed the elderly man who was accompanying her away with her left arm injuring her shoulder.

24. The plaintiff said that the defendant's vehicle struck her on the point of her right hip: T30.46; T39.22. The plaintiff said that she leaned back to avoid the collision and fell down to her right side. The parts of her body which hit the ground were the right side of her knee, her right hip, her right shoulder and then her head hit the ground at the back of the right side: T34.38; T34.48; T35.2; and T35.28-T36.5. The plaintiff said that she went “black” like a black screen and just lay there. People came over to her. She said she felt pain, as she was falling, in the right ankle and right knee. The plaintiff said that after she had fallen she could not feel her left leg, which had previously been very painful because of her prior accident: T37.19. The plaintiff said that prior to the accident, her left leg was “absolute hell”, causing her agony with pain “24/7. I couldn't do anything”: T37.24-.35.

25. The plaintiff said that people helped her get up on her crutch and complete crossing the road. She was placed in a chair and said she was in a daze and felt numb below the neck. People called the police and ambulance but the ambulance could not attend because of other commitments. In due course, a senior ambulance officer attended. The defendant driver sat next to the plaintiff until the police arrived. The plaintiff claimed that the defendant told people to “go away” and also said: “Oh no, it doesn’t matter because she’s already got a broken leg so it doesn’t matter what I did to her today”: T38.26-.43.

26. The plaintiff said that as she did not feel any pain, she took her left leg brace off to drive after the accident. She proceeded to get a pink slip for her car and then drive to the fracture clinic at Wollongong Hospital for an appointment. Although the plaintiff said that she could not feel any pain, she did not feel very well.

27. When she arrived at Wollongong Hospital, the plaintiff said she parked her car and put the brace back on her left leg. She said she felt sick and numb and thought she may pass out. It took her some time to cross the road and go to the Emergency Department of the hospital. Staff there told her she had to attend the fracture clinic first and she walked there with difficulty. The doctor was still at the fracture clinic.

28. The plaintiff said that the doctor was aware of the accident earlier in Kiama.

29. The doctor looked at her left leg. The doctor then said that the plaintiff could go to the Emergency Department. The plaintiff said that she could not make it to there, although she was not feeling any pain, and she was placed in a wheelchair. At this time, the plaintiff felt pain in her neck towards the back. She was placed in a neck brace and x-rays were undertaken.

30. The plaintiff said that she was told that she had not broken her neck. By this time, she was starting to feel pain and could feel her left leg and feel extreme pain in her right leg. The plaintiff described the pain as going all the way down her right leg from the spine. She said she was twitching in the arms and had pain on her right side including in her leg from the spine to her feet. The plaintiff said that she was given medication to take in the Emergency Department and after that drove home in her vehicle: T43; T45. The plaintiff said that when she arrived home she found it extremely difficult to get into the caravan up the steps and she had pain in her right side. She stayed in an armchair for some time and was sweating profusely and in agony: T45.38. The plaintiff said that her left leg was still a problem but it was nowhere near as painful as her right side: T46.2.

31. The plaintiff gave evidence that someone brought her food but she was able to look after her horses including feeding them, although the plaintiff qualified that by saying that she was able to look after the 40 horses after the accident “barely”: T46.16; T46.28-.47. The plaintiff claimed that despite “smashing” her left leg prior to the accident she was able to go shopping and look after her horses because her leg was in a brace and she had crutches: T47. After the car accident the plaintiff said that she could not use both crutches because she had hurt her left shoulder and right hand which meant that she could not grip objects.

32. The plaintiff said that she saw her general practitioner some days after the accident and he did not recommend any treatment. She said she was still on prescription painkillers at this time: T48.36.

33. The plaintiff said that there was a difference in her left leg after the accident because it was difficult for her undertaking physiotherapy because she could not stand on her right leg to assist in physiotherapy to the left leg: T49.17; T50.1-.26.

34. The plaintiff gave evidence that her right side “dropped” after the accident with her right leg giving way and her falling over: T50.25-.49. The plaintiff said prior to the motor vehicle accident she had no problem with her right side giving way. This claim will be considered in detail further below.

35. The plaintiff gave evidence of a further motor vehicle accident which occurred in late June 2013 when a branch from a tree broke off and struck her car. The plaintiff said her motor vehicle was significantly damaged, she was taken to hospital and undertook x-rays but there were no new injuries to her, apart from being shaken and having a sore neck: T53.11-.29.

36. After the motor vehicle accident in June 2013, the plaintiff said that she got lifts from people, used community transport and bought another car after travelling to Sydney. She said she was able to drive as she had a new limited motion leg brace placed on her left leg: T54.11.

37. The plaintiff said that after the April 2013 accident, people assisted her with food and cleaning up the floor of her caravan if the dog had not eaten all its dinner: T54-55. The plaintiff said she had difficulty bending over at this time: T55.10. The plaintiff also said that she had difficulty lifting and could not use her left arm much: T55.24. The plaintiff confirmed that the first time she had visited the Wollongong Hospital fracture clinic, following her earlier April 2013 fall, was on the day of the accident.

38. Ms McPherson was then asked a number of questions in relation to her activities since the motor vehicle accident. Prior to the injury to her left leg on 10 April 2013, the plaintiff said that she was able to do all things including looking after her horses, bending over and lifting. The activities with the horses included feeding them, putting rugs on them, trimming and filing their feet and training them. In addition, the plaintiff undertook fencing at the Jaspers Brush vineyard and said that she was “feeling fantastic”. The plaintiff also said that she was involved in “showing” the horses at horse shows. She said she had been involved in showing horses since 2003.

10. After the accident on 26 April 2013, the plaintiff said that her physical capabilities changed considerably. She was not able to show her horses because she had a tendency to fall down. The plaintiff also said that she could not put pressure on her left shoulder or her right hand and had to alter her activities. The plaintiff said that she could not put some rugs on the horses, could not groom them and could not deal with trimming and filing their feet.

11. The plaintiff gave evidence that at the time of the April 2013 motor vehicle accident she was managing about 40 horses. After the motor vehicle accident she was still able to deal with them because it was the breeding season and the owners of mares came to see their horses and their foals. She said she was able to feed the horses by pushing food through the fence and managing the hose to give them water. The plaintiff expressly confirmed that she was able to undertake feeding and watering of the horses after the motor vehicle accident: T65.47. The plaintiff said that she now has four stallions and five mares left. She said that she fed them by the fence and carried the feed for the horses in the back of her motor vehicle. She also said that she had water containers in the back of her vehicle. She said she had to continue looking after the horses despite her injury: T67.1-.17. The plaintiff also noted that she had a number of falls on the right side because she said she could not put pressure on her back and her left arm. She claimed that these problems did not exist prior to the motor vehicle accident.

12. In relation to the position after she injured her left leg, the plaintiff said she was able to do her own shopping and drive her vehicle as she had a left leg brace on. She said she was “full of pain pills” at the time: T80.11. After the left leg injury and before the motor vehicle accident, the plaintiff said it was impossible for her to undertake domestic tasks: T78.23. She said she was struggling to get to the toilet and the shower was out of the caravan. She said that she used a bucket for toiletry purposes in that period.

13. The plaintiff then gave evidence in relation to her domestic needs since the motor vehicle accident in April 2013. The plaintiff said that she now lived in a one-bedroom housing commission unit which was on one level and had a bathroom and fitted hold on rails within the unit. The plaintiff said that she could not mop or vacuum. To use a vacuum cleaner caused her “agony”, as she could not push it: T77.24. The main problem was pain in the right leg. She said she was not able to clean the bathroom at the flat and described the bathroom floor as “filthy”: T80.25. She said a government agency had tried to get domestic cleaning assistance for her without success. The plaintiff said that it took her up to two hours to get out of bed each day and parts of her body were in agony such as her back, left shoulder and right hand and thumb. She said that she was in agony pushing a shopping trolley whilst doing shopping and had fallen over a number of times in the Coles carpark: T79.43. The plaintiff said she needed help with shopping and cleaning due to the pain and the difficulty pushing a shopping trolley and a mop and vacuum cleaner: T81.8.

14. In relation to laundry, the plaintiff said she put her clothes on cleaning rails to dry. In relation to bed making, the plaintiff said that she never made her bed, as her right knee was too painful. In relation to changing bedding, the plaintiff said she did this once every two weeks and would like to do it more often as she often spilled coffee on her bed and said she was dropping things a lot.

15. The plaintiff said that there was no-one that she could rely on to assist her with her domestic duties. The plaintiff gave evidence that she could not afford to pay anyone for domestic assistance after paying her car, rent, medication expenses and the expenses of feeding her horses. The plaintiff said that she wore a back brace (which she wore giving evidence) which she said “holds me up”. She said she had a broken rib and fractures in her back which also led to her falling. She said she had been informed by doctors that there was no available surgery for her back pain.

16. In relation to physiotherapy, the plaintiff said she was having physiotherapy for her left leg but after the motor vehicle accident her right leg could not support her left leg and she ceased physiotherapy.

17. In relation to medication, the plaintiff said that she now took Endep at night as well as an antidepressant and Ibuprofen which was an anti-inflammatory. She said that paracetamol and Endone provided no relief for her. She said she was taking six to eight Ibuprofen tablets a day and four on a good day, but this was causing problems with her blood pressure. Prior to the motor vehicle accident and after the accident to her left leg, the plaintiff said she was taking Ibuprofen and paracetamol: T86.45.

18. The plaintiff said that the motor vehicle accident had affected her mood. She said she was smiling less and was often sad and depressed. She said she did not go swimming, could not walk very far and could not go sailing. She said this had also affected personal relationships.

19. The plaintiff was subject to extensive cross-examination by counsel for the defendant. Much of this cross-examination was focused on the medical condition of the plaintiff in the 10 years prior to the motor vehicle accident in April 2013. The plaintiff initially gave evidence that prior to 10 April 2013 she was healthy and in relation to physical restrictions and problems, she limited those primarily to dental problems: T89.41-T90.2. When specifically asked whether she had physical restrictions or problems, the plaintiff said that she was the healthiest that she had been in decades.

20. The plaintiff confirmed that after her 1972 motor vehicle accident she had received treatment from Dr Noel Dan, neurosurgeon, in relation to a leak of cerebrospinal fluid (“CSF”).

21. The plaintiff was then asked detailed questions in relation to medical records concerning her health for the 14 year period up to 10 April 2013. The areas on which the plaintiff was cross-examined included the following:

1. The plaintiff confirmed that in February 2003, upon referral from Dr Dan, she had Marcaine injections in her back at the L4/5 level on both sides. The plaintiff claimed that she had “wrecked” her back and that the injections had “fixed it up”: T90.12. When asked whether her L4/L5 level was problematic for her then, the plaintiff claimed that she was doing a lot of physical work and felt great after the injections: see Exhibit 1 page 233 for Dr Houang’s report;

2. The plaintiff was asked about motor vehicle accidents after 1972. She said she was involved in a rear end collision but could not recall having any real problems. She also could not recall making a claim for damages arising from the collision.

The plaintiff was asked questions about the matters referred to in a 29 September 2004 report from Dr Dan to Chegwidden, solicitors: Exhibit 1 page 239. Dr Dan stated in his report: “The right side of the low back and hip hurts most of all which troubles her since the car smash of 7.9.99. Cortisone injections have helped”.

It was put to the plaintiff that she had suffered low back pain for five years since the 1999 motor vehicle accident. The plaintiff claimed that she understood that she had a bundle of nerves and that when she ate it pressed on the nerves. This evidence was confusing. The plaintiff confirmed that she told Dr Dan that she had low back pain and hip pain.

Dr Dan continued in his report: “Once her other activities allow, I would like to arrange for her to have an L4/5 Marcaine block as a diagnostic measure. She was concerned because of spending fifteen months since the car smash basically bedridden due to the back pain. She had also experienced urinary incontinence since the smash and she attributed that part to being struck in the abdomen”: Exhibit 1 page 240.

The plaintiff agreed that she had been “practically” bedridden for 15 months since the accident and said she had been doing too much then. However, she said the pain was due to internal pain not back pain.

The plaintiff could not recall being referred for radiological investigations but did agree that as at September 2004 she had had low back pain over an extended period of time leading to facet joint block injections. Despite this, the plaintiff denied experiencing a back problem for some years and said it was because of “internal scar tissue” leading to pain: T93.11.

Also in his 29 September 2004 report, Dr Dan said:

“As you will note from the material above I had the history of the assault in August 2001 related to me by Ms Macpherson. Whilst telling me she was more concerned about other areas rather than the left arm shoulder and wrist primarily, although referral to the physiotherapist was made by me because of the symptoms there. I note that she dates the symptoms from the time of the assault on 15.8.01.

From all the information, including the physiotherapists report, Ms Macpherson has suffered an injury to the left upper limb at the time of the home invasion and has had ongoing symptoms thereafter.” Exhibit 1 page 241

The plaintiff described herself as “super fit”: T94.6. She said that she got over the restrictions at the time and it did not cause her pain like now. She recalled having problems with her left shoulder and said that she “got over it”. She also said that she had problems with her left upper arm for a number of years but it was only soft tissue and she described it as trivial: T95.24. The plaintiff agreed that she had symptoms in her left shoulder: see T95.21; Exhibit 1 pages 239-241;

3. The plaintiff was asked about a consultation with Dr Dan on 3 November 2004. He stated in a report dated 5 November 2004 (Exhibit 1 page 228) as follows:

“She had a lot of aching in the interscapular region and in the low back where it spread across. She was falling regularly. The facet blocks had worked for a period of time and she was keen to have them repeated. We have therefore requested a repeat of the bilateral L4/5 facet blocks.

She had pain in the right groin spreading to the knee anteriorly … She indicated that it had been there since the 1999 car smash. I did suggest nerve conduction studies but she was a little hesitant as she felt the pain was coming from the hip which could be so …

She was having increasing problems with her foot and finding it harder to walk. The second toe was angled medially and she had the prominent bunion. She tended to roll over on the outside of the foot."

The plaintiff confirmed that as at November 2004 she had pain in the shoulders and the low back but said that she got over it. She also confirmed that she was falling regularly but blamed a virus. She confirmed that she had further facet block injections. In relation to pain in the right groin spreading to the knee, the plaintiff confirmed this but blamed blood poisoning. She could not recall complaining of pain in the right groin spreading to the knee for five years since the 1999 car accident. She also could not recall problems with her foot: Exhibit 1 page 228;

4. The plaintiff was asked about a consultation with Dr Dan in November 2006. In a report dated 2 November 2006 (Exhibit 1 page 223), Dr Dan said the following in relation to the plaintiff's complaints following an assault:

“Her neck is bad and she feels as if she has ants crawling over her shoulders. She has a left hemi-cranial headache which could be the old occipital neuralgic headache but seems more likely on this occasion to be related to direct trauma to the supraorbital nerve

…

I am delighted that she had a great result from the L4/5 facet blocks and we have arranged for her to repeat those”: Exhibit 1 page 223.”

5. The plaintiff said that in the assault in question, her head was knocked to the right and she had muscle strain in her neck. The plaintiff confirmed that she had problems with her neck now but said these were different to the problems which she had earlier with her neck in 2006. She said she had good health in relation to her neck prior to the motor vehicle accident on 26 April 2013: T98-99. She said the sensation of ants crawling over her neck went away some time ago and now she had numbness and problems with her neck: T99.28;

6. The plaintiff confirmed that she had problems in both legs in March 2006 following her involvement in a robbery incident in February 2006: T100.6. Dr Dan said in a report dated 27 March 2006 as follows:

“She told me how she had undergone a further robbery on 19.2.06 and whilst resisting her left leg was pressured and a dryer fell onto her left leg injuring the ankle. As a result she now has severe pain in the left leg as well as the right … She has pain in the left groin …

The L4/5 facet blocks performed on 4.11.04 helped her for some time

…

She is tender in the interscapular and high lumbar area”: Exhibit 1 page 224.

The plaintiff described the problems in both legs in March 2006 in relation to which she was complaining to Dr Dan as “relatively minor”: T100.27. She said that she got over the pain in her legs;

7. The plaintiff was then asked about a consultation with Dr Dan in November 2007. Dr Dan stated in a report dated 7 November 2007:

“She also fell backwards [during an assault] into a hole in the concrete in which she damaged her hands but had extensive bruising on the neck and headaches. She had pain from the neck to the tailbone and also “across the kidneys”. … She still tends her horses on alternate days and carries 2kg buckets of feed to them.

…

She is having difficulty lifting off with her leg to mount the horse and she stands on a milk crate and still has difficulties.

…

She was complaining of tenderness in the interscapular and mid thoracic region and the adjacent muscles …”

The plaintiff confirmed the fall. She said that she had jarring in the neck and could not recall extensive bruising to the neck and headaches. She said she did recall pain from the neck to the tailbone and radiating across her kidneys and said she wanted to be checked out. When it was put to the plaintiff that the November 2007 fall was a serious injury, the plaintiff said it was “just jarring” and nothing was broken. When it was put to the plaintiff that in 2007 she had back pain she said that she had “internal pain”. After further questioning, the plaintiff confirmed that she told Dr Dan in November 2007 that she had a sore back (T103.34) and needed to have injections because of the pain: Exhibit 1 page 220;

8. When it was put to the plaintiff that she told Dr Dan in November 2008 that she had pain in the back leading to bilateral L4/5 facet blocks, the plaintiff said that she had pain in the back through hard work: T104.4; Exhibit 1 page 211. The plaintiff said she was extensively overweight at the time but confirmed that she wanted the facet blocks to assist her with her pain. She agreed that she was regularly seeing Dr Dan for referral for facet blocks for lower back pain: see Exhibit 1 page 211;

9. The plaintiff agreed that her general practitioner in 2010 was Dr Iqbal. It was suggested to the plaintiff that in March 2010 Dr Iqbal referred her to a physiotherapist in relation to pains “in her hands, neck, right shoulder, and elbows, with some clicking and stiffness”: Exhibit 1 page 203. The plaintiff said that while she did not recall this, it was probably correct, but said she was doing a lot of heavy work at the time and the problems went. She denied that the problems were persisting problems in 2010. However, Dr Iqbal on 20 May 2010 referred her to Dr Manohar a pain specialist for opinion and management in relation to “her alleged multiple injuries, bruises and resulting persistent pains”: Exhibit 1 page 168. The plaintiff said that this was a result of deep bruises caused by an assault. She said the name of Dr Manohar was vaguely familiar to her. She said that she doubted that she had physiotherapy because there were no physiotherapists at the time locally. The plaintiff did not deny that she was seeing Dr Manohar for pain management in Sydney at the time: see Exhibit 1 page 78 for the entry for 22 February 2011;

10. Ms McPherson was asked whether she saw Dr Ghani on 1 November 2011 complaining of left leg pain, hip sciatica and back pain. The plaintiff confirmed this and said that she had fallen over in the mud. When it was suggested to the plaintiff that for eight years she had been regularly complaining to medical practitioners in relation to back, leg and neck pain, the plaintiff confirmed this including that she had been referred for x-rays but said that the complaints were “minor” and not like her pains which she was experiencing now: T108;

11. The plaintiff was asked whether in February 2012 she was complaining to Dr Ghani in relation to a right hand injury: T108.22. The plaintiff confirmed this and she appeared to recall that she had squashed her fingers and had a “fluid bulge” with them;

12. The plaintiff was taken to an entry in Dr Ghani's notes for November 2012. She was asked whether she had complained to Dr Ghani in relation to low back pain and left leg numbness. The plaintiff said she did not remember this: T109.35; Exhibit 1 page 73;

13. The plaintiff was asked about a referral by Dr Ghani on 5 November 2012 for an x-ray of her whole spine following an alleged chronic recurring problem of low back pain. The plaintiff said this was just to check out her spine: T110.6. She denied “necessarily” complaining of pain in the spine. However, she did confirm of complaining of low back pain due to a lot of heavy work at the time: T110.37. She denied problems falling over in the paddocks in November 2012: see T110.45; Exhibit 1 page 191;

14. The plaintiff was asked about a referral from Dr Ghani in November 2012 to Dr Houang for facet joint block injections at the L4/5 level on both sides. The plaintiff confirmed this and said that she had “strained” herself. She also confirmed that Dr Houang had been involved in facet joint injections since 2003. She described the pain as being manageable and included back pain radiating down the left leg: T111-2; Exhibit 1 page 181;

15. The plaintiff could not recall seeing Dr Manohar, pain physician, in November 2012: T112.10. Dr Manohar stated in his report dated 28 November 2012: “She now complains of neck pain extending down the left arm. She has chest pain and pain in the lumbar region extending down the leg”: see Exhibit 1 page 180.

The plaintiff said she was doing heavy work and the facet joint injections fixed her pain;

16. The plaintiff confirmed that in December 2012 she was referred for bone density checks in the neck and lumbar spine but could not recall whether this related to symptoms in the low back. She said she was pretty fit prior to the motor vehicle accident, was in good shape and could walk 8km each day. She denied persisting ongoing problems with her back and said that they were minor compared to the problems which she had now: T113-4;

17. The plaintiff was asked whether she complained to Dr Ghani in March 2013 in relation to recurrent pain in the low back and that she was having repeated cortisone injections: Exhibit 1 page 70. The plaintiff said that she did not recall this but said it may have related to her back being sore as she was moving house at the time. She did confirm that she was having pain in her left leg and back at the time as she was doing a lot of work and she described it is attending Dr Ghani for “maintenance” as she was “really sore’: T115.6-.49.

51. The plaintiff was then taken to the fall which she had on 10 April 2013 in which she had injured her left leg. The plaintiff confirmed that she had hurt her leg on 10 April 2013 when she fell. She said she “smashed” her left leg: T116.29. The plaintiff confirmed that she saw Dr Ghani on 16 April 2013 in relation to her fall: see T117.19; Exhibit 1 page 70.

52. The plaintiff was taken to the records of Shoalhaven Hospital to which she was transported by ambulance on 10 April 2013. The entries in the hospital records referred to “twisting injury to left knee on Monday”, “C/O left thumb sprain, bilat wrist ankle and knee sprain”, “chronic lower back problems - known to neuro - due for r/v next week”: Exhibit 1 page 196.

51. The plaintiff confirmed that she injured her left knee, left thumb and sprained her wrist and ankle in the fall. She said the injuries to the left thumb and wrists were minor and that in relation to her ankles she landed on the left leg. The plaintiff said that she “smashed” her left knee and might have had minor bruising, she believed, to her right knee: T118.29. She described the medical staff as “over emphasising” to say that she had chronic lower back problems: T118.35. She said that she did not recall complaining of long term back problems to the hospital staff or the fact that she was to be reviewed for back problems at about that time: T119.12. When it was put to her that her evidence that she had no back problems prior to the motor vehicle accident was simply not true, the plaintiff said that she was very fit at the time of the 10 April 2013 accident: T120.

52. The plaintiff was then asked about her injuries in the 26 April 2013 motor vehicle accident, the subject of the proceedings. The plaintiff confirmed that she did not experience pain immediately except when she was falling and then in her ankle and knee, as she felt numb when she was assisted to her feet following the accident: T121-122. She confirmed that she said to the ambulance officer who attended that she was “perfectly okay” as she could not feel any pain. The plaintiff confirmed that police attended. The plaintiff was asked whether she told the attending police that she had no new injuries as a result of the collision. The plaintiff said probably as she could not feel anything: T122.34; see Exhibit C page 44. The plaintiff confirmed that it took police about 1 1/2 hours to attend and when they left she had no pain including in the left leg.

53. The plaintiff confirmed that after the motor vehicle accident she left in her four-wheel drive to travel to Oak Flats to obtain a pink slip for her car and then drove to Wollongong Hospital: T125. She denied that she first went to Nowra Hospital as appears in the report of the defendant’s medico-legal expert Dr Lowy. The plaintiff could not recall only attending the Accident and Emergency Department of Wollongong Hospital at 5:10pm on 26 April 2013. She did say that she took some time to park her car, go to the NRMA office and then attend the hospital. She confirmed again that at the time she had no pain: see Exhibit C page 152. The plaintiff confirmed that she first had to attend the fracture clinic as Dr Stackpool was still there.

54. The plaintiff was asked whether in relation to her left knee injury, she stated to hospital staff that the left knee had given way multiple times since she injured it. The plaintiff confirmed this and said that it was in “two pieces”. The plaintiff said that her left leg had been unstable prior to the motor vehicle accident and after the fall but she had a brace on the left leg due to this instability. She denied that the left leg giving way had led to falls: cf Exhibit C page 174. The plaintiff confirmed though, that she had a different brace on her left leg now permanently to provide her with stability. She confirmed that she wore the brace all the time: T130.30.

55. The plaintiff was then asked about her complaints when she attended the Wollongong Hospital Emergency Department on 26 April 2013. The plaintiff denied that she told the Emergency Department staff that she had been walking around for six hours. She agreed that she said that she had been doing her errands for the day after the accident and had complained of neck and hip pain: Exhibit C page 158. The plaintiff could not recall complaining of left shoulder pain but could recall complaining about tenderness in her neck: Exhibit C page 160. The plaintiff was asked questions about the Wollongong Hospital notes which were to the following effect:

“Pain assessment: Pt states pain in lower back, neck tenderness, left shoulder pain all 2/10.

Other relevant information: Pt has sharp pin like pain radiating down left arm into fingers, full sensation grazes to hands”: Exhibit C page 160.

58. The plaintiff said that she was numb from the neck down as if she was anaesthetised and this may have explained the complaints of low grade pain: T132.9. She said the pain came on while she was in the Accident and Emergency Department and she began to feel “agony” in her right leg: T132.44. When it was put to her that the records did not refer to agonising right leg pain, she said that she did experience that pain: T132.49-133.

59. The plaintiff confirmed that she drove home in agony from the Accident and Emergency Department at Wollongong Hospital, a distance of 55km, and then went to her bed in her caravan in agony: T133.13-.26.

60. The plaintiff was cross-examined in relation to the fact that she did not go and see Dr Ghani, her general practitioner, soon after the 26 April 2013 accident. She confirmed that she attended the Wollongong Hospital fracture clinic on 3 May 2013. The entry notes state:

“3/52 Post L knee injury.

Mobilising in Zimmer splint.

Says it's painful to weight bear and does C/O knee giving way.

Pain relieved by analgesia.

Has been driving car. feeding animals at property”: Exhibit C page 175.

61. The plaintiff confirmed this and said that she was feeding her horses out of the car and hobbling around with her brace: T136.10. She also confirmed that she made a complaint about her right leg on this day but said it was ignored by Wollongong Hospital whose staff were focusing on her left leg: T136.31-.49.

62. When asked whether she saw Dr Ghani in the period between 27 and 30 April 2013, the plaintiff said that she could not recall and that she “could have” as he did not record all consultations: T137. It was put to the plaintiff that she first saw Dr Ghani on 9 May 2013 and said that she could not recall it: see T137.49 and Exhibit 1 page 70.

63. The plaintiff was then taken to her personal injury claim form. She confirmed that she saw her solicitor in relation to her claim before she saw Dr Ghani for the first time after the accident. The personal injury claim form is dated 8 May 2013 (Exhibit C page 40), whereas the medical certificate given by Dr Ghani is dated 9 May 2013 (Exhibit C page 39). The plaintiff agreed that she “must have” seen her solicitors before she saw Dr Ghani, her general practitioner. The plaintiff accepted that she saw Dr Ghani as she needed to get a medical certificate completed as part of her claim.

64. When it was put to the plaintiff that her claim of excoriating agony in her right leg was not true because of her delay in seeing Dr Ghani, she denied that: T141.25. The plaintiff said that she was not getting around very well at this time and was doing as little as possible while still attending Wollongong Hospital. She said that she thought that Wollongong Hospital would like to look after her and there was no need to have an early appointment to see Dr Ghani with whom it was difficult to obtain a consultation: T142.6-.31.

65. The plaintiff then stated that the consultation with Dr Ghani on 9 May 2013 was the first available appointment. In the end, the plaintiff said that she could not recall why she did not see Dr Ghani after the 26 April 2013 accident until the consultation on 9 May 2013.

66. The plaintiff emphasised on a number of occasions in her evidence that Dr Ghani did not write down all consultations which she had with him or all matters which she mentioned in the course of consultations.

67. The plaintiff was taken to her earlier evidence that the pain in her right leg which commenced while she was at the Wollongong Hospital was extreme and much worse than the pain in her left leg: T44.44-T45.12. The plaintiff said she felt agony whilst at Wollongong Hospital because of the pain in her right leg which had been numb previously. She indicated that it was “difficult” to see Dr Ghani because of this extreme pain and his availabliity.

68. The plaintiff was then taken to the 9 May 2013 medical certificate completed by Dr Ghani and it was noted that there was in the description of the injury no reference to the plaintiff complaining to Dr Ghani about pain in her right leg: Exhibit 1 page 190. The plaintiff emphasised that she did tell Dr Ghani about excruciating pain in her right leg in the consultation on 9 May 2013 and he must have not written it down. She said she often complained to him of the inadequacy of his notes. The plaintiff could not recall whether she provided the medical certificate to her solicitors but assumed she must have. She also did not recall reading the medical certificate if it was provided to her. In my view, it is likely that the plaintiff was given the medical certificate by Dr Ghani and would have reviewed the medical certificate when it was provided to her. Having regard to her confident nature, I also consider it likely she would have brought any perceived relevant omission to Dr Ghani's attention.

69. The plaintiff also agreed that she injured her back in the motor vehicle accident and that it was a source of pain and problems. On the evening of the accident, the plaintiff described the pain in her back as being “hell”. The plaintiff was then taken to the fact that there was no reference to back pain in the description of injury or medical diagnosis of Dr Ghani in his 9 May 2013 certificate. There was only a reference to a painful “right hip joint”. The plaintiff confirmed that she drove to her solicitors to sign the claim form and informed Dr Ghani in the consultation on the next day on 9 May 2013 that she had injured her back.

70. The plaintiff denied injuring her left hand in the accident but said she hurt her left shoulder pushing the elderly gentleman out of the way and said: “I tore the tendons out”: T152.31. It was put to the plaintiff that she did not mention injuring her back, right leg or right thumb to Dr Ghani in the consultation. The plaintiff claimed that she did and Dr Ghani must not have recorded her complaints. Despite giving evidence that she was aware of pain in her left shoulder when she pushed the elderly gentleman away out of the range of the defendant’s reversing vehicle, the plaintiff accepted that she told the ambulance manager attending that she had suffered no injury. The plaintiff said that after falling she felt numb below the neck and thereafter no longer felt left shoulder pain. The plaintiff said that hitting the ground acted as an anaesthetic to pain below the neck: T154.37. The plaintiff accepted that she did not see Dr Ghani until two weeks after the accident.

71. The plaintiff was then taken to the progress/clinical notes of the Wollongong Hospital fracture clinic. It was put to the plaintiff that the notes did not record any complaint by her in relation to the motor vehicle accident on 26 April 2013. This included:

1. The notes for an attendance at the clinic on 3 May 2013: Exhibit C page 176;

2. The notes for an attendance at the clinic on 14 June 2013: Exhibit C page 176. The plaintiff said that she was told by the medical staff at the fracture clinic that they were only dealing with her left leg and would only give her treatment in relation to the earlier injury in April 2013. However, the plaintiff claimed that she did tell the people at the fracture clinic in relation to the injury caused to her right thumb in striking the defendant's car to make the defendant aware of her presence when the defendant was reversing and came close to her. It should be noted that the clinical notes for 14 June 2013 at Exhibit C page 176 contain the following note:

“R thumb no tenderness no instability”.

The plaintiff said this was not the case. When it was put to her that she never saw Dr Ghani in June 2013 complaining about her right thumb, the plaintiff said he was too far away to see on the issue although the plaintiff was willing to go to the Wollongong Hospital fracture clinic which was about 45 minutes away. The plaintiff said that she could not always get an appointment with Dr Ghani and that there was no one around to help her including attending appointments. The plaintiff conceded that she did not go to Wollongong Hospital for physiotherapy arising from the 26 April 2013 accident. She said she had been receiving physiotherapy in relation to her left leg injuries but discontinued it as she could not put appropriate weight on her injured right leg.

72. It was put to the plaintiff that after the consultation on 9 May 2013 she did not see Dr Ghani, her general practitioner, again until over four months later on 16 September 2013: see Exhibit 1 page 71 which supports this. The plaintiff claimed that she did see him in this period.

73. It was put to the plaintiff that she had another motor vehicle accident in late June 2013 and the plaintiff gave evidence that the accident occurred on 26 June 2013. The Wollongong Hospital clinical notes at the fracture clinic for 2 August 2013 state:

“– 3/12 post injury. Has been involved in another car accident – flare up of both knee pain – C/O left knee instability – giving way – having physio. C/O R hip pain. Lower back pain."

74. The plaintiff claimed that she was taken as a matter of precaution after the accident by ambulance to Shoalhaven Hospital but was told that nothing had changed. The plaintiff agreed that she complained about symptoms arising from the 26 June 2013 accident and that she had a flare up of pain in both knees. She also conceded that her right hip and lower back flared up and gave her pain arising from the accident. The plaintiff denied that she made no similar complaints in relation to the 26 April 2013 accident. In response to the suggestion that such complaints were not recorded by Dr Ghani in his notes, the plaintiff said that she complained to Dr Ghani about putting down few details of her complaints. She was also told that there was nothing that could be done for her injuries.

75. When it was suggested to the plaintiff that prior to the 26 April 2013 accident she had obtained Marcaine injections for pain in the lower back and she could have sought a referral to Dr Dan for similar injections, the plaintiff said that she was in agony and could not go down to Sydney to see Dr Dan on the train. However, the plaintiff conceded that within two weeks of the 26 June 2013 accident when her car was written off, she caught a train to Sydney and went by taxi to Burwood to buy a new four-wheel drive vehicle. The plaintiff said that she needed the new vehicle urgently and took 12 hours to drive back from Sydney to Jaspers Brush as she had to stop frequently for rests, to straighten up parts of her body and to take pills. She said she arrived back at Jaspers Brush at 3am or later.

76. When it was put to the plaintiff that she could have gone to see Dr Dan in Sydney whilst she was there, the plaintiff initially said that he was in a different direction and merely went to Sydney to do what she had to do on the day. She also gave many other reasons why it was difficult to see Dr Dan, including that he had limited bookings, that she needed a referral and that he travelled frequently and undertook surgery. When it was put to the plaintiff that these were excuses and she had made no attempt to contact Dr Dan, the plaintiff said that she had been told that nothing could be done for her injuries by a number of doctors.

77. The plaintiff was then taken to various entries in Dr Ghani's notes for late 2013 including one for 23 December 2013 where she had fractured her big toe. The plaintiff confirmed this and said that that was when her right side gave way. When it was put to the plaintiff that she never complained to Dr Ghani about her right leg or her back pain, she said that she did and that he was “negligent” in maintaining his records. When it was said put to the plaintiff that she could have gone to hospital for assistance she also claimed that the people at the Shoalhaven Hospital were “negligent”. When it was suggested that she did not tell Dr Ghani as recorded in his notes that her right side was giving way the plaintiff claimed that she did: T170-171.

78. The plaintiff was then asked whether her condition improved or got worse after the end of 2013. The plaintiff said that she deteriorated physically and she lost muscle tone: T173.50. She also noted that when she moved and started living in a garage on a concrete floor that when she fell due to her right leg collapsing, this caused other injuries. She said she was told that her injuries would not get better and she had to learn to live with them.

79. The plaintiff was then asked questions in the light of the records in relation to her claim that her right leg was collapsing after the motor vehicle accident. In particular, the plaintiff was taken to the following records:

1. The history apparently given by her to Assessor Dr Faithfull on 3 August 2016 in whose report she is recorded as stating that she had sustained a number of injuries since the motor vehicle accident and “this has been mainly due to the injury to her left leg which she said can give way. She also complained of numbness in her legs”: Exhibit C page 126. In answer to this, the plaintiff said that her right leg was the difficult leg and the left leg was more reliable. She said that while her left leg had problems, her main problem was with her right leg;

2. The report of Dr Rosenthal following an assessment on 24 June 2015: Exhibit C page 103. The history provided to Dr Rosenthal is recorded as follows:

“Apparently she has had lots of fall[s] since the MVA because the left leg gives way resulting in the current fracture of her right hand which is in plaster. Her leg is being treated by Dr Stackpool and she has had other investigations now on her back and also a bone scan … She has had a number of falls since the accident which apparently are due to her left leg giving way, which was the pre-existing medical condition”: Exhibit C page 106.

The plaintiff could not recall telling Dr Rosenthal this. She said that her condition had changed and progressively it had been the right leg which was giving way. When asked whether it was the truth as recorded in Dr Rosenthal's report, the plaintiff said that the left leg used to give way but she had been having bad falls as a result of the right leg giving way. The plaintiff claims that she would have emphasised problems with her right leg and her right side. However, she accepted that if it was recorded differently that she must have said that to Dr Rosenthal;

3. Dr Ghani's notes at Exhibit 1 page 72 for 5 June 2014 record the plaintiff falling from the steps of her caravan. No mention is made of her right leg giving way. The plaintiff said that her right leg did give way and her left leg also went down and she fell backwards. When it was stated that there was nothing in Dr Ghani's notes which stated that the right leg had given way, the plaintiff claimed that she had told Dr Ghani this. Despite this, the plaintiff said he had not recommended any treatment for her right leg as he said he could not do anything about it. It is noted that whilst Dr Ghani referred the plaintiff for x-rays, no x-ray was requested of the plaintiff's right leg as opposed to of the right hip and right foot: Exhibit 1 page 145. The plaintiff denied that the fall was caused by her left leg giving way;

4. There is a reference in Dr Ghani's notes for 19 November 2014 to the plaintiff being “attacked by neighbours” and that she had a fall with her left leg in callipers and that this was due to “balance problems”: Exhibit 1 page 66. The plaintiff agreed that the note was correct that she was walking with a stick. However, she denied that her falls were due to balance problems. She said that this was incorrectly recorded and that she did not have balance problems but problems with her right side. She confirmed that she had callipers on her left knee to stabilise it.

80. The plaintiff was taken to Wollongong Hospital notes for 29 April 2015 which referred to an exacerbation of right leg sciatica. The notes stated the following: “As you know she has chronic knee problems on her L leg and she has had many exacerbations of her R leg sciatica over time. This one seems worse. She has had many falls related to her lifestyle and her leg/mobility problems”: Exhibit 1 page 128. The plaintiff confirmed that she was in agony at this time and that if she did not get up to feed her animals but stayed at home her body would “seize up”. The plaintiff denied the accuracy of the notes and said that she had been obtaining treatment for right leg problems and problems on her right side.

80. The plaintiff was taken to an entry relating to a procedure on 20 May 2015 where she had a joint block injection at L4/5 for back pain. The plaintiff denied that this was the same back pain that she had had for 10 years prior to the motor vehicle accident. She said that her earlier pains had been minor and the pains in her back following the 26 April 2013 accident were more severe.

81. The plaintiff was asked about falls she had in September and October 2015. It seems that the plaintiff fractured her right elbow in early September 2015: Exhibit 1 page 124. She saw Dr Ghani in relation to this on 10 September 2015: Exhibit 1 page 62. In a later consultation with Dr Ghani on 8 October 2015, he refers to a fall and injury to the plaintiff's right forearm while she was in the horse paddocks and which gave rise to a sore neck: Exhibit 1 page 62. The plaintiff claimed that her right leg dragged and she fell. However, there is no clear mention of problems with her right leg collapsing in the various medical notes.

82. The plaintiff's eventful medical history continued in November 2015 where she asserts that she was bashed and robbed by her partner/male friend. The plaintiff presented to the emergency department of Wollongong Hospital due to a sore neck, sore elbow, sore leg and worsening of her usual back pain: Exhibit 1 page 121. The plaintiff accepted that this was a fairly serious attack and it had resulted in injuries to her right side.

83. The plaintiff was then asked about her condition in 2017. The plaintiff said that by this time, some four years after the accident, her condition had worsened. She said it had deteriorated by her constantly falling and hitting her right side. An entry in Dr Ghani's notes for 16 May 2017 indicates that the plaintiff fell in a hole in her paddock three days previously and had leg bruising and thigh bruising on the left side: Exhibit 1 page 44. Shoalhaven Hospital records show that the plaintiff presented to the hospital emergency department on 14 May 2017 with back pain. Hospital records refer to a “mechanical fall onto back” but that the plaintiff denied admission for analgesia/physiotherapy and elected to go home with a recommendation of daily doses of paracetamol and Ibuprofen: Exhibit 1 page 91. The plaintiff agreed that she fell into a hole but claimed that she stumbled due to problems with her right leg and then tripped into the hole. There is no reference to problems with the right leg in the doctor or hospital notes for this fall.

84. Dr Lowy had examined the plaintiff at about this time on 17 May 2017. He noted as follows:

“Ms MacPherson is verbal and welcoming but has no back brace, no crutch or left knee brace, hobbling and lurching between rooms and holding walls in a most awkward antalgic fashion … She is restless in the chair, mainly addressing her left knee and leg; I note a recent bruise on the inner side of her left thigh … Both knees looked arthritic more so left knee; no surgical scars noted”: Exhibit 1 page 31.

86. When asked further about the 13 May 2017 accident, the plaintiff said that she stumbled as her right leg dragged, she did not see the hole in the paddock and upon stumbling fell into the hole. She claimed she damaged her left leg and fractured her back.

87. In the light of the cross-examination in relation to the plaintiff's condition in and around May 2017, the defendant showed in court surveillance film of the plaintiff which became Exhibit 2 in the proceedings. The importance of the film was that it showed activities of the plaintiff both before and after the 13 May 2017 accident. The film included the plaintiff's red station wagon that was full of items which the plaintiff identified as “horse gear”. Film prior to the 13 May 2017 accident shows the plaintiff walking with items in both hands and moving fairly freely. When it was suggested to the plaintiff that she had no difficulty with her mobility or moving her neck freely as shown in the film, the plaintiff said that she could undertake activities but was in a lot of pain. The film showed the plaintiff bending over with no apparent hesitation or significant restriction. The plaintiff said that she simply put up with the pain. The film also showed the plaintiff filling a large water bottle with water (although not entirely to its limit) and bending over apparently freely to do this. The plaintiff carried the filled bottle with her left hand. The plaintiff confirmed that at all times in the film she had her left leg brace on. The film also showed the plaintiff walking across the road with no assistance from a crutch or stick. The plaintiff said that she can do activities and “stomp around” but cannot do them for very long.

88. Film for 5 May 2017 shows the plaintiff walking with no apparent problems or restrictions, turning her neck and bending down and holding herself in a bent position for a number of seconds. The plaintiff said that such activities cause pain and the leg brace on her left leg provided her with stability.

89. Similar film was tendered for 10 May 2017. The plaintiff was shown carrying plastic bags in her left hand and walking around without the assistance of a crutch. She was able to lean over while filling the same large water container shown previously. The plaintiff then put the water in the back of her station wagon using both hands to lift the bottle. The plaintiff said that the bottle had a capacity of between 15 and 17L. No weakness in the plaintiff's right leg was obvious from the film. The plaintiff also used both arms to drag a bag which she said was filled with twine and bailing bags.

90. Overall, the film taken prior to the 13 May 2017 fall, shows the plaintiff walking relatively freely, bending and turning her neck whilst reversing and moving without the assistance of a crutch or walking stick. The plaintiff said that she had her left leg brace on at all times.

91. Part of the film tendered included film for 16 May 2017 which was some three days after the plaintiff’s 13 May 2017 fall. In the film, the plaintiff is shown as wearing a back brace which she wore whilst giving evidence. The plaintiff confirmed that she has used the back brace since the 13 May 2017 fall and it allows her to go about her business as usual. The film showed the plaintiff wheeling a case using her right arm and then lifting the case up to place it in the motor vehicle using her right arm and right knee. The film does show the plaintiff appearing to be more restricted than before the 13 May 2017 fall. The plaintiff described herself as only being marginally more restricted and she was still able to “get the job done”. The plaintiff was shown in the film filling the same water bottle and lifting it up with the left arm using the right arm for support. The plaintiff appears to use some care in putting the water bottle in the car. She denied that she was able to turn her head freely. However, the film showed the plaintiff reversing her car at some shops and turning her neck with little apparent restriction. The plaintiff said that she simply put up with the pain and twisted her body as much as possible.

92. The plaintiff was then cross-examined in relation to the appearance of her condition in the film compared to her presentation to various medical and related practitioners who gave reports for the purposes of the proceedings. The plaintiff confirmed that her condition in 2015 was better than in 2017 by which time she stated her condition had deteriorated. The plaintiff was taken to the reports of Ms S Mullen, the occupational therapist (Exhibit C page 76 – who assessed the plaintiff in January 2015) and the report of Dr Harbison who examined the plaintiff on 1 February 2016 (Exhibit 1 page 4). The plaintiff confirmed that these reports showed her to be quite disabled and restricted. In particular, the plaintiff put Dr Harbison's reference to her having a “bizarre gait” (Exhibit 1 page 7) to the problems with her right leg. It was suggested to the plaintiff that the presentation given by her to Ms Mullen and Dr Harbison was dramatically different to that shown in the video film which became Exhibit 2. See in particular Ms Mullen’s report at Exhibit C pages 82-84 which stated that the plaintiff held furniture or other parts of the house for support during Ms Mullen’s review. In the film she appeared to move freely without holding on to her motor vehicle for any support or using a crutch or walking stick.

93. The plaintiff denied exaggerating her symptoms to medical practitioners. The plaintiff asserted that her presentation depended on what she had been doing in the few days prior to the examination or activity. It also depended on her medication. The plaintiff disputed that the video film showed her to be far more mobile than as presented to Ms Mullen and Dr Harbison. The plaintiff said that she tried to walk as quickly as possible to get to her car. The faster she arrived at the car and got into the car the quicker her pain was relieved. The plaintiff said a lot of her activities were due to her strength of willpower: T199.35. The plaintiff denied deliberately exaggerating her symptoms to Ms Mullen and Dr Harbison: T201.2.

94. The plaintiff was then asked questions about a fall which she had in July 2018 where she fell on her left side apparently on 22 July 2018. The plaintiff also complained of left-sided chest pain at the time. The medical notes showed that the plaintiff apparently fell while walking backwards in her paddock, falling onto her left side. An x-ray showed a fracture of the left ninth rib: Exhibit 1 pages 51 to 53. The fall is also confirmed in Dr Ghani's notes for a consultation on 13 August 2018 which suggest that the plaintiff fell backwards two weeks previously while holding a gate and a horse: Exhibit 1 page 40. The plaintiff confirmed the fall in her oral evidence. She claimed that her right leg gave way and she fell on the ground. When it was put to her that her right leg giving way was not mentioned in the hospital or medical notes, the plaintiff stated that she told them that the fall was due to her right leg not lifting up.

95. The plaintiff was then asked about her current living circumstances. She confirmed that she lived in a ground floor housing commission one bedroom property that had a bedroom, bathroom, kitchen and lounge room. She said she lived alone. The plaintiff confirmed the history given to Dr Lowy in May 2017 of her left knee being painful. She confirmed that her left knee continued to be painful and disabling up to the present time: T207. The plaintiff also confirmed that her left knee problem impacted on her activities around her house and said that she undertook little cleaning in the house: T207.33. The plaintiff was asked whether her back pain restricted her capacity and she said she tolerated the back pain like she tolerated her neck pain: T207.38.

96. The plaintiff was further asked about her household activities. She said that she did the minimum necessary in relation to domestic duties and claimed that she was unable to mop or use a vacuum cleaner or a broom. She said she had tried to use a vacuum cleaner, including only a few weeks prior to giving evidence on the second occasion, and was able only to use it for a short period before having problems: T208.30. When it was suggested to the plaintiff that as she had a small flat she could pace her use of the vacuum cleaner and space it with other activities, the plaintiff denied this. She said that she had difficulties if she did too many domestic duties: T208.38. Consistent with the report of Ms Mullen, the plaintiff said that she was able to do some sweeping if she held onto items for support: T209.11. When it was put to the plaintiff that the video which is Exhibit 2 showed that her movements were sufficiently unrestricted that she could sweep and vacuum, the plaintiff said that the video showed activities necessary for her to get out to feed her horses: T209.24. When it was put to the plaintiff that she was not genuine or honest in relation to the portrayal of her symptoms, she denied that. She said she could bend over and do things but this could also cause problems with parts of her body “locking up”: T209.40.

97. The plaintiff claimed that she told all of the doctors including Dr Lowy and the MAS assessors the truth. When it was put to the plaintiff that she told the various doctors the truth in relation to the difficulties she was having with her left leg since the accident in early April 2013, particularly around the house, the plaintiff confirmed the problems with her left leg “to a degree”: T210.21. However, the plaintiff gave evidence that the problems with her right leg were far more serious and such problems existed since the motor vehicle accident on 26 April 2013. In relation to back problems prior to 26 April 2013, the plaintiff said these were muscular only and her back pain had been worse since the motor vehicle accident on 26 April 2013. The plaintiff said that although her left leg was swollen and discoloured after the early April 2013 accident she was still able to drive and look after her horses. However, the plaintiff confirmed her evidence in chief in relation to the problems following the accident in early April 2013 with her left leg at T37.24-.35 where she said that the left leg caused her “agony” and “absolute hell” and that she “couldn't do anything”. She also agreed that her left leg was in a bad condition when she fell over on 26 April 2013: T212.7.

98. The plaintiff was asked about her horses. She said she now had four stallions and five mares. She said she still cared for them but could not groom them or undertake activities relating to the maintenance of their hooves. On occasions, the plaintiff said that when she could not care for them due to injury someone else fed them but when she was able she went back to feeding them herself.

99. The plaintiff was then asked a number of questions about the 26 April 2013 motor vehicle accident, primarily, it seems, to deal with the allegation in the Defence of contributory negligence. In the Defence filed on 28 March 2018 in paragraph 1, the defendant admitted paragraphs 1 and 2 of the Statement of Claim filed on 10 January 2018. This included, in paragraph 2, an admission that the plaintiff was struck by the defendant’s reversing vehicle.

100. The plaintiff confirmed that on 26 April 2013 she was diagonally crossing Collins Street in Kiama at the time of the accident. She had a crutch with her to support her left arm and was carrying a handbag. She had a brace on her left leg. The plaintiff confirmed she was accompanied by an elderly gentleman who had offered to help her. She said that she could get across the road without help but he insisted on accompanying her across the road: T213.

101. It was put to the plaintiff that her version of the accident given in chief was fabricated by her, which she denied. In particular, the plaintiff denied the following propositions put to her by counsel for the defendant:

1. At no time did the plaintiff make any eye contact with the defendant while the defendant was reversing her car. It was put to the plaintiff that the defendant never had eye contact with her and never grimaced when she saw her. The plaintiff denied this;

2. There was no eye or verbal contact at any time with the driver being the defendant while she was reversing. The plaintiff said she was shouting at the defendant and bashing the car when she was reversing;

3. She never called out to the people in the defendant's car. The plaintiff denied this and said she called out “stop, stop”: T214.25;

4. She never banged on the defendant's vehicle;

5. The defendant reversed out of the car space at a very slow speed;

6. Nobody other than the plaintiff ever called out to the defendant to stop. The plaintiff claimed that others on the footpath near where the defendant's car was parked, called out to the defendant and bashed on the bonnet. The plaintiff claimed that the defendant looked like “a scared rabbit”: T215.11;

7. The defendant never tried to evade the plaintiff. The plaintiff said that the defendant drove off and was stopped by a parking officer and told to go back: T215.48. She also said that the passenger in the car got out of the car and left the scene;

8. The defendant never sat down next to the plaintiff and said to her words to the effect “you have already broken your leg and it doesn't matter what I did today”. The plaintiff confirmed that the defendant sat down next to her and said that repeatedly: T216.19-.35. The plaintiff said she tried to ignore the defendant and was on her telephone contacting the hospital at Wollongong and calling a lawyer who told her to go to hospital. The plaintiff said she was numb from the neck down after falling over.

102. The plaintiff confirmed that she was driving a four wheel drive and it was a larger vehicle than the defendant's hatchback. When it was suggested to her that she was passing behind the defendant’s vehicle the plaintiff confirmed this but said that she was initially “a fair way” from it. The plaintiff denied seeing two ladies getting into the defendant’s vehicle from across the road or seeing them approaching the vehicle. The plaintiff said that she did not see the ladies get into the car but saw the ignition lights on. She said she was about 5 metres away when she saw that. This is consistent with the plaintiff's evidence in chief: T27.34-T28.13.

103. The plaintiff gave evidence that at this stage she was about a third of the way across the rear from the driver side of the defendant’s car and two thirds the way from the passenger side. The plaintiff denied that the defendant was reversing away from her direction and said that she was already behind the defendant’s vehicle when it started reversing. The plaintiff said that when she was behind the defendant's car she was heading to her car. The plaintiff otherwise confirmed her evidence in chief. She said that the elderly gentleman became “frozen” as the defendant reversed her vehicle. The plaintiff said she pushed the elderly gentleman out of the way, thereby hurting her left shoulder and her crutch hit the ground. The plaintiff said that having regard to her left leg and her speed of movement that she was not able to move quickly enough to get out of the way. The plaintiff said she pushed away and fell on her right side as the car reversed as she had lost her left crutch. The plaintiff denied that she could have moved out of the way and avoided being struck. She said she had a stiff left leg which was in a solid brace. The plaintiff confirmed her version that the defendant’s car struck her hip and that she pushed herself away from the vehicle and fell to her right.

104. The plaintiff denied that she put herself in a position of danger by walking behind a reversing vehicle and said she tried to get out of the way of the defendant's car but it came towards her. The plaintiff said that she stopped as soon as she saw the lights of the defendant’s car coming on and the reversing commencing. The plaintiff said that she may have taken one step to the right as the vehicle was reversing. The plaintiff accepted that there was a potential for a reversing driver not to see a pedestrian but asserted that the defendant saw her in the course of the reversing manoeuvre.

105. In re-examination, Ms McPherson was asked about her fracture to her lumbar spine which occurred when she fell in the hole in the paddock in May 2017. This appears to have been a fracture at the L1 level: see Exhibit 1 pages 91 and 93. The plaintiff gave evidence that rather than having fallen into a hole in the paddock she fell into a dip where a fencepost had previously been which was in the shape of a deep dish of about 15cm in depth. The plaintiff claimed that she stumbled before falling in the hole due to the dragging of her right foot. The plaintiff said that she tried to lift her right leg up but if her foot catches on something she usually falls and often to the right. The plaintiff said her right leg drags and she did not see the depression in the ground in the long grass. She said she was dazed and dizzy after the fall and it took her more than three quarters of an hour to get back to the car having regard to the pain in her back. In other questions in re-examination, the plaintiff confirmed aspects of her evidence in chief.

“[561]  In Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72, Beazley P (with whom Barrett and Gleeson JJA agreed) stated as follows at [161]–[162].

[161] The effect of s 5R therefore is to require the court, in determining whether a person is contributorily negligent, to apply the provisions of ss 5B and 5C, being the statutory provisions applicable to determining breach. There may be a question whether any aspect of the common law continues to apply to the determination. However, that question does not need to be determined in this case.

[162] As has been remarked in various cases in this court, there is a conceptual difficulty in applying the general principles identified in ss 5B and 5C to the determination of contributory negligence: the question of breach is directed to whether a person has breached a duty owed to another person; contributory negligence, however, requires a determination whether a person has taken reasonable care for the person’s own safety. Once this difference in the fact finding task is recognised, the manner of application of s 5B becomes apparent. Consideration is required to be given to the statutory prescriptions in s 5B. In doing so, it is to be borne in mind that s 5B(2) is not limited to the factors identified in s 5B(2)(a)–(d) and that pursuant to s 5R(2), the standard of care is that of a reasonable person in the position of the plaintiff and the matter is to be determined on the basis of what the person knew. Once a finding of contributory negligence has been made, the Motor Accidents Compensation Act, s 38(3) requires the court to reduce the damages recoverable “by such percentage as the court thinks just and equitable in the circumstances of the case”.

[562]  The decision of the Court of Appeal in Grills was quoted with approval by Gleeson JA (with whom Leeming JA and Davies J agreed) in Boateng v Dharamdas [2016] NSWCA 183 at [129]. See also the analysis of Meagher JA in the Court of Appeal in Davis v Swift [2014] NSWCA 458 at [23]–[29].

[563] Following these principles, in applying s 5R of the CLA, a court considering contributory negligence is required in determining whether a person has been contributorily negligent to apply the provisions of ss 5B and 5C of the CLA which I have set out above.”

225. Sections 5B and 5C of the CLA provide as follows:

“5B   General principles

(1)  A person is not negligent in failing to take precautions against a risk of harm unless:

(a)  the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b)  the risk was not insignificant, and

(c)  in the circumstances, a reasonable person in the person’s position would have taken those precautions.

(2)  In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):

(a)  the probability that the harm would occur if care were not taken,

(b)  the likely seriousness of the harm,

(c)  the burden of taking precautions to avoid the risk of harm,

(d)  the social utility of the activity that creates the risk of harm.

5C   Other principles

In proceedings relating to liability for negligence:

(a)  the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and

(b)  the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and

(c)  the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.”

226. Section 138 of MACA provides as follows:

“138   Contributory negligence—generally

(cf s 74 MAA)

(1)  The common law and enacted law as to contributory negligence apply to an award of damages in respect of a motor accident, except as provided by this section.

…

(3)  The damages recoverable in respect of the motor accident are to be reduced by such percentage as the court thinks just and equitable in the circumstances of the case.

(4)  The court must state its reasons for determining the particular percentage.

…”

227. In my factual findings above, I have found:

1. That as admitted by the defendant, she breached her duty of care owed to the plaintiff and the vehicle she was reversing struck the plaintiff;

2. That at no time did the defendant or Ms Elder see the plaintiff or Mr Early as Ms Dowell was reversing her car;

3. That the defendant reversed at least substantially due to Ms Elder telling her that it was safe to do so from her perspective. See also T253.44-254.3;

4. That the plaintiff and Mr Early were in the path of the defendant's vehicle as she reversed from her car spot;

5. That in crossing the road the plaintiff was suffering from the consequences of her recent serious injury to her left leg and had the support of a leg brace and a left crutch;

6. That Mr Early became “frozen” to the spot as the defendant's car began reversing towards him and the plaintiff and that the plaintiff pushed Mr Early out of the way to avoid him being struck;

7. That the plaintiff was slightly struck by the defendant’s vehicle on her right side and in attempting to get out of the way fell on her right side;

8. That because of her left leg injury and the loss of the left crutch in pushing Mr Early out of the way, the plaintiff had limited mobility;

9. That the defendant should have seen the plaintiff and Mr Early whilst reversing her car. Why she did not do so is unclear;

10. I have found that I prefer the defendant’s and Ms Elder’s versions of what occurred when Ms Dowell's car was reversing. In particular, I reject that there was eye contact between the plaintiff and the defendant or that there was yelling or bashing on the car which the defendant ought to have heard or perceived. I accept that it is likely that the plaintiff called out as the car was near her but was not heard.

228. In the light of the above matters, I now turn to consider the principles in ss 5B and 5C of the CLA to determine whether the plaintiff should be found to be contributorily negligent:

1. The risk was foreseeable of the defendant potentially not seeing the plaintiff whilst reversing. Whilst this was a risk which in my view the plaintiff ought to have known having regard to the fact that the defendant was reversing slowly, the plaintiff reasonably seems to have formed the view that she was likely to be seen by the defendant;

2. The risk in my view that the defendant had not seen the plaintiff was a fairly insignificant one in all the circumstances of the case;

3. In my view a reasonable person in the position of the plaintiff walking with Mr Early would have taken particular care in crossing the road. The fact that she was with Mr Early is relevant. Similarly, it is relevant that the plaintiff unselfishly pushed Mr Early, who was an elderly gentleman, out of the way;

4. Having regard to the speed the defendant was reversing and the fact that there appears to have been a reasonably clear view behind the defendant's car, the probability that the defendant had not seen the plaintiff and may collide with her was relatively insignificant;

5. A collision with the plaintiff was potentially very serious as she was a pedestrian even though the defendant’s vehicle was travelling slowly;

6. The burden of taking precautions to avoid the risk of harm was relatively insignificant to the plaintiff;

7. The social utility of the plaintiff crossing the road was not of a nature to mean that she should not have taken precautions in crossing the road.

229. I accept the plaintiff's evidence that she did not see the defendant or Ms Elder getting into Ms Dowell's car. I accept the plaintiff's evidence that the first time she realised the car was reversing was when the reversing lights went on and it started to move. The fact that the plaintiff took steps to unselfishly push Mr Early out of the way and in doing so hurt her left arm and lost her crutch which was supporting her, appear to me to be relevant. As the plaintiff was crossing the road before she saw the car reversing, I do not consider that the plaintiff failed to take reasonable care for her own safety.

230. Although there are inconsistent authorities on the issue, in my view I am entitled in considering contributory negligence to have regard to the plaintiff's age and physical infirmities with her left leg at the time of the accident: Smith v Zhang [2012] NSWCA 142 at [21]-[22]; Serrao v Cornelius (No 2) [2016] NSWCA 231 at [61]. See also Allen v Chadwick (2015) 256 CLR 148 at [61].

231. Having regard to all of these matters, in my view the plaintiff was not contributorily negligent as alleged by the defendant. She did not act recklessly or dangerously or place herself in a position of peril and did not cross the road when it was unsafe to do so having regard to there being no evidence of other cars and having regard to the presence of Mr Early. I am not satisfied on the evidence that the plaintiff in all the circumstances could have manoeuvred herself to get out of the way of the defendant’s reversing vehicle as claimed. The plaintiff had an injured left leg, had lost her left crutch, thus had limited mobility and had just pushed Mr Early out of the way. In my view, looking at the evidence as a whole, the plaintiff had not failed to take reasonable steps to protect her own safety.

Causation

232. Sections 5D and 5E of the CLA provide as follows:

“5D   General principles

(1)  A determination that negligence caused particular harm comprises the following elements:

(a)  that the negligence was a necessary condition of the occurrence of the harm (factual causation), and

(b)  that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).

(2)  In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

(3)  If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent:

(a)  the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and

(b)  any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

(4)  For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

5E   Onus of proof

In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.”

233. Accordingly, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.

234. The relevant principles in relation to Section 5D of the CLA may be found in the following cases: Strong v Woolworths Ltd (2012) 246 CLR 182 at [18]; Wallace v Kam (2013) 250 CLR 375 at [16]–[19]; and Curtis v Harden Shire Council [2014] NSWCA 314 at [14]–[22] per Bathurst CJ, at [197] per Beazley P and at [319]–[324] per Basten JA.

235. The determination of factual causation in accordance with Section 5D(1)(a) of the CLA involves the application of a “but for” test of causation. That is to say, a determination that in accordance with the section that negligence was a necessary condition of the occurrence of harm is a determination on the balance of probabilities that the harm in fact occurred and would not have occurred absent the negligence: Strong v Woolworths Ltd, above, at [18].

236. The question in the present case is whether the breach of duty of care by the defendant admitted in the Defence caused the injuries of which the plaintiff complains.

237. I have set out my medical findings above. In summary, the collision caused a number of soft tissue injuries to the plaintiff which did not resolve quickly.

238. As set out above, I am not satisfied on the evidence:

1. That the plaintiff's right leg as opposed to her left leg has been giving way as claimed;

2. That the various falls which the plaintiff has given evidence of are due either to her right leg giving way or that if that has occurred that that is due to any injury in the motor vehicle accident;

3. That the fall on 13 May 2017 in which the plaintiff fractured her back at the L1 level was due to any injury caused in the 26 April 2013 accident. It appears on the evidence that the plaintiff simply did not see the dip or hole in question and fell into it thereby injuring herself. I do not accept the claim by the plaintiff that the right leg was dragging or that it in any way contributed to the accident. No such apparent disability was apparent in the surveillance material which became part of Exhibit 2. Her right leg dragging is also not established on the medical evidence. I refer to my analysis above.

239. Accordingly, causation is established only in relation to the soft tissue injuries which I have found arose from the 26 April 2013 accident. There is in my view no reason why it is not appropriate for the scope of the defendant’s liability to extend to the harm so caused which I have found: s 5D(1)(b) of the CLA. There is also no reason why responsibility for the harm should not be imposed on the defendant: s 5D(4) of the CLA. These injuries which I have found appear to cause ongoing difficulties and restrictions with shopping and domestic duties as set out in the plaintiff’s oral evidence and Ms Mullen’s evidence (which must be reviewed with some caution). I therefore find taking into account all the conflicting evidence, that but for the accident, the plaintiff’s most likely position is that she would have been able to undertake some shopping and some domestic duties but with difficulties. The left leg and back brace would have given her support. The injuries suffered in the accident exacerbated her pre-existing problems and have made shopping and domestic duties even more difficult and more painful and she has ongoing restrictions to a limited degree as a result of the accident.

The plaintiff's request for a referral under s 62 of MACA

240. As I have found that the fall on 13 May 2017 in which the plaintiff fractured her back at the L1 level was not caused by the injuries in the 26 April 2013 accident, this issue does not arise.

241. However, in the event that I am in error as to this finding, I would still not exercise my discretion under s 62 of MACA to make the referral as requested. The plaintiff commenced the proceedings in January 2018. She could have sought a further referral prior to that time. No explanation was given in submissions for this omission.

242. I also accept the submissions of the defendant that it is inappropriate in the exercise of my discretion to take such an action after the evidence is completed and submissions are made. I accept the defendant's submission that there is no compelling medical evidence that the fall on 13 May 2017 was connected to any injury received by the plaintiff in the motor vehicle accident in question.

Damages

Introduction

243. I now turn to the question of damages. As set out above, the defendant admitted a breach of duty of care which she owed to the plaintiff. It is therefore necessary to consider the various heads of damages applicable and any residual symptoms or restrictions which the plaintiff has arising from the 26 April 2013 accident.

244. The plaintiff was not assessed as having a greater than 10% whole person impairment as a result of the accident. Thus no damages for non-economic loss are recoverable by her: s 131 of MACA.

Past out-of-pocket expenses

245. It was agreed between the parties that the defendant has paid $5,949.40 for past out-of-pocket expenses and claims a defence under s 83 of MACA for that sum: see Exhibit E.

246. In the course of submissions, there was a dispute in relation to the plaintiff's claim for the sum of $5,862.25 as being connected to injuries arising from the 26 April 2013 accident. The parties requested that I make relevant factual findings in the case so that the issue can, if possible, be resolved after reasons for decision are handed down. I think that that is an appropriate course to adopt to avoid further cost to the parties.

247. Accordingly, in relation to the question of past out-of-pocket expenses, the parties should attempt to agree the relevant figure in accordance with these reasons. If an agreement cannot be reached, there will be a need for further submissions.

Future out-of-pocket expenses

248. The plaintiff claimed future out-of-pocket expenses totalling $46,971.89 for:

1. General practitioner consultations at the cost of $420 per year for the remainder of her life;

2. Ten hours of physiotherapy, acupuncture and therapeutic massage every year to treat exacerbations of her condition for her life expectancy;

3. Counselling as recommended by Dr Dragutinovich;

4. Additional services as recommended by Dr Endrey-Walder;

5. Future medication at a cost of $100 per month;

6. Attendance at a pain management unit or with a pain specialist at the cost of $10,000.

249. The defendant submitted that the only amount allowed should be for infrequent medical consultations with a general practitioner (as the plaintiff would be seeing her doctor anyway for her other conditions) and an amount for non-prescription analgesia.

250. As stated above, I prefer the more recent opinion of Dr Jones that the plaintiff has no relevant psychiatric condition established, to that of Dr Dragutinovich which is over four years old. The plaintiff seemed to be a resilient and stoic person. I am not satisfied of the need for any counselling as recommended by Dr Dragutinovich.

251. As stated above, I do not accept the plaintiff's evidence in relation to falls being caused by injuries to her right leg, as opposed to her pre-existing medical problems and more particularly the injury to the plaintiff's left leg. I also do not accept that the 13 May 2017 fall and fracture had any relevant connection to the 26 April 2013 accident. I am not satisfied on the evidence that the plaintiff's various falls after 26 April 2013 are connected to injuries in the motor vehicle accident as opposed to her pre-existing back and leg problems and the serious injury which she sustained in the 10 April 2013 accident.

252. I accept that the plaintiff still has some restrictions and symptoms in her neck, lower back and left shoulder arising from the soft tissue injuries identified in the reports of Dr Rosenthal and Dr Faithfull. These injuries include an aggravation or exacerbation to the plaintiff’s prior neck injury, back injury as well as soft tissue injuries to the plaintiff's right hip, left shoulder and right thumb. I am not satisfied based on Dr Rosenthal’s report that the plaintiff had any relevant injury caused to her right shoulder arising from the accident. I am also not satisfied that the soft tissue injury to the right knee has any continuing relevance.

253. In my view, these conclusions derive support from:

1. The injury details in the plaintiff's claim form at Exhibit C page 35;

2. The medical certificate of Dr Ghani dated 9 May 2013 (but not in relation to the lower back and right thumb);

3. The notes from Wollongong Hospital which support tenderness in the neck, pain in the lower back and left shoulder pain of a limited nature;

4. The plaintiff's evidence as to her falling on her right side;

1. The complaints to Dr Endrey-Walder as recorded in his report. I note Dr Endrey-Walder found a full range of movement of the right thumb and no clinical evidence of abnormality of the right knee. Dr Endrey-Walder noted that the plaintiff had functional deficit with her right hand and with her left upper limb;

2. The symptoms reported to Dr Dixon. However, I prefer the opinions of Dr Rosenthal and Dr Faithfull to the extent they are different to those of Dr Dixon whose opinions seem extreme in the light of the other medical opinions;

3. Dr Dan's 29 January 2016 opinion that the motor vehicle accident caused an exacerbation of the plaintiff's pre-existing lumbar dysfunction and cervical dysfunction;

4. The opinions of Dr Rosenthal and Dr Faithfull. I note Dr Rosenthal expresses the opinion that none of the plaintiff’s subsequent falls are due to the motor vehicle accident injuries and appear to be due to the pre-existing left leg condition. I accept that the plaintiff had some continued restriction in movement in the neck, left shoulder and an exacerbation of her back pain;

5. The plaintiff's evidence at T76.39-82 and T207-209. I have been cautious in considering the plaintiff's evidence because of her habit of making wide statements and exaggerating her evidence.

254. I do not accept the defendant’s reports provided by Dr Harbison and Dr Lowy to the extent they say the plaintiff no longer has any pain or restrictions to her neck and back. The plaintiff is stoic. I accept her evidence that she has some ongoing restrictions. However, the restrictions are limited. The surveillance video evidence which is Exhibit 2 shows the plaintiff to be reasonably mobile prior to the 13 May 2017 fall.

255. Taking into account all of the evidence and taking into account that the plaintiff would be seeing her general practitioner anyway for other problems unconnected to the accident and applying an appropriate discount for the fact that the plaintiff had an existing chronic problem with her neck and lower back and serious problems with her left knee which I find established on the balance of probabilities, I allow:

1. Two general practitioner consultations per year at the cost of $80 each for a period of five years ($80 x 2 = $160 ÷ 52 = $3.07 per week x 231.5 multiplier = $710.70) amounting to $710.70;

2. Occasional physiotherapy as required for a five year period to treat exacerbations or flaring up of the plaintiff’s neck, left shoulder and back conditions. I allow a lump sum of $2,000 under this head;

3. I do not accept the recommendations for an amount for future surgery. However, I accept the recommendations of Dr Endrey-Walder for potential ultrasound guided injections in the plaintiff's right hip and left shoulder for a period of five years. I would allow $3,000 under this head;

4. The claimed attendance at a pain management unit or a pain specialist is not allowed as the plaintiff's primary pain seems to be directed at her neck, back, left leg and to some extent her pre-existing neck and back injuries. I do not believe that this significant expense as claimed is justified on the evidence;

5. The plaintiff is likely to need anti-inflammatory and over-the-counter analgesia as required. I also allow this for a period of five years. Having regard to the difficulty of assessment I allow $2,000 as a gross sum under this head.

256. The total allowed for future out-of-pocket expenses is therefore $7,710.70.

257. I have allowed the amounts only for a period of five years as I think this is reasonable in all the circumstances having regard to the fact that the injuries are only soft tissue injuries, the evidence shows that the plaintiff has had chronic neck and back problems and the radiological evidence shows continuing degenerative change in the plaintiff’s neck and back.

Future care/assistance

258. The plaintiff no longer presses her claim for care of her horses. The following is sought:

1. Domestic assistance for four hours weekly at $47.80 per hour - $115,255;

2. Car washing at $60 per month - $8,346.46.

259. These figures are taken from the recommendations of Ms Mullen in her 11 February 2015 report: Exhibit C page 78 and page 87. Dr Endrey-Walder notes that the plaintiff's functional development as at 2014 would impact on her domestic work duties. Dr Dixon would only allow two hours a week for a commercial cleaner to do heavy cleaning.

260. As stated above, in my view the defendant has established that the plaintiff had chronic neck and back problems prior to the accident on the balance of probabilities. Accordingly, there must be a discount for the future possibility of these conditions becoming worse, having regard to their lengthy duration in the medical records. Further, the plaintiff has had a serious injury to her left leg and the fracture to her back in the 13 May 2017 accident. Ms Mullens’ conclusions in relation to the plaintiff's limitations also appear to be somewhat inconsistent with the surveillance material and must take into account the plaintiff’s pre-existing conditions.

261. Having regard to all of these matters, I think that the claim for domestic assistance which is limited to shopping, cleaning of her house and washing her car should be heavily discounted. It should also be given for the same period of five years which I have indicated above. In my view, having regard to the plaintiff’s other injuries and pre-existing conditions, it is likely that the plaintiff would have required domestic assistance anyway by the time she reached her mid-70s. There accordingly should be a further discount in accordance with Metaxoulis at [81]. I therefore allow one and a half hours domestic assistance per week for five years at the rate set out in Ms Mullen’s report (which was not disputed) ($47.80 x 1.5 per week = $71.70 x 231.5 multiplier = $16,598.55) which totals $16,598.55.

262. The claim for washing the plaintiff's car seems to be connected to a large car. Two cars were shown in Exhibit 2. I would allow $1,000 as a lump sum for this amount applying similar discounts. Accordingly, the amount I allow for future domestic assistance is $17,598.55.

263. Having regard to the continued disagreement in relation to past out of pocket expenses, I will request the parties to bring in short minutes of order to reflect these reasons.

Disposition

264. For the above reasons, I make the following orders:

1. Judgment for the plaintiff against the defendant.

2. I reserve the question of costs for further submission or agreement.

3. The parties are to bring in agreed short minutes of order within 14 days reflecting these reasons for decision.

4. The parties have liberty to apply to the Associate to Dicker DCJ on three business days’ notice.

5. Exhibits to be returned after 28 days.

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Decision last updated: 26 November 2018