Norton v Blight - [2014] SADC 4

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
NORTON v BLIGHT
[2014] SADC 4
Judgment of His Honour Judge Barrett
17 January 2014
DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT
Personal injuries - Assessment re damages - Plaintiff a 23 year old farm worker - injured in head on collision - fractured right femur - later experienced back pain. Dispute as to causation of back pain - plaintiff unable to continue farm work - retrained as office worker. Liability agreed. Plaintiff 90 per cent liable.
Held: Accident caused back injury as well as fractured femur. Assessment of damages - non economic loss scale value fixed at 15 - non economic loss $26,480 - past economic loss $93,360 - future economic loss $238,596 - loss of past and future superannuation benefits $33,196 - past medical expenses $1,863.90 - future medical expenses $8,500 - past and future gratuitous services $924 - Total $419,891.02 reduced by 90 per cent - Total award $41,989 including interest.
Civil Liability Act 1936 s 34, s 35, s 52, s 54, referred to.
Glavinas v Holden's Motor Co Ltd [1991] SASC 3089; Wade v Allsopp (1976) 10 ALR 353, considered.

NORTON v BLIGHT
[2014] SADC 4

This case involves the assessment of damages arising from a motor vehicle accident which occurred on 4 February 2008 near Tintinara, in the south east of South Australia. Liability is agreed between the parties. It is agreed that the plaintiff is 90 per cent liable for the accident.
The motor vehicle accident
The plaintiff is a single woman now aged 28. She was 23 at the time of the accident. She was working at a dairy farm near Tintinara. The farming enterprise operated from different properties owned by members of the Lewis family. On one property the cows were milked (“the dairy”). On another, calves were reared (“the calf property”). The plaintiff worked on both properties at times, although she spent most of her time on the calf property. She lived in a house on one of the Lewis’s properties. At the time, she was going out with a young man named Brenton Savage who lived and worked on another property not owned by the Lewis’s. Although liability is agreed, some aspects of the circumstances of the accident are relevant to the assessment of damages.
The plaintiff worked on the calf property in the morning of 4 February 2008 but she was rostered off in the afternoon. She spent part of the afternoon with Mr Savage. The two were travelling from his place into Coonalpyn when the plaintiff received a telephone call from one of her employers asking her to go to the dairy to collect some milk and any newborn calves. To do this she needed to go back to Mr Savage’s place to get her own work vehicle, a Holden Rodeo utility, and then go to her own house to pick up a trailer. She left her place at about 5.30pm driving the work utility and pulling the trailer. She was driving along an unsealed road on her way to the dairy. Just before the accident she was negotiating a bend in the road travelling at about 80 kilometres per hour.
She was not wearing the seatbelt that was provided in the utility. She is short (150 centimetres tall) and had to sit fully forward on the seat so that she could reach the pedals. The seat itself was defective in that it could not be moved forward. She had found over time that when she sat in that forward position the seat belt was apt to come undone. She had raised that problem with her employers but nothing had been done about it. She therefore used not to do up the seatbelt when driving.
During her drive the conditions were sunny and dry. The road was unsealed and dusty. It was summer. The plaintiff has an incomplete recollection of how the accident occurred. She remembers having to correct the steering of the utility to counteract some sideways movement of the trailer in the gravel. She collided head-on with a sedan coming around the bend from the opposite direction. She was not immediately aware that that is what had happened. She said that she felt a sharp impact but it was not until the dust around the accident scene settled that she realised that she had collided with the other car. While not herself conscious of the exact circumstances of the collision she accepts, perhaps reluctantly, objective evidence which suggests that she was sufficiently on the wrong side of the road to make her 90 per cent responsible for the accident.
The plaintiff’s evidence of what happened after the collision has some bearing on the assessment of damages. The impact was of sufficient force to fracture her right femur. The femur is the largest bone in the body. The plaintiff was conscious of considerable pain in her right leg. She was unable to get out of the utility. She saw that the driver’s side door had been so damaged that it was unlikely that it could be opened manually. She manoeuvred herself on to the passenger side of the utility but was in too much pain to get herself out. She had some experience of first aid and had done voluntary work for the Country Fire Service (CFS). She said she realised she had probably broken her femur and that she should remain calm and still until paramedics were able to extricate her safely.
She noticed the woman driver of the other car get out of the car. The plaintiff rang her employers. They rang the ambulance. Other people arrived at the scene before two ambulances came. The ambulances arrived about 20 to 30 minutes after the accident. It was determined that the plaintiff should not be taken from the scene by the ambulances but should be airlifted to Adelaide. She was not removed from the utility until the helicopter arrived from Adelaide about an hour after the accident. Some analgesia was administered when the ambulances arrived. More substantial analgesia was administered before the plaintiff was removed from the utility to the helicopter.
Hospital treatment
The plaintiff was taken by air ambulance from the accident site to the Flinders Medical Centre. She was admitted overnight on 4 February 2008. The next day Dr James Clayton, orthopaedic surgeon, operated on the plaintiff to repair the fractured right femur. He did so by inserting an intra-medullary locked nail. The plaintiff said she was eager to be discharged from hospital as soon as possible. She was told she could be discharged when she was able to raise her right leg 30 centimetres off the bed without using her hands. She managed to do that and was discharged after 4 days. She was taken from the hospital by her mother. Together they visited her father who had recently been admitted to the Repatriation General Hospital for further treatment for his longstanding cancer. The plaintiff said that she was in pain but she was keen to get home. She walked into the Repatriation General Hospital to see her father with the assistance of crutches, but was taken back to her mother’s car in a wheelchair. She was taking a powerful analgesic called Endone for about two weeks. Thereafter she was given a prescription for Panadeine Forte tablets. The evidence is unclear whether she actually took any Panadeine Forte. After that she took over-the-counter analgesics whenever she felt pain. The pain she felt and the causes of such pain are central issues in the assessment of damages to which I will return later.
Issues for determination
The defendant does not dispute that the plaintiff was injured in the accident on 4 February 2008. The defendant admits that the plaintiff suffered a fractured femur. The defendant further admits that the injury caused an initial brief period of total incapacity and a further period of partial incapacity. The defendant says that since the accident the plaintiff has developed further injuries and has suffered further symptoms but these further injuries and symptoms are not related to the accident. The plaintiff says that they are related to the accident.
The defendant says that the plaintiff is exaggerating her symptoms and that she wrongly attributes various symptoms and injuries to the accident. The plaintiff’s case is that, far from exaggerating her symptoms, she tends to understate them, particularly when speaking to medical personnel.
The issues in the trial are as follows:
1.What injuries does the plaintiff suffer?
2.What injuries are directly or indirectly caused by the motor vehicle accident?
3.Does the plaintiff suffer an incapacity for work as a result of the injuries caused by the motor vehicle accident?
4.Does the plaintiff suffer an incapacity to engage in her activities of daily living as a result of the injuries caused by the motor vehicle accident?
5.What, if any, damages should be awarded for the injuries and loss caused by the motor vehicle accident?
More particularly what, if any, damages should be awarded for –
(a)Non-economic loss;
(b)Economic loss (past and future);
(c)Loss of superannuation (past and future);
(d)Past medical expenses;
(e)Future medical expenses;
(f)Past and future voluntary and/or gratuitous services;
(g)Future paid services;
(h)Interest?
Pre-accident
The plaintiff is the only child of her parent’s marriage, but by a previous marriage her father had three children who are 6, 8 and 15 years older than she is. She had ongoing contact with these half-siblings into adulthood. The middle child, a male, committed suicide in December 2007, just 3 months before the plaintiff’s accident.
The plaintiff was born with a hip deformity which she said had righted itself by the time she was 12 or 13[1]. It appears the ball joint at the top of the left femur was too small for the socket where it joined the hip, so that, as a child, she was liable to dislocate her hip if she was not careful. She broke her right tibia playing on monkey bars just before she turned 10. She said that that injury mended itself, although she exacerbated it later in her schooling when she was in Year 7.
[1] T47.
She was born pigeon-toed but the treatment of the broken right tibia caused the right foot to straighten. Her gait was nevertheless affected by the continued in-toeing of the left foot.
The plaintiff has always suffered from dyslexia although that condition was not diagnosed until she was seen by a psychologist, Dr Hill, in 1994 when she was 9 and a half.[2] She received individual study support by reason of that disability. The support was on a one-to-one basis in the class during times at school. At TAFE, as an adult, she took opportunities to seek learning support personnel. The plaintiff said she has always worked hard to minimise the effects of her dyslexia. She had to repeat her reception, and Year 4 at Primary School Nevertheless she managed to complete and pass Year 12 at High School. Her dyslexia may affect her suitability for employment in office jobs which she has now undertaken post-accident. I will return to that topic later.
[2] Exhibit P9.
The plaintiff’s father is a Vietnam Veteran. That is partly the reason why the plaintiff was entitled to be given one-to-one study support during schooling. When the plaintiff was only a few days old her father was diagnosed with a muscle cancer which became chronic. Throughout the plaintiff’s life her father has been in and out of hospital receiving chemotherapy and radiotherapy. The plaintiff said that from her father’s experience she has preferred to avoid resorting to medical treatment. She said:
Basically I have learnt from a young age is if the pain is tolerable and manageable, why go unless it is constantly persistent thing that you need to get it checked. [3] (sic)
[3] T50.
The plaintiff’s parents lived in the Christies Beach area for the first 10 years of her life. She went to the Noarlunga Downs Primary School.
In 1995 the family moved to a small town about 70 kilometres from Loxton. The move was partly by reason of her father’s health and partly to enable her to be in smaller classes at school. She was then in Grade 5. She went to the Brownswell Area School from Grade 5 until she completed Year 10. She undertook Years 11 and 12 at the Loxton High School, boarding in that town during the week and going home to her parents on the weekend. By then her parents had moved to another small country town.
At times the plaintiff boarded alone at Loxton and at other times she had housemates. She had become able to look after herself if necessary because her parents sometimes had to go to Adelaide when her father went into hospital. During school holidays and on Sundays the plaintiff would sometimes work on a potato farm where her mother also worked. I heard some details of what that work entailed. I accept that it was work that required the plaintiff to be able to cope with hard manual work. The work entailed a lot of standing on a potato harvester. That standing required balance and endurance because the workers had to remove debris from potatoes while the harvester was moving over uneven terrain.
The plaintiff always wanted to be a motor mechanic. While at school she organised an apprenticeship to take up at the end of school. She had done work experience at a garage. When she came to take up the promised apprenticeship she found out that the job had been given to a male. While very disappointed about being let down, she eventually found work at a sheep feedlot run by Mr Kelvin Westbrook. Mr Westbrook gave evidence. He said that while initially sceptical about the plaintiff’s suitability for work on the feedlot, particularly because of the plaintiff’s height, he took her on. He became impressed by her ability to do the work and by her application to it. He was so impressed that, after the accident, he employed her again, notwithstanding that she told him about her injuries and told him that she might have some physical limitations. Both before and after the accident the plaintiff worked for Mr Westbrook on a casual seasonal basis. The busy times on the feedlot were from January to September. The work tails off after September and usually only about three permanent employees are kept on. The permanent employees were paid over award wages, earning between $60,000 and $70,000 per annum. They are long term employees and their positions only very occasionally become vacant. Those employees are more highly skilled than the casual employees.
The plaintiff finished school at the end of 2004. She began working at Mr Westbrook’s in late February or early March 2005. At its busiest she would work for about 50hours a week, 7 days a week. When she was able to she also worked on the potato farm. She worked for Mr Westbrook for about 18 months, roughly from March 2005 to September 2006. As the work at the feedlot was tailing off in September 2006 the plaintiff secured for herself a full time job at the Shadamah Dairy Farms near Tintinara. She explained to Mr Westbrook that she needed to get permanent employment. He understood her position and gave her a reference.
The plaintiff worked at Shadamah Farms from September 2006 until she was dismissed in August 2008, 6 months after the accident. She worked principally at the calf farm tending the calves, but she sometimes worked at the dairy.
I have heard very detailed evidence about the work the plaintiff undertook at the Shadamah Farms before the accident. I will not recount it all. I summarise it. The work involved some heavy lifting of, for example, feed buckets and hay. It involved agility such as climbing over fences and climbing up ladders. It involved physically handling livestock such as calves. That handling meant that the worker would be bumped around, sometimes knocked over. The plaintiff said that despite at times feeling occasional aches and pains from the work, she was able to recover with a shower and a good night’s sleep. The pre-accident injuries and disabilities to which I have already referred did not interfere with her work, although she did have to be careful about the effects of her left foot in-toeing.
The plaintiff was physically and mentally fit to carry out the farm work she was engaged in. The defendant does not dispute that proposition. I find that is so.
Further, I find that, before the accident, the plaintiff had worked hard to overcome a number of disabilities and limitations. She had applied herself assiduously to school work and had succeeded at school despite her dyslexia.[4] She had demonstrated to her initially sceptical employer, Mr Westbrook, that her shortness, her gait, and perhaps her gender, were no impediment to her working hard and effectively on the feedlot. She had shown a positive work ethic. She was willing to work long hours. None of these propositions is contested by the defendant. I find them to be proved.
[4] See school and TAFE reports p 7-8.
Post hospital recovery
The plaintiff was discharged from the Flinders Medical Centre on about 8 February 2008, some 4 days after the accident. She was off work completely for about 6 weeks, returning on reduced hours on 21 March 2008. Her first outpatient consultation was on 17 March 2008 with the orthopaedic surgeon, Dr Clayton. Dr Clayton wrote a letter on that day setting out the limits of her return to work.[5] Dr Clayton advised that the plaintiff should not get into a pen with livestock. She should not ride a motorbike or a horse, although she could drive a car. Initially she did not work in the dairy when she returned to work. Dr Clayton foreshadowed a further x-ray and review in 6 weeks with the possibility of returning to full duties.
[5] Exhibit P2 p 1.
On 23 April 2008 Dr Clayton wrote a second letter[6] clearing the plaintiff for “full active duties as tolerated” with the caution that the plaintiff might experience fatigue with prolonged work over the following couple of weeks due to muscle weakness and aerobic de-conditioning.
[6] Exhibit P2, p 2.
Return to work
The plaintiff’s worksheets[7] indicate that in the first 6 weeks back at work (say to the end of April) she was working approximately 2 hours a day, 6 days a week. In the second 6 weeks (say to mid June), she was working 2 to 4 hours a day (with the occasional 5 to 6 hours) on 6 days a week. That latter pattern continued until she was dismissed from Shadamah Farms on 5 August 2008.
[7] Exhibit P17.
The plaintiff said that before she returned to work she lived with her mother for about 2 weeks. Her mother essentially looked after her although she was able to toilet and shower herself, the latter with help from her mother. She felt a good deal of pain in the first 2 weeks. She took the strong pain killer, Endone. She said she found it very frustrating that she was not able to look after herself.
After spending about 2 weeks with her mother she returned to Tintinara, either at Mr Savage’s house or her own. At about the time of her return to Tintinara her relationship with Mr Savage broke up.
The plaintiff said that she found it hard coping with the return to work even though she was keen to do so. She was finding a loss of balance and was often having to rest. She said after she returned to work she began to notice pain in her lower back and hips. The pain was at about the level of the coccyx.[8] She said she felt some difficulty with her leg “in the way of the muscle giving way, the muscle twitching”.[9] She had an x-ray taken of the leg at Murray Bridge on 17 April. It appears there has never been a x-ray taken of her back.
[8] T167.
[9] T168.
The plaintiff said that she found that the work at the dairy was harder than the work at the calf farm. That was because at the dairy she had to climb ladders. While for the most part she resumed work only on the calf farm, the worksheet shows she occasionally worked in the dairy. She worked in the dairy on five occasions in May, eight occasions in June and 12 occasions in July.

The plaintiff said she was managing the dairy work because she was mainly on afternoon shifts which were slightly shorter than the morning shifts. She was nevertheless having trouble climbing ladders at the dairy. She said that although she had begun to experience lower back pain, the pain was tolerable.[10]
[10] T176.
The dismissal from Shadamah Farms
The plaintiff was dismissed from Shadamah Farms on 5 August 2008. Her employers told her that she was being dismissed because she had failed to notice bloat in some cattle. The plaintiff emphatically denies she neglected the cattle. She said that she was scrupulous in caring for the animals and, while she conceded that it was not always possible to identify a case of bloat, she was alert to the problem and attentive to the welfare of the animals. She believed at the time of the dismissal, and still believes, that her employers were dismissing her because she was unable to resume her full hours or her full duties.
The defendant asserts that the plaintiff was dismissed because of unsatisfactory work. Neither party called the employers to testify to the circumstances of the dismissal. It is not suggested that I should draw adverse conclusions against either party. I cannot make findings about the real reasons for the dismissal. I can observe that, as at August 2008, the plaintiff was working only two to four hours a day and only occasionally five to six hours. I can also observe that the evidence of the plaintiff’s work in Mr Westbrook’s employment would suggest that she was a hard and conscientious worker. Mr Westbrook spoke only positively of her care of the livestock on his property.
While I cannot make findings about the full circumstances of the plaintiff’s dismissal, I do find that the plaintiff was upset at being dismissed. She was upset because she had to move out of the accommodation on her employers’ property relatively quickly. She was upset at what she saw as an unjustified criticism of her work, more particularly as that criticism involved a claim that she had neglected the welfare of animals.
The plaintiff said that she was not aware that she might have been able to make a claim for unfair dismissal.[11]
[11] T313.
The plaintiff was unemployed for about 6 months, from the dismissal on 5 August 2008 until she resumed employment at Mr Westbrook’s feedlot on 11 February 2009. She worked on the feedlot until 28 June 2009.[12]
[12] Pay records Exhibit P27.
It is necessary to consider in more detail the evidence of events between the initial return to work at Shadamah Farms from March to August 2008 and the period of unemployment before the return to work at the feedlot in February 2009. That is the period during which the presence or absence of back injury is critical.
Back injury
The causation of the plaintiff’s back complaints is a significant dispute in this case. The plaintiff asserts that she suffers a back injury which was caused by the accident. The defendant says that if she does suffer a back injury, it does not arise from the accident. It probably arises from an incident when the plaintiff was trying to pull-start a quad bike motor in early June 2008.
I have already noted that the plaintiff said she began to feel pain in her lower back once she started back at work at the Shadamah Farms. She found the pain tolerable.[13] She did not, at that stage, report the pain to any medical person.
[13] T176.
The plaintiff’s mother gave evidence that the plaintiff complained to her about pain in the back (as opposed to the leg) about a month after she started back at work.[14] If one were to take the mother’s evidence literally, that would mean that the plaintiff complained to her about back pain in late April. The plaintiff had resumed work on 21 March 2008.
[14] T430, T433-37.
A Workcover physiotherapist, Mr Drummond, visited the plaintiff at the farm on 26 March, some five days after she resumed work. Parts of Mr Drummond’s report were put to the plaintiff in cross-examination, although the report itself was not tendered. The plaintiff agreed that she might have told Mr Drummond that long periods of standing on her injured leg caused significant discomfort and that she felt pain in her hip at the fracture site.[15] The plaintiff agreed that she had not reported back pain to Mr Drummond because on 26 March, she was not getting any back pain. She agreed that Mr Drummond reported that there appeared to be no reason why she should not be expected to make a full recovery. The plaintiff also agreed that she told Mr Drummond that before the accident she would get significant discomfort in her left hip after being on the 4-wheeled motor bike for possibly one and a half hours. The plaintiff said that she attributed that discomfort to the genetic dislocation in her hip.[16]
[15] T450.
[16] T252.
The next medical person the plaintiff saw after Mr Drummond was the chiropractor, Dr Klemm, whom she consulted on 4 June 2008. The reason for that consultation was pain she experienced two days earlier when she went to pull start a quad bike motor.[17] She said that she first felt pain in the top half of her right leg. The pain was considerable. It seems that it was somewhat later that day that she first noticed significant pain in her back. She said:
... I was unable to continue doing the work that day ... because of the amount of pain in my lower back, I so happened to go or get up from the seat and I felt a pop in my lower back and the pain remained a steady 10 out of 10 and that was what caused me to seek advice from an orthopaedic surgeon at Flinders before making an appointment with a chiropractor.[18]
[17] T12 and 19.
[18] T178.
The plaintiff wanted to get advice over the telephone from Dr Clayton who performed the operation on her leg but he was not available. Another surgeon told her it would be all right to consult a chiropractor so long as she took along the documentation of her leg injury.
In his report of 9 March 2010,[19] Dr Klemm noted that on 4 June 2008 the plaintiff said that she “has not past history of similar back pain” He said the same in his evidence.[20]
[19] Exhibit P30.
[20] T362.
The plaintiff said that she probably did tell Dr Klemm that she had no past history of similar back pain because the back pain she had been experiencing when she went back to work had been tolerable until the quad bike incident.[21]
[21] T257.
The plaintiff had three treatments from Dr Klemm on 4, 6 and 14 June 2008. She said she felt much better after the treatment. She did not go back to Dr Klemm until 22 April 2009 when she experienced right sided lower back pain following another episode of pull starting a motor, this time from an auger.
Dr Klemm was questioned about the causal link between the accident and the back pain. He, like all the medical witnesses, said that it is not difficult to see a biomechanical link between the fracture of the femur and a back injury. The femur is the largest bone in the body. The force necessary to cause a fracture of the femur may also have caused spinal damage. That evidence is uncontroversial in this trial. What is in issue in this trial is whether in fact a spinal injury occurred in the accident.
The medical witnesses all say that the point at which the plaintiff began to experience back pain is critical in determining whether or not the accident caused a spinal injury. All accepted that pain at the site of the fracture of the leg might mask the pain in the back for a while, but the later the experience of back pain the less likely is it that the accident was the cause. Some doctors thought that the back pain probably was caused by the accident. Others thought that the complaints of back pain, more particularly the time at which the complaints began, were not consistent with a back injury being caused by the accident. They think that it is more likely the back injury was caused by the quad bike incident.
For reasons I will explain, I do not think that it is necessary to examine in great detail the various opinions of the doctors on this topic. I will however, refer briefly to each and will do so in the order that the doctors examined the plaintiff.
Dr Klemm, the chiropractor, saw the plaintiff on 4 June 2008, a couple of days after the quad bike incident. He treated her over a period of days and then did not see her again until 22 April 2009 after the auger incident. He saw her twice in 2010 (July and November) and five times in 2011 (March, April, June and July). Dr Klemm conceded that the quad bike incident could have been the cause of the back problems.[22] He agreed that the lack of early complaint of the back pain causes problems with there being a causal link between the accident and the back pain. He agreed that usually one would expect a report of pain in the area of the injury in a matter of weeks rather than months after the injury.[23] Nevertheless he thought that in light of the severity of the leg injury it was probable that the back injury was caused by the accident.[24] Dr Klemm asked the plaintiff if she had back pain before she first came to see him in June 2008. He reported thus “She said she had no past history of similar back pain.”[25] The defendant asserts that this is a denial of earlier back pain. The plaintiff emphasises “similar” and refers to the plaintiff’s account of earlier back pain being bearable.
[22] T374.
[23] T375.
[24] T375.
[25] Exhibit P30 report of 9 March 2010 p 1.
Dr Kerrigan, a GP working at the Coorong Medical Centre, saw the plaintiff on 11 September and 30 October 2008. The plaintiff had consulted him so she could get a clearance for work without restrictions. Dr Kerrigan gave her that clearance. In cross-examination he said that, realistically, you would expect to see symptoms at the site of an injury within about 3 months of the trauma. A more severe injury at another site might distract from the pain at the site of the less serious injury, but after 3 months one would be “hard pressed” to say that the original trauma caused the later reported symptoms.[26]
[26] T242.
Dr Orso Osti is an orthopaedic surgeon. He saw the plaintiff on 6 November 2008 and again on 29 June 2009. Despite the best efforts of both counsel for the plaintiff and the defendant, Dr Osti could not be pinned down to an opinion about the causal link between the accident and the back injury. In examination-in-chief he described the suggested causal link as a “very reasonable hypothesis”[27] but in cross-examination he suggested that a lack of early complaint might case doubt on the causal link.[28]
[27] T496.
[28] T499.
Dr Nagi Guirguis is a rehabilitation and musculo-skeletal specialist. He saw the plaintiff on 16 February 2009 and 8 July 2013. He did not think that the plaintiff would necessarily have felt back pain within days of an injury to the back. He did not think that the 4 months gap between the accident and complaining about pain in the back was necessarily a problem. One explanation of a causal link is that the leg trauma could have made the plaintiff weak in muscles in the area of the back and the leg, thus making her vulnerable to a secondary problem in her back.[29] He agreed that it was possible that the quad bike incident caused the back injury.[30]
[29] Examination-in-chief T579, cross-examination T584-5.
[30] T585.
Dr Gary Champion is a consultant rheumatologist. He was asked by the defendant to consider the causation question. He examined the plaintiff on 30 November 2009. At the time of the consultation the plaintiff did not report any back pain. Dr Champion was presented for cross-examination by the plaintiff. The defendant relies on Dr Champion’s report dated 30 November 2009.[31] Dr Champion said he could detect no back injury. He reported the plaintiff’s history as experiencing back pain from the quad bike incident.[32]
[31] Exhibit D4 p 65.
[32] Exhibit D4 p 66.
Professor Robert Bauze is an orthopaedic surgeon called by the defendant. He saw the plaintiff on 19 June 2012 and again on 8 July 2013. On the assumption that the plaintiff first complained of back pain on 2 June 2008 after the quad bike incident Professor Bauze said that he would assume there was no causal link with the accident. Professor Bauze acknowledged that a more severe injury can mask pain at the site of a less severe injury.[33] He would have expected the plaintiff to experience back pain within a month of the accident if the accident had caused a back injury.[34]
[33] T605.
[34] T606.
In cross-examination Mr Durkin asked Professor Bauze to assume the truth of the plaintiff’s evidence that she started to feel back pain as early as 21 March 2008 when she went back to work. Professor Bauze agreed that if that was the case it was not so difficult to relate the back pain to the accident.[35] Mr Durkin put to Professor Bauze the plaintiff’s evidence,[36] that is, her experiencing bearable back pain from March 2008 until the episode of acute pain after the quad bike incident. Professor Bauze accepted that that was “a reasonable story”. He agreed that one of the reasons why he felt the plaintiff to be an honest reporter was that on the two occasions he had examined her she was not presenting with non-organic signs.[37]
[35] T616.
[36] T177.
[37] T617.
In my view the evidence of Professor Bauze is helpful in my approach to the causation question. Professor Bauze expresses the opinion that if the plaintiff experienced back pain for the first time immediately after the quad bike incident, that is, some four months after the accident, then there is no causal link between the accident and the back injury. If, on the other hand, the plaintiff had been experiencing some back pain from around the time of her return to work on 21 March 2008, just six weeks after the accident, then causation is not so difficult to see. Professor Bauze did not positively assert that there was then a causal link but he did acknowledge that the link was not so difficult to see. In that respect Professor Bauze’s evidence is consistent with the other medical witnesses who all acknowledge the possibility of the severe leg injury masking pain in the back for a time, but the further the onset of back pain is removed from the accident, the less likely is the causal connection. Paraphrasing Professor Bauze, a four month gap is too great, but a six week gap is not.
Dr Roberto D’Onise is an occupational physician. He saw the plaintiff on 14 May 2013 at the request of the plaintiff’s solicitors. He thought that it was plausible that the lumbar spine symptoms were directly related to the accident. Because the plaintiff was immobilised while recovering from the accident, the pain in her back was not noticed until she went back to work. Dr D’Onise concluded that there was probably no structural trauma to the lumbar spine, but the facture to the femur and the consequent muscle atrophy and weakness have contributed to put the plaintiff at risk of injury. She suffered that injury during the quad bike incident.[38] Dr D’Onise was the first medical practitioner to whom the plaintiff reported feeling back pain before June 2008. She told Dr D’Onise that she had “ongoing pain in the right leg and after about a month started experiencing aching in her back…as if the discs had come out”[39]
[38] T398.
[39] Exhibit P2, p 71.
Dr Gordon Morrison is an orthopaedic surgeon. He saw the plaintiff on 29 May 2013 at the request of the plaintiff’s solicitors. He conceded in cross-examination that the quad bike incident might have been the cause of the back pain. His hypothesis however was that the car accident made the plaintiff more vulnerable to the relatively more minor types of aggravation such as the quad bike incident.[40] He thought it more likely than not that the car accident contributed to the plaintiff’s back being vulnerable to the injury caused by the quad bike incident.[41]
[40] T459.
[41] T460.
Dr Brett Opperman is a specialist in occupational and environmental medicine. He saw the plaintiff on 31 July 2013 at the request of the defendant’s solicitors. He thought that while the accident was a possible cause of the back pain, it was not the probable cause.[42] He found it difficult to believe that the leg injury was of such severity that it would mask back pain, yet not of such severity to impede the plaintiff’s early return to work.[43] In cross-examination he said that his understanding was that when the plaintiff returned to work, she resumed normal duties for normal hours.[44] In fact she had not resumed all her duties and her hours were initially quite reduced.
[42] T696.
[43] T672.
[44] T680.
Dr Opperman said several aspects of the plaintiff’s post-accident recovery surprised him. He was surprised she returned to full duties at work four months after the accident.[45] He was surprised she was not offered physiotherapy which might have helped with muscle reconditioning. He said that smoking was one of the risk factors in the development of lower back pain as was excessive weight.[46] The plaintiff was overweight and was a smoker. Dr Opperman thought that at the time of his consultation the plaintiff was capable of her pre-accident farm work.
[45] T670.
[46] T668.
The thrust of the medical evidence on the question of causation of the back injury is as follows:-
1)     there is a biomechanical mechanism by which the plaintiff might have sustained a back injury in the accident as well and the undoubted leg injury;
2)     the leg injury was a severe one. All doctors accepted that the pain from the leg injury might mask pain from the back injury for a while. In other words, although a back injury had in fact been caused by the accident, the plaintiff would not necessarily feel pain immediately in the back because of the greater pain from the greater injury in the leg. That greater pain would have distracted her attention from the back injury and its consequent pain;
3)     all doctors said that the quad bike incident on 2 June 2008 could be the cause of the back injury;
4)     all doctors said that while the leg pain might mask the back pain for a time, the longer the time between the accident and the experience of back pain the less likely it was that there was a causal connection.
5)     the plaintiff did not tell a medical practitioner that she had back pain before 2 June 2008 until she saw Dr D’Onise on 14 May 2013. In fact, as the defendant emphasises, it might be said that she denied earlier back pain. On the other hand, as the plaintiff submits, the back pain being reported in June was acute, and the plaintiff says that the earlier back pain was bearable. She said she had begun to experience back pain on her return to work on 21 March, some six weeks after the accident. She says she complained of that back pain to her mother. Her mother confirms such complaints.
6)     all medical practitioners were asked to comment on the question of causation. Each was asked in one way or another to express an opinion on the time it would take for a back injury to cause pain in someone who had suffered the plaintiff’s leg injury. Generally, although not universally, the medical opinion was that if there was no back pain in four months (4 February to 2 June 2008) then the causal connection was getting tenuous (my word, not that of any of the doctors). On the other hand, again speaking generally, the causal connection was a reasonable one if there was a report of back pain in about six weeks. Some witnesses spoke of “weeks not months”.
7)     Dr Morrison offers a further possible causal connection. He thinks it may be the result of muscle de-conditioning during convalescence the plaintiff may have become vulnerable to the back injury through her slight trauma.[47] Dr Guirguis described it as a secondary injury.[48]
[47] T459.
[48] T579.
Unsurprisingly that summary of the medical opinion focuses attention on the credibility and reliability of the plaintiff. Before assessing her evidence I turn briefly to the psychiatric evidence to consider whether it offers assistance in this exercise. I will refer to the psychiatric witnesses in the order that the plaintiff was referred to them.

The plaintiff was seen by Dr Christine Hilton in October on November 2008 (the precise date of the consultation is unclear).
The plaintiff saw no psychiatrist in 2009.
In 2010 she saw Dr Nick Ford in about February (again, the date of the consultation is unclear). She saw Dr Hilton again on 4 June 2010. Both doctors were called by the plaintiff.
The plaintiff saw no psychiatrist in 2011.
In 2012 she saw Dr Schirripa on 28 May at the request of the defendant.
Leading up to the trial in 2013 the plaintiff saw Dr Blakemore on 17 May (he produced two reports) and Dr Hilton on 15 July. Both doctors were called by the plaintiff. She saw Dr Schirripa again at the request of the defendant’s solicitors on 2 July.
None of the psychiatrists suggests any psychiatric reason why I might doubt the plaintiff’s credibility or reliability. Dr Hilton thought that the plaintiff was significantly understating her difficulty. I will discuss the psychiatric evidence in more detail when dealing with the claim for psychiatric injury.
The thrust of the psychiatric evidence is that the plaintiff coped well with psychological and emotional difficulty. Her father has suffered from a debilitating illness all her life. The plaintiff has applied herself assiduously to minimise the effects of her dyslexia. She has responded realistically and reasonably to the risks of physical re-injury in working with livestock on her return to work. While each psychiatrist noted some emotion when the plaintiff recounted parts of her history, none suggests that she exaggerated her difficulties.
Credit of plaintiff
I turn to an analysis of the plaintiff’s credibility and reliability. I must consider both those aspects. To what extent is the plaintiff a truthful witness, and even if truthful, is she a reliable witness? Witnesses can be truthful yet unreliable. Witnesses can also be generally truthful and reliable yet untruthful or unreliable on specific topics. That said, if a witness is untruthful on a particular matter one would be more cautious about accepting that witness’s truthfulness in others. I acknowledge that demeanour is nowadays thought to be a less reliable guide to credit worthiness than it once was.
In this case however I have had the benefit of seeing the plaintiff in the witness box for quite a long time. Her evidence took several days and extends over some 250 pages of transcript. I formed a very favourable impression of the plaintiff’s truthfulness and her reliability. She seemed to me to be doing her best to be truthful and reliable. She spoke in a straightforward manner both in examination-in-chief and cross-examination. I saw no attempts at evasion. Whenever potentially damaging aspects of her history as reported to doctors was put to her, she admitted them.[49]
[49] T257, T259, T273.
While there is no doubt that inconsistencies, or apparent inconsistencies, appear in the plaintiff’s history given to doctors, reasonable explanations can be seen. The major inconsistency of course is that between her evidence of early back pain and her accounts to doctors, which seem on their face to deny back pain. Yet, that inconsistency has to be considered in the context first, of the plaintiff’s explanations, and second, her character. The plaintiff explained that when she told Dr Klemm, and others, that she had not had back pain, she meant that it was bearable back pain which she did not think to report, given the greater pain in her leg, and given that, the earlier back pain was nowhere near as severe as the back pain she felt when she tried to start the quad bike in June 2008 or later, the auger, or when the sheep knocked her over.
That leads to my observation about what I regard as a relevant and important aspect of her character. I think the evidence as a whole demonstrates that the plaintiff is somewhat stoical in the face of adversity. This characteristic confirms and enhances her credit. I cite only a few, almost random, examples. She said she learned from her father, through her father’s considerable ill-health, that if pain was tolerable you did not go to the doctor.[50] The plaintiff said that she had wanted to get out of the hospital after the accident as soon as she could. She told the hospital staff that she wanted to be discharged. I found her account of the hospital staffs’ reply both truthful and indicative of the plaintiff’s stoicism. She said she was told that she could be discharged when she managed to get her right leg off the bed by 30 centimetres without using her hands.[51] Several of the medical witnesses expressed surprise at the plaintiff’s discharge after four days.
[50] T50.
[51] T154.
In examination-in-chief the plaintiff was being asked about complaints she had made about migraines. She agreed that she complained about having headaches. She said she thought they were caused by her neck and back being put out but then she volunteered that she had only recently found out that she was slightly iron-deficient.[52] I took her to mean that she now realises that the migraines were caused by the iron deficiency. I regard that candour as adding to her credit.
[52] T277.
I refer to other examples of the plaintiff’s determination to overcome her difficulties rather than to give in to them. She struggled at school because of her dyslexia but, through her determination, and the assistance she received through Veteran’s Affairs, she managed to pass Year 12. She was bullied at school for her dyslexia. When faced with what she saw as the necessity to remove herself from farm work she doggedly set about retraining herself through TAFE, facing again the challenges posed by her dyslexia.
When the plaintiff was dismissed by her employers in August 2008 she tried the potato work although it proved impossible. She re-applied to Mr Westbrook telling him of her limitations. He was happy to take her back because she had been such a good worker.[53]
[53] T290.
I refer to one aspect of the plaintiff’s reliability. The defence suggests that there is evidence from the doctors of the plaintiff being a poor historian.[54] In support of that contention counsel for the defendant Mr Ward referred to a passage of the transcript in the cross-examination of Dr Morrison.[55] Mr Ward put to Dr Morrison two accounts that the plaintiff had given doctors for what may be taken to be her condition towards the end of her work at Mr Westbrook’s feedlot in June 2009. One account was given to Dr Osti on 29 June 2009, just after she had left the feedlot. The other was given to Dr Hilton in January 2013. Mr Ward suggested to Dr Morrison that the two accounts were completely inconsistent. Dr Morrison agreed. Mr Ward then put to Dr Morrison that that inconsistency would have to raise significant concerns about the plaintiff’s reliability as an historian. Dr Morrison replied “I think that is one of the problems of the time scale that you drew attention to at the beginning”.
[54] Outline [34].
[55] T461.
I reproduce the relevant transcript and make several observations about the alleged inconsistency between the two accounts given by the plaintiff.
QRegarding that, finishing work at the feedlot, she told Dr Hilton recently and she described what had happened leading up to her finishing work at the feedlot, that she was worried that she would end up in a wheelchair if she kept trying to work with sheep, she knew this was possible but the amount of pain in her leg and back, she kept slipping and being knocked over by the sheep and then the pain was so severe she would end up in bed the next day unable to move. That is what she has told Dr Hilton recently.
AYes, I saw that in her report.
QShe saw Dr Osti however on 29 June 2009, so almost straight after she finished in the feedlot.
AYes.
QHis report in relation to that was ‘Since my last assessment Ms Norton’s condition according to her had improved. She had informed me that her gait had become more normal and that she was not suffering from any significant residual payment[56] either in the lower back or the right leg’, going on to say that ‘She had fallen over and jarred her back a few times over the previous few weeks, although she had been able to recover from the effects without any significant ongoing symptoms.’ You have to accept that the history given now in 2013 is completely inconsistent with that given at the time to Mr Osti.
AYes.
QSo that would have to raise significant concerns as to the history given by this particular person to doctors from time to time.
AI think that is one of the problems of the time scale that you drew attention to at the beginning.
[56] Sic, should be ‘pain’.
The first observation I make is that which I understand Dr Morrison to be making in his final reply. The accounts by the plaintiff were being given to medical practitioners about four years apart. Inevitably a difference of emphasis might occur. The second observation is that it is also possible that the view of the doctor taking the history will influence the history itself. As I will later discuss, Dr Hilton sees the plaintiff as being significantly disabled. Dr Osti sees the plaintiff as coping well with the difficulties and making a good recovery.
I appreciate that where the plaintiff’s direct speech is cited by either doctor, as it was in part in the passage quoted from Dr Osti, there is less room for the history taker’s interpretation.
The third observation I make is that the two passages put to Dr Morrison are not in my view completely inconsistent. In both passages the plaintiff speaks of being knocked over by sheep, of suffering some pain or injury, and also of recovering. I do not overlook the inconsistency of the more detailed account of the pain and the length of the recovery in the report to Dr Hilton.
The fourth observation I make is that there is no doubt that the plaintiff came to the conclusion that she was going to be unable to continue doing that sort of farm work. She felt that the risks of further injury from working directly with stock were too great and that she was finding the work too onerous. Mr Westbrook noticed that himself.
In my view the inconsistency there asserted against the plaintiff is misconceived, or at the very least, overstated. It should not be overlooked that in the five and a half years since the accident the plaintiff has seen at least 15 medical practitioners (14 gave evidence and Dr Ford’s report was tendered). She has seen chiropractors, a physiotherapist, four psychiatrists and other specialists. In my view there was a very high degree of consistency in the accounts reported by the witnesses and a high degree of consistency between the reports she gave and the plaintiff’s evidence.
Further I think that there was a high degree of consistency within the plaintiff’s evidence. She was cross-examined thoroughly, although always courteously. At times she became tearful but she made appropriate concessions of occasional error or inconsistency.
It is well recognised that truthful witnesses may be unreliable. A witness who has been injured may unconsciously attribute all ailments to the subject trauma and may unconsciously exaggerate pain and disability.
I find that the plaintiff was a truthful witness. I also find that she was a reliable one. I do not think that she has even unconsciously overstated what has happened to her nor do I think that she has overstated her pain or disability. If anything I think she has tended at times to understate her problems. Overwhelmingly the medical witnesses have commented on her determination to overcome her physical and psychological difficulties.
I have come to these conclusions without relying to any great extent on the plaintiff’s mother’s evidence which, in part, supports the plaintiff’s evidence of complaints about back pain before the quad bike incident in June 2008.
I turn to consider Mrs Norton’s evidence. Of course I bear in mind she is the plaintiff’s mother and there is a natural tendency in any mother to support her child. That said, I found Mrs Norton to be an honest and generally reliable witness. She spoke in a very straightforward manner with no signs of evasion. Uncontroversially Mrs Norton confirmed and elaborated a little on the aspects of the plaintiff’s upbringing and on events following the accident. The defendant directs criticism however at Mrs Norton’s evidence about the plaintiff’s complaints of back pain.[57] Those criticisms deserve consideration.
[57] Outline [25]–[30].
Mrs Norton said that her daughter would ring her after she had gone back to light duties complaining of a sore back.[58] When asked if she could relate the first complaint of back pain to any event, she said that it would probably have been a month or so after her daughter started back at work.[59] The defendant criticises Mrs Norton’s evidence on several grounds. It was suggested that her evidence was uncertain. I do not agree. Mrs Norton expressed no uncertainty about her daughter’s complaints of back ache when she returned to work. In fact another criticism is that when asked in cross-examination how certain she was that the complaints started about a month after the plaintiff resumed work, Mrs Norton said simply “I just know she did”.[60]
[58] T429.
[59] T430.
[60] T435.
It is true that Mrs Norton could not explain why she was certain but that is not an easy question to answer. Really one can do little other than reiterate that it is so.
It is suggested that Mrs Norton’s evidence about back complaints before the quad bike incident is qualified by an answer she gave which would, it is argued, suggest she was relating the back complaints to the quad bike incident. That criticism appears to arise from this exchange in examination-in-chief:[61]
QDid she tell you in these calls about the specific problems or the work she was doing the Shadamah Farm.
ASome of the troubles she mentioned on the farm, especially after she broke her leg and was able to go back to work, she was on light duties to start with, but when she got back to normal duties there was things like one particular quad bike she couldn’t get started because she would have to jump on the lever to get it started, climbing over fences, if she had to stand for too long.
[61] T430.
I do not agree that that answer qualifies Mrs Norton’s evidence about the early complaints of back pain. In fact in cross-examination Mrs Norton added what I regard as a credible detail to the phone calls from her daughter about back pain unassociated with the quad bike incident. She said her daughter said “Do you think I could have done something to my back? Why is my back playing up now?”[62]
[62] T436.
Another criticism has I think some greater force. It is that at one stage in the cross-examination Mrs Norton suggested that the plaintiff’s complaints were about her back when there were no complaints about the leg.[63] I accept the submission that it would be surprising that the leg symptoms had resolved within one month of the return to work. That criticism however does not cause me to doubt Mrs Norton’s evidence generally. The question of whether complaints about the leg had completely stopped was not pursued in cross-examination. The plaintiff never said that the leg pain went away and was replaced by the back pain. She said that on her return to work the leg pain was apparent but she began to feel back pain but it was bearable. She said that later in the day of the quad bike incident the back pain was excruciating and as a result she consulted Dr Klemm.
[63] T436.
For the sake of completeness I refer to an apparent inconsistency between the plaintiff’s evidence and that of her mother which is not the subject of criticism. The plaintiff said that she began to feel back pain as soon as she went back to work, albeit that it was bearable.[64] Mrs Norton said the plaintiff did not complain about the back pain until about a month after the return to work. I do not think that this weakens the evidence of either witness. I think the inconsistency may be explained by the plaintiff’s general reluctance to complain about her problems, or it may be that the leg pain caused her to mention that pain rather than the back pain for a period. Conversely it may be that Mrs Norton is mistaken and the plaintiff did complain about back pain as soon as she returned to work rather than a month later.
[64] T157.
I accept Mrs Norton as a truthful and a generally reliable witness. In particular I accept her evidence that the plaintiff complained to her about back pain after the return to work on 21 March and before the quad bike incident on 2 June. I find as a fact that sometime between the plaintiff’s return to work on 21 March and the quad bike incident on 2 June the plaintiff began to experience lower back pain. Further, I find that the back pain commenced shortly after she returned to work. I find that the plaintiff did not complain about the back pain to doctors, (in fact at times she denied it) because she found that the back pain was bearable and was less significant than her leg pain. When she experienced unbearable back pain she quite naturally associated it with the quad bike incident and denied earlier similar back pain when questioned by Dr Klemm and then later by others. What she meant was that she had not experienced that sort of back pain earlier. Dr Klemm’s note is “No past history of similar back pain”. (emphasis added).
Causal connection between accident and back injury
In the light of that factual finding I find that there is a causal connection between the accident and the lower back injury. I find that that causal connection is most likely to be the biomechanical primary injury referred to by several of the doctors namely that an injury was caused to the back at the same time as the more serious and more painful injury to the leg. Alternatively it may be that the plaintiff suffered a secondary injury to the back during her initial recovery while getting about on crutches with the back pain still masked by the leg pain. Dr Guirguis thought that was an explanation. In the further alternative, it may be that during her convalescence the plaintiff’s back became deconditioned making her more vulnerable to back injury on her return to work. Dr Morrison thought that a possibility.
I find that as a result of the lower back injury caused by the accident the plaintiff has become more vulnerable to back injury. As a consequence events such as the quad bike and the auger incident have been debilitating, requiring medical treatment. I will return later to the question of compensable treatment.
Mental injury
I turn from physical injury to the claim for mental injury. I find that the plaintiff has not suffered a mental injury arising from the accident. I explain why. I have already referred to the impression I formed of the plaintiff on the basis of hearing the medical evidence and hearing at some length from the plaintiff herself. At various stages of her life she has overcome significant difficulty. Although her parents appear to have always been supportive, her father has had a debilitating illness all her life, and at times, as a teenager, she has had to look after herself when her parents have had to go to Adelaide. She showed determination in minimising the effects of her dyslexia both before the accident at school, and after the accident when she retrained at TAFE. The overwhelming evidence of the medical practitioners is that she has showed a certain stoicism in the face of her physical injuries and limitations.
The plaintiff has seen four psychiatrists, three at the request of her solicitors (Drs Hilton, Ford and Blakemore) and Dr Schirripa at the request of the defendant. The psychiatric evidence is really quite polarised. Dr Hilton thinks that the plaintiff suffers, or may suffer, from a number of psychiatric conditions. She assesses the plaintiff as having a five percent disability by reason of mental injury. Dr Hilton diagnosed the plaintiff as having an adjustment disorder with mixed disturbance of emotions and conduct.[65] She thought that the plaintiff had a coping mechanism of not thinking about her problems which prevented her from understanding the emotional consequences of events. Dr Hilton wondered whether the plaintiff thought she was going to die while trapped in the car. The plaintiff denied thinking she was going to die. Dr Hilton said that the plaintiff’s calmness as she waited to be extricated from the car was a form of dissociative state.[66] The plaintiff said she had learned from her CFS training that it was best to try to remain calm. Dr Hilton said that the plaintiff “ticks a number of the boxes for PTSD”, although Dr Hilton did not make such a diagnosis.
[65] T516.
[66] T539.

I think that Dr Hilton has over-emphasised individual pieces of information reported to her by the plaintiff. She said the plaintiff cannot even walk down the street without holding a building. She cannot relate very well in any sort of social situation. She probably needs a disability parking permit. She is almost like a split personality. She is a destroyed soul.[67] Dr Hilton wondered whether the plaintiff was in denial about psychological stress.[68] Regrettably Dr Hilton said “So by default, I almost felt as though I needed to advocate for this patient. She is denying herself proper treatment…”[69]
[67] T521.
[68] T529.
[69] T532.
While I acknowledge that Dr Hilton has seen the plaintiff on more occasions that the other psychiatrists (three times compared to Dr Schirripa’s twice and Dr Blakemore and Dr Ford once each), I found the evidence for her opinions unsupported by the plaintiff herself and at times contradicted by the plaintiff. I found Dr Hilton’s opinions strikingly different from the other psychiatrists. It is true that Dr Ford, who saw the plaintiff once in February 2010, said that Dr Hilton’s diagnosis in 2008 of an adjustment disorder was a reasonable one, but he went on to say that the condition was now resolved.[70] Drs Blakemore and Schirripa found no evidence of mental illness.
[70] Exhibit P1 at p 66.
I have no doubt that the plaintiff has at times been upset and emotional about the consequences of the accident. She was emotional at times giving evidence. But given the injuries she suffered and the consequences she has had to deal with, it seems to me that these reactions are perfectly understandable and normal. I accept that I should give little weight to my own impressions of the plaintiff when assessing the psychiatric evidence. I should be guided generally by the expert evidence, but I must say my own impression of the plaintiff is very much in accord with the opinion of Drs Blakemore and Schirripa, and to Dr Ford’s impression of the plaintiff when he saw her in 2010.
I find that the plaintiff has not suffered any mental injury as a result of the accident.
Legal principles of causation
The plaintiff must prove on the balance of probabilities that the accident has caused the injuries and disabilities. Section 34(1) of the Civil Liability Act 1936 provides:
34—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).
Section 35 refers to the burden of proof. That section reads:
35—Burden of proof
In determining liability for negligence, the plaintiff always bears the burden of proving, on the balance of probabilities, any fact relevant to the issue of causation.
Findings on causation
In my view the plaintiff has discharged the onus of proving that the accident caused a fracture of the right femur and an injury to the lower back or lumbar spine. I find that the plaintiff has not discharged the onus of proving any mental injury.
Disability/limitations
It is necessary to trace the plaintiff’s post-accident recovery by reference to her employment.
The plaintiff returned to work at Shadamah Farms on 21 March 2008 performing light duties, that is, duties reduced by hours and by function. While there was an impression early in the trial that the plaintiff had never substantially increased her hours at work before being dismissed on 5 August 2008 I accept the defendant’s analysis of the work hours which compares the hours worked between April and July 2008 with the hours worked for the same months in 2007. I reproduce the schedule prepared by the defendant’s solicitors at paragraph 8 of the defendant’s outline.

112            Month

113            Hours worked

114            2007

115            Hours worked

116            2008

117            2008 hours as percentage of 2007 hours

118            April

119            197.25

120            51.25

121            26.0%

122            May

123            130.5

124            97.0

125            74.3%

126            June

127            126.75

128            95.5

129            75.3%

130            July

131            136.75

132            119.75

133            88%

The defendant develops the submission that the plaintiff made a complete and reasonably quick recovery from the accident injuries and is fit to return to her pre-accident employment if she chooses to do so.
There are several components to that argument. As I understand it those components are as follows:
The back injury was not caused by the accident.
As demonstrated by the above schedule, the plaintiff was approaching a return to fulltime work at the time of her dismissal.
There is every reason to think, that had it not been for her dismissal, the plaintiff would have reasonably quickly recovered her full pre-accident capacity. The plaintiff herself told Dr Opperman on 31 July 2013 that had it not been for her dismissal on false grounds she would have been in a position to perform her pre-accident work despite some right hip and thigh pain and some back pain.[71] There is some medical evidence that the plaintiff could perform some, at least, of her specific pre-accident functions.[72]
[71] Exhibit D14, p 53.
[72] Dr Vo, Exhibit P29, T359.
The medical evidence does not suggest any ongoing limitations.
I discuss each of these components. First, I have already found that the accident caused the lower back injury. That injury has not just caused pain. It has made the plaintiff vulnerable to secondary injuries such as those experienced in the quad bike and auger incidents. Not surprisingly and not unreasonably the plaintiff has become wary about a recurrence of these sorts of events.
Second, while I accept that the defendant’s schedule indicates that the plaintiff was increasing her work hours, she was also avoiding specific tasks and was having difficulty performing others. The plaintiff strongly believes that she was actually dismissed because she was not able to fully resume her full functions. She rejects the given reason for her dismissal namely, that she had neglected the animals. I make no finding about why she was dismissed, but I do accept her evidence that she was not able to resume her full pre-accident workload. Specifically she was trying to avoid the dairy work because it was too difficult. Although she did work shifts in the dairy she was limiting herself to afternoon shifts which were less onerous than the morning shifts. She was having trouble climbing stairs, climbing ladders and climbing over fences. She was anxious about getting in the pens with the calves because of their tendency to move their heads when she straddled them to assist them with feeding. To suggest the plaintiff was almost back to her pre-accident work by reference only to the work hours, is to overlook a significant part of the story.
Third, I do not accept that the plaintiff would have been able to resume her pre-accident workload. There are several reasons for my taking that view. I am satisfied that as of June 2009, when the plaintiff left Mr Westbrook’s employment, the plaintiff would have preferred to have continued doing farm work if she could have. She did not want to retrain to do office work. I accept her evidence that she really does prefer outdoor work to indoor work and country life to city life. I accept that the plaintiff left the feedlot partly because the seasonal work was tailing off, but I find that the predominant reason for her seeking to leave farm work and retrain was because she feared that if she kept on with farm work she would put herself at risk of further serious injury. I do not think that she was being alarmist when she said that she feared that she might end up in a wheelchair if she continued with farm work. Mr Westbrook, who was a sympathetic employer, was impressed with her determination to do a good job, but he noticed that she was struggling with the work.
I appreciate that not all farm work involves the work with livestock such as that at Shadamah Farms and the Westbrook Feedlot did, but I think that the plaintiff was realistic and reasonable, and regretful, when she decided in June 2009 that she was going to have to give up farm work and retrain for work that did not make her vulnerable to re-injury. I notice, as something of an aside, that Professor Bauze observed that people with a nail of the sort inserted in the plaintiff’s thigh, face very serious consequences if they have a further accident.[73] For that reason he, and others, recommended its removal.
[73] T599.
I find that the plaintiff was really forced to give up her farm work because her physical recovery was not complete and because she had good reason to think that she was putting herself at risk of further serious injury. I make that finding despite what the plaintiff told Dr Opperman in July 2013. Contrary to the defendant’s submission, I do not accept, that in that respect, the plaintiff is the best judge of her capacity to engage in her pre-accident work.
Fourth, I accept that some of the medical evidence is to the effect that there is no, or minimal, objective loss of function. However there is other medical evidence of loss of function. I consider the evidence of loss of function.
Dr Opperman saw the plaintiff in July 2013. He said that the plaintiff was restricted to a degree in doing farm work and because of her pre-existing clumsy gait there was an increased risk of injury.[74] He observed no abnormal findings on examination.[75] He reported the plaintiff saying that if she had not been dismissed from Shadamah Farms she would have been able to perform her pre-accident work.[76] He thought that the plaintiff’s complaints of pain could be managed within the workplace[77] and that she was capable of her pre-accident work.[78] He agreed that the presence of the metal rod increased the plaintiff’s risk of future fracture.[79] Dr Opperman said that the plaintiff struck him as confident of her physical abilities and he took her at her word.[80] It is not entirely clear to me on a re-reading of Dr Opperman’s evidence what he meant by that observation.
[74] T676.
[75] T681.
[76] T692.
[77] T683.
[78] T680.
[79] T691.
[80] T681.
Dr Opperman agreed that he had understood that the plaintiff had actually returned to her normal pre-accident work at Shadamah Farms. Of course that is not correct. She had not got back to her full hours nor to her full functions. I think there is a possibility that Dr Opperman may have taken an over optimistic view that the plaintiff’s present capabilities based upon a wrong understanding of her post-accident farm work and the plaintiff’s over-optimistic view about her capability of returning to fulltime duties if she had not been dismissed. It may be that the plaintiff’s remarks to Dr Opperman were coloured by her resentment of being dismissed for what she saw as false reasons. In any event, her later inability to keep up with the work at the feedlot and her decision to retrain for office work demonstrates that any optimism she had about her ability to resume full farm duties was misplaced.
Dr Champion saw the plaintiff on 30 November 2009. By that time the plaintiff had been unemployed since leaving the feedlot in June 2009. Dr Champion reported that the plaintiff said that her back was “ok” at that time, but her right leg was “playing up”. His physical examination of the plaintiff disclosed no abnormality in the back, hip or knee. The plaintiff had told Dr Champion that she was having problems with her right hip and knee. On the basis of his examination and the history he took, Dr Champion said he did not believe there was any disability in the low back from the fractured femur. He did not believe that the plaintiff has any permanent residual disability.
It appears the plaintiff told Dr Champion that by June 2008 she was working “quite normally”. (Dr Champion’s report has the year typed as “2009” but he says he corrected that to “2008”.) If that is what the plaintiff told Dr Champion then it is contrary to the true position. By June 2008 the plaintiff was only doing about 75 percent of the hours she did in June 2007 and she was not back to full duties. There was also no account of how the plaintiff had fared at the feedlot between February and June of 2009 despite there being reference to that employment in Dr Champion’s notes. The plaintiff and Mr Westbrook both speak of the difficulties the plaintiff was experiencing in that period. That is the reason she decided to re-train.
Insofar as Dr Champion’s opinions rely on a history of trouble-free normal work from June 2008 it is based on the different history from the one I have found proved.
It would be unsurprising if the plaintiff was feeling reasonably well as at November 2009. She had been unemployed for five months.
I acknowledge the absence of physical signs of back and leg injury and disability at the time of Dr Champion’s examination, but even then the plaintiff was reporting right leg pain if she stood for two and a half to three hours and went out walking for what Dr Champion recorded as “a considerable distance”.
I accept that no right knee injury was caused by the accident. However Professor Bauze said that the femur injury might result in some discomfort in the hip and knee.[81] I have already found that the back injury was caused by the accident. I do not accept Dr Champion’s evidence about the plaintiff suffering no permanent residual disability from the femur and the back injuries.
[81] T600.
Professor Bauze saw the plaintiff in June 2012 and July 2013. Applying the American Medical Association Guide to Permanent Impairment (5^th Edition) Professor Bauze gave the plaintiff a zero impairment. Professor Bauze explained that the guide is a commonly recognised and used guide for impairment all around the world including South Australia for Workcover. He went on to explain that the guide does not rely on symptoms, it relies on objective findings. Professor Bauze could find no objective findings to warrant an impairment assessment of anything above zero percent.
Having said that, Professor Bauze did not think that the plaintiff’s complaints of poor coordination, loss of balance, feeling weak and feeling pain in the knee on getting up from squatting, were unreasonable. He thought that some of the plaintiff’s difficulties might be overcome if she substantially reduced weight (losing 30 percent of her weight) and undertook physiotherapy and an ongoing program of specifically targeted exercise.
Although I must make the findings regarding the plaintiff’s credit, it is of some significance that someone of Professor Bauze’s experience said that he regarded the plaintiff as an honest historian because, on the two occasions he saw her, she did not present with any non-organic signs.
It was Professor Bauze who said that if, contrary to his understanding, the plaintiff had started to experience back pain six weeks after the accident when she returned to work, then it was not so difficult to relate back pain to a back injury caused by the accident.[82]
[82] T616.
Because Professor Bauze’s assessment of zero impairment is based only on objective signs and does not take account of credible accounts of symptoms, I reject that assessment. Professor Bauze’s candid explanation of the basis of his assessment does not cause me to otherwise reject his evidence.
I will not exhaustively canvass the evidence of the other medical witnesses because, to a greater or lesser extent, all say that they did not think the plaintiff could carry out her pre-accident farm work. Some witnesses thought that she could carry out some farm functions[83] but, when told about all of the tasks she had performed before the accident, none said she could perform all of them.
[83] Drs D’Onise and Vo.
In that regard I note Mr Westbrook’s evidence. He said that although the plaintiff did not ask for her duties to be modified, he noticed she was having trouble climbing[84] (by which I take him to mean climbing over fences) so he put other people onto the jobs of cleaning water troughs.
[84] T295.
I am satisfied that as a result of the femur and lower back injuries sustained in the accident the plaintiff is unable to return to the farm work she did before the accident. While she might be able to carry out certain jobs on a farm, the limitations she has make it unlikely she would be able to secure and maintain doing farm work for which she is fitted. Although the plaintiff experiences ongoing pain, neither the plaintiff nor any of the medical witnesses suggests she is physically unable to do office work. That said, the plaintiff said that some of her limitations do manifest themselves in office work. She cannot sit for long periods without breaks. She is not able to do some of the work which involves accessing records contained in compactuses and she has trouble getting up if she has been kneeling or squatting for more than a couple of seconds.[85]
[85] T221-2.
In her daily living the plaintiff has difficulty pushing the vacuum cleaner around and has trouble getting down low enough to clean the toilet and tiles in the bathroom. She has difficulty gardening if she has to work on her knees for any length of time. These difficulties have not prevented her from doing housework or gardening. In fact she assisted someone else cleaning their house.[86]
[86] T331-2.
For reasons I have outlined I reject the evidence of this medical practitioners to the effect that the plaintiff has no residual impairments.
I accept the evidence of the plaintiff that she does have the limitations she has spoken of. These are limitations being experienced in mid to late 2013, some four and a half years after the accident. In particular, the plaintiff sometimes experiences acute pain for which she receives chiropractic therapy.
Although there is no radiological evidence to explain the ongoing limitations I find there are limitations. It is not always possible to be certain of the precise cause of ongoing problems. If the court accepts evidence of ongoing limitations compensation may be awarded notwithstanding some uncertainty about the precise explanations, so long as it is established that the subject accident is the cause. I refer in that regard to the remarks of Bollen J in Glavinas v Holden’s Motor Co Ltd [1991] SASC 3089 at [45] to [46].
Estimates of loss of capacity
Three of the medical practitioners made estimates of the plaintiff’s loss of functions. They made different estimates. Dr Osti assessed a 15 percent impairment of the right leg at or above the right knee.[87]
[87] Exhibit P2, 29.
Dr Guirguis assessed 12.5 percent disability of the right leg.[88] Dr Morrison assessed a loss of function of the right leg at or above the knee at 10 percent and 8 percent in relation to the lumbar sacral spine.[89]
[88] Exhibit P2, 36.
[89] Exhibit P2, 56.
The plaintiff’s work capacity
When the plaintiff realised she could not keep doing farm work she set about retraining herself for more suitable employment. She attended TAFE courses, beginning in Berri, from June 2009 to June 2011. During that time she studied fulltime at TAFE achieving Certificates II, III and half of the modules for Certificate IV in Business Administration.[90] She lived with her parents. She applied unsuccessfully for hundreds of jobs. She said she was looking for work anywhere including interstate or in Adelaide. She found that to progress any further in her business administration studies she would either have to do the work externally, without direct teacher support, or she would have to move to Adelaide. Because she thought she might struggle academically without teacher support she moved to Adelaide. Between June 2011 and June 2012 she completed Certificate IV in Business Administration. She was then given a 12 month traineeship at the Lyell McEwen and Modbury Hospitals, concluding in July 2013. Until March 2013 she was studying Certificate III in Government, at the completion of which I understand her to have qualified for a Diploma in Business Administration. While studying and undertaking the traineeship, the plaintiff applied unsuccessfully for many jobs. At the time of the trial in August 2013 she was unemployed. Some of her letters seeking employment are tendered.[91]
[90] T200-T201.
[91] Exhibit P28.

I make observations and findings about the plaintiff’s prospects of undertaking administrative work. I heard evidence from her TAFE lecturer Ms Kristensen and from her supervisor at the Modbury Hospital, Ms Browne. I found both witnesses very reliable and helpful. Ms Kristensen spoke of the plaintiff’s great determination and application to her study. Just as the plaintiff had applied herself at school to minimise the effects of her dyslexia, so she applied herself to her TAFE studies. Ms Kristensen understood the plaintiff’s difficulties yet she chose to support her application for a traineeship. Ms Kristensen thought that the plaintiff’s determination would work in her favour in the traineeship. Ms Browne was able to observe the plaintiff at work. She too noted her assiduousness at her work but the plaintiff’s non-physical limitations make it plain that she is going to be unsuitable for work at a sophisticated level. The plaintiff had trouble accurately taking phone messages. Her dyslexia led her to make mistakes. She found taking minutes at meetings and organising diary appointments difficult. It is unlikely she would be suitable for an executive assistant’s job. Her employers took care to see that she did not have to undertake heavy lifting and work that involved climbing ladders in the records section. In this way the plaintiff’s physical limitations can be accommodated in the office work environment, but they might make her less employable or less eligible for a promotion. In that way I find that her accident-caused physical limitations would have effects on her employment prospects in the area of office work. Her other limitations may have a greater effect. I have to bear in mind that the plaintiff has really been forced into this area of employment because she cannot continue her preferred employment in the country. As the plaintiff as done throughout her life, she is doing the best she can to overcome her difficulties.
Future care
Before turning to assessment of damages I make some findings about future care.
I accept the almost unanimous view of the medical practitioners that the plaintiff’s resort to chiropractic therapy for pain relief is, while understandable, in the long term not best advised. I accept the evidence of the doctors who said that for her long-term health the plaintiff will have to undertake a supervised exercise program designed to substantially reduce her weight and to build body support. Some targeted physiotherapy is recommended. Most doctors recommend removal of the intra-medullary nail to reduce the risk of further injury.
Assessment of damages
Non-economic loss
Pursuant to s 52(1)(a) of the Civil Liability Act damages may be awarded under this head if the injured person’s ability to lead a normal life has been significantly impaired by an injury extending beyond seven days. Pursuant to subsection 2(a) the non-economic loss is to be assigned on a scale value between 0 and 60. The formula for then calculating the non-economic loss is set out in subsections 2(c) and 2(d).
The defendant does not dispute that the plaintiff has established this criterion. The defendant asserts that, despite the serious nature of the leg injury, the plaintiff was able to return to partial employment in six weeks and by the time of her dismissal in August 2008, she was able to return to work approaching the hours and tasks of her pre-accident employment. She was then able to obtain other farm work for four or five months in 2009. She left that work because the seasonal work tailed off. She has successfully retrained as an office worker and by the time of the trial had completed a one year traineeship. The plaintiff is not physically limited in that sort of work. She has been able to resume her pre-accident daily activity. She has at best, intermittent pain now and her physical conditions would substantially improve if she were to undertake a two year weight loss and exercise program. The defendant submits that the plaintiff should not be entitled to more that the order of one quarter of the points scale.[92]
[92] Outline [94].
On behalf of the plaintiff it is submitted that she has lost her ability to do farm work and, as a consequence, has had a marked diminution in the pleasure and fulfilment of country life. Her non-economic loss should reflect a significant disability comprising both physical and mental components.
I find that the accident has caused a serious fracture of the plaintiff’s femur and a lower back injury. I find that those injuries caused the plaintiff considerable leg pain for some weeks. After her partial return to work those injuries led to some back pain and occasional secondary injuries resulting in substantial back pain. For those occasional episodes of substantial back pain the plaintiff has continued to receive passive chiropractic therapy. The physical limitations led to the plaintiff being unable to resume her full farm duties and Shadamah Farms before her dismissal in August 2008, although at that time she was approaching resumption of her full hours. She was unable to continue farm work after having been laid off from Mr Westbrook’s feedlot in June 2009 even though I accept that she would have been laid off anyway due to the seasonal work tailing off. Her job at the feedlot was always seasonal whereas the job at Shadamah Farms was fulltime.
The plaintiff has been forced to retrain for office work and has moved to the city. I find that the plaintiff would have preferred doing farm work and would have preferred living in the country.
While the plaintiff is largely able to physically carry out office duties, her pre-existing dyslexia will limit her in obtaining and maintaining employment in that area.
The plaintiff is able to engage unassisted in her pre-accident daily activities although she suffers occasional pain.
I find that the plaintiff has not suffered any mental injury as a result of the accident.
In these circumstances I assign a scale value of 15 to the plaintiff’s non-economic loss. The accident occurred in February 2008. By virtue of the formula set out in s 52(2)(d) and (c) I make an allowance for past and future non-economic loss in the sum of $26,480.
Past economic loss
The calculation of past economic loss has several components.
The first component relates to the period off work immediately following the accident. The plaintiff was off work from 4 February to 21 March 2008. She was paid worker’s compensation of $3,840, being eight weeks at $480 a week. Workcover is entitled to recover that sum. Section 54(1) of the Civil Liability Act provides that damages for loss of earning capacity are not to be awarded in respect of the first week of the incapacity. That reduces this component to $3,360.
The second component relates to the time from the return to work on 21 March 2008 to the trial which was on 5 August 2013. The plaintiff worked at Shadamah Farms from 21 March until 5 August 2008 when she was dismissed, ostensibly for dereliction of duty unrelated to the accident. She did not work again until she did the seasonal work on Mr Westbrook’s feedlot from February to June of 2009 when she was laid off. She was unemployed until she obtained the traineeship from June 2012 to June 2013, effectively the financial year of 2013 ending at the beginning of the trial. Her income for that year was $19,428, just a little less than her net income of $21,755 for 2008. She therefore lost some income in the 2008/9 financial year (August 2008 to February 2009) and she lost all income in the financial years 2010, 2011 and 2012.
Another way of looking at the loss of income is that suggested by the defendant, namely having regard to the fact that if the plaintiff had remained at Shadamah Farms from 2008 to 2013 she would have earned about $125,000. In that period she actually earned $36,808 giving a shortfall of about $90,000 (defendant’s outline paragraph 103). The defendant submits that I should take a broad brush approach to the assessment of past economic loss because the situation is complicated by the circumstances of the plaintiff’s dismissal from Shadamah Farms. The defendant submits that the dismissal cannot be attributed to the accident on the evidence before the court. I have already acknowledged that that is so. The defendant goes on to give an example of a 50 percent reduction by reason of that dismissal.
On the other hand I think there is force in the submission made on behalf of the plaintiff that she was less employable in 2008 by reason of the accident. She had not been able to quite reach her former hours of work and she had not managed to resume all her duties. She was unable to get a job between August 2008 and February 2009.
The plaintiff submits three possible approaches. Each approach is set out in the plaintiff’s outline at paragraphs 46 to 49. There is annexed to the suggested approach loss schedules marked respectively A, B and C.
The first approach assumes that the plaintiff would have continued working for Shadamah Farms until she got the higher paying job with Mr Westbrook in February 2009. Thereafter her income would have been about $35,360 per annum in accordance with the Pastoral Award 2010.
I think there are two problems with that approach. The first is that it assumes the plaintiff would have continued working as a farm hand at the Shadamah Farms rate of pay. To accept that submission I would really have to ignore the reason given for the plaintiff’s dismissal in August. Whatever I might think of the given reason for the plaintiff’s dismissal I acknowledge that the evidence does not permit me to assume the dismissal would not have occurred for reasons unrelated to the accident. It might however be possible to allow some discount on the assumption that the plaintiff might have been out of work for a period before finding comparable employment. I think the accident did make the plaintiff less employable which in turn contributed to her being unemployed from August 2008 to February 2009.
The second problem with the plaintiff’s submission is that the plaintiff was paid more at the feedlot that she was at Shadamah Farms, possibly because the work at the feedlot was seasonal. The suggested loss of income on this hypothesis is a net loss of $120,000. [93]
[93] Annexure A, outline p 65.
The second hypothesis is that the plaintiff would have continued earning the Shadamah Farms income until June 2008 then obtained and remained in the higher earning employment of the sort she got at the feedlot later on. The higher rate would have been in accord with the Pastoral Award until, with experience, the plaintiff negotiated an income greater than the award. That hypothesis assumes continuous employment and employment at a higher rate than she was getting before the accident. The potential loss on this hypothesis is about $144,000. [94]
[94] Annexure B, outline p 67.
The third hypothesis is the same as the second except that the plaintiff would have negotiated an over-award payment similar to the workers employed at the feedlot a year earlier. The potential loss on this hypothesis is about $163,000.[95]
[95] Annexure C, outline p 69.
I do not believe I can make the assumptions inherent in the three hypotheses put forward by the plaintiff. On the other hand the defendant’s hypothesis makes no allowance for increases in the plaintiff’s income in the years between 2009 and 2013. I think it is likely that the plaintiff would have demonstrated aptitude and application as a farm hand and would have increased her salary somewhat in those years.
Taking a broad brush approach I will equate the likely increases in income with the discount I think I should allow by reason of the plaintiff’s dismissal in August 2008 and her consequent unemployment for a period.
I therefore allow the full shortfall between the plaintiff’s continuing to receive her pre-accident salary until July 2013 and her actual income in the years 2009 and 2013 namely $90,000. I add to that figure the sum of $3,360 being the loss attributable to the defendant in relation to the Workcover payments. That makes a total of $93,360.
I allow $93,360 for past economic loss.
Future economic loss
I am satisfied that as a result of the accident the plaintiff is no longer able to do the farm work she previously did and which she liked. To her great credit she has undergone three years of study in business administration at TAFE and has completed a 12 month traineeship. For the most part the plaintiff is physically able to do the office work for which she has now become qualified. There are however difficulties in the way of her obtaining and maintaining employment. She has some residual physical limitations. She has to avoid climbing ladders and heavy lifting. This meant that in her traineeship she was unable to work in the compactus section of the medical records. She has to take breaks from constant sitting at a computer. These limitations might be seen as relatively minor but in a competitive job market they may adversely affect her employability.[96] In addition the plaintiff has her pre-existing dyslexia. It is plain from reading letters she has written[97] that she has not overcome that problem. Ms Browne, her supervisor, recognised that further study and the plaintiff’s undoubted perseverance would not help her become an executive assistant. [98] The plaintiff has wisely chosen to qualify herself for work which will not put her at risk of further injury, but she has been forced into an area of employment for which she is not entirely suited. She was suited to her pre-accident farm work.
[96] Wade v Allsopp (1976) 10 ALR 353 per Stephen J at 361.
[97] Exhibit P28.
[98] T562.
It is possible that the plaintiff may be lucky enough to obtain and maintain employment in an administrative position. It is also possible, as the defendant submits, that such work might be more highly paid than the farm work. However I think it more likely that the plaintiff will find greater difficulty in finding administrative work than she would have had in finding farm work before the accident.
I find that the plaintiff has substantially lost the capacity to do farm work which she liked and for which she was suited. Having so found I do not accept that it is clear the plaintiff would have achieved the higher earning capacity of the three or four of Mr Westbrook’s senior permanent workers. They were earning over-award salaries between $60,000 and $70,000 per year. I think it more likely that the plaintiff would have obtained permanent work perhaps at the higher levels of the Pastoral Award[99]. I think the plaintiff’s demonstrated work ethic and application would mean she would have achieved the higher award rates. I accept the plaintiff’s alternative submission that the plaintiff might have expected to earn a salary approaching $40,000 if allowance is made for some possible overtime.
[99] Exhibit P25, p 42.
The plaintiff is 28. She has some pre-existing problems with gait. I think it likely that she might have done farm work until she was about 65.
There are two approaches to assessing future loss. One is to base the loss on an assessment of the years for which the plaintiff might be unemployed by reason of her residual disabilities. The other is to calculate the plaintiff’s loss of income if she were unemployed for the rest of her life by reason of total incapacity and fix a discount appropriate to her actual capacity for work.
I find the latter approach preferable. With all its imprecision I think it is more transparent to identify a percentage loss of capacity than it is to nominate a number of years of unemployment.
I apply the highest level minimum wage to farm workers under the Pastoral Award. The rate is $747.20 per week.[100] Making some small allowance for overtime that is $750 per week. That is an annual salary of $39.000 which after tax (in the 2013/14 financial year taxed at 19 cents in the dollar for every dollar over $18,200) would equate to a net income of $35,048 per annum or $674 per week.
[100] P25, p 42, overtime and penalty rates p 45.
Applying to that figure the actuarial certificate, Exhibit P6 to the age of 65 (with a five percent discount),[101] I reach a starting point of $596,490.[102]
[101] s 55 Civil Liability Act.
[102] $674 x $1,160.
I turn to contingencies. The plaintiff is not incapacitated for work. She has re-trained and obtained qualifications for office work. She has completed a one year traineeship. She completed that traineeship a week or so before the trial began. Her remaining physical limitation may be seen as relatively minor but as I have said, those limitations will make it harder for her to obtain and maintain employment. Her dyslexia will inevitably limit her employability as an office worker. That disability would not affect her employability in farm work. Her perseverance will help her gain and maintain employment but it will not overcome the difficulties I have referred to. Allowing for contingencies, both positive and negative, I discount the capitalised allowance for future economic loss of $596,490 by 60 percent to $238,596.
I allow $238,596 for the present value of the plaintiff’s future economic loss.
Loss of superannuation, past and future
It is agreed between the parties that the rate to be applied for past and future superannuation on past and future economic loss is 10 percent. I therefore order superannuation as follows:
$9,336 for past economic loss;
$23,860 for future economic loss.
____________
Total $33,196
Past medical expenses
The plaintiff’s claims for past medical expenses are set out in Exhibit P34. The exhibit includes two schedules of expenses. The first is of agreed expenses totalling $649.55 and the second is of expenses not agreed totalling $2,418.83. In supplementary submissions the plaintiff conceded that certain consultations and taxi fares should be part of the claim for costs rather than for medical expenses. That reduces the claims not agreed to $1,214.35. There remained a dispute between the parties about the cost of fifteen consultations with Dr Vo, the chiropractor. Whereas the evidence from the chiropractor, Dr Klemm, identified which body parts were treated on each consultation, the evidence from Dr Vo was not so detailed. Unsurprisingly the focus of his evidence, both in examination-in-chief and cross-examination, was on the question of causation of the lower back injury and the plaintiff’s ongoing capacity for work.
The defendant submits that if I were to find the accident caused the lower back injury the plaintiff should be awarded only about 30 per cent of the cost of Dr Vo’s consultations and the associated travel expenses.
It is true that Dr Vo spoke of treating the plaintiff’s complaints of pain in the thoracic spine, cervical spine and shoulders. I have not found the accident caused injuries in those areas.
On the other hand I think there is force in the submission put on behalf of the plaintiff that, while the plaintiff may have presented to Dr Vo on occasions with complaints of pain in parts of the body not associated with the accident, the treatment included therapy in the area of the lower back. The cost of all the consultations of Dr Vo and the associated travel expenses is just under $800. In the circumstances I do not think it is appropriate to reduce the claim for the costs associated with Dr Vo’s attendances. I will allow the full claim for the attendances and the associated travel expenses. That means that the total of the two schedules of past medical expenses is $1,863.90.
I make an order for past medical expenses of $1,863.90.
Future medical expenses
It is almost universally the recommendation of the medical practitioners that the plaintiff have the intra-medullary nail removed. The nail is not performing any function and its presence poses a risk of re-injury. Estimates of the cost of the removal varied – Dr Osti estimating between $6,000 and $7,000 and Professor Bauze between $3,000 and $5,000. Allowing for the possibility that the higher estimate included all associated expenses and the lower estimate did not I fix $6,000 for the removal of the nail.

I reject the recommendations by Dr Hilton for psychological assessment and other treatments. I found no psychiatric injury and the recommendations of other treatments are strictly outside Dr Hilton’s area of expertise.
The plaintiff submits that allowance should be made for continuing chiropractic treatment. I do not accept that submission. Overwhelmingly the medical evidence is to the effect that for her long term health the plaintiff should not rely on occasional therapy for pain relief but should instead engage in a supervised exercise program to substantially reduce weight and build up body support. That exercise might be supplemented by a targeted course of physiotherapy. The physiotherapist Mr Roberts provided estimates of the cost of annual gym membership ($962) and one year’s course of physiotherapy ($247.40). I think it is reasonable to allow for two years gym membership after which the plaintiff might be expected to exercise unsupervised. I also allow for two years physiotherapy. I allow a total of $2,500 for these two claims.
I order $8,500 by way of future medical expenses.
Gratuitous services
The plaintiff was almost wholly dependent upon her mother for her daily care in the two weeks following the discharge from hospital. When she returned to her own home her boyfriend and employers helped out but she was largely looking after herself, albeit with some difficulty. She has managed to look after herself ever since. Her father drove her from the Riverland to Adelaide on at least one occasion for an appointment with Dr Clayton. It may be that he drove her more than once.
I do not think it likely that the plaintiff will need domestic help in the future as a result of her injuries. In the circumstances I allow past gratuitous services for three hours per day for two weeks at a rate of $22 per hour taking into account the mother’s care at home and the father’s driving her to medical appointments. I therefore order $924 for past gratuitous services. I make no allowance for future gratuitous services.
Future paid services
I find that the plaintiff will not require paid domestic services in the future. I make no allowance for future paid services.
Interest
It is agreed between the parties that interest is payable on past economic loss and past voluntary services at the rate of 6 per cent. I have assessed the past economic loss at $93,360 and past voluntary services at $924, making a total of $94,284. I assess interest for 6 years being approximately the time between the accident on 4 February 2008 and the date of judgment. I will then divide the sum so calculated in half. The result of that calculation is $16,971.12.
I order economic loss and past voluntary services at $16,971.12
Orders for damages
I make the following orders for damages:
Non-economic loss   $26,480.00
Past economic loss   $93,360.00
Future economic loss   $238,596.00
Loss of superannuation   $33,196.00
(past and future)
Past medical expenses   $1,863.90
Future medical expenses   $8,500.00
Gratuitous services  $924.00
(past and future)
Interest   $16,971.12
Total $419,891.02
I must reduce the total by 90 per cent to take account of the plaintiff’s liability for the accident.
Judgment
There will be judgment for the plaintiff against the defendant in the sum of $41,989 which sum includes interest.

112 Month	113 Hours worked 114 2007	115 Hours worked 116 2008	117 2008 hours as percentage of 2007 hours
118 April	119 197.25	120 51.25	121 26.0%
122 May	123 130.5	124 97.0	125 74.3%
126 June	127 126.75	128 95.5	129 75.3%
130 July	131 136.75	132 119.75	133 88%