Pantazis v JEZINA

[2013] SADC 45

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil)

PANTAZIS & ANOR v JEZINA

[2013] SADC 45

Judgment of His Honour Judge Barrett

11 April 2013

DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES - GENERAL PRINCIPLES

PERSONAL INJURIES - ASSESSMENT OF DAMAGES

The first plaintiff is a 73 year old retiree who was injured as a passenger in a car into which the defendant's car collided when it went through a red light - The plaintiff suffered left sided soft tissue injuries particularly to her left shoulder - She had occasionally symptomatic pre accident osteoarthritis - Discussion of medical evidence relating to the contribution of pre and post accident factors - Plaintiff largely unable now to carry out housework - Non-economic loss scale fixed at 12 - Damages for past and future gratuitous services, past and future special damages and interest on past gratuitous services - Damages for impairment of consortium awarded to the first plaintiff's husband.

Civil Liability Act 1936 (SA) s 34, s 52, s 58, referred to.
Van Gervan v Fenton (1992) 175 CLR 327; Jones v Dunkel (1959) 101 CLR 298; BHP Billiton v Parker (2012) 113 SASR 206; Watts v Rake (1960) 108 CLR 158; Purkess v Crittenden (1965) 114 CLR 164; AFA Airconditioning Pty Ltd v Mendrecki (2008) 101 SASR 381; Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208, considered.

PANTAZIS & ANOR v JEZINA
[2013] SADC 45

1. This case involves the assessment of damages arising from a motor vehicle accident. The defendant admits liability. She admits that she was at fault.

   The motor vehicle accident

2. The first plaintiff is a 77 year old woman. At about 9.30 am on 22 April 2009 she was a backseat passenger in a Toyota Camry sedan being driven by her daughter-in-law south along Cheltenham Parade crossing Port Road at Cheltenham. The car was travelling from north to south across Port Road. To the north of Port Road is Cheltenham Parade. To the south is West Lakes Boulevard. The intersection with Port Road is in two parts, separated by a substantial nature strip. The northern roadway is for Adelaide bound traffic heading south-east along Port Road. The southern roadway is for Port Adelaide bound traffic heading north-west. At all relevant times the south bound car in which Mrs Pantazis was a passenger was travelling on a green light. The car passed over the Adelaide bound traffic lanes on the northern part of the intersection and then passed over the nature strip in the middle. As it entered the southern part of the intersection it passed Port Adelaide bound motor vehicles stopped at the red traffic light. On the southern part of the intersection there are three lanes for traffic going straight ahead. Alongside these lanes there is a right turn only lane and a left turn only lane.

3. Ms Alia Pantazis, the daughter-in-law of Mrs Pantazis, described how the accident happened. Her evidence was unchallenged. As she approached the southern part of the intersection she noticed the stationary vehicles pulled up on her left at the stop light. She could not remember whether there was a vehicle pulled up in the turn right lane. That was the first lane she passed. There were two vehicles pulled up in the next two straight ahead lanes. As she went past these two vehicles she saw a Mercedes Benz Kompressor sedan driving towards her in the third straight ahead lane. The Mercedes was being driven in the furthermost straight ahead lane against a red light. Ms Pantazis accelerated, having a momentary impression that she might be able to avoid a collision with the oncoming Mercedes. She was unsuccessful. The Mercedes drove into the left side of her car. It collided with the left rear of her vehicle, pushing in the rear passenger side door and the rear quarter panel.

4. No evidence was produced about the speed of either vehicle, but the impact appears not to have been a minor one. It was such as to spin the Toyota through 180 degrees so that it came to rest facing the way it had come from. None of the three occupants of the Toyota lost consciousness. Ms Alia Pantazis’ mother was in the front passenger seat. Mrs Pantazis was seated behind the driver’s seat. She had her lap sash seatbelt buckled. To her left, in the middle of the back seat, there was attached an unoccupied child’s seat. There was no passenger on the other side of the child’s seat. While it is not entirely clear precisely what movements were experienced by Mrs Pantazis as a result of the collision, it is clear that she was initially pushed to the left, so that her left shoulder hit the child’s seat. It is possible, but by no means clear, that she was then pushed back to the right and came into contact with the right passenger door as the car spun through 180 degrees. There is no detailed evidence of the construction of the child’s seat. Ms Pantazis said that she thought it had a hard frame, possibly metal. It was padded on the inside where the child sat. I find that the seat was strapped into position so that Mrs Pantazis’ left shoulder came into contact with an unyielding object.

5. After the accident a friend of Ms Alia Pantazis came to the scene and drove her mother and mother-in-law home. Neither was taken to receive immediate medical treatment. Ms Pantazis stayed with her vehicle until a tow truck arrived. At the time of the accident Mrs Pantazis was 73.

   Issues for determination

6. The defendant does not dispute that Mrs Pantazis was injured in the accident. What the defendant asserts is that Mrs Pantazis’ injuries arising from the accident settled after a few months. Insofar as Mrs Pantazis continues to experience limitations in functioning, these limitations are explained by the inevitable development of pre-existing ailments. The defendant denies that Mrs Pantazis’ limitations are as extensive as she claims. The defendant says that Mrs Pantazis is exaggerating her symptoms and wrongly attributing such symptoms and limitations as she does have to the accident.

7. The issues in the trial are the following. In relation to Mrs Pantazis:

   1Does Mrs Pantazis suffer from any injuries?

   2If she does suffer injuries, is it possible to determine which were caused by the accident and which pre-existed the accident?

   3What, if any, limitations of function does Mrs Pantazis suffer as a result of injuries caused by the accident?

   4What, if any, damages should be awarded for loss of injury caused by the accident?

8. In relation to the second plaintiff:

   1What, if any, loss has been suffered by the second plaintiff as a result of his wife’s injury and loss flowing from the accident?

   Family

9. Mrs Pantazis lived (and still lives) at Cheltenham with her then 80 year old husband, the second plaintiff. They have two sons. The elder son, Jim, is aged about 53. He lives with his wife in Woodville. They have two grown up children, a son and a daughter aged in their 30s. By their daughter they have two grandchildren now aged three and one and a half. I assume that neither of the plaintiffs’ two great-grandchildren were born at the time of the accident.

10. The plaintiffs’ younger son, Bill, is aged 39. He lives with his wife, Alia, one street away from the plaintiffs. Bill and Alia Pantazis have a daughter aged eight (five at the time of the accident) and a son, aged seven (four at the time of the accident).

11. Both plaintiffs were born in Limnos in Greece, the second plaintiff in 1929 and Mrs Pantazis in 1936. They were neighbours. They became engaged in the early 1950s whilst in Greece. Mr Pantazis migrated to South Australia in about 1954. Mrs Pantazis followed him about a year later. They were married almost straight after she migrated. It will be necessary later to refer in some detail to Mrs Pantazis’ work history, but for the present I say that Mrs Pantazis worked for most of the time between migrating to Adelaide when she was about 20 until she retired aged about 52. She took some time off paid work after her children were born. It seems she went back to work when her elder son was aged about one. Her then single, younger sister migrated to South Australia and helped look after him. Mrs Pantazis was out of the workforce for about five years after the birth of her second son. She had suffered two miscarriages in between the two births.

12. Her work for about 18 years was on an assembly line at two fruit factories (IXL and Johnsons) and for some years she worked in a fabric factory (Actil). Her last job was a part time evening job cleaning at Myers.

13. Mrs Pantazis was, and still is, a fastidious homemaker. She has always taken pride in a well maintained house. She was once active in handicrafts such as knitting, crocheting and embroidery. She was actively involved in the activities of her local church and in the Glendi Festival. Both plaintiffs retired at about the same time when the second plaintiff was about 59 and Mrs Pantazis was about 52. Shortly after their retirement, some 20 years before the accident, they both started receiving the old age pension. Until the accident the couple maintained their household along gender determined lines. Mr Pantazis looked after the garden and did all the handyman work. Mrs Pantazis did all the cooking and indoor housework.

    Pre-accident work and medical history

14. Before considering the contested parts of Mrs Pantazis’ evidence and that of the medical witnesses, I set out the relatively uncontroversial aspects of Mrs Pantazis’ evidence and that of the medical witnesses.

15. Both plaintiffs migrated to South Australia from Greece in the early to mid 1950s. Neither plaintiff was able to be precise about when they arrived in South Australia, or indeed when they married, but they married very shortly after Mrs Pantazis arrived in Adelaide. The second plaintiff had arrived some 12 months earlier. Their elder son was born early in the marriage. Mrs Pantazis worked in a fruit processing factory from when her first son was aged one or two. Mrs Pantazis’ then single sister migrated to South Australia and helped look after him. The couple moved from rented accommodation in the city to the house they built on Torrens Road, Cheltenham in 1965. They still live in that house.

16. There was a 14 year gap between the births of the two sons. Mrs Pantazis was in her early 20s when the first son was born, and 37 at the birth of the second son in 1973. She took some time away from work before the second birth because she had two miscarriages between the two births. She did not go back to work until the second son started school, presumably in about 1978, when she was 42.

17. It is reasonably clear that Mrs Pantazis retired 10 years later at about 52. Her husband said that he finished work at 59. It appears that the company he worked for went bankrupt. He had worked for the company for many years. He was on unemployment benefits for about a year before becoming eligible for the old aged pension at 60. It is not entirely clear whether Mrs Pantazis retired when her husband ceased work at 59 or when he began receiving the pension at 60. However she retired from her part-time work cleaning at Myers a few months after one of those events. Mrs Pantazis had been working part-time for Myers in the evenings from 6 pm - 10 pm for about six years when she retired.

18. I find that Mrs Pantazis probably retired when she was about 52. That would have been in about 1988. Her older son would have been in his 30s. He had married and left home at 19. His two children were possibly then going to primary school.

19. In 1988 the younger son was 15. He did not leave home until he was about 20 (around 1993), but, until he married in 2004, he came back occasionally to live with his parents. Thus the plaintiffs began their retirement with one adolescent son still at home. Their elder son lived with his wife and school age children.

20. Mrs Pantazis said she was physically tired when she retired. She said she was fed up with work. However there is no evidence of any debilitating health problems before she retired. She had had a gallbladder operation but no other major illness. Dr Jones, called by the defendant, noted that Mrs Pantazis had a thickening of the distal interphalangeal joints of her fingers and the base of her thumbs which suggested she might have had a constitutional tendency to develop generalised osteoarthritis.[1] Close cross-examination of Mrs Pantazis was directed to the repetitive nature of the manual work she undertook, perhaps suggesting a causal link between her work and the development of osteoarthritis, although no medical witness suggested such a link. In any event the cause of the undoubted pre-accident osteoarthritis is unimportant. I will return to the evidence relevant to the pre-accident osteoarthritis shortly.

    [1]    Exhibit D16, p11.

21. During her working life Mrs Pantazis had a degree of independence from her husband. She drove a car of her own. On 10 November 1988, the year in which she was likely to have retired, she was involved in a car accident. She was the driver of her car which was involved in a collision with another car. She was rendered unconscious in the accident and spent a night in the Queen Elizabeth Hospital. The Queen Elizabeth Hospital notes became Exhibit D18. A pain chart forming part of those hospital notes, and a nursing note, suggests some tenderness and pain to the right hip and right shoulder. It seems Mrs Pantazis may have sought some legal advice relating to the accident, but no claim for personal damages was made. A receipt for X-rays of Mrs Pantazis’ cervical and lumbar spine and right shoulder was produced as Exhibit D5. It is dated 29 August 1989. There is no record of the X-rays themselves.

22. Before the subject accident on 22 April 2009 Mrs Pantazis consulted her GP, Dr Papagiannis, about back and neck problems. In her evidence she denied having such problems before the accident. However Dr Papagiannis’ notes[2] and his evidence make it clear she did suffer such problems. The evidence of her pre-accident ailments leaves unclear the extent of her pre-accident health problems. Did she have chronic back or neck pain or were her pain symptoms intermittent? Did she suffer physical limitations before the accident? Would these pre-accident conditions have deteriorated so that such present disabilities as she now experiences would have developed irrespective of the accident? As far as her present complaints and limitations depend upon her evidence, to what extent is her credibility affected by the denials of the pre-accident ailments?

    [2]    Exhibit D13.

    Pre-accident medical history

23. Before considering these questions it is convenient to refer to the medical history disclosed by Dr Papagiannis’ notes. Dr Papagiannis’ recollection of Mrs Pantazis’ medical condition is affected by the passage of time and, I find, the fact that he had stroke in December 2008. The stoke disabled him from medical practice altogether for a year or so, and it limited the extent of his practice after he recovered. He now works only a few hours a day. He said one of the effects of the stroke has been to adversely affect his memory.[3] I should record that counsel for the defence objected to Dr Papagiannis giving evidence without having prepared a report. Mr Lindsay cited r2142A. I exercised my discretion pursuant to r2142B to permit Dr Papagiannis to give evidence without having produced a report. The defendant had earlier submitted that Mrs Pantazis should call Dr Papagiannis as a witness lest an adverse inference be drawn against his failure to do so pursuant to Jones v Dunkel.[4] Until the defendant made that submission counsel for Mrs Pantazis indicated he had not proposed calling Dr Papagiannis. Dr Papagiannis’ notes had been subpoenaed and produced. The defendant had sufficient time to inspect and digest the notes before Dr Papagiannis was called. In the event I am satisfied that the defendant has suffered no prejudice by reason of there being no report from Dr Papagiannis. The doctor had no recollection of his consultations with Mrs Pantazis beyond what was disclosed by his notes. The notes he is referring to are the computerised notes beginning from 2004. Earlier handwritten notes are no longer available. I formally receive the evidence of Dr Papagiannis.

    [3]    T596.

    [4] (1959) 101 CLR 298.

24. I note the consultations which refer to relevant injuries or treatment. The records show numerous consultations in between the relevant ones. The picture painted by the records as a whole is that Mrs Pantazis went to her doctor whenever she was sufficiently unwell. The picture is not of someone who was unusually unwell, nor of someone who never sought medical attention. I add that Dr Papagiannis spoke to Mrs Pantazis in Greek. He was the only medical witness who spoke to her in Greek, although Ms Stavropoulos, one of the occupational therapists, also spoke to her in Greek. The other witnesses spoke of being able to communicate adequately with her in English. I now recite the relevant injuries or complaints arising from the notes of Dr Papagiannis which were tendered and marked Exhibit D13.

25. On 30 November 2004 (page 21) Mrs Pantazis consulted Dr Papagiannis complaining of pain across her shoulders. A radiology report was prepared on 1 December 2004. It is not clear what, if any, treatment was prescribed. On 2 December 2004 there is a note that the pain persists.

26. The next relevant consultation is on 30 August 2005 (page 20), some nine months later. Mrs Pantazis was then 69. There is a report of “o/a spine” indicating osteoarthritis in the spine. Panamax was prescribed.

27. On 18 December 2006 (page 18), Mrs Pantazis complained of multiple aches and pains. There is a note on 20 December that she was feeling a little better but she was “down” because she cannot exercise. There is a note that she was encouraged strongly to continue with diet and exercise.

28. The next entry is on 4 April 2007 (page 17). The note is that there was left neck pain radiating down the left arm and a CT scan of the neck was ordered. That was carried out on 10 April 2007. That report of that CT scan is part of Exhibit P10. The recited history in the report is of “left neck and arm pain F1”. The report was of “multi level mild to moderate facet joint (osteoarthritis)”.

29. Mrs Pantazis saw her doctor in May, June, July, August and October 2007 without any further reference being made to neck pain. There is then a further entry on 29 October when she reported neck pain radiating down both arms and shoulders with pins and needles to all fingers. Dr Papagiannis prepared a health plan for Mrs Pantazis. That care plan is dated 30 October 2007.[5] It refers to five conditions which need treatment. It appears that five physiotherapy sessions were ordered to deal with the facet joint osteoarthritis. The notes show that the physiotherapy occurred on five occasions between 12 November and 10 December 2007. There is a note of the physiotherapist as follows:

    Helen presents with chronic neck pain to be treated on a care plan. She complains of pain across both shoulders and with numbness and pins and needles in her fingers at night … flexion slow and limited to approximately 20 percent. Neck extension to neutral causes dizziness. Side flexion and rotation all restricted by approximately 50 percent. Prominent kyphosis lower cervical spine. Tight by lateral upper fibres trapezius.

    [5]    Exhibit D6.

30. The physiotherapist noted that the treatment included a hot pack and massage to the neck and shoulders. It appears the physiotherapist recommended neck and shoulder exercises. The physiotherapist’s note on 10 December 2007, the date of the last appointment, is:

    Helen reports she is feeling a lot better than she was.[6]

    [6]    p15.

1. There are notes of other consultations in January, February and March of 2008 but the next relevant reference is dated 28 March 2008 (page 15). It appears Mrs Pantazis complained of neck pain, pins and needles in her fingers. There is a report of continuing symptoms of that sort on 11 April 2008 (page 14). The note for that occasion is “neck pain, radiating down to both hands”. A second CT scan was ordered and conducted on 15 April 2008. An earlier note might have suggested that this was the third CT of the cervical spine but in fact Dr Papagiannis said that there were only two. One was carried out on 10 April 2007 and the second was carried out on 15 April 2008. The reference to a CT scan in between those two was a reference to discussing the earlier one. A report of the second CT scan is also part of Exhibit P10. The CT scan apparently showed C3‑4 disk degeneration. Panadol and local heat were recommended.

2. Mrs Pantazis had further consultations with her doctor in June, July, September and October 2008 before there is a further entry on 8 December 2008 which describes:

   Generalised aches and pains which prevented her from walking.

3. Dr Papagiannis saw from another note on the same day that Mrs Pantazis’ difficulties might have been as a result of her being unable to tolerate the cholesterol medication she was taking. The medication was changed. There was another note on 27 February 2009 (page 12) to the effect that Mrs Pantazis was complaining of dizziness, nausea and vomiting and finding it hard to walk. Dr Papagiannis thought that note referred to continuing problems with the cholesterol problems. Mrs Pantazis had a further consultation with her doctor in March of 2009, but there was no further consultation before the accident on 22 April 2009. By the time of the accident Dr Papagiannis had had his stroke and was not practising.

   Summary of pre-accident medical history

4. At the time of the accident Mrs Pantazis was 73. She had been retired from her long term manual jobs for about 20 years. Her husband was 80. There is no evidence to contradict her evidence (or that of her husband, her son Bill and his wife Alia) that before the accident, Mrs Pantazis did all the household work herself. Her husband did the outside work. While Mrs Pantazis carried out all the housework, she had had back and neck trouble. Although she either denied, or could not remember, any pre-accident back or neck problems, the medical records make it clear that she had had some relevant ill health. Unsurprisingly for someone of 73, she suffered osteoarthritis. On occasions before the accident the osteoarthritis had become symptomatic. She had consulted her doctor about pains across her shoulders in November 2004. (It must be said that the only available medical notes begin in 2004.)

5. A summary of Mrs Pantazis’ complaints and investigations or treatment and, where possible, medical outcomes is as follows:

Nov 2004	pain across shoulders	Radiology – treatment unknown	December - pain persists
Aug 2005	osteoarthritis spine	Panamax
Dec 2006	18/12 multiple aches and pains 20/12 feeling a little better	Panamax
Apr 2007	left neck pain and down left arm	CT scan showed multiple mild to moderate facet joint osteoarthritis
Oct 2007	Neck pain radiating down both arms and shoulders with pins and needles to all fingers	Health plan including 5 physiotherapy sessions in November and December	Physiotherapist describes presentation of “chronic neck pain”. At end of 5 sessions physiotherapist describes plaintiff as “feeling a lot better than she was”.
Mar to Apr 2008	Neck pain, pins and needles in fingers	CT scan showed C3-4 disk degeneration – Panadol and local heat pack
December 2008	Generalised aches and pains preventing walking – possibly intolerance to cholesterol medication
February 2009	Dizziness and vomiting, finding it hard to work – possibly continuation of medication intolerance

1. There is thus clear evidence of degenerative osteoarthritis affecting Mrs Pantazis’ neck, shoulders and, occasionally, arms and fingers before the accident. Those degenerative changes were, at least occasionally, symptomatic. Mrs Pantazis reported the pain she experienced to her doctor and received treatment. The doctor regarded the complaints as sufficiently serious to order two CT scans to be carried out. He prepared a care plan which included five physiotherapy sessions in November and December 2007. It remains a question whether Mrs Pantazis’ pre-accident degenerative changes could be described as chronic and significantly disabling, or whether the condition gave rise to intermittent symptoms which were treated conservatively and satisfactorily, at least for a significant period. It is clear that insofar as Mrs Pantazis says she had no relevant health problems before the accident, she is not correct.

   Post-accident medical history

2. Mrs Pantazis did not consult Dr Papagiannis about the sequelae of the accident in April 2009. He was not practising at the time because of his stroke. Instead Mrs Pantazis initially consulted Dr Nasreen Wilson, who was, at the time of the accident, her daughter-in-law’s doctor. She continued to consult her until Dr Papagiannis returned to part time practice. On 14 December 2009 (page 10) Mrs Pantazis complained to someone at Dr Papagiannis’ practice of painful shoulders. There is a note on 22 December 2009 that there was an X-ray and ultrasound of the bilateral shoulders. There is a note on 23 December 2009 of bilateral shoulder pain. There are other notes of similar sorts of attendances on 25 November 2010 and 1 and 3 December 2010 (page 9). The final record in the practice’s notes is on 28 and 29 December 2010.

3. Mrs Pantazis continued to consult Dr Wilson from 29 April 2009 (a week after the accident) until August 2012. She then transferred to Dr Cook. Dr Cook had seen her twice, on 27 August and 10 October 2012. Dr Wilson said she was discontinuing medico-legal work and that was one of the reasons for the referral to Dr Cook.

4. Dr Wilson provided a report dated 16 January 2012[7] and her notes.[8] A radiology report dated 30 April 2009 ordered by Dr Wilson became Exhibit P8.

   [7]    Exhibit P7.

   [8]    Exhibit D9.

5. In her report of 16 January 2010 Dr Wilson noted the injuries which Mrs Pantazis reported when she first saw her on 29 April 2009. With the exception of an injury to the right foot, Dr Wilson noted injuries only to the left, ie left chest, left shoulder, left elbow and left mid to low cervical spine. Dr Wilson noted in her report the X-ray which she had seen. This was presumably the X-ray report of 30 April 2009.[9] She described the X-ray as showing pre-existing degenerative changes. She said it appeared that the accident had caused the “relatively asymptomatic” degenerative changes to become symptomatic. She said the injuries as stated by Mrs Pantazis were consistent with the history of the accident which she gave. At the time of the report in January 2010, Dr Wilson did not think that Mrs Pantazis’ condition had stabilised. Mrs Pantazis was still undergoing physiotherapy with Mr Van Loenen. In her report Dr Wilson said that she anticipated that Mrs Pantazis would suffer a permanent residual disability of “about 5 percent”. She thought that Mrs Pantazis should make a near full recovery in future.

   [9]    Exhibit P8.

6. Dr Wilson said that in the period she was being consulted by Mrs Pantazis, that is between 29 April 2009 and August 2012, the majority of visits related to Mrs Pantazis’ diabetes or general medical condition.[10] There were “odd occasions” when Mrs Pantazis said she was in a lot of pain. “On occasions” during that time Mrs Pantazis had complained of symptoms that might be associated with the accident.[11] Dr Wilson said that in August 2009 she prescribed medication for Mrs Pantazis’ hypothyroidism, something for which the she was already receiving medication from Dr Papagiannis. Hypothyroidism is a condition which can cause weight gain, fatigue and depression. On 5 March 2010 Mrs Pantazis told Dr Wilson that she had no energy since the accident.[12]

   [10]   T358.

   [11]   T357.

   [12]   T365.

7. Dr Wilson said that Mrs Pantazis made no complaint of right sided pain (apart from the foot) until 4 March 2011, almost two years after the accident. On that occasion Mrs Pantazis reported right shoulder symptoms.[13] Dr Wilson has no record of Mrs Pantazis ever reporting lower back pain.

   [13]   T356.

8. The defendant submits that if Mrs Pantazis does have pain in her right shoulder or lower back, these symptoms do not arise from the accident. That is the opinion of Dr Wilson and Dr Munyard, both called by Mrs Pantazis, and Dr Jones, called by the defendant. Drs Munyard and Jones are orthopaedic surgeons.

9. Mrs Pantazis was referred by Dr Wilson to a physiotherapist, Mr Hans Van Loenen. He treated Mrs Pantazis from 15 May 2009 (some three weeks after the accident) until 29 March 2010 when the defendant’s insurers would no longer fund the treatment. Mr Van Loenen wrote reports dated 12 August 2009 and 9 January 2010. Those reports related to the therapy then in progress. He wrote a final letter on 22 February 2012 but was unable to add to the observations he had made earlier, having seen Mrs Pantazis only a few times after the second report in January 2010. All three reports are part of Exhibit P2.

10. In his first report in August 2009, Mr Van Loenen described Mrs Pantazis’ history of left sided injury as follows:

    … extensive soft tissue injury to lower left cervical spine affecting predominantly the facet joint structure. In addition she sustained soft tissue and possible rotator cuff injury to her left shoulder with some soft tissue trauma to her left mid rib cage.[14]

    [14]   Exhibit P2, p 38.

11. Mr Van Loenen thought that it would take a further three to four months for Mrs Pantazis’ injuries to stabilise. He described his treatment as follows:

    Ultrasound therapy, shortwave diathermy, interferential, invertebral mobilisations and joint mobilisation to the left shoulder. Exercise therapy for improving joint mobility and muscle strength in order to improve functional use.[15]

    [15]   Exhibit P2, p 39.

12. Mr Van Loenen’s prognosis in August 2009 was that the accident had “possibly augmented the pre-existing degenerative process”. He added:

    In view of her age, Mrs Pantazis is likely to experience ongoing discomfort and be unable to return fully to her pre-injury condition. Hence the need for the provision of ongoing management.

13. The ongoing management he anticipated was two or three short sessions of physiotherapy every three or four months.

14. In his second report, on 19 January 2010, Mr Van Loenen said that Mrs Pantazis was feeling much improved. He described her then current presentation thus:

    Her left shoulder symptoms have largely settled, however she is still left with a mild degree of residual discomfort in the low left cervical region.[16]

    [16]   Exhibit P2, p 40.

15. He expected that her condition might stabilise in the following one to two months. He described Mrs Pantazis’ likely residual disabilities in these terms:

    In view of the presence of pre-existing degenerative changes in Mrs Pantazis’ cervical spine, it is feasible that a degree of residual pain and disability may remain. The degree of disability and discomfort would be approximately 5 per cent.[17]

    [17]   Exhibit P2, p 41.

16. Mr Van Loenen anticipated that Mrs Pantazis might in the future require two to three sessions of therapy two to three times a year.

17. Mr Van Loenen reported no lumbar or lower back symptoms although, as indicated above, he did note “a mild degree of residual discomfort in the low left cervical region”. He reported no right sided symptoms or treatment.

18. Mr Van Loenen was not called as a witness. His reports were tendered without objection.

19. The defendant asserts that reports by the plaintiff of injury, pain and restriction associated with her right shoulder and lower back are too long after the accident for there to be any causal connection with the accident. I turn to those specific complaints.

20. The first appearance of any symptoms which might be said to refer to lower back pain is not from one of the medical witnesses but is in the pain chart prepared by the occupational therapist, Ms Stavropoulos. She interviewed Mrs Pantazis at her home on 24 August 2009 some four months after the accident) and prepared an Activities of Daily Living assessment dated 29 October 2009.[18] She listed Mrs Pantazis’ reported symptoms. There is there no reference in that list to lower back pain. In her account of Mrs Pantazis’ “investigations and treatment” Ms Stavropoulos referred to Mrs Pantazis using a heat bag nightly at her neck and lower back. In the pain diagram[19] she shaded any areas of pain indicated by Mrs Pantazis. There is no right sided pain indicated. However the shading does go down the back so far as may be described as the lower back. Up to that time neither Dr Wilson, the treating GP, nor Mr Van Loenen, the physiotherapist, had reported complaints of lower back pain.

    [18]   Exhibit P3.

    [19]   Exhibit P12.

21. The first complaint by Mrs Pantazis to a therapist about pain or restriction affecting her lower back was to Dr Papagiannis on 25 November 2010[20] but before that she complained of pain in both shoulders. That report was to Dr Papagiannis on 14 December 2009, some 11 months before the complaints about lower back pain. For reasons that become clear when I come to discuss Dr D’Onise’s evidence, I refer to the evidence of the bilateral shoulder pain. For reasons that are not clear, Mrs Pantazis continued to see Dr Wilson for pain but she also occasionally saw Dr Papagiannis when he started to resume part time practice in about November 2009. He said that he had his stroke in December 2008 and was off work entirely for almost 12 months, but returned part time after that.

    [20]   Exhibit D13, p 9.

22. Mrs Pantazis saw Dr Papagiannis on 14 December 2009[21] and complained of bilateral shoulder pain. Dr Papagiannis’ notes of 14 December 2009 say “has painful shoulders”. The notes go on to suggest that there was bilateral rotator cuff syndrome and that Mrs Pantazis was complaining of pain in raising her arms above 90 degrees. He ordered an X-ray and ultrasound of both shoulders. The radiology was carried out on 22 December. Mrs Pantazis saw Dr Papagiannis for review on 23 December. On that occasion she still had the pains and limitations she had complained of on 14 December. Dr Papagiannis’ notes suggest that he administered a steroid injection. Thereafter there is no further reference in his practice’s notes to shoulder pain. Those notes conclude on 27 May 2011.

    [21]   Exhibit D13, pp 10-11.

23. As I have said, the first report of a complaint by Mrs Pantazis to a therapist of lower back pain is a complaint to Dr Papagiannis on 25 November 2010.[22] The notes show a complaint on that date of lower back and lower hip pain with medication being prescribed. Physiotherapy was carried out. Physiotherapy notes on 1 December 2010 report acute lower back and hip pain which has been present for one and a half weeks, with pain present “24/7 and affects sleeping”. There are further consultations with Dr Papagiannis on 3 December and 28 and 29 December 2010. On 29 December Dr Papagiannis referred Mrs Pantazis for an epidural injection for the back pain. The physiotherapy appears to have occurred until 15 December 2010. The physiotherapist reported that Mrs Pantazis was “now feeling a lot better”. Despite the optimism of that report there is, as I mentioned, the reference for an epidural injection a fortnight later, on 29 December 2010.

    [22]   Exhibit D13, p 9.

24. Mrs Pantazis saw the orthopaedic surgeon, Mr Munyard, on 28 July 2010. On that occasion she made no mention of lower back pain but Mr Munyard did note that there was some restriction of movement in the thoraco-lumbar spine.[23] Mrs Pantazis first reported lower back pain to Mr Munyard when he saw her for medico-legal reasons on 2 June 2011. Mr Munyard thinks that the late reports of lower back pain suggest that any injury in that area is not caused by the motor vehicle accident.

    [23]   Exhibit P2, p 2.

25. Mrs Pantazis had first complained to Dr Wilson about right shoulder symptoms (as opposed left) on 4 March 2011. She said that she had difficulty raising her right arm. There is no earlier post-accident complaint to a therapist of specific right shoulder injury or pain although, as earlier mentioned, there was complaint of bilateral shoulder pain to Dr Papagiannis in December 2009.

26. Dr Wilson said that most of Mrs Pantazis’ consultations with her were for medical conditions unrelated to the accident. Only occasionally did she complain about body pains that might have some connection with the accident. I bear in mind that Mrs Pantazis was consulting the physiotherapist, Mr Van Loenen, until March 2010. It might be assumed that until then she did not discuss pains she was experiencing with any therapist other than Mr Van Loenen.

27. I note particular consultations with Dr Wilson on 14 April 2010. Mrs Pantazis complained to Dr Wilson of generalised pain and insomnia.[24] Dr Wilson prescribed an anti-depressant medication, Prothiaden. She said that Mrs Pantazis did not complain of depression, but Dr Wilson thought that the medication might help, particularly with sleep. (On 5 March 2010 Mrs Pantazis had complained to Dr Wilson that she had had no energy since the accident).

    [24]   T351.

28. Dr Wilson repeated the Prothiaden in August 2010. I have already referred to the first complaint of right shoulder pain on 4 March 2011. During 2011 and the first half of 2012, Dr Wilson administered cortisone injections to Mrs Pantazis’ right shoulder on three occasions.

29. On 30 August 2012 Mrs Pantazis told Dr Wilson that she was sick of having to see many doctors because of the accident. Dr Wilson prescribed an anti-depressant called Lexapro, because she thought Mrs Pantazis was exhibiting signs of anxiety and depression. This was one of the last consultations Mrs Pantazis had before being transferred to Dr Cook. He first saw her on 27 August. He has since taken over from Dr Wilson as Mrs Pantazis’ general practitioner.

30. Dr Cook found that Mrs Pantazis reported high levels of pain. He said her brain is probably now amplifying the pain stimuli. I take that to mean that her depressive illness has exacerbated her pain. The defendant objected to Dr Cook giving that evidence on the basis that Dr Cook has no qualifications in either pain or psychiatry. I determined to receive the evidence de bene esse. In light of the other substantial evidence of Mrs Pantazis’ current complaints of pain, and the psychiatric evidence of Dr Blakemore, I do not think that Dr Cook’s evidence is particularly controversial. His observations are congruent with the other evidence. Dr Cook has considered how Mrs Pantazis’ condition might be improved. He suggests she might benefit from anti-depressant medication. He suggests Amitriptyline to reduce her sensitivity to pain. That is a medication she could obtain on the PBS. She may need an anti-convulsant such as Gabapentin, which is not available on the PBS. He thinks those medications may have to be taken for some years. He said Mrs Pantazis had become de-conditioned and he wants to see if she can be encouraged to move about more. He thinks she would benefit from counselling for pain management and relaxation, possibly for six months. He suggests the counselling sessions begin once a week then tapering off to once fortnightly and then once monthly.

31. Before turning to the contest between the specialists, Drs Maynard, Jones and D’Onise, I refer to the evidence of the psychiatrist, Dr Blakemore. Mrs Pantazis was referred by her lawyers to Dr Blakemore for medico-legal purposes. She saw him twice, on 17 December 2010 and 28 August 2012. Plainly those two appointments were quite a long way apart and provide a useful comparison of her presentation. The later appointment was less than two months before the trial. Dr Blakemore noticed a marked change in Mrs Pantazis between the two appointments. He said she was not so depressed when he saw her in December 2010, but in August 2012 she was “really quite depressed”. He thought the causes of her increased depression were multi-factorial. The ongoing pain had caused a reduction in physical capacity. That incapacity had made her less able to do the household work which she saw as important. She had become dependent upon her husband for most of the housework and she depended upon him to drive her around. She had lost her independence. She was less able to relate to the grandchildren. By the later appointment she was ruminating on the loss of relatives who had died many years earlier. She was enjoying less the company of friends.

1. Dr Blakemore acknowledged that Mrs Pantazis was suffering from degenerative conditions before the accident, but, on the history he was given, the injuries from the accident and the limitations they have caused “… seem(s) to have been enough to throw her emotionally …”.[25]

   [25]   T516.

2. Dr Blakemore thought that there was an emotional component in some of her complaints. Her perception of pain appeared to be intensified. She was complaining much more on the second occasion than she was on the first. She was quite tearful at the second interview. Dr Blakemore understood that Mrs Pantazis was taking anti-depressant medication occasionally. She did not seem to understand that the medication had to be taken constantly to be effective.[26] He did not think that Mrs Pantazis was suffering PTSD “in the DSM sense”, by which I understood him to mean that she did not experience all, or enough of the criteria laid down in DSM IV TR to make out a diagnosis, but “in commonsense terms” she did meet the diagnosis of PTSD.

   [26]   T520.

3. One of the aspects of Mrs Pantazis’ presentation which led to this conclusion was the observation that she had been sufficiently traumatised by the accident to give up driving altogether. Dr Blakemore thought that was a phobia which would be permanent. Dr Blakemore did not think that Mrs Pantazis was exaggerating emotionally. He conceded that she was a difficult historian.

4. Dr Blakemore concluded that Mrs Pantazis’ depressive illness was contributing to her pain.[27] He was not confident that counselling would help. He noted that her family were supportive. He thought that he should review her after her GP prescribed appropriate anti-depressant medication to see if she made improvements. He said that only with time, and trial with medication would he be able to predict what improvement was sustainable.

   [27]   T525.

5. I have set out the pre and post accident medical history (except for the three specialists Drs Maynard, Jones and D’Onise) before discussing the evidence of Mrs Pantazis and her family. I have done that because Mrs Pantazis’ evidence can be better assessed when considered against the background of the medical history which, to an extent at least, provides a more objective history. That observation is not to pre-judge the evidence of Mrs Pantazis or her family members, but the differences and similarities between their accounts of events and the medical history inevitably inform findings of credibility. Findings of credibility, particularly of Mrs Pantazis, will assist in the evaluation of the competing medical opinions of the three specialists whose evidence I have not yet discussed.

   The family witnesses

6. Mrs Pantazis gave evidence, as did her husband, her younger son Bill and his wife Alia.

7. Ms Alia Pantazis was the driver of the car in which Mrs Pantazis was travelling. The extent to which I can accept the evidence of Mrs Pantazis is critical for the assessment of damages. Just as I have found it convenient to examine the medical history before dealing with the family witnesses, I find it convenient to discuss first the three family witnesses before turning to Mrs Pantazis herself.

8. I refer first to Mr Ioannis Pantazis, the second plaintiff. He appeared to be a somewhat reserved, dignified man. He turned 84 in January 2013. At appropriate moments in his evidence he became tearful. I could detect no sign of prevarication or exaggeration in his evidence. I formed the impression that he was doing his best to recollect events accurately and that he was truthful. That is not to say that he has a perfect memory, or that his recollections were always correct. For example, he said that before the accident his wife never lay down to rest during the day and that she never made any complaints about pain in her shoulders. She never experienced dizziness before the accident.

9. The medical history is clear that before the accident Mrs Pantazis did have pain in her shoulders and that she did suffer from dizziness. While it is conceivable that Mrs Pantazis complained about these conditions to her doctor, but never mentioned them to her husband, I think that is unlikely. It is also conceivable that Mr Pantazis is consciously lying about his wife’s pre-accident complaints. I think that is equally unlikely. I think the explanation for his denying his wife’s pre-accident complaints is that such complaints as she might have had, and made, before the accident, never noticeably disabled her. Before the accident she did all the cooking and housework. Not only did she do it but she did so assiduously. She was a very active and attentive homemaker. She never called upon her husband to help with any of the housework. He was engaged in the outdoor work. In addition, she did not depend upon him for getting about. She had her own car and drove herself. Although they might have done some of the household shopping together before the accident, Mrs Pantazis did some of it on her own. She was never dependent on her husband to help with the shopping. She is now dependent on him. Whereas before the accident she would be active in the church’s charity work and the Glendi Festival, she does not do those things now. She does not now entertain her church friends at home as she did. She cooked for the extended family, or at least for the younger son, Bill and his family, several times a week. She does not do that now. She cries when she cannot do her work. I accept the truthfulness of these accounts by Mr Pantazis. I accept his truthfulness despite my finding that he has understated Mrs Pantazis’ complaints before the accident. Those complaints never affected their lives in the way that they do now.

10. There is another aspect of Mr Pantazis’ account which I accept. Mrs Pantazis’ reliance upon her husband to do most of the housework has had a not altogether unexpected consequence. While Mrs Pantazis has come to rely on her husband to do the housework, she becomes frustrated, both at her own inability to do it, and by what she perceives as her husband’s less than ideal efforts. He simply cannot replicate the standard of work which she sees as appropriate. Using my own words, not those of either plaintiff, she “niggles him” at his efforts. What Mr Pantazis actually said was “A woman is always complaining, no matter what I do, I can’t do the job the way a woman would do them”.[28] He went on to deny that they ever got into arguments about that sort of thing, but, as I summarised it to counsel at the time, “there is a little more disharmony simply because of the change in roles now”.

    [28]   T462.

11. Mr Pantazis concluded his examination-in-chief by saying, “I get upset because my wife has reached such a bad way and I really suffer inwards”. I accept that evidence. I think he does become upset at his wife’s condition. I accept that their relationship has changed in the way that I have indicated because of her present incapacities. There was what I regard as a telling and unfeigned remark by Mrs Pantazis who said that her husband does not allow her to hang out the washing now.[29] I do not infer from that evidence that her husband is contributing to her invalidity, but rather, that he cares for her and wants to minimise her discomfort. I find that Mr Pantazis’ evidence of their lives being changed after the accident is truthful and reliable.

    [29]   T261.

12. I turn to the other two family members. First to Ms Alia Pantazis. She and Mr Bill Pantazis have been married for almost nine years. She was married before that but had no children. The children of this marriage are aged eight and seven (five and four at the time of the accident). Ms Pantazis took three months off work when each of the children was born. She was working full time for the Yellow Pages in an administrative job at the time of the accident. She said that she lost that job because of her having to go to medical appointments for herself and the plaintiff. She has since obtained part time work as an executive assistant with the training section of a pharmacy company. She works three to four days a week from 9.30 am to 2.30 pm. She has settled her own claim for damages for personal injuries arising from this accident. A damages claim for her own mother (who was the front passenger in the car) has also been settled.

13. Ms Pantazis said that after her children came along she and her husband would eat at the plaintiff’s house three or four times a week. Her mother-in-law often cooked for them, giving them food to take home, because Ms Alia Pantazis was working full time. When she worked full time, her own mother would collect the daughter from kindergarten because the kindergarten was close to her home. If her mother was occasionally unable to do so, the plaintiff would collect her. Because the plaintiff’s house was opposite the primary school, Mr Ioannis Pantazis would collect the girl from the primary school, when she started there. Now that Ms Alia Pantazis is working part time she collects the children herself.

14. Ms Alia Pantazis says that her mother-in-law is not the same after the accident. She is “… spiritually, emotionally, physically and mentally … different”.[30] “Her spirit has been broken”.[31] She used to be a strong woman, now she does not have the “get up and go” that she used to have. She is now depressed and sad. She cries a lot. Ms Alia Pantazis has seen her father-in-law doing the housework. She says she has seen her mother-in-law nagging the second plaintiff because she likes things done her way.[32] She cannot look after her grandchildren as she used to. She no longer undertakes the church work that she did. She seems still burdened by the accident. She is a changed person.

    [30]   T490.

    [31]   T494.

    [32]   T491.

15. I thought Ms Alia Pantazis was a truthful and reliable witness. I do not believe she has exaggerated her mother-in-law’s pre accident capabilities and I think she has reliably recounted what she now sees the plaintiff doing and not doing. I cite only a couple of examples of her recounting fairly the family arrangements before the accident. She said that it was principally her own mother who looked after the children after kindergarten. It was her father-in-law, not her mother-in-law, who collected the elder child from school. On the other hand it was her mother-in-law who cooked for them so much.

16. I bear several factors in mind when assessing the evidence of Ms Alia Pantazis. She was the driver of the car. Perhaps unconsciously, certainly unnecessarily, she feels some guilt about that. She herself was injured, as was her own mother. The plaintiff is not so involved in the grandchildren’s lives now because Ms Pantazis has reduced her working hours from full time to part time. Inevitably she is now less dependent on her mother-in-law for child care and cooking. Her mother-in-law is now 3 years older than at the time of the accident. Ms Alia Pantazis may not have been fully aware of the plaintiff’s pre-accident degenerative conditions and her complaints to doctors about them. For all these reasons she may be over-inclined to attribute all the changes she sees in her mother-in-law to the accident. Nevertheless I find that she was a truthful and reliable witness whose day to day observations of the plaintiff I can rely upon.

17. The plaintiff’s younger son, Bill Pantazis, gave evidence. He turned 40 in January 2013. He is a contract driver. He said that his mother’s health before the accident was fine apart from her diabetes. He said he noticed that before the accident she would become lethargic and have to lie down every now and then. He had noticed that before the accident she would sometimes lie down on a couch during the day, possibly once a week. Following the accident she does that much more often. I bear in mind that Mr Bill Pantazis has always worked full time. That may have limited the opportunities for him to closely observe his mother. Nevertheless, he said that, before the accident, his mother never complained in his presence of aches and pains and he never noticed her moving in a stiff and slow manner.[33] He conceded in cross-examination that before the accident his mother would be noticeably affected by the diabetes. “The diabetes really would rock her … really shake her up. If she had a bad turn of diabetes it would really rattle her for a day or two”.[34] He spoke of the difference in his mother’s capabilities now. He referred to his father doing the housework. He said his mother had given up sewing and crocheting at night. He said he himself had built a step at the back of the house because he had noticed after the accident that his mother struggled with the bigger step that was there previously. There is a photograph of the step in Exhibit P4. Mr Pantazis has seen his mother crying two or three times a week, whereas previously she did not do so. She is not as active in the community as she was. She has become very sad.[35]

    [33]   T308.

    [34]   T307.

    [35]   T304.

18. I found Mr Bill Pantazis to be a credible witness. He was frank about the extent to which his mother was affected by diabetes before the accident. I do not think he has exaggerated his observations of her present incapacity. It is true that he did not attribute any pre-accident incapacity to the degenerative conditions from which his mother did suffer, but from his point of view, that might not have been obvious. She was able to manage her house and extended family energetically before the accident, but she is much less able to do so now. I bear in mind that, as a son who has a close relationship with his mother, Mr Bill Pantazis might be expected to support her in her litigation. I bear in mind that he appears to have no insight into her pre-accident degenerative condition and that her pre-accident ailments were at times symptomatic. However I think that he has truthfully and reliably described her present level of functioning. His evidence is consistent with that of the other family members. Generally I do not think that he has consciously or unconsciously misrepresented what he presently sees as his mother’s condition. I found compelling one observation he made. He said that his father sometimes tells the children (by which I take him to mean the plaintiff’s grandchildren) not to make a mess, because he (the second plaintiff) would have to clean it up. I accept that the second plaintiff does most of the housework now.

19. That then leaves my assessment of the plaintiff as a witness. I find that the plaintiff is generally truthful and reliable. There are qualifications to that general finding which I will articulate. However, in important respects her evidence is supported by the medical evidence, particularly the evidence of Dr Blakemore, and by the evidence of other members of her family. Accepting her evidence does not resolve all questions of causation. Because Mrs Pantazis attributes her whole condition to the accident does not mean that that is so. However genuinely she believes the accident to be the sole cause of her medical conditions and the sole cause of her incapacity, the true causes of her difficulties may be multi-factorial. I will have to examine the contested medical opinions to finally resolve those questions of causation.

20. The evidence of family members confirmed the impression I formed at the end of Mrs Pantazis’ evidence; that she had been a hard working woman who had been engaged in paid employment for almost 30 years. She brought up two sons. She was a most meticulous and energetic home maker. She was active in church work and contributed to the Glendi Festival. When her grandchildren were born, after her retirement, she actively helped in their care. She drove her own car. She maintained all these activities despite the gradual onset of degenerative osteoarthritis. She reported ill health to her doctors, but if she did make complaints of ill health at home, she carried on with her work. She sought treatment from her doctors when appropriate. There is simply no suggestion of her malingering before the accident. That is despite bouts of ill health and significant treatment.

21. The defendant makes no suggestion of pre-accident malingering on the part of the plaintiff. What the defendant does suggest is that the plaintiff has exaggerated some post-accident ailments and incapacities, and she has wrongly attributed all her difficulties to the accident. Instead, the defendant asserts, her difficulties are multi-factorial.

22. I explain why I accept generally the evidence of the plaintiff and I articulate some qualifications.

23. I accept the plaintiff generally because what she says is supported by objective facts. Her employment history suggests long term application to paid work. There are no unexplained gaps. I have seen photographs of her house. It confirms everything she says about her handiwork and her application to her house and family. Even now, her house is fastidiously tidy. Her medical history supports her contention that, before the accident, she was able to manage her commitments. That is so despite her medical history contradicting her evidence. She denied symptoms before the accident of occasionally debilitating degenerative conditions such as osteoarthritis. She said she had never experienced dizziness, but she had. She said she had never had physiotherapy before the accident. She said she never had pain in her neck and shoulders, but she had. She denied a health care plan had been prepared for her by her doctor in 2007. Clearly one had been prepared and carried into effect.

24. At times the plaintiff’s denials of the pre-accident history were adamant. While at times she said she could not remember something put to her in cross-examination, at others she was quite adamant in her denials. I might add that a witness being adamant in denial of such matters can sometimes be attributed to an aggressive and unattractive manner of cross-examination. There is no such explanation here. At all times Mr Lindsay for the defendant was measured and polite in his questioning.

25. How then can these inconsistencies stand alongside a general acceptance of the plaintiff’s evidence? I accept the plaintiff’s evidence generally because it is borne out by the medical history and the evidence of other reliable family witnesses. Before the accident the plaintiff was able to do what was important to her and now she cannot. Before the accident she was able to energetically look after her family and her home. Now she cannot. Even without a depressive illness, it would be not altogether surprising if she would attribute all her difficulties to the accident. Dr Blakemore’s evidence makes that frame of mind more understandable.

26. I have already referred to Dr Blakemore’s evidence but I now return to it. He said that the car accident appears to have “thrown” Mrs Pantazis emotionally. He noticed a decline in her psychiatric condition between the two appointments she had with him - the first in December 2010 and the second in August 2012, the latter two months before the hearing. On the first occasion Dr Blakemore noted that Mrs Pantazis suffered from a driving phobia. She had given up driving after the accident. He thought it was likely she was also suffering from an Adjustment Disorder with Depressed Mood. Those two conditions were caused respectively by the experience of the accident itself and by the physical incapacities she experienced as a result of her injuries. By the time of the second consultation Mrs Pantazis’ condition had got worse. She still had the driving phobia but the depression had progressed so that a diagnosis of major depression was applicable. Dr Blakemore thought that the driving phobia was unlikely to resolve. If that proved to be the case the depression was likely to be “at the very least, long lasting”.[36] It seems the plaintiff had been taking the prescribed anti-depressant medication only when she felt sufficiently depressed. She had not understood that for the medication to be effective she should take it all the time. Dr Blakemore thought that the symptoms of the depressive illness would be lessened by the plaintiff taking the medication regularly. He thought that the improvement should be clearer in a few months.

    [36]   Exhibit P2 report dated 21 August 2012 p 35.

1. Dr Blakemore said that the emotional and physical aspects of her life had become a vicious cycle.[37] He described the causes of her depression as multi factorial. He thought the facts, including the ongoing pain and physical incapacity, the reduced contact with the grandchildren (“People underestimate the loss of the presence of little children”)[38] and the loss of independence (the inability to drive and to do housework) all contributed to the depression. He said that being in pain wears people down over a period of time, particularly in older people.[39] Dr Blakemore said that the additional injuries, by which I took him to mean the increase in physical symptoms of pain following the accident, combined with her inability to be independent, seems to have “thrown her emotionally”.[40] There is a consequent emotional component to some of the plaintiff’s complaints of pain.[41]

   [37]   T519.

   [38]   T515.

   [39]   T515.

   [40]   T516.

   [41]   T517.

2. I found Dr Blakemore’s description of Mrs Pantazis’ condition persuasive. He accepted that she had pre-accident physical ailments which became symptomatic from time to time. However his descriptions of the interaction between increased symptoms of pain and physical incapacity on the one hand, and the depressive illness on the other, is consistent with the observations of the family witnesses. The emotional component of her presentation explains in my view the over attribution by Mrs Pantazis of all her ailments to the accident. I think that the depressive illness has contributed to Mrs Pantazis seeing the accident as the sole cause of her pain and suffering. In that frame of mind she went so far as to deny some symptoms and some treatments which pre-dated the accident. In the circumstances, I do not conclude that Mrs Pantazis was trying to mislead the court. Nevertheless I must bear in mind the fact of the pre-accident illness and the emotional component of Mrs Pantazis’ presentation when assessing the contentious medical evidence. I now turn to that evidence.

   The contentious medical evidence

3. Drs Munyard,[42] Jones[43] and Wilson are of the view that the plaintiff’s lower back pain and right shoulder pain are not caused by the accident. Dr D’Onise conceded that the late report of those injuries was such as to raise a doubt about the causal connection between the accident and those two complaints.[44] Dr D’Onise said that the late reports may be explained by the plaintiff being distracted by the more obvious pain in the other areas. He said that it was often difficult for treating practitioners, be they doctors or physiotherapists, to isolate the precise sources of pain that a patient is experiencing.[45] He said that he could see a mechanism by which the accident could have caused both injuries. The plaintiff might have been pushed first to her left, hitting the baby seat and causing injury to the left shoulder, then pushed to the right as the car continued to spin, causing her to injure her right shoulder. That might be by either by the seatbelt or by hitting the right passenger door. The twisting movement of the car could have also caused the injury to the lower back. Dr Munyard thought that those possible mechanisms might cause the right shoulder injury although he was less sure about the lower back injury being caused that way. Dr Munyard’s ultimate opinion was that the two injuries were not caused by the accident. He would have expected earlier complaints about pain at those sites if they had been caused by the accident. Dr Munyard also said that it was hard to separate complaints of pain in the thoracic and lumbar spine because they are connected.[46] He noted that there was no specific report to him of lower back pain until 2 June 2011, but in his first report on 17 August 2010 Dr Munyard noted that when he examined the plaintiff on 28 July 2010 there was a marked restriction of movement in her thoracic/lumbar spine.[47]

   [42]   T402, 422, 441.

   [43]   T635.

   [44]   T553 and 560.

   [45]   T554.

   [46]   T430.

   [47]   Exhibit P2 p 2.

4. Dr Jones first assessed the plaintiff on 8 October 2010 at the request of the defendant’s insurers. On the basis of the history he was given he assumed that the plaintiff had no relevant pre-accident symptoms. He concluded that the plaintiff sustained a two percent whole person impairment arising from a left shoulder injury caused by the accident.

5. Dr Jones re-examined the plaintiff on 13 August 2012.[48] Subsequently he was provided with the medical records of Drs Papagiannis and Wilson and the pre-accident CT scan. He provided supplementary reports on 17 October and 18 October 2012. He noted the plaintiff’s inherited tendency to develop osteoarthritis. That was indicated by her hands where there was thickening of the distal interphalangeal joints.[49] He noted the pre-accident spondylosis, particularly to the left shoulder. He said that, giving the plaintiff the benefit of the doubt, there may have been a causal connection between the accident and the left shoulder symptoms by reason of a secondary calcification of her left rotator cuff. He was of the opinion that the complaints by the plaintiff of pain in her right shoulder and lower back were too distant from the accident to be related to it. If pain in those areas was caused by an accident related injury then he would have expected the plaintiff to have complained about them earlier. The pain in the right shoulder and lower back, and their consequent limitations, have been caused by development of pre-accident osteoarthritis.

   [48]   Second report dated 16 August 2012.

   [49]   See notes p 40. 

6. Dr Jones noted what he said was an inconsistency in the plaintiff’s presentation when he examined her on 13 August 2012. He contrasted her claim of restricted movement of her cervical spine to the right, with her turning her head to the right when speaking to her daughter-in-law who accompanied her to the appointment. Dr Jones described that as:

   A major inconsistency in her presentation, and in relation to symptoms which she attributed to the accident.[50]

   [50]   T673.

7. It is not clear to me why an inconsistency in one aspect of the plaintiff’s presentation i.e. the rotation to the right, should necessarily affect the presentation in respect of other movement or other claimed areas of pain, but I accept that it has to be borne in mind. Part of the defendant’s case relates to causation, but part relates to alleged exaggeration by the plaintiff of her disabilities. I see no reason not to accept Dr Jones’ account of what he observed.

8. Dr Jones concluded that in the accident the patient suffered an exacerbation of a pre-existing cervical spondylosis. Further, he allowed that supraspinatus tendonitis in the left shoulder, secondary to a calcium deposit, may have been caused by the accident. He concluded that the late reports of pain in the lower back and the right shoulder indicated that those conditions were not caused by the accident. I note that in his second report, dated 16 August 2012[51] Dr Jones said that Mrs Pantazis did not complain of pain in her right shoulder when he examined her on 8 October 2009. In fact, of course, he did not examine her until 8 August 2010.

   [51]   D16 p 26.

9. Dr Jones was at pains to distinguish between an exacerbation and an aggravation of the pre-existing conditions. He described the difference in this way:

   Specifically, an exacerbation is a flare up or an increase in symptoms as a result of an incident, but the exacerbation does not cause an alteration of the natural history of that condition, whereas an aggravation alters the natural history of the condition and adds to the impairment that may have been created. So my use of the term “exacerbation” was specifically to identify that she had previous symptoms which were exacerbated or flared up as a result of the motor vehicle accident, but the normal period of recovery of the exacerbation would be in the order of six to twelve weeks.[52]

   [52]   T643.

10. Counsel for the plaintiff criticised Dr Jones for that distinction partly on the grounds that Dr Jones was engaging in a semantic exercise. I do not think that that criticism is justified. Dr Jones clearly articulated the different meanings he attributed to the words. No other witness made that distinction but Dr Jones gave reasons why he did. Counsel also directed criticism to the distinction on the basis that, in the plaintiff’s case, the distinction was not medically well founded. The distinction Dr Jones made is that, in his view, Mrs Pantazis:

    sustained in the accident… an exacerbation of asymptomatic cervical spondylosis and a soft tissue injury to the tendon mechanism of the left shoulder followed by the development of a calcium supraspinatus tendonitis.[53]

    [53]   Report of 16 August 2012, D16 p 26.

11. I have already recited his evidence on that topic.

12. Dr Munyard conceded in cross-examination that it was possible that two processes occurred at the same time, that is that the soft tissue injury from the accident was getting better and the pre-existing degenerative condition was getting worse. Dr Munyard said that that could occur.[54] He went on to say that psychiatric problems came into play.[55] Dr Munyard concluded that it was unlikely that the plaintiff’s right shoulder and lower back symptoms were as a result of the accident. He said he thought that the first reports of those symptoms were too far removed from the accident to be caused by it. He expressed that opinion notwithstanding that he could see a mechanism by which the plaintiff could have suffered her right shoulder injury in the accident.

    [54]   T432.

    [55]   T432.

13. Dr Munyard concluded that the plaintiff had suffered an increase in disability as a result of the accident. In cross-examination he said:

    What I’m saying is that I think that there’s been an increase in disability as a result of the underlying – as a result of the accident on top of the underlying arthritis. I may not have been clear and precise in providing that information but I’m saying that she’s got an increase in disability in regard to her shoulder and her neck, taking into account the changes which were present on the x-rays or ultrasounds which were available.[56]

    [56]   T436-437.

14. Further, he said:

    But if you’ve got a patient who’s had an intermittent problem with their neck, such as this woman appears to have had, and then she’s got this pain all the time and down her arm and her shoulders, and her shoulder’s bad, then I think you know ten percent is not a very big assessment at all.[57]

    [57]   T437-438.

15. Dr D’Onise attributed the right shoulder and the lower back symptoms to the accident. While he conceded that the late reports of those symptoms caused some concern about causation[58] he thought that the late reports could be explained. I have already mentioned his observation that patients and practitioners sometimes have difficulty in distinguishing the precise source of pain. Dealing with the lower back symptoms Dr D’Onise noted that there was some crossing of the muscles between the lumbar and thoracic spine.[59] Further, he suggested that Mrs Pantazis may have been distracted from the lower back pain in her history giving by the greater and more obvious pain in the neck and shoulder.

    [58]   T544.

    [59]   T556.

16. As far as the right shoulder symptoms being caused by the accident, Dr D’Onise was really only willing to think that causation was plausible or possible.[60] That observation appears partly to be based on a possible mechanism for such an injury being caused by the accident. In examination-in-chief Dr D’Onise entertained the possibility on the premise that there was a “complaint by Mrs Pantazis to Dr Wilson on 29 April 2009 consistent with a right shoulder joint problem”. The notes of Dr Wilson for 29 April 2009 [61] refer only to a right shoulder impingement. I see that Dr Wilson’s notes record bruising to the right elbow. Dr Wilson was not asked to explain what she meant by the note about the right shoulder impingement nor was she asked to elaborate on the observation of the bruising to the right elbow. In fact Dr Wilson said that she noted an injury to the right elbow, but corrected that when she had her attention drawn to the fact that she had said the “left” in her report.[62] That confusion was not cleared up. In fact the notes show pain to the left elbow on one page and bruising on the right elbow on another.[63] This misunderstanding was never clarified.

    [60]   Examination-in-chief T561 cross-examination T568.

    [61]   Exhibit D9.

    [62]   Exhibit D7.

    [63]   Exhibit D9.

17. Dr Wilson did note that the plaintiff said on 29 April 2009 that she could not move either of her arms.[64] She recorded a complaint of pain in the right shoulder for the first time on 4 March 2011.

    [64]   T356. 

    Conclusion regarding disputed medical witnesses

18. I cannot entirely discount the possibility that Dr Jones is correct when he says that what the plaintiff suffered was an exacerbation of a pre-existing injury to her left shoulder as a result of the accident. However, from the evidence of Mrs Pantazis, but more particularly from the evidence of the other family witnesses, I am persuaded that Dr Munyard has described what has happened. I am persuaded that Mrs Pantazis suffered pain in her left shoulder virtually continuously from the time of the accident. I appreciate that Mr Van Lowen’s report would suggest that there was some amelioration of the symptoms during and following his treatment but I am persuaded that if the soft tissue injury did in fact improve, it did so at about the same time as the symptoms of the degenerative condition increased. Dr Munyard says that such a process can occur. It would in my view, have been impossible for Mrs Pantazis to distinguish the two processes. All she felt was pain. I am also persuaded that the psychiatric condition alluded to by Dr Munyard and testified to by Dr Blakemore, came into play. Mrs Pantazis came to be incapacitated from those tasks she saw essential to her life. Her pains generally became debilitating. She became depressed. I find that Dr Jones is probably correct, and that Dr Munyard’s scepticism was probably well founded, as the evidence of each of them concerns the causation of the right shoulder and the lower back symptoms. However, as the symptoms of the left shoulder progressed, so the symptoms in the right shoulder and lower back became apparent. The combination of the accident and the existing injuries resulted in chronic pain after the accident. Before the accident the plaintiff had suffered pain intermittently. The onset of the depressive illness made it unsurprising that Mrs Pantazis should attribute all her symptoms to the accident. I think the depressive illness, not properly treated even by the time of the trial, explains why Mrs Pantazis would not only be inclined to attribute all her disability to the accident, but even to deny pre-accident symptoms and treatment.

19. On balance I think that the late reporting of pains in the right shoulder and lower back indicate that they are symptoms of the degenerative conditions. Nevertheless, the emergence of chronic symptoms in those areas has overlapped with the symptoms in the left shoulder. The symptoms in the left shoulder had not subsided before the symptoms in the right shoulder and the lower back appeared. The disability suffered as a result of the left shoulder pain had not subsided before there was disability attributable to the right shoulder and lower back pains.

    Legal principles of causation

20. The onus of proving that injuries have been caused by the negligence of the defendant is borne by the plaintiff. The plaintiff must prove on the balance of probabilities that the accident has caused the injuries and the disabilities.

21. Section 34(1) of the Civil Liability Act 1936 provides:

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

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

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

22. Section 35 refers to the burden of proof. That section reads:

    In determining liability for negligence, the plaintiff always bears the burden of proving, on the balance of probabilities, any fact relevant to the issue of causation.

23. However in this case it is plain that there are pre-accident and post-accident injuries.

24. The defence accepts that it has an evidentiary burden to disentangle issues of medical causation. In BHP Billiton v Parker (2012) 113 SASR 2006, the Full Court of South Australia reaffirmed the principle laid down in the High Court in Watts v Rake (1960) 108 CLR 158 and Purkess v Crittenden (1965) 114 CLR 164.[65] Doyle CJ and White J referred to the remarks of Dixon CJ in BHP Billiton v Parker as follows:

    [154] If the disabilities of the plaintiff can be disentangled and one or more traced to causes in which the injuries he sustained through the accident play no part, it is the defendant who should be required to do the disentangling and to exclude the operation of the accident as a contributing cause. If it be the case that at some future date the plaintiff would in any event have reached his present pitiable state, the defendant should be called upon to prove that satisfactorily and moreover to show the period at the close of which it would have occurred.

    [65]   See Doyle, CJ and White J at [152]-[156] and Gray J at [361]-[362].

25. In my view the defendants have not discharged their evidentiary onus of disentangling the issues of medical causation so far as the left shoulder injury is concerned. The pre-accident degenerative condition and the left shoulder injury caused by the accident remain inseparable. I am persuaded that while the soft tissue injury caused by the accident might have been improving, the pre-accident degenerative condition was becoming chronically symptomatic.

26. What of the right shoulder and lower back injuries and the depressive illness? I am persuaded that, notwithstanding the explanations given by Dr D’Onise, the medical causes of the right shoulder and lower back are not injuries sustained in the car accident. Despite the possible mechanism by which injuries at those locations were caused during the accident, I think that Mrs Pantazis is likely to have made explicit complaints of pain in those areas sooner after the accident than she did.

27. On the other hand I do not think that the causes of the depressive illness have been disentangled. It is not entirely clear when the plaintiff became depressed. She was not referred to Dr Blakemore until December 2010. In his report of 17 December 2010[66] Dr Blakemore diagnosed the plaintiff as suffering from a driving phobia which has prevented her from driving from shortly after the accident. She did drive for a short while, but felt that she could no longer go on. That had the effect of robbing her of some independence. That phobia is clearly associated with the accident. In December 2010 Dr Blakemore concluded that the plaintiff was suffering from a depressive illness arising from her physical limitations in the home. Unsurprisingly he could not be expected to apportion causal links between specific physical injuries and the depressive illness. He did not attempt to do so. In December 2010 Dr Blakemore thought that the plaintiff’s emotional condition was likely to improve, although he was unsure what, if any, emotional difficulties would be permanent.[67]

    [66]   Exhibit P2 p 21.

    [67]   Exhibit P2 p 27.

28. By the time of his second consultation in August 2012, the plaintiff’s depressive illness was worse, not better.

29. I accept Dr Blakemore’s evidence. I find that the plaintiff suffered a depressive illness as a result of the accident. That depressive illness has contributed to her disabilities.

    Present disabilities

30. It is necessary to describe the disabilities from which the plaintiff suffers following the accident. The plaintiff has a driving phobia. She is no longer able to drive a car, and at times when she is a passenger, she is anxious. She is now dependent on her husband to drive her about.

1. So far as her physical disabilities are concerned, it is appropriate to refer to the medical examinations conducted closest to the hearing. Those examinations were conducted by Dr Cook on 27 August and 10 October 2012. Each consultation took over 40 minutes. I bear in mind that I have found that the right shoulder and the lower back injuries were not caused by the accident. They are pre-existing injuries which I find have become symptomatic. I accept the plaintiff’s evidence that she suffers pain in those areas.

2. Dr Cook said that the plaintiff was reporting high levels of pain. In a pain diagram the plaintiff indicated severe pain in the lower cervical spine and left shoulder. She reported moderate pain in the upper thoracic spine and both shoulders. She also reported moderate pain in the left arm. She has minor pain in the lumbar spine and the right shoulder. She experiences tingling in the thumb and all fingers of the left hand.[68]

   [68]   T379.

3. Dr Cook recorded the plaintiff’s account of how the pain has affected her life. She needs assistance from her husband with dressing and showering. So far as housework is concerned, she can only do light dusting and the light aspects of clothes washing. Her husband cleans the floors, doing the mopping, sweeping and vacuuming. He cleans the bathroom, toilet and he does the heavier aspects of clothes washing. He makes the bed. The plaintiff relies upon her husband to do the more strenuous aspects of cooking, such as lifting pots, chopping food and washing the bigger dishes. The plaintiff does only the lighter aspects of cooking. Nevertheless the plaintiff supervises the housework and the cooking so that the house is well maintained and so that the couple and visitors are properly fed.

4. The pain experienced by the plaintiff means that she and her husband socialise less than they did before the accident. The plaintiff no longer does church and community work. She has to rest a lot. The pain and the limitations have contributed to her being depressed, whereas before the accident she had no mental illness.

5. The pain interferes with her sleep and causes discomfort in sitting and standing for any length of time. She finds it difficult walking any distance.

6. While I accept that the plaintiff now does not crochet and knit, the evidence is not compelling that she was doing a great deal of those activities at the time of the accident. When she was furnishing her house and when the grandchildren were younger, I accept that she was more productive in these activities. As well as providing for her home and family, she gave away a lot of her handicrafts.

7. The plaintiff called two occupational therapists, Ms Georgina Stravropoulos and Ms Jessica Guerra. They prepared Activities of Daily Living Assessments dated 29 October 2009 and 25 June 2012, respectively.[69] Ms Stavropoulos noted the plaintiff’s account of her pains and limitations in October 2009, just six months after the accident. I will not detail her evidence but at that time the plaintiff reported a substantial reduction in her activities in the home and a substantial reliance on her husband for household chores. Ms Stavropoulos suggested a number of minor aids for use in chores in the house. She recommended adjustments the plaintiff might consider in carrying out the chores she could do. I must say one of the suggested adjustments seemed impracticable. Ms Stavropoulos suggested that the plaintiff might be able to resume vacuuming, and avoid painful arm movements, if she were to step forward and backward with the cleaner while vacuuming. That appears to me unrealistic. I accept the plaintiff’s evidence that her husband has continued to do all the vacuuming since the accident.

   [69]   Exhibit P3.

8. Ms Guerra’s more recent report in June 2010 is to the effect that the plaintiff is still as limited in her domestic activities as she was in October 2009. Ms Guerra reviewed the commercial rates of cleaners in the event that cleaners have to be engaged. Presently Mr and Mrs Pantazis are managing on their own.

9. While I have found that the plaintiff’s right shoulder and lower back injuries were not sustained in the accident, it is not clear how to go about separating the disabilities caused by those injuries, from the injuries caused by the accident. The plaintiff has become unable to carry out most of her pre-accident housework. She has become reliant on her husband to do most of the housework. She has disturbed sleep and pain in standing, sitting and walking for any length of time. She has become depressed. How is it possible to identify which of those outcomes would be different if one disregarded the injuries in the right shoulder and the lower back?

10. The injuries to the left shoulder and the upper back are causatively disabling. If the left arm is less effective because of the left shoulder injury, it is difficult to separate the overall disability Mrs Pantazis would suffer absent the injury to the right shoulder. It is true that some tasks, such as vacuuming, sweeping and mopping can, with difficulty, be done with one hand, but it is not clear that the pain Mrs Pantazis would experience in her left shoulder and upper back would not make those tasks more difficult, even to the point when she would quite understandably not undertake them.

11. The depressive illness has been caused by the whole range of pains and limitations, those caused by the accident and those not caused by it. I have found that it is not possible to separate the two groups of injuries when contemplating the causes of the depressive illness.

    Assessments of damages

    The first plaintiff – Mrs Pantazis

    Non-economic loss

12. Pursuant to s52(1)(a) of the Civil Liability Act damages may be awarded under this head if the injured person’s ability to lead a normal life has been significantly impaired by an injury extending beyond seven days. The defendant does not dispute that the plaintiff’s ability to lead a normal life was significantly impaired for more than seven days. The defendant asserts that there was a relatively acute period of acute symptoms for two or three months.[70] Pursuant to sub-s(2)(a) the non-economic loss is to be assigned on a scale value between 0 and 60. The formula for then calculating the non-economic loss is set out in sub-ss (2)(c) and (2)(d).

    [70]   T726.

13. I find that the plaintiff’s ability to lead a normal life has been significantly impaired by injuries sustained in the accident which extended beyond seven days. I will not repeat all the reasoning and the individual findings which had lead to that conclusion. Whereas before the accident in April 2009, the plaintiff was able to carry out all her household tasks, she can now carry out very few of them. While her pre-existing degenerative conditions became symptomatic occasionally before the accident, and they led to her undergoing courses of treatment, she was able to carry on with her housework and her family, church and community activities. Since the accident her pain and discomfort has been continuous. She developed a depressive illness. The depressive illness is making the pain worse. She has a driving phobia. She has given up driving. She is wholly dependent on her husband to get about. She is almost wholly dependent on him to get the housework done. Her family, church and community activities are severely curtailed, the last two virtually completely. I appreciate there may have been a diminution in those activities due to the changes of her family dynamics and to advancing age, but the disabilities arising from the accident have made these limitations much more significant.

14. They are more significant for Mrs Pantazis than they might be for other women. She took a particular pride in running her house. She was a fastidious housekeeper. She was a prolific cook. She is now unable to do any but the smallest proportion of the housework and cooking. Her husband does most of both. Mrs Pantazis supervises her husband’s efforts so that the household is run as close to what it was as she can manage, but she is frustrated that she cannot do it herself. Her ability to fulfil her full role as grandmother is reduced, although in this regard I recognise that, because her daughter-in-law has, following the accident, reverted to part-time work, Mrs Pantazis’ role in providing for the grandchildren would have been reduced without the accident.

15. In these circumstances I assign a scale value of 12 to the plaintiff’s non-economic loss. The accident occurred in April 2009. By virtue of the formula set out in sub-ss (d) and (c) of s52(2), I make an allowance for damages for past and future non-economic loss in the sum of $19,490.[71]

    [71]   The formula, ie $11,500 + (2 multiplied by $2,300) = $16,100 x (CPI September 2008 is 169.8 ÷ CPI September 2002 is 140.3) = 1.21 to the nearest $10 = $19,490.

    Past Gratuitous Services

16. Section 58 of the Civil Liability Act provides that gratuitous services may not be the subject of a damages award except for the services of inter alia a spouse. In this case only the services of Mr Pantazis are relevant. Subsection 2 limits such an award to four times the State average weekly earnings. However sub-s3 permits an award in excess of that amount. Subsection 3 reads as follows:

    However, the court may make an award in excess of the limit prescribed by subsection (2) if satisfied that—

    (a)the gratuitous services are reasonably required by the injured person; and

    (b)it would be necessary, if the services were not provided gratuitously by a parent, spouse, domestic partner or child of the injured person to engage another person to provide the services for remuneration,

    but, in that event, the damages awarded are not to reflect a rate of remuneration for the person providing the services in excess of State average weekly earnings.

17. There are thus two prerequisites to the making of an award for gratuitous services and a limitation on the quantum.

18. The first of the prerequisites is that the plaintiff must establish a need for the gratuitous services. That need must be reasonable. The second prerequisite is that it would be necessary for the plaintiff to engage another person to provide the services if (in this case) her husband were not able to provide them.

19. In Van Gervan v Fenton (1992) 175 CLR 327 at 333 the High Court held that the true basis for a claim for gratuitous services (a Griffiths v Kerkemeyer claim) is the demonstrated need of the plaintiff for those services. The need must arise from the disabilities suffered as a result of the tort.

20. I find that the plaintiff has established that, as a result of injuries sustained in the accident, she has been unable since the accident to do most of her housework, including cooking. She has established a need for assistance in the house, and if her husband had not been able to undertake that housework, she would have had to employ someone else to do it.

21. In Van Gervan v Fenton supra, the High Court said that where the need for services has been established, the damages are to be determined by reference to the market cost of those services.[72] As earlier mentioned s58(3) of the Civil Liability Act imposes a limitation on the calculation of damages under this head. The rate of remuneration may not exceed the State average weekly earnings (see explanation by Lander J in Garland v Clifford).[73]

    [72]   p 333-4.

    [73] (1996) 67 SASR 47 at 59).

22. In Van Gervan v Fenton the High Court posed the relevant questions in this way.[74]

    What are the services required to satisfy the plaintiff’s need resulting from the defendant’s wrong? and,

    What is the value of those services?

    [74]   p 338.

23. The plaintiffs' solicitors collated into a schedule[75] the evidence given at the trial about the housework done before and after the accident. The evidence is not precise but I summarise it in this way. The plaintiff gave evidence about the hours she spent doing cooking and cleaning before the accident. The cleaning included annual spring cleaning. It is to the effect, when taken together, that she spent about thirty five hours a week in such activity. The evidence is less clear about the time taken by both parties to do the same work now. I conclude that the work overall probably takes about the same time but it is now done by both of them rather than just Mrs Pantazis. I find that Mr Pantazis does most of the housework and cooking.

    [75]   Exhibit P21.

24. I think that the time taken by Mrs Pantazis to do the housework before the accident was probably more than most people would spend. I think that is possibly because, at 73, she might have taken longer to do the work than someone younger. I also think that she was more fastidious in her housework than many people would be. The allowance I must make for gratuitous services has to be reasonable.

25. I do not reject the evidence of Mr and Mrs Pantazis about the time spent doing the housework but I must arrive at what I think is a reasonable allowance for the time that should be considered under this heading. Doing the best I can with the evidence, I find that I should allow two hours per day (ie 14 hours per week) for the work done by Mr Pantazis between April 2009 and April 2013. I find that during that time the market value of that work was on average $20 per hour. It may have been less in 2009 and more in 2013. I therefore fix the sum for past gratuitous services at $58,240.

    Interest on Past Gratuitous Services

26. I apply 6 per cent per annum to the past gratuitous services. I therefore fix the sum for interest on past gratuitous services at $7,000.

    Future Gratuitous Services

27. Mrs Pantazis is now 77 and Mr Pantazis is 84. With Mrs Pantazis’ pre-accident degenerative condition it is likely that, at some stage she would have become unable to do her housework irrespective of the accident. I expect she would have been reluctant to relinquish housekeeping and would have done as much as she could for as long as she could. If she and her husband were to become incapacitated to any extent I find that Mr Bill Pantazis and his wife would probably arrange accommodation for them at the back of their own house. They may also assist the couple in their housekeeping.

28. The principles by which future liability is to be determined have been laid down by the High Court in Watts v Rake[76] Purkess v Crittenden[77] and Malec v JC Hutton Pty Ltd.[78] These principles have been further discussed and applied in Seltsam Pty Ltd v Ghaleb[79] At [105] Ipp J, with whom Mason P agreed, said that the correct approach is to evaluate possibilities, not determine future events by reference to the balance of probabilities.

    [76] (1960) 108 CLR 158.

    [77] (1965) 114 CLR 164.

    [78] (1990) 169 CLR 638.

    [79] [2005] NSWCA 208 [93] – [109].

29. I must try to evaluate the possible effects of the contingencies. I must try to make that assessment in the absence of precise medical or other evidence. No witness has been able to forecast with certainty when the future effects of the pre-existing conditions taken alone might disable the plaintiff. No witness has been able to predict how the aging process might limit Mrs Pantazis in her housework. Nevertheless, I find that both age and the development of the pre-existing conditions would at some stage have rendered Mrs Pantazis unable to carry out her housework. Her need for help in the house might have been gradual – it might have increased incrementally. I cannot make this assessment with any precision. Doing the best I can with the evidence I have, I make a deduction of 50%.

30. I have concluded that I should not make a separate award for future paid services. I have assumed that the housework, including cooking, would be done by Mr Pantazis or someone paid for that purpose. The rates at which each is calculated are about the same. While I am aware that an estimate for the need for paid cleaning services in the future would be of the order of two hours per week, that estimate does not take into account the need for daily cooking. That estimate also assumes that Mr and Mrs Pantazis might be able to undertake some of the work themselves. To entirely replicate Mr Pantazis’ efforts I find would require two hours per day.

31. Exhibit P15 indicates that, as at 15 October 2012, the current value of a future payment of $1 to Mrs Pantazis for the whole of life is $478. I therefore allow $67,200 for future gratuitous services.[80]

    [80]   $280 x $478 ÷ 2.

    Past special damages (medical and travel expenses)

32. Exhibit P14 is a schedule of special damages. It is in several parts.

33. The first part is expenses which are agreed as to quantum and liability for the pleaded injuries. It includes a component for travel. The amount not already paid by Allianz CTP is $337.57. I make an award in that sum.

34. The second part is expenses which are agreed as to quantum, but not as to liability, for the pleaded injuries. It too includes a component for travel. Given my findings on liability I find that the defendant should pay those expenses. They amount to $1,326.39.

35. The third and fourth parts are special damages relating to the right shoulder and the lower back. As I have found that neither of these injuries was caused by the accident, I decline to make an order under either head.

    Future special damages

36. The plaintiff claims for future medical expenses under the following headings:

    1Psychological counselling.

    2Psychiatric therapy including medication.

    3Pain medication.

    4Physiotherapy and supervised exercise.

37. I turn first to future psychological counselling. Mrs Pantazis’ most recent GP Dr Cook said that he thought she might benefit from a course of psychological counselling to assist partly with the treatment for her pain and partly to deal with her driving phobia. Dr Blakemore, however, thought that such counselling might not be necessary.[81] He thought that with the support she has from her family, and a change to her medication regime, she might improve. He also thought that spending more time, at least initially, talking to her GP might also help. Dr Blakemore did not suggest that psychotherapy, other than medication, was necessary. In the circumstances, I prefer the evidence of Dr Blakemore on the need for counselling. I think that his area of expertise is more apt to that topic than the expertise of Dr Cook. I make no allowance for psychological or psychiatric counselling in the future.

    [81]   T521.

38. Dr Blakemore did, however, suggest that Mrs Pantazis take anti-depressant medication on a regular basis. Part of her problem was that she was taking the prescribed anti-depressant medication only when she felt she needed it. Dr Blakemore explained that, to be effective, the medication has to be taken regularly. Dr Blakemore estimated that the cost of medication might be $40 per month. He did not specify for how long Mrs Pantazis might be advised to take that medication.

39. Dr Cook recommended that Mrs Pantazis take two types of medication to reduce her levels of pain. The first is Amitriptyline which is a tri-cyclic anti-depressant and membrane stabiliser designed to reduce increased sensitivity of the nerves at the spinal cord level. That is a medication subsidised by the PBS and costs about $5 for 100 tablets. The suggested dose is two tablets per night. The cost of that medication is negligible.

40. The second medication is Gabapentin, which is an anti-convulsant, to reduce the amplification of pain transmission to the brain. That drug is not subsidised by the PBS and would cost about $1 per tablet. At the same recommended dose of two per night, the cost would be about $60 per month. Dr Cook said that these tablets would have to be taken over a period of years.

41. Mr Lindsay objected to the leading of evidence on these topics by Dr Cook. The objection arose from Dr Cook’s describing Mrs Pantazis as suffering from a pain syndrome.[82] The objection was based partly on the fact that no such syndrome has been pleaded. It is also partly on the basis that the pain medicine was not within Dr Cook’s expertise. Mr Saies did not press the evidence so far as it was a diagnosis of pain syndrome. I allowed the reception of the evidence de bene esse. Mr Saies said that while he was not leading the evidence to establish a pain syndrome, he was leading it to elucidate Dr Cook’s treatment of Mrs Pantazis.

    [82]   T385.

1. I have already found from the totality of the evidence, particularly that of Dr Blakemore, that Mrs Pantazis has developed a depressive illness as a result of the accident. Unfortunately, Dr Blakemore was not asked to comment on the interplay, if there is any, between the anti-depressant medication he was recommending and the two medications Dr Cook was prescribing. I am left being unsatisfied of the need to make a separate allowance for the medications recommended by Dr Cook. Taking a broad-axe approach I would allow $800 for the future anti-depressant medication recommended by Dr Blakemore. That is a course of anti-depressant medication at a cost of $40 per month for 20 months.

2. There remains the claim for the cost of future physiotherapy. Allied to that claim is Dr Cook’s recommendation that Mrs Pantazis take part in a graduated exercise programme, initially weekly or fortnightly. He provided no cost estimate. In addition, Dr D’Onise recommended a six week period of light, supervised hydrotherapy with an estimated weekly cost of $80 ($480).

3. I am persuaded by the evidence of Dr Cook that Mrs Pantazis has become what he describes as “deconditioned”. As a result of her pain and discomfort she is getting no, or very little, exercise. I am persuaded that it is reasonable that, at least initially, Mrs Pantazis be able to undertake some supervised exercise. After that she might undertake the exercise herself. The only specific, costed, estimate of that form of therapy is from Dr D’Onise. In the circumstances I award $480 for the course of supervised hydrotherapy that he proposes.

4. As to physiotherapy, I am persuaded by the evidence of Drs Munyard and Jones that physiotherapy is unlikely to assist. I make no allowance for future physiotherapy.

5. Reviewing the heads of damage for future medical expenses I make the following awards:

   Anti-depressant medication  $  800
   Hydrotherapy or supervised exercise                            $  480

   Total:  $1,280

   Orders for Damages

6. I make the following orders for damages in relation to Mrs Pantazis:

   Non-economic loss   $19,490.00
   Past gratuitous services   $58,240.00
   Interest on past gratuitous services   $7,000.00
   Future gratuitous services   $67,200.00
   Past special damages   $1,326.39
   Future special damages   $1,280.00

   Total:   $154,536.39

   The claim by the second plaintiff

   Claim by Mr Pantazis for impairment of consortium
   pursuant to s65 of Civil Liability Act

7. The claim on behalf of Mr Pantazis is that, as a result of his wife’s injuries and disabilities, he has lost something of the comfort and assistance with regard to marital, social and domestic duties that he might otherwise have enjoyed were it not for the accident.

8. In particular his wife is able to do little of the housework and cooking. She is almost entirely dependent on him in those respects. She is no longer able to drive herself about. She is less able to engage in social activities. The couple no longer go to Greek dances. They used to go once a month before the accident. His wife cries a lot whereas before she did not. She is frustrated by his being less able than she was to do the cooking and cleaning. In these ways their relationship has been impaired.

9. I accept Mr Pantazis’ evidence. It may be that with changes in the family dynamics, with changes due to advancing age and an increase in symptoms of his wife’s pre-existing conditions some of these impairments would have occurred without the accident. Nevertheless the accident has, I find, had a direct and deleterious effect on Mr Pantazis.

10. I award $5,000 to Mr Pantazis.

    Judgment

11. There will be judgment for the first plaintiff against the defendant in the sum of $154,536.39 which sum includes interest.

12. There will be judgment for the second plaintiff against the defendant in the sum of $5,000.