Nuhic v Orahim
[2011] NSWDC 200
•19 December 2011
District Court
New South Wales
Medium Neutral Citation: Nuhic v Orahim [2011] NSWDC 200 Hearing dates: 2, 3, 4, 7, 16 and 25 November 2011 Decision date: 19 December 2011 Jurisdiction: Civil Before: Levy SC DCJ Decision: 1.Verdict and judgment for the plaintiff in the amount of $190,441.50;
2.The defendant is to pay the plaintiff's costs on the ordinary basis unless otherwise ordered, except for any costs involved in the plaintiff's application to re-open her case, such costs to be borne by the plaintiff;
3.The exhibits may be returned ;
4.Liberty to apply on 7 days notice if further orders are required.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: TORTS - motor vehicle collision; DAMAGES - assessment of damages for personal injury Legislation Cited: Civil Liability Act 2002, s 5D, s 5E
Evidence Act 1995, s 60
Motor Accidents Compensation Act 1999, s 58, s 61, s128(3), s 128(4), s 128(5), s 136Cases Cited: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25
Goodrich Aerospace Pty Limited v Arsic [2006] NSWCA 187
Mason v Demasi [2009] NSWCA 227
Strinic v Singh [2009] NSWCA 15Category: Principal judgment Parties: Zineta Nuhic (Plaintiff)
Sargoon Orahim (Defendant)Representation: Mr J Jobson (Plaintiff)
Mr J Guihot (Defendant)
Milicevic Solicitors (Plaintiff)
Moray & Agnew (Defendant)
File Number(s): 2011/154750
Judgment
Table of Contents
Nature of case
[1]
Issues
[2] - [3]
Summary of findings
[4]
Assessed heads of damage
[5]
Procedural ruling
[6] - [12]
Credibility of testimony
[13] - [27]
Evidence overview
[28] - [31]
Facts
[32] - [53]
Plaintiff's personal background and work history
[33] - [36]
Plaintiff's previous health and injury history
[37] - [45]
Events of the collision
[46] - [48]
Medical and allied treatment and assessments
[49] - [53]
Issue 1 - Plaintiff's health before 2007 accident
[54] - [108]
Issue 2 - Injuries, treatment and disabilities
[109] - [342]
Survey of evidence on injuries and disabilities
[110] - [235]
Plaintiff's evidence
[111] - [120]
Dr Hamid - treating general practitioner
[121] - [123]
Referrals to other doctors
[124] - [126]
Dr Mahony - treating orthopaedic surgeon
[127] - [134]
Dr Guirgis - treating orthopaedic surgeon
[135] - [140]
Dr Chaudhary - treating psychiatrist
[141] - [145]
Dr Sokolovic - treating psychiatrist
[146] - [159]
MAS Reports - s 58 and 2 61 MAC Act
[160] - [165]
Dr McGroder - MAS Assessor
[166] - [186]
Dr Virgona - MAS Assessor
[187] - [216]
Dr Pierides - defendant's occupational medicine expert
[217] - [221]
Dr Lewin - defendant's psychiatric expert
[222] - [224]
Occupational therapy reports
[225]
Surveillance film and related investigation report
[226] - [235]
Resolution of conflicting medical opinions
[236] - [328]
Preferred opinions - physical injuries
[245] - [276]
Preferred opinions - psychological consequences
[277] - [315]
Finding on injuries
[316] - [328]
Findings as to ongoing disabilities
[329] - [342]
Issue 3 - Assessment of damages
[343] - [452]
Life span
[344]
Economic loss
[345] - [361]
Past domestic assistance
[362] - [411]
Future paid care
[412] - [423]
Future medication
[424] - [431]
Future medical treatment
[432] - [436]
Pain management course
[437] - [440]
Past out-of-pocket expenses
[441] - [448]
Summary of assessed damages
[449]
Disposition
[450]
Costs
[451]
Orders
[452]
Nature of case
The plaintiff, Mrs Zineta Nuhic, claims damages against the defendant, Mr Sargoon Orahim, for injuries she received in a motor vehicle accident that occurred on 2 May 2007. The insurer of the defendant has admitted liability for the collision. The plaintiff claims that in the collision she suffered injuries to her neck, both shoulders, chest and lower back, and as a result has suffered physical and psychological problems. The proceedings concerned the assessment of the plaintiff's entitlement to damages.
Issues
The damages issues that arose in the proceedings may be conveniently summarised as follows:
Issue 1 : The determination of the plaintiff's likely pre-existing state of health before the collision in question;
Issue 2 : The nature and extent of any injuries the plaintiff received in the collision, including the treatment received, and the residual disabilities. The case for the defendant was that within a short time after the collision in question, the plaintiff had returned to her pre-injury state of health;
Issue 3 : The extent to which the plaintiff should be awarded damages as a consequence of the injuries received in the 2007 collision.
The context of the above issues is that the plaintiff had a complicated history of prior injuries, disabilities and claims for personal injury, for both physical and psychological harm from two previous road traffic accidents, a fall, two assaults, and from her reaction to having consumed some contaminated food. She suffered injury in all instances. The evidence revealed that she had obtained previous awards of compensation in all instances except for the road traffic collision, which was second in time, and in respect of one of the assaults, and for one of the falls. It appeared from the plaintiff's medical records that some of these matters were minor, and were not explored in evidence in the proceedings. The evidence also disclosed that prior to the 2007 accident, the plaintiff had a pre-existing vulnerability to suffer physical injury to her spine, as well as a vulnerability for psychological injury.
Summary of findings
The plaintiff's claim for damages was vigorously contested by the defendant. For the reasons I have outlined, I have rejected the attack made by the defendant on the plaintiff's credit. I have found that by the time of the 2007 accident, the plaintiff had largely recovered from the acute effects of her previous accidents and relevant injuries to the extent that she suffered only occasional episodes of pain which were becoming less frequent. I have found that in the 2007 accident the plaintiff sustained injury to her neck, shoulders, back and chest, and as a result, she continues to suffer severe lower back pain. I have found that these problems have caused the plaintiff to develop a major depression and adjustment disorder, for which she requires ongoing psychiatric treatment, in addition to needing treatment for the consequences of her physical injuries. I have found that the plaintiff is entitled to an award of damages, but for an amount which was less than the amount claimed. I have assessed those damages in the amount of $190,441.50 .
Assessed heads of damage
The plaintiff made a claim for 7 heads of damage. In the opening address of counsel for the plaintiff, the quantum of the claim was in the identified amount of $411,286.40. In closing submissions that claim was amended to a reduced sum of $291,417.90. The heads of damage claimed by the plaintiff, and the damages submissions by the parties, are listed below, together with the paragraph references to my assessments of the various heads of damage claimed:
Head of Damage claimed by plaintiff
Plaintiff's Submissions
Defendant's Submissions
Award
Paragraphs
(a) Economic loss
$50,000
$Nil
$50,000
[345] - [361]
(b) Past domestic care
$48,070
$Nil
$50,389
[362] - [411]
(c) Future paid care
$116,550
$Nil
$48,615
[412] - [423]
(d) Future medication
$36,687.20
$Nil
$10,000
[424] - [431]
(e) Future medical treatment
$11,673.20
$Nil
$3,000
[432] - [436]
(f) Pain management course
$5,000
$Nil
$5,000
[437] - [440]
(g) Past out-of-pocket expenses
$23,437.50
$4,057
$23,437.50
[441] - [448]
Totals
$291,417.90
$4,057
$190,441.50
Procedural ruling
During the course of oral submissions, where the psychiatric evidence that was tendered on behalf of the plaintiff was being analysed, counsel for the plaintiff came to realise that a letter from the plaintiff's treating psychiatrist, Dr Milorad Sokolovic, dated 28 April 2010, which had previously been served on the defendant in accordance with the rules, had been omitted from the listed schedule and bundle of medical reports tendered as Exhibit "B". On behalf of the plaintiff, Mr Jobson sought leave to reopen the plaintiff's case in order to tender that letter, stating that the omission had been an oversight, and that the letter was an important part of the plaintiff's case.
On behalf of the defendant, Mr Guihot objected to that course as the plaintiff's case had already been closed. He stated that on behalf of the defendant he had approached the task of cross-examination of the plaintiff on the basis that the letter in question from Dr Sokolovic was not going to be tendered, contrary to earlier indications. He indicated that this forensic approach had been taken when the indexed bundle of reports relied upon by the plaintiff was handed to the defendant's legal representatives shortly before the hearing had commenced.
That difficulty would most likely have been identified earlier and the problem avoided, if there had been compliance with the practice direction given at call-over, which required the schedule of reports to be served on the opposing party three days before the hearing.
After hearing submissions on the plaintiff's application to re-open, I allowed that application on the condition that the plaintiff was to be made available for further cross-examination on the issues raised by the admission into evidence of the letter in question from Dr Sokolovic. Because the hearing time had been extended by that course, and the case was no longer able to be completed in the allotted time, the plaintiff conceded that any additional costs arising from the course proposed, should be borne by the plaintiff, and I so ordered.
At the time I made those orders, in view of the time constraints that then prevailed, I indicated I would include my reasons for admitting the additional evidence from Dr Sokolovic when delivering my reasons for judgment in the proceedings. My reasons for allowing the application are as follows.
First , I considered that it would be inappropriate, contrary to accepted principles, and potentially unfair to both parties, if the additional evidence of Dr Sokolovic was excluded, because this would mean that his evidence was left in an incomplete state, instead of being admitted in its entirety. Secondly , the evidence in question was relevant, and clarified a matter I had raised in argument with counsel for the plaintiff, and went some way towards explaining an otherwise unexplained hiatus that had been identified in the evidence concerning the plaintiff's psychiatric history, which could have led to an incorrect and therefore unjust result in the evaluation of the credibility of the evidence of the plaintiff, and the probity of the opinions of Dr Sokolovic in considering the matter. Thirdly , on behalf of the defendant, Mr Guihot fairly conceded that the defendant was not able to point to any prejudice with regard to the course proposed by the plaintiff, with the possible exception as to costs, which I considered would be adequately accommodated by the order for costs that I ultimately made when the application was allowed.
As events transpired, I considered that Mr Guihot had appropriately availed himself of the opportunity to further cross-examine the plaintiff on the additional material. I considered that the content of that further cross-examination of the plaintiff demonstrated that in the circumstances, no unfairness or prejudice to the defendant had arisen. Dr Sokolovic was not required for cross-examination on either the previously admitted reports that were included in Exhibit "B", or on his more recently admitted letter that became Exhibit "M".
Credibility of testimony
The defendant challenged the credibility of the testimony of the plaintiff. It was put that the plaintiff had exaggerated the extent of the effects of the 2007 motor vehicle accident in the hope of securing a larger amount of compensation for damages than was her more limited entitlement, as was contended by the defendant.
It was also put to the plaintiff that within a few months following the occurrence of the accident, she was in a condition of health very much as she was in before that accident, and that she was at that time able to carry out her housework and her domestic chores, and any work she might have been able to perform before the 2007 motor vehicle accident, if she had been inclined to do so.
Those challenges required an assessment of the plaintiff's credibility as a witness, and required an analysis of the medical reports and records that were tendered in the proceedings. That assessment was complicated by a number of matters.
One such matter was the defendant's submission that the plaintiff had selectively described the injury effects of the several accidents and the difficult circumstances which she has unfortunately encountered over many years. The challenge was to the effect that the plaintiff had downplayed or minimised the effects of those earlier events in order to seek to maximise the potential verdict she stood to obtain in these proceedings.
A difficulty in assessing the plaintiff's evidence as to the nature and the extent of her disabilities that were due to the accident in question, was the fact that she had consulted different doctors for her post-2007 accident complaints, as distinct from those doctors who had been treating her shortly beforehand. This was in circumstances where she had not changed her address at the time of her 2007 accident. The plaintiff's explanation for having taken that course, was a stated desire to keep questions of injury due to her 2007 accident separate from her general medical needs.
On that issue, I found the plaintiff's stated reasons for taking that course were unusual, but not glaringly improbable so as to necessarily require rejection, which was the implication of the defendant's submission.
Significantly, there were no medical reports tendered from the practitioners who had previously assessed and had treated the plaintiff for her pre-2007 injuries. There was no evidence to the effect that her previous treating doctors in respect of those earlier injuries, were unavailable. The absence of those reports was surprising, given that the plaintiff had pursued a number of prior claims for compensation, and was able to call upon some of her retained records in relation to one of those claims, for example, the material that had been provided to Dr Sokolovic, which he had, to a degree, extracted and included in his initial report.
In cases like this, where a witness gives evidence through an interpreter, it is well settled that caution is required in determining credit issues by reference to considerations of demeanour. This is especially so in this case where unchallenged evidence is that the plaintiff suffers from a diagnosed psychiatric illness where her affect, which was plainly observed to be flat at the time she gave evidence, could possibly have been influenced by that illness. In that regard, it was not made clear as to whether the plaintiff's affect could have in any way been influenced by the taking of any of the medications, for example, the benzodiazepine Ducene, an anxiolytic prescribed as a muscle relaxant, as explained by Dr Sokolovic. Speculation on that matter was not appropriate without medical evidence.
Another feature of the case which requires that demeanour be considered to be of diminished value in assessing credit is that some clues to credibility, including non-verbal behaviour whilst in the witness box, may also have a cultural determinant which could be misleading, or could lead to unfair conclusions when making an analysis of credibility: Goodrich Aerospace Pty Limited v Arsic [2006] NSWCA 187, per Ipp JA at [21].
For those reasons, I have substantially disregarded demeanour considerations as a means by which to assess the credibility of the plaintiff's testimony.
The limited extent to which I have had regard to the plaintiff's demeanour in order to assess her credit as a witness was her at times tearful manner of responding to questions. I considered that her albeit translated responses in those circumstances were reasonable and appropriate to the circumstances. She was upset when giving her evidence but I did not consider this was to the extent of being histrionic. This suggested to me that the general tenor of her translated evidence was sincere and not exaggerated.
Although the evidence disclosed the plaintiff had pursued some TAFE studies, most recently in 2007, aimed at improving her proficiency in the English language, I did not consider her use of an interpreter in the proceedings, to be unreasonable in the circumstances, given the importance of the litigation to her.
My overall conclusion from the plaintiff's evidence was that she was genuinely injured. On first examination, in the light of her history of prior injuries, the extent of her injuries was difficult to determine from her oral evidence alone, without reference to tendered medical reports. This was because of the absence of historical material in the form of detailed medical evidence as to the effects of prior accidents upon her. Nevertheless, the assessment of the evidence and the issues had to proceed upon the basis of the material that the parties had produced as evidence.
For the reasons I have set out in the analysis of the evidence of the plaintiff, and the medical evidence, I have rejected the submission to the effect that the plaintiff had exaggerated the effects of the 2007 accident. A review of the tendered medical and allied evidence leads me to conclude, for the reasons I have identified in the course of that review, the plaintiff's evidence in these proceedings, as explained through that medical evidence, was sufficiently reliable to warrant acceptance. After reviewing the medical records of the plaintiff's various general practitioners, I formed the view that material served to persuade me to accept the plaintiff's account of the effect the various injuries had upon her over time. Accordingly, I did not accept the submission that the plaintiff had recovered from the effects of the 2007 accident within a short time of its occurrence.
I have otherwise stated the reasoning behind my various credit findings in the context in which those findings arose for decision in connection with my consideration of the relevant issues and sub-issues that emerged from the evidence.
Overview of evidence
In addition to the oral evidence of the plaintiff, the plaintiff's daughter Ms Plema Nuhic also gave evidence as to the nature of the plaintiff's post-injury problems and with regard to the claim for domestic assistance. A former employer of the plaintiff, Mr Ivan Spehar was called to support the basis of the plaintiff's claim for future loss of earning capacity. The plaintiff's past earnings and work history were impressively documented by a bundle of supporting materials: Exhibit "D". Mr Spehar's correspondence to the plaintiff's solicitor was also tendered: Exhibit "4" and Exhibit "5". I did not consider the slight variance between Mr Spehar's oral evidence and his correspondence comprising those exhibits to be significant, given the passage of time.
The plaintiff tendered a bundle of reports from treating and assessing doctors and allied practitioners: Exhibit "B". That bundle was augmented by Exhibits "M" and "N", following the grant of leave to re-open the plaintiff's case during final addresses. The defendant tendered a bundle of reports from doctors who have assessed the plaintiff for the purpose of this litigation: Exhibit "1".
The parties tendered an array of other documentary exhibits which included the handwritten clinical records of the plaintiff's treating general practitioners: Exhibit "C", Exhibit "2" and Exhibit "7". I shall refer to these documents when stating my findings where it is relevant and necessary to do so.
None of the reports tendered in these proceedings were from practitioners who had either seen or who had treated the plaintiff before her injury on 2 May 2007. None of the medical or allied witnesses from whom reports were obtained were called to give oral evidence, nor had they been required to be cross-examined on their opinions. This made the task of assessing the differing medical and allied opinions more difficult for the purposes of determining which opinions or body of medical evidence should be preferred, where relevant differences arose, and where a concluded view of those matters had to be formed.
Facts
In the paragraphs that follow, I set out my findings of fact concerning the relevant chronological events that unfolded as the background to this claim. In doing so, I set out my findings of fact concerning the plaintiff's personal circumstances, her previous health and work history, the events of the collision and the resultant medical and allied assessments. I have considered all of the exhibits and I have drawn upon them, as well as upon the oral evidence, for the purpose of identifying those findings of fact. Where these findings have resulted from the resolution of factual controversy within the evidence, I have identified the relevant controversy along with my reasons for the resolution of any such controversy, where it was relevant to do so.
Plaintiff's personal background and work history
The plaintiff was born in Bosnia Herzegovina in 1956. She completed her secondary schooling there to age 17 and then undertook a course at a catering college in her hometown of Bihac, and then subsequently worked in a retail position in Bosnia. She migrated to Australia in 1980. Her first marriage was in 1978. She and her first husband arrived in Australia in 1980. The plaintiff is an Australian citizen. The first marriage ended in separation in 1981, followed by divorce in 1985. She married her second husband in 1989, and from that marriage there is a daughter presently aged 22 years and a son presently aged 14 years. The plaintiff's husband is presently in poor health.
In the early years following her arrival in Australia, the plaintiff worked for several years as a cleaner, and then as a shop assistant in a butcher's shop. The plaintiff tendered a bundle of material dating back to 1981 to document her work history, which I considered to be an impressive retention of personal records in the circumstances.
Since 2004 the plaintiff has been in receipt of a carer's pension as she has been the carer for her husband, who is 14 years her senior and who has been in a poor state of health since 2002. As a result he does not significantly contribute to the tasks required in running the home.
At the time of her injury in 2007, the plaintiff was not in actual employment. She said she had earlier applied for work with her former employer, Mr Spehar, who was the proprietor of a significantly sized butchery, grocery and smallgoods manufacturing and retail outlet in the western suburbs of Sydney. The plaintiff had worked for Mr Spehar as a packer and helping hand. Before her accident in 2007 the plaintiff had applied for work with Mr Spehar. He told her he would let her know when a position became available. When that opportunity later arose, the plaintiff was not able to take up an offer of employment from Mr Spehar due to the effects of her injuries from the 2007 accident. A trial of work as a packer and stacker in May 2009 proved unsuccessful because the plaintiff was in pain and needed frequent rests, and was unable to cope with the work. The surrounding circumstances of Mr Spehar's offer of employment will be more closely examined in connection with my consideration of the claim for economic loss.
Plaintiff's previous health and injury history
The plaintiff has had a series of incidents in her past that have to varying degrees, resulted in injury and disability. In the paragraphs that follow I have identified the chronological order of the plaintiff's previous injury related history.
The plaintiff had a motor vehicle accident in 1983 in which she injured her neck and her lower back. Those injuries were later aggravated by a further motor vehicle collision in 1984.
In 1993, the plaintiff slipped and fell in the bathroom of a McDonald's restaurant, injuring her back and her coccyx. Relevant to that incident the defendant tendered a treating doctor's report incorporated within a Department of Social Security form dated 8 March 1995. There it was stated that on 26 September 1993, the plaintiff had been involved in a fall in which she injured her head, neck, back, right hip and shock. That certificate indicated the several diagnoses of concussion, together with neck and back strain. The certificate also stated that the plaintiff had an early unspecified disc bulge, right hip pain, headache, chronic neurosis and depression: Exhibit "6".
On 8 November 1993 the plaintiff had also fallen down some stairs and had injured her chest and lower back.
In 1996, the plaintiff was the victim of an assault, which comprised serious threats of harm, including death to herself and to members of her family. This caused the plaintiff to suffer a psychological injury, which resulted in a diagnosis of post-traumatic stress disorder [PTSD]. The details of those events are set out in the Determination of the Victims Compensation Tribunal dated 17 November 1998, which was annexed to a medical report, Exhibit "M".
In 1998 the plaintiff suffered an adverse psychological reaction to an unpleasant experience where she found the breakfast cereal she had been eating had been contaminated by worms, which went on to her face. This caused her to become sick and vomit. She sought treatment from Dr Sokolovic for the ensuing psychological problems, and she stated that these problems resolved after treatment.
In 2003, the plaintiff complained to her general practitioner, of an assault upon herself and upon her daughter by three neighbours: Exhibit "2". The details of the assault were not explored in evidence. The only evidence of that assault was as set out in the clinical notes kept by one of her general practitioners, Dr Mohammed, who also noted a history that on this occasion the plaintiff had fallen down and had injured her right foot and ankle. Dr Mohammed recorded the findings on his examination of the plaintiff with regard to that incident on 6 June 2003 to the effect that the plaintiff had a swollen right ankle and foot in the region of the lateral malleolus, which was felt to have been very tender, and requiring the plaintiff to use crutches. This injury did not feature in the oral evidence either in chief or in cross-examination, and it only appeared in Dr Mohammed's handwritten notes. It was not the subject of consideration by any other doctor whose reports were in evidence.
With the exception of the 1984 motor vehicle accident, the 8 November 1993 fall down some stairs, and the 2003 assault, the evidence is that the plaintiff made claims for, and had received, monetary compensation for each of the other events I have outlined above. No adverse inferences were said to arise from those circumstances.
It was against this background, that the plaintiff's injuries with which the present proceedings are concerned, must be viewed. Before addressing those questions, it is relevant to examine the circumstances of the accident.
Events of the collision
At about 9.15am on Monday 2 May 2007, the plaintiff was seated in the driver's seat of her stationary vehicle at red traffic lights on the Hume Highway at Lansvale, NSW, when her vehicle was struck from behind by another vehicle. That impact was the last of three impacts in a series of rear end collisions that occurred at the scene. At the time, the plaintiff was to a degree thrown about in the cabin of her vehicle although she had been restrained by her seatbelt. She was shocked at the occurrence of the accident, and declined the offer of an ambulance at the scene because she just wanted to get home. There was resultant damage to the rear of her vehicle.
In these circumstances, I consider that it would be unsafe to assume, as one of the defendant's reporting medical experts has assumed, that the collision had only involved a minor impact. The conclusion of that expert appears to have been based upon the statement of a Mr Mustapha Taha, whose statement was given to that doctor for his consideration. However, that statement, or any similar evidence, did not feature in the evidence tendered in the proceedings. I shall return to this topic in my consideration of the assumptions made by the defendant's medical experts when setting out my reasons for preferring one body of conflicting medical evidence over the other.
In order to determine the nature of the plaintiff's injuries and disabilities from the 2007 accident, a detailed review of the medical evidence must be undertaken, in view of the arguments mounted by the parties.
Medical and allied treatment and assessments
The plaintiff did not seek out medical advice or treatment until 3 days after the collision, 5 May 2007, when she consulted a general practitioner, Dr K Hamid, who prescribed Voltaren and Ducene. He has overseen her treatment since that time. One of the defendant's medical experts considered, unwarrantedly in my view, that this delay in seeking medical assessment was indicative of the plaintiff having received only minor injuries.
The medical evidence tendered in the case for the plaintiff was as follows. There were two letters from Dr Hamid as well as his handwritten clinical notes, 15 short reports from the late Dr Grahame Mahony, an orthopaedic surgeon who treated the plaintiff at the referral of Dr Hamid, until he became ill and ceased practise, two letters from Dr M Guirgis, an orthopaedic surgeon who took over the treatment of the plaintiff from Dr Mahony, a report from the former treating psychiatrist, Dr M A Chaudhary, and two reports and a clarification letter from Dr M Sokolovic the psychiatrist who took over the management of the plaintiff's psychological problems. There were a number of radiological investigation reports and a report from Ms L Smith, an occupational therapist engaged by the solicitor for the plaintiff. The plaintiff tendered some discharge summaries relating to her attendances at Liverpool Hospital in 2008. The plaintiff also tendered two reports from Medical Assessment Assessors, Dr G McGroder, an occupational medicine specialist, and Dr A Virgona, a consultant psychiatrist.
The medical evidence tendered in the case for the defendant comprised four reports from Dr R Lewin, a consultant psychiatrist, four reports from Dr L Pierides, a consultant occupational physician, and an occupational therapy assessment by Ms A McLaughlin. The defendant tendered a report from Dr G Walker, a neurologist who saw the plaintiff in 2008 at the request of her treating general practitioner, Dr Hamid. The defendant also tendered a report on a related CT brain scan report that had been arranged by Dr Walker.
The defendant also tendered copies of the handwritten historical clinical records of Dr Mohammed and Dr Jakovac, who were at various stages before the accident in question, the general practitioners who had treated the plaintiff: Exhibits "2" and "7".
The first issue that arises for determination in the proceedings is the identification of the plaintiff's most probable state of health at the time of the collision on 2 May 2007. The resolution of that issue is the essential pre-requisite for then determining the nature and extent of the injuries sustained by the plaintiff in the 2007 accident which is the subject of these proceedings.
Issue 1 - Plaintiff's state of health before the 2007 accident
A difficulty in making an objective assessment of the plaintiff's state of health prior to the 2007 accident is the absence of medical reports from treating and assessing doctors concerning the pre-2007 period in which other injuries had been sustained. Such reports would have assisted in gaining an insight into the plaintiff's state of health, and any residual impairments that might have continued to affect her as a result of earlier injuries and the problems that related to the 1983, 1984, 1993, 1996, 1998 and 2003 incidents.
The assessment of the plaintiff's pre-2007 health status must therefore be determined by an evaluation of the plaintiff's own evidence, the evidence of the plaintiff's daughter, along with a detailed evaluation of what is available from within the histories and opinions that are recorded in the various medical reports and clinical records that are available for consideration.
The defendant submitted that there were significant doubts about the reliability of the plaintiff's evidence as to her pre-2007 health status. The defendant argued there were doubts concerning the reliability of the histories assumed by the medical practitioners who had provided reports in these proceedings. The defendant argued for the conclusion that the plaintiff had not discharged the onus of proof of lasting disability for which damages should be assessed, as is required by s 5D and s 5E of the Civil Liability Act 2002.
It therefore becomes necessary to undertake a detailed review of the historical assumptions recorded in the various medical reports tendered in the case for the plaintiff in order to compare the summaries of history prepared by the authors of those reports when setting out their respective opinions, with the evidence of the plaintiff. That process would then enable an assessment as to whether these histories formed a reasonable basis upon which to make findings on the underlying issue of the plaintiff's state of health, but also having regard to the cautionary considerations referred to by Basten JA in Mason v Demasi [2009] NSWCA 227, at [2].
The focus of that review is a consideration of the plaintiff's own account of her pre-2007 symptoms and problems that had remained with her as a result of those pre-2007 incidents.
The starting point of the analysis for that consideration is the following summary of the assumptions as to the plaintiff's pre-2007 health status as recorded by the doctors who have provided reports that were tendered in the case:
(a) The report of Dr Hamid dated 26 November 2010 recorded a summarised history that the plaintiff's pre-2007 condition had been stable, and she had not suffered pain and discomfort for many years before the 2007 accident;
(b) The report of Dr Mahony dated 11 September 2007 described the plaintiff as having been pain free from the previous accidents for at least 10 to 12 years;
(c) The report of Dr Chaudhary dated 12 February 2009 reiterated the plaintiff's history that although her previous accidents had resulted in injuries to her neck, her shoulders, her arms and her back, she had been pain free from those problems for at least 10 to 12 years until the accident in 2007;
(d) The 2 July 2008 MAS report of Dr McGroder recorded the plaintiff's history that she was pain free at the time of the 2007 road traffic accident;
(e) The 14 September 2010 MAS report of Dr Virgona did not deal with the detail of the plaintiff's physical condition immediately before the 2007 accident, as his focus was a psychiatric examination;
(f) When the plaintiff was interviewed by Dr Lewin on 6 July 2010 at the request of the defendant, he recorded that she had told him that she had not required analgesia or antidepressant medication in the years prior to the motor vehicle accident in 2007, however, the focus of his examination was also centred upon the psychological consequences of the plaintiff's injuries;
(g) When the plaintiff was interviewed by Dr Pierides on 22 November 2007 at the request of the defendant, he recorded that she had told him something to the effect that she had recovered from the prior injuries by the time of the 2007 accident.
(h) The plaintiff's case was that the first report of Dr Sokolovic properly summarised the plaintiff's health and disability situation before the 2007 accident in the following terms:
"As time passed [before her 2007 accident], Zineta's general health condition gradually improved. Her psychosocial functioning approached its previous levels, and with encouragement from her husband she was successfully involved with various studies at her local Tafe (sic). She also became involved with her children's school, contributing to parental meetings. These improvements continued, ..."
The above quotation went on to deal with an incorrect assumption as to the plaintiff's work status, which is not necessary to reproduce here, and which I shall address in analysing the evidence of Dr Sokolovic.
In essence, in submissions, the defendant pointed to the impression gained from the above summary, to the effect that the plaintiff had given consistent histories of having recovered from the effects of her pre-2007 injuries, to the extent that there were no further symptoms in the lead-up to the 2007 accident. The defendant challenged the notion that any ongoing problems were due to the effects of the 2007 accident. The defendant submitted this was a matter that should be taken into account when assessing the credibility of the evidence of the plaintiff, so as to compel the conclusion that the plaintiff's evidence as to her history should not be accepted.
In contrast, on behalf of the plaintiff, it was argued that the above approach taken by the defendant was overly simplistic, as it was necessarily an approach based on summarised histories. The plaintiff submitted that the proper approach was to assess the entire evidence on this point, including the evidence of the plaintiff and her daughter, for a more balanced assessment, in order to arrive at a proper understanding of the plaintiff's pre-2007 state of health. I accept that submission as reasonable.
It is therefore necessary to compare the summarised histories as recorded by the abovementioned doctors with first, the plaintiff's own evidence, and secondly, such pre-2007 medical material as exists, in order to assess whether, in reality, the opinions tendered in the plaintiff's case should be rejected as being based on an incorrect factual foundation. The answer to that question will determine whether those reports have any utility in assessing the nature and extent of the plaintiff's injuries and disabilities that arise from the 2007 accident.
Accordingly, the review of the evidence on this issue should commence with the plaintiff's oral evidence of the effects of the various incidents in which she had been involved. Ultimately, at the end of that review, and the review of the other evidence, the issue is whether the plaintiff's account of her pre-2007 history should be accepted.
In her evidence in chief, the plaintiff described how, following the 1983, 1984, and 1993 injuries she had variously sustained, her symptoms had settled after time had passed.
The plaintiff stated that in 1983 she had injured her upper spine, her low back, both legs and both shoulders. She did not suggest that she had fully recovered from those injuries by the time she came to be injured in the 1984 accident, in which she stated that she had injured her right leg and her back. She said that at the time of the 1984 accident, she had still been having problems with her back, and those problems had continued into 1985 and 1986. She further stated that those problems had then improved, but that she still had pain in those areas from time to time.
The plaintiff said that before the 1993 fall in the bathroom at the McDonald's restaurant, when she had injured her back, her back had been " good ". When asked what she meant by that expression, she said she had wanted to say that she was not in pain everyday. She further explained that she sometimes had pain in the lower back or in the neck or in the right shoulder.
This latter description of the plaintiff's level of pain up to 1993 seems to be consistent with the plaintiff having worked at Ivan's Butchery for some months in 1992 to 1993, where she was engaged in activities serving customers, cleaning and placing meat into big refrigerators. It seems to me to have been unlikely that the plaintiff would have been engaged in such work activities if she had continued to have been significantly affected by ongoing neck, back, shoulder or leg pain. It was the fall in 1993 that made her cease that employment at Ivan's Butchery.
The plaintiff went on to say that after each of the accidents that had occurred in 1983, 1984 and 1993, her back pain had been severe and after her fall in 1993, her back pain had been constant until about 1995. The plaintiff went on to say that after 1995, she was never completely pain free in her back, and " was in pain maybe two or three times a year ". In that context, I did not take that to be a precise counting of occasions on which she experienced symptoms of back pain. Rather, I considered it to be more of an estimate because of her use of the qualifying word " maybe ".
The remainder of the plaintiff's description of her health between 1995 and 2010 related to psychological matters. These related to some death threats she had received in 1996, and the psychological problems she had experienced following the discovery of worms in her breakfast cereal, in the incident she described as occurring in 1998.
In her evidence in chief, the plaintiff gave no further evidence of her pre-2007 health status other than to say that by the time she had decided to seek work in 2007, she was having no further problems with her back, and " not really " having any further problems with her neck. The plaintiff was not asked any questions about the effects on her, of the 8 November 1993 fall, which was different to the fall at McDonalds, or about the 2003 assault.
When the plaintiff's evidence on these matters was tested through cross-examination, I did not see it as having been relevantly contradicted.
In cross-examination on her prior history, the plaintiff did not concede that she had told Dr Mahony that she had been free from neck and back pain for the previous 10 years. Instead, she maintained that in that time, from time to time, she had pain in the neck and in the back. When pressed on this subject, she said she could not remember precisely what she had told Dr Mahony, but she maintained that she had told him she sometimes experienced pain in the neck and the back.
When pressed further on this topic, the plaintiff denied she had withheld telling Dr Mahony about her experience of neck and back pain at the time she first consulted him in My 2007 in order to avoid disadvantaging her current claim for compensation. In that context, she stated she could not hide the pain, and felt she had nothing to hide.
In considering the probity of that answer, I considered it was most probably a true statement because, in the Motor Accident Personal Injury claim form which is the subject of these proceedings, the plaintiff identified her treating doctor in respect of her 1983 injuries: Exhibit "3", question 34. In my view, that disclosure was inconsistent with the plaintiff seeking to hide information as was suggested, if for no other reason, the subpoena process would be likely to be revealing of her prior history.
Similarly, the plaintiff denied withholding information from Dr Hamid concerning her experience of neck and back pain between 1999 and the time of her accident on 2 May 2007. She said she would have told Dr Hamid of such things if she had been asked about them. I accept the plaintiff's evidence in that regard as it seemed inherently plausible, and there was no demonstrated reason from within the evidence that persuaded me I should doubt the veracity of that evidence.
The plaintiff said she did not think she had told Dr Chaudhary she had been free from neck and back pain for 10 to 12 years before the 2 May 2007 accident. However, the plaintiff fairly conceded the possibility, although she did not think so. Her actual answer was " I don't - maybe, I don't think so, maybe ." She went on to query why she should be motivated to conceal historical information from Dr Chaudhary when she had gone to see him for his help. I considered that her response was a genuine expression of disagreement with the proposition put to her in cross-examination. She denied that such a concealment had occurred, and she also denied that she had concealed such matters in order " not to hurt " her claim for compensation. Again, I consider her answers along these lines, to be plausible, believable and not relevantly contradicted.
When the plaintiff was pressed about her experience of back pain after her 1993 fall in the bathroom at McDonalds, she stated that she had experienced back pain which " came maybe two or three times a year and that's it ". She was adamant that the back pain from the fall had recovered after time had passed, and she was left with the experience of back pain two or three times per year, lasting maybe eight days, and then decreasing until it went away. This is an issue of some importance and is one to which I will return when examining the records of Dr Mohammed, her pre-2007 accident general practitioner, as those records formed an important cornerstone in the defendant's attack on the credibility of the plaintiff's testimony.
The plaintiff also said that when she was seen by the occupational therapist, Ms Smith, she thought she had told Ms Smith " everything about - as far as I could remember ".
The plaintiff said she told Dr Mahony that in 2007, she had problems with her neck and her back from time to time before the 2007 accident, whereas after the 2007 accident, those pains were not the same as before, and were constant, whereas that was not the case before the 2007 accident. The plaintiff repeatedly made the point that the pain she had experienced after the 2007 accident was a completely different type of pain to the pain she had experienced before that accident. She said that the previous pains she had experienced would " go away after several days " which was completely different to the present pains she was experiencing, and which were constant in character.
When challenged over whether she had not told any doctor that the neck and back pain she had in the period before the 2007 accident was made worse by the 2007 accident, she replied that she had not known it was " necessary to mention all these minor pains, minor things, just the major ones ". She went on to develop that evidence by stating: " Yes I do have pain and severe pain after previous accidents, but then eventually the pain settle down, so actually then it wasn't as strong so I didn't think it was necessary to mention to doctors it is not that strong ". I did not consider that evidence to be shown to have been inherently or glaringly improbable so as to require rejection, either when taken on its own, or when read in the context of the pre-2007 medical records.
On the subject of what history she had given to Dr Hamid after the 2007 accident, the plaintiff gave the following evidence:
"Q. Okay. Let me put it this way. Did Dr Hamid ask you to tell him how you were before you had the car accident or did he just ask you to tell him what the effects of the car accident you claimed to be?
A. INTERPRETER: I really have no idea what he asked. He just examined me and prescribed some medication and I left.
Q. At any stage when you have continued to see Dr Hamid from 5 May 2007 up to November of last year, at any time in that period did you tell Dr Hamid that you'd been in three motor vehicle accidents, the last being in 1984, but that you had fully recovered and had no symptoms? Was that something you ever told Dr Hamid?
A. INTERPRETER: I'm very confused, I don't know why.
HIS HONOUR
Q. Well, let me ask you this question, Ms Nuhic. Dr Hamid has prepared a report dated 26 November 2010. In that report, he said you had a history of three previous motor vehicle accidents.
A. WITNESS: Yeah.
Q. He said that the last accident before 2007 was in 1984.
INTERPRETER: Sorry, you said 84.
HIS HONOUR: 84.
INTERPRETER: So sorry, my mistake.
WITNESS: (Through interpreter) Yes.
HIS HONOUR
Q. And from the way he's written his report, he attributes to you the history that you fully recovered from the previous accidents and without symptoms at the time you had your 2007 accident. My question is: is that an accurate summary that coincides with what you told him?
A. INTERPRETER: Your Honour, but do you think it is necessary for me, say, to mention if I would occasionally have some - have some pain, to let him know--
Q. My question was: was it an accurate summary?
A. INTERPRETER: I did tell him that I had had three accidents.
Q. Did you tell him that you were without symptoms before the 2007 accident?
A. INTERPRETER: I may have, I don't know."
In my view, the concession which formed part of that last answer in that series of questions is not one that I consider would ordinarily be expected to be given if the plaintiff had been engaged in a process of concealment, as was submitted by the defendant. If there had been concealment, I would have expected a denial instead of the answer that was recorded.
At the time the plaintiff gave the evidence I have summarised and extracted in the preceding paragraphs, my impression of her evidence on these matters was that it was given without guile, and was given without any intention to mislead, or for the purpose of improving her case.
Nevertheless, before forming a concluded view, it remains necessary to examine the historical medical records kept by the plaintiff's general practitioners in the pre-2007 period in order to assess the likelihood of the plaintiff's evidence being correct.
The records of Dr Jakovac were tendered by the defendant as Exhibit "7".They comprised copies of handwritten pages of medical notes of consultations between 30 March 1993 and 20 June 1995. For the purpose of submissions the defendant was requested to provide a copy of those notes with yellow highlighted markings to identify the entries relied upon: MFI "5".The notes covered the period during which the plaintiff was noted to have resided in Auburn and then St Marys.
The first relevant highlighted entry, the fourth notation in time, is on 28 April 1993, and relates to the plaintiff's fall on spilt water on the floor at a restaurant. The narrative describes the history of the plaintiff having fallen on her back, hitting her head, and having lost consciousness. The areas of the right rib cage, the neck, low back and right hip were noted as being the sites of medical interest in that consultation, presumably because of pain in those areas. I interpret the notes of Dr Jakovac as showing, in order of mention in the notes, that on examination of the plaintiff, she was found to have some right parieto-temporal and occipital lumps on her head, with swelling, tenderness of the right front lower ribs, a bad headache, low back, right backside and hip pain, and a stiff neck.
The defendant pointed to a number of entries in the notes of Dr Jakovac between 28 April 1993 and 20 June 1995 to demonstrate that the plaintiff was affected, variously, with back problems, right leg problems, neck problems, sleeping difficulties, dizziness, vertigo, anxiety, distress and depression. Those notes showed various referrals and prescriptions of treatment and medication.
In my view, on reviewing those notes, apart from revealing an additional injury on 8 November 1993, which was not explored in oral evidence, where it was noted that in that incident, the plaintiff had fallen on some stairs, and had injured her left lateral chest cage and her lower back, there was nothing within those notes that contradicted the plaintiff's evidence as to being largely in pain from her 1983 and 1984 accidents before the restaurant fall in 1993, and continuing to have pain from the restaurant fall in 1993 for some time after that fall. Specifically, when properly understood, these notes do not contradict the history summarised by Dr Mahony, to the effect that the plaintiff was free of pain for about 10 to 12 years before the 2007 accident.
A copied portion of the handwritten clinical notes of Dr Mohammed, another pre-2007 treating general practitioner, was tendered as Exhibit "2". For the purpose of submissions the defendant was requested to provide a copy of those notes with yellow highlighted markings to identify the entries relied upon: MFI "4". The notes comprised handwritten medical notes of consultations between an unknown date in December 2002 that had been obscured during copying, to 21 April 2011.
For the purposes of analysis, it is convenient to identify three relevant periods that were evident in those notes, the first being between December 2002 and 22 April 2007, which pre-dated the 2007 accident, the second being for the notes of entries between 11 May 2007 and 14 October 2008, which related to the post-2007 accident period, and the third being between 25 March 2011 and 21 April 2011.
The significance of the first period within Exhibit "2" is that in the 52 months between December 2002 and April 2007, of the 150 consultations the plaintiff had with Dr Mohammed in that period, the defendant highlighted 29 of those consultations as being relevant to the assessment of the plaintiff's evidence as to her account of her pre-2007 state of health.
When those 29 highlighted entries were examined in detail, on a year by year analysis, it is evident that there were 3 consultations in the last month of 2002, 7 consultations in 2003, 6 consultations in 2004, 3 consultations in 2005, 6 consultations in 2006, and 2 consultations in the first 4 months of 2007, that were said to relate to physical problems to do with areas of the plaintiff's body that had been injured in her pre-2007 accidents. This evidence was a useful point of comparison for the plaintiff's oral evidence to the effect that by the time of her 2007 accident, her experience of back problems had reduced to several times per year.
On a closer examination of those notes of Dr Mohammed, some entries highlighted by the defendant related to headaches without annotation as to the apparent cause, and which could not therefore be reasonably said to be due to any prior injury, some entries related to an allied health care plan which dealt not only with a plan for the arrangement of 4 physiotherapy treatments for neck and back pain, but also for the apparently non-related issue of a dietician consultation. There also were several unexplained references to left shoulder pain.
Significantly, in respect of the two consultations referred to by the defendant as having occurred in February 2007, just 3 months before the May 2007 accident, contrary to the defendant's submission, these consultations are shown on analysis to be completely irrelevant to the issues in this case.
In that context, the recorded complaint of myalgia, or muscle pain, was noted to be queried as being possibly secondary to the medication Ezetrol, and for which Feldene was prescribed, and which was highlighted by the defendant as being relevant, apparently turned out to be related to a side effect of the plaintiff's cholesterol medication. In that regard, a reading of the note for 7 January 2007 reveals the plaintiff was noted to have been intolerant to statins, an anti-cholesterol medication, and on 23 February 2007, the prescription for Ezetrol was stopped so that repeat testing for blood lipids and for CK enzyme or creatinine kinase could be carried out. It was noted that the following month the plaintiff's CK reading had gone down from 600 to 311, and the plaintiff's cholesterol reading had gone up from 5.5 to 6.5, presumably due to cessation of anti-cholesterol medications. That interpretation is confirmed from the note concerning the plaintiff's condition of hyperlipidaemia that was made by Dr Mohammed on 25 March 2011.
Nothing of substance turns on these details other than it appears that the defendant had misread the significance of Dr Mohammed's notes in respect of this detail, and had therefore made a submission that overstated the significance of the mention of myalgia in the notes on the issue of assessing the reliability of the plaintiff's evidence on the matter of her pre-2007 state of health.
The significance of the second period in Exhibit "2" is that of the 11 consultations noted in that period, the defendant highlighted 8 of them as being relevant to the assessment of the plaintiff's evidence as to her post-2007 state of health, whereas an examination of the notes made on the occasion of those 8 appointments shows that the plaintiff's evidence has not at all been embarrassed by those notes. The highlighted portions of the notes refer to problems with earache, blood lipids, infections and dysuria, and not to any apparent accident related problems.
In that regard, the true significance of that part of those notes is that they confirm that the plaintiff had been seeing another medical practitioner for her accident related problems as she had said in her evidence, as was confirmed by Dr Mohammed's note in his own records on 25 March 2011.
The significance of the third period in Exhibit "2" is that in 2011, the plaintiff consulted Dr Mohammed in order to obtain confirmation as to the content of his notes, as is clearly stated on the last page of those notes. An obvious inference is that the plaintiff took that course with a view to preparing herself for giving evidence in this case. The point is not necessarily adverse to her credit and goes nowhere. There is no need for me to speculate as to whether this was as a result of something that had been intimated to her by her legal advisors or otherwise. The related matter of the absence of any report from Dr Mohammed is another issue altogether.
The plaintiff tendered a copy of the handwritten notes of the most recent of her treating general practitioners, Dr Hamid: Exhibit "C". Those notes commenced with an entry on 5 May 2007, which referred to the accident in question that occurred two days previously. In the paragraphs that follow, I set out my interpretation of the notes made by Dr Hamid.
The first note made by Dr Hamid recorded the plaintiff's complaints of neck pain, shoulder pain, chest wall pain, and lower back pain following the accident. At that time, the findings of examination recorded restrictions of the neck, back pain, giving rise to the impression of a whiplash injury. Voltaren, and Ducene, a benzodiazepine, were prescribed, as was physiotherapy for the neck.
On 7 May 2007, the plaintiff's condition was said to have been unchanged, and she was referred to physiotherapy. On 9 May 2007, the plaintiff's complaints of neck pain and insomnia were recorded, and further medications were prescribed. On the next consultation, the date of which was obscured by the document copying process, it is recorded that the plaintiff had reported no change in her pain and that physiotherapy was not helping. In August 2007 a record was made of a complaint of epigastric pain whilst the plaintiff was taking Voltaren. In November 2007 a complaint was recorded to the effect that the plaintiff was still having lower back, neck and shoulder pain. At that time it was noted that she had consulted Dr Mahony, who had ordered imaging studies. It was noted that the plaintiff had been complaining of vomiting, dizziness and nausea, and some other indecipherable complaint, for which a CT brain scan was ordered.
In December 2007 a note was made that the plaintiff's brain CT scan was reported as being normal. Dr Hamid had recorded that the plaintiff had complained of being very tired, having headaches, was sleeping poorly and had nightmares. At that point it appears that she was referred to a psychologist. There was no report tendered from that psychologist.
On what appears to be either 30 January or February 2008, the plaintiff was referred to Dr Chaudhary for her complaint of severe depression. On 28 March 2008, it was noted that the treatment plan for the plaintiff was to prescribe Zoloft for her.
It is not clear on the documentary evidence as to whether the above summary covers the entire range of consultations the plaintiff had with Dr Hamid, or only represented a selection of them.
Following my review of the evidence of the plaintiff, and the evidence I have summarised in the preceding paragraphs, aided by my consideration of the available medical evidence including the evidence I have reviewed in connection with my consideration of Issue 2 , I have concluded that at the time of the 2007 collision, the plaintiff had either recovered from, or had largely recovered from, the effects of her earlier injuries. This was to the extent that she no longer required regular or frequent medical attendances for treatment for the physical and psychological effects of the earlier injuries and incidents that she had incurred in the period before her injury in the accident on 2 May 2007.
I find that was so except for the occasional short-lived flare-up of symptoms which had a pattern of receding after a number of days, as was described in the evidence of the plaintiff, which I accept. I also accept the evidence of the plaintiff to the effect that the pain she continues to experience from the effects of the 2007 accident is of an entirely different nature, intensity and duration to the problems of that kind which she had previously experienced. I also find that before the plaintiff's 2007 accident the plaintiff's previously documented and treated psychological problems had settled down to the degree that she no longer required psychiatric treatment or assessment.
Issue 2 - Injuries, treatment and disabilities caused by 2007 accident
In order to reach a conclusion on the nature and extent of the plaintiff's injuries and the disabilities which flowed from the 2007 accident, it is necessary to view the plaintiff's own evidence on these matters against the various medical reports that were tendered.
Survey of evidence on injuries and disabilities
I have already reviewed and summarised the plaintiff's evidence as to her pre-2007 state of health and her injury history at paragraphs [54] to [108] above, and I have already indicated my acceptance of that evidence. In the paragraphs that follow, before identifying my findings on the preferred medical opinions, and my findings on the nature of the plaintiff's injuries and disabilities from the 2007 accident, I survey the evidence on those matters.
Plaintiff's evidence
In her evidence in chief, the plaintiff stated that in the accident in question, her vehicle was struck from behind without any warning. She said that when this occurred she felt scared and she seemed unaware of what was happening around her. She said she had felt confused and wanted to go home to rest. She said that when she arrived home she started crying and was aware of being in pain, for which she took painkillers. She said she felt drained and went to bed in order to rest. She said that later that day, she started to feel worse.
At that time the plaintiff said she was aware that her whole body was aching, she had a headache, her neck, low back, her arms and " everything " was aching. She also stated that both of her shoulders were painful, the right being more painful than the left. The following day she was aware of pain and this persisted for the following 3 days, so she went to see Dr Hamid. She had seen Dr Hamid a few times before, in connection with problems she had earlier experienced in 1993 and 1994.
Immediately following the 2007 accident, the plaintiff described her pain as " nearly the same " as from the 1983 accident, but the problem was also " psychological " because this time she felt fearful about what was going on around her, and she surmised that she might have lost consciousness in the accident because she did not know what was going on around her. It is not entirely clear as to why the plaintiff felt that she had lost consciousness. Perhaps it was due to the shock she had described. In any event, the evidence does not permit a finding that she had a loss of consciousness. In relation to this aspect, apart from the plaintiff's answer to question 25 of the claim form Exhibit "3", there was no direct evidence that the plaintiff had hit her head in the 2007 accident.
The plaintiff described the pain from the 2007 accident as " really horrible ... very severe " constant pain, compared to the " on and off " or " coming and going " pain that was the case immediately before the 2007 accident.
In answer to questions put to her in cross-examination, on the subject of the injuries she received in the 2007 accident, the plaintiff agreed that the injuries she received in that accident involved the same areas of her body that were injured previously. However, she qualified that answer by stating that the pain from the previous accidents was not as severe as the pain from the 2007 accident. She said the respective pains could not be compared, in that the pain from the 2007 accident was now constant, whereas the pre-2007 pains were initially severe, but gradually diminished in intensity before the occurrence of the 2007 accident.
In cross-examination, it was put to the plaintiff that she was exaggerating her evidence as to the effects of the 2007 accident in order to secure a larger amount of damages for compensation. It was further put to the plaintiff that after a couple of months following her 2007 accident, that her condition had got back to the way it had been in the years leading up to the 2007 accident, including in relation to her work and her domestic activities. The plaintiff did not agree with those propositions.
The defendant did not specifically challenge the evidence of the plaintiff on the circumstances of the collision (nor did the cross-examination traverse the plaintiff's general description of the injuries she received in that accident, as summarised at paragraphs [111] to [116] above) other than to make the general and non-particular suggestion, that she had exaggerated the effects of the 2007 accident in order to enhance the level of a damages assessment in these proceedings.
In my view, the plaintiff gave a measured and reasonable account of those matters in her evidence, and of itself, her evidence did not give rise to any concerns over whether she had either exaggerated or had tailored her evidence to suit her case, although in essence, that was the submission that was advanced on behalf of the defendant.
However, in view of the credit challenges that the defendant made to the plaintiff's account of her injuries sustained in the 2007 accident, and also having regard to the credit challenges made concerning the disabilities that she claimed had evolved from those injuries, before I conclude my findings on those matters, it is appropriate that I undertake a survey and review of the medical and related reports that touch on those matters.
In the paragraphs that follow, I propose to undertake that review in some detail in order to follow the course of the plaintiff's reported problems, the related treatment and the medical assessments made in connection with those matters, in order to assist me in the task of arriving at my findings of fact in relation to the injuries and disabilities that flowed from the 2007 accident.
Dr Hamid - treating general practitioner
The first objective assessment of the plaintiff's injuries following the accident of 2 May 2007, occurred when she was seen by Dr Hamid on 5 July 2007. He initially reported finding a restricted range of neck and lower back movements, as well as observing associated muscle tenderness and spasm of the neck and shoulder regions. Dr Hamid's initial diagnosis was that the plaintiff had suffered a soft tissue injury to the neck and to the lower back with some associated chest pain. That opinion was not challenged. Instead, the defendant sought to attack the underlying factual assumptions upon which that opinion was based by seeking to characterise the evidence of the plaintiff as being unreliable.
Dr Hamid initially prescribed pain killing, anti-inflammatory and muscle relaxant medications along with physiotherapy. After several weeks of persisting symptoms, he arranged for some initial radiological investigations which revealed the presence of degenerative changes in the cervical spine between the levels C3/4 to C5/6, with some narrowing of inter-vertebral disc spaces. He predicted that the injuries would improve but this would require management over time.
Dr Hamid continued to see the plaintiff over time, and in his 26 November 2010 report he observed the plaintiff had continued to suffer neck and back pain without improvement, with headaches, and the neck pain radiating to the arms and to the lower back. An MRI scan revealed the presence of some lumbar spine pathology at the level L4/5. Dr Hamid had made the observation that the plaintiff suffered from an unstable mental state and reactive depression, for which she received counselling and psychiatric treatment. Dr Hamid's referral of the plaintiff to a psychologist was in December 2007, and his referral to Dr Chaudhary for treatment of severe depression was in early 2008: Exhibit "C".
Referrals to other doctors
In the meantime, on 22 August 2007 Dr Hamid referred the plaintiff to Dr Mahony for orthopaedic treatment. The plaintiff was also referred to Dr Chaudhary for management of her psychological problems. She was referred to Dr Walker and Dr Dowla for neurological assessments. Dr Mahony referred the plaintiff to Dr Manohar for rehabilitation or pain management advice. The plaintiff's orthopaedic management by Dr Mahony was subsequently taken over by Dr Guirgis. The plaintiff's psychiatric management by Dr Chaudhary was later taken over by Dr Sokolovic, who was multilingual, and who was able to converse with the plaintiff in her own Bosnian language, or its related dialects.
No reports were tendered from either Dr Manohar, Dr Dowla, or from the pre-2007 treating general practitioner Dr Mohammed, or from any of the pre-2007 treating doctors. No explanation was proffered for the absence of reports from these doctors.
However, there was some selected hearsay of the content of the pre-2007 medical assessments of Dr Borton, Dr Garrick, Dr Gronow and Dr Metcalf cited by Dr Sokolovic in his first report. I shall refer to those opinions in connection with my review of the reports of Dr Sokolovic.
Dr Mahony - treating orthopaedic surgeon
Dr Mahony issued 15 reports concerning his assessment and management of the plaintiff's treatment between 22 August 2007 and 5 February 2010. Of those 15 reports, 11 were to other practitioners who are involved in the plaintiff's treatment, and 4 were addressed to the solicitor for the plaintiff.
Essentially Dr Mahony treated the plaintiff for a cervical strain in association with degenerative changes to the cervical spine with nerve root irritation affecting the upper limbs, as well as a thoracic strain with pain radiating to the chest, and a low lumbar back strain with nerve root irritation, radiating to the feet.
The plaintiff's physical symptoms did not improve much over time. Dr Mahony considered that she had sustained a cervical strain in association with degenerative changes with nerve root irritation affecting the upper limbs, as well as bi-lateral epicondylitis, capsulitis of her right shoulder and sub-acromial bursitis of her left shoulder, a thoracic strain with pain radiating to the left chest, as well as a low back strain with nerve root irritation radiating to the feet, more to the left than the right.
The terms of the MAS certificate of Dr McGroder, to which I will refer in due course, prevent a consideration of the plaintiff's shoulder and elbow problems as part of the effects of the 2007 accident.
Dr Mahony thought all of these symptoms, which I have summarised, were consistent with the road traffic accident the plaintiff had described, consequent upon aggravation of a pre-existing potentially irritable spine.
The plaintiff was prescribed a variety of therapies which included medication, physiotherapy, hydrotherapy and remedial massage.
The observations made by Dr Mahony concerning degenerative changes in the plaintiff's cervical and lumbar spines and the shoulder problems were confirmed on imaging studies that Dr Mahony had ordered.
The plaintiff's orthopaedic care was transferred from Dr Mahony to Dr Guirgis after Dr Mahony had retired from practice.
Dr Guirgis - treating orthopaedic surgeon
After the plaintiff's orthopaedic care was taken over by Dr Guirgis, on an unknown date that followed the retirement of Dr Mahony, Dr Guirgis sent two letters to Dr Hamid setting out his comments on diagnosis and advice concerning the management of the plaintiff's post-injury problems. Those letters, which were described by Dr Guirgis as consultation reports of clinical findings and recommendations, were dated 15 February 2011 and 14 July 2011.
The defendant objected to the tender of these documents as being non compliant with the requirements of an expert report and because they did not contain the customary details that were to be expected to be found in such reports to enable the assumed history and the opinions to be evaluated. Although these documents did not refer to or acknowledge the expert witness code, given that they were simply communications from Dr Guirgis, the treating orthopaedic surgeon, to the treating general practitioner, Dr Hamid, I considered they should be admitted into evidence subject to considerations of weight, particularly as they had been otherwise served in accordance with the rules, and Dr Guirgis was not required for cross-examination.
In those letters, notwithstanding the absence of a recorded history, Dr Guirgis confirmed the effect of the earlier opinions of Dr Mahony, and he identified in more detail, the post-traumatic cause of the plaintiff's neck, shoulder and lower back complaints, and in addition he referred to a post-traumatic vestibular dysfunction, which the parties agreed, was a reference to the plaintiff's complaint of dizziness. Dr Guirgis did not explain whether the dizziness was due to head trauma or due to some neck-related problem. It is not necessary for me to speculate on the mechanism, as Dr Guirgis has identified the cause to be post-traumatic.
Dr Guirgis did not indicate which trauma was responsible for this condition so that component of his evidence is of limited utility. In considering the weight to be attached to Dr Guirgis' comments in that regard, I did not see the need to otherwise discount them because that view had already been expressed by Dr Mahony, and Dr Guirgis' role was to continue Dr Mahony's previous care of the plaintiff.
Dr Guirgis also identified signs of psychological disturbance or post-traumatic stress disorder in the plaintiff. This was identified as being chronic pain, anxiety, depression, fear of driving for fear of having another accident, and a history of several syncopal attacks.
The plaintiff's psychological problems were the subject of a psychiatric report from Dr Chaudhary, and two subsequent psychiatric reports from Dr Sokolovic, the psychiatrist who currently treats the plaintiff.
Dr Chaudhary - treating psychiatrist
Following the onset of depression in the plaintiff some 7 - 9 months after the 2007 accident, Dr Hamid referred the plaintiff to a psychologist: Exhibit "C". There is no report from that psychologist. Subsequently, in early 2008, Dr Hamid referred the plaintiff to Dr Chaudhary, who saw the plaintiff for the first time on 14 April 2008, and on a total of 5 occasions, the last one being on 1 August 2008. The single report of Dr Chaudhary was dated 12 February 2009. Dr Chaudhary took a detailed history of the plaintiff's psychological problems as follows:
" PSYCHOLOGICAL SYMPTOMATOLOGY
She reported that since the accident of 2.5.07 she has not been able to do all the house duties such as cooking, washing, laundry, cleaning, vacuuming, shopping, washing the car, taking care of her children's needs and driving them to school and back. She was very active according to her in her daughter's school and she used to do voluntary work at least once a month. Every weekend with her family she used to go out for picnics, to the beach or other social activities.
She said she lived a normal and healthy life until the accident on 2.5.07.
Unfortunately since the accident it has been very difficult for her to perform any duties because she has a lot of back pain and shoulder pain. She also has a lot of headaches and her legs and arms are sore all the time. She gets severe pain and due to pain she has blacked out many times and twice was taken to the emergency ward at Liverpool Hospital.
At present she feels she must be accompanied by some member of the family all the time. Because of pain attacks she cannot attend hydrotherapy and was referred to the insurers because she was scared to go into a pool fearing she might black out and drown.
She still complains of having nightmares and they keep her awake through the night and she wakes in a sweat with fear. These nightmares affect her day and make her very stressful throughout the day. Some days she wakes and feels so depressed that she just wants to remain in bed. Her husband then tries to get her out of bed but she just does not want to know.
The pain attacks and flashbacks of the accident prevent her from driving and sometimes she tends to grab the steering wheel whilst her husband thinking they might have another accident. I advised her that she should sit on the back seat and read a paper or magazine and not to interfere with her husband's driving. Because of this she is quite depressed and depends on help from her husband and daughter. Now these family members do all the work around the house and the shopping as well. Her son helps out with the vacuuming. She can only help out with light housework like dusting and sometimes she can hang washing on the line but only using her right arm. She cannot cook any more due to blackouts, she is scared she might burn herself and make a bigger problem for herself. She said it is the same with shopping and she cannot carry heavy items due to her arm and shoulder pain and she cannot drive her car to the shops and back which she used to do prior to the accident. Since the accident she is in pain every day and depends on help from the family where before she was the one looking after them. She says her life has changed completely and the thought that it wont get any better frightens her a lot.
For some pain relief so she can do some of the things she was able to do prior to the accident, looking after her family and having a stress free life."
From the context of the cited comments, it is not clear as to whether Dr Chaudhary's reference to " pain attacks " as stated, or should be read as panic attacks.
Dr Chaudhary expressed the following unchallenged opinions on the plaintiff's diagnosis and prognosis as follows:
" DIAGNOSIS
In view of this clinical presentation I feel this lady is suffering from an adjustment disorder with anxiety and depressive moods. She has been on treatment and has been progressing slowly and with time her symptoms will settle down. Her main problems continue to be chronic pain syndrome due to the injuries she suffered in the accident and she will need effective pain management program which will help her to overcome her problems.
PROGNOSIS
Prognosis in the long run will depend on resolution of her pains and her psychological symptoms are secondary to the pain and once this primary condition is under control her psychological symptoms will remit in the future.
Prognosis in the long run is good and she will make full recovery from the psychological problems.
I therefore assess the plaintiff's entitlement to damages for loss of earning capacity in the claimed sum of $50,000 .
Past domestic assistance
The plaintiff made a claim for the value of past domestic assistance that was provided in the form of gratuitous care in the sum of $48,170.
The defendant submitted that on the evidence adduced, there should be no allowance made for this head of damage. That submission was based on both evidentiary and statutory threshold considerations.
The sum submitted by the plaintiff was identified as comprising two chronologically staged components.
The first component was for an average of 15 hours per week at $22 per hour over 2 years involving a sub-total of $34,320. The second component was for an average of 10 hours per week in the period to the date of the hearing, namely, $22 per hour for 2.5 years, involving a sub-total of $13,750. The total of those amounts was claimed at $48,070. That submission stands to be evaluated according to the statutory assessment criteria which requires that such damages must not exceed the statutory rate: s 128(5) MAC Act .
The factual evidence in support of the claim for past domestic assistance came from the plaintiff and her daughter. The claim was also supported by the report of Ms Smith. The reports relied upon by the defendants rejected this component of the plaintiff's claim.
There was not a great deal of comment within the medical evidence on the question of the need for domestic assistance. I shall summarise the commentary in the paragraphs that follow.
The report of Dr Mahony dated 4 December 2008 did not make any direct reference to domestic activities. However, Dr Mahony related the advice that in order to minimise an exacerbation of symptoms, the plaintiff was advised to restrict her activities so as not to carry out significant bending, lifting or significant use of the upper limbs: page 3.
The report of Dr Chaudhary dated 12 February 2009 made reference to the plaintiff discharging her household duties: fourth page. That reference was ambiguous. From the context, I read that comment as a reference to the plaintiff's pre-2007 accident situation.
The report of Dr Sokolovic dated 22 March 2010 made no direct reference to any inability to carry out household tasks so as to require assistance. Instead, Dr Sokolovic restricted his remarks to stating the plaintiff was unsuitable for employment, citing her PTSD. He also referred to her travel difficulties and the need for the plaintiff to be prompted or prodded in connection with some self-care tasks: page 13.
The opinions of Dr McGroder and Dr Virgona were non-contributory to the issue of domestic assistance.
The report of Dr Lewin dated 22 July 2010 stated that assistance in the plaintiff's home was not indicated when the plaintiff's psychiatric condition was considered: page 11. The subsequent correspondence from Dr Lewin dated 23 November 2010 clarified that view by stating that opinion did not extend to a consideration of the need for assistance on the basis of the plaintiff's physical condition: page 2.
The report of Dr Pierides dated 27 November 2007 emphatically stated that the plaintiff did not " require any assistance with any home duties ": page 7. In the same report, Dr Pierides emphatically stated that the plaintiff " needs no domestic care of any sort ... at any time following the accident ": page 6. He made that comment in connection with his belief that the plaintiff could " perform all activities of daily living without restriction ": page 6.
In his later report dated 7 July 2010, Dr Pierides recorded some limited comments concerning the plaintiff's daily activities, stating she cooks, she might do some dusting, but does not do the vacuuming. He also noted that the plaintiff's daughter and husband helped her: page 3.
Later, in the same report, Dr Pierides stated that he believed she would not " have required any significant home care ". The qualifying word " significant ", whilst subjective, implied that some assistance could have been required. This was left unexplored or unexplained.
In his letter dated 17 August 2011, Dr Pierides conceded that the plaintiff may have needed some domestic assistance for the first 6 weeks due to restricted neck and back movements, following which, Dr Pierides thought she would have been able to return to all work and domestic activities: page 3. The basis of that opinion was not stated. In my view, Dr Pierides has underestimated the extent of the plaintiff's neck and back problems.
I consider that the opinions of Dr Lewin and Dr Pierides were not definitive of the issue of the plaintiff's need for domestic assistance in that they were not reasoned to a degree that was either compelling or persuasive. In my view, those reports proffered intuitive views only, which indicated to me that I should look to the more specific evidence of the plaintiff and that of her daughter for guidance on this issue.
The evidence of the plaintiff was that before the 2007 accident, she was capable of, and had in fact attended to everything involved with the running of her household. This involved her doing her own housework, including cleaning, washing, shopping and cooking. The plaintiff said that after the accident, she was not able to do everything and she was unable to continue in those tasks. She said her daughter took on the vacuum cleaning, the cooking, the ironing, the changing of bed linen, the washing, and whatever she could do, from the time of the accident to the present time. The plaintiff estimated the weekly time taken for these tasks in the following terms: " I'm not sure. Maybe ten, even to 15 hours per week ".
When cross-examined about her ability to carry out housework after the 1993 fall, the plaintiff stated that whilst initially, the pain was quite severe, it gradually diminished, and before 2002, when her husband became ill, he had helped her with the domestic chores. The plaintiff said neither her daughter nor her husband assisted with housework in the period just before the 2007 accident. The plaintiff said she was carrying out those tasks herself and without difficulty. The plaintiff said that she had carried out some light housework, such as dusting, and the preparation of easy meals since the 2007 accident. She did not agree with the proposition that within a couple months of the 2007 accident, she had no impairment in her ability to carry out any of her housework or domestic activities. I found that evidence to be credible, reasonably given, and not glaringly improbable on the evidence as a whole.
The evidence of the plaintiff's daughter Ms Plema Nuhic was that before her mother's accident, she was not required to assist with any housework tasks. She stated that before the 2007 injury, her mother performed all the household tasks, even though before the 2007 accident, she occasionally complained of back pain.
Ms Nuhic stated that after the 2007 accident, her mother was in shock, and seemed scared, and she added her observations that she had never seen her mother in such a state before. She stated her observations that the plaintiff ceased being able to do housework, and had ceased cooking the traditional meals of the household. She described her mother as having become very depressed, unable to sleep and waking up crying, and in pain. She described this as representing a big change in her mother. She said her mother was " obviously not the same how she was before the accident ". She thereafter took upon herself the responsibilities of the household, which she came to realise, involved hard work. Before the 2007 accident, she did not carry out any such duties. She undertook that work in two capacities, one during periods when she lived at home, and the other when she lived away from home but visited her family home to assist.
Ms Nuhic said that her work in that regard involved her doing whatever was required to make the household look decent. This took up almost the whole of her weekend in performing housework because that was the only time she could spare. She said those tasks included washing the clothes, bringing them in from the line, ironing, changing bed sheets, vacuuming, cooking for the whole family, some daily household cleaning maintenance tasks, shopping once a week, and " basically everything around the house ".
Ms Nuhic stated that the time taken up with these activities varied according to the time of the year and current events. She estimated a range of between 14 to 20 hours per week, at times reducing to 9 hours per week, and then reducing further down to about 6 hours per week. These times were also obviously influenced by her own work commitments, her study course commitments, and her availability to do the work, which no doubt influenced the extent to which the work was carried out.
Ms Nuhic managed to fit in the domestic assistance she described in between her full time work and her part time studies towards degrees in economics and law, even during the periods when she had moved out of the family home. In the year of the 2007 accident she was proceeding towards completion of an advanced diploma in business marketing and management. Cleary she was a proficient person, who made the time to perform her filial responsibilities at great inconvenience to herself.
In cross-examination Ms Nuhic confirmed that since over the time since the 2007 accident, she had gradually cut down the number of hours she spent providing assistance to her mother, from 15 to 20 hours per week, down to a little over 6 hours per week, in 3 visits per week of 2 hours or so duration, in addition to helping with shopping.
I accept Ms Nuhic's evidence on these matters. Her evidence was explored in cross-examination and it was not shown to be in any material way incorrect or improbable. I find that she related her evidence truthfully on these matters, notwithstanding that she did so with some degree of nervousness.
Having reviewed the factual basis for the claim for past domestic assistance, I turn to a consideration of the reports from the respective occupational therapists, especially since the medical evidence offered only limited insight into the issue.
The 26 September 2009 report of the occupational therapist engaged by the solicitor for the plaintiff, Ms Smith, dealt with the domestic assistance claim. Ms Smith took a history and then made observations of the plaintiff's various difficulties, restrictions or inabilities with activities involving sitting, standing, bending, squatting, kneeling, crawling, transfers, walking, stair negotiation, overhead upper limb use, climbing ladders, lifting, carrying, pushing or pulling trolleys, retrieving items from the floor, and generally restricted movements: Exhibit "B", Tab 22, pages 14 to 18. Ms Smith also identified a need for some travel assistance because the plaintiff was too nervous to drive: Exhibit "B", Tab 22, pages 17 and 20. In that analysis, any contribution of the plaintiff's shoulder and epicondylitis issues would appear to have minimal contribution.
I infer from the descriptions in Ms Smith's report, that the restrictions also involved most, if not all of the activities involved in the household activities that were referred to in the evidence of the plaintiff and her daughter, and which I have summarised above. The description of the layout and composition of the plaintiff's home, which Ms Smith included at page 19 of her report, would seem to require to some degree, a significant number of the activities that were described by Ms Smith as restrictions in the plaintiff's ability to perform tasks in the housework sense.
Ms Smith prepared an analysis of the input of the plaintiff and her daughter, which identified the hours spent by Ms Nuhic in assisting her mother with household tasks since the time of the accident. At pages 22 to 29 of her report, Ms Smith supported a claim for such assistance of an average of 18.5 hours per week between 2 May 2007 to December 2007, 15 hours per week between January 2008 and February 2009, and 10.5 hours per week from February 2009 until the date of her report.
Those estimates of time are in my view, broadly consistent with the description of household activities that is the subject of commentary by Ms Smith between pages 25 and 29 of her report, which covers cleaning, meal preparation, shopping, washing dishes, bed making, laundry, ironing and home maintenance, where before the injury, the plaintiff was independent in these activities.
It is significant to observe that the opinions of Dr Pierides to the effect that the plaintiff did not need domestic assistance were not reflected in the opinions of Ms McLaughlin, the occupational therapist retained by the defendant. Ms McLaughlin's assessment of the plaintiff's domestic care needs appears between pages 21 and 27 of her report dated 20 September 2010.
Ms McLaughlin took note of the medical opinions that were provided to her, which included that of Dr Pierides. She nevertheless supported a claim by the plaintiff for 10 hours per week of domestic assistance for the initial 61 weeks following the accident, 6.16 hours per week for the ensuing 89 weeks, and 2.32 hours for the 18 weeks that followed that last period: Report of Ms McLaughlin, 20 September 2010, page 28. Although Ms McLaughlin had medical opinions available to her, she seems to have principally relied upon her own observations of the plaintiff's abilities following an interview with her.
In resolving the issue of whether the plaintiff is entitled to damages for past domestic assistance I consider that the medical opinions are of limited assistance for two main reasons. First, those opinions are proffered on a general and not specific basis in that they do not refer to the specific domestic activities which featured in the evidence of the plaintiff and her daughter. Secondly, those opinions are based on intuitive conclusions, rather than upon observations, as was the case with the occupational therapy evidence.
Accordingly, it seems to me that the polarisation of evidence on the plaintiff's need for domestic assistance stands to be resolved on a factual basis as the medical opinions, whilst emphatic in the case of Dr Pierides, do not deal with the detail of the tasks described in the evidence.
On a factual basis, I found the evidence of the plaintiff and her daughter compelling and persuasive as to the plaintiff's inability to carry out her pre-accident domestic activities without the assistance provided to her.
Having reached that conclusion, I consider that the opinions of the occupational therapists, which are more task focussed, are more likely to be of assistance to determining the issue of the extent of the plaintiff's need for domestic assistance, than the more generally and non-specifically framed medical reports.
The two occupational therapy reports do not advocate the same level of assistance with domestic tasks. However, they do have the common element of acknowledging the need for such assistance, albeit to differing degrees.
In my view, having formed the view that the evidence of the plaintiff and her daughter reasonably describes the plaintiff's need for domestic assistance, it becomes unnecessary to achieve a detailed reconciliation of the two competing occupational therapists' reports. I consider this position arises because I considered the evidence of the plaintiff and her daughter to be inherently reasonable and factually based on this issue. The issue does not require resolution only by reference to the opinions of experts.
The foregoing analysis leads me to the view that the plaintiff is entitled to damages for past domestic assistance. The remaining questions in respect of this component of the claim concern whether the threshold required pursuant to s 128(3) of the MAC Act is satisfied, and if so, the assessment of the value of the past assistance that has been provided to the time of trial.
The threshold for an award of damages of this kind is that it must be shown that a minimum level of assistance has been provided for 6 hours per week for 6 months: s 128(3) of the MAC Act .
I am satisfied that in the period before the hearing, the plaintiff's daughter provided her with the level of domestic assistance which she and the plaintiff had stated in their evidence. There is no doubt that she did so out of a sense of filial duty. However, that is not the required test for the recovery of such damages. The question to be addressed is what was reasonably necessary in the circumstances to fulfil the need for assistance that was created by the injury.
In my view of the evidence, an award of damages for domestic assistance that included the value of 15 hours per week for the first 2 years, and 10 hours per week for the remainder of the time to the commencement of the trial, as was submitted, would have the effect of overcompensating the plaintiff.
I have taken that view because I consider that not all of the described hours were necessarily referrable to the plaintiff's injury based need for assistance. In that regard, questions of efficiency need to be considered. I consider that the number of hours taken by Ms Nuhic to perform the tasks that had previously been performed by the plaintiff needs to be discounted to allow for a factor of reduced efficiency, and because some of the work would have been for her own benefit whilst she lived at the home of her parents. Without intending to imply any criticism of the evidence of Ms Nuhic, it appears that she had not previously been involved in those tasks. I infer from this, that someone who was accustomed to regularly carrying out such housework, would most probably have undertaken the tasks described, in a fewer number of aggregate hours per week.
The process of assessment of this type of claim is not a perfect one, and the touchstone of reasonableness does not require precision, although the required calculations must have a semblance of precision. Bearing in mind those principles, I consider that the actual hours of assistance estimated by the plaintiff and her daughter must be discounted to identify, as best can be achieved in this process, the core number of hours that were reasonably and necessarily provided to the plaintiff to address her injury based need for past domestic assistance.
Before making the required assessment, the starting point of the analysis is to recognise that having accepted the evidence of the plaintiff and her daughter, that the assistance that was provided was in fact necessary, having regard to the described services that were provided, and which I consider to have been reasonably provided because of the plaintiff's disabilities. The overwhelming inference is that the statutory threshold requirements have been well and truly exceeded.
Nevertheless, after applying the discounting factors that I have identified, for assessment purposes, and on account of considerations of reasonableness, I consider that the described number of hours requires reduction.
The reduction should reflect the hours actually directed at assisting the plaintiff due to her injury related needs and previously unimpeded household tasks. Those hours should not include attendance on the needs of others in the household. The reduction should also take into account the need to compensate the plaintiff for a core number of hours of efficiently provided hands-on care, as distinct from the hours during which the provider of the assistance was in attendance but not actually doing anything that could be characterised as domestic assistance.
Having regard to those factors, I consider that a realistic and fair number of core and necessary hours provided to the plaintiff, and averaged over the entire period from the time of her injury until the time of the hearing, is 9 hours per week.
The period from 2 May 2007 until the commencement of the hearing on 3 November 2011, is 4.5 years. The valuation of 9 hours of domestic assistance per week at the rate prescribed by s 128(5) of the MAC Act over 4.5 years yields the amount of $50,386. The calculation of that sum appears in the Appendix to these reasons.
I therefore assess the plaintiff's damages for past domestic assistance in the amount of $50,389 .
Future paid care
The plaintiff makes a claim for the value of future paid domestic care or assistance in the sum of $116,550. That claim is calculated at the rate of 6 hours per week, at $35 per hour, using a 5 per cent multiplier for 15 years (x 555). In contrast, the defendant has submitted that no case has been made out for any kind of future care, paid or otherwise.
The starting point for the evaluation of this component of the plaintiff's claim is my acceptance of the fact that the plaintiff has not yet recovered from the physical and psychological effects of the injuries she suffered in the 2007 accident. The next question is whether this continues to represent an injury based need of the plaintiff.
Whilst Dr Lewin has stated that the plaintiff does not have a need for domestic assistance as a result of her psychological problems, and whilst Dr Pierides has stated that any need for domestic assistance has now passed, two things need to be said. First, I have not accepted those opinions, and secondly, none of the doctors who have provided reports have expressed any opinion on the combined effect of the plaintiff's physical and psychological problems. Because they have not done so, and because no oral expert evidence was called on this point, where the evidence is silent on the issue, I have to do the best I can to reconcile the disparate positions.
I have already rejected the proposition that the plaintiff did not need domestic assistance as a result of her 2007 accident. I have also accepted that the plaintiff continues to experience pain and discomfort to the extent that to date, she has needed the domestic assistance of her daughter to attend to the chores of running her household. In my view, it follows that as the need for assistance continues, I should make an allowance for that need for assistance from the present time, and for some reasonable time into the future.
Unlike the position with past assistance, which has been met by the gratuitous assistance of the plaintiff's daughter, the claim for the future is made on the basis of the commercial cost of meeting that need for ongoing domestic assistance. I consider that approach is justified in this case because it cannot be fairly assumed that the plaintiff's daughter will continue to make the time to attend to providing such assistance. This is because the plaintiff's daughter works, she is about to finish her studies, she no longer lives in the home of her parents, and cannot reasonably be expected to travel there three times per week, or even at all, for the purpose of providing her mother with the assistance she has been providing to date.
Consistent with the approach I have taken in connection with my analysis of the claim for past domestic assistance, the medical opinions offer little assistance in the analysis of this component of the claim. I also find the evidence of the respective occupational therapists provides an appropriate background to the question. However, in my view, the evidence of the plaintiff and her daughter offer the most relevant, cogent and practically based insight into how I should approach the assessment of this head of damage.
In summing up the position, I consider that the plaintiff has made good her claim for future paid care, but not to the extent claimed.
I consider that a proper case for an allowance for paid care at commercial rates has been made out. In that regard, in the absence of evidence of comparative commercial rates, I consider that the claimed rate of $35 per hour, which is one commonly seen and accepted in such claims, is both reasonable and appropriate, and well within the range of figures contemplated by Exhibit "L".
In the absence of evidence defining the likely period that will be required for the provision of such domestic assistance, I am required to make some sort of assessment doing the best I can on the evidence available, without unfairly favouring the plaintiff or unfairly burdening the defendant. In the circumstances, I consider that a period of a further 5 to 6 years is a reasonable projection period.
Having regard to the range of possible vicissitudes that might influence this range, including the possibility that the actual range of tasks involved in the running of the household may lessen in the not too distant future if the number of persons in the household is reduced, and because it is possible that the plaintiff's condition will improve in the coming years, as has occurred in respect of the injuries and disabilities from her prior accidents, I consider that a 5 year projection period for an average of 6 hours of domestic assistance per week is a reasonable approach to assessment in the circumstances. I do not consider that the evidence justifies the projection of a claim for future care over the remainder of the plaintiff's probable remaining life span, as was submitted.
The projection of the value of 6 hours per week of domestic assistance at the rate of $35 per hour, or $210 per week, at 5 per cent over 5 years (x 231.5) yields an amount of $48,615. As I have already applied a discount to the period for projection, no further discount is warranted.
I therefore assess the plaintiff's damages for future paid domestic assistance in the amount of $48,615 .
Future medication
The plaintiff makes a claim for the likely cost of future medication, in the sum of $36,687.20, being the projection of $44 per week over her remaining probable life span.
In contrast, the defendant pointed to the very limited nature of the plaintiff's past pharmaceutical expenses, namely $338.70, to argue that this relatively modest level of expenditure was indicative of the plaintiff's likely future pharmaceutical expenses.
In my view, that submission is flawed, and it should therefore be rejected. Quite apart from any considerations as to whether or not that amount has been kept artificially low because the plaintiff is on a pension at present, which on the evidence, is necessarily a speculative consideration, the past incidence of that type of expenditure is seldom a useful guide to future expenditure, for a variety of reasons, including the question of what is determined at the trial, of the reasonable future need. Also, it must be assumed the plaintiff will take reasonable steps to mitigate, including by taking prescribed medication. An allowance for such medication should therefore be made.
The plaintiff's claim for $44 per week was based upon the schedule that comprised Exhibit "E". Those medications, which are prescribed by Dr Sokolovic and Dr Hamid, consist of Zyprexia, Endep, Somac, Pariet and Panadol Osteo. Without evidence, it is not open for the court to analyse the therapeutic purpose of actions of these drugs, as has been in effect suggested by the defendant in seeking to, for example, avoid the ongoing cost of Zyprexia. It is well known that various drugs can have a variety of therapeutic actions and indications when selected for use in the circumstances of particular patients. It is sufficient that a legally qualified medical practitioner has prescribed them for the plaintiff in particular doses on account of her post-injury complaints. Without specific evidence to support the proposition advanced by the defendant, I cannot reasonably entertain that submission: Strinic v Singh [2009] NSWCA 15.
That said, I do not understand the evidence of these doctors to require the assumption that the plaintiff will need to take these medications for the remainder of her probable lifespan.
In my view the plaintiff's claim for future medication costs should be approached in the same manner as I intend to approach the claim for future treatment costs, namely a buffer amount, with the rider that the buffer for future medication should contain a more significant allowance for the cost of future medications for alleviating and managing the plaintiff's post injury psychological problems.
Accordingly, I consider that an appropriate buffer amount should be the sum of $10,000, which I note on analysis to be the rough equivalent of projecting $44 per week on the 5 per cent tables over 5 years.
I therefore assess the plaintiff's damages for future medication in the amount of $10,000 .
Future medical treatment
The plaintiff makes a claim for future medical treatment in the sum of $11,673,20, being the projection of $14 per week over her remaining probable life span.
The average amount of $14 per week was made up of component allowances for general practitioner consultations at 4 times per year, psychiatric consultations at 6 times per year, and an annual consultation with an orthopaedic surgeon which, having regard to the nature of the plaintiff's problems, does not seem to me to be inherently unreasonable.
Against that, the defendant submits, correctly in my view, that there is no evidence which justifies the plaintiff requiring those consultations as a result of the 2007 accident, and for the remainder of her probable life span. However, that said, I consider that it would be unreasonable to leave the plaintiff uncompensated in the short to medium term for the likely treatment costs of her present physical and psychological problems where those problems seem likely to continue for some time.
As no medical evidence was called on the issue, and because the claim seems otherwise reasonable, I consider that an allowance of some kind must be made. I consider that the most appropriate method of allowing the plaintiff damages for future treatment costs would be to award a lump sum buffer. I consider that a buffer of $3000, which I note on analysis to be the rough equivalent of projecting $14 per week on the 5 per cent tables over 5 years. I consider this amount is reasonable, particularly as I am proposing to allow the plaintiff the sum claimed for the short term cost of a pain management course, as I consider that it would be reasonable for her to pursue that course as part of her obligation to mitigate, and to pursue the possibility of a beneficial outcome in terms of managing the chronic pain she suffers as a result of her injuries.
I therefore assess the plaintiff's damages for future medical treatment in the amount of $3000 .
Pain management course
The plaintiff makes a claim of $5000 for the cost of a pain management course. The defendant does not concede that claim.
I consider the amount of the submitted sum to be a reasonable one and has a foundation in the medical evidence. The plaintiff has a duty to mitigate: s 136 of the MAC Act . Consistent with that duty I consider that she should be provided with the cost of obtaining treatment aimed at ameliorating the effect her chronic pain and her disabilities have upon her. This is especially so where there is medical support for this claim and where I have awarded limited future damages on the assumption that her condition is likely to improve with treatment. I therefore allow the sum claimed as no evidence was directed to a suggestion that the amount was unreasonable, and it seems otherwise reasonable.
In this regard, it should be noted that the plaintiff had been unable to pursue physiotherapy and hydrotherapy to the extent recommended by her treating doctors at an earlier point in time. This was because the CTP insurer had declined to pay for that treatment. I consider the evidence justifies the plaintiff being awarded the estimated cost of that treatment now, in order to assist in the amelioration of what has become a complex inter-relationship between her chronic pain and the psychological effects of that pain, particularly where the plaintiff's ongoing psychological problems are influenced by her experience of physical pain.
I therefore assess the plaintiff's damages for the likely cost of a future pain management course in the amount of $5000 .
Past out-of-pocket expenses
The plaintiff makes a claim for out-of-pocket expenses in the total amount of $23,437.50.
The defendant conceded an amount for s 83 expenses in the sum of $4057, and claims that amount as a defence pursuant to s 83(5) of the MAC Act . The defendant conceded that all of the amounts claimed by the plaintiff were in fact incurred, however, the defendant argued that there should be no liability for payment of the cost of the imaging for the investigation of the plaintiff's shoulder complaints, and similarly argued that there should be no liability to pay for the plaintiff's brain scan.
The basis for dispute of those amounts is that because the appointed MAS Assessor did not attribute the plaintiff's shoulder problems to the accident in question, and because Dr Pierides did not consider that the total body scan was appropriate, and because the plaintiff did not receive a head injury, these amounts should not be the responsibility of the defendant.
I do not accept that argument. I consider that the plaintiff's medical advisors acted reasonably in ordering such investigations as they thought were appropriate to assist in determining matters of diagnosis, management and treatment.
The focus of the task of the MAS Assessor was to ascertain the nature of the plaintiff's post-accident complaints for the purpose of determining a level of whole person impairment, which would then determine whether or not an entitlement had been established for claiming non-economic loss. The MAS Assessors were not requested to determine the question of attributability of the claim for out-of-pocket expenses in this case. There is no evidence within the certificates that this was the case for their consideration: s 58(a) and (b) of the MAC Act .
I do not consider that the MAS Assessor's views on whether the plaintiff had suffered shoulder, elbow or head injuries, should determine the amounts recoverable as out-of-pocket expenses where the reasons for those views are not required to be compliant with the Expert Witness Code: UCPR Sch 7 cl 5(c).
The defendant's argument proceeds upon what I consider to be an inappropriate hindsight analysis, and I consider that it should be rejected. Instead, I consider that the whole amount for out-of-pocket expenses claimed by the plaintiff was reasonably incurred because they were the natural result of the plaintiff following the investigation and treatment recommendations of her treating doctors, and I allow that sum in full.
I therefore assess the plaintiff's damages for past out-of-pocket expenses in the amount of $23,437.50 .
Summary of assessed damages
The above assessments are summarised as follows.
(a) Economic loss
$50,000.00
(b) Past domestic care
$50,389.00
(c) Future paid care
$48,615.00
(d) Future medication
$10,000.00
(e) Future medical treatment
$3,000.00
(f) Pain management course
$5,000.00
(g) Past out-of-pocket expenses
$23,437.50
Totals
$190,441.50
Disposition
The plaintiff has established an entitlement to an award of damages in the sum of $190,441.50 .
Costs
The cost consequence of my findings is that unless either party can establish an entitlement to a different order, the defendant should pay the plaintiff's costs of the proceedings on the ordinary basis, unless otherwise ordered, for which there should be liberty to apply.
Orders
I therefore make the following orders:
(1) Verdict and judgment for the plaintiff in the amount of $190,441.50;
(2) The defendant is to pay the plaintiff's costs on the ordinary basis unless otherwise ordered, except for any costs involved in the plaintiff's application to re-open her case, such costs to be borne by the plaintiff;
(3) The exhibits may be returned ;
(4) Liberty to apply on 7 days notice if further orders are required.
APPENDIX
CALCULATION OF VALUE OF PAST GRATUITOUS DOMESTIC ASSISTANCE / CARE ACCORDING TO MOTOR ACCIDENTS COMPENSATION ACT 1999, s 128(4)
[9 hours per week]
PERIOD
WEEKS
WEEKLY
s.128(4)
RATE
HOURLY
s.128(4)
RATE
AMOUNT FOR 9 HOURS PER WEEK
1. 03.05.2007 to 18.05.2007
02.14
$916.10
$22.90
$441.05
2. 19.05.2007 to 18.08.2007
13.00
$918.90
$22.97
$2687.49
3. 19.08.2007 to 16.11.2007
12.85
$929.70
$23.24
$2687.70
4. 17.11.2007 to 15.02.2008
12.85
$929.30
$23.23
$2686.54
5. 16.02.2008 to 16.05.2008
12.71
$937.80
$23.44
$2681.30
6. 17.05.2008 to 15.08.2008
12.85
$921.60
$23.04
$2664.57
7. 16.08.2008 to 21.11.2008
13.85
$933.50
$23.34
$2909.33
8. 22.11.2008 to 20.02.2009
12.85
$938.50
$23.46
$2713.14
9. 21.02.2009 to 15.05.2009
12.00
$946.40
$23.66
$2555.28
10. 16.05.2009 to 21.08.2009
13.85
$939.00
$23.48
$2926.78
11, 22.08.2009 to 20.11.2009
12.85
$959.90
$23.99
$2774.44
12. 21.11.2009 to 19.02.2010
12.85
$969.40
$24.23
$2802.19
13. 20.02.2010 to 21.05.2010
12.85
$989.90
$24.74
$2861.18
14. 22.05.2010 to 20.08.2010
12.85
$986.90
$24.67
$2853.08
15. 21.08.2010 to 19.11.2010
12.85
$985.50
$24.63
$2848.45
16. 20.11.2010 to 18.02.2011
12.85
$996.40
$24.91
$2880.84
17. 19.02.2011 to 20.05.2011
12.85
$1025.90
$25.64
$2965.52
18. 21.05.2011 to 02.11.2011
23.57
$1026.00
$25.65
$5441.13
TOTAL
$50,389.01
**********
Decision last updated: 19 December 2011
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