| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : MUMINOVIC -v- SIKALOSKI [2005] WADC 243 CORAM : WISBEY DCJ HEARD : 17 OCTOBER 2005 DELIVERED : 12 DECEMBER 2005 FILE NO/S : CIV 921 of 2004 BETWEEN : MUNIRE MUMINOVIC Plaintiff
AND
JASMIN GEOFF SIKALOSKI
Defendant
Catchwords: Damages - Measure of damages for personal injuries allegedly suffered in motor vehicle accident - Forces involved in accident inconsequential - Failure to establish compensable injuries - Turns on own facts
Legislation: Nil
Result: Claim dismissed
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Representation:
Counsel:
Plaintiff : Mr T Lampropoulos
Defendant : Mr P R Momber
Solicitors:
Plaintiff : Simon Walters
Defendant : Peter Momber
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Jones v Dunkel (1959) 101 CLR 298
Western Australia v Watson [1990] WAR 248
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1 WISBEY DCJ: On 29 May 2002 the plaintiff was involved in an accident at the intersection of Hutton and Main Streets, Osborne Park, when the Toyota Echo hatchback she was driving in Hutton Street preparatory to making a lefthand turn into Main Street, was struck from the rear by a Holden Acclaim sedan driven by the defendant. Liability is admitted, and the matter comes before the Court for an assessment of damages for injury suffered by the plaintiff in the accident. The fact that the parties have adopted a fairly casual approach to the pleadings, and entirely ignored the order made by the Registrar in pre-trial conference on 25 January 2005 requiring each of them file a concise statement of the issues of fact and law which they contended would need to be determined at trial, has not assisted resolution of this litigation. In the result, although not entirely satisfactory, it is necessary to address the evidence and the manner in which the case has been fought to identify and address the issues.
The plaintiff 2 The plaintiff, who presently resides in Benowa Queensland, was born in Croatia on 15 March 1964 and moved to Germany in 1968. Following her schooling she completed a four year nursing course and a two year fashion design course. She then worked for a considerable time as a nurse. She married in 1985 and has two daughters, Sabina born in 1986 and Dina born in 1997. The family came to Australia in 1999, originally living in the Gold Coast Queensland where she attended the Southport TAFE studying domestic English and undertaking voluntary work at the community centre. She developed low back pain and underwent surgery in December 1999 which she alleges resulted in a resolution of her symptoms. The family moved to Perth in March 2000 and the plaintiff enrolled at Curtin University to study academic English with a view to acquiring both nursing and fashion qualifications. She worked casually with nursing agencies when she required extra money for the children. She worked for Atlantic Health Care Services and the Perth Nursing Agency on nightshift because it was more remunerative and enabled her to be with her children during the day. It was her long term intention to engage in full-time nursing employment, as she enjoyed helping people. She was, however, not working at the date of the accident. 3 The accident occurred in the afternoon of 29 May 2002. The plaintiff was driving the two door Toyota Echo with Sabina in the front passenger seat and Dina in the left back passenger seat. Boxes containing various items were stacked on the right of the rear seat. She stated that
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she stopped at a give way sign preparatory to turning left in to Main Street, and whilst in that position her vehicle was struck from behind by the defendant's vehicle and pushed forward in to Main Street. As a jeep was approaching from her right she drove her vehicle over the median strip in Main Street to avoid a further collision, and that vehicle passed behind her vehicle. She stated that at the moment of impact she was struck on the neck and head by boxes which came forward from the rear of her vehicle, and her face hit the steering wheel fracturing one of her teeth. 4 The plaintiff summonsed her husband who attended the accident scene and drove the vehicle home. When she arrived home the plaintiff had a coffee and began vomiting. She experiencing neck pain that night and as a consequence attended a general practitioner, Dr Beshay, the next day and was administered an injection to control the nausea, prescribed a cervical collar, and referred for x-rays. The plaintiff stated that she had bruising around her eyes, nose and the left side of her face, together with seatbelt bruising to the chest. She was prescribed medication. 5 Approximately 10 days post-accident the plaintiff developed tremor in the right arm and was referred for specialist treatment at the Subiaco Hospital. She developed significant neck pain and headaches, and has continued to suffer intermittent neck pain which appears to be worse at night. Additionally she claims to experience upper back pain, left upper limb and shoulder pain, and regular headaches, often of a migrainous nature. 6 The plaintiff stated that she was referred to the orthopaedic surgeon, Mr Desmond Williams, who administered injections to alleviate the left upper limb symptoms. Back pain was constant. She stated that she had been emotionally fragile since the accident, suffered depression, and required medication to enable her to sleep. Her emotional condition and symptoms were aggravated by knowledge that she was subject to surveillance. She is less active than pre-accident, and her symptoms have affected her ability to concentrate. 7 She agreed that she suffered from panic attacks including dreaming about the car accident, heart palpitations, shaking and sweatiness. She stated that she experienced twitching in both eyes and required regular facial Botox injections which provided three to five months relief of symptoms. She stated that her husband returned to Germany in March 2005 because of his father's illness, and has since advised her that he is not returning. She claimed that as a result of the accident she has lost her
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husband, her house, and her car; the property losses being due to her inability to work. 8 The plaintiff stated that she attends her general practitioner, Dr Fitzgerald of the Southport Medical Centre, on approximately a monthly basis, but that she has not advised him that her problems are accident related, because of detrimental financial implications. Dr Fitzgerald administers injections, and in addition the plaintiff has undertaken acupuncture and hydrotherapy. 9 So far as medication is concerned the plaintiff stated that she might take up to 12 Mersyndol Forte a day; two Temazepam nightly to enable her to sleep; and Voltaren daily for back pain. Additionally she takes anti-depressants, laxatives and cardiac medication. She had been prescribed a sling support for her left arm in 2004, although she had been advised not to use it constantly. 10 She returned to Queensland in June or July 2004 because her eldest daughter had a Bond University scholarship. 11 It appeared from the plaintiff's evidence that her medical and pharmaceutical requirements had been truncated because of her financial incapacity. The Botox treatment cost approximately $380 and she had undertaken that treatment three times in Queensland. 12 Her symptoms and the effect of the medication limited her driving ability. Back pain was aggravated by sitting for prolonged periods of time, and walking. She claimed to have had a severe attack of neck and shoulder pain and headache the day before trial, necessitating an ambulance transfer to hospital. 13 The plaintiff stated that her eldest daughter Sabina provided her with necessary assistance around the home, as did a Mexican female student who she provided with free accommodation in exchange for domestic assistance such as ironing and cleaning. Although the evidence was somewhat vague, it appears that the Mexican student resided with her for seven or eight months. Additionally the plaintiff obtained hairdressing assistance from a friend, Emily Miller, and general assistance from her mother who came to Australia and stayed with her for 2½ months in 2004 and attended to cooking duties, house cleaning and the like. 14 The plaintiff tendered a copy of her income tax return for the financial year ended 30 June 2002 (Exhibit 1) which disclosed that she earned $4,198 gross from nursing activities. Other financial
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documentation (Exhibit 2) demonstrated that she did not work between 10 February 2002 and the date of the accident. 15 In cross-examination the plaintiff confirmed that she has not obtained her formal nurses registration, and that such work as she had done in Western Australia was as a personal care worker. She had not worked between 13 January 2002 and the accident, although she had been overseas for a period of approximately 1½ months immediately preceding the accident. 16 She stated that at the time of the accident she had several cartons approximately 25 cm x 40 cm containing domestic items such as books, ironing, clothes and kitchenware stacked on the rear seat immediately behind her. The vehicle was relatively new and she was using a properly fitted operational seatbelt. She was adamant that her vehicle was stationary for some time before the defendant's vehicle collided with it, and that the collision forced her vehicle into the centre of Main Street where it mounted the median strip. 17 The plaintiff stated that the defendant came to the driver's window and spoke to her. He smelt of alcohol. She was adamant that notwithstanding the seatbelt she was forced forward so that her face hit the steering wheel causing a tooth fracture and facial bruising; and that one of the cartons from the rear seat struck the left side of her neck. Facial bruising of a red and greenish colour was apparent shortly after the accident, and was observed by Dr Beshay. She stated that the defendant told her that he would pay for the damage to her car and requested her not to involve the police. He wrote his name and particulars on a piece of paper which he handed to her, and then evacuated the area while her car was still on the median strip. 18 The plaintiff denied the propositions put to her that the accident occurred when she stopped her vehicle at Main Street, moved forward a short distance and then stopped again; that the impact was minor; and that subsequent to the impact she got out of her vehicle and examined the damage before driving off after exchanging particulars having provided the defendant with paper to write on. 19 The plaintiff claimed not to have been aware of the cost of damage to the vehicle, and stated that she told some doctors that it was approximately $1,500 because that was her estimate. She asserted that in fact she paid $800 to a friend of her husband to carry out repairs to the vehicle, which was undertaken several days after the accident. She also
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said that the vehicle was repaired after about a month, and was vague about the nature and extent of the damage. 20 The plaintiff claimed to have been conscious of the fact that she was under surveillance, stating that she had struck the investigator with her bag and told him on occasions to leave her alone. She claimed to have been aware of his presence in February 2003, and claimed that she had been watched by two investigators. 21 The plaintiff was shown video surveillance footage taken of her. 22 Film taken on 5 February 2003 showed her walking normally, with a small female child, alternatively carrying a bag in her left arm or over her left shoulder. She was driving without apparent difficulty. 23 Film taken on 10 February 2003 showed her again walking normally with the female child, and with a bag held in her right hand. She was driving normally and is seen shopping, selecting various items of clothes which she takes from clothing racks, and carrying a supermarket shopping basket containing various purchases, with no apparent signs of restriction. 24 On 11 February 2003 she is observed driving her vehicle without apparent difficulty, alighting from the vehicle in similar manner, walking normally accompanying the female child, and shopping without apparent restriction. 25 Film taken on 1 April 2003 shows the plaintiff walking in an unremarkable manner, and standing with a group of other persons before entering a building. 26 On 2 April 2003 she was filmed walking in an unrestricted manner carrying a bag in her left hand and shopping in her right hand. She is depicted shopping during which she tries on shoes. She is also seen to be carrying shopping in the left hand. 27 On 11 April 2003 she is seen walking with her young daughter and carrying bags in her left hand. Also driving her car without difficulty. 28 Film taken on 19 January 2004 shows the plaintiff shopping, but on this occasion with her left arm in a sling. Apart from that there did not appear to be any other abnormal behaviour. 29 Film taken on 20 January 2004 shows the plaintiff walking with an older female, with her left arm in a sling and carrying a bag over her right shoulder. The same position appears on 21 January 2004.
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30 Film taken on 14 June 2005 shows the plaintiff walking normally and displaying unremarkable arm movement whilst carrying a bag in the right hand. She entered her car with no apparent discomfort.
31 Observations undertaken at the Perth Airport on 28 June 2005 show the plaintiff checking in, transporting luggage on a trolley with brisk and free body movements, and bending without restriction on several occasions.
Dr Magda Beshay 32 Dr Beshay, who practises with the Stirling Central Medical Group, saw the plaintiff on 31 May 2002 and thereafter on a further 13 occasions up to 19 October 2002. The plaintiff had seen another member of the practice on 30 May 2002. Dr Beshay's reports of 4 August 2002 and 2 November 2002 were received in evidence (Exhibits 6.1 and 6.2). 33 In her report of 4 August 2002 Dr Beshay stated that the plaintiff presented with very restricted neck movements, complaining of severe headache, and was provided with anti-inflammatory medication and a cervical collar. Thereafter she developed twitches in her right eye, increasing headaches, and an inability to sleep. She was referred to an ophthalmologist and a neurosurgeon. Some time after the first consultation she began to complain of pain in the right lower back, referred pain to the back of the right thigh, and right shoulder blade pain. She also complained that she was nauseous. 34 Dr Beshay reported that the neck and lower back pain improved considerably with physiotherapy and acupuncture, although the plaintiff was continuing to take Nurofen and Temazepam. She prognosticated improvement in the plaintiff's condition over six to nine months. She noted that the plaintiff had disc surgery at the L4/5 level some three years earlier, and that the back pain of which the plaintiff complained was at that level. She reported that the plaintiff frequently presented in a debilitated psychological state. 35 In her report of 2 November 2002 Dr Beshay recorded that the plaintiff began to complain of low back pain localised to the left paravertebral region with referred pain to the left buttock about a month post-accident (the earlier report refers to right-sided pain). As at the date of the report the plaintiff was still complaining of pain and stiffness in the cervical spine, and restricted right shoulder movement.
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36 In evidence Dr Beshay stated that the plaintiff was keen to see a specialist. She stated that at the first consultation the plaintiff had a small bruise on the right chest wall which the plaintiff related to the seatbelt. Dr Beshay did not in her reports or oral evidence address any facial or dental injuries or problems with the left shoulder or arm.
Professor Frank Louis Mastaglia 37 Professor Mastaglia, a consultant neurologist, examined the plaintiff on 27 November 2003 and 23 June 2005, in each case apparently at the request of her solicitor. His reports of 1 December 2003 and 28 June 2005 relating to each consultation were received in evidence (Exhibits 4.1 and 4.2). 38 In his report of 1 December 2003 Professor Mastaglia recorded the circumstances of the accident as told him by the plaintiff, being essentially as outlined by the plaintiff's evidence. The plaintiff told Professor Mastaglia that her husband had to come and pick her up after the accident, and that she developed severe headache and nausea, and attended her general practitioner. About a week after the accident she began to experience involuntary movements of the right upper limb and both eyes. The plaintiff complained to Professor Mastaglia of persisting left-sided neck and head pain increasing in severity, with radiation of pain to the left suprascapular area and left arm. She advised him that she had to use a left arm support. 39 Professor Mastaglia reported that examination demonstrated 20 per cent reduction of the normal range of cervical movement, with predominantly left-sided neck and suprascapular pain and tenderness over the mid and lower cervical areas extending down over the upper and mid thoracic areas. There was a full range of lumbar sacral spinal movement. He stated that examination revealed the left arm held preferentially at the side in a semi-flexed position with severe pain in the left suprascapular area when the arm was elevated or the shoulder rotated. 40 Based upon the clinical presentation Professor Mastaglia concluded that the plaintiff had suffered a significant musculo ligamentous injury to the cervical and upper thoracic spine and left suprascapular area, resulting in persisting pain, limitation of movement, and impairment of left upper limb function. He stated that the complaints of severe headache and recurrent vomiting also suggested that the plaintiff had suffered a concussive head injury. He referred to the development of dystonic movements involving the periocular muscles, jaw, tongue and right upper limb. Professor Mastaglia concluded that the plaintiff was unfit for
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gainful employment. He assessed her residual disability as 10 per cent in relation to the neck, 10 per cent in relation to the left upper limb, 2.5 per cent in relation to the back and 5 per cent in relation to the face, tongue and jaw movements, classifying the disability as moderate in severity. He stated that she would require botulinum toxin injections to control the involuntary facial movements. 41 In his report of 28 June 2005 Professor Mastaglia noted that the plaintiff continued to experience neck, left shoulder and upper limb, and lower back pain and daily headaches. He noted that she was receiving Botox injections which had resulted in considerable improvement in her facial movements. She was also taking Mersyndol Forte, Voltaren and Temazepam. Examination at the time of the second consultation indicated 20 to 25 per cent restriction of cervical movement, with pain and tenderness at the extremes of movement and over both sides of the neck. The lumbosacral spinal movements were also restricted. There was a remarkably reduced range of left shoulder movement with severe pain. Examination demonstrated that she kept the left arm in a semi-flexed position at the side when she walked because of the painful shoulder, and had difficulty bending. 42 Professor Mastaglia concluded that there had been little change in the plaintiff's condition, but felt that he had underestimated the level of disability in relation to the left shoulder which he increased to 30 per cent. 43 In evidence Professor Mastaglia stated that the upper limb problem had deteriorated between the consultations. He stated that the prognosis was extremely poor and that the surveillance material (Exhibit 3) had not caused him to change his views.
Philip Michael Finch 44 A general practitioner Dr Sam referred the plaintiff to Dr Finch, a specialist in pain management, who saw her initially on 11 December 2002 and subsequently on 16 and 31 January 2003, 3 April 2003 and 26 June 2005. His reports of 11 December 2002, 16 January 2003 (2), 3 April 2003 and 27 June 2005 were received in evidence (Exhibit 5.1 to 5.5). 45 On 11 December 2002 following the first consultation he reported that the plaintiff had indicated that there was $1,500 damage to her vehicle and that she sustained bruising over the right chest with the development of cervical pain, headaches and blepharospasm, particularly of the right eye. About a month following the accident she claimed to
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have developed increasing low back pain radiating into the right lower limb necessitating the use of a walking stick. In fact it appears that she was using a walking stick when she attended the first consultation. She indicated that her cervical pain was worse on the left, and associated with headaches. She also referred to an earlier laminectomy which she told him had left her with some persisting low back symptoms. 46 Dr Finch described the plaintiff as miserable, depressed, and exhibiting significant pain behaviour. He referred to the use of the walking stick, stating that she had difficulty even getting on to the examination couch, and had a gross limp favouring the right lower limb. There was tenderness over the right lumbosacral facet joint, and a reduced range of cervical movement in all directions. There was exquisite tenderness over the left cervical facets particularly at C2/3 and C3/4. He reported that her main pain state appeared to emanate from the upper cervical facet joints on the left, associated with occipital frontal headaches. He referred to gross pain behaviour and depression, and suggested psychological management. 47 In a report to Dr Sam dated 16 January 2003 Dr Finch stated that the plaintiff's main problem appeared to be left cervical pain and occipital headaches coupled with facial twitching and pain, and widespread trunk, low back and right lower limb pain. 48 In his report to the plaintiff's solicitor dated 3 April 2003 Dr Finch referred to the normality of radiological investigations. He recorded that he performed left C2/3 segmental blocks on 31 January 2003 which resulted in lessening of the occipital headaches and cervical pain for a short while, indicative of difficulty in that area. It does appear, however, that he had explained to the plaintiff that a lessening of symptoms following the procedure would support a diagnosis of injury. He reported that the plaintiff's work capacity was significantly compromised. 49 In his report of 27 June 2005 Dr Finch recorded: "On examination your client was a depressed, quiet female who exhibited moderate pain behaviour. She had an antalgic limp favouring the right lower limb. She could reach to the knees with her fingertips in lumbar flexion. Extension was similarly limited. She was tender over the lumbosacral segment. She had a weakly positive right sciatic stretch test and hypoalgesia in the lateral aspect of the right calf and foot. There was weakness of
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dorsi and plantar flexion of the right foot on repeated movement. Reflexes were intact. In the cervical region there was a reduced range of cervical movement which appeared to be greater than 50 per cent of range. She tended to hold the left upper limb adducted to her trunk. She had hypoalgesia over the medial three fingers of the left hand but reflexes were intact. She also had a global reduction in motor power in the left upper limb. I examined her left shoulder, noting that she could only voluntarily abduct to about 90º from the vertical. She was tender over the lateral and posterior aspect of the joint, and in particular in the region of the supraspinatus tendon. She continued to have a degree of blepharospasm." 50 It is clear from his reports and oral evidence that Dr Finch's assessment was predicated upon subjective factors, there being little or no objective evidence of injury. He concluded that the plaintiff was unfit for employment because of residual disabilities in the cervical and lumbar spine, and left shoulder, upon which a psychological factor was superimposed. 51 Dr Finch stated in evidence that the plaintiff was only able to raise her left arm 90 degrees, that is to shoulder level, and the reduction in cervical movement was greater than 50 per cent. Dr Finch thought that he had only seen the plaintiff using a walking stick on one occasion, and commented "incidentally she's walking up and down outside without a walking stick". He had no recollection of the plaintiff using an arm sling. He stated that the plaintiff advised both his nurse and himself that there was $1,500 damage to her vehicle. He observed at the last consultation that the plaintiff demonstrated that abduction of the left arm was limited to 90 degrees. 52 Dr Finch indicated that it was not possible to measure pain, and therefore diagnostically it was necessary to rely on a patient's complaint of pain and on behaviour. 53 I got the impression from the manner in which Dr Finch gave his evidence that there was a reluctance to wholeheartedly support the plaintiff's symptoms.
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Dr Claudio Nick De Felice
54 Dr De Felice, a psychiatrist, saw the plaintiff on referral from her solicitor on 5 August 2003 and more recently on 20 June 2005. His reports of 5 August 2003, 20 June 2005 and 23 September 2005 were tendered in evidence (Exhibit 8.1 to 8.3). 55 The report of 5 August 2003 sets out the circumstances of the accident as told to Dr De Felice by the plaintiff, and particularly that when her car was shunted forwards into Main Street she observed a jeep coming from her righthand side causing her to be fearful for herself and children. That appears to be a significant factor in his diagnosis of post-traumatic stress disorder. The plaintiff told Dr De Felice that she was unsure of the amount of damage to her vehicle. Dr De Felice set out details of the plaintiff's symptoms and treatment, and the account given him by the plaintiff of the extent to which her symptoms truncated her amenities went beyond her evidence. 56 The plaintiff told Dr De Felice that she was constantly depressed and tearful, and had a total loss of libido. She described what Dr De Felice diagnosed as panic attacks. Dr De Felice concluded that the plaintiff suffered from post-traumatic stress disorder, and a major depressive episode subsequent to the motor vehicle accident. He did not consider that the twitching of her right eye was causally related to medication, and thought that it might be secondary to anxiety and distress. 57 He reported that she was unfit for work by reason of her psychiatric symptoms, the duration of which was dependent upon response to treatment, and anticipated some graduated resolution in 6 to 12 months. He rated the psychiatric symptoms as of moderate severity. He recommended psychiatric assistance at the rate of four appointments a month for 12 months and then four appointments a year for a further two years at a cost of between $172 to $220 per consultation. Psychotic pharmaceutical requirements costing approximately $100 per month would be required for a further two to three years. He also recommended 10 to 15 psychological sessions, and monthly general practitioner attendances for two years. 58 In his report of 20 June 2005, following a review that day, Dr De Felice noted that the plaintiff claimed her pain state had deteriorated and that she was experiencing neck pain, left shoulder and arm pain, upper back pain, and daily headaches. Her eye twitching had improved following Botox injections. The plaintiff told Dr De Felice that she had a shower chair and rails in the bathroom, and that at times her
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daughter would have to assist her undress because she was unable to elevate her left hand. She claimed that her domestic obligations were seriously compromised, and that she was restricted in driving. She claimed to have monthly nightmares of the accident, was frightened to drive, and was always thinking that another vehicle would crash into her. She claimed to have panic attacks several times a month. She limited her driving to several times a week because of pain and safety issues. She claimed to ingest Temazepam to enable her to sleep, Voltaren, and 10 to 12 Mersyndol tablets per day for pain. 59 Dr De Felice reported that the plaintiff held her left arm rigidly at her side throughout the consultation, and that she was very focused on her pain. He again concluded that she had ongoing symptoms of major depression and residual symptoms of post-traumatic stress disorder, which rendered her unfit for work, although stating that her chronic pain remained the primary limitation to a return to work. He considered that it was unlikely that she would recover to the extent of being able to return to work. 60 Dr De Felice reassessed the requirement for psychiatric assistance, stating that the plaintiff would need to consult a psychiatrist monthly for at least 12 months to 2 years, and then four to six times per annum for the foreseeable future, the cost of such appointments being of the order of $185 to $245. In addition 10 to 15 consultations with a clinical psychologist at a cost of $176 per consultation was appropriate, and monthly appointments with a general practitioner for two years. 61 Dr De Felice addressed the surveillance videos in his report of 23 September 2005. He reported that it raised questions as to the frequency of the plaintiff's driving, and of the veracity of her statements in that regard. He commented also on the apparent change of symptoms from the right to the left upper limb and reported: "Other than this, I didn't find any of the footage on the video surveillance to alter my opinion in regard to her chronic pain syndrome. I will leave it to the Court as to whether it considers Ms Muminovic is intentionally inducing or feigning her pain symptoms. I couldn't come to that conclusion based on my history and mental state examination, the medical evidence and the video surveillance I viewed." 62 He reported that if the plaintiff's claimed pain could not be explained by physical injury, then the appropriate diagnosis was chronic pain
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disorder or somatoform disorder, which was psychological distress expressed in physical terms. 63 In evidence he stated that if her chronic pain was the result of a psychiatric condition, she had a significant disability. 64 Dr De Felice agreed that one of the essential diagnostic criteria for post-traumatic stress disorder was that the individual experienced an event that involved actual or threatened death, serious injury, or threat to the physical integrity of the individual or others, engendering intense fear, helplessness or horror in the individual. He agreed that the fear induced by the jeep bearing down on the plaintiff's vehicle was a critical factor giving rise to her condition.
Dr Andrew Craig Harper 65 The plaintiff's solicitor referred her to an occupational physician, Dr Harper, who saw her on 22 August 2003 and subsequently on 17 June 2005. His reports dated 22 August 2003 and 17 June 2005 were received in evidence (Exhibit 10.1 and 10.2). 66 On 22 August 2003 Dr Harper reported that the plaintiff told him her stationary vehicle was rear-ended, pushed into a line of oncoming traffic, and she narrowly avoided an oncoming jeep by accelerating out of its way. She was struck on the left side of her head and neck by a number of the boxes in the vehicle. The report sets out the account given by the plaintiff of the development of symptoms including low back pain radiating to the right leg within two days of the accident, and thoracic pain radiating to the right arm within four to five months of the accident. He noted that she was ingesting Voltaren, Mersyndol Forte, Temazepam, Rani 2 (for gastric upset) and a laxative. 67 The plaintiff's presenting symptoms were recorded as constant significant left-sided neck pain with radiation to the left arm eased by supporting the arm in a sling; significant headache particularly left-sided; left arm symptoms including swelling of the hand; constant thoracic pain; facial pain and involuntarily movements including jaw pain; and mood changes. Radiological examination was essentially unrewarding. 68 Dr Harper noted that the plaintiff claimed to be significantly disabled socially and domestically, and that her presentation indicated that she was in some physical and emotional distress. Her left arm was in a sling. He considered that there was limitation of thoracolumbar spinal movement, left shoulder movement, and neck movement (approximately 75 per cent
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of normal). There was left-sided cervical spine and trapezius tenderness, and movement of the arm (presumably left arm) was limited due to aggravation of neck and upper back pain. He attributed all her symptoms to the accident, and concluded that she was incapacitated for all forms of gainful employment, considering that incapacity was likely to continue for some two to three years. He stated that the plaintiff required neurological, psychological and pain management treatment, supervised by a general practitioner. 69 In his report of 17 June 2005 Dr Harper referred to the fact that the plaintiff had received two injections to the left shoulder from Mr Desmond Williams, which had been helpful, as had nerve blocks performed by Dr Finch. In addition she had had benefited from Botox injections. She had, since his first consultation undergone acupuncture, physiotherapy, hydrotherapy and massage. She was taking Voltaren, Temazepam, anti-depressants, and 10 to 12 Mersyndol Forte per day. The report suggests that her symptoms were basically unchanged, although recording some emotional improvement. Low back and leg pain was intensifying. 70 He reported: "Regarding activities of daily living, she is helped with dressing by her daughter. She uses a shower chair and she has ergonomic adaptations in her house to assist her with her self-care. As mentioned, her daughter is helping her a great deal with tasks such as changing beds, housework, shopping and cooking. She is also getting help from a live-in student. Her walking has become increasingly limited due to back pain. Sitting and standing tolerance continue to be restricted and limited. She has discontinued having a cleaning lady who has been replaced in effect by the student. Driving capacity is reduced." 71 Dr Harper reported that the plaintiff was walking with a limp favouring her right leg. She was not using her left arm which she held to her side. He recorded that she did not appear to be in physical distress, although the range of back movement was significantly reduced, as was cervical movement, and there was lumbar and cervical tenderness, and tenderness over the suprascapular musculature on the left. Dr Harper considered that her general condition remained unchanged in that there were multiple symptoms which he observed were difficult to explain exclusively on the basis of physical injury. He felt there was a strong
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psychiatric component to her disability. He considered the plaintiff unfit for employment, and prognosticated that the position would be permanent. He reported: "She has severe residual physical disability which has originated from physical injury but is perpetuated by psychiatric illness. It is difficult to proportion physical and psychological factors but it appears that psychiatric factors predominate." 72 In the course of his evidence Dr Harper conceded the obvious, namely that diagnostically he was reliant upon the validity of the plaintiff's subjective complaints. He stated that the plaintiff had symptoms indicating emotional distress consistent with psychiatric illness.
Desmond Lionel Williams 73 Mr Williams, an orthopaedic surgeon, saw the plaintiff on 24 March 2004 and reviewed her on 14 April 2004, 29 April 2004 and 19 May 2004. His reports of 24 May 2004 and 3 June 2004 were received in evidence (Exhibit 11.1 and 11.2). 74 In a report dated 24 May 2004 Mr Williams observed that the plaintiff kept her left arm in a sling and had considerable pain and restriction of movement in the cervical spine, the left shoulder, and the thoracic and lumbar areas. She had difficulty getting up from the chair to be examined. He reported that plain x-rays showed a little arthritis in the cervical spine, particularly in the upper facet areas, and some minor arthritis in the lower lumbar area. 75 Ultrasound examination of the left shoulder revealed multi directional restriction of movement due to pain, although otherwise it appears that there was no objective evidence of joint pathology. The subacromial subdeltoid bursa was moderately thickened and bunched on restricted abduction, and there was some tenderness over the left acromioclavicular joint. Because of bursitis and irritability in the acromioclavicular joint, Mr Williams gave a left glenohumeral joint injection, and a further injection into the subacromial subdeltoid bursa on 13 May 2004. It appears that neither injection resulted in any significant improvement in the range of movement. Mr Williams acknowledged that the plaintiff presented with marked restriction in functional capacity which was much more than would have expected from the demonstrable pathology. 76 Dealing specifically with the cervical spine, Mr Williams reported:
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"She has marked restriction in cervical motion in all directions with less than half range and in the left shoulder abduction pain at 90 degrees of abduction and with virtually no thoracicolumbar motion with very limited motion and restriction and difficulty in terms of getting out of the chair … . With regard to her spine, she presents with marked restriction in motion range overall and the underlying pathology is not displayed on the plain x-rays so there may well be significant psychological issues influencing her spinal function." 77 He concluded the plaintiff was not able to compete in the open workforce, and needed physical and psychological treatment. He stated that the relationship of the shoulder injury to the motor vehicle accident was uncertain, as there was no evidence of a direct blow to the shoulder. 78 In describing in evidence the purpose of the injection given on 10 May 2004 Mr Williams said: "She had restriction (of the left shoulder) so it was a stiff shoulder. She had a subacromial bursa that was moderately thickened and bunched on abduction, so if she lifted it up it was bunching and restricted. She had no rotator cuff tendonopathy or tears so it was a bursitis and the bursitis in the subacromial area responds well to steroid injections that area ultrasound guided so that they are accurately targeted." 79 Mr Williams thought that the left shoulder must have struck the steering wheel at the time of the accident to cause the condition.
Peter Christie Anderson 80 Mr Anderson, a retired orthopaedic surgeon, saw the plaintiff on 3 October 2002, 28 February 2003 and 14 October 2005 at the request of her solicitor. His reports dated 15 October 2002, 4 March 2003 and 16 October 2005 were received in evidence (Exhibit 12.1 to 12.3). 81 The report of 15 October 2002 recorded the plaintiff's accident related symptoms as headaches, ocular sensations, cervical pain and stiffness, pain in the right shoulder and sensory disturbance in the right hand, back pain and right-sided sciatica. Mr Anderson assessed that there was a 50 per cent reduction in the range of cervical movement, although no radiological evidence of pathology. Right shoulder movement was restricted by 25 per cent. He indicated that examination of the right hand demonstrated altered sensation and muscle weakness. Lumbar spinal
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movement was reduced by about 50 per cent. Mr Anderson considered that the plaintiff was severely compromised by reason of her symptoms, and recommended a supervised exercise programme. 82 In his report of 4 March 2003 Mr Anderson noted that the plaintiff's clinical position as assessed on 28 February 2003 was basically as it had been on 3 October 2002. He reported that she had an extreme disability because of the inter-relationship of her musculoskeletal symptoms and her emotional state. 83 In his final report Mr Anderson referred to the left shoulder problem. He noted that the range of movement in both the right and left shoulder was approximately normal, but considered that there was a 10 per cent impairment of function of the left arm because of rotator cuff syndrome. He referred also to right-sided sciatica and altered sensation in the right foot. 84 In the course of his evidence Mr Anderson stated that on her initial presentation he did not think the plaintiff had a serious musculoskeletal disability. He pointed out that initially she had presented with right upper limb symptoms, but on his final review the problems were with the left upper limb. At final review the plaintiff presented with a 50 per cent reduction in the range of cervical movement.
Ratan Cavashah Edibam 85 Mr Edibam, a senior orthopaedic surgeon, saw the plaintiff at the request of the Insurance Commission on 16 August 2002 and reviewed her on 24 February 2004. His reports of 16 August 2002, 24 February 2004 and 28 September 2005 were received in evidence (Exhibit 9.1 to 9.3). 86 In his report of 16 August 2002 Mr Edibam recorded the plaintiff's account of the accident as follows: "She was stationary and was hit in the rear by another causing her vehicle to be pushed forwards into the main street, fortunately there was no further collisions. She remembers being jerked forwards and backwards. She hit her head on the steering wheel, the seat mountings came off and the seat moved forwards. She was driving a small Toyota Echo and the damage to the vehicle was approximately $1,500 to repair."
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87 He recorded her presenting complaints as including severe headaches, ocular and facial symptoms, and neck, shoulder, back and left leg pain. Mr Edibam reported that formal examination demonstrated inconsistencies in the demonstrated range of lumbar movement and lower limb neurological signs, and he concluded that there was abnormal illness behaviour. He was unable to identify any objective evidence of injury, but noted radiological evidence of operative intervention to the lumbar spine pre-accident. He regarded the prognosis for both the cervical and lumbar spine as excellent, and did not feel that there was any necessity for treatment.
88 In his report of 24 February 2004 Mr Edibam recorded that the plaintiff attended him that day with her left arm in a sling because of pain radiating down the arm from the left side of her neck. She did not complain of any problems with the right arm. She was continuing to complain of neck pain, upper thoracic pain, a minor degree of back pain, and intermittent right leg pain. Clinical examination revealed widespread generalised tenderness in the cervical spine with marked limitation of movement. Mr Edibam expressed the conclusion that the plaintiff's symptomatology was not related to any abnormality either in the cervical or lumbar spine, and was unable to demonstrate any injury to either area. 89 In his final report dated 28 September 2005 Mr Edibam addressed the video surveillance which he described as demonstrating the plaintiff: "… walking, shopping, moving her neck normally, bending normally, using her left and right upper limbs without any difficulty. She gave no impression of being in any pain or discomfort. On 28 January 2004 Mrs Muminovic was seen wearing a sling holding her left upper limb and during that period I noticed there was a dressing on her thumb. On 13 June 2005 she was not wearing the sling and she was moving both her upper limbs normally. Later she was seen at the Airport carrying luggage on a small carry trolley and seen at the booking counter unloading the luggage". 90 He stated that she did not give the impression of the person who had been complaining to him of the widespread symptomatology allegedly being experienced.
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John Graham Rosenthal
91 The defendant referred the plaintiff to Dr Rosenthal, a specialist in rehabilitation medicine, who reviewed her on 11 February 2004, and his reports of 11 February 2004 and 1 September 2005 were received in evidence (Exhibit 13.1 and 13.2). 92 In his report of 11 February 2004 he noted that the plaintiff had undergone surgery for an L4/5 disc protrusion in December 1999 which she stated had left her with mild residual back pain. When describing the circumstances of the accident to Dr Rosenthal the plaintiff indicated that her car remained drivable, and that initial repairs were undertaken by a friend to whom she paid $800, further repairs being later carried out by an insurance company. Dr Rosenthal recorded that since the accident the plaintiff had complained of headaches, neck pain, facial twitching, involuntary jaw movement, left shoulder and arm pain, and upper back pain. A temporary accident caused aggravation of the low back pain had resolved. 93 Dr Rosenthal noted that radiological investigations had not demonstrated any relevant pathology. He observed that the plaintiff had her left arm in a sling, which device she claimed to use for up to four hours per day. On examination Dr Rosenthal noted that the plaintiff blinked frequently, with some involuntary jaw movement. There was global inhibition of cervical movement by more than 50 per cent and the plaintiff "meticulously avoided neck movement during the lengthy interview". Although the plaintiff would not abduct or flex the left arm beyond 90 degrees there was no wasting around the left shoulder and there was full internal rotation. Although she complained of numbness over the left arm there was no obvious sensory change. 94 Dr Rosenthal reported that the plaintiff had suffered a soft tissue cervical strain, but presented with disabilities quite out of proportion to the seriousness of the accident, and exhibited abnormal illness behaviour. He considered the facial symptoms as anxiety based. He reported: "From the perspective of musculoskeletal medicine, this has been a mild injury. There has been an incredibly protracted and expensive process of medicalisation which has only served to reinforce illness behaviour. There are historical and clinical inconsistencies. The variability of her complaints reinforce my view that the situation is being driven by psychosocial issues … From the perspective of musculoskeletal medicine, any degree of permanent disability would be of a very low order."
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95 The report of 1 September 2005 details Dr Rosenthal's assessment of the surveillance films tendered in evidence. He described the observations made on 5, 10 and 11 February 2003 as demonstrating the plaintiff exhibiting normal gait and upper limb function, and full cervical rotation in both directions. He observed that the plaintiff was able to get into her vehicle without any apparent difficulty, and rotate her neck whilst driving. Observations made 1, 2 and 11 April 2003 demonstrated the plaintiff with unrestricted neck movement and appropriate upper limb function. Observations made 19, 20 and 21 January 2004 and 4 February 2004 showed the plaintiff with her left arm in a sling, but using it. The observations demonstrated normal gait and full cervical movement. There was normal right upper limb function. Observations made on 28 June 2005 showed the plaintiff at the Airport wheeling luggage, with no apparent restriction in neck or upper limb function.
96 Dr Rosenthal stated that the level of function seen on the video films was quite inconsistent with the plaintiff's clinical presentation to him on 11 February 2004 and suggested that it demonstrated that the claimed restriction at that time was conscious and intentional.
Peter David John McCarthy 97 The defendant referred the plaintiff to Dr McCarthy for psychiatric assessment, and following consultations on 14, 17 and 21 June 2005 he issued a report dated 29 August 2005 (Exhibit 14). Dr McCarthy set out the circumstances of the accident as described by the plaintiff, basically in line with the account given by her in evidence. The plaintiff recounted her accident caused symptoms to Dr McCarthy stating in particular that the back pain, which had almost settled after the surgery of 2000, came back after the accident, radiating to the right leg, and was constantly present. She said to him: "I can't tell you how bad the pain I have is". 98 The plaintiff told Dr McCarthy that she developed anxiety and depression following the accident, the anxiety being initially associated with driving a vehicle, and including disturbed sleep and nightmares of the jeep approaching her vehicle. She stated that she was developing panic attacks characterised by shaking, palpitations, tremor, and fear, approximately twice a month. She stated that she had been referred to a psychiatrist, Dr Proud, for treatment, and that he recommended anti-depressants which she was not prepared to take. 99 The plaintiff told Dr McCarthy that at times she was so sick she could not move, and that the pain was so bad she was unable to micturate. Dr McCarthy concluded that the plaintiff was suffering from a major
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depressive order of moderate severity in partial remission; a panic disorder with mild agrophobia also in partial remission; and a chronic pain state with a degree of abnormal illness behaviour. He stated that the plaintiff claimed to be taking 12 Mersyndol Forte tablets a day which amounted to 360 mg of Codeine, and she was likely to be suffering rebound headaches from the excessive medication. He commented that despite her complaint of considerable consequences from symptoms, she had maintained a curiously irrational rejection of anti-depressant medication, whilst at the same time taking enough analgesic medication in the form of Codeine to significantly contribute to her symptoms. 100 He reported "I believe that all we can say is that she complains of chronic pain in the midst of circumstances that strongly suggest non-organic or psychological contributions to her complaints of pain". He was prepared to accept that she may have suffered post-traumatic stress disorder, although at the time he saw her it had basically resolved. He considered that abnormal illness behaviour, the change in the structure and functioning of her family, and her regression into an invalid state, made it unlikely that she would return to work in the foreseeable future. He felt that her inability to return to work was not the result of unconscious or involuntary psychological mechanisms, nor to any formal psychiatric disorder, but rather to the influence of social, family, personality and cultural factors. 101 He was surprised at the claimed absence of a previous psychiatric history because the alleged decline in her functioning since the accident was far greater than would be expected from the injuries she may have suffered. Whilst he was prepared to accept the accident may have precipitated or significantly contributed to a degree of anxiety and depression, it was his view that as at the date of the consultation the main cause of her psychiatric impairment was her personality, the change in her lifestyle with the assumption of invalid coping mechanisms, abnormal illness behaviour regressing to dependent behaviour, estrangement from her husband, difficulty with her daughters, a degree of social isolation, hypochondriacal elaboration of her symptoms, and her refusal to access reasonable psychiatric care. 102 Dr McCarthy was of the view that if the plaintiff appropriately addressed her psychological state, her symptoms would settle completely. He felt she would benefit from 12 months psychiatric care, including appropriate anti-depressant medication. He concluded his report by stating:
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"I do not believe her current psychiatric difficulties are either directly or indirectly attributable to the accident in question but rather they were attributable to non-accident related events including family discord which appears to have mainly resulted from her own behaviour and a variety of personality issues. I do not believe her current psychiatric difficulties represent residual impairment from the accident but rather the evolvement of her invalid state since the time of the accident, which I do not believe is attributable to the accident, but rather the other factors mentioned above." 103 During his oral evidence Dr McCarthy was referred to the surveillance films which he stated did not significantly alter his opinion, save that it demonstrated the plaintiff appeared to be quite functional both physically and psychiatrically. He pointed out that post-traumatic stress disorder was a psychiatric condition where significant trauma was followed by a syndrome consisting of three types of symptoms; re-experiencing symptoms, such as intrusive dreams or nightmares; avoidance phenomena, that is avoiding the feared stressor; and anxious arousal. He stated that the plaintiff presented more with chronic pain and depression than anxious arousal.
Sasson Steven Gubbay 104 Dr Gubbay, clinical professor of neurology and a senior consultant neurologist of longstanding, reviewed the plaintiff at the request of the defendant on 13 June 2005, and his reports of 13 June 2005 and 30 September 2005 were received in evidence (Exhibit 16.1 and 16.2). 105 His report of 13 June 2005 set out the circumstances of the accident as recounted to him by the plaintiff, which were that her vehicle was stationary at an intersection when it was struck heavily from behind and pushed forward into Main Street. A big jeep was coming swiftly towards her vehicle but she was able to accelerate forward and avoid a collision. She was unable to quantify the repair costs to her vehicle because it was fully covered by insurance. 106 The plaintiff recounted her symptoms to Dr Gubbay as including a recurrence of her previous low back pain radiating into both legs particularly the right, discomfort in her right lower medial incisor tooth, headaches, neck pain and stiffness, discomfort in the right upper abdomen, insomnia, left shoulder and arm pain, facial symptoms and depression. The fractured right lower incisor tooth has been repaired dentally. She told Dr Gubbay that her face struck the steering wheel and
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her head sprung backwards whereupon the left side of her neck and face were struck by boxes which had been stacked in the back of the car. The plaintiff indicated that left shoulder and arm pain had been present since the accident, although originally the principal upper limb problem was right shoulder pain, which had been relieved by treatment. 107 On examination Dr Gubbay observed that the plaintiff walked about the examining room with some difficulty limping heavily favouring the right leg, and keeping her left arm flexed. She stated that she was limping because of discomfort coming from her right back into her buttock and thigh, and was holding her left arm in flexion because extension caused pain, particularly in the shoulder region. 108 Dr Gubbay described athetoid movements of the plaintiff's mouth which were much worse when she first presented; became more pronounced when she was addressing that particular symptom; and virtually disappeared when she was engaged in the neurological physical examination. He observed inconsistency in cervical movement performed voluntarily at his request, and when undertaken involuntarily as she was getting up from the couch. He was not able to get the plaintiff to voluntarily move either shoulder through its full range. He expressed the opinion that there was no organic basis for the involuntarily facial movements, and stated generally that there were various inconsistencies evident throughout the consultation and apparent from the past notes. Dr Gubbay stated, perhaps with undue humility, that he was not really qualified to make any definitive statement about the degree of injury to the plaintiff's cervical spine, shoulders and lumbosacral spine, nor her psychological state. He concluded his report by stating: "The inconsistencies in her history which I have mentioned above and in her neck movements, which have also been described, have been of assistance in coming to my conclusions but this does not totally exclude the possibility of a significant residual problem in regard to her orthopaedic and psychiatric consequences." 109 On 30 September 2005, having viewed the surveillance films, Dr Gubbay reported that they variously demonstrated appropriate movement of both upper limbs, appropriate cervical movement, no evidence of restriction of back movement, and no abnormality of facial movement. He reported:
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"You have asked whether the surveillance affects my assessment of Ms Muminovic in any way. My answer to this is in the affirmative. There is a large disparity between the normal functioning that I could observe in the videos that were presented to me, and the symptoms and signs that she exhibited at the time of the consultation with me on 13 June 2005. Although I was loathe to be dogmatic about her case outside of my neurological territory in my report to you, particularly in regard to the orthopaedic injuries to her neck, back and shoulder, I feel that I can certainly commit myself to the fact that it is unlikely that there is any significant abnormality in any of these areas. It does not exclude the possibility that she does have some residual symptoms which she is able to control without any real difficulty. Although as mentioned earlier it is difficult to be certain about involuntary movements with this type of video observation, I feel that there is sufficient detail to be reasonably certain that the movements of her face are not of an involuntary nature."
Jasmin Geoff Sikaloski 110 The defendant who was at the relevant time a purchasing and food outlet manager with the Western Australian Turf Club, gave evidence concerning the circumstances of the accident. He stated that at about 6.35 pm on 29 May 2002 he was driving his Holden Acclaim sedan east in Hutton Street, Osborne Park, accompanied by his partner, Amanda Madeleine Jeanette Fields, who was positioned in the front passenger's seat. They were proceeding to Ms Field's residence at the end of the working day. The defendant stated that as he approached the Main Street intersection he moved into the lefthand turn slip lane and came to a stop approximately a metre behind the plaintiff's stationary vehicle. He stated that his vehicle was stationary for about 10 to 15 seconds during which time he was checking to his right for traffic proceeding along Main Street. He observed the plaintiff's vehicle begin to move forwards and whilst still checking traffic in Main Street released the brake pedal enabling his vehicle to move forward and collide with the rear of the plaintiff's vehicle. At the moment of impact his partner called out to him and he applied the brakes. There was insignificant forward movement of the plaintiff's car, and no movement of his body on impact. He reversed a half to one metre, applied the vehicle hazard lights, and got out and walked between the two vehicles. He observed minor damage "a scratch mark" on the plaintiff's vehicle, and similar damage on the bumper of his vehicle which had been pushed approximately 1½ cm under the lefthand headlight.
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111 When the plaintiff got out of her vehicle she placed her hands on her hips towards her back, and walked around the front of her vehicle and down the lefthand side towards the rear, bending down to examine the damage. The defendant stated that he indicated to the plaintiff that the damage was minor, to which she appeared to protest, and the defendant confirmed that he was insured. As traffic was building up in the slip lane, the defendant suggested to the plaintiff that they move the vehicles out of the intersection. The plaintiff returned to her vehicle and drove it to a carpark to the left of the slip road. The defendant followed. They then exchanged and recorded particulars, the plaintiff having retrieved a pen from the centre console of her vehicle to enable that to be done. The defendant observed a young girl approximately 12 years of age alight from the passenger side of the plaintiff's vehicle.
112 Because he regarded the damage as slight the defendant did not report the accident to the police. Having exchanged particulars the plaintiff and the defendant departed. The defendant emphatically denied the account of the circumstances of the accident given by the plaintiff, and the proposition that he had been drinking. 113 The defendant agreed that the repairs to his vehicle following the accident necessitated the replacement of the front bumper which had been pushed back about one and a half centimetres, and that the cost was approximately $720. The repair estimate was received in evidence (Exhibit 15). 114 When asked in cross-examination to describe the plaintiff, the defendant (who was not present in Court with the plaintiff) provided a very accurate description, which suggests that he had a good opportunity to observe her on the occasion of the accident.
Amanda Madeleine Jeanette Fields 115 Ms Fields, an accounts clerk with the Western Australian Turf Club, confirmed that at the material time she was a passenger in the defendant's vehicle which came to a stop a metre or so behind a silver car in the eastbound lefthand slip lane at the Main Street intersection. She stated that after several minutes the defendant's car started to move and came into contact with the silver vehicle which had moved forward and stopped. As she put it "basically our bumpers just met". Both vehicles remained in the slip lane. She stated that following impact the defendant reversed away from the plaintiff's vehicle and the plaintiff and defendant got out of their vehicles to examine the damage. She recalled the plaintiff getting out and placing her hands on her hips or her back as if she had a
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sore back, and subsequently bending over to look at the damage. She also observed a young female alight from the plaintiff's vehicle. She did not observe damage of any moment. 116 After the plaintiff and defendant had examined the damage they returned to their respective vehicles and drove around into a parking area left of the slip road where they exchanged particulars. She was unable to give any description of the plaintiff's vehicle, save that it was silver and had its brake lights on when the defendant's vehicle stopped behind it. Plaintiff's counsel regarded that as demonstrating that her recollection of events was unreliable, but I do not agree that it has that consequence. Ms Fields did not get out of the vehicle or concern herself with accident details. 117 She stated that the force of the impact did not have any affect on her body.
Findings of fact 118 Notwithstanding the state of the pleadings, it became obvious at an early stage of the trial that the nature and circumstances of the accident was a factual issue of consequence both as to the plaintiff's credit and the likelihood of her having sustained the alleged injuries. When I raised this as a pleading issue, neither counsel appeared troubled by it, although counsel for the plaintiff took a different view in closing. Clearly from the manner in which the case has been fought it has become an issue for resolution in this controversy. 119 The plaintiff asserted at trial, and to various medical practitioners prior thereto, that the accident involved significant forces, propelling her vehicle into the intersection, placing herself and her children in a very traumatic and frightening situation. There are numerous inconsistencies in her various statements concerning what happened in the accident and the extent of the damage to and cost of repairs to her vehicle. I entirely reject her evidence that a friend of the family carried out substantial repair work. That it is unlikely as the defendant who was clearly responsible for the accident was appropriately insured, and the plaintiff would have looked to him for indemnity. It is also unlikely that the plaintiff, being appropriately restrained by a lap sash seatbelt in a modern vehicle, would have struck her head on the steering wheel. Her evidence generally concerning the circumstances of the accident was inconsistent, unconvincing and unsupported.
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120 The defendant impressed me as an honest and thoughtful witness, and his evidence concerning the circumstances of the accident, and his interaction with the plaintiff immediately thereafter, was generally confirmed by Ms Fields. I have observed earlier in these reasons that the defendant was able to give a very good description of the plaintiff which does not sit easily with her evidence of the cursory nature of his involvement with her post-accident, and with the implication in her evidence that he was affected by alcohol.
121 It is not at all surprising that Ms Fields, who was in no way responsible for the accident, could not accurately describe the plaintiff's vehicle. She had no motive to provide the Court with other than her honest recollection of what occurred. I accept her evidence. 122 In the result I am satisfied that the plaintiff consciously misled various medical practitioners, and the Court, when describing the nature of the accident. It is probable that she has done so because of an appreciation of the difficulty of reconciling her claimed injuries with the rather inconsequential forces involved in the accident. 123 The Court heard evidence from 11 medical practitioners of various disciplines including orthopaedics, neurology, pain management, rehabilitation and psychiatry. Three were consulted by the plaintiff on a treatment basis; four as a result of referral by the plaintiff's legal advisor; and four as a result of referral by the defendant. Other treating physicians of various disciplines were not called. The usefulness of such extensive medico-legal involvement in these matters is questionable. 124 As is already apparent from these reasons, the acceptance by a number of the medical practitioners including Dr Finch, Professor Mastaglia, Dr De Felice, Dr Harper, Mr Edibam, Dr McCarthy and Dr Gubbay of the plaintiff's accident history was of diagnostic consequence. That is particularly so in respect of the psychiatric assessments, since the frightening nature of the accident was critical to a diagnosis of post-traumatic stress disorder. The fact that the accident was not of the nature described by the plaintiff necessarily effects the validity of the medical conclusions. 125 Although the medical witnesses were not asked to address the extent to which their assessments would be altered if the accident occurred in the circumstances as I have found them, one does not require expert evidence to conclude that the plaintiff would not have sustained any more than minor injury (if any). That conclusion can be reached by the application
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of commonsense. The structural integrity of the human anatomy is such that prima facie it is unlikely to be adversely compromised by such a minor insult. 126 The view I have formed as to the general credibility of the plaintiff is supported by the surveillance films. Whilst not depicting dramatic physical activities on the part of the plaintiff, they do demonstrate activities inconsistent with her presentation to various medical specialists, and the portrayal of her physical incapacity to the Court. Dr Gubbay provides a very useful summary of the plaintiff's activities as shown in the surveillance film in his report of 30 September 2005 and I agree with his conclusion that there is a large disparity between the normal functioning observed, and the claimed incapacity. I am mindful that the surveillance material did not cause Professor Mastaglia to change his views, but Mr Edibam, Dr Rosenthal, and to a lesser extent Dr McCarthy, appear to share the concerns expressed by Dr Gubbay. 127 Dr Beshay was the first of the medical witnesses to examine the plaintiff, having seen her immediately post-accident. Her report of 4 August 2002 makes reference to right shoulder blade pain and to cervical and lumbar symptoms, the latter having come on about a month post-accident at the level of the previous surgery. There is no reference to facial or dental injuries or left upper limb problems. 128 Mr Edibam was the next practitioner in time to see the plaintiff, and on 16 August 2002 he recorded abnormal illness behaviour (which as I understand it means that her symptom complaints were not matched by appropriate objective pathology) and inconsistencies in clinical examination. When he saw the plaintiff on 24 February 2004 she had her left arm in a sling, but was not troubled by right shoulder or arm problems. 129 Mr P C Anderson saw the plaintiff on 3 October 2002 when she complained (inter alia) of right shoulder and arm pain and at that stage he did not think she had serious musculoskeletal disability. By 16 October 2005 the plaintiff was complaining of difficulties with the left rather than the right arm. 130 Dr Philip Finch observed significant pain behaviour when he saw the plaintiff on 11 December 2002. On 27 June 2005 he made reference to left shoulder problems.
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131 Dr Harper became involved on 22 August 2003 at which time the plaintiff claimed she developed low back pain within two days of the accident, and when he recorded a complaint of left arm symptoms.
132 Professor Mastaglia was consulted on 27 November 2003 and recorded a complaint of right upper limb problems immediately after the accident, although at the time of the consultation the problem was with the left arm. 133 Dr Gubbay was informed by the plaintiff on 13 June 2005 that she had experienced left shoulder and arm pain since the accident. 134 There was general acceptance of an absence of objective pathological signs to support the various complaints of symptoms, and as can be observed from the foregoing, there has been inconsistency in the plaintiff's recorded complaints and particularly the upper limb symptoms. 135 Dr Gubbay, a neurologist of undisputed eminence, concluded that it was unlikely that the plaintiff had any significant abnormality in her neck, shoulder or back. That assessment is supported by Mr Edibam and Dr Rosenthal and borne out by the surveillance material. Such medical support as the plaintiff receives is necessarily dependent upon her reliability as a historian and in the result I do not accept it. 136 The plaintiff carries the burden of satisfying the Court on the balance of probabilities that as a result of the admitted negligence of the defendant she sustained the pleaded injuries, and that the injuries have visited upon her the alleged residual symptoms and loss of amenities. She must do that by putting credible evidence of those matters before the Court. For the reasons I have outlined, I reject the plaintiff's evidence concerning the circumstances of the accident. Generally I found her evidence concerning her injuries and the residual consequences unconvincing. I am not satisfied to the required degree that she sustained any of the alleged injuries. 137 The plaintiff's claim is hereby dismissed.
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